Laborers Massachusetts Council (A. Amorello & Sons)

61 314 NLRB No. 16 LABORERS MASSACHUSETTS COUNCIL (A. AMORELLO & SONS) 1 At the hearing, the Employer made a motion that the Board take administrative notice of the transcript, exhibits, and briefs in Case 1–CD–925, involving a dispute between the Unions over driving the Employer’s six-wheel trucks. We grant this unopposed motion. 2 All subsequent dates are in 1993 unless noted. Massachusetts Laborers’ District Council and A. Amorello & Sons, Inc. Case 1–CD–936 June 22, 1994 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS DEVANEY, BROWNING, AND COHEN The charge in this Section 10(k) proceeding was filed November 2, 1993, by A. Amorello & Sons, Inc. (the Employer), alleging that the Respondent, Massa- chusetts Laborers’ District Council (the Laborers), vio- lated Section 8(b)(4)(D) of the National Labor Rela- tions Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by the International Brotherhood of Team- sters, Local 170, AFL–CIO (the Teamsters). The hear- ing was held December 21, 1993, before Hearing Offi- cer Thomas J. Morrison. The Employer filed a posthearing brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board affirms the hearing officer’s rulings, find- ing them free from prejudicial error. On the entire record,1 the Board makes the following findings. I. JURISDICTION The Employer is engaged in heavy and highway construction involving paving, excavating, and install- ing and repairing sewer systems. Annually the Em- ployer purchases and receives goods valued in excess of $50,000 directly from suppliers located outside the Commonwealth of Massachusetts. The parties stipulate, and we find, that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and that the Laborers and Teamsters are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer operates a seasonal construction busi- ness in the Worcester, Massachusetts area. It has had a collective-bargaining relationship with the Laborers since approximately 1946 and with the Teamsters from about 1967. Historically the Employer has owned a fleet of six- wheel trucks, including water trucks, that it uses on construction projects. The Employer has also owned 10-wheel vehicles, including dump trucks, trailers, and a low-bed truck. According to the Employer, employ- ees represented by the Teamsters traditionally have driven its 10-wheel trucks but Laborers-represented employees have driven its water trucks and other six- wheel vehicles. The dispute in this case centers exclu- sively around assignment of the work of driving water trucks. In December 1992, the Employer wrote the Team- sters stating that, for financial reasons, it was dis- continuing its trucking operations effective January 1, 1993. Because of this decision no Teamsters-rep- resented employees were recalled from layoff for the 1993 season. Instead, the Employer filled its needs for driving 10-wheel vehicles by leasing trucks driven by employees of a leasing company. The Employer owns two types of water trucks. One truck is a 2000-gallon fuel truck that the Employer has converted for use with water. The Employer also uses smaller ‘‘water wagons’’ consisting of water tanks towed by six-wheel tool trucks. The water truck and water wagons, which are infrequently used, are used to control dust on jobsites, to protect equipment from overheating, and to wet down paving rollers. Because the large water truck is not registered, the Employer moves it from site to site on a low-bed truck. Previously, an employee represented by the Teamsters drove the low-bed truck that transported the water truck. Since 1993, the Employer has rented a low-bed truck and driver to transport its water truck to jobsites. Once on a jobsite, employees represented by the La- borers historically have operated the water truck and water wagons. The Laborers-represented employee who is assigned the water truck fills the water tank, disperses the water, and moves the truck as needed on the site. On average, the water truck is repositioned by the laborer about three times each day, and each move takes a few minutes. When the water truck is idle, the laborer performs laboring work. In the summer of 1993,2 the Employer used its water truck on the I-190 highway construction job in the Worcester area. On July 27, the Teamsters filed a grievance alleging that water truck work traditionally belonged to it, that the five employees it represented were on layoff, and that the Employer improperly used another employee for the water truck work. On August 9, counsel for the Employer wrote the Teamsters deny- ing this grievance and stating that the Employer would not arbitrate the work dispute. On August 10, the Teamsters wrote the Employer’s attorney stating that its contract, the Massachusetts Heavy Construction Agreement, explicitly covered, among other things, water and fuel trucks. 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 We have taken notice, supra, of the record in Case 1–CD–925 which involved six-wheel trucks other than the water trucks. There the Laborers additionally argued that: (1) the Laborers’ agreement covered small trucks, but the Teamsters’ contract generally covered larger vehicles; (2) there was no voluntary mechanism to resolve the dispute between the parties; (3) the Employer’s past practice clearly favored assignment of the disputed work to employees it rep- resented; (4) area practice favors an award of work to Laborers-rep- resented employees; and (5) it would be much more costly and inef- ficient to assign the disputed work to Teamsters-represented employ- ees. On October 5 or 6, Laborers’ regional director, Paul McNally, telephoned the Employer saying he had heard of the Teamsters’ grievance. McNally stated that the water truck work belonged to the Laborers, and that it always had. McNally additionally stated that he would strike the Employer if it awarded the work to the Teamsters. B. Work in Dispute The disputed work involves operation of the Em- ployer’s water trucks on the Employer’s construction projects in central Massachusetts. C. Contentions of the Parties 1. The Employer The Employer contends that the disputed work should be assigned to employees represented by the Laborers. The Employer maintains that for 47 years, its undisputed, uniform practice has been for laborers to drive its water truck and wagons. The Employer con- tends that, until now, the Teamsters has never pro- tested this work assignment. The Employer also argues that it is more efficient and economical for Laborers- represented employees to load, move, and spray water because this work is an integral aspect of laboring. Ad- ditionally, submits the Employer, because it takes only a few minutes to move the water trucks, it would be inefficient to assign this work to employees rep- resented by the Teamsters. The Employer further argues that if it were required to assign the water truck work to Teamsters-rep- resented employees it would have to lay off experi- enced laborers from its construction crew. This, the Employer submits, would result in a separate crew of Teamsters-represented truckdrivers who would sit idle in water trucks while laborers performed jobsite con- struction work. Finally, the Employer contends that assignment of the water truck work is consistent with the parties’ col- lective-bargaining agreements. Although the Employer concedes that the Teamsters’ contract explicitly covers water trucks, it argues that, from 1967 until now, the Teamsters has never claimed that employees it rep- resents were entitled to operate its water trucks. 2. The Laborers The Laborers did not submit a brief in this case or make a statement of position at the hearing. The La- borers, however, has claimed the water truck work, as- serting that it traditionally has been assigned to em- ployees it represents. Through questioning by its coun- sel at the hearing, the Laborers also sought to prove that the Teamsters has never before contractually claimed the water truck work, nor sought to resolve the jurisdictional dispute under a purported 1947 agreement between the Laborers and the Teamsters.3 3. The Teamsters The Teamsters did not file a brief or make a formal statement of position. The Teamsters’ representative did assert at the hearing, however, that the Teamsters’ contract explicitly covered water truck work and that the Laborers’ agreement did not. In addition, a witness for the Teamsters testified that the Teamsters recently negotiated an agreement with another area employer, Barton Trimont, which formalized that employer’s practice of assigning water truck work to Teamsters- represented employees. This witness further testified that the Teamsters and Laborers have a longstanding agreement to resolve jurisdictional disputes without submitting them to Section 10(k) proceedings. Finally, the Teamsters argued in this case, as well as in Case 1–CD–925, that it would not be a hardship for the Em- ployer to reassign water truck work to employees it represents. Unlike some other operations where Team- sters’ drivers do not get out of their trucks, the Team- sters asserts that the 10-wheel drivers frequently per- form laborer work when they are not driving. The Teamsters Union also asserts that, to its knowledge, Laborers has never complained about Teamsters-rep- resented drivers performing laborers’ work. D. Applicability of the Statute Before the Board may proceed with a determination of a dispute under Section 10(k) of the Act, it must be satisfied that: (1) there are competing claims for work; (2) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated; and (3) that the parties have not agreed on a method for the voluntary adjust- ment of the dispute. Initially, we find that there are competing claims for the water truck work. The Teamsters demanded this work in a July 27 grievance against the Employer and in its August 10 followup letter. The Laborers simi- larly claimed the work in its October 5 or 6 telephone call to the Employer. There is also reasonable cause to believe that Sec- tion 8(b)(4)(D) has been violated. The Laborers threat- ened to strike the Employer if it awarded the work to 63 LABORERS MASSACHUSETTS COUNCIL (A. AMORELLO & SONS) 4 This agreement is between the Labor Relations Division of Con- struction Industries of Massachusetts, Inc., of which the Employer is a member, and the Massachusetts Laborers’ District Council of the Laborers’ International Union. the Teamsters-represented employees. See generally Laborers (RMC Lonestar), 309 NLRB 412 (1992). Finally, no agreed-on method exists for voluntarily adjusting the dispute. Although the Teamsters and La- borers entered into an agreement in 1947, which they reaffirmed in 1991, providing that they would resolve jurisdictional disputes without recourse to the National Labor Relations Board, the Employer was not party to this agreement. Second, although article 2, item 5, of the Teamsters’ contract with the Employer contains a mechanism for resolving jurisdictional disputes, this provision applies only to disputes between Teamsters locals. Finally, the Employer has made clear that it would not arbitrate any dispute over assignment of the water truck work. On these bases, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed method for voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an affirm- ative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by balancing the factors in- volved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the de- termination of this dispute. 1. Certification and collective-bargaining agreements There is no evidence that either Union has been cer- tified to represent employees performing the disputed work. Both parties assert, however, that their respec- tive collective-bargaining agreements entitle them to the water truck work. The Laborers has had a collective-bargaining rela- tionship and successive agreements with the Employer for almost 50 years. The current contract, effective from June 1, 1991, through May 31, 1994, provides at article VIII, section 2, that heavy highway construction work includes the ‘‘operation of all on-site pick-up and service trucks.’’4 The Employer has had a bargaining relationship with the Teamsters since about 1967. The 1993–1996 Massachusetts Heavy Construction Agreement, to which the Employer and Teamsters Local 170 are bound, covers ‘‘tank trucks used for transporting any type of . . . water,’’ as well as the ‘‘transportation of all building and excavating materials and equipment including . . . water.’’ Identical provisions were in- cluded in the 1990–1993 Massachusetts Heavy Con- struction Agreement. The 1991–1994 contract binding the Employer and the Laborers arguably encompasses the disputed work. Similarly, the 1990–1993 and 1993–1996 Teamsters’ agreements also purport to cover the disputed work. Accordingly, this factor favors neither group of em- ployees. 2. Employer preference The Employer prefers to use employees represented by the Laborers, rather than Teamsters-represented em- ployees, to drive and operate its water trucks. There- fore, this factor favors the award of the disputed work to employees represented by the Laborers. 3. Employer past practice For the approximately 47 years that the Employer has been signatory to agreements with the Laborers, it has assigned to employees represented by this Union the work of driving and operating its water trucks. Other than placing the water truck on a low-bed truck and delivering it to the jobsite, the Teamsters Union does not claim that employees it represents have ever performed water truck work. Thus, the factor of em- ployer practice favors the award of the disputed work to employees represented by the Laborers. 4. Area practice The Employer states that it does not know who drives its competitors’ water trucks. The Teamsters Union asserts that another area contractor, Barton Trimont, assigns water truck work to its Teamsters- represented employees, and has formalized this prac- tice in its current contract with the Teamsters. Based on the evidence presented, we find that the factor of area practice is inconclusive. 5. Economy and efficiency of operations and job impact The Employer argues that it is more efficient to as- sign the disputed work to employees represented by the Laborers. The Employer asserts that water truck work typically takes only minutes a day. During the remainder of the workday, the Employer contends that the laborer assigned to the water truck performs reg- ular laboring work. Conversely, the Employer contends that because it no longer employs any Teamsters-rep- resented employees, it would be inefficient to use them for water truck work. Thus, the Employer argues that it would have to lay off one of its experienced and 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD skilled laborers and hire a Teamsters-represented em- ployee for a few minutes’ work, because the Laborers would not allow Teamsters-represented employees to perform laboring work. The Teamsters, in this case and in Case 1–CD–925, claims that employees it represents have performed considerable laboring work for the Employer. The Teamsters asserts that when employees it represents were not driving 10-wheel vehicles, they drove the Employers’ other vehicles and performed laboring du- ties. Under these circumstances, we do not rely on these factors in determining the assignment of the disputed work. 6. Relative skills The Employer contends that it was ‘‘satisfied with the relative skills of employees represented by the La- borers in operating the water trucks’’ and that, there- fore, this factor favors the award of the work to em- ployees the Laborers represents. The record, however, contains no evidence as to whether special skills or li- censes are required to operate the Employer’s water trucks. Accordingly, this factor is inconclusive. Conclusions After considering all the relevant factors, we con- clude that employees represented by the Laborers are entitled to perform the disputed work. We reach this conclusion by relying on the factors of employer pref- erence and past practice. In making this determination we are awarding the work to employees represented by the Laborers, not to that Union or its members. DETERMINATION OF DISPUTE The National Labor Relations Board makes the fol- lowing Determination of Dispute. Employees of A. Amorello & Sons, Inc., represented by Massachusetts Laborers’ District Council are enti- tled to perform the work of driving and operating water trucks for A. Amorello & Sons, Inc. on the Em- ployer’s construction sites in central Massachusetts.