Teamsters Local No. 920

TEAMSTERS LOCAL NO. 920 Teamsters Local Union No. 920, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and Gene Nelson, Inc. and Painters Local Union No. 328 Teamsters Local Union No. 920, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and Gene Nelson, Inc. and Painters Local Union No. 243. Cases 23-CD-370 and 23-CD-371 July 8, 1977 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, PENELLO, AND WALTHER This is a consolidated proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Gene Nelson, Inc., herein called the Employer, alleging that Teamsters Local Union No. 920, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Respondent, had 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 it rather than to employees represented by Painters Local Union No. 328,' herein called Local 328, and Painters Local Union No. 243,2 herein called Local 243. Pursuant to notice, a hearing was held before Hearing Officer Theodore Arter III on April 26, 1977. All parties appeared and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues.3 Thereafter, the Employer submitted a brief in support of its position. 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 Officer's rulings 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: Case 23 CD- 370. 2 Case 23 CD 371. 230 NLRB No. 93 1. THE BUSINESS OF THE EMPLOYER The Employer, an industrial painting contractor, does business in the State of Texas and in other parts of the country. During the past year, the Employer purchased goods and materials from outside the State of Texas, having a value in excess of $50,000, which were shipped directly to its Texas jobsites. 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 purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The evidence reveals, and we find, that the Respondent Local 920, Local 328, and Local 243 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 began a job for Stern Rogers, Inc., at the Mobil Chemical Plant in Beaumont, Texas, in December 1976. It began a similar job for Crawford and Russell, Inc., at Orange, Texas, in February 1977. In each instance the Employer assigned the job of driving a pickup truck for transporting men and supplies to a member of either Local 328 or Local 243. Shortly thereafter, on each job, an agent of the Respondent appeared at the jobsite and demanded that the job of driving the truck be assigned to one of its members and threatened to picket both jobsites if such assignments were not made. The record reveals that Respondent did actually picket the job at Beaumont to enforce its demands. In each instance the Employer refused to reassign the work on the grounds that it was contractually bound to assign the work to members of the Painters Locals, who were, and still are, claiming the work. B. The Work in Dispute The work in dispute in Case 23-CD-370 involved driving a pickup truck to haul men, materials, supplies, and equipment from place to place on the Firestone Synthetic & Rubber Latex Butadiene Plant Modification construction project site located on Farm Road 1066 at Orange, Texas. In Case 23-CD- 371, the disputed work involves driving a pickup truck to haul men, materials, supplies, and equip- ment from place to place on the Mobil Chemical Company construction project site located on High- way 90 at Beaumont, Texas. I The Respondent did not appear at the hearing. 693 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Contentions of the Parties The Employer contends that the disputed work has been properly assigned to the respective Painters Locals on the basis of its past practice, its collective- bargaining agreement, and the area practice and on the basis of efficiency, economy, and the availability of painters to perform the disputed work. The positions taken by Locals 328 and 243 are in agreement with the Employer. The Respondent did not appear at the hearing, nor did it file a brief with the Board. Prior to the hearing, however, it demanded the work and there is no evidence that it does not continue to claim the disputed work. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the 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 the parties have not agreed upon a method for the voluntary adjustment of the dispute. The record indicates that the Respondent has demanded assignment of the disputed work, has threatened to picket, and has picketed a jobsite to enforce its demand. There is no indication that the Respondent has withdrawn its demand. At the hearing, representatives of Locals 328 and 243 stated that their organization continue to claim the disputed work. In a jurisdictional context, the Board is not charged with finding that a violation did in fact occur, but only that there is reasonable cause to believe that there has been a violation of Section 8(b)(4)(D) of the Act. On the basis of the entire record, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that this dispute is properly before the Board for determination. 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 factors.4 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case.5 N.L.R. B. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO /Columbia Broadcasting Systiem], 364 U.S. 573 (1961). The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreement The Employer is party to a collective-bargaining agreement with Painters Local Union No. 585 of Texas City, Texas. Article VIII, section 6, of that document states in relevant part that: The Employer party thereto shall, when, engaged in work outside the geographical jurisdiction of the Union Party to the Agreement, comply with all the lawful clauses of the collective bargaining agreement in effect in said other geographical jurisdiction and executed by the employers of the industry and the local unions in that jurisdiction By its interpretation of its contract, the Employer is bound to honor Painters union agreements which are in effect in geographical jurisdictions outside its own. Accordingly, as Local 328 and Local 243 have collective-bargaining agreements with area painting contractor associations at Orange and Beaumont, Texas, respectively, the Employer has used painters for jobs in those areas. Inasmuch as the Respondent has no contractual relationship with the Employer, the Employer's contract with the Painters favors assignment of the disputed work to employees represented by the Painters Locals. 2. Relative skills The job of driving the pickup truck involved herein does not require any great skills and it does not appear that the skills involved favor assignment of the disputed work to either group. 3. Economy and efficiency of operation The record establishes that, when a painter has driven the truck to the jobsite, and is not actually transporting men and materials, he spends the day painting. Employees represented by the Respondent, however, would only drive the truck to the job and would be idle while the truck is not in use. Factors of economy and efficiency of operation thus favor awarding the disputed work to painters. 4. Employer practice and preference The Employer has historically assigned the driving of the truck to painters and has manifested a preference to continue this assignment. We find that 5 International Association of Machinists, Lodge No. 1743, AFL-CIO (J A. Jones Construction Company), 135 NLRB 1402 (1962). 694 these factors favor awarding the disputed work to employees represented by the Painters. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that employees who are represented by Local 328 in Case 23-CD-370 and by Local 243 in Case 23-CD-371 are entitled to perform the work in dispute at their respective jobsites. We reach this conclusion relying on the Employer's contractual arrangement with the Painters Union, the Employ- er's preference and past practice in assigning the disputed work, and the fact that such an assignment fosters a more efficient operation. In making this determination, we are awarding the work in question to employees who are represented by Painters Local Union No. 328 and Painters Local Union No. 243, but not to those Unions or their members. The 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 makes the following Determination of Dispute: TEAMSTERS LOCAL NO. 920 1. Employees of Gene Nelson, Inc., who are represented by Painters Local Union No. 328 and Painters Local Union No. 243, are entitled, respec- tively, to perform the work of driving a pickup truck to haul men, materials, and equipment from place to place on the Firestone Synthetic & Rubber Latex Butadiene Plant Modification construction project site located on Farm Road 1066 at Orange, Texas, and the work of driving a pickup truck to haul men, materials, supplies, and equipment from place to place on the Mobile Chemical Company construc- tion project site located on Highway 90 at Beaumont, Texas. 2. Teamsters Local Union No. 920, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Gene Nelson, Inc., to assign the disputed work to employees represented by those labor organizations. 3. Within 10 days from the date of this Decision and Determination of Dispute, Teamsters Local Union No. 920, affiliated with 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 disputed work in a manner inconsistent with the above determination. 695