Teamsters, Local No 612

924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 612, Teamsters, Chauffeurs, Warehouse- men and Helpers of America and Brown Mechani- cal Contractors, Inc. and Local Union No. 91, United Association of Journeymen and Appren- tices of the Plumbing and Pipefitting Industry. Case 10-CD-243 April 5, 1973 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Brown Mechanical Contractors, Inc., herein called the Employer, alleging that Local No. 612, Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters, has violated Section 8(b)(4)(i) and (ii)(D) of the Act by engaging in certain proscribed activity with an object of forcing the Employer to assign certain work to employees represented by Teamsters rather than to employees represented by Local Union No. 91, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry, herein called Pipefitters. A hearing was held before Hearing Officer Thaddeus R. Sobieski on November 15, 1972, in Birmingham, Alabama. The Employer, Teamsters, and Pipefitters 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. The Employer and Teamsters filed posthearing briefs. 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 entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer is an Alabama corporation with its home office located in Birmingham, Alabama. It is engaged in the business of furnishing labor and materials for the installation of piping, air-condition- ing, plumbing, and heating equipment. Currently, the Employer is party to a contract with U.S. Steel to do I There are two other trucks at the construction site which are personally owned and operated by two supervisors of the Employer These trucks are not marked with the Employer' s name , as is the pickup truck in contention Teamsters claims for the assignment of the truckdriving work performed by yard piping and relocating of existing piping at the latter's Fairfield, Alabama, facility. This contract has a dollar value of an excess of $100,000. During the past year, the Employer has purchased and received goods valued in excess of $50,000 from points located outside the State of Alabama. Accord- ingly, all parties concede, and we find, that the Employer is engaged in commerce within the meaning of Section (7) of the Act. We find further that it will effectuate the policies of the Act to assert jurisdiction herein. II, THE LABOR ORGANIZATIONS The parties stipulated and we find that Teamsters and Pipefitters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute involves the task of driving any pickup truck owned by the Employer when the truck is utilized to transport material, tools, or personnel at the so-called Q-BOP (Basic Oxygen Process) Furnace Project at the Fairfield, Alabama, works of U.S. Steel.i B. Background and Facts of Dispute Brown, as noted supra, is currently engaged in providing services under a contract to U.S. Steel at its Fairfield, Alabama, facility. It began its work around mid-July 1972, at which time it assigned the disputed work to members of Pipefitters. Thereafter, the Teamsters, through two of its stewards, Robert Armstrong and Charles Jennings,2 made oral claims for the work in question to A. L. Fowler, Brown's superintendent of piping.3 According to Fowler, the stewards then told him that the Teamsters had been "having trouble" with Brown for years and that Brown was going to have to put teamsters on the pickups and "would have trouble" if it did not. According to Armstrong, who is corroborated by Jennings, he and Jennings merely told Brown that they expected any hauling on the job to be performed by teamsters and that Fowler replied that there would be no hauling on the site but that if there were, Brown would call for a teamster because the teamsters' rate was lower than that of the pipefitters. Based upon subsequent observation that pipefitters were still driving the pickups, on October 12, 1972, Armstrong told Fowler that if the teamsters were not the Employer do not extend to these two trucks 2 Both stewards are employed by another subcontractor on the site 3 According to Fowler, the conversation was witnessed by Forsman, a Brown foreman , and William Young , a U S Steel engineer 202 NLRB No. 148 TEAMSTERS, LOCAL NO 612 going out on the trucks that day, he had been instructed by Teamsters Business Agent Donald West to put up pickets. Pickets appeared at the site on October 13 and all employees at the site ceased work. The pickets were removed that same afternoon. There has been no subsequent picketing and construction has since proceeded normally. C. Contentions of the Parties Teamsters bases its claim for the disputed work on allegations that: (a) it had long been the practice and custom in the Birmingham area to use Teamsters for the performance of the work in question and (b) Brown, through Superintendent Fowler, orally agreed, in substance, to be bound by the terms of a contract negotiated by the Associated General Contractors, Alabama branch, which contract pro- vides, in part, that Teamsters shall have jurisdiction over the kind of work here in dispute. The Employer claims its assignment of the disput- ed work to employees represented by Pipefitters is consistent with and follows the customary construc- tion of its contract with the Pipefitters. It further claims that area industry practice and economy dictate an assignment of the work to pipefitters. It specifically denies that it is in any way bound by, or that it agreed to be bound by, the Alabama AGC contract, which it concededly has not signed. Pipefitters position is substantially the same as the Employer's-that employees represented by Pipefit- ters are entitled to the work in view of its contract with the Employer, contracts it signed with other contractors, longstanding area practice, and efficient operation. D. Applicability of the Statute Before the Board may proceed with the determina- tion of 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 all parties concede that on October 13, 1972, Teamsters picketed the Fairfield, Alabama, site in furtherance of its request that the work in dispute be assigned to its members, we `find that there is reasonable cause to believe that a violation of the Act has occurred and that the dispute is properly before the Board for determination. 4 In reaching this conclusion, we assume, without deciding, that Brown's superintendent told Teamsters agents in July 1972 that Brown would assign "hauling" work to teamsters 5 Brown admitted that it employed a member of Teamsters Local 612 on a polypropylene job at U S Steel Fairfield works for 2 weeks to drive a 2- ton stake body truck hauling pipe from an offsite storage area This driver E. Merits of the Dispute 925 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. 1. Collective-bargaining agreements The collective-bargaining contracts between the Employer and Pipefitters and its parent International do not specifically refer to the work of driving pickup trucks. The national contract merely says that it covers all handling of materials and tools of the pipefitting trade. The local contract provides that the covered employees shall not be required to transport their tools in their personal vehicles, and O. D. Petersen, business agent for Local 91, testified that his local has always construed and applied the local contract to cover the work here in question. Teamsters admits that the Employer has not signed any agreement related to the disputed work. But, based on statements its agent's claim that Brown's superintendent made in July 1972, Teamsters asserts that Brown orally agreed to abide by the terms of the Associated General Contractors' Alabama branch contract. Although Teamsters did not produce this contract in evidence, its agents testified that the contract provides that the work in dispute is rightfully theirs. We find that neither the express terms of the Employer's contracts with Pipefitters nor those relied upon by Teamsters as part of its claim of an oral agreement with Brown clearly cover the work here in dispute.4 2. Employer and area practice The Employer has been engaged in business in the Jefferson County-Birmingham, Alabama, area for at least 13 years and during that time it has consistently assigned the disputed work to members of the Pipefitters with one isolated exception.5 The record evidence as to area practice is that local mechanical contractors customarily assign the work in dispute to employees represented by Local 91.6 Although Teamsters Business Agent West cited isolated projects in which teamsters were assigned to the disputed work, he admitted he had never personally observed such assignments and that his knowledge of such assignments was based entirely intermittently drove the pickup truck on that job so as not to be idle 6 Carson Inscho, Jr, .president of Inscho Mechanical Contractors. Inc , and Nicholas D Vance, vice president and treasurer of Mason and Dullion Co, a mechanical contractor firm operating in Birmingham , Alabama, testified as to area practice Each stated that his company and others in the area had consistently assigned the work to pipefitters for the past 50 years 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon hearsay. Employer and area practice favor the Employer's assignment. 3. Skills, efficiency, and economy of operations Driving the Employer's pickup truck does not involve any special skill. However, the truck is specially equipped with welding equipment necessary for the pipefitting work on the project and is used to haul the necessary materials as determined by the drivers from blueprints of the job. It is therefore necessary that drivers possess knowledge of the properties of the various fittings and which fittings are appropriate for specific tasks. Pipefitters possess such knowledge while teamsters do not. The truck is rarely used for incidental transportation chores and may very often remain idle. This being the case, it would be most inefficient to substitute a teamster, qualified only to drive, for a pipefitter qualified to drive as well as to exercise the necessary judgment. A teamster unable even to recognize the requested materials would spend little productive time on the j ob. Accordingly, we find that the factors of skill, efficiency, and economy of operations favor the Employer's assignment. 4. Conclusions Having considered all the pertinent factors present herein, we conclude that employees who are repre- sented by Pipefitters are entitled to perform the work in dispute. This assignment is consistent with employer and area practice and supported by the evidence adduced relative to skills, efficiency, and economy of operations. In making this determination we are awarding the work in question to employees represented by the Pipefitters, but not to that Union or its members. The present determination is limited to the particular controversy which gave rise to the proceedings. 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 the Employer who are currently represented by Local Union No. 91, United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry, are entitled to the work of driving the pickup truck owned by Brown Mechani- cal Contractors, Inc., at the Q-BOP construction site of U.S. Steel, Fairfield, Alabama, facility, in connec- tion with the handling of pipefitter materials within the construction site. 2. Local No. 612, Teamsters, Chauffeurs, Ware-' housemen and Helpers, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the above work to its members or employees whom it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, the labor organiza- tion listed in the preceding paragraph shall notify the Regional Director for Region 10, in writing, whether or not it will refrain from forcing or requiring Brown Mechanical Contractors, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work awarded above in a manner inconsistent with the above determination.