Teamsters Local 959 (Kodiak Oilfield Haulers)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Local 959, State of Alaska and Kodiak Oilfield Haulers, Inc. and International Union of Operating Engineers, Local 302. Case 19-CD-272 October 19, 1977 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, 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 Kodiak Oilfield Haulers, Inc. (herein called Kodiak or the Employer), alleging, inter alia, that the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Local 959, State of Alaska (herein called Teamsters), had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activities with an object of forcing or requiring Kodiak to continue to assign certain work to employees represented by the Teamsters rather than assigning it to employees represented by the International Union of Operating Engineers, Local 302 (herein called Operating Engineers). A hearing was held before Hearing Officers Terry C. Jensen on December 16, 1976, and Donald W. Albright on January 10, 1977. All parties desiring to do so 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, all parties filed 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 Board has reviewed the Hearing Officers' rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. 1. THE BUSINESS OF THE EMPLOYER Kodiak Oilfield Haulers, Inc., is a corporation operating, in part, on the North Slope of Alaska, as a common carrier offering freight-carrying services to the public. Kodiak annually has a gross volume of business valued in excess of $500,000 and annually performs services valued in excess of $1 million for several interstate oil corporations, including Arco, BP, Mobil, and Exxon. The parties stipulated, and we find, that Kodiak is an employer within the meaning of Section 2(2) of the Act. We further find that Kodiak is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it 233 NLRB No. II will effectuate the purposes of the Act to assert jurisdiction herein. II. LABOR ORGANIZATIONS The parties stipulated, and we find, that the Teamsters and the Operating Engineers 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 driving of loaders when equipped either with forks and okie buckets or with forks alone at locations on the North Slope of Alaska. A loader is a four-wheeled, rubber-tired vehicle most frequently used in the construction industry, but which is also particularly well suited for carrying heavy equipment, supplies, and bulk materi- als over the rugged, generally nonsurfaced, terrain of the North Slope. A loader may be fitted either with "forks," thick heavy duty metal slats or prongs used to pick up large items (referred to as a forklift), or with heavy duty buckets (referred to as front-end loader) used to carry smaller equipment and materi- als which do not fit on the forks. It may not, however, be fitted with both simultaneously. In addition, a loader may be fitted with okie buckets which are light metal boxes with one side and the top open so that they resemble large scoops. These are used only when the loader is fitted with forks and are, thus, designed for easy attachment and removal from the forks in a matter of minutes. The change- over of a front-end loader to a forklift, on the other hand, requires approximately an hour. Okie buckets are light weight and have four or five times the capacity of the heavier and sturdier factory-made buckets on front-end loaders. On the North Slope, okie buckets are used almost exclusively for snow removal and were, in fact, initially designed in the field in order to effectively and efficiently accomplish that work task so often required by the shifting Alaskan snowdrifts. B. Background In May 1972, Kodiak was acquired by its present owner, Nabors Alaska Drilling (Nabors). At that time, the Teamsters was the only Union representing any of Kodiak's employees and the forklift operators were among those represented. To meet its needs for operators with skills other than those possessed by its Teamsters employees, Kodiak used nonunion em- ployees supplied by Nabors, and so, beginning in May 1972, Nabors provided Kodiak with nonunion front-end loader operators. 66 IBT, GENERAL LOCAL 959 On December 4, 1973, a certification election was conducted among a group of Nabors' employees (including those who had operated Kodiak's front- end loaders) which the Operating Engineers won. The unit certified, however, specifically excluded therefrom all employees who, at the time of certifica- tion, were covered by a collective-bargaining agree- ment between the employer and another labor organization. Following the Operating Engineers certification, the newly unionized employees were transferred to Kodiak and formally became employ- ees of that Company. Kodiak then assumed Nabors' collective-bargaining relationship with the Operating Engineers and entered into a compliance agreement by which it agreed to adhere to the master labor agreement in effect between the Operating Engineers and the Alaska Chapter of the Associated General Contractors of America, Inc. (AGC). That collective- bargaining contract contains wage provisions appli- cable to forklift loaders but does not, otherwise, specifically refer to the coverage of forklift drivers. No reference is made therein to okie buckets. Since the May 1972 acquisition by Nabors, Kodiak has had a series of collective-bargaining agreements with the Teamsters, covering certain of its employees. The first such agreement (term of May 18-June 30, 1972) specifically listed the job classifications-driv- ers, solo and flatbed and forklift operators-covered by the contract. The second agreement (term of July 1, 1972-June 30, 1974) included two driver classifi- cations, limited and general. The drivers-general category was defined in a footnote as including, among others, forklifts over 5 tons; 1 the drivers- limited group included, among others, forklifts 5 tons and under. The most recent contract (term of July 1, 1974-June 30, 1977), in effect at the time of the hearing, included, among others, the categories of "Drivers, General" and "Driver, Rig Up-Tear Down," but at no place therein were these groups specifically defined or the equipment drivers enumer- ated. None of these contracts specifically mentioned okie buckets as falling within its scope. Since perhaps as early as 1968, Kodiak has utilized forklifts with okie buckets attached for snow remov- al. While the record is vague as to when the practice actually began, it is clear that at the time of the Operating Engineers certification in December 1973 Kodiak was using members of the Teamsters for its okie buckets operation. Since then, Kodiak has continued to assign its forklift operations, including those with okie buckets, to employees represented by Teamsters. Its front-end loader work has been assigned to employees represented by the Operating Engineers. The only exceptions to these practices I There is record evidence that presently all of Kodiak's forklifts fall into this latter category of machines over 5 tons in weight. have been in the situations where no member of the appropriate Union was available to perform a particular job, in which case a member of the other Union has been utilized. It is this present assignment of forklift operations which is the subject matter of the dispute herein. The Teamsters does not object to members of the Operating Engineers performing the front-end loader work, but the Operating Engineers claims the forklift work. With the first snowfall during the past several winters, the Operating Engineers had orally protested the assignment of the okie bucket and forklift work to the Teamsters. During November 1976, for the first time, however, the Operating Engineers filed a formal grievance pursuant to the 1969 Construction Site Jurisdictional Agreement between the Interna- tional Organizations of the Teamsters and Operating Engineers against Kodiak's assignment of said work. In the past, Kodiak has attempted to resolve the dispute through compromises. Such efforts, however, have been soundly rebuffed by the Teamsters and have elicited threats of economic action by that Union should there be a reassignment of the work. Indeed, at the hearing, Teamsters Business Represen- tative Rodger Harris testified that in the event that Kodiak assigns the work to the Operating Engineers, and the Teamsters is unsuccessful in a grievance relating to payment for the work, or if an arbitrator splits the grievance "2/2," the Teamsters would take economic action. On or about November 24, 1976, Kodiak filed the charge herein. C. Contentions of the Parties The Operating Engineers contends that Kodiak is bound by the Operating Engineers-AGC contract which assigns the forklift work to members of that Union. Further, it asserts that while Kodiak is a common carrier it is, nevertheless, also in the construction business and, thus, that is the appropri- ate industry to look to when determining the customary practice. Moreover, the Operating Engi- neers asserts that the Teamsters International organi- zation has entered into a Construction Site Jurisdic- tional Agreement under which forklift work outside of warehouse or storage areas is assigned to operat- ing engineers. The Operating Engineers contends, therefore, that since virtually all of Kodiak's forklift operations are outside of warehouse areas the work belongs to employees it represents. The Teamsters, on the other hand, contends that the work should be assigned to its members based on past practice, economy, efficiency, and area and 67 DECISIONS OF NATIONAL LABOR RELATIONS BOARD industry practice. Furthermore, the Teamsters asserts that because Kodiak is a common carrier, and not in construction, neither the Construction Site Jurisdic- tional Agreement nor any other interunion agree- ment is applicable to the dispute herein. Finally, Kodiak contends that, for its own opera- tional and economic requirements, it is essential that the okie bucket and other forklift work be assigned to employees represented by the same union. The Employer further asserts that, based on its past practice, the industry practice, economy, efficiency, and safety, the work should be assigned to its employees represented by the 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 voluntary method for resolving the dispute. From the record as a whole, it is clear that there is no agreed-upon method for the resolution of this dispute. While the Construction Site Jurisdictional Agreement between the Internationals of the Team- sters and Operating Engineers contains, among other things, a method of resolving disputes, it only applies to the construction industry. Inasmuch as there is no record evidence to the contrary, we find that Kodiak is a common carrier and is not engaged in the construction industry. Thus, that agreement is inapplicable to the dispute herein. Moreover, that agreement is between the two Unions and there is no evidence that Kodiak has at any time agreed to be bound thereby. We are satisfied that there is reasonable cause to believe that an 8(b)(4)(D) violation has occurred in this case. Kodiak's president, James Taylor, testified that during discussions with Teamsters Representa- tive Harris the latter always gave the impression that economic or some other action would occur if members of his Union were removed as the forklift operators. Taylor more specifically stated that he "understood without a doubt" that Kodiak would be shut down and operations stopped if it were to change its practice as to loader assignments, and that this certainly would occur, either before or following the grievance procedure. Taylor further testified that these discussions took place on numerous occasions in the past, including every November when it snows, once or twice in the last 6 months, and perhaps as often as three or four times a year. The last 2 For the Board to proceed to a determination of dispute pursuant to Sec. 10(k) of the Act, it is sufficient that a showing is made that there is reasonable cause to believe a violation of Sec. 8(bX4)D) has occurred. The fact that Harris did not admit Taylor's testimony specifically in no way lessens the propriety of jurisdiction by the Board. conversation wherein such threats were made follow- ing the Operating Engineers filing of grievances relating to the forklift assignments, some 2 or 3 weeks before December 16, 1976, the first day of the hearing herein. Taylor testified that these threats were one of the primary motivating factors in his filing of the instant unfair labor practice charge because he felt something would have to be done to resolve the work assignment dispute. Teamsters Representative Harris essentially cor- roborated Taylor's testimony concerning the discus- sions about changes in the forklift assignments and possible economic action. While Harris was rather vague as to precise comments made to Taylor, he did generally outline in a manner supportive of Taylor's account, the type of conversation he would have with an employer in such a situations Furthermore, Harris, in the course of his testimony, in effect reiterated such threats by stating that if Kodiak, in fact, had reassigned the work the Teamsters would have taken economic action if its position had not prevailed. Based on the foregoing, and the record as a whole, we find there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has occurred. Further, since the parties have not agreed upon a voluntary method of settling this jurisdiction- al dispute, it 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 that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. 3 As the Board has frequently stated, the determina- tion in a jurisdictional dispute case is an act of judgment based on commonsense and experience in weighing these factors. The following factors are relevant in making a determination of the dispute before us. i. Board certifications As noted above, on December 4, 1973, the Operating Engineers was certified as collective-bar- gaining representative of certain of Nabors' employ- ees. That certification, however, specifically excluded from the unit any employees who were covered by a collective-bargaining agreement between the employ- er and other labor organizations. At that time, Kodiak's forklift operators were covered by a contract with the Teamsters. Thus, the Operating 3 N. LR.B. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting Systeml, 364 U.S. 573 (1961). 68 IBT, GENERAL LOCAL 959 Engineers certification does not extend to the employees performing the work in dispute and therefore is not controlling herein. There is no Board certification applicable to the unit of employees represented by the Teamsters. Accordingly, this factor does not favor an award to either group of competing employees. 2. Collective-bargaining agreements As discussed above, both the Teamsters and Operating Engineers have collective-bargaining agreements with Kodiak. While the first two Kodiak- Teamsters contracts (including the one in effect on December 4, 1973, when the Operating Engineers was certified by the Board) specifically referred to forklift drivers, the current collective-bargaining agreement omits any reference to these employees. Nevertheless, Taylor testified, without contradiction, that, in spite of the lack of reference to the forklift operators therein, both parties to that contract intended that those employees continue to fall within the scope of the agreement. Buttressing this claim, Taylor testified that, since the execution of that contract, the Employer has, in fact, continued to assign its forklift work, with or without the okie bucket attached, to employees represented by the Teamsters. The Kodiak-Operating Engineers contract is mere- ly a compliance agreement by which Kodiak agrees to adhere to the AGC contract containing a wage provision relating to forklift drivers. Otherwise, however, that contract is silent as to forklift drivers. We do not accept the Operating Engineers conten- tion that, by adopting the AGC contract, Kodiak agreed to award the forklift work to operating engineers and to thereby, in effect, amend its certification so as to voluntarily recognize that Union as the representative of those employees. Taylor testified that Kodiak accepted the AGC contract because the Operating Engineers only represented four of its employees, at the time there was little work performed on the North Slope to which such an agreement would be applicable, and it was expedient to accept that contract. Such an explanation appears logical. Moreover, we view Kodiak's adoption of the AGC contract as limited to only the job classifica- tions held, and work performed, by the four employees then within the certified unit. By no means do we construe Kodiak's adherence to that agreement as a recognition of the Operating Engi- neers as representative of the numerous employee classifications listed in the contract in the event, if ever, that the Employer utilized their services sometime in the future. Forklift driver is but one of the many job classifications enumerated in some 14 pages of the contract and so we find it difficult to believe that Kodiak intended to so drastically enlarge the unit of employees represented by the Operating Engineers. Accordingly, we find that the collective-bargaining agreements, as most reasonably construed and as implemented, favor an award of the work to employees represented by the Teamsters. 3. Employer's past practice Since May 1972, the Employer has consistently assigned the disputed work to its employees repre- sented by the Teamsters. Only on the rare occasions when a Teamsters member has not been available for the work has the Employer assigned the work to employees represented by the Operating Engineers. Accordingly, the Employer's past practice favors an award of the work to employees represented by the Teamsters. 4. Area and industry practice As noted above, in spite of the Operating Engineers claim to the contrary, we find that Kodiak is a common carrier and is not engaged in the construc- tion industry. Thus, in looking to the industry practice, we shall consider only common carriers. Further, due to the unique requirements of the Alaskan North Slope we shall limit our consideration to common carriers similarly situated. Given these parameters, the record establishes that the area practice with regard to forklift operations is to assign that work to employees represented by the Team- sters. Accordingly, the area and industry practice favor an award of the work in dispute to the employees represented by the Teamsters. 5. Economy and efficiency The record supports the Employer's contention that the forklift and forklift-with-okie-bucket work should be assigned to employees represented by the same union. Okie buckets are used almost exclusively for snow removal from materials and supplies which later will be moved by forklifts. Thus, if two different employees are assigned the regular forklift and okie bucket work, respectively, there would be a consider- able loss of man-hours while one employee waits idly by for another to complete his job. Further, the cabs of the loaders have space for only one operator at a time. If employees from different unions are assigned the various tasks at the remote field sites where most of Kodiak's work is performed, one of the employees would be exposed to the harsh, often dangerously cold, climatic conditions of the North Slope, or else, 69 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to eliminate such possible perils, Kodiak would have to construct shelter areas in numerous outlying areas at significant financial cost. In addition, due to the shifting snowdrifts on the North Slope, often several full workdays are spent on snow removal in prepara- tion for the carriage of supplies. Therefore, if the okie bucket work is assigned to employees of one union and the regular forklift work to employees of the other, there would on occasion be several days during which one group of employees would remain idle at Kodiak's camp. In spite of their inability to work, these employees would be contractually entitled to a day's pay or transportation back to Anchorage, Alaska, either of which alternatives would involve substantial cost to Kodiak. Thus, in light of the above considerations, it is clear that all the work in dispute should be assigned to employees represented by the same union. The record, however, lacks relevant evidence to establish differentials in the economy or efficiency in assigning the work to members of one union over another. Accordingly, this factor does not favor an award to either group of competing employees, but merely guides us in our ultimate disposition of this dispute. 6. Agreement between the unions By its own terms, the Construction Site Jurisdic- tional Agreement between the two Unions' Interna- tional organizations, relied upon by the Operating Engineers, is only applicable to the construction industry. Thus, inasmuch as we have found, supra, that Kodiak is a common carrier and is not engaged in the construction industry, that agreement has no bearing on the dispute before us. No other agree- ments between these two Unions have been submit- ted for the Board's consideration in this case. Accordingly, this factor does not favor an award to employees represented by either Union. Conclusions Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that Kodiak's employees represented by the Teamsters are entitled to perform the disputed work. In reaching this conclusion, we have relied upon Kodiak's assignment of the disputed work consistent with its past practice, the collective-bargaining agreement between Kodiak and the Teamsters, and the area and industry practice concerning the assignment of the disputed work. Accordingly, we shall determine the existing jurisdictional dispute by deciding that employees represented by the Team- sters, rather than those represented by the Operating Engineers, are entitled to the work in dispute. In making this determination, we are assigning the disputed work to the employees of Kodiak who are represented by the Teamsters, but not to that Union 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 makes the following Determination of Dispute: Employees of Kodiak Oilfield Haulers, Inc., represented by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Local 959, State of Alaska, exclusively, are entitled to perform the work of operating Kodiak Oilfield Haulers, Inc.'s loaders equipped with forklifts or with forklifts and okie buckets at all locations on the North Slope of Alaska. MEMBER MURPHY, dissenting: I cannot agree with my colleagues insofar as they find that there is reasonable cause to believe that a jurisdictional dispute exists here. It is true that the Operating Engineers protested the assignments of forklift work to employees represented by Teamsters, and the Employer has tried to resolve the dispute through compromise. The majority draft states that Teamsters has rejected such efforts and threatened economic action if the work were reassigned. However, facts supporting this latter finding do not clearly appear in the record. Rather, the only actual reference to possible economic action shown in this case was by the Teamsters business agent during the hearing. All other references to prior "possible" violations are only stated in conclusionary terms in the briefs. There are no factual statements set forth as to what was said from which a threat could be found. It also is clear to me that this is not a proper case for a 10(k) proceeding because it gives the impression of having been "set up" by the Employer and the Teamsters to have the Board approve the work assignment to the Teamsters. I am aware that this argument was rejected in Carpenters District Council of Denver and Vicinity (Godwin Bevers Co., Inc.), 205 NLRB 155, 157, fn. 9 (1975). However, I disagree with that holding and believe it merits reconsider- ation and reversal. To act routinely in all cases- without regard to whether the statutory requirements exist in fact-allows misuse and abuse of the Board's processes. For this reason, I believe this question requires in-depth analysis and consideration after an opportunity for expression of views by interested parties-possibly in oral argument. I would so find. 70