Local 542, Operating Engineers

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 542, International Union of Operating Engi- neers, AFL-CIO and Georgia Pacific Corpora- tion and Local 513, Teamsters, Chauffeurs, Warehousemen and Helpers of America, Inde- pendent. Case 4-CD-504 November 28, 1980 DECISION AND DETERMINATION OF DISPUTE BY MF.MBERS JENKINS, PENELLO, AND TRUESDALE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Georgia Pacific Corporation, herein called the Employer, alleging that Local 542. International Union of Operating Engineers, AFL-CIO, 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 its members rather than to employees represented by Local 513, Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Independent. Pursuant to notice, a hearing was held before Hearing Officer John V. Gabrick on September 8, 1980.1 All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence hearing on the issues. Thereafter, the Em- ployer filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds them free from prejudicial error. The rulings are hereby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, a Delaware corporation with a facility lo- cated in King of Prussia, Pennsylvania, engages in the manufacture and supply of building construc- tion materials. During the past year, a representa- tive period, the Employer purchased and received at its King of Prussia facility goods valued in excess of $50,000 directly from points located out- side the Commonwealth of Pennsylvania. Accord- ingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and I All events occurred in 1980, unless otherwise indicated (7) of the Act, and that it will effectuate the pur- poses of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 542, International Union of Operating Engineers, AFL-CIO, and Local 513, Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independ- ent, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Since 1972, the Employer has used boom trucks to deliver and unload its building components whenever the drop site designated by the customer is within 35 feet of the ground.2 At all times rele- vant to this dispute, it has used the services of em- ployees represented by Teamsters Local 513 both to drive the boom trucks from its plant to con- struction sites and to operate the booms at the site in order to hoist the components to the floor at which they will be erected. Boom truck drivers and helpers are paid under the wage classification rate specified in the current collective-bargaining agreement between the Employer and Teamsters Local 513. The Employer has had a collective-bar- gaining relationship with the Union since 1957 and has used employees represented by the Teamsters in its hoisting operations since it began operating boom trucks. The Employer has never bargained with Operating Engineers Local 542 or employed workers represented by that Union. Prior to the events giving rise to this dispute, the Employer contracted with United Dry Wall Cor- poration to supply drywall material and metal sup- port brackets to the latter's Bamberger's Depart- ment Store construction project in King of Prussia, Pennsylvania. In accordance with its past business relations with the Employer, United Dry Wall Corporation designated delivery of the Employer's product within the building, on the first, second, and third floors. Deliveries were to begin in mid- July, and the Employer's regular employees were to drive the components to the construction site and then perform the hoisting work with equip- ment built into the boom trucks used to transport the material from the Employer's manufacturing fa- cility. T2 he Employer's boom trucks do not have hoisting capacity above 35 feet. When its products are designated for use at higher levels, the build- ing components are delivered to the construction site on flatbed trucks, and the Employer does not assume responsibility for unloading or hoist- ing them. In this case, the building under construction comprised only three stories, and the Employer's boom trucks had the hoisting capacity necessary for delivery inside the building at any designated floor. 253 NLRB No. 61 482 LOCAL 542, OPERATING ENGINEERS On July 16, one of the Employer's teamster driv- ers attempted to make a delivery to the second floor of the Bamberger's store under construction. The delivery was interrupted by William Mitchell, a shop steward for Operating Engineers Local 542, who claimed the hoisting work for employees rep- resented by his Union and stated that the Operating Engineers would not permit any delivery to be made to the second or third story of the building. The Employer's employees were, however, permit- ted to finish the delivery upon which they were then engaged. On July 18, substantially the same sequence of events occurred. Patrick Gillespie, a business agent and vice president of Operating Engineers Local 542, stopped the Employer's teamster employees from delivering building materials to the designated second-floor drop site. On that same day, and again on July 25, Gillespie communicated the Operating Engineers claim to all hoisting work above the ground floor to the Employer's sales manager, Richard Ketterer, and to James Sparks and Robert Williams, supervisors and principals of United Dry Wall Corporation. It appears that between July 18 and August 5 the Employer made no further deliv- eries to the Bamberger's project. Pursuant to a con- sent decree issued on August 5 by the United States District Court for the Eastern District of Pennyslvania, the work in dispute is presently being performed by employees represented by Teamsters Local 513. B. The Work in Dispute The work here in dispute involves the hoisting3 of drywall and metal support brackets for delivery above the ground floor level of a construction site in King of Prussia, Pennsylvania, where Bam- berger's Department Store is building a new facili- ty. C. Contentions of the Parties The Employer contends that the Board should award the work in dispute to its employees who are represented by Teamsters Local 513, based on its collective-bargaining agreement with that Union; area, and employer practice; relative skill and safety factors; economy, efficiency, and em- ployer preference; and the previous Board deci- sions in Local 50, International Union of Operating Engineers, AFL-CIO (Components, Inc.), 197 3 The notice of hearing issued to the parties by the Acting Regional Director for Region 4 characterized the work in dispute as the unloading of drywall At the hearing the parties did not stipulate the work in dis- pute, but the record clearly establishes, and counsel for Operating Engi- neers conceded, that Operating Fngineers claims only the hoisting work to be done above the ground floor and makes no claim to the unloading or delivery of building components at the ground floor level NLRB 569 (1972), and Local 965, International Union of Operating Engineers, AFL-CIO (Twin-State Gang-Nail Structures, Inc.), 249 NLRB 894 (1980). The Employer also argues that it is not a party to. and therefore is not bound by, the purported 1969 interunion agreement between the Teamsters and the Operating Engineers Internationals. At the hearing, Teamsters Local 513 took the position that the work in dispute should be award- ed to employees whom it represents based on its collective-bargaining agreement with the Employ- er, past practice, employer preference, area prac- tice, efficiency, economy, and relative skills. The Teamsters relies on Twin-State Gang-.'ail Struc- tures, Inc.. supra, in support of this position. At the hearing, Operating Engineers Local 542 maintained that the work in dispute should be awarded to employees whom it represents based on the Union's jurisdictional history and on the pur- ported 1969 agreement between Teamsters and the Operating Engineers, which grants the disputed work to employees represented by the Operating Engineers. D. Applicability of the Statute Before the Board may proceed with the determi- nation of a 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 dis- pute. At the hearing the parties stipulated that on July 18 Patrick Gillespie, an agent of the Operating En- gineers, stopped the Employer's teamsters from de- livering drywall to the second floor of the con- struction project. The petition for temporary in- junction filed by the Acting Regional Director for Region 4 on August I in Federal district court al- leged with greater particularity that on July 18 Gil- lespie threatened the teamsters with unspecified re- prisals if they continued to unload the material and that, as a result, the Employer's sales manager in- structed the teamster drivers to return the undeliv- ered drywall to the Employer's warehouse until the dispute was resolved. It thus appears that deliv- ery of drywall to the construction site was halted by Operating Engineers Local 542 on July 18 and did not resume until August 5, the date upon which the Federal district court issued a decree, pursuant to the consent of the Acting Regional Di- rector and Operating Engineers, enjoining the Op- erating Engineers from attempting to cause further work stoppage among the Employer's employees. In the context of a jurisdictional dispute, the Board need not find that a violation did in fact 483 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occur, but only that there is reasonable cause to be- lieve that there has been a violation. Based on the record as a whole, we find that there is reasonable cause to believe that Operating Engineers Local 542 violated Section 8(b)(4)(D) of the Act. We further find that there is no agreed-upon method to which all parties are bound for the vol- untary adjustment of this dispute. At the hearing the Operating Engineers contended that the parties are bound by a 1969 agreement between the Inter- nationals of the Teamsters and the Operating Engi- neers that assigns work similar to the disputed work to the employees represented by the Operat- ing Engineers. However, the Employer is not a party to that agreement, the collective-bargaining agreement between the Employer and Teamsters Local 513 makes no reference to the interunion agreement, and there is no evidence to show that the Employer is otherwise bound by the interunion agreement. Therefore we find that the 1969 agree- ment does not constitute an agreed-upon method for the voluntary resolution of this dispute.4 No party contends, and the record does not establish, that there exists any other agreed-upon method for the voluntary adjustment of the dispute that would bind all parties. Accordingly, we find that this dis- pute is properly before the Board for determination under Section 10(k) of the Act. 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 relevant fac- tors.5 The Board considers that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience in weighing those factors.6 The following factors are relevant in re- solving the dispute before us: 1. Certification and collective-bargaining agreements Neither of the labor organizations involved in this dispute has been certified by the Board as the exclusive collective-bargaining representative of the Employer's employees in the appropriate unit. However, the Employer and the Teamsters have maintained a collective-bargaining relationship since 1957 and are presently parties to a contract that covers the employees who have been perform- ing the work in dispute since 1972. Although the current contract does not specifically address the 4 See, e g.. Tin-State Gang-Nail Structuresv Inc.. supra. iL.R., . v Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers. AFL-CIO Colum- hia Broradcasing SyvstensJ. 364 U S 573, 579 (1961). International 4sociation of Machinists. Lodge No. 1743, AFLCI ( A Jons Consiruction Company). 135 NLRB 1402 (1962). disputed hoisting work, testimony adduced at the hearing revealed that employees who operate the booms have been paid an additional 50 cents an hour since 1972. The Employer has no employees represented by Operating Engineers and has never had a collective-bargaining agreement with that Union. Accordingly, we find that the contractual relationship between the Employer and Teamsters weighs in favor of assigning the disputed work to employees represented by Teamsters. 2. Employer and area practice The Employer began to use boom trucks for de- livery and hoisting of its building components in 1972 and since that time has consistently assigned operation of the booms to its employee drivers and helpers, who are represented by Teamsters. The Employer presented undisputed testimony that its unionized competitors in a five-county area use similar equipment and assign hoisting work to their employees who are represented by Teamsters locals. Operating Engineers testified that no juris- dictional dispute over such hoisting work had ever arisen before. Accordingly, we find that company and area practice favor assignment of the disputed work to employees represented by Teamsters. 3. Relative skills, economy, and efficiency The record establishes that the Employer trains its employees for 6 months to I year in the oper- ation of the boom trucks and that employees repre- sented by Teamsters therefore possess the skills necessary to perform the disputed work safely and efficiently. The Operating Engineers presented no evidence showing that employees whom it repre- sents possess similar skills in the operation of boom trucks. Furthermore, the Employer testified with- out contradiction that the economy of operation that it derives from using employees who can both drive the dual-purpose trucks and operate the hoists would be lost if it were required to use the services of an additional employee whose sole function was to perform the hoisting. We find that the factors of skill, efficiency, and economy of op- eration favor assignment of the disputed work to employees represented by Teamsters. 4. The interunion agreement Operating Engineers introduced into evidence a 1969 agreement between the International Brother- hood of Teamsters and the International Union of Operating Engineers, which provides that the oper- ation of hoisting equipment attached to trucks comes within the jurisdiction of the Operating En- gineers when the equipment is used for the purpose of hoisting materials into place or on to scaffolds 484 LOCAL 542, OPERATING ENGINEERS or lowering materials into place. It is not clear whether the terms of the agreement properly apply to the work here in dispute.7 In any event, we do not accord this factor great weight in view of the Employer's cntrary past practice since 1972, the absence of any reference in the Employer's collec- tive-bargaining agreement with the Teamsters to the interunion agreement, the absence of evidence that the Employer otherwise has consented to be bound by the agreement, and the absence of evi- dence that the agreement is still in effect.8 5. Employer assignment and preference The Employer has assigned the disputed work to its Teamsters-represented employees since 1972 and has indicated that it is satisfied with their perform- ance and wishes for them to continue to operate its boom trucks. Thus the factors of employer assign- ment and preference favor awarding the disputed work to employees represented by Teamsteis. Conclusions Upon the record as a whole, and after full con- sideration of the relevant factors, we conclude that the Employer's employees who are represented by Teamsters Local 513 are entitled to perform the work in dispute. We reach this conclusion because the Employer's assignment of the disputed work to its Teamsters-represented employees is consistent with its preference, past practice, and collective- bargaining relationship with Teamsters Local 513, and with area practice; because the employees rep- resented by Teamsters Local 513 possess the skills necessary to perform the work; and because assign- 7 The record indicates that the Employer does not hoist the material into place but merely delivers it to the designated floor inside the build- ing, pnmanly in order to protect the perishable drywall from the ele- ments. " See Twin-State Gang-Nail Structures. Inc., supra at 572. Components. Inc., supra at I ment to employees represented by Teamsters pro- motes efficiency and economy of operation. We shall therefore award the work in dispute to those employees of the Employer represented by Team- sters Local 513, but not to that Union or its mem- bers. Our present determination is limited to the particular dispute that gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the fol- lowing Determination of Dispute: 1. Employees of Georgia Pacific Corporation who are currently represented by Local 513, Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, are entitled to perform the operation of the Employer's boom trucks to hoist building material manufactured by the Em- ployer to the second and third floors of the con- struction project of Bamberger's Department Store in King of Prussia, Pennsylvania. 2. Local 542, International Union of Operating Engineers, AFL-CIO, is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force or require Georgia Pacific Corporation to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 542, Interna- tional Union of Operating Engineers. AFL-CIO, shall notify the Regional Director for Region 4, 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 disput- ed work in a manner inconsistent with this determi- nation. 485