Truck Drivers Union Local 170

236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Truck Drivers Union Local 170, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and Associated General Contractors of Massachusetts, Inc. and Granger Contracting Co., Inc. and Laborers International Union of North America, Local 243 Truck Drivers Union Local 170, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and N. C. Allen Co., Inc. and Laborers International Union of North America, Local 243. Cases 1-CD- 411 and 1-CD-418 January 17, 1975 DECISION AND DETERMINATION OF DISPUTE BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Associated General Contractors of Massachusetts, Inc., hereinafter referred to as the AGC, on behalf of Granger Contracting Co., Inc., hereinafter referred to as Granger, and by N. C. Allen Co., Inc., hereinafter referred to as Allen, alleging that Truck Drivers Local Union 170, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the Teamsters or Local 170, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Granger and Allen to assign truckdriving work to employees represented by the Teamsters rather than to employees represented by the Laborers International Union of North America, Local 243, hereinafter referred to as the Laborers or Local 243. Pursuant to notice, a hearing. was held before Hearing Officer Francis X. McDonough on Septem- ber 19 and 20, 1974. 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 on behalf of the AGC, Granger, Allen, and the Teamsters. 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. 216 NLRB No. 46 Upon the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYERS Granger Contracting Company, a general contrac- tor, and N. C. Allen Company, a utility and pipeline subcontractor, operate primarily in the Worcester area. Granger and Allen each receive from points outside the State goods and services valued in excess of $50,000. Accordingly, we find that the Employers are 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. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Laborers and the Teamsters are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts During the past several years, the Teamsters has intermittently requested that local contractors hire its members to perform the driving which is now being claimed by the two Unions. The Worcester area contractors, including the parties herein, have gener- ally used members of the Laborers for this kind of driving. On July 15, 1974, Locals 243 and 170 signed a memorandum of understanding in which the Labor- ers agreed to disclaim this work. The record establishes that Arthur Coia, Laborers International vice president, directed Bill Porter, Local 243's business manager, to sign this memorandum, despite his objections. According to Porter, this agreement was part of a larger deal in which the Teamsters promised to stop raiding the Laborers local in eastern Massachusetts. The next day, Porter and Victor Nuzzolilo, a Local 170 business agent, visited Raymond Granger, the president of the Granger Contracting Company. Both Granger and Porter testified that during this visit Nuzzolilo asked Granger to sign a contract with his local and warned of picketing if Granger refused. At the time, Granger did not employ any member of the Teamsters. On July 18, Granger filed charges against Local 170. Sometime in June 1974, Nuzzolilo asked Norman Allen, president of N. C. Allen Co., to hire Teamsters drivers for his trucks. At the time, Allen did not employ any members of Local 170 and ignored Nuzzolilo's request. About a month later, during the evening of July 17, 1974, some teamsters carrying placards appeared at a site where Allen was TRUCK DRIVERS UNION LOCAL 170 237 preparing to install two gate valves into a section of water main for the city of Worcester. Nuzzolilo was with them and again demanded that Allen reassign the truckdriving jobs to members of his local. Allen asked for a meeting the next day to discuss the matter, but Nuzzolilo refused. Just before Allen's employees began working that night, a crew from the Worcester Water Department shut off the flow of water in the mains around the point where the installation was to occur. Soon after Nuzzolilo's arrival, the foreman of this crew in- formed Allen that his men did not intend to cross the Teamsters picket line. At that moment, the teamsters were blocking the crew's access to the spot where the controls to the mains that had been shut off were located. This meant that as long as the Teamsters continued picketing, the water mains would remain closed. Allen thus found himself with a choice of either defying the Teamsters, and leaving a part of the city without water, or signing a contract. Allen signed, and the next day discharged two laborers and replaced them with two members of Local 170. B. The Work in Dispute The disputed work concerns the loading, unload- ing, and driving of trucks which are used for transporting equipment and materials to and from construction sites and to and from different areas located within such sites. C. Applicability of the Statute Before proceeding with a determination of this dispute, pursuant to Section 10(k) of the Act, the Board must be convinced that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and the -parties have not adjusted or established a method providing for the voluntary adjustment of the dispute. Local 170 argues that the memorandum of under- standing of July 15 continues to bind the signatory parties, that the disclaimer contained therein remains effective, and that, therefore, no jurisdictional dis- pute exists. However, Local 170, nevertheless, asks the Board to issue an award on the merits. We do not find that the memorandum of under- standing continues to operate as a disclaimer of the disputed work on the part of the Laborers. At the hearing, Porter unequivocally renounced the memo- randum and denied any intention to disclaim the work. Also, nothing in the record suggests that the parties have established a method for voluntarily adjusting the dispute. Accordingly, we find the dispute is properly before the Board for determina- tion pursuant to Section 10(k) of the Act. D. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after duly considering all of the relevant factors.' As the Board has stated, a determination in a jurisdictional dispute is an act of judgment based upon commonsense and experience in measuring the weight to be accorded various factors.2 We have considered the following factors: 1. Certifications The labor organizations involved in this case have not been certified by the Board as the collective- bargaining representative for a unit, or units, of either Employer's employees. 2. The interunion agreement As stated earlier, we have found that the memoran- dum of understanding of July 15, 1974, is not now binding upon Laborers' Local 243, and, therefore, is not a factor to which weight can be given in determining the merits of this dispute. 3. Employer and area practice The record clearly establishes that, until the time of this dispute, both Employers used members of the Laborers to do the driving Local 170 is now claiming. In fact, neither Employer had any employees who were members of the Teamsters when the threats against them were made. Witnesses for Local 243 and the AGC testified that area contractors have used Laborers for this work for at least the past 20 years. This factor favors an award to employees represented by the Laborers. 4. Relative skills and efficiency and economy of operation The driving skill of members of either Union is not really questioned. Thus, the factor of comparative skills does not affect the balance in favor of either Union. Witnesses for both Employers and for Local 243, however, testified to the inefficiency that would result if members of the Teamsters were awarded the work. According to these witnesses, the trucks involved here are used only intermittently. When not driving, the laborers assigned to the trucks perform other tasks. Because these other tasks are exclusively within Local 243's jurisdiction, members of the i N. L. R. B. v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S. 573 (1961). 2 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1%2). 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters, if awarded the work, could drive the trucks, but do nothing else. As a result , when a truck was idle, a teamster would be idle too. Thus, an award to members of the Teamsters would increase the Employers' costs without improving productivity. The factors of economy and efficiency , therefore, favor an award of the disputed work to employees represented by the Laborers. Conclusion Having considered all relevant factors , particularly those concerning the Employee 's past practice, area practice, and efficiency and economy of operations, we conclude that employees of the Employers represented by the Laborers are entitled to perform the disputed work. 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 employed by Granger Contracting Co., Inc., of Worcester, Massachusetts, and N. C. Allen Co., Inc., of Marlboro, Massachusetts, who are currently represented by the Laborers International Union of North America , Local 243, are entitled to perform the work of loading, unloading, and driving trucks which Granger and Allen use for transporting equipment and material to and from construction sites and to and from different areas located within such sites. 2. Truck Drivers Local Union 170 is not entitled by means proscribed by Section 8(b)(4)(D ) of the Act to force or require the Employers to award the above work to its members or employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute , Truck Drivers Local Union 170 shall notify the Regional Director of Region 1, in writing, whether it will or will not refrain from forcing or requiring the Employers, by means proscribed by Section 8(b)(4)(D), to award the work in dispute to its members rather than to employees represented by the Laborers.