Teamsters Local 216 (Granite Rock)

1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Building Materials and Construction Teamsters Local 216, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO' and Granite Rock Compa- ny. Case 20-CD-638 17 February 1988 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The charge in this Section 10(k) proceeding was filed 2 June 1987 by the Employer, alleging that the Respondent, Teamsters Local 216, violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with the object of forcing the Employer to assign certain work to employees it represents rather than to em- ployees represented by Teamsters Local 287. The hearing was held 30 July 1987 before Hearing Offi- cer Kay M. Hendren. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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 The Employer, Granite Rock Company, a Cali- fornia corporation, engages in the manufacture and wholesale and retail sale of concrete at numerous facilities in California, including San Jose and Red- wood City. During the 12 months preceding the hearing, the Employer purchased and received goods valued in excess of $50,000 directly from sources located outside California. We find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Teamsters Local 216 and Teamsters Local 287 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 15 concrete and asphalt plants in Northern California. Its largest ready-mix concrete plant is located in San Jose (in Santa Clara County); the drivers at that plant are repre- sented by Local 287, and are covered by a collec- 1 On 1 November 1987 the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change tive-bargaining agreement (the ACA Agreement) between several Teamsters local unions, including Locals 287 and 216, and the Aggregates and Con- crete Association, a multiemployer group. The San Jose plant is the only one of the Employer's plants that is covered by the ACA Agreement The Em- ployer also operates an asphalt plant in Redwood City (in San Mateo County); its spreader drivers at that facility are represented by Local 216 under a separate agreement. Santa Clara County is part of Local 287's jurisdiction, and San Mateo County is part of the jurisdiction of Local 216. Until December 1986, CAP Concrete, Inc. owned and operated two ready-mix concrete plants, one in Fremont and the other in Redwood City, next door to the''Employer's asphalt plant. CAP leased from the Employer the real property on which its Redwood City ready-mix plant was located. The ready-mix drivers employed by CAP at Redwood City were represented by Local 216 under the ACA Agreement. In December 1986, however, CAP ceased its operations in Redwood City under pressure from creditors and sold its Redwood City concrete plant and certain other assets (principally concrete mixer trucks) to the Employer. The Employer did not buy the Fremont plant, which also had been shut down, and it bought only 10 ready-mix trucks out of the 46 that were for sale. The agreement under which the sale and purchase of assets transpired provided explicit- ly that: The [Employer] expressly disclaims being bound by any collective bargaining agreement executed by [CAP Concrete], any promise or implied promise of further employment for any of [CAP Concrete's] employees, or any agreements with employees or prior employees executed by [CAP Concrete]. The Employer did not hire any of the CAP drivers previously represented by Local 216. After purchasing CAP's Redwood City plant, the Employer made extensive changes in that plant and truck shop; repainted the plant in the Employ- er's standard colors; removed CAP signs from the plant and replaced them with its own signs and logos; removed the CAP name from the trucks purchased from CAP and applied its own decals and logos to the trucks; and changed the sand and aggregates used in concrete production. The Employer does not station, or "barn," trucks at the Redwood City ready-mix plant; in- stead, it maintains and fuels the trucks at its San Jose plant. Drivers stationed in San Jose and repre- sented by Local 287 drive the trucks to Redwood City, where they are loaded and then driven out to _287 NLRB No. 125 TEAMSTERS LOCAL 216 (GRANITE ROCK) 1197 service customers. On 11 March 19872 the Em- ployer notified both Locals 287 and 216 that it in- tended to transfer permanently 15 of its "boost-a- load," four-axle trucks to Redwood City, where the trucks would be stationed and inaintained.3 When informed by the Employer of the planned transfer of equipment, Local 287 took the position that the Employer was contractually required to offer the San Jose drivers the opportunity to trans- fer to Redwood City with the trucks.4 Local 216, however, argued that the trucks would have to be transferred without drivers. Thus, at a meeting on 16 March attended by representatives of the Em- ployer and both local unions, Dallas Allen, secre- tary-treasurer of Local 216, warned that if the Em- ployer transferred drivers with the trucks, Local 216 would begin informational picketing. On 31 March, at a meeting between Bruce Woolpert, president of the Employer, and spreader drivers at the Redwood City asphalt facility, R. Fitzpatrick, president of Local 216, stated that he did not un- derstand where the talk about informational picket- ing came from, because as far as he was concerned Local 216 ought to strike the whole company. On 27 May, Woolpert received a letter from Fitzpatrick, dated the previous day, reiterating Local 216's position that the Employer should hire former CAP employees, and stating that because a reasonable settlement of the dispute appeared im- possible, Local 216 intended to picket the Employ- er in a "continuing effort to protect the former CAP employees " The letter went on to say that "This dispute can be resolved and the picketing will cease, if Granite Rock will make a reasonable offer concerning the employment of these individ- uals. . . . The sole purpose of the picketing is to obtain employment for the former CAP employ- ees." Also on 27 May, about 3:30 am, Kenneth Fer- guson, comanager and operations coordinator for the Employer's Redwood City and South San Francisco asphalt plants, observed 10 to 12 men carrying what appeared to be picket signs and "milling around" in the street near the entrances to the Employer's Redwood City concrete and as- phalt plants. The signs stated, "On Strike, Granite Rock Unfair to Local 216, Refuses to Hire Ex- CAP employees." According to Ferguson, the men with picket signs were not walking up and down 2 Unless otherwise specified, all dates are in 1987 8 As will be discussed infra, the trucks to be transferred were of a dif- ferent kind from that formerly used by CAP drivers represented by Local 216 4 Sec 2 of the ACA Agreement provides that if a signatory employer permanently transfers equipment from one Teamsters local jurisdiction to another in Northern California, the employees affected must be offered the opportunity to move with the equipment, according to seniority "in an organized manner," and there were no other employees working at either plant at that hour of the morning. Ferguson observed the proceedings for 5 to 10 minutes, and then called Woolpert and told'him what he had seen. Ferguson then went home, but Woolpert drove to the concrete plant. When he arrived about 4:40 a.m., no one else was at the scene B. Work in Dispute The disputed work involves the driving of ready-mix concrete trucks based at the Employer's Redwood City, California concrete plant. C. Contentions of the Parties The Employer contends that there is an active jurisdictional dispute between Locals 216 and 287 over which employees are entitled to drive the Employer's ready-mix trucks when those trucks have been transferred to its concrete plant in Red- wood City. The Employer further contends that there is reasonable cause to believe that Local 216 has violated Section 8(b)(4)(D) and that there is no agreed-on method for voluntary adjustment of the dispute. The Employer also contends that the work in dispute should be awarded to employees current- ly based at its San Jose plant (i.e., that those em- ployees should be allowed to transfer with the trucks to Redwood City), on the basis of the trans- fer provisions of the ACA collective-bargaining agreement, the Employer's past practice and pref- erence, the relative skills of the employees, econo- my and efficiency of operations, and area and in- dustry practice. Local 216 contends that the Employer is con- tractually bound to arbitrate the dispute; that there is no dispute cognizable under Section 8(b)(4)(D) as long as the Employer's equipment continues to operate out of San Jose; and that even if the driv- ers from the Employer's San Jose plant were to transfer to Redwood City, they would be under the jurisdiction of Local 216, and the questions that might arise at that point should be resolved under the grievance provisions of the collective-bargain- ing agreement. Local 287 contends that should the Employer permanently transfer trucks from San Jose to Red- wood City, its San Jose employees would be con- tractually entitled to transfer with the trucks on the basis of seniority. Local 287 agrees, however, with Local 216's contention that there is at present no jurisdictional. dispute between the two locals. D. Applicability of the Statute It is undisputed that, on 16 March, Local 216 Secretary-Treasurer Allen threatened the Employ- 1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD er with informational picketing if trucks with driv- ers were transferred permanently to Redwood City. On 31 March Local 216 President Fitzpatrick told Woolpert that, as 'far as he was concerned, Local 216 should strike the entire Company. On 26 May Fitzpatrick sent a letter to Woolpert announc- ing Local 216's intention to picket the Employer, with the explicit and sole purpose of obtaining em- ployment for former CAP employees, whom Local 216 represented. We find, on the basis of the entire record, that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated.5 We further find that there exists no agreed-on method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. First, we reject Local 216's suggestion that the Employer is obligated to arbitrate the dispute. Local 216 contends that, pursuant to the successor- ship provision of the collective agreement to which it, the Employer, and CAP Concrete were signato- ries, the Employer was required to continue to employ the CAP Concrete drivers.6 The Employ- er, however, expressly disclaimed any intention to be bound by the terms of any collective-bargaining agreement executed by CAP or by any promise of further employment for any of CAP's employees when it purchased the Redwood City concrete plant. Because it did not hire any of the CAP em- ployees represented by Local 216, and because it expressly disclaimed being bound by any collec- tive-bargaining agreement executed by CAP, the Employer is under no obligation to arbitrate the extent, if any, of its obligations to former CAP em- ployees. Howard Johnson Co. v. Detroit Local Joint Executive Board, 417 U.S. 249 (1974).7 Although Local 216 presented evidence that there is a proce- dure by which the executive board of the Joint Council of Teamsters for Northern California can resolve jurisdictional disputes between Teamsters locals, including Locals 287 and 216, there is no evidence that the Employer has agreed to submit the dispute to that process. The Employer is a party to this dispute, and no private adjustment mechanism may be deemed a voluntary agreement within the meaning of Section 10(k) unless the Em- ployer is a party to it as well. NLRB v. Plasterers Local 79 (Texas State Tile), 404 U.S. 116, 131 (1971). Accordingly, because there is reasonable cause to believe that Section 8(b)(4)(D) has been violat- ed, and because there exists no agreed-on method for the voluntary adjustment of the dispute within the meaning of Section 10(k), we find that the dis- pute is properly before the Board for determina- tion." 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 (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 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. s Local 216 denies that its activities in the early morning of 27 May constituted picketing Because, as noted above, we find reasonable cause to believe that Local 216's threats to picket the Employer violated Sec 8(b)(4)(D), Operating Engineers Local 478 (Utility Service), 172 NLRB 1877, 1879 (1968), we find it unnecessary to decide whether picketing ac- tually took place on 27 May 6 Secs 21 and 22(b) of the 1984-1987 ACA collective-bargaining agreement provided that the agreement would be binding on, inter alia, the successors and purchasers of the parties Sec 22(a) provided that em- ployees when employed by the individual employer as a result of the pur- chase of another firm should be integrated with the new employer's work force for the purposes of eligibility for various benefits Sec 22(a) thus apparently did not require a purchaser to hire the employees of the former employer ° Nor does any obligation to arbitrate with respect to the Redwood City concrete facility arise from the fact that the Employer is also signa- tory to the ACA Agreement By its terms, that agreement applies to the Employer only at its San Jose plant In this regard, we note that when, on 3 March, Local 216 filed a grievance under the ACA Agreement seeking to compel the Employer to hire its members to work at Red- wood City, the ACA responded on 30 March that it could not process the grievance under the ACA Agreement because the ACA represented the Employer only at its San lose plant, and not in San Mateo County (where Redwood City is located) Local 216 also argues that the Board should stay its hand in this case pending the outcome of an action filed by the Employer in the United States District Court for the Northern District of California, in which Local 216 contended that the Employer was obligated to arbitrate the 1. Certifications and collective-bargaining agreements The parties have stipulated that there are no Board certifications relevant to this case. As we have noted, the Employer expressly disclaimed being bound by any collective-bargaining agree- ment executed by CAP Concrete and did not hire any drivers represented by Local 216; accordingly, dispute We note that by order dated 24 September the district court held that the Employer had no duty to arbitrate Granite Rock Co v Bay Area Building Material Teamsters Local 216, 127 LRRM 2244 (N D Calif. 1987) 8 We find no merit in Local 216's assertion that there is no jurisdiction- al dispute within the meaning of Sec 8 (b)(4)(D) as long as the Employer continues to operate its equipment out of San Jose The Employer has clearly indicated its intention to transfer 15 trucks to Redwood City, that the transfer has not yet occurred does not negate the existence of a juris- dictional dispute Longshoremen ILWU Locals 8 and 40, 233 NLRB 459, 461 (1977) Nor does Local 216's assertion that if these San Jose drivers are transferred to Redwood City, they will become members of Local 216, have any bearing on this case The Board in 10(k) proceedings deter- mines which employees are entitled to perform certain work , not what labor organizations, if any, those employees will belong to TEAMSTERS LOCAL 216 (GRANITE ROCK) there are no collective-bargaining agreements that are directly applicable to the Employer's Redwood City concrete facility. However, the ACA collec- tive-bargaining agreement, which covers the em- ployees at the Employer's San Jose plant, requires the Employer to afford the drivers based in San Jose the opportunity to transfer with any trucks that are permanently relocated to Redwood City. We conclude, therefore, that the ACA collective- bargaining agreement, covering the Employer's San Jose facility, favors an award of the disputed work to employees represented by Local 287.9 2. Company preference and past practice The Employer has expressed a preference that the work in dispute be assigned to its employees currently based in San Jose. Although this factor is not entitled to controlling weight, we find that the Employer's preference favors an award of the work to employees represented by Local 287. The Employer introduced evidence indicating that on several occasions in 1987, when it trans- ferred trucks from one facility to another, it offered drivers the opportunity to transfer with the equip- ment. We find that the Employer's past practice favors an award of the work to employees repre- sented by Local 287. 3. Relative skills All the trucks that the Employer intends to transfer to its Redwood City concrete facility are large volume "boost-a-load" trucks that have a fourth axle for additional carrying capacity. The fourth axle is held against the road with hydraulic pressure. If too much pressure is applied, the truck may lose braking capacity, and may even become so unstable as to tip over. Consequently, drivers of such equipment must receive special instruction in its operation. The Employer's drivers based in San Jose have been trained to operate the "boost-a- load" equipment. CAP Concrete, by contrast, did not operate "boost-a-load" trucks at Redwood City, and there is no indication that its drivers 9 Indeed, as a signatory to the ACA Agreement, Local 216 would seem compelled to concede the significance of this factor 1199 were trained to operate such equipment. However, Woolpert testified that a journeyman driver with 10 or 15 years' experience would require only about 1 hour of training by a supervisor to learn how to operate "boost-a-load" equipment. Accord- ingly, although we find that the relative skills of the employees represented by Local 287 favor an award of the work to those employees, we do not attach great significance to this factor. Conclusions After considering all the relevant factors, we conclude that employees represented by Local 287 are entitled to perform the work in dispute. We reach this conclusion relying on the ACA collec- tive-bargaining agreement, and especially on its transfer provisions; the Employer's preference and past practice; and, to a minor degree, the relative skills of the employees. In making this determina- tion, we are awarding the work to employees rep- resented by Local 287, not to that Union or its members. The determination is limited to the con- troversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Granite Rock Company based at the Employer's San Jose, California ready-mix concrete plant, now represented by Teamsters Local 287, are entitled to perform the work of driving ready-mix concrete trucks if such trucks are transferred from the Employer's San Jose plant to its ready-mix plant at Redwood City, California. 2. Building Materials and Construction Team- sters Local 216 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Granite Rock Company to assign the disputed work to em- ployees represented by it. 3. Within 10 days from this date, Teamsters Local 216 shall notify the Regional Director for Region 20 in writing whether it will refrain from forcing the Employer, by means proscribed by Sec- tion 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.