Laborers, Local 89

LABORERS, LOCAL 89 129 Laborers' International Union of North America, Local No. 89, AFL-CIO (San Diego Zoological Society) and Automotive and Allied Industries Employees of San Diego County, Local No. 481, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 21-CD-313 in value and purchased goods and supplies directly from suppliers located outside the State of California exceeding $50,000 in value. Accordingly, we find that the Employer is engaged in 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. July 11, 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 by Automotive and Allied Indus- tries Employees of San Diego County, Local No. 481, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, hereinafter called Teamsters, alleging a violation of Section 8(b)(4)(D) by Laborers' International Union of North America, Local No. 89, AFL-CIO, here- inafter called Laborers. Pursuant to notice, a hearing was held on April 10, 11, and 12, 1972, at San Diego, California, before Hearing Officer Scott Forman. All parties' appear- ing at the hearing were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, Laborers, Operating Engineers, the Em- ployer, and Teamsters filed briefs in support of their respective positions. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its authority in this proceeding to a three- member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the basis of the briefs and the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer is a California nonprofit educational corporation which operates the San Diego Zoo in Balboa Park, and also the Wild Animal Park in San Pasqual, both located in San Diego, California. During the 12-month period ending March 31, 1972, the Employer had gross receipts exceeding $500,000 i At the heanng, San Diego Zoological Society, hereinafter called the Employer, International Union of Operating Engineers, Local 12, AFL-CIO, hereinafter called Operating Engineers , and the City of San Diego, hereinafter called City, intervened. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Teamsters, Laborers, and Operating Engineers are labor organi- zations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute On February 13, 1969, the City of San Diego and the Employer entered into an agreement whereby the City granted the use and occupancy of a certain portion of land in the San Pasqual Valley to the Employer for the purpose of the establishment, maintenance, and operation of a wild game preserve, hereinafter called the Wild Animal Park. Pursuant to this agreement, certain construction contracts were let by the City, and other construction contracts were let by the Employer, for various construction projects in the Wild Animal Park. These projects require landscape gardening work, including the planting of trees, shrubs, flowers, and lawns. None of the construction contracts let by the City or the Employer included the performance of landscape gardening work. The Wild Animal Park project began May 18, 1969, and landscaping for the project commenced in the early spring of 1970. All landscaping work was performed by the Employer's own employees, repre- sented by Teamsters. On March 7, 1972, Joseph Alcoser, assistant business representative of Laborers, sought access to the construction site at the Wild Animal Park. He was confronted by Robert L. Riley, resident ranger of the Wild Animal Park, who was under instructions to refuse access to all persons unless they were there to see a specific individual. Alcoser stated that he did not desire to see anyone in particular, but just wanted to walk through the construction site.2 Riley therefore denied access to Alcoser and suggested that Alcoser telephone Harold R. Barr, director of construction and maintenance for the Employer, who could authorize Alcoser's admission to the Wild Animal Park. 2 The master labor agreement in the San Diego County area provides that employers who are signatories thereto shall afford union representa- tives free access to thejobsite for the purpose of conducting union business. The Employer is not a party to this agreement. 198 NLRB No. 27 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After attempting to contact Barr by telephone and failing to do so, Alcoser, on the evening of March 7, 1972, went to the regularly scheduled meeting of the Building Trades Council and requested picket sanction based on the Employer's refusal of access to Alcoser and Alcoser's belief that some work at the Wild Animal Park belonged to laborers, but was being performed by other workers. The Building Trades Council granted such sanction. On March 8, 1972, about 7:20 a.m., Laborers established picket lines at three entrance gates to the_ Wild Animal Park. At each gate, two pickets carried signs which read, "AFL-CIO Picket Sanctioned by Building Trades Council." Some construction work- ers refused to cross the picket line and some deliveries of construction materials were not made. Upon being notified that pickets were at the gates, Barr contacted Laborers, and it was agreed that in return for a cessation of the picketing, the Employer would cease performing the disputed work. Pursuant to this agreement, the picket line was removed. There is disagreement, unnecessary to resolve, as to whether or not it was also agreed that a meeting was to take place at the Wild Animal Park at I 1 a.m. that day between Barr and Laborers. However, Barr did meet representatives of Laborers in the afternoon of March 8, 1972, at which time he told them that any further dealings relating to the problem would have to be handled through the Employer's labor repre- sentative. On March 9, 1972, a meeting was held at which time representatives of Laborers, Teamsters, and the Employer were present. The parties agreed that the aforementioned agreement between Barr and Labor- ers would continue until at least March 13, 1972. In the meantime, Edward J. Riccio, the City's project officer for the Wild Animal Park, requested Barr to find a quick resolution of the dispute to insure that the Wild Animal Park would open to the public on schedule. Thereafter, the Employer ar- ranged for Louetto Construction Company (Louetto) to perform the disputed work with members of Laborers. The agreement between the Employer and Louetto was terminable at will, and provided that the Employer would reimburse Louetto for the cost of employing laborers for the disputed work. Immediately following the granting of a temporary injunction against further picketing by Laborers on March 30, 1972, the Employer terminated the agreement with Louetto and again assigned the disputed work to its Teamsters employees. B. The Work in Dispute The hearing shows that the work in dispute involves the landscaping, including the planting of trees, shrubs, flowers, and lawns, only in those areas of the Wild Animal Park presently under construc- tion. Some of this work involves the use of equipment such as motor operated diggers , skip loaders, and various trucks . The parties, at the hearing, stipulated that the subsequent landscape maintenance work is under the exclusive jurisdiction of the Teamsters, and is not in dispute. C. Contentions of the Parties Laborers contends that its master labor agreement with a contractors association requires that all landscaping work performed at new construction areas be assigned to laborers . In support of this contention, Laborers points to the classifications in the master labor agreement for San Diego County, which include landscape gardener and nurseryman, and the laying of all nonmetalic pipe, such classifica- tion claimed to cover the insertion of sprinkling systems within the landscaping. Laborers argues that the construction work being performed at the Wild Animal Park falls under the classification "New Construction Work" and thereby is governed by the master labor agreement. Operating Engineers likewise contends that much of the planting work should be assigned to laborers under its master labor agreement ; but it argues that the landscaping work involving the use of machinery should be assigned to operating engineers under the master labor agreement with the San Diego County general contractors. In addition, Laborers and Operating Engineers argue that assignment of the disputed work to teamsters would violate California state law, on the ground that the wage rates paid to Teamsters employees do not meet the established minimum prevailing wage rates for the tasks performed. Whether the wage rates received by the teamsters violate state law, however, is a question which should be pursued in the state judicial system . Assuming, arguendo, that such wage rates violate state law, assignment of the disputed work to Teamsters employees would have no effect upon state law. The remedy, we believe, would be to compel the Employer to comply with state law, rather than for us to assign the disputed work to other employees. Both Laborers and Operating Engineers further contend that all the parties have agreed to a method of settlement which precludes the Board from asserting jurisdiction under Section 10(k) of the Act. The Employer and Teamsters contend that the disputed work should be performed by teamsters for the following reasons: (1) The past practice of the Employer has been to assign such work to teamsters, (2) teamsters have the requisite skills to perform the LABORERS, LOCAL 89 131 work properly, (3) the Employer and Teamsters are parties to a collective-bargaining agreement, whereas neither Laborers nor Operating Engineers is a party to any agreement with the Employer, and (4) the Employer prefers to assign the work to teamsters. D. Applicability of the Statute Before the Board may proceed with a determina- tion of a 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 and that there is no agreed-upon method for voluntary settlement of the dispute. A question has been presented as to whether the City or Louetto should be regarded as the employer for the purpose of assigning the disputed work. The record discloses that none of the contracts let by the City or the Employer permanently assign the disputed work . It is true that for 3 weeks during March 1972 Louetto hired laborers to perform a part of the disputed work. However, this was based on a temporary agreement between the Employer and Louetto to insure the work at the Wild Animal Park would continue until the instant dispute could be resolved. As noted under Background and Facts of the Dispute, once the temporary injunction had issued, the agreement between Louetto and the Employer was terminated and the Employer resumed complete control and responsibility for the performance of the disputed work. Accordingly, we are satisfied that the Zoological Society is the Employer for work assign- ment purposes. The uncontradicted evidence discloses that on March 8, 1972, Laborers established pickets at the gates to the Wild Animal Park. While Laborers contends that the picket lines were established only because one of its business representatives had been refused access to the Wild Animal Park, the record reveals that a major object of the picketing was to have the disputed work assigned to laborers. Alcoser himself testified that when he sought sanction for the pickets he told the chairman of the Building Trades Council that the reason he wanted access to the Wild Animal Park was because he believed there was work being done that belonged to laborers. He further stated that the problem of who was doing the landscaping was an element in the decision to picket. The record further discloses that on March 8, 1972, Laborers, after gaining access, insisted that Barr discuss the assignment of the disputed work. In fact, Dean Armstrong, secretary-treasurer of Laborers, admitted at the hearing that he told Barr that if Barr refused to discuss the work dispute Armstrong would put back the pickets. Laborers and Operating Engineers argue that the parties have agreed upon a method for voluntary settlement of the dispute. This argument rests on an agreement entered into on March 9, 1972, by the Employer, Teamsters, and Laborers to submit the dispute to California State Conciliator Tom Vitiach. Laborers contends that the dispute was to be submitted to Vitiach for binding arbitration. The Employer and Teamsters contend that the agreement was only to allow Vitiach, in his role as conciliator, to try to bring the parties together. We note in any event that Operating Engineers was not a party to this disputed agreement. Further, Teamsters has consistently maintained that the work in dispute was solely within its jurisdiction. Under these circum- stances, we believe there is no agreed-upon method for voluntary settlement of the dispute. Furthermore, on the record as a whole, we are satisfied that there is reasonable cause to believe a violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for determination. 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 the various relevant factors. 1. Certification and collective-bargaining agreements There is no Board certification which covers the work in dispute. However, since 1959, the Employer has had a series of collective-bargaining agreements with Teamsters covering a unit which includes the classification "gardener." On the other hand, the Employer has no employees represented by either Laborers or Operating Engineers. 2. Employer and area practice The Employer's consistent practice, with two negligible exceptions, has been to assign the disputed work to its employees represented by the Teamsters. With respect to area practice, the record discloses that contractors who are parties to master labor agreements with Laborers or Operating Engineers, and whose contracts call for landscaping, assign the disputed work to laborers or operating engineers, respectively. 3. Relative skills, economy, and efficiency of operations The record shows that the employees presently employed by the Employer possess sufficient skills to perform satisfactorily the work in dispute and the Employer is fully satisfied with the productivity and 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD efficiency of its employees and desires to continue assigning such work to them. The record also shows that laborers, during the 3 weeks in March 1972 when they performed the disputed work under Louetto, also performed satisfactorily. However, if laborers continued to be assigned the disputed work after the Employer terminated Louetto's contract, the productivity and efficiency of the Employer's operations would be impaired, since the Teamsters employees can satisfactorily perform all the disputed work, including the operation of machinery, while laborers can perform only that work not requiring the use of machinery. Conclusion Upon the entire record in this proceeding and after full consideration of all the relevant factors, in particular the contractual relationship between the Employer and Teamsters, the Employer's past practice, and the economy and efficiency of opera- tions, we conclude that employees of the Employer who are represented by Teamsters are entitled to the work in question, and we shall determine the dispute in their favor. We do not, however, award the work to Teamsters or 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 the San Diego Zoological Society currently represented by Automotive and Allied Industries Employees of San Diego County, Local No. 481 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are entitled to perform the work of landscaping, including the planting of trees, shrubs, flowers, and lawns, in all areas under construction of the Wild Animal Park , located in the San Pasqual Valley, San Diego, California. 2. Laborers' International Union of North Amer- ica, Local No. 89, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D ) of the Act to force or require the San Diego Zoological Society to assign the above work to employees represented by said Union. 3. Within 10 days from the date of this Decision and Determination of Dispute , Laborers' Interna- tional Union of North America , Local No. 89, AFL-CIO, shall notify the Regional Director for Region 21 , in writing, whether or not it will refrain from forcing or requiring the San Diego Zoological Society, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by it rather than to employees represent- ed by Automotive and Allied Industries Employees of San Diego County, Local No. 481, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America.