Local Union No. 294, Teamsters

LOCAL UNION NO. 294, TEAMSTERS Local Union No. 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Independent' and Hunt Bros., Inc. Case 3-CD-388 July 10, 1972 DECISION AND DETERMINATION OF DISPUTE By MEMBERS FANNING, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Hunt Bros., Inc., hereinafter referred to as the Employer, alleging a violation of Section 8(b)(4)(D) by Local Union No. 294, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Independent, hereinafter referred to as the Teamsters. Pursuant to notice, a hearing was held on March 23, 1972, in Albany, New York, before Hearing Officer James J. Palermo. The Employer and the Teamsters 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. 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 rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the basis of the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that Hunt Bros., Inc., is a State of New York corporation with its principal office and place of business located at Main Street, Wells, New York, where it is engaged as a trucking contractor in the construction industry. During the past calendar year, a representative period, it has had gross revenues in excess of $400,000, of which in excess of $50,000 is derived annually from services rendered to firms in interstate commerce, such as Niagara Mohawk Power Corporation. We find, accordingly, that the Employer is engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION 73 The parties stipulated, and we find, that the Teamsters is a labor organization within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer is a trucking contractor in the construction industry. During the period relevant to this proceeding, the Employer was engaged in hauling stone and dirt fill for R. E. Dailey and Co., hereinafter referred to as Dailey, at a sewage treatment plant project in Johnstown, New York, and for Burns Bros. Contractors, Inc., hereinafter referred to as Burns, at a water pollution control facility construction project in Amsterdam, New York. The Employer owns its own dump trucks which it uses to haul material to the jobsites. The Employer's trucks hauled sand, gravel, and stone to the Johnstown site but only gravel and stone to the Amsterdam site. The dump trucks were driven by the Employer's employees who were not repre- sented by the Teamsters although some were mem- bers of other locals of the Teamsters Union. The same trucks and drivers were used on both jobs. The Employer's drivers loaded their trucks at supply sources designated by Dailey and Burns and drove them to the Johnstown and Amsterdam jobsites, where the loads were dumped at places designated by representatives of Dailey or Burns. The loaders were owned by the Employer and operated by his employees who were represented by the Operating Engineers. The Employer had an agreement with the Operating Engineers. The Employer does not have any labor agreements with any local of the Teamsters Union. The Employer performed some bulldozer work for Dailey, and, prior to this dispute, the Employer did some hauling for other subcontractors on the site. Both Dailey and Burns were parties to agreements with the Teamsters which contained provisions restricting the rights of the signatory employers to subcontract jobsite work except under specified conditions. On or about October 27, 1971, Edward Hunt, president of the Employer, received a telephone call from Pirone, who was the Teamsters shop steward at Johnstown, asking him to come to the Teamsters union hall to talk with Carusone, a business agent. Hunt met with Carusone the following day, and Carusone told Hunt that if he wanted to work in the area he would have to sign a contract with the 1 The Teamsters name was amended at the heanng 198 NLRB No. 14 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters and he would have to put a shop steward on the job . When Carusone described the steward's duties, Hunt said he didn't need anyone to do that kind of work on his job. Carusone again reminded Hunt that this was what Hunt had to do if he was going to work in the area. Hunt agreed to look at the sample contracts and left the hall. That evening, Hunt called on Robilotto , president of the Team- sters. Hunt informed him of Carusone's demand that Hunt have a job steward. When Hunt said that he saw no reason why one of his own drivers couldn't be a job steward rather than hiring another man, Robilotto replied that he thought something could be worked out and for Hunt to see him at the union hall the next morning. On the evening of October 27, Hunt received a call from Gray, who worked for Burns, and a request for more fill at the Amsterdam jobsite . Hunt explained to Gray his problem with the Teamsters . Gray told Hunt if he wanted to haul fill Gray would arrange to put the Employer's employees on Burns' payroll. The following morning, when the Employer's drivers reported to the Amsterdam jobsite , Gray called the union hall to inform the Teamsters that he was going to put the Employer's employees on Burns ' payroll. Thereafter, Gray informed Hunt that his employees could not be placed on Burns' payroll. When Hunt tried to keep his appointment with Robilotto, he again talked to Carusone as Robilotto was not available . Carusone denied Hunt's request to use one of his own employees as a steward and stated that if the Employer's employees worked the area, the Employer would have to use the Teamsters drivers . Hunt asked what he could do with his men and Carusone replied that he could send them back to Plattsburg or Utica, or where they came from. When Hunt asked if his employees could transfer their membership to the Teamsters , Carusone replied that it wasn't up to him to transfer the men, but after the Employer signed a contract Carusone would see what could be done about it. During this period, the Teamsters informed Dailey that it was not living up to the subcontracting provisions in its contract, and if the Employer would sign a contract the problem would be resolved. Carusone suggested that Dailey hire the Teamsters members to do the hauling or use Bondale Construc- tion which was under contract with the Teamsters. Carusone warned Lasage, Dailey's representative, that unless the Employer's problem was resolved, pickets would be placed on the job. Thereafter, Pirone appeared at the jobsite and stated a picket would probably be set up. On October 29, Carusone informed Lasage that Dailey would be picketed if the Employer's problem was not resolved by Monday. Pirone visted the Johnstown jobsite on the same day , discussed the Employer's problem, warned as to picketing, and, after leaving the jobsite, called Dailey's timekeeper and indicated the Employer was to stop trucking immediately. On November 2, Pirone started picketing the Johnstown jobsite at 7 a.m. Dailey's employees and those of other contractors and subcontractors, approximately 35 in number, left the jobsite. The picketing lasted 1 day and Dailey suspended the Employer's services and used Bondale Construction Company for a while, and later the Employer returned to haul the fill. During this same period , the Teamsters also contacted Burns concerning the dispute with the Employer. Carusone threatened to picket Burns if it continued to use the Employer . On November 2, Carusone appeared at the Amsterdam jobsite. Caru- sone told Spencer, Burns' superintendent , that he had a picket sign in the car. Spencer told Carusone he was willing to replace the Employer with Bondale Construction Company . The Amsterdam jobsite was not picketed, but Burns temporarily discontinued the Employer's services and Bondale replaced the Em- ployer and hauled fill to the jobsite. B. The Work in Dispute The disputed work involves the assignment of the work of driving dump trucks from suppliers' facilities to the construction site of Dailey 's Johnstown- Gloversville sewage treatment job and to Burns' water pollution control facility at Amsterdam, New York. C. The Contentions of the Parties The Teamsters contends that there is no jurisdic- tional dispute involved herein, that an attempt was being made to organize the Employer , that he was paying below union scale and it was having a detrimental effect on the Teamsters membership, that the dispute was over signing a labor agreement, and that at no time were the Employer's employees to be dismissed and replaced with Teamsters mem- bers. The Employer contends that, although this is not the normal jurisdictional dispute , it is a true jurisdictional dispute in view of the business agent's statements to the Employer that either the Teamsters members were going to be on that job or else the Employer would not be on the job, and that the Teamsters wanted to appoint a steward for the job. D. Applicability of the Statute Before the Board may proceed with a determina- LOCAL UNION NO. 294, TEAMSTERS 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. As indicated above, the Teamsters contends that there is no jurisdictional dispute herein because the dispute was over the signing of a labor agreement as the Employer was paying below the union scale, and the Teamsters has not sought the replacement of the Employer's employees. We do not agree. The record shows that the labor dispute was a result of (1) the Employer's failure to sign a contract with the Teamsters, (2) its failure to employ members of the Teamsters, and (3) the Employer's not having a steward appointed from the Teamsters member- ship. While the Teamsters may have had an interest in having the Employer sign a contract as well as an interest in the Employer's failure to pay his employ- ees the wages and other benefits established by the contracts the Teamsters had with Dailey and Burns, the record also shows a proscribed objective of forcing the Employer to assign the disputed work to its members rather than to the Employer's own employees. Under Section 10(k) all that is required for the Board to make a determination is proof, as found herein, that the union's conduct had as an unlawful object, although not necessarily the sole object, the forcing or requiring of the employer to reassign the disputed work to its members. Clearly, the Teamsters objective was to force the Employer to replace its drivers with Teamsters members in view of Business Representative Caru- sone's statements to President Hunt that the Employ- er would have to use Teamsters drivers; that the shop steward had to be a member of the Teamsters; when asked by Hunt what he would do with his men, that he could send them back to the various cities from where they came; and that it wasn't up to Carusone to transfer the membership of the Employer's employees to the Teamsters, but, after the Employer signed a contract, he, Carusone, would see what could be done about it. Carusone also made good on his threat to Hunt that if the Employer's trucks were to work the area the Employer would have to use drivers who were members of the Teamsters, since the Teamsters threatened to picket and did picket both Dailey and Burns when the Employer refused to assign the work to the Teamsters; and the picketing succeeded in forcing the Employer off both jobsites. Finally, although President Hunt told Carusone he would sign the contract if he could use one of his own employees as shop steward, Carusone declined and insisted that the shop steward would have to be one of the Teamsters members. Carusone 75 also told Hunt that he couldn't bargain for any men from any other local and that he had to protect his members. We find that the Teamsters interest was not limited to its stated objective of forcing the Employer to sign a contract to protect the union scale, but included the objective of forcing or requiring the Employer to assign the work of driving the dump trucks to its members rather than to the Employer's own employ- ees. Accordingly, on the basis of the entire record, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determi- nation. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant factors. The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on common sense and experience, reached by balancing those factors involved in a particular case.2 1. Certification and collective-bargaining agreements The record shows that neither the Teamsters nor any other labor organization has been certified to represent any of the Employer's employees. Nor does the Employer now have a contract with the Team- sters. It is clear from the record that the factors of certification and contract are not relevant herein. 2. Company and industry practices The record shows that there are other contractors, both union and nonunion, engaged in hauling materials for construction jobsites in the same area. The Employer has engaged in this type of work for 15 years. Although the Employer currently has no contract with the Teamsters, the Employer has had agreements with affiliates of the Teamsters in other areas, but it has never had a contract with the Teamsters in this area. While the Employer has used union help to drive its dump trucks in this area, its drivers were members of locals in Plattsburg, Utica, and Kingston, New York. The record establishes that, with respect to the Johnstown and Amsterdam construction sites, the Employer has consistently employed drivers who were not members of the Teamsters to perform the disputed work of driving the dump trucks. Moreover, there is evidence that there are other hauling 2 International Association of Machinists, Lodge No 1743 (J A Jones Construction Company), 135 NLRB 1402 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contractors in the area who have used nonunion drivers to perform the disputed work . It would appear that the factor of company practice favors the assignment of the disputed work to the Employer's nonunion drivers. Accordingly, we find that compa- ny practice favors the continued assignment of the work to the Employer's nonunion drivers. 3. Relative skills, economy, and efficiency of operations The record reveals that no specific skills are required for the performance of the disputed work. All that is required is a chauffeur 's license. It would appear that both union and nonunion drivers would be equally qualified to perform the work. However, there is testimony in the record which shows that it is more economical for the Employer to use nonunion drivers rather than union drivers. The Employer testified that, with respect to the particular work he does for counties, towns, and different municipalities, he would not have any work for the drivers if he had to pay them the higher union rates. The pay rate for the Employer's drivers varies according to the type job to which he is hauling materials, whether private construction jobs or municipal jobs involving sewers. On municipal jobs, the Employer paid his drivers $3.25 to $3.75. The Employer contends that this is about all he can pay and be competitive with other contractors. On private construction jobs, e.g., shopping centers, the Employer would pay as high as $4 .50 an hour to the drivers. The Employer paid his drivers on the Johnstown and Amsterdam jobs between $3.50 and $4.50 an hour. Moreover, the Employer was not required to pay any hospitalization for the drivers, nor did he have to contribute to pension plans. The contract which the Teamsters wanted the Employer to sign, which would be applicable to Teamsters members if hired by the Employer, required that dump truck drivers receive a basic wage of $4.94 per hour, plus payments of 20 cents per hour by the Employer to the welfare fund and 20 cents per hour to the pension fund , or a total gross of $5.34 per hour. Clearly, this represents a difference of 84 cents per hour based on the highest rate the Employer was paying his nonunion drivers. Thus it would appear that the factor of economy favors the assignment of the disputed work to the Employer's nonunion drivers. Conclusions Having considered all pertinent factors , we con- clude that the factors, including company practice and economy, favor awarding the work to the employees of the Employer who are presently performing the disputed work, and we shall deter- mine that they are entitled to perform the work in dispute. Accordingly, on the basis of the entire record, we shall determine the existing jurisdictional controver- sy by awarding to the drivers presently employed by the Employer, rather than to drivers represented by the Teamsters, the work of driving dump trucks from suppliers' facilities to the construction sites of the Johnstown-Gloversville sewage treatment job and the water pollution control facility at Amsterdam, New York. In making this determination, we are assigning the work to the employees who drive dump trucks for the Employer and not to any union who may represent them or to its members. 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 hereby makes the following Determination of Dis- pute: 1. Employees of Hunt Bros ., Inc., who are currently performing the disputed work are entitled to perform the work of driving dump trucks from suppliers' facilities to the construction site of the Johnstown-Gloversville sewage treatment job and the water pollution control facility at Amsterdam, New York. 2. Local Union No. 294, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Hunt Bros., Inc., to assign such disputed work to dump truck drivers represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute , Local Union No. 294, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Independ- ent, shall notify the Regional Director for Region 3, in writing, whether or not it will refrain from forcing or requiring Hunt Bros., Inc., by means proscribed in Section 8(b)(4)(D), to assign the disputed work to its members rather than to employees who are presently working for the Employer and who are unrepresent- ed.