Joint Council of Teamsters No. 37

JOINT COUNCIL OF TEAMSTERS NO 37 383 Joint Council of Teamsters No. 37, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Ind. and Western- Pacific Piledriving Corp. and International Union of Operating Engineers, Local 701, AFL-CIO. Case 36-CD-98 August 8, 1973 cipal office and place of business in Portland, Oregon, is engaged in the construction industry in several western States. It annually provides services in excess of $50,000 to employers outside the State of Oregon. We find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. 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, based upon a charge filed by Western-Pacific Piledriving Corp., herein called the Employer or Western, alleg- ing that Joint Council of Teamsters No. 37, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., herein called Teamsters, has violated Section 8(b)(4)(D) of the Act. The charge alleges, in substance, that the Teamsters made threats of economic action in order to prevent the Employer from assigning the work of operating concrete, pump trucks to members of Inter- national Union of Operating Engineers, Local 701, AFL-CIO, herein called Engineers, rather than to members of the Teamsters. Pursuant to notice, a hear- ing was held in Portland, Oregon, before Hearing Of- ficer Richard V. Stratton, on February 20 and 21, 1973. All parties appeared and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to present evidence bearing on the is- sues.' Thereafter, the Employer, the Engineers, and Northwest filed briefs. The briefs have been duly con- sidered by the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER The Employer, an Oregon corporation with its prin- ' Northwest Concrete Pumping Contractors Association, herein called Northwest, was permitted to intervene as the bargaining representative of Pump Con, Inc , which was performing the work in dispute for the Employer by using members of Teamsters II THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find, that Teamsters and Engineers 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 was engaged by Christenson Electric Company, the general contractor, as a subcontractor to erect and place 80 concrete reinforced pilings 135 to 140 feet underground on the site of the Trojan Nuclear Power Plant being erected for Portland Gen- eral Electric Company, near Rainier, Oregon, about 40 miles northwest of Portland, Oregon. The Employer constructed the necessary forms for the purpose of pouring and containing the poured concrete, which was to be pumped through a boom and a flexible hose into a smaller "tremie" pipe 2 which led to the bottom of the foundation piling un- der construction. For practical reasons it was decided to use this method of concrete pouring rather than a bucket, which is the customary device used for pour- ing concrete. Since the Employer does not own its own pumping equipment, it contracted for the serv- ices of Pump-Con, Inc., herein called Pump-Con, to pump the concrete into the forms. Pump-Con provid- ed the Employer with a concrete pumper truck man- ned with an operator on a straight hourly basis. The operator was a member of the Teamsters. Pump-Con is a member of Northwest, which is the current bargaining representative of Pump-Con and five other concrete pumping companies. Northwest has a current labor agreement with the Teamsters covering the operators of concrete pumper trucks, in- cluding the operator provided to the Employer by Pump-Con. The Employer is a member of Oregon- Columbia Chapter of the Associated General Con- tractors of America, Inc., herein called AGC, the bar- gaining representative of the construction contractors in the area, which has a current master labor agree- 2 An apparatus for depositing and consolidating concrete (usually) under water, consisting essentially of a tube of wood or sheet metal Webster's Third New International Dictionary, unabridged, 1966 ed, 2438. 205 NLRB No. 73 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment with the Engineers, the other Union party to the present dispute. It is the operation at the jobsite of the concrete pumper truck-into the hopper of which concrete is poured from a ready-mix truck-that is in dispute in this proceeding. The current type and model of pump- ing equipment used on this kind of job can be manual- ly or electrically operated and controlled by means of a pushbutton device held in the hand of the operator and attached to an electrical line running to a control panel on the truck. Either manually or by pushing appropriate buttons the operator can unfold the boom, set it in the right direction and angle of eleva- tion, and start and stop the pump at the appropriate times . The driver of the ready-mix truck controls the flow of concrete from the ready-mix barrel into the hopper of the pumper and must cooperate with the pumper operator to maintain a timely, adequate, and continuous flow of concrete. The type of equipment used is called a "Schwing" concrete pump and costs about $50,000. When Pump-Con began to pour for the Employer, the Engineers by letter of November 3, 1972, in- formed the Employer, as a subcontractor on the site, that there existed a dispute between the Employer and the Engineers in that a nondispatched person was operating the concrete pump in contravention of arti- cle XV, section 16, of the agreement between the AGC and the Engineers, which provides: "CON- CRETE PUMPS. Crews on concrete pumps shall consist of an Operating Engineer." By letter of No- vember 7, the Employer replied disavowing any viola- tion of this provision of the agreement on the ground that the concrete pump and operator were furnished by Pump-Con. Thereupon, the Engineers filed a griev- ance against the Employer pursuant to the grievance provisions of the AGC agreement and the matter was referred, as provided therein, to a Board of Adjust- ment for hearing and decision. The Employer was represented at the hearing. On November 16, 1972, the Board of Adjustment ruled that the operation of concrete pump trucks belonged to the Engineers be- cause of the above quoted provision of article XV, section 16. The ruling was also based on an agreement between the Engineers and Teamsters International Unions. The presidents of the International Unions had agreed on June 1, 1969, in pertinent part, as fol- lows: Article XV Truck-Mounted Concrete Pump and Concrete Placers The operation of pumps and placers mounted on trucks or skids that are used to pump and place concrete on the construction jobsite is recognized as the jurisdiction of the Operating Engineers. In the light of the ruling of the Board of Adjustment, the local Oregon-Columbia chapter of the AGC ad- vised its members by a labor bulletin on November 21, 1972, that future actions to the contrary of the ruling of the Board of Adjustment could result in a violation of the AGC-Engineers agreement. The Teamsters representative then threatened to shut down the job if the Employer were to attempt to force a reassignment of the work from members of the Teamsters to members of the Engineers. B. The Work in Dispute The work in dispute is the operation of the concrete pumper at the Trojan Nuclear Power Plant project located near Portland, Oregon. C. Contentions of the Parties The Employer, Northwest, and the Teamsters con- tend that the disputed work should be assigned to members of the Teamsters on the basis of the collec- tive-bargaining agreement between Teamster and Northwest, industry and area practice, relative skills of the disputing employees, and economy and effi- ciency of operations. The Engineers argues that the disputed work should be assigned to its members in view of the pro- visions of the AGC-Engineers collective-bargaining agreement and the determination of the Board of Ad- justment made thereunder that members of the Engi- neers were entitled to operate the concrete pumper at the Trojan jobsite. D. Applicability of the Statute The parties stipulated, and we find, that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated by the Teamsters threat to shut the job down if the operation of the concrete pumper was assigned to a member of the Engineers. The parties have not agreed upon a method for settling this jurisdictional dispute. Although a Board of Adjustment under the AGC-Engineers collective- bargaining contract determined that a member of the Engineers was entitled to operate the concrete pum- per mounted on a truck, neither the Teamsters nor Northwest was a party to that proceeding. According- ly, that determination is not dispositive of the jurisdic- tional dispute. JOINT COUNCIL OF TEAMSTERS NO. 37 In view of the foregoing, we find that the matter 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 the disputed work after giving due consideration to all relevant factors. We find the following factors are relevant to making a determina- tion of the dispute before us. 1. Certifications and collective-bargaining agreements Neither labor organization has been certified as the collective-bargaining representative of employees performing the disputed work . Each Union has a col- lective-bargaining contract with one of the employers involved. The Engineers has such a contract with the AGC to which the Employer is bound by virtue of its membership in the AGC. This contract purports to cover operators of concrete pumpers at construction sites . On the other hand, Pump-Con is a member of Northwest which has a collective-bargaining contract with the Teamsters covering the same category of em- ployees. Under these circumstances, the factors of certifications and collective-bargaining agreements favor neither party. 2. Agreements between Internationals On June 1, 1969, the Teamsters and Engineers In- ternationals entered into a "Construction Site Juris- dictional Agreement," whereby the two parties agreed, inter alia, that the operation of pumps mount- ed on trucks to pump and place concrete was recog- nized as coming within the jurisdiction of the Engineers. In November 1972, this agreement was reaffirmed. However, Respondent Teamsters thereaf- ter notified its International that it has a collective- bargaining agreement with Northwest covering em- ployees performing the disputed work through April 30, 1974, and that it intended to abide by that agree- ment. The agreement between the Internationals is thus a factor favorable to the Engineers, mitigated to some extent by Respondent Teamsters' unwillingness to accept that agreement as requiring it to repudiate its collective-bargaining contract with Northwest. 3. Company and area practice The Employer purchased the concrete pumping service, including service of the operator, from Pump- Con on a straight hourly basis. It has in the past 385 similarly purchased the services of pumper and opera- tor from Pump-Con and other members of North- west. It is the accepted industry practice in the area for small subcontractors such as the Employer to pur- chase concrete pumping service, including the serv- ices of the operator, from one of the members of Northwest when they have temporary need for such services. As stated, the operators furnished by the Northwest members are represented by the Team- sters. Company, industry, and area practice thus favor a determination in favor of the Teamsters. 4. Relative skills, efficiency, and economy of operation The Employer and Northwest strongly favor an award of the disputed work to the employees of Pump-Con represented by the Teamsters because of their experience in performing the work and the re- sulting efficiency and economy of operation. Team- sters have performed the disputed work for members of Northwest including Pump -Con since 1968. More- over, the present teamsters employees of Pump-Con were the first employees hired by it to perform this work and they have had several years experience per- forming it. They also possess chauffeurs' licenses which they must have in order to drive the pump trucks on public highways to and from the construc- tion sites they work at. Engineers, so far as the record shows, do not possess such licenses and their craft does not require them to secure them . Neither of the contending Unions provides its members with formal training in the operation of concrete pumps; rather, skills are attained through on-the-job training. Thus, Pump-Con used 12 weeks at a cost of about $3,000 per employee to train the present pump operators. Pump- Con would have to bear the burden and expense of training additional employees to perform the work properly. We are, therefore, persuaded that the fac- tors of experience, training, efficiency, and economy of operations favor an award of the disputed work to the employees of Pump-Con who are represented by the Teamsters. Conclusion Upon the entire record in this proceeding and after full consideration of all the relevant factors, in partic- ular, the practice of the Employer, Pump-Con, and other employers in similar situations in the area, the experience of the members of the Teamsters in per- forming the disputed work, and the efficiency and economy of operation, we conclude that the employ- ees of Pump-Con who are represented by the Team- sters are entitled to the work in question and we shall 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determine the dispute in their favor. In making this determination, we award the work to the employees of Pump-Con who are represented by the Teamsters but not to that labor organization or its members.; Scope of the Award Northwest argues that the dispute between the two Unions extends beyond the Trojan jobsite and the award should be as extensive as the dispute. There appears to be considerable merit in this contention. The Engineers claim to the disputed work rests on the language of the AGC-Engineers collective-bargaining agreement as well as on the Board of Adjustment determination made thereunder. On the other hand, the Teamsters claim to the work is based on its collec- tive-bargaining contract with Northwest. The dispute at Trojan is thus merely an incident in the basic dis- agreement between the parties. Unless our jurisdic- tional determination is coextensive with the area of dispute, it is likely to recur at other jobsites. Accord- ingly, our determination will be coextensive with the 7 See International Association of Bridge, Structural and Ornamental Iron Workers, Local 29, AFL-CIO (Fabindustries, Inc), 199 NLRB No 34, and Industrial Manufacturing and Maintenance Employees' Union Local No 1241, jurisdictional areas of the two contending labor orga- nizations.4 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 pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: Employees employed by Pump-Con, Inc., or by way of the other present members of Northwest Con- crete Pumping Contractors Association who are rep- resented by Joint Council of Teamsters No. 37, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., are en- titled to perform the work in dispute which consists of the operation of concrete pumper trucks at the Trojan Nuclear Power Plantjobsite located near Rainier, Or- egon, and any similarly disputed work performed by the present members of Northwest Concrete Pumping Contractors Association, wherever the territorial ju- risdiction of Joint Council of Teamsters No. 37, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., and of International Union of Operating Engineers, Local 701, AFL-CIO, coincides. Laborers' International Union of North America, AFL-CIO, 202 NLRB No 4 International Association of Bridge, Structural and Ornamental Iron Work- 126. ers Local 29, AFL-CIO (Fabindustries, Inc ), supra