Teamsters Local 959 (Mukluk Freight Lines)

TEAMSTERS LOCAL 959 Teamsters Local 959-State of Alaska, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and Mukluk Freight Lines, Inc. and International Union of Operating Engineers, Local 302, AFL- CIO. Case 19-CD-274 January 27, 1978 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Mukluk Freight Lines, Inc., herein called the Employer, alleging that Teamsters Local 959-State of Alaska, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called Local 959 or the Teamsters, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscrib- ed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by it, rather than to employees represent- ed by International Union of Operating Engineers, Local 302, AFL-CIO, herein called Local 302 or the Operating Engineers. Pursuant to notice, a hearing was held before Hearing Officer Harold D. Weier on May 17 and 18, 1977. 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, briefs were filed by Local 959, the Employer, and Local 302. 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 Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The Employer, a wholly owned subsidiary of Crowley Maritime Corporation, is engaged in truck- ing operations in the State of Alaska. During the past calendar year, a representative period, the Employer performed services for Atlantic Richfield Company in excess of $50,000, and during that same represen- I Although the record does not contain a precise definition of "non- regulated," the term apparently refers to operations not subject to the tative period purchased goods and/or services having a value in excess of $50,000 from sources outside the State of Alaska for delivery in the State of Alaska. Accordingly, we find, as the parties have stipulated, 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 purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 959 and Local 302 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 has been engaged, since about 1969, as a trucking company providing transportation and support services to various oilfield operations on the North Slope of Alaska. Although Mukluk is certifi- cated as a common carrier by the Alaska Transporta- tion Commission and the Interstate Commerce Com- mission, it is undisputed that most of its work on the North Slope is "non-regulated."I Mukluk's oilfield support services include the transportation, rigging, and tearing down of oil drilling rigs, the transporta- tion and operation of portable vacuum tanks, grad- ers, and bulldozers, and the grading of ice roads and drilling pads. The disputed work involves the oiling and other lubrication of teamsters-operated equipment. Mukluk has collective-bargaining agreements with both Unions. Mukluk executed its first contract with Teamsters Local 959 in 1970. The clause which Teamsters claims covers the disputed work first appeared in its 1974 agreement; this clause, which also is included in the current agreement, provides: The fueling, cleaning, lubricating, tire and/or battery service, parts department servicing and all other services necessary in the maintenance of equipment operated by members of this Local Union, shall be performed by members of Team- sters Local 959 ... Mukluk's collective-bargaining agreement with Lo- cal 302 binds Mukluk to the Local 302-AGC agreement as to all work performed on the North Slope. Schedule A, section 1, of the latter agreement provides: The Contractors recognize and agree that Local No. 302 of the I.U. of O.E. is the exclusive regulatory authority of the above-named commissions. 234 NLRB No. 87 545 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agent for the operation, maintenance, shop and jobsite repair of all heavy construction equipment, including the repair of all automotive equipment. Mukluk's equipment includes: 3 cranes, 2 D8 Caterpillar tractors (bulldozers), I grader, 23 bed tandem trucks, 6 winch trucks, 9 large tank trucks, 5 vacuum trucks, 4 water tanks, 11 light trucks, 13 forklifts, and a variety of specialized trailers. Em- ployees represented by the Operating Engineers operate the cranes, the bulldozers, the grader, and forklifts with permanently attached buckets. All other equipment is operated by employees represent- ed by Teamsters Local 959. As an integral part of its North Slope operations, Mukluk operates a nine-bay combination repair shop for the repair and maintenance of its trucks and heavy equipment. Mukluk's shop personnel varies in number from about 12 in the peak winter season to 6 in the summer. The mechanics, who do the repair work on all of Mukluk's trucks and heavy equip- ment, and the service oilers2 are represented by the Operating Engineers; the tiremen, shop swampers, and parts men are represented by the Teamsters. For several months in 1970 and for about 2 weeks in the winter of 1974-75, the disputed work3 was performed by a Local 959 member. At all other times the work has been assigned to an employee repre- sented by the Operating Engineers. In August or September 1976, Cliff Hill, a Local 959 shop steward for Mukluk, first raised a question regarding this practice. Subsequently, Roger Harris, a Local 959 business agent, contacted Richard Davis, vice presi- dent of Mukluk's parent, Crowley Maritime Corpo- ration, asking that the disputed work be reassigned to a member of Local 959. Mukluk did not comply with that request, and subsequently also failed to comply with a similar request made by the Teamsters in March 1977. Local 959 thereupon filed a grievance pursuant to its contract with Mukluk. The grievance was processed through arbitration and the arbitra- tion panel unanimously held that the agreement assigned the disputed work to Local 959 members.4 When Mukluk continued to refuse to reassign the work, Local 959 threatened to strike. Thereafter, to avoid a strike, Mukluk assigned the work to a Teamsters-represented employee as an interim mea- sure, and filed the charge in the instant case. 2 Service oilers perform, inter alia, oiling and lubrication work in the shop. As set forth below, until April 1977 (with two brief exceptions), the only Mukluk employee performing this work was a member of Local 302. Currently, pending resolution of this dispute, two employees handle the oiling and lubrication work; the additional employee, a member of the Teamsters, services the vehicles and equipment operated by Teamsters- B. The Work in Dispute The work in dispute, as defined in the notice of hearing, consists of the oiling and other lubrication of that portion of the Employer's equipment which is operated by those of the Employer's employees who are represented by Teamsters Local 959 on the North Slope of Alaska. C. The Contentions of the Parties The Employer contends that, inasmuch as there is only enough lubrication work in its North Slope shop for one person, splitting the lubrication work be- tween two employees, one represented by Local 302 and one represented by Local 959, is unnecessary, inefficient, and uneconomical. The Employer further asserts that, as contrasted with Local 959-represented employees, employees represented by Local 302 appear to have more extensive training, bring their own tools to the job, and can be more flexibly employed in the shop. For example, the latter can begin to dismantle equipment preparatory to a mechanic's repair work. The Employer asserts that it prefers neither Union over the other, but would prefer to have all of the oiling and lubrication work assigned to only one employee. Operating Engineers Local 302 contends that the work belongs to employees represented by it be- cause: (1) the Employer is a construction operation and the Mukluk/Local 302 contract awards the maintenance and repair of automotive equipment to Local 302; (2) area practice among construction companies favors the Operating Engineers; (3) Muk- luk's past practice has been to give the work to Local 302 members; and (4) employees represented by Local 302 are more highly trained and skilled than Teamsters-represented employees, and it is therefore more efficient for them to perform the work. Local 959 contends that the work of service oiler or greaser belongs to employees represented by Local 959 for the following reasons: (1) Mukluk is a common carrier and the Mukluk/Local 959 contract clearly awards the work to teamsters; (2) area practice among common carriers demonstrates that the work belongs to employees represented by the Teamsters; and (3) considerations of efficiency favor the Teamsters claim. represented employees, while the Local 302 member services the heavy equipment. 3 As set forth more fully below, the disputed work consists of the lubrication of teamsters-operated equipment. 4 The Operating Engineers was not a party to the grievance-arbitration proceedings. 546 TEAMSTERS LOCAL 959 D. Applicability 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 (I) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) the parties have not agreed upon a method for the voluntary adjustment of the dispute. As to (1) above, Roger Harris, a business agent for Local 959, testified that he told Stanley Waugh, Mukluk's operations manager, that if Mukluk did not assign the disputed work to an oiler represented by the Teamsters, the teamsters would walk off the job. With respect to (2) above, the parties stipulated, and the record shows, that the instant dispute has not been adjusted, nor has any method for the voluntary adjustment of the dispute been agreed upon, nor is the employer a party to any joint board for the settlement of jurisdictional disputes. On the basis of the entire record, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that this 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 various factors.5 The Board has held that its determination in a jurisdictional dispute is an act of judgment, based on commonsense and experience, reached by balancing those factors in- volved in each particular case.6 The following factors are relevant in making the determination of the dispute before us: 1. Certification and collective-bargaining agreements The parties stipulated that there are no Board certifications which are relevant to the work or tasks involved herein. Each Union, however, asserts that its contract with Mukluk gives it the disputed work. Thus, Local 959's contract with the Employer states that: "the fueling, cleaning, lubricating . . . and all other services necessary in the maintenance of equipment operated by members of this Local Union, shall be performed by members of Teamsters Local 959." The Operating Engineers contract, on the other hand, states that Local 302 is "the exclusive s Radio d Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL CIO [Columbia Broadcasting Sys- tem] v. N. LR.B., 364 U.S. 573 (1961). bargaining agent for the operation, maintenance, shop and jobsite repair of all heavy construction equipment, including the repair of all automotive equipment." The language of Local 959's contract refers in specific terms to the work in dispute herein. The language of Local 302's contract, on the other hand, is less than clear in that regard. Local 302's argument that the phrase "repair of all automotive equipment" necessarily includes the lubrication and oiling work in dispute herein is attenuated at best. Moreover, that contract admittedly is intended to cover mainte- nance and repair of equipment on construction "jobsites." The Employer's combination shop, how- ever, is not located on a constructionjobsite. In these circumstances, the clear language of Local 959's agreement specifically covering the work in dispute favors awarding the work to employees represented by that labor organization. 2. The Employer's practice As set forth above, the Employer's practice has predominantly been to assign the disputed work to an employee represented by Local 302, notwith- standing the Employer's contract with Local 959 to the contrary. Although the Employer has deviated from this practice for short periods on two occasions, we find that the Employer's practice favors awarding the work to employees represented by Local 302. 3. Industry and area practice With respect to industry practice, Local 302 intro- duced evidence showing that construction firms on the North Slope assign the work in dispute to employees represented by Operating Engineers. On the other hand, Local 959 presented evidence show- ing that employers engaged as common carriers assign the disputed work to employees represented by Teamsters. As the Employer is engaged both as a common carrier and as a construction firm, this evidence is not conclusive. The record shows that there is only one other company operating on the North Slope whose operations are similar to those of the Employer. Kodiak Oil Haulers, like the Employer, is engaged as a common carrier and, in addition, performs some construction work on the North Slope. Kodiak, like the Employer, is party to collective-bargaining agree- ments with both Local 302 and Local 959. Like the Employer, Kodiak also operates a combination shop removed from a construction jobsite. Kodiak, in compliance with its contract with Local 959, assigns 6 International Association of Machinists. Lodge Nao 1743. AFL-CIO (J. A. Jones Construction Company). 135 NLRB 1402 (1962). 547 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the disputed work to an employee represented by that Union.7 Accordingly, we find that the area practice, although based on the experience of only one other employer, favors awarding the work to employees represented by Local 959. 4. Relative skills Each Union claims that the employees it represents are competent to perform the disputed work, and both Unions claim to have training schools or programs for service oilers. 8 The evidence indicates that either group of employees is capable of perform- ing the work. Accordingly, we find that consider- ations of skill and training favor neither group of employees. 5. Economy and efficiency of operation It is undisputed that the lubrication of all the equipment and trucks in Mukluk's shop can be efficiently performed by one person. Furthermore, inasmuch as employees represented by the Operating Engineers are capable of performing low-level me- chanical work such as disassembling equipment preparatory to repair work, they can be more flexibly employed in the shop than Teamsters-represented employees. The Employer has, prior to the instant dispute, usually assigned all the lubrication work to a single person represented by the Operating Engi- neers. Finally, if Mukluk must continue to use a Teamsters-represented employee to lubricate team- sters-operated equipment, it will be required to pay two service oilers their full day's wages although there is enough work to keep only one oiler busy full time. Accordingly, we find that considerations of econo- my and efficiency of operations favor the Operating Engineers claim. 6. Union agreements Local 302 submitted a "Construction Site Jurisdic- tional Agreement" between the Operating Engineers and the Teamsters which provides that in repair shops set up "on construction jobsites for the repair of equipment operated by both Teamsters and Operating Engineers, said repair work shall be the sole jurisdiction of the Operating Engineers." Inas- much as the Mukluk shop is not a "construction jobsite" shop, and the disputed work is lubrication and not repair, we find that this agreement does not constitute a material factor in the resolution of the instant jurisdictional dispute, and we do not rely on Kodiak's manager testified that, for reasons of economy and efficiency similar to those expressed by Mukluk, Kodiak would prefer to assign all of its lubrication work to a single employee represented by the Operating Engineers. it in making our determination as to which group of employees should be awarded the work. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that employees who are represented by Teamsters Local 959-State of Alaska, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are entitled to perform the work in dispute. We reach this conclusion relying primarily on the clear language of the Mukluk/Local 959 collective-bargaining agree- ment, which allocates the disputed work to Team- sters-represented employees. In reaching this conclu- sion, we recognize, as our dissenting colleague observes, that for a number of years no Teamsters steward or official has objected to the Employer's practice of assigning the disputed work to five employees represented by the Operating Engineers. However, while this may indicate that the Teamsters was not altogether alert in asserting its contractual rights, we see nothing in the record that could be characterized as a waiver of those rights. Further- more, the area practice favoring the Teamsters, although limited to one other employer, admittedly reflects that employer's adherence to the contract language granting the work to employees represented by the Teamsters. The Employer's assignment, on the other hand, stands in derogation of the contract, and considerations of economy and efficiency cannot be said to justify that action. In light of the above, we find that, on balance, the collective-bargaining agree- ment and area practice here outweigh economy and efficiency as factors in our determination of this dispute. Accordingly, we shall award the disputed work to employees represented by the Teamsters, but not to that Union or its members. The present determination is limited to the particular controversy which gave rise to this proceeding. 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: Employees of Mukluk Freight Lines, Inc., who are represented by Teamsters Local 959-State of Alas- ka, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers 8 Two Teamsters-represented employees who had performed the disput- ed work (in 1970 and in 197+-75) did not know of the Teamsters school. although both knew of the Operating Engineers school. 548 TEAMSTERS LOCAL 959 of America, are entitled to perform the oiling and other lubrication of the Employer's equipment which is operated by those of Employer's employees who are represented by Teamsters Local 959 on the North Slope of Alaska. MEMBER MURPHY, dissenting: Although the factors here are in virtual equipoise, I would award the disputed work to employees repre- sented by the Operating Engineers based upon the factors of the Employer's assignment and economy and efficiency, as well as the Teamsters' long neglect of its contractual rights. These appear to me to outweigh the contract provision and the extremely narrow "area" practice. In fact, since the only other comparable employer in the area assigns the work to Teamsters-represented employees (while Mukluk as- signs it to employees represented by the Operating Engineers), it could be said that there is no control- ling area practice. Consequently, the contract is the only solid basis upon which the majority has award- ed the work to employees represented by the Team- sters. But the Teamsters appears to have neglected its contractual rights, with two brief exceptions, from at least 1970 until the present dispute. Accordingly, in view of all of the circumstances, I would respect the Employer's assignment, based on considerations of economy and efficiency, and award the work to employees represented by the Operating Engineers. 549