Teamsters Local 952 (Westside Material)

TEAMSTERS LOCAL 952 (WESTSIDE MATERIAL) General Truck Drivers, Office, Food & Warehouse, Local 952, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and Westside Building Material Corporation; Martin Brothers Plastering Co. Case 21-CD-525 -- 8 July 1985 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN-DOTSON AND MEMBERS HUNTER AND DENNIS The charge in this Section 10(k) proceeding was filed 31 October 1984 by Westside Building Materi- al Corporation (Westside) and Martin Brother:, Plastering Co. (Martin Brothers), jointly the Em- ployers, alleging that General Truck Drivers, Office, Food & Warehouse, Local 952, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Teamsters 952) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in -proscribed activity with an object of forcing the Employers to assign certain work to employees it represents rather than to employees represented by Laborers' Local 300, Laborers'. International Union of North America, AFL-CIO (the Laborers). The hearing was held 3, 14, and 18. January 1985 before Hearing Officer Rebecca G. Torres. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On -the entire record, the Board makes the following find- ings. 1. JURISDICTION •Westside, a California corporation, is engaged in the construction industry as a supplier of building materials with a facility in Anaheim, California, where it annually purchases and receives goods valued in excess of $50,000 directly from suppliers located outside the State of California. • Martin Brothers, a California corporation, is engaged in the plastering. business in the construction -industry with a facility in Gardena, California; where it an- nually purchases goods valued in excess of,$50,000 directly from suppliers located outside the State of California. The parties stipulate, and we find, that the Employers are engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Teamsters 952 and the Laborers are labor or- ganizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE 1001 A. Background PCL is the general contractor of the Citicorp jobsite -located at Seventh and Figueroa Streets, Los' Angeles, California (herein called Citicorp job- site or project). Martin Brothers is the drywall sub- contractor for PCL at that site for the erection of drywall and related materials in the elevator shafts and corridors of the building. Since Martin Broth- ers began work at the Citicorp project it has uti- lized Westside as its supplier for the delivery and stocking of drywall. "Stocking" drywall is the process of removing the drywall and related mate- rials from the delivery trucks at the jobsite and placing it at the. location designated by the pur- chaser. Each purchase order between Westside and Martin Brothers states specifically the location, in- cluding floor, where the materials are to be deliv- ered. A "stocker" is the person who unloads the truck at the jobsite and distributes the material into the building. The delivery-is not considered com- plete and title to the material does not pass from Westside'to Martin Brothers until Westside places the - material, in good condition, at, the specific location(s) designated by Martin Brothers pursuant to its- purchase order and the materials are checked and accepted by a Martin Brothers representative. The manner in which 'the stocking is effected by Westside's employees involves the use of -various equipment, including forklifts, carts, pallet jacks, rollers, and slings to move the drywall from the truck to the area specified by Martin Brothers. Much of this equipment has been specifically devel- oped and/or refined by Westside for use by its stocker employees. Martin Brothers began work at the Citicorp job- site in about July 1984, utilizing the services of em- ployees represented by the Laborers, with whom they have a- collective-bargaining relationship, to assist other tradesmen in the installation of the drywall. Westside has historically utilized its own employees, who are represented'by Teamsters 952, to perform the functions involved in the delivery and stocking of drywall. About 15 August 1984, Westside began diywall delivery and stocking to the Citicorp jobsite utilizing its own employees. At this time, the Laborers approached a Westside em- ployee working there and claimed the stocking work above the third floor. Thereafter, a series of meetings ensued with representatives of various parties in attendance including,' inter alia, at one time or another, representatives from Teamsters 952, the Laborers, Westside, Martin Brothers, the Associated General Contractors, and PCL. These meetings were held during the" period August 275 NLRB No. 141 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through October 1984. During these meetings, both the Laborers and Teamsters continuously claimed the stocking work, 'the Laborers limiting their claim to that above the third floor. At one of the meetings, the Laborers stated it did not have stock- ers available to 'do the work from its hiring hall, but assured'Westside that men could be supplied to do the work from another. Laborers local. About this time the Laborers also told a representative of Westside that Westside should be using Laborers and should sign a labor agreement with the Labor- ers. Westside refused on the basis of its collective- bargaining agreement with Teamsters 952. On 24 or 25 October 1984 -Westside and Teamsters-952 had a meeting. Teamster 952's representative stated that stocking was-Teamsters work and, if Westside assigned any of this work, to. employees represented by the Laborers, Teamsters 952 would take. eco- nomic action, including picketing. against Westside -and Martin Brothers. This- threat was reaffirmed in a letter- dated 29 October 1984 sent by Teamsters 952 to the Employers and their legal counsel. - Both Unions have -continued to claim the stock- ing -work: At ,the- hearing, Teamsters- 952 withdrew its threat.to picket and no.economic action has, in fact, taken place. On 1 October,, 1984 the Laborers requested, arbitration, pursuant to its collective-bar- gaining agreement- with Martin Brothers', over Martin ,Brothers' , "mis-assignment of - work,' and "breach of subcontracting clause" . specifying -the site of the dispute as `,Los Angeles, California." B. The Work in Dispute As clarified., at the, hearing, and in the parties' posthearing briefs, the work in dispute is,limited to the assignment of stocking work, above the first three floors , of- the ;Citicorp project. ;The parties: concede that, stocking, work to and including the third floor is "Teamsters" work.. The Employers, however,. urged ; at the hearing and in their post- hearing':brief that. the scope •of the dispute should be broadened, to include stocking above the third floor.-on, all. present,, and future,,projects involving Westside and Martin ,Brothers.. In: support of their regarding the assignment of this work - was fully litigated at the hearing. - With respect to the Employers' contention, the notice of hearing2 refers solely to the Citicorp job- site. It does not appear, nor do the Employers con- tend, that they filed any motion with the Regional Director prior to hearing which would have ex- panded the scope of the work in dispute so as to provide for the inclusion of other projects, present or future, conducted among the Employers. While the Employers did raise this issue at the com- mencement of the hearing, both Teamsters 952 and the Laborers objected to the Employers' attempt to expand the scope of the `disputed work and the hearing officer's rulings were consistent with the notice of hearing limiting the dispute to the Citi- corp project only. The Board has in the past grant- ed a' broad award encompassing the geographic area in which an employer does business where ju- risdictions of-the competing unions coincide and in circumstances where there is an indication that the dispute is likely to recur. -Cf. Iron' Workers Local 426 .(Angelo lafrafe Co.), 267 NLRB- 627, 630 (1983). However, the record evidence herein af- firmatively establishes that this dispute has not arisen in the recent past nor does it establish that there is substantial likelihood that it will recur. Ad- ditionally, while the Laborers collective-bargaining agreement purports to extend its jurisdiction to the 11 southern counties of California, including Los Angeles, the Teamsters collective-bargaining agree- ment with Westside does not define its jurisdiction nor did the record evidence specifically reflect the territorial jurisdiction it encompasses. Thus, to the extent, as the Laborers contends, that a 1973 juris- dictional agreement between the Laborers and Teamsters Joint Council #42 his consistently been adhered to by other locals of the Teamsters whose territorial jurisdiction overlaps that- of the Labor- ers, it does not appear likely that the dispute will recur. Thus, it appears that the warrant to grant a broad -order- herein has not been established. Ac- position, the (Employers argue. that. the Laborers',. cordingly, we find that the work in dispute in- and Teamsters;:952's • demands for ;stockings ,work volves drywall -stocking work to points above the above the third, floor, by--virtue of their-contractual,; third floor, of the Citicorp project on Seventh and claims, extend to,; all high-rise projects- involving Figueroa Streets, Los Angeles, California.- Team- Westside and Martin Brothers,- both present and - - future,,,and not,, merely, the. Citicorp, project: The 2 The-instant case was initially consolidated for hearing along with a Employers point out that all. stocking work ,is Ares- charge involving the International Union of-Operating Engineers, Local No'12 (21-CD-526) The dispute, as defined in the notice of hearing, ently assigned to Westside's Teamsters employees. was' described 'as "Drywall stocking work, including but not limited to The Employers 1 further. contend ,,that the question forklift operating after the first drop of material on the jobsite, at the Ci- ticorp project at 7th and Figueroa Streets, Los Angeles, California " The charge against the Operating Engineers was, however, resolved prior to Martin Brothers is signatory to the Short Form Agreement with the hearing and severed from the instant proceeding and those portions of Southern California Distnct Council of Laborers and its affiliates, includ- the notice of hearing as they related to Case 21-CD-526 were with- mg' Laborers 300 drawn TEAMSTERS LOCAL 952 (WESTSIDE MATERIAL) sters Local 988 (Sullivan Transfer), 240 NLRB 1291, 1293 (1979). C. Contentions of the Parties In 1973 the Laborers entered into an agreement with Teamsters Joint Council #42, of which Team- sters 952 is a member , whereby all stocking of drywall above the third floor in high-rise buildings would be performed by the Laborers. This 1973 agreement was reaffirmed by Teamsters Joint Council #42 on 29 November 1984 in the course of the instant dispute . The Laborers contends that this agreement is dispositive of the instant dispute. The Laborers also claims the disputed work based on their collective-bargaining agreement with Martin Brothers. Additionally, the Laborers argues that to the extent that the Employers contend that the dis- puted work has been performed for years by West- side's Teamsters employees, any absence of protest by the Laborers does not constitute a waiver by the Laborers of its agreement with Teamsters Joint Council #42 since it had no knowledge of this practice by the Employers prior to the instant situ- ation. Thus, the Laborers contends that the 1973 agreement is controlling as to the work in dispute and, therefore, that the stocking of drywall above the third floor, at Citicorp belongs to employees represented by the Laborers. Finally , the Laborers contends that the charge is moot and the matter should be dismissed since , at the hearing, Team- sters 952's representative withdrew its threat to picket, stated that it would utilize the grievance procedure in its collective-bargaining agreement with Westside if the dispute continued , and never in fact engaged in any economic activity. The Employers. assert that the award of the dis- puted work to Westside employees represented by Teamsters 952 is appropriate in view of the collec- tive-bargaining agreement which exists between Westside and Teamsters 952,3 the Employers' pref- erence and Westside's past practice of almost 40 years of assigning the work to its Teamsters-repre- sented employees, area practice, efficiency and economy of operation, and skills possessed by Westside's Teamsters employees. , The Employer further contends that, since neither Westside nor Martin Brothers were parties to the 1973 agree- ment, they are not bound by it . Finally, Westside contends that it is a material supplier and is not en- gaged in the construction industry and thus the La- borers collective-bargaining agreement with Martin 9 The collective-bargaining agreement provides for exclusive recogni- tion of Teamsters 952 as the collective-bargaining representative of van- ous classifications of employees employed by Westside including "stock- ers (lobside) " 1003 Brothers, with respect to subcontracting, does not apply to it. Teamsters 952 contends4 that the disputed work should be assigned to Westside employees repre- sented by it based on its collective-bargaining agreement with Westside, past practice, and its contention that it is not bound by the 1973 agree- ment. - D. Applicability of the Statute Before the Board may proceed with a determina- tion of a dispute pursuant to Section 10(k). of the Act, if must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D ) has been violated and (2) there is no agreed-upon method for the voluntary resolution of the dispute. With respect to (1) above, the record discloses that, since August 1984, both the Laborers and Teamsters 952 have been claiming the work in dis- pute. Several meetings were held among various-bf the parties involved in an attempt to reach a reso- lution to the disputed claims. When no such resolu- tion was, forthcoming, Teamsters 952's business agent informed Westside, on 24 or 25 October 1984 and subsequently the Employers and their legal counsel by letter dated 29 October 1984, that any assignment of the disputed work to another union by the Employers involved would cause Teamsters 952 to take economic action including ' picketing against the Employers in order-to retain the work.5 Accordingly, we are satisfied that reasonable cause exists to believe that Section 8(b)(4)(D) has been violated. With respect to (2) above, it is clear, from the record as a whole, that there is no agreed-upon method for the voluntary resolution of this dispute. While refusing to stipulate to the matter; the La- borers admitted (and the other parties stipulated) that there is no- agreed-upon method to which all parties are bound for resolving jurisdictional dis- putes. The Laborers argues, however, that there is a jurisdictional-dispute-resolution mechanism in effect between Teamsters 952 and the Laborers by virtue of the 1973 jurisdictional agreement. While the 1973 agreement presumes to award the disput- ed work involved herein to the Laborers and to extend its coverage to Westside, there is no evi- dence that Westside has at any time agreed to be 4 This contention is based on its position as stated at the hearing and testimony of its representative, -Scott Teamsters 952 did not submit a posthearing brief s Contrary to the Laboiers contention, the instant case is not made moot by the subsequent retraction of these threats: In so finding, we note that the Teamsters retraction was not made until the hearing and that it continues to claim the work in dispute In these circumstances, we find that there is reasonable cause to believe Sec 8(bX4)(D) has been violated and that the dispute is not moot 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bound by this agreement, and neither Martin Brothers nor Westside has ever followed its work assignment provisions vis-a-vis the type of work in- volved herein. Additionally, the Laborers argues that there is an arbitration provision in the collec- tive-bargaining agreement between Martin Brothers and the Laborers- which the Laborers have at- tempted to invoke which would, if successful, re- solve the dispute between Martin Brothers and the Laborers. However, the Teamsters and Westside would not be bound by this resolution. To consti- tute an agreed-upon method for settlement, a pro- cedure must bind all parties to the_ dispute, includ- ing the employer.6 Further, Teamsters 952 has con- tinued to, claim the work in dispute in the face of the 1973 agreement without sanctions - from its parent organization for doing. so. Thus it is clear that there-is no agreed-upon method for the resolu- tion of this dispute inasmuch as not one of the so- called dispute resolution mechanisms involved herein- binds all parties involved. Accordingly, - we find there exists no agreed-upon method of volun. tary adjustment of the dispute within the meaning of Section 10(k) of the Act. NLRB v. Plasterers Local 79- (Texas State Tile); 404 U.S. 116' (1971); Teamsters Local 170,'240 NLRB '649, 650',(1979). Thus, 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 af- firmative award.,of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 ((7olumbia 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 bal- ancing the factors involved in a particular case. Machinists Lodge 1743 ,(J. A. Jones Construction), 135 NLRB 1402,(1962). The following factors are- relevant in making the determination of this dispute. 1. C ertificatio'ns and collective-bargaining agreements The record does not reflect whether either of the labor organizations involved herein have been cer- tified by the Board to represent the employees of Westside or Martin Brothers. However, Westside has been signatory to a collective-bargaining agree- ment with various Teamsters Locals since the late 1940s or early 1950s..Westside has employed stock- ers'-since about 1959. However, it- was not until -- O 'NLRB v Plasterers Local 79 (Texas State Tile), 404 U S 116 (1971), Teamsters Local 170 (Henley-Lundgren Co), 240 NLRB 649, 650 (1979) 1974 that the, specific classification for "stocker (jobsite)" was added to its collective-bargaining agreement with Teamsters 952. All of the collec- tive-bargaining agreements entered into by West- side and Teamsters 952 since 1974 have included that classification. This classification was initially inserted into the collective-bargaining agreement at the Teamsters' insistence in 'order to protect their jurisdiction over stocking work on all jobsites and all. floors-All stocking work performed on behalf of Westside has historically been accomplished by its Teamsters-represented employees. - Martin • Brothers and the Laborers are also par- ties to a collective-bargaining agreement. This agreement provides that the Laborers shall perform "stocking and distribution of drywall material after it has been delivered to the jobsite." Martin Broth- ers does not employ any specific employees known as stockers and, despite numerous pages in its col- lective-bargaining agreement listing various classifi- cations of employees, there is no specific classifica- tion of "stocker" listed in the agreement between Martin Brothers and the Laborers. The Laborers collective-bargaining agreement with Martin Broth- ers provides Martin Brothers will not engage in subcontracting of unit work. A subcontractor therein is defined as "any person . . . firm or cor- poration, holding. a valid state contractor's license where required by law . ."8 However, it ap- pears that Westside'is a supplier to and not a sub- contractor of Martin Brothers since Westside is not required to possess a state contractors license for the work in dispute. We find that the collective- bargaining agreements 'herein do not favor an award of'the disputed work to either group. 2. Employer's preference and past practice Westside has employed Teamsters-represented employees, including stockers, to perform its deliv- ery and stocking work since the late 1940s or early 1950s. These employees have always performed Wes'tside's delivery and stocking work for various employers, including Martin Brothers at' the Citi- corp jobsite. Martin Brothers has used Westside for supplying and stocking its' drywall on numerous projects since the early 1970s. Both Martin Broth- ers and Westside representatives testified that they preferred to have Westside's Teamsters-represented Negotiations at that time involved- a multiemployer situation with several Teamsters locals including Teamsters 952 - 8 On 1 October 1984 the Laborers filed a request for arbitration with the Federal Mediation and Conciliation Service with respect to its dis- pute with Martin Brothers The dispute alleged a violation of the collec- tive-bargaining agreement concerning "breach of subcontracting clause" and "misassignment of work," listing the sites of the dispute as Los An- geles, California There is no indication in ,the record as to -the status of this request TEAMSTERS LOCAL 952 (WESTSIDE MATERIAL) employees perform the disputed work rather than the Laborers. Westside stated that its preference was based on the fact that its Teamsters-represent- ed employees have specialized training and skills, that Westside considers stocking part of the contin- uous delivery process in that one set of employees can deliver and stock the supplies at the jobsite, and that Westside's Teamsters-represented employ- ees are familiar with all of the specialized equip- ment developed and used by Westside in perform- ing stocking work. Martin Brothers based its preference for West- side's Teamsters-represented employees performing the stocking work on, inter alia, the fact that it does not have to worry about delivery problems or damage to the product when Westside employees perform the work. Martin Brothers has had prob- lems using certain other suppliers whose employees are represented by the Laborers for stocking work and thus has limited the use, of these other compa- nies to small jobs. Approximately 99 percent of the stocking work done for Martin Brothers on high- rise projects is performed by Teamsters-represented employees, including those employed by Westside. There was testimony from both Westside and Martin Brothers' representatives that they did not care what labor organization represented Westside employees as long as it was Westside's employees that performed the work. From this the Laborers argues that Westside could employ employees it represents instead of employees represented by the Teamsters to perform the disputed work. However, it is undisputed that Westside's employees are in fact represented for the purposes of collective bar- gaining by the Teamsters and not the Laborers. Thus, it is clear that this factor favors the assign- ment of the disputed work to Westside's Team- sters-represented employees. 3. Area and industry practice The evidence in this area is mixed. It appears from the record that several employers have used Teamsters-represented employees to perform work of the type in dispute and that at least one employ- er has used Laborers-represented employees to per- form stocking work. In 1973 Teamsters and Labor- ers attempted to resolve between themselves issues of this nature by entering into an agreement where- in stocking above the third floor was awarded to the Laborers. While it is clear that a dispute regarding this work has not arisen since the 1973 agreement, the Laborers argues that this was because it had no knowledge, heretofore, that Teamsters, and specifi- cally Teamsters 952, was acting contrary to the 1973 agreement. Laborers argues that because the 1005 Teamsters-represented employees apparently do a great deal of their stocking work after regular la- borer hours, they had no way of knowing that Teamsters 952 had in fact been violating the 1973 agreement until'the Citicorp project. In any event, the record is not sufficiently developed to ascertain area- and industry practice. Accordingly, we find that this factor .does not favor an award of the work to either group of employees. 4. Employee skills The evidence shows that Westside has a 1-year training program for its stocker employees. The program teaches the employees 'not only skills in- volved in stocking work, but also teaches them to run specialized equipment which Westside has de- veloped over the years to assist its employees in performing stocking work in high-rise buildings. The Laborers, in its posthearing brief, concedes that Westside's employees are the ones that possess the necessary skill and training to do the disputed work. Moreover, the Laborers representatives testi- fied that they did not have any skilled stockers available to do the work. According to Westside's representative, it would take Westside approximate- ly 1 year to train laborers to perform the skills nec- essary for stocking work. Clearly this factor war- rants awarding the disputed work to • Westside's Teamsters-represented employees. 5. Economy and efficiency of operations The evidence shows that initially it is Westside's Teamsters-represented employees who are respon- sible for loading the drywall onto the' Westside's trucks and thereafter unloading the drywall at the delivery site. Under the present assignment of the disputed work, employees represented - by • the Teamsters perform every function involved in! the delivery and stocking of drywall for Westside's warehouse or suppliers to the location specified in Martin Brothers' purchase order. The Laborers does not claim that it• should be entitled to the work of unloading the trucks or that the Team- sters-represented employees should not be allowed to stock the drywall up to and including the third floor. Rather, at the point that the material is to be moved beyond the third floor of a high-rise, the Laborers claims the Teamsters-represented employ- ees should cease performing the work and the La- borers-represented employees commence stocking it to the appropriate location. The evidence shows that Westside sometimes. stocks high-rise and low- rise buildings during the day and, with respect to high-rise buildings, performs stocking work above and below the third floor during the same period. Westside's president testified that it would be more 1006 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD expensive and wasteful to have to employ two crews: Laborers-represented employees to stock above the third floor and Teamsters-represented employees to do the loading, unloading, and stock- ing on the first three floors. Westside's representa- tive stated that this would create scheduling prob- lems and could result in extra unneeded and/or un- productive employees. For example,-if the employ- ees represented by the Teamsters were hired for delivery and stocking to points on the third floor and below, and employees represented by the La- borers above the third floor, this could result in long periods where certain groups of employees would remain idle while waiting for more work. Accordingly, cost and efficiency clearly favors an award of the disputed work to the employees rep- resented by the Teamsters. Conclusions After considering all the relevant factors, we conclude that employees represented by Teamsters 952 are entitled to perform the work in dispute. We reach this conclusion relying on employer prefer- ence and past practice, employee skills, and econo- my and efficiency of operation. In making this de- termination, we are awarding the work to employ- ees represented by Teamsters- 952, not to that Union or its members. The determination is limited to the controversy that gave rise to this proceed- ing. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of -Dispute. - Employees of Westside Building Material Corpo- ration represented • by General Truck Drivers, Office, Food and Warehouse, Local 952, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America are enti- tled to perform drywall stocking work to points above the third floor at the Citicorp project at Sev- enth and Figueroa Streets, Los Angeles, California.