Asplundh Construction Corp.

633 318 NLRB No. 77 ASPLUNDH CONSTRUCTION CORP. 1 We hereby grant Asplundh Construction Corporation’s unop- posed motion to correct the hearing transcript. Asplundh Construction Corporation and Local 1049, International Brotherhood of Electrical Workers, AFL–CIO and Local 282, Inter- national Brotherhood of Teamsters, AFL–CIO. Case 29–CD–452 August 25, 1995 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND BROWNING The charge in this Section 10(k) proceeding was filed on May 10, 1995, by Asplundh Construction Cor- poration (Asplundh or the Employer), alleging that the Respondent, Local 1049, International Brotherhood of Electrical Workers, AFL–CIO (Local 1049), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to em- ployees it represents rather than to employees rep- resented by Local 282, International Brotherhood of Teamsters, AFL–CIO (Local 282). The hearing was held on May 25, 1995, before Hearing Officer Kathy Drew King. 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, the Board makes the following findings.1 I. JURISDICTION Asplundh Construction Corporation is a New York corporation with its principal place of business in Patchogue, New York. Asplundh is a contractor en- gaged in the installation and repair of electric utility and natural gas lines, and also performs road construc- tion work. During the 12 months preceding the hear- ing, Asplundh purchased and received at its Patchogue facility goods and materials valued in excess of $50,000, from points located outside the State of New York. The parties stipulate, and we find, that Asplundh is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Local 1049 and Local 282 are labor organizations within the meaning of Sec- tion 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Asplundh’s primary client in its gas line service op- erations is Long Island Lighting Company (LILCO). In servicing LILCO’s gas lines, Asplundh performs three primary functions: (1) it repairs leaks in natural gas mains up to 2 inches in diameter and in residential dis- tribution service lines; (2) it retubes residential dis- tribution service lines (i.e., replaces worn gas lines with smaller plastic lines threaded through the existing lines); and (3) it installs new natural gas mains up to 2 inches in diameter and installs new residential dis- tribution service lines branching off the main to the residence or other service point. When Asplundh purchased the construction contract- ing business from B & J Maintenance in or about 1990, it voluntarily recognized both Local 1049 and Local 282 and assumed its predecessor’s collective- bargaining relationships with those Unions. Asplundh’s employees represented by Local 1049 perform all the gas utility work described above pursuant to the par- ties’ collective-bargaining agreement (the Gas Agree- ment). Employees represented by Local 282, on the other hand, are involved in Asplundh’s road construc- tion work. Pursuant to a collective-bargaining agree- ment between Local 282 and the Nassau-Suffolk Con- tractors Association (the Association), a multiemployer bargaining unit of which Asplundh is a member, em- ployees represented by Local 282 drive trucks used in Asplundh’s road construction work. The labor agree- ment between Local 282 and the Association is known as the Heavy Construction and Excavation Agreement, and governs those employees known as chauffeurs, on- site stewards and Euclid and Turnapull operators. The performance of Asplundh’s natural gas line work for LILCO involves the use of a variety of trucks, including pickup trucks, rack trucks, flatbed trucks, box trucks, and dump trucks, which may or may not pull a trailer containing hot asphalt called a ‘‘hot box.’’ Before driving any one of these trucks, a driver must have a commercial driver’s license and un- dergo specialized training in its operation. The trucks involved with Asplundh’s gas line service work are used to transport personnel, tools, equipment, and ma- terials to the jobsite, and typically remain at the jobsite with the crew until the shift is complete at the end of the day. Over the course of their collective-bargaining relationship with the Employer, only employees rep- resented by Local 1049 have driven these trucks to and from their worksites. The truck driving associated with Asplundh’s heavy construction and excavation work is of a somewhat different nature. In a typical road construction job, Asplundh employees represented by Local 282 drive dump trucks to and from the jobsite in a continuous ‘‘round-robin’’ fashion, hauling away tons of debris for dumping and then bringing in loads of asphalt to the construction site. Under this regimen, the employ- ees represented by Local 282 drive trucks to and from the jobsite for the duration of their shifts so that debris is continuously removed and asphalt is continuously 634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD supplied. Although employees represented by Local 282 drive the trucks associated with Asplundh’s heavy construction and excavation work, those employees have never driven the trucks involved with the Em- ployer’s gas line service work. In January 1995, Asplundh began receiving a num- ber of grievances from Local 282 claiming that the truck driving associated with certain of the Employer’s gas line service work should be assigned to employees represented by Local 282 pursuant to the Heavy Con- struction and Excavation Agreement. The grievances were processed without resolution pursuant to steps es- tablished in the parties’ collective-bargaining agree- ment, and now await arbitration. At the same time the Employer was receiving Local 282’s grievances, it was beginning negotiations with Local 1049 for renewal of the Gas Agreement. During the course of the negotiations, Thomas Draghi, Asplundh’s manager of Gas Operations and its labor relations representative, notified Local 1049 Represent- ative Everett Lewis that the Employer was receiving the truck driving grievances from Local 282. Lewis asked to be kept apprised of their status. In late April 1995, Draghi informed Lewis that Local 282’s griev- ances were set for hearing before the parties’ Joint Disputes Panel on May 10, 1995. By letter dated May 2, 1995, Lewis informed Draghi that should Asplundh reassign the truck driving associ- ated with certain gas line service work to employees represented by Local 282, the Employer would be in breach of the Gas Agreement, and the jobs and the work performance of the employees represented by Local 1049 would be ‘‘in jeopardy.’’ Perceiving the letter as a veiled threat to stop the gas line service work, Draghi telephoned Lewis shortly after receiving the letter and requested a clarification of its intent. Lewis then informed Draghi that if the truck driving associated with certain gas line service work was as- signed to employees represented by Local 282, em- ployees represented by Local 1049 would stop per- forming the gas work altogether. B. The Work in Dispute The disputed work involves truck driving related to work on natural gas lines that are 2 inches or less in diameter, to excavation, including asphalt patch work, and to restoration work (pipe trench creation and fill- ing), for the Long Island Lighting Company, as per- formed by employees of Asplundh Construction Cor- poration, which is located at Patchogue, New York. C. Contentions of the Parties Asplundh contends that Local 1049’s threat to en- gage in a work stoppage is sufficient basis for the Board to have reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated, and neither Union disputes this contention. With regard to the mer- its, Asplundh and Local 1049 assert that the work in dispute should be awarded to employees represented by Local 1049 based on past practice of the parties, the superior training and skills of the employees rep- resented by Local 1049, governing provisions of the Gas Agreement, area and industry practice, and econ- omy and efficiency of operations. Local 282 asserts that Asplundh has not consistently assigned the disputed work to employees represented by Local 1049. Rather, as its grievance forms reflect, Local 282 asserts that its representatives have wit- nessed non-Local 1049 employees performing the dis- puted work on a number of occasions. In addition, Local 282 argues that at least one other gas line serv- ice contractor in the area utilizes employees rep- resented by Local 282 to drive trucks incident to their gas line service work. Finally, Local 282 contends that the Gas Agreement is inapplicable to the disputed work and that its Heavy Construction and Excavation Agreement controls the issue. For these reasons, Local 282 asserts that the disputed work should be assigned to Asplundh employees it represents. D. Applicability of the Statute Before the Board may proceed with determining a dispute pursuant to Section 10(k) of the Act, two juris- dictional prerequisites must be met. First, the Board must find reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. Second, the Board must find that the parties have failed to agree on a method for voluntary adjustment of the dispute. These jurisdictional prerequisites have been met in this case. First, as noted above, both Local 1049 and Local 282 claim the work in dispute. In addition, Local 1049 Representative Everett Lewis has advised Asplundh both orally and in writing that if the Em- ployer reassigns the work to employees represented by Local 282, employees represented by Local 1049 will cease performing gas line service work altogether. On this basis, we find reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. Sec- ond, the parties stipulated that they have not agreed on a method to adjust this dispute voluntarily. Accord- ingly, we find that the Board has jurisdiction to resolve this dispute. 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. 635 ASPLUNDH CONSTRUCTION CORP. 2 Local 282 argues that sec. 12.03 of the Gas Agreement, which is cited above as explicitly requiring employees represented by Local 1049 to perform the driving associated with the gas utility work cov- ered by the agreement, is irrelevant to a determination of the dispute because it is found under an article of the agreement entitled ‘‘Change of Headquarters.’’ We conclude that the location of this language in the Gas Agreement does not detract from its otherwise explicit mandate. A. Jones Construction), 135 NLRB 1402, 1410–1411 (1962). The following factors are relevant in making the de- termination of this dispute. 1. Certification and collective-bargaining agreements Both Unions involved in this dispute were volun- tarily recognized by the Employer. Accordingly, nei- ther Union has been certified by the Board. As noted above, Asplundh and its employees rep- resented by Local 1049 have entered into a collective- bargaining agreement known as the Gas Agreement. Section 1.01 of the Gas Agreement recognizes Local 1049 as the exclusive bargaining representative for Asplundh’s employees engaged in gas utility work, in- cluding all work associated with gas lines 2 inches or less in diameter. Section 12.03 of the Gas Agreement explicitly states that ‘‘Employees will drive and oper- ate company vehicles and equipment to perform work outlined in this Agreement.’’ Finally, Sections 8.04 and 8.11 of the Gas Agreement indicate that certain employees must have a commercial driver’s license to perform particular tasks delineated in the agreement, language which at least contemplates that driving the Employer’s vehicles will be a component of the gas line service work. Section 1(b) of the Heavy Construction and Exca- vation Agreement, Local 282’s labor agreement with the Employer, governs work defined as ‘‘the Construc- tion of Engineering Structures and Building Founda- tions, exclusive of the Erection of Building Super- structures.’’ Section 20 of the agreement states that ‘‘Equipment historically manned by Employees cov- ered by this Agreement and work historically per- formed by such equipment will continue to be manned and performed by Employees covered by this Agree- ment.’’ Subsection (k) of section 6 of the agreement, which establishes rules governing the Employer’s equipment, defines ‘‘trucks and equipment’’ to include ‘‘trucks, trailers, euclids, turnapulls and other equip- ment within the jurisdiction of Local 282.’’ We conclude that an analysis of the parties’ collec- tive-bargaining agreements favors an award of the dis- puted work to employees represented by Local 1049. The Gas Agreement explicitly refers both to the type of gas line service work involved in this case and the truck driving incident thereto, while the Heavy Con- struction and Excavation Agreement makes no mention of gas utility work at all.2 In addition, the record does not reflect that the equipment enumerated in the Heavy Construction and Excavation Agreement as that oper- ated by employees represented by Local 282—trucks, trailers, euclids, turnapulls, and other equipment—is, in fact, equipment used to perform the truck driving at issue in this case. Rather, Asplundh Manager of Gas Operations Draghi testified that the equipment used to perform the disputed truck driving includes rack trucks, flat bed trucks, pickup trucks, dump trucks, and box trucks. We find that this factor favors an award of the disputed work to employees represented by Local 1049. 2. Employer preference and past practice Thomas Draghi, Asplundh’s manager of Gas Oper- ations and its labor relations representative, testified that the Employer prefers to assign the disputed work to its employees represented by Local 1049. Moreover, it is undisputed that employees represented by Local 282 have never performed the disputed work before, either for Asplundh or for its two corporate prede- cessors. Local 282 contends that the employer’s preference and past practice are mitigated by the apparent occa- sional assignment of the disputed work to employees not represented by Local 1049. The Employer responds that the occasional assignment of driving associated with gas line service work to non-Local 1049 employ- ees has occurred pursuant to the Gas Agreement, which permits the Employer to use non-Local 1049 employees when Local 1049 employees are unavail- able to drive. Local 1049 does not dispute this con- struction of the Gas Agreement. Moreover, Everett Lewis, Local 1049’s representative, testified that in ap- proximately January or February 1994, Local 1049 filed grievances resulting from the Employer’s assign- ment of the disputed driving outside the parameters of the Gas Agreement, and that Asplundh agreed to settle those grievances for approximately $11,000 in back- pay. The record reflects that to the extent that the Em- ployer has deviated from its otherwise consistent prac- tice of assigning the disputed work to employees rep- resented by Local 1049, the deviations have been gov- erned by the collective-bargaining agreement between Asplundh and Local 1049. Thus, we find that the fac- tor of employer preference and past practice favors an 636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD award of the disputed work to employees represented by Local 1049. 3. Area and industry practice Draghi testified that Asplundh as well as its two cor- porate predecessors have assigned the work in dispute to employees represented by Local 1049. He further testified that LILCO, which performs some of its own gas utility service work, utilizes employees represented by Local 1049 to do the driving associated with such work. Local 1049 Representative Lewis testified that Local 1049 represents employees of other area contrac- tors that perform the driving associated with com- parable gas line service work. Local 282 argues in brief that a local company called Bancker, which also performs gas line service work for LILCO, utilizes employees represented by Local 282 to do the driving associated with such work. In testimony, however, Lawrence Kudla, Local 282’s representative, conceded that Bancker does not employ workers represented by Local 1049. Kudla further con- ceded that Bancker is not comparable to Asplundh be- cause it is just initiating its service of gas lines 2 inches or smaller in diameter and that it does not per- form the work on the scale that Asplundh does. Ac- cordingly, an analysis of the area and industry practice favors an award of the work in dispute to employees represented by Local 1049. 4. Economy and efficiency of operations Draghi testified that out of an 8-hour shift, employ- ees represented by Local 1049 spend approximately 1 to 2 hours transporting to and from the jobsite all the workers, tools, material, and equipment necessary to service gas utility lines. Draghi further testified that for the remainder of the shift, the trucks remain idle at the jobsite while the employees represented by Local 1049 service the gas lines. Asplundh asserts that if it were to assign the disputed work to employees represented by Local 282, who are not trained or certified in the service of gas lines and whose labor contract does not permit such work, those employees would remain idle at the jobsite along with the trucks. Under such cir- cumstances, Asplundh asserts that its labor costs would increase significantly because it would have to pay a full day’s wages to employees represented by Local 282 and would still have to employ a full crew com- posed of employees represented by Local 1049 in order to complete the gas utility work. Local 282 does not dispute that if employees it rep- resents were assigned the disputed driving, employees represented by Local 1049 would still be necessary to perform the gas line service work and that the Employ- er’s labor costs would significantly increase. Instead, Local 282 asserts that employees it represents could be kept busy transporting materials and debris to and from the jobsite. As noted above, Draghi testified that there is little or no need for the supply of materials to or the removal of debris from gas utility jobsites. Based on the testimony presented, we conclude that this factor favors an award of the work to employees represented by Local 1049. 5. Relative skills and training The testimony of the representatives of all three par- ties indicates that employees represented by both Unions have commercial driver’s licenses and are trained to perform the disputed driving, and therefore meet the minimum criteria for performing such work. As noted above, however, only employees represented by Local 1049 have the requisite training and certifi- cation to perform the gas line service work that is cen- tral to the driving in question. Thus, this factor favors an award of the work in dispute to employees rep- resented by Local 1049. Conclusions After considering all the relevant factors, we con- clude that Asplundh’s employees represented by Local 1049 are entitled to perform the work in dispute. We reach this conclusion relying on Asplundh’s collective- bargaining agreement with Local 1049, Asplundh’s preference and past practice, area and industry practice, economy and efficiency of operations, and the relative skills and training of the employees involved. In mak- ing this determination, we are awarding the disputed work to employees represented by Local 1049, Inter- national Brotherhood of Electrical Workers, AFL–CIO, not to that Union or to its members. This determina- tion is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the fol- lowing Determination of Dispute. Employees of Asplundh Construction Corporation represented by Local 1049, International Brotherhood of Electrical Workers, AFL–CIO are entitled to per- form the truck driving related to work on natural gas lines that are 2 inches or less in diameter, to exca- vation, including asphalt patch work, and to restoration work (pipe trench creation and filling), for the Long Island Lighting Company.