Local 150, Operating Engineers

LOCAL 150, OPERATING ENGINEERS Local 150, International Union of Operating Engi- neers, AFL-CIO and Components, Inc. and Gener- al Drivers, Warehousemen and Helpers Union Local 142, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America .' Case 13-CD-215 June 15, 1972 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed on August 10, 1971,2 by Compo- nents, Inc. (herein called the Employer), alleging that Local 150, International Union of Operating Engi- neers, AFL-CIO (herein called Operating Engineers or Respondent), had violated the Act by engaging in certain proscribed activity with an object of forcing or requiring the assignment of certain work described below to employees represented by Operating Engi- neers rather than to employees of the Employer represented by General Drivers, Warehousemen and Helpers Union Local 142, affiliated with Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (herein called Teamsters or Local 142). A hearing was held before Hearing Officer William T. Coleman on October 5 and 12, and on December 28 and 29. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer and the Respondent filed briefs which have been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer, an Indiana corporation with its principal office and plant in East Chicago, Indiana, is engaged in the manufacture of prefabricated building components used in the erection of single As amended at the hearing to reflect its correct designation z Unless otherwise noted, all dates herein are in 1971 569 and multiple family dwellings and townhouses. Its annual gross volume of business is in excess of $500,000 and it annually ships goods and materials valued in excess of $50,000 from points located inside the State of Indiana to customers located outside the State. Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Operating Engineers Local 150 and Teamsters Local 142 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer manufactures full-length wall sec- tions, full-length floor sections, and other prefabri- cated building components at its plant in East Chicago, Illinois. These components are transported to the construction projects of customers on semi- trailer trucks driven by employees of the Employer who are members of Local 142. After arrival at a construction project, components are hoisted from the semitrailer by means of a hydraulic crane mounted behind the truck's cab onto a building under construction and held in place for assembly by a crew of carpenters employed by a general contrac- tor. It is the operation of this hydraulic crane in moving component parts from the semitrailer onto a building that, is in dispute in this proceeding. Prior to the events giving rise to the dispute herein, the Employer contracted with Surety Builders, Inc. (herein called Surety), to supply building compo- nents to the latter's Country Club Apartments project at Woodridge, Illinois. Pursuant to that contract-and in conformance with prior business relations between the parties thereto-the cost of hoisting the materials was included in the consolidat- ed contract price and responsibility for such work was assumed by the Employer. Deliveries com- menced in late July, with the Employer's regular employees driving the components to the construc- tion site and then performing the hoisting work with their truck's cab-mounted crane. They were paid under the "semi with hoist" wage rate classification of the current collective-bargaining agreement be- tween the Employer and Local 142. The Employer has maintained a collective-bargaining relationship with this union since 1961, but has never bargained 197 NLRB No. 83 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Respondent or employed employees repre- sented by it. On August 9, Ray Johnson, Respondent's business agent, came to the Country Club site with Bob Venert, a business agent for Teamsters Local 963.3 They met with James Duffy, Richard Kaufman, and Albert Kaufman-respectively, Surety's construction vice president, operations vice president, and presi- dent. Johnson protested the performance of hoisting work by the Employer's employees; asserted-with Venert's agreement-that the work of hoisting components onto buildings came within the Operat- ing Engineers jurisdiction; and demanded that such work be assigned to the Operating Engineers mem- bers. Duffy testified that, when he and the other Surety officials responded by citing the fact that the past practice on their projects for many years had been for Teamsters members to perform this type of hoisting, Johnson replied that teamsters weren't going to do this any more and that, from then on, operating engineers were going to have to do it. According to Duffy, Johnson then said that Surety could allow the Employer's employees to continue their hoisting work "for the rest of the day, but that is it." Johnson denied making the aforementioned "that is it" remark and testified that he told the three Surety officials that he would refer the dispute to the appropriate locals of the Operating Engineers and Teamsters for resolution. Surety's officials testified that Johnson made no such statement in their presence. Albert and Richard Kaufman substantially corroborated Duffy's version of what was said on this occasion, but Business Agent Venert was not called to testify. Shortly after the discussion with Johnson, Duffy telephoned Arthur Clemens, the Employer's execu- tive vice president, and informed him of the Operating Engineers demands. Clemens said that he wouldn't acquiesce to such demands in light of his company's past practice and its contract with the Teamsters. Duffy replied, however, that as it was then prime construction time and Surety was already behind schedule they could not stand a work stoppage and, therefore, if the dispute with the Operating Engineers wasn't straightened out, Surety would rent its own crane-operated by an Operating Engineers member-from a crane rental firm and charge the costs thereof to the Employer. At that time, the Country Club project was totally unionized and a number of Surety's subcontractors were employing members of the Operating Engineers at the jobsite. When, on the morning of August 10, a semitrailer 3 It appears from the record that Local 963 is an Illinois-based Teamsters local which has jurisdiction over the area in which the building site was located, Local 142, which represents the Employer's employees, is an of the Employer's components arrived at the project, Duffy held up the hoisting work which normally would have followed such delivery. According to Duffy, he then telephoned Johnson, told him of the arrival of the Employer's truck, and asked whether there had been any change from the previous day in the positions of the unions on the disputed work. Duffy testified that Johnson then replied that there had been no change, that they would not change positions so as to allow the Employer's employees to operate the crane, and that if Surety wanted to place components on its buildings it would have to put Operating Engineers members on the crane. Johnson testified that Duffy asked him what the disposition was of the hoisting dispute and that he answered by saying that the matter had been referred to the Operating Engineers and to Teamsters Locals 142 and 963. Duffy contradicted Johnson's testimony on this point, while Johnson testified that his recollec- tion of the conversation was not sufficient to allow him to say whether Duffy's version was correct or not. Immediately thereafter, Duffy informed Clemens that Surety was going to rent a crane manned by an Operating Engineers member for the performance of the hoisting work and would bill the Employer for its costs. The same day, the Employer filed its charges in this case. During the period from August 10 to 18, all hoisting of the Employer's components at the jobsite was performed by Operating Engineers members on rented cranes. On August 18, under circumstances not clearly set forth in the record, Surety was advised that-pending the outcome of the instant case- there would be no objection by any party to the resumption of hoisting operations by the Employer's employees. Thereafter, Surety terminated its crane rentals and the Employer's employees performed all further components hoisting work, utilizing their cab-mounted cranes. B. The Work in Dispute The work here in dispute involves the operation of a hydraulic crane mounted on the cab of a semitrailer truck for the purpose of hoisting large prefabricated components from the bed of the semitrailer onto buildings under construction at the Country Club Apartments project in Woodridge, Illinois. C. The Contentions of the Parties 1. The Teamsters disclaims the work in dispute Indiana Teamsters local with jurisdiction over the area in which the Employer's plant is located There is no evidence or allegation that Venert had any authority to represent Local 142 or its members. LOCAL 150, OPERATING ENGINEERS 571 and agrees with the contentions of the Operating Engineers. 2. The Operating Engineers first contends that, since the Teamsters has disclaimed the work in question, no jurisdictional dispute within the mean- ing of Sections 8(b)(4)(D) and 10(k) exists. Second, Respondent argues that there is no reasonable cause to believe that it violated Section 8(b)(4)(D) as it never threatened to strike, to picket, or to cause a work stoppage. Third, Respondent maintains-with- out having presented any affirmative evidence itself on the issue-that the Employer has not substantiat- ed the fact that the work in question was not properly that of the Operating Engineers. 3. The Employer first contends that the state- ments of Respondent's business agent were violative of Section 8(b)(4)(D) because-in the context of a totally unionized project and the employment there- on of a number of Respondent's members-they were intended to, and did, coerce and restrain Surety into changing the assignment of the disputed work. Second, the Employer argues that the Teamsters disclaimer is ineffective as the Teamsters members employed by it wish to continue performing the disputed work. Finally, the Employer maintains that its own employees should perform the work on the basis of company and area practice, their possession of the requisite skills, efficiency and economy of operation, and the Employer's assignment of the work to them. 4. Prior to the commencement of the hearing, the Operating Engineers and the Teamsters jointly moved to quash the notice of hearing on the ground that no jurisdictional dispute existed between the two unions, citing both the Teamsters disclaimer of the disputed work-dated October 1-and a 1969 agreement between their parent International unions which provided that work of the type in dispute herein came within the jurisdiction of the Operating Engineers. The Hearing Officer referred the motion to the Board. D. The Apphcabihty of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. With respect to the Teamsters' disclaimer, we note that the Employer's employees-members of the Teamsters-have at all times (except for the period August 10 to 18) continued to perform the work in question without objection on their part. Moreover, 4 See Pipeliners Local No 798 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefttting Industry of the United States and Canada, AFL-CIO (Moon Pipeline Contractors, Inc), 177 NLRB 872, International Union of Operating Engineers, AFL-CIO, Local 520 (Biebel the parties stipulated that these employees, in fact, wish to continue to do so. Under similar circum- stances, the Board has held that a union disclaimer is not effective to vitiate an otherwise viable jurisdic- tional dispute. Accordingly, we find no merit in the contentions of Respondent and the Teamsters in this regard.4 It is clear from the record that the object of Respondent's conduct-as implemented by Business Agent Johnson-was to have the hoisting work then being done by Components' employees assigned to members of the Operating Engineers. Nevertheless, as indicated above, Respondent contends that the statements made by Johnson, when demanding assignment of the work to the Operating Engineers, cannot be held violative of Section 8(b)(4)(D) because they did not contain any specific threats to strike, to picket, or to engage in a work stoppage. However, considering the previously set forth cir- cumstances extant when this dispute arose, we find that the officials of Surety and the Employer reasonably concluded from Johnson's remarks that a work stoppage, at least on the part of members of the Operating Engineers, would result if Respondent's demands were rejected. Also, we note that subse- quent actions taken by Surety and the Employer -particularly Surety's hurried acquiescence to the demands made-were consistent with the allegation that a threat of work stoppage had, in fact, been made. In a jurisdictional dispute context, the Board is not charged with finding that a violation did in fact occur, but only that there is reasonable cause to believe that there has been a violation. On the facts herein, and without ruling on the credibility of testimony that is in issue, we find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the dispute is properly before the Board for determination under Section 10(k) of the Act. For the foregoing reasons, as well as the fact that the Employer was not a party to the 1969 agreement between the two Internationals, we deny the joint notion to quash the notice of hearing. E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. As the Board has stated, the determination in a jurisdictional dispute case is an act of judgment Bros, Inc), 170 NLRB 285, Millwrights' Local 1113, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Brogdex Company), 157 NLRB 996 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD based on commonsense and experience in weighing these factors.5 The following factors are relevant in making a determination of the dispute before us. 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified by the Board. However, the Employer and the Teamsters have maintained collective-bargaining relations for over 10 years and are currently parties to a contract which covers the employees who have been performing the work in dispute. Although that contract does not specifically assign the disputed hoisting work to the Employer's employees, it does provide a specific wage rate classification-"semi with hoist"-for the employees who perform such work. The Employer has no employees represented by the Operating Engineers and has never had a collective-bargaining agreement with that union. Accordingly, we find that the contractual relationship between the Teamsters and the Employer favors the Teamsters. 2. Company, industry, and area practice The Employer's past and present practice has been to assign the operation of its truck-mounted cranes for the purpose of hoisting building components onto construction sites to its employees who are represent- ed by the Teamsters. As to industry and area practice, uncontested testimony in the record estab- lishes that the operation of equipment identical to that in dispute here, as well as other types of truck- or trailer-mounted cranes performing essentially the same function, has been almost uniformly assigned to employees represented by local unions affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Accordingly, we find that company, industry, and area practice factors favor assignment to the Team- sters. 3. Skills, efficiency, and economy The record establishes that employees represented by the Teamsters possess skills necessary to perform the disputed work to a degree greater than those possessed by employees represented by the Operat- ing Engineers. There was uncontradicted testimony that there were few, if any, members of the Operating Engineers who had experience in operating the type 5 International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Co), 135 NLRB 1402, N L R B v Radio & Television Broadcast Engineers Union, Local 1212 (Columbia Broadcasting System), 364 U S 573 6 The term "dual-purpose vehicle" refers to those trucks of the Employer of crane that is mounted on the Employer's dual- purpose vehicles; 6 and that the Employer's employ- ees had developed specialized skills-particularly learning to efficiently cope with wind resistance when lowering full-length wall and floor compo- nents-from 10 years of experience. Further, Em- ployer witnesses testified that large economies of operation gained from use of its dual-purpose vehicles would be lost if it could not assign a single employee both to drive the truck and to operate its self-contained crane. Finally, the Employer states that it is satisfied with the manner in which its Teamsters employees have performed the disputed hoisting work and wishes for them to continue to do so. We find that the factors of skills, efficiency, and economy favor an award to the Teamsters. 4. The interunion agreement The aforementioned 1969 agreement between the International Brotherhood of Teamsters and the International Union of Operating Engineers provid- ed that the operation of hoisting equipment attached to trucks came within the jurisdiction of Operating Engineers when used for the purpose of hoisting materials into place or onto scaffolds. While this agreement constitutes a factor favorable to the Operating Engineers, we do not accord it great weight in view of the Employer's contrary past practice dating back to 1961, and the fact that the disputed work was assigned to Teamsters members, without apparent dispute, for over 2 years subse- quent to the effective date of the interunion agree- ment.7 Conclusions Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that the Employer's employees who are represented by the Teamsters are entitled to the work in dispute. In reaching this conclusion, we have particularly relied on the Employer's assignment of the disputed work to its employees; the fact that this assignment is consistent with the Employer's past practice, its current collective-bargaining agreement with the Teamsters, and the area and industry practice of its competitors; the fact that the Team- sters-represented employees possess the requisite skills to perform the work; and the efficiency and economy of operations which result from such assignment. We shall, therefore, determine the which can be used for the combined functions of transporting cargo and operating as a crane at alobsite 7 Tri-County Building and Construction Trades Council of Akron and Vicinity, AFL-CIO (The John G Ruhhn Construction Company), 137 NLRB 1444 LOCAL 150, OPERATING ENGINEERS 573 dispute before us by awarding the work involved therein to those employees represented by the Teamsters, but not to that Union or its members. Scope of the Award The Employer requests a broad work award, contending that it is necessary in order to avoid similar disputes which are likely to occur in the future at other construction sites to which it delivers building components. However, there is no evidence of a pattern of misconduct that suggests a likelihood that this dispute will extend to otherjobsites or recur in the future. Accordingly, the determination herein shall apply only to the disputed work at the Country Club Apartments jobsite, Woodridge, Illinois. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Components, Inc., represented by General Drivers, Warehousemen and Helpers Union Local 142, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, are entitled to perform, through operation of the Employer's truck-mounted cranes, the work of hoisting prefabricated compo- nents and other construction materials from their Employer's trucks onto buildings at the Country Club Apartments construction site, Woodridge, Illinois. 2. Local 150, International Union of Operating Engineers, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the assignment of the above work to its members or to employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 150 , Interna- tional Union of Operating Engineers, AFL-CIO, shall notify the Regional Director for Region 13, in writing, whether it will refrain from forcing or requiring, by means proscribed by Section 8(b)(4)(D) of the Act, the assignment of the work in dispute to employees represented by the Operating Engineers, rather than to employees represented by the Team- sters.