Teamster Local 639 (United Rigging & Hauling)

TEAMSTERS LOCAL 639 (UNITED RIGGING & HAULING) 803 Drivers, Chauffeurs and Helpers Local Union No. 639 a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO and United Rigging and Hauling, Inc. and International Association of Bridge, Structural and Ornamental Iron Work- ers, Local Union No. 5. Case 5-CD-291 September 29, 1989 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFF AND DEVANEY The charge in this Section 10(k) proceeding was filed February 8, 1989, by the Employer, alleging that the Respondent, Teamsters Local 639, 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 it represents rather than to em- ployees represented by Iron Workers Local 5. The hearing was held March 7, 8, 9, and 13, 1989, before Hearing Officer Kevin J. Sturm. 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, a Delaware corporation, with its principal office in Beltsville, Maryland, is engaged in the business of hauling and relocation of heavy machinery and other objects in and around the Washington, D.C. metropolitan area. During the 12 months preceding the hearing, a representative period, the Company purchased goods and materi- als valued in excess of $50,000 directly from out- side the State of Maryland. The parties stipulated, and we find, that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that Teamsters Local 639 and Iron Workers Local 5 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer's rigging work involves the movement of heavy, bulky, fragile, or unusually shaped items, equipment, or objects to be transport- ed and/or hoisted on and off buildings. The Em- ployer's rigging work usually entails the operation of jacks, rollers, dollies, forklifts, cables, levers, hoists, and other common rigging equipment. At times, the rigging done by the Employer may also involve blueprint reading, fabricating, welding, burning steel, climbing steel, and work with scaf- folding, skills the Employer refers to as "rigging plus." The Employer began operating in 1969 , and that year it entered into the first of a series of collec- tive-bargaining agreements with Teamsters Local 639. From 1969 until 1975, Local 639 was the sole representative of the Employer's riggers. In 1975, the Employer hired its first two ironworkers to perform rigging work and entered into the first of a series of collective-bargaining agreements with Iron Workers Local 5. From 1975 to 1980, approxi- mately 75 percent of all rigging work was assigned to employees represented by Local 639, with the remaining rigging work going to employees repre- sented by Local 5 . In 1983, the Employer hired its last rigger represented by Local 639, and since 1983, as riggers represented by Local 639 have left the Employer, they have been replaced by riggers from the Local 5 hiring hall. At the time of the hearing, the Employer em- ployed 23 riggers represented by Local 639, 3 per- manent riggers represented by Local 5, and, on any given day, approximately 25 or more riggers re- ferred from the Local 5 hiring hall . At times, all rigging work on a particular job has been per- formed by riggers represented by Local 639, and on other occasions the rigging work has been done solely by riggers represented by Local 5 . And rig- gers represented by Local 639 and Local 5 have sometimes worked together on the same job. From June 22 through October 28, 1988, Local 639 filed several grievances in response to the Em- ployer's assignment of rigging work on various jobs in the Washington area to riggers represented by Local 5 instead of to those represented by Local 639. In November 1988, officials from the Employer, Local 639, and Local 5 met to discuss the jurisdictional dispute. Employer Vice President of Operations Elliotte testified at the hearing that the Employer told the Teamsters to stop "harass- ing" the Employer with grievances and to resolve the dispute with the Iron Workers. According to Elliotte, Local 639 President Feaster responded that the Teamsters claimed all rigging work and that the Iron Workers should get out of their juris- diction. Elliotte testified that Feaster then stated that if the Employer needed any help closing its doors he would be happy to oblige . In his testimo- ny, Feaster denied making this statement , and testi- fied that he had said, in response to the Employer's claims that it may have to cease operations, that he wanted employees represented by Local 639 to be 296 NLRB No. 100 804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD working for the Employer right up until the Em- ployer actually closed its doors. In a letter to El- liotte dated December 6, 1988 , Feaster stated that Local 639 demanded immediate recognition as the exclusive representative of the Employer's classifi- cation of drivers, helpers, and riggers, claimed all work performed under these classifications, and de- manded the payment of dues and health and wel- fare and pension contributions for "any " employee performing rigging work. The letter then stated that Feaster intended "to take every legal and eco- nomical resource available to see that this demand is carried out." B. Work in Dispute The disputed work involves all rigging work performed by the Employer in the course of its op- eration of its Beltsville, Maryland facility. C. Contentions of the Parties The Employer contends that, in accordance with its past practice, it should be allowed to assign the disputed work to either employees represented by Local 639 or employees represented by Local 5, as economic considerations dictate .' The Employer contends that its preference is supported by econo- my and efficiency of operations , the relative skills and qualifications of the competing groups of em- ployees, the area and national practice in the con- struction rigging industry, its own past practice, and an interunion agreement between Local 639 and Local 5 to share rigging work. The Employer further notes that an award sanctioning its prefer- ence will not result in job displacement of either group of employees. The Employer also states that if the Board is constrained by the description of the work in dispute, and must award all the disputed work to either one group of employees or the other, then the rigging work should be awarded to the employees represented by Local 5. Local 639 contends that the dispute is only nomi- nally jurisdictional and that the issue is actually which Union should represent the employees who perform rigging work for the Employer . Local 639 claims that in 1969 it organized a wall-to-wall bar- gaining unit that included riggers, that over the years riggers represented by Local 5 began to re- place Local 639 riggers, and that under Local 639's collective-bargaining agreement with the Employ- ' Specifically, the Employer proposes to continue its practice of assign- ing "overflow" rigging, i.e., the work in addition to that being handled by its permanent riggers, to riggers referred from Local 5's hiring hall At one point in its brief, the Employer proposes to assign its "rigging plus" work to employees represented by the Iron Workers (Br. 4), but later it indicates that its actual practice has been to assign such work to either a composite crew of employees represented by both Unions or a crew composed exclusively of employees represented by Local 5 er, all employees who perform rigging work are represented by Local 639. Local 639 also argues that factors such as area and national practice in the nonconstruction rigging industry , economy and efficiency, and the potential job impact on the ex- isting Local 639 riggers support awarding the dis- puted work to the employees whom it represents. Local 5 asserts that Local 639's contention that the dispute is representational in nature is without basis and is merely an attempt to avoid a decision on the merits. Local 5 contends that the dispute is clearly jurisdictional,2 and that factors such as area and industry practice, relative skills of the compet- ing groups of employees, interunion agreements, and economy and efficiency of operations support awarding the disputed work to employees that it represents. Local 5 notes that the Employer's pref- erence is to be allowed discretion in assigning the disputed work to either of the competing groups, but contends that the Board should adhere to the description of the work in dispute and award all such work to employees represented by Local 5. 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 there is reasonable cause 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 the dis- pute. As noted above, Employer Vice President El- liotte testified that Local 639 President Feaster, during a meeting to resolve the work dispute, told employer officials that if the Employer needed any help closing its doors he would be happy to oblige.3 As was also noted above, Feaster told El- liotte in a letter dated December 6, 1988, that Local 639 demanded immediate recognition as the exclusive representative of the Employer's riggers, and that he intended "to take every legal and eco- nomical resource available to see that this demand is carried out."4 These statements by Feaster pro- vide reasonable cause to believe Section 8(b)(4)(D) had been violated. The parties stipulated at the hearing, and we find, that there is no agreed-on method for voluntary adjustment of the dispute 2 The Employer makes the same argument. a Feaster denied this specific allegation by Elliotte Because the Board need only find reasonable cause to believe that a violation occurred, a conflict in testimony does not preclude the Board from determining a 10(k) dispute. Laborers Local 334 (C.H. Heist Corp.), 175 NLRB 608, 609 (1969) 4 This comment is comparable to statements that the Board has relied on to find reasonable cause to believe Sec. 8 (b)(4)(D) has been violated See, e.g, Iron Workers Local 433 (Crescent Corp), 277 NLRB 670 ( 1985); Teamsters Local 6 (Anheuser-Busch), 270 NLRB 219 (1984) TEAMSTERS LOCAL 639 (UNITED RIGGING & HAULING) within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determination.5 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 Neither Local 639 nor Local 5 has been certified as the collective-bargaining representative for a unit of the Employer's riggers. With regard to col- lective-bargaining agreements, at the time of the hearing both Unions had collective-bargaining agreements with the Employer that explicitly cov- ered the disputed work. Article 21 of the agree- ment between the Employer and Local 639, effec- tive by its terms from May 23, 1986, through May 22, 1989, set forth the classifications claimed by Local 639, which included master and apprentice riggers. Section 2 of the agreement between Local 5 and the Iron Workers Employers Association of Washington, D.C. (to which the Employer was a party), effective by its terms from May 1, 1987, through April 30, 1989, sets forth the craft jurisdic- tion of Local 5, which included "rigging." Accord- ingly, we find that the factors of certification and collective-bargaining agreements do not favor an award of the disputed work to employees repre- sented by either Union. 2. Company preference and past practice The record indicates that the Employer's prac- tice, particularly since 1983 , has been to assign available rigging work to its permanent employees, most of whom are represented by Local 639 and some by Local 5, and then "overflow" rigging S We reject Local 639's contention that the dispute is representational rather than jurisdictional in nature. Although distinguishing work assign- ment disputes from controversies over which of two unions should repre- sent certain employees is sometimes difficult, it is clear from the record that the central issue in this case is which group of employees should be assigned rigging work , as opposed to which union should represent the particular employees who perform such work See, e g ., Graphic Arts Local 289 (Detroit News), 246 NLRB 981 (1979). Harley-Davidson Motor Ca, 234 NLRB 1121 (1978) 805 work to riggers from Local 5's referral hall. The number of referrals from Local 5's hall averages approximately 25 per day . When a job involves "rigging plus" work, such as blueprint reading, fab- ricating, welding, burning steel, climbing steel, and work with scaffolding, the Employer's practice has been to assign either a composite crew or a crew composed exclusively of riggers represented by Local 5. At the hearing and in its brief, the Employer ex- pressed its preference for an award that would assign the disputed work, in accordance with its past practice, to employees represented by either Union depending on the circumstances facing the Employer when the work must be performed. We find that the factors of the Employer's past practice and preference do not favor an exclusive award of the work in dispute to employees repre- sented by either Union. 3. Area and industry practice The record indicates that the Employer is the only unionized company in the Washington, D.C. area that does strictly rigging work . Consequently, in trying to establish that area and industry practice supported their positions, both Local 639 and Local 5 relied on evidence that they represent em- ployees in other industries who perform rigging work. Local 5 introduced evidence that several construction contractors in the metropolitan Wash- ington area use employees referred by Local 5 to perform their rigging work .6 This evidence, how- ever, is of limited relevance to the Employer's situ- ation because, according to Vice President of Op- erations Elliotte, only 25-30 percent of the Em- ployer's work is done on new construction sites. Local 639 introduced evidence that it represents riggers employed by a number of government con- tractors and by contractors in the exhibition and trade show industry. But Local 639 Business Agent Woodward admitted that the rigging work done by the government contractors was not as "involved" as that performed by the Employer, and his testi- mony also indicated significant differences between the rigging work in the exhibition and trade indus- try and the rigging work done by the Employer. Accordingly, on review of the record, we con- clude that the factor of area practice is inconclu- 6 Carroll Allison , president of the Iron Workers District Council of the Mid-Atlantic States, testified that 292 contractors are signatory to a na- tional agreement between the Iron Workers International and the Nation- al Council of Erectors, Fabricators, and Riggers However, because Local 5 did not introduce evidence of how many of these contractors were rigging contractors and what type of rigging work they perform, we cannot determine the relevance of this agreement to the instant dis- pute 806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sive and does not favor an award of the disputed work to employees represented by either Union. 4. Relative skills The record shows that riggers represented by Local 5 are more qualified to perform the work the Employer refers to as "rigging plus." Local 5 pre- sented evidence that its 4-year apprenticeship pro- gram provides extensive training in rigging, includ- ing training in blueprint reading , burning steel, and welding. In contrast, Local 639 stipulated that it does not provide any training in rigging, and the record indicates that of the employees Local 639 represents, only five can burn competently, only two can weld, only one can read blueprints, and only five or six can climb steel . Consequently, ac- cording to employer witnesses, the Employer relies almost exclusively on riggers represented by Local 5 to do its "rigging plus" work. Local 5's training program has also made it a re- liable source of qualified riggers for the Employer's "overflow" rigging work. Local 639, by contrast, has not referred a qualified rigger to the Employer since 1983 or 1984, and Local 639's counsel even acknowledged at the hearing that "[t]here appears to be no question that the Teamsters cannot supply qualified riggers in the numbers needed by the Company." On the other hand, the record shows that the permanent riggers represented by Local 639 are fully qualified to perform straight rigging . Accord- ing to Employer Vice President/Job Superintend- ent Grooms, most of these riggers have worked for the Employer for more than 10 years, and there is no indication in the record that they have ever been unable to do the rigging work assigned them. Based on the preponderance of the evidence, we find that the factor of relative skills does not favor an exclusive award of the work in dispute to em- ployees represented by either Union. 5. Economy and efficiency of operations The record shows that the riggers represented by Local 5 and those represented by Local 639 are fully qualified to perform straight rigging work. Therefore, an award of the disputed work to either Union would not impose any costs or inefficiencies on the Employer with regard to its straight rigging work. However, because most of the riggers repre- sented by Local 639 cannot perform "rigging plus" work, an award of the disputed work to them would impose significant constraints on the Em- ployer's ability to perform "rigging plus" work ef- ficiently. An award of the work to Local 639 would also make it more difficult for the Employer to find qualified riggers to do its overflow rigging work. Local 5 Business Manager Richbourg testi- fied that the Iron Workers Union will not refer its members to contractors with whom it does not have a collective-bargaining agreement . Thus, if the disputed work were awarded to Local 639, the Employer would be prevented from drawing on Local 5's referrals, its sole reliable source of quali- fied riggers for its overflow work. Given Local 639's admission that it cannot supply a sufficient number of qualified riggers to the Employer, and the fact that the record does not reveal an alterna- tive to Local 5 as a source of qualified riggers, the Employer would likely have to incur the consider- able cost and inconvenience of training inexperi- enced employees to do its overflow rigging work. Under these circumstances , we find that the fac- tors of economy and efficiency favor allowing the Employer to use its discretion in assigning rigging work, rather than making an exclusive assignment. 6. Interunion agreements Former Local 5 Business Agent Walker testified that at a meeting in 1975, Local 5 and Local 639 entered into a "Gentleman 's Agreement" under which the Employer would hire two permanent riggers represented by Local 5; assign an equal number of riggers represented by Local 5 and Local 639 to power plant projects ; and for new hiring would be free to employ members of either Union to do its rigging work. Local 639 officials Marcy and Mattia, who Walker testified were Local 639's representatives at the meeting, both testified at the hearing that they had never attend- ed such a meeting with Walker, and Marcy, Mattia, and Local 639 President Feaster all denied that such an agreement ever existed between Local 639 and Local 5 . In any event, by the early 1980's, both Unions were claiming the right to represent all the Employer's riggers. In July 1982, officials from both Unions met to try to resolve the juris- dictional dispute. Local 639 officials testified that their understanding after this meeting was that the two Unions had agreed that the Employer would retain two permanent riggers who were represent- ed by Local 5, and the rest of the Employer's rig- gers would be represented by Local 639. Local 5 officials testified that they understood the agree- ment to be that the Employer would retain all its permanent riggers, and could hire employees repre- sented by either Union as new riggers. Thus, it ap- pears that there was no real "meeting of the minds" between the two Unions on this issue. Ac- cordingly, we find that the factor of interunion agreements is not helpful to a determination of the dispute. TEAMSTERS LOCAL 639 (UNITED RIGGING & HAULING) 7. Job impact An award of the disputed work to employees represented by either Union would likely displace the permanent riggers represented by the other. The Employer's assignment practices, on the other hand, have not resulted in the loss of jobs for em- ployees of either Union. Therefore, we find that the factors of job impact favors allowing the Em- ployer to exercise its discretion in assigning rigging work in accordance with its longstanding practice, rather than making an exclusive assignment.? Conclusions After considering all the relevant factors, we conclude that none of the factors favors an award of the Employer's rigging work to employees rep- resented by one Union to the exclusion of other employees to whom the Employer has assigned such work in the past. In these circumstances, we conclude that the Employer has the right to assign the work, in accordance with its past practice,8 to employees represented by either Union, depending on the circumstances involved.9 We reach this con- clusion relying on the factors of employer past practice and preference, relative skills, economy and efficiency of operations, and job impact. In making this determination , we are awarding the work to employees represented by either Union, Member Cracraft does not rely on this factor in reaching the conclu- sion that the work should be assigned in accordance with the Employer's past practice a We emphasize in particular that the Employer's assignment of "rig- ging plus- work must be in accordance with its past practice of assigning such work to composite crews as well as crews composed exclusively of employees represented by Local 5 9 See, e.g, Graphic Communications Local 670 (Reynolds Metals), 289 NLRB 947 ( 1988); Machinists District 118 (Meredith Printing), 243 NLRB 892 (1979). 807 not to the Unions or their members. The determi- nation is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of United Rigging and Hauling, Inc., who are represented by International Associa- tion of Bridge, Structural and Ornamental Iron Workers, Local Union No. 5, and employees of the Employer, who are represented by Drivers, Chauf- feurs and Helpers Local Union No. 639 a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO, are entitled to perform in a manner consistent with past practice and in accordance with the Em- ployer's assignment the rigging work performed by the Employer in the course of its operation of its Beltsville, Maryland facility. 2. Drivers, Chauffeurs and Helpers Local Union No. 639 a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of A.aerica, AFL-CIO is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force United Rigging and Hauling, Inc., to assign the dis- puted work in a manner inconsistent with this de- termination. 3. Within 10 days from this date, Drivers, Chauf- feurs and Helpers Local Union No. 639 a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO shall notify the Regional Director for Region 5 in writing whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with the determination.