Local Union 459, Laborers

690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No 459, Laborers International Union of North America, AFL-CIO and Cord North Ameri- can Moving and Storage and Chauffeurs and Help- ers Local Union No 50, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 14-CD-523 June 11, 1976 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Cord North American Moving and Storage (Cord), alleging that Local Union No 459, Laborers International Union of North Ameri- ca, AFL-CIO (Laborers), has violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activities with an object of forcing or requir- ing Cord to assign disputed work to employees repre- sented by the Laborers rather than to employees represented by Chauffeurs and Helpers Union No 50, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters) A duly scheduled hearing was held before Hearing Officer Michael L Stoll on February 20, 1976 All parties desiring to do so appeared at the hearing and were afforded full opportunity to be heard, to exam- ine and cross-examine witnesses, and to adduce evi- dence bearing on the issues 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 No briefs were filed by any party The Board has consid- ered the entire record in this case and hereby makes the following findings I THE BUSINESS OF THE EMPLOYER Cord is a corporation engaged in the transporta- tion and moving of furniture and related items Dur- ing the past year Cord, in the course and conduct of its business, derived gross revenues in excess of $50,000 from the transportation of furniture and re- lated items from locations within the State of Illinois directly to locations outside the State of Illinois The parties stipulated and we find that Cord is an em- ployer within the meaning of Section 2(2) of the Act We further find that Cord is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein II LABOR ORGANIZATION The parties stipulated, and we find, that the Labor- ers and the Teamsters 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 unloading of fur- niture from Cord delivery trucks and the carrying of that furniture to locations in the St Clair County Building in Belleville, Illinois B Background By virtue of a collective-bargaining agreement with the St Clair County Movers Association, Inc, of which Cord is a member, the Teamsters is the col- lective-bargaining representative of Cord's drivers, warehousemen, packers, and helpers Cord does not have a collective-bargaining agreement with the La- borers Ideal, Inc, an office and school supply dealer, has a contract with the Public Building Commission of St Clair County, Illinois (Commission), for the fur- nishing of certain furniture to the St Clair County Building (County Building) In April 1975, Ideal's President Dennis Bath was contacted by the Labor- ers Business Manager Hugo Schewe who claimed that the delivery of the furniture to the County Build- ing was laborers work Bath responded that if Ideal decided to use laborers, he would notify Schewe In November 1975, Ideal subcontracted with Cord for the delivery and unloading of the furniture at the County Building during January 19761 When Schewe contacted Bath again in mid-January, Bath informed him that Ideal had subcontracted the deliv- ery work to Cord and that Schewe would have to discuss the work with officials of that Company On January 23 while Bath was scheduling the furniture delivery at the County Building, Schewe approached him concerning a delivery to be made on January 26 All dates hereafter refer to 1976 unless otherwise indicated 224 NLRB No 91 LOCAL UNION 459, LABORERS 691 and stated, "Well, I guess I'll see you guys Monday, because that's when the s- is going to hit the fan " On January 26, when a Cord truck sought to make a furniture delivery at the County Building, the en- trance was blocked by approximately 30 laborers who physically prevented the delivery and claimed the work as belonging to them On January 27 the Commission obtained a state court injunction, effec- tive through February 2, prohibiting the Laborers from interfering with the unloading work Cord de- livered approximately three truckloads of furniture under the protection of that injunction On February 3, following the dissolution of the state court injunction, Schewe informed Bath and Cord's Manager Al Schaefer that the Laborers claimed the exclusive right to perform the disputed work On February 4, Cord filed the instant charge with Region 14 On February 10 Cord's attempted delivery of furniture was again physically prevented by a sizable group of laborers, including Rick Schewe, the son of the Laborers business manager On February 18 the Regional Director for Region 14 obtained an injunction from the U S District Court for the Eastern District of Illinois, enjoining the La- borers from picketing or other action at the County Building, pending the final disposition of the matters involved herein C Contentions of the Parties The Laborers contends that there is no existing work assignment dispute because, at the commence- ment of the hearing, it filed an oral disclaimer of any interest in the work in dispute Alternatively, the La- borers asserts that the dispute has been settled by a January 31, 1976, agreement executed between the Laborers International Union of North America, Springfield Regional Office, and the Illinois Confer- ence of Teamsters, which awarded the work to the laborers The Teamsters contends that it is not bound by any agreement between the Illinois Conference of Teamsters and the International Laborers Union Further, the Teamsters claims the work for employ- ees it represents on the basis of its contract with the St Clair County Movers Association Following the Laborers filing of the purported dis- claimer at the hearing, Cord refused to withdraw its charge herein and sought to continue the instant pro- ceeding Cord contends that the work in dispute should be assigned to employees represented by the Teamsters based upon its contract with the Team- sters, efficiency, its past practice, and the absence of any voluntary method for resolution of this dispute D Applicability of the Act 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 At the commencement of the hearing, counsel for the Laborers orally filed a disclaimer of the disputed work During the hearing, however, the Laborers business manager, Hugo Schewe, testified that labor- ers continue to be entitled to perform the disputed work Other evidence indicates that in spite of the Commission's assumption of control over the County Building, there is other work yet to be completed which will require the services of laborers during the next year or so Thus, it is apparent that, notwith- standing the disclaimer of interest filed by its coun- sel, the Laborers continues to assert its claim to the disputed work and will continue to claim such work in the indefinite future Section 10(k) of the Act, which directs the Board to hear and determine disputes out of which 8(b)(4)(D) charges have arisen, limits the Board's au- thority to situations in which an employer's assign- ment to work is in dispute Further, the Board has held, with Supreme Court approval, that a jurisdic- tional dispute no longer exists where one of the com- peting unions or parties effectively renounces its claim to the work 2 In our judgment, no such effec- tive renunciation has been made here In spite of the Laborers counsel's oral disclaimer at the beginning and conclusion of the hearing, the Laborers business manager nevertheless persistently asserted his belief that the Laborers members were entitled to the dis- puted work while they continued to do other work at the situs Thus, the Laborers engaged in conduct im- mediately following its disclaimer which is inconsis- tent therewith In such circumstances, we find that the Laborers disclaimer at the hearing is ineffective, and, notwithstanding said disclaimer, there exists an outgoing work dispute which the Board must de- termine The Laborers motion to dismiss the charge, based on the alleged disclaimer, is therefore denied The Laborers contention that the work dispute was voluntarily resolved by the settlement agreement exe- cuted by the Illinois Conference of Teamsters and the Laborers International Union is likewise without merit Section 10(k) precludes the Board from de- termining a dispute where the parties submit evi- dence that they have adjusted, or agreed upon meth- 2 N L R B v Plasterers Local Union No 79 Operative Plasterers and Ce ment Masons' International Association, AFL-CIO 404 US 116 134(1971) 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ods for the voluntary adjustment of, their dispute Such an agreed-upon method of voluntary adjust- ment depriving the Board of 10(k) jurisdiction to hear and determine the underlying dispute must be one to which all parties to the dispute, including the employer, are bound 3 The Employer here did not participate in the settlement agreement and was not bound by such Therefore, we find that there is no agreed-upon method for voluntary adjustment of the work dispute The record establishes that on numerous occasions when Cord's employees represented by the Team- sters attempted to deliver and unload furniture at the County Building, they were prevented from doing so by members of the Laborers who claimed the work as their own In fact, the only time deliveries were successfully made by Cord's employees was during the effective period of the state court injunction Thus, it is clear that as a result of the Laborers dis- ruptive action, Cord was unable to complete the de- livery of furniture On the basis of these facts, and without resolving the issues of credibility raised by the testimony, we are satisfied that there is reason- able cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute is prop- erly before us for determination E Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work af- ter giving due consideration to various relevant fac- tors 4 As the Board has stated, the determination of a jurisdictional dispute is an act of judgment based on common sense and experience in weighing these fac- tors The following factors are relevant in making a determination of the dispute before us 1 Board certification The record is inconclusive as to whether the Team- sters has been certified as collective-bargaining rep- resentative of Cord's employees The record clearly establishes, however, that the Laborers have not been so certified Accordingly, this factor does not favor an award of the work to either group of employees 2 Collective-bargaining agreements It is undisputed that Cord is a member of the St Clair County Movers Association which has a collec- ' Id at 137 4 N L R B v Radio & Television Broadcast Engineers Union Local 1212 International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad- casting System], 364 U S 573 (1961) tive-bargaining contract with the Teamsters, applica- ble to the disputed work 5 Cord does not have a collective-bargaining con- tract with the Laborers Thus, the contract between the Association and the Teamsters favors an award of the disputed work to the employees represented by the Teamsters 3 Skills and training The disputed work is physical in nature, involving the moving of new and old furniture from Cord de- livery truck onto the various floors of the County Building Refrigerator or two-wheeled dollies are used to transport heavy furniture up and down stairs or on flat surfaces, and flat four-wheeled dollies are used to move furniture that has been placed upon them Pads are used to protect the furniture from nicks and scratches while in transit or while it is being moved into the building Thus some skill, ac- quired through experience and on-the-job instruc- tion, is required to know how to properly wrap with pads and stack the furniture in order to prevent dam- age during transport Further, lifting and shifting the furniture requires maintaining balance and control over the furniture in order to avoid improper tipping that may cause part of the furniture to fall out and be damaged Testimony establishes that employees represented by both the Teamsters and Laborers possess the re- quisite skills Accordingly, this factor does not favor an award of the work to either group of employees 4 Employer's preference and past practice Cord awarded the work in dispute to its employees represented by the Teamsters Further, Cord's man- ager, Al Schaefer, testified that because he knew the experience and physical abilities of his own employ- ees, he preferred using them rather than other em- ployees with whom he was unfamiliar and thus un- certain as to their ability to satisfactorily perform the Sec 15 of the agreement provides For the purposes of preserving work and job opportunities for the employees covered by this Agreement the employer shall not circum- vent this contract and shall use its employees , members of the bargain mg unit (a) For all local moving (residential and commercial) (b) For all packing and unpacking crating and uncrating and deliv- ery and pickup of all packing materials and equipment (c) For all warehousemen's work (d) To work as helpers for all long distance work , loading and un loading of all long distance trucks , when the company has knowledge of the work, and when such work is performed in the Belleville Area the above shall not have application to a registered two-man operation Drivers of two separate vehicles shall not be permitted to assist each other when the employer has knowledge of the work as origin or desti- nation agent LOCAL UNION 459, LABORERS 693 work Accordingly, this factor favors the award of the work to employees represented by the Teamsters 5 Economy and efficiency resented by the Laborers, are entitled to the work in dispute In making this determination, we are assign- ing the disputed work to the employees of Cord who are represented by the Teamsters, but not to that Union or its members Use of its own employees represented by the Teamsters gives Cord greater control over its opera- tions since the assignments can be made by matching experience and ability with the difficulty of the par- ticular job involved Further, by the use of its own employees represented by Teamsters, Cord can as- sure full employee utilization, while avoiding the ad- ditional cost of subcontracting the work Thus, econ- omy and efficiency of operations favors an award to the employees represented by the Teamsters Conclusions Upon the record as a whole, and after full consid- eration of all relevant factors involved, we conclude that the employees of Cord represented by the Team- sters are entitled to perform the disputed work In reaching this conclusion, we have relied on Cord's past practice of assigning the disputed work to its own employees represented by the Teamsters, the ef- ficiencies and economies resulting from the assign- ment of the work to employees represented by the Teamsters, and the collective-bargaining agreement between Cord and the Teamsters The fact that mem- bers of both unions possess the necessary skills and training to perform the work is determinative only to the extent that it establishes that the Teamsters mem- bers have the ability to satisfactorily perform the work Accordingly, we shall determine the existing jurisdictional dispute by deciding that employees represented by the Teamsters, rather than those rep- 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 makes the following Determination of Dispute 1 Employees of Cord North American Moving and Storage represented by Chauffeurs and Helpers Local Union No 50, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, exclusively, are entitled to perform the work of unloading of furniture from Cord North American Moving and Storage delivery trucks and the carrying of that furniture to locations in the St Clair County Building in Belleville, Illinois 2 Local Union No 459, Laborers International Union of North America, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the assignment of the above work or any part thereof, to its members or to employees it represents 3 Within 10 days from the date of this Decision and Determination of Dispute, Local Union No 459, Laborers International Union of North America, AFL-CIO, shall notify the Regional Director for Re- gion 14, in writing, whether or not it will refrain from forcing or requiring, by means proscribed by Section 8(b)(4)(D) of the Act, the assignment of the disputed work in a manner inconsistent with this determina- tion