Teamsters, Local, Union No. 657

TEAMSTERS, LOCAL UNION NO. 657 1105 Teamsters, Chauffeurs, Warehousemen, Helpers and Food Processors Local Union No . 657, a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Dixie Decorators, Inc. and International Alliance of Theatrical Stage Employees, Local 76, of the United States and Canada, AFL-CIO, Party in Interest. Case 23-CD-299 April 12, 1973 DECISION AND DETERMINATION OF DISPUTE itions, and trade shows and renting furniture for use at such events in Texas and various States of the United States. It maintains its principal office and place of business in San Antonio, Texas. During the past 12 months, a representative period, the Employ- er has received gross revenue in excess of $50,000 in the operation of its business from certain firms, each of which makes annual sales and shipments of products valued in excess of $50,000 across state lines. 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 herein. 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 Dixie Decorators, Inc., hereinaf- ter called Employer alleging that Teamsters, Chauf- feurs, Warehousemen, Helpers and Food Processors Local Union No. 657, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called Teamsters, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by the Teamsters rather than to employees represented by International Alliance of Theatrical Stage Employees, Local 76, of the United States and Canada, AFL-CIO, hereinafter called IATSE. Pursuant to notice, a hearing was held before Hearing Officer Dwain Erwin on February 13, 1973. The Teamsters failed to appear at the hearing and declined to participate when telephoned by the Hearing Officer. The Employer and IATSE appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. Thereafter, a brief was filed on behalf of the Employer. 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 of the Hearing Officer 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: 1. THE BUSINESS OF THE EMPLOYER The Employer, Dixie Decorators, Inc., is a Texas corporation engaged in the business of erecting displays and exhibit booths at conventions, exhib- 202 NLRB No. 163 II. THE LABOR ORGANIZATIONS INVOLVED We find that Teamsters is a labor organization within the meaning of Section 2(5) of the Act based on its admissions to that effect in a related proceed- ing in the United States District Court for the Western District of Texas (Civil Action No. SA-72-CA-372) arising from Case 23-CC-488, which involved the parties herein , and of which we take official notice . We further find, based on the record testimony of the business representative of IATSE that it represents employees for purposes of collective bargaining, that IATSE is a labor organiza- tion within the meaning of Section 2(5) of the Act. A. Background and Facts of the Dispute In September 1972, the Employer contracted with Arata and Evans Expositions , Inc., Washington, D.C., to render services involved in the erection and maintenance of displays and exhibits for the 79th Annual Meeting of the Association of Military Surgeons of the United States held in San Antonio, Texas, commencing December 8, 1972. Since its inception in 1958, the Employer's operating practice has been to rely upon IATSE to provide the employees required in the operation of its business. During the latter part of November 1972, the Employer was receiving, unloading, storing, and moving exhibits to the display area of the exhibition hall in preparation for erecting the displays and exhibits in connection with the above meeting of military surgeons . On November 29, 1972, Ted Garcia, a business agent for Teamsters, requested the Employer to sign a proposed collective-bargaining agreement so that Teamsters could provide the labor for the Employer's freight-handling operations in the State of Texas. On Decmeber 1, 1972, R.C. Shafer, president and business manager of Teamsters Local 657, warned Thomas P. Folts, the Employer's vice president that, because the Employer refused to sign the collective- bargaining agreement presented to him by Teamsters . 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or to hire Teamster members, he would place a picket line around the military surgeons "convention center beginning December 8, 1972 . Also on Decem- ber 1, R . C. Shafer informed Ted Evans of Arata and Evans Expositions, Inc., that Evans had 2 hours to get the Teamsters dispute with the Employer settled or Evans would have trouble at the convention center. On December 4, 1972, and continuing until served with a temporary restraining order issued by the United States District Court for the Western District of Texas (Civil Action No. SA-72-CA-372) on December 8, Teamsters picketed the convention center, stopping freight deliveries to the center.' The picket sign bore the following legend : "Dixie Decorators, Inc. Unfair Teamsters Local 657. This picket is Directed Only to Dixie Decorators , Inc. and its Employees and No Other Employer or Their Employees." The record shows that Teamsters has not with- drawn its claim to the work in dispute ; that IATSE has submitted written claim to the Employer for the work ; and that the work is being performed by employees who are members of IATSE. B. The Work in Dispute This dispute concerns assignment of the following work: Freight handling, including the loading and unloading of exposition, convention, and entertain- ment displays and exhibits from trucks, and moving same to and from storage and to and from the display area at conventions in San Antonio, Texas. C. Contentions of the Parties The Employer and IATSE contend that all of the work in dispute has been properly assigned to employees who are members of IATSE, pursuant to longstanding custom and practice of the Employer herein and other employers engaged in the same industry in the San Antonio area. They further contend that IATSE's claim to the work in dispute has never before been controverted by any labor organization. As stated above, Teamsters failed to appear at the hearing and, upon request, declined to participate. The record shows, however, that Teamsters picketed in support of its claim to the work in dispute until the picketing was enjoined by the United States Distnct Court, and that it has not withdrawn its claim to the work in dispute. I The Employer filed a charge in Case 23-CC-488, supra, alleging that Local 657 was engaging in a secondary boycott by threatening Arata and Evans Expositions, Inc On December 7, 1972, a 10(1) petition was filed in D. Applicability of the Statute Before the Board may proceed with a 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 and that there is no agreed-upon method for the voluntary adjustment of the dispute. The charge alleges a violation of Section 8(b)(4)(D) of the Act. The record evidence shows that Team- sters engaged in picketing and threats of picketing and similar conduct, in support of its claim to the work in dispute. There is no evidence that the parties have agreed to any voluntary method of settlement of the dispute or that Teamsters has withdrawn its claim to the work in dispute. Based on the foregoing and the record as a whole, we find that reasonable cause exists to believe that Teamsters violated Section 8(b)(4)(D) of the Act, and that the dispute is properly before the Board for determination under Section 10(k) of the Act. 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 following factors are relevant in making a determina- tion of the dispute before us: 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified by the Board as the collective- bargaining representative for a unit of the Employ- er's employees. The Employer is not a party to any written collective-bargaining agreement covering the work in dispute. Its agreement with IATSE to use its hiring hall, and those referred through it, is a verbal one. As there is no certification or collective-bargaining agreement covering the work in dispute, neither union is favored by these factors. 2. Company and industry practice As stated above, the Employer has consistently assigned the work in dispute to employees referred to it by IATSE during the entire period of its opera- tions. Thomas P. Folts, the Employer's executive vice president, testified that the other contractors in the area have customarily assigned this work to employ- ees referred to them by the IATSE hiring hall. He further testified that the Employer has never previ- the U S Distnct Court in San Antonio, Texas, and on the same date the court entered a temporary restraining order enjoining the picketing An agreed-upon injunction was approved by the court on December 18, 1972 TEAMSTERS, LOCAL UNION NO. 657 1107 ously been- involved in a dispute with any union over the assignment of this work to persons secured through IATSE. George Secord, business representa- tive of IATSE, testified that members of IATSE have performed the work in dispute since its charter was issued in 1900. We find that the practice of both the Employer and the area tends to favor an award to employees represented by IATSE. 3. Skills and efficiency In the years that the Employer has 'assigned the work in dispute to employees represented by IATSE, they have demonstrated to the Employer's satisfac- tion that they possess the knowledge and skill necessary to perform the work. While Teamster members may also possess the necessary skills to perform the work, there is no showing that they have ever been assigned the work in dispute, and there is nothing in the record to indicate that they could perform the work in dispute with greater skill than employees represented by IATSE, or to the greater satisfaction of the Employer. The Employer contends that an arbitrary division of the work in dispute or its assignment to members of the Teamsters would reduce efficiency and increase the cost of performing such work. Vice President Folts testified that if a portion of the work were assigned to members of Teamsters, a composite crew would have to be employed which would result in some men remaining idle while waiting for other men to finish their work. Folts testified that under its present practice, men are available and are willing to perform any aspect of the convention or the exposition setup work. Therefore, instead of hiring 12 men to do a job, only 6 men need to be hired to-perform the same work, which results in substantial savings. While the, factor of skill is not determinative, we find the factors of economy and efficiency favor award of the work in dispute to employees represent- ed by IATSE. _ 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 IATSE are entitled to perform the work in dispute. We reach this conclusion upon the Employer's assignment of the work in dispute to its employees who are represented by IATSE; the fact that this assignment is consistent with its own and area practice ; the further fact that these employees have the requisite skill and are familiar with, and perform, all facets of the work; and the attendant efficiency and economy of the established opera- tions. We shall, therefore, determine the dispute before us by awarding the work in dispute at the Employer's San Antonio operations to those employ- ees who are represented by IATSE, but not to that Union or its members. Our 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 hereby makes the following Determination of Dis- pute: 1. Employees of Dixie Decorators, Inc., who currently are represented by International Alliance of Theatrical Stage Employees, Local 76, of the United States and Canada, AFL-CIO, are entitled to perform the work of freight handling, including the loading and unloading of exposition, convention, and entertainment displays and exhibits from trucks and moving same to and from storage and to and from the display area at conventions in San Antonio, Texas. 2. Teamsters, Chauffeurs, Warehousemen, Help- ers and Food Processors Local Union No. 657, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Dixie Decorators, Inc., to assign the above work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Teamsters, Chauf- feurs, Warehousemen, Helpers and Food Processors Local Union No. 657, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America shall' notify the Regional Director for Region 23, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by Teamsters, Chauffeurs, Warehouse- men, Helpers and Food Processors Local Union No. 657, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America rather than,to employees represented by Internation- al Alliance of Theatrical Stage Employees, Local 76, of the United States and Canada, AFL-CIO.