Teamsters, Chauffeurs And Helpers, Local Union No. 50

68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Teamsters, Chauffeurs and Helpers, Local Union No. 50, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO' and Schnabel Foundation Co. and Local 520, Inter- national Union of Operating Engineers, AFL- CIO. Case 14-CD-784 June 15, 1989 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The charge in this Section 10 (k) proceeding was filed January 20, 1988, by the Employer, alleging that the Respondent, Teamsters Local 50, 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 employees whom it represents rather than to employees of the Employer represented by Local 520, International Union of Operating Engi- neers; Laborers International Union, Local 925; and Southern District Council of Carpenters, Local 1361, respectively. The hearing was held March 2, 1988, before Hearing Officer Keltner W. Locke. Thereafter, the Employer and Teamsters Local 50 filed briefs. The National Relations Board has delegated 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. I. JURISDICTION The Employer is a District of Columbia corpora- tion with its principal offices in Bethesda, Mary- land, and a regional office in Cary, Illinois. During the calendar year 1987, in the course and conduct of its business operations, it purchased and received goods and materials valued in excess of $50,000, which goods and materials were shipped directly to the Cary, Illinois facility and to the Employer's Illinois jobsites from points outside the State of Illi- nois. The parties stipulate , and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties further stipulate, and we find , that Team- sters Local 50, Operating Engineers Local 520, La- borers Local 925, and Carpenters Local 1361 are 1 On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change. labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute About January 1, 1988, the Employer com- menced operations as the general contractor pro- viding structural work for the installation of a tie- back retaining wall on Illinois Route 3 near Ches- ter, Illinois, under contract with the Illinois State Department of Transportation. The Employer con- ducted a prejob conference regarding work assign- ments with representatives of the various craft unions. Stan Bussen, Teamsters Local 50 business representative, testified that no Teamsters Local 50 representative was present because no representa- tive was available at the time. Pursuant to the prejob conference, the Employer assigned to its employees represented by Laborers Local 925 the work of fueling equipment, bringing water to the jobsite, and carrying their tools from point to point at the jobsite . The Employer as- signed to its piledrivers, who are represented by Carpenters Local 1361, the work of moving their tools, including welding equipment , from place to place on the jobsite. Additionally, the Employer assigned a crane operator, represented by Operat- ing Engineers Local 520, to pick up heavy equip- ment, including welding equipment , and transport it from point to point at the jobsite. On January 18, 1988,2 pickets appeared at the jobsite with signs stating "Notice to the Public, Schnabel Foundation Company does not have a contract with Teamsters Local 50. We have no dis- pute with any other employer." Pickets were present at the jobsite on January 18 and 19 and the morning of January 20. During this period the Em- ployer performed no work because of the picket- ing. The Employer's project superintendent, John C. Allport, testified that he saw Bussen at the picket- ing and that Bussen explained the picketing by stat- ing, "You're doing our work." According to All- port, Bussen told him that this work included bringing drinking water to the jobsite and stated that "you [the Employer] don't have a signed agreement with us." Further, the Employer's vice president, John B. Jones III, testified that in a con- versation on January 19 Lonnie Green, president of Teamsters Local 50, claimed the work of moving equipment and tools of the trade from point to point at the jobsite as Teamsters' work. Jones fur- ther testified that in a telephone call on January 18 8 Unless otherwise noted, all subsequent dates are in 1988 295 NLRB No. 9 TEAMSTERS LOCAL UNION NO. 50 (SCHNABEL FOUNDATION) 69 Bussen claimed the work of moving equipment at the jobsite and water to and from the jobsite. Jones also stated that a small part of their conversation covered hauling materials other than water to and from the jobsite . Bussen testified that in this con- versation he claimed "all transportation of equip- ment and materials that pertains to the Teamsters." On January 21, Bussen and Green met with Jones and two other representatives of the Em- ployer. Jones testified that Green and Bussen con- tinued to press Teamsters Local 50's claim for the work of transporting materials to and from the job- site and at the jobsite, and that he replied that the work had already been assigned to other employ- ees.3 The participants clarified that Teamsters Local 50 had no interest in performing the work of transporting welding equipment by crane on the jobsite. Jones also testified that the parties dis- cussed the possibility of entering into a collective- bargaining agreement, but that the Employer was unwilling to enter into an agreement. The Employ- er subsequently subcontracted the work of trans- porting equipment and materials to and from the jobsite to Knowles Construction Company, which assigned an employee represented by Teamsters Local 50 to perform the work. Meanwhile, the pickets were removed during the morning of Janu- ary 20, and did not return after January 21. B. Work in Dispute The notice of 10(k) hearing described the disput- ed work as transporting ice water to, and moving equipment and tools of the trade within , the Em- ployer's jobsite at Illinois Route 3 at Chester, Illi- nois. The Employer has renewed its motion, made at the hearing, to amend the notice of 10(k) hearing to include additionally the moving of equipment, materials, and tools of the trade by truck to and from the jobsite.4 The record contains evidence that the Employer assigned to its employees repre- sented by Laborers Local 925 , Carpenters Local 1361, and Operating Engineers Local 520 , respec- tively, certain miscellaneous tasks involving trans- porting equipment and materials to and from the site, and that Teamsters Local 50 has claimed this work. We grant the Employer's motion to amend the work description to include transporting mis- cellaneous equipment and materials by truck to and from the jobsite to the extent that the Employer had assigned those tasks to its employees represent- ed by Laborers Local 925, Carpenters Local 1361, and Operating Engineers Local 520. C. Contentions of the Parties The Employer contends that reasonable cause exists to believe that Teamsters Local 50 violated Section 8(b)(4)(D). It asserts that Teamsters Local 50 established a picket line and has claimed the dis- puted work assigned to its employees represented by Laborers Local 925 , Carpenters Local 1361, or Operating Engineers Local 520 . Further, it asserts that it does not have a collective-bargaining agree- ment with Teamsters Local 50 , but that it does have collective-bargaining agreements with the La- borers Local 925 , Carpenters Local 1361 , and Op- erating Engineers Local 520, and that these and other considerations, including preference, practice, economy, and efficiency, favor its continued as- signment of the disputed work to its employees represented by Laborers Local 925 , Carpenters Local 1361 , and Operating Engineers Local 520. Teamsters Local 50 contends that the notice of 10(k) hearing should be quashed because there is no work dispute cognizable under Section 10(k). Thus, Teamsters Local 50 contends that neither Laborers Local 925, Carpenters Local 1361, nor Operating Engineers Local 520 has ever claimed the disputed work orally or in writing . Teamsters Local 50 further contends that its picketing at the Employer's jobsite was recognitional picketing, which was lawful within the limits of Section 8(b)(7)(C) of the Act. In this regard, Teamsters Local 50 contends that the pickets were removed once the Employer agreed to meet with it. At the hearing, Operating Engineers Local 520 took the position that Teamsters Local 50 was not claiming work, i.e., operation of the crane to move welding equipment , performed by employees repre- sented by it.s Laborers Local 925 and Carpenters Local 1361 , although served with the notice of 10(k) hearing, did not appear or take part in the proceeding. 9 Bussen testified that his purpose throughout these discussions with Allport and Jones was to inform the Employer of the type of work tradi- tionally claimed by the Teamsters and that he also informed them that Teamsters Local 50 had picketed the jobsite because the Employer re- fused to meet or negotiate a contract with it * At the hearing, Operating Engineers Local 520 opposed the motion on the basis that amending the notice at the hearing did not provide it with adequate notice of the proposed change, and Teamsters Local 50 objected to the term "materials" as too vague The hearing officer denied the Employer's motion, but did not preclude the Employer from adduc- ing evidence in the event the Employer wished to renew its motion before the Board. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that reasonable cause exists S At the hearing, Teamsters Local 50 clarified that it did not claim the work of operating a crane to move heavy equipment within the jobsite Thus, it is clear that the work in dispute does not include operation of a crane at the jobsite. 70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed on a method for the voluntary adjustment of their dispute. Teamsters Agents Bussen and Green claimed the disputed work according to both Allport and Jones, and Teamsters Local 50 renewed its claim for the disputed work at the hearing. Teamsters Local 50's contention that it did not violate Section 8(b)(4)(D) because its picketing was recognitional is without merit. Although Teamsters Local 50's statements that it explained to Allport and Jones that it was seeking recognition and a contract with the Employer might support a finding that one object of the picketing was recognitional, the issue at this stage is whether reasonable cause exists to believe that an object of the picketing was to force or require the Employer to assign the work to indi- viduals represented by Teamsters Local 50. One proscribed objective suffices. Electrical Workers IBEW Local 701 (University of Chicago), 255 NLRB 1157, 1161 (1981). Under the circumstances, we find that reasonable cause exists to believe that an object of Teamsters Local 50's picketing was to force or require the Employer to assign the disputed work to employ- ees whom it represents and, therefore, that a viola- tion of Section 8(b)(4)(D) has occurred. We also find without merit the Teamsters' con- tention that no jurisdictional dispute exists because no other union has claimed the work. A jurisdic- tional dispute is not confined to situations in which two or more groups of employees openly compete for a work assignment. Longshoremen IL WU Local 29 (Van Camp Sea Food Co.), 225 NLRB 624, 626 (1976); Teamsters Local 326 (Eazor Express), 208 NLRB 666, 672 (1974). In this case, there is no evi- dence that the Unions representing the Employer's employees who have been assigned to the disputed work have disciplined employees for continuing to perform it or that the Unions have objected to or disclaimed the Employer's assignment of work to employees they represent . The failure of the Unions to disclaim disputed work assigned the em- ployees they represent indicates that they continue to claim the work. Van Camp, above, 225 NLRB at 626; Eazor Express, above, 208 NLRB at 672. No party contends that an agreed-upon method exists for the voluntary resolution of the instant dispute. 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 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 the dispute. 1. Certifications and collective-bargaining agreements There is no evidence that the Board has certified any of the Unions involved in this dispute as the collective-bargaining representative of any of the Employer's employees at the Chester, Illinois job- site. Teamsters Local 50 does not have a collec- tive-bargaining agreement with the Employer cov- ering employees at the Chester, Illinois jobsite. La- borers Local 50, Operating Engineers Local 520, and Carpenters Local 1361 are all parties to sepa- rate collective-bargaining agreements with the Em- ployer covering employees at the jobsite. The agreements, however, do not specifically mention the work in dispute. The mere existence of collec- tive-bargaining agreements is not a factor favoring a work assignment. 2. Employer preference and past practice The Employer has assigned the work in dispute to its employees represented by Laborers Local 925, Carpenters Local 1361 , and Operating Engi- neers Local 520 in accord with its practice at its other jobsites. The Employer prefers the continu- ation of these assignments. Thus, the factor of em- ployer preference and past practice favors the con- tinued assignment of this work to the Employer's employees represented by Laborers Local 925, Carpenters Local 1361, and Operating Engineers Local 520. 3. Area and industry practice Teamsters Local 50 presented evidence that in three construction projects within Illinois its mem- bers had been assigned to do hauling by truck. Bussen, however, could identify only one occasion in Illinois involving construction of a retaining wall where Teamsters Local 50 members were assigned the work of transporting equipment and water. Thus, the factor of area practice is inconclusive and, consequently, favors neither group of em- ployeees. 4. Relative skills Teamsters Business Representative Bussen testi- fied that employees represented by Teamsters TEAMSTERS LOCAL UNION NO. 50 (SCHNABEL FOUNDATION) Local 50 who possess chauffeurs' licenses required by the State of Illinois to operate vehicles weigh- ing over 12,001 pounds are better qualified to oper- ate the Employer's vehicles safely than the Em- ployer's employees represented by Laborers Local 925, Carpenters Local 1361, and Operating Engi- neers Local 520. The record contains no evidence, however, that the Employer's vehicles used at the jobsite weigh over 12,001 pounds. Therefore, the factor of relative skills is inconclusive and favors neither group of employees. 5. Economy and efficiency of operations Employer Vice President Jones testified that it is more efficient and economical to use employees represented by Laborers Local 925, Carpenters Local 1361 , and Operating Engineers Local 520. First, these employees are already on its payroll and a number of them are regular employees who have worked at other jobs of the Employer. Second, the Employer has trained its own employ- ees regarding its own procedures and equipment. Furthermore, the Employer asserts without con- tradiction that its employees represented by Labor- ers Local 925 and Carpenters Local 1361 spend about one-half hour per day transporting equip- ment and materials . Teamsters Business Representa- tive Bussen testified that if the work in dispute were assigned to employees represented by Team- sters Local 50 the Employer would be required to pay for a minimum of 4 hours for the work. Fur- ther, Bussen indicated that if the work in dispute were assigned to employees represented by Team- sters Local 50, the Employer would contact Bussen, who would then locate a Teamsters Local 50 member to perform the work. The Employer contends that its own laborers can perform work immediately. Finally, the Employer contends without dispute that assignment of the disputed work to employees represented by Teamsters Local 50 would require that some jobs now performed by one employee be performed by more than one person . In this regard, Bussen admitted that, in some circumstances, to get water for the job the Employer would have to send an employee represented by Teamsters Local 50 to drive the truck and an employee represented by Laborers Local 925 to load the water and clean the bucket. In addition, once materials were deliv- ered by truck, the employee represented by Team- sters Local 50 would no longer be responsible for the materials and an employee represented by La- 71 borers Local 925 or Carpenters Local 1361 would be required to assist. We find that the factor of economy and efficien- cy of operations favors the continued assignment of the work in dispute to employees of the Employer represented by Laborers Local 925, Carpenters Local 1361 , and Operating Engineers Local 520. Conclusion After considering all the relevant factors, we conclude that employees of the Employer repre- sented by Operating Engineers Local 520, Laborers Local 925, and Carpenters Local 1361 , respective- ly, are entitled to perform the work in dispute. We reach this conclusion relying on Employer prefer- ence and past practice and economy and efficiency of operations. In making this determination, we are awarding the work to employees represented by Laborers Local 925 , Carpenters Local 1361, and Operating Engineers Local 520, not to those Unions or their members. The determination is lim- ited to the controversy that gave rise to this pro- ceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Schnabel Foundation Co. repre- sented by Local 520, International Union of Oper- ating Engineers; Laborers International Union, Local 925 ; and Southern District Council of Car- penters Local 1361 are entitled to perform the work of transporting ice water to the jobsite, moving equipment and tools of the trade within the jobsite, and transporting miscellaneous equipment and -materials by truck to and from the jobsite to the extent that Schnabel Foundation Co. had as- signed those tasks to its employees, at the Employ- er's Chester, Illinois jobsite. 2. Teamsters, Chauffeurs and Helpers, Local Union No. 50, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Schnabel Foundation Co. to assign the dis- puted work to employees represented by it. 3. Within 10 days from this date, Teamsters Local Union No. 50 shall notify the Regional Di- rector for Region 14 in writing whether it will re- frain from forcing the Employer, by means pro- scribed by Section 8 (b)(4)(D), to assign the disput- ed work in a manner inconsistent with this determi- nation.