CeLucca Fence Co., Inc.

National Labor Relations Board - Board DecisionsFeb 8, 1979

240 N.L.R.B. 644 (N.L.R.B. 1979)

644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Truck Drivers & Helpers Local No. 170, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and De- Lucca Fence Company, Inc. and Massachusetts La- borers District Council, Laborers International Union of North America, AFL-CIO. Case I-CD- 548 February 8. 1979 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS PENI.I.() AND) TRUIESDAL This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by DeLucca Fence Company, Inc., herein called the Employer, alleging that Truck Driv- ers & Helpers Local No. 170. a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called Local 170, had violated Section 8(b)(4)(ii)(D) of the Act by engaging in certain conduct with an object of forcing or requiring the Employer to assign particular work to employees represented by Local 170 rather than to employees represented by Massachusetts Laborers District Council, Laborers International Union of North America, AFL-CIO, herein called the Labor- ers. Pursuant to notice, a hearing was held before Hearing Officer Rosemary Pye on November 21, 1978. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence bearing on the issues. Thereafter. the Employer and Local 170 filed briefs. 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 of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. The Board has considered the briefs and the entire record in this case and makes the following findings: I. THE BUSINESS OF IHE EMPL.OYER DeLucca Fence Company, Inc., is a Massachusetts corporation engaged in the business of erecting and installing fencing and guardrails on highway con- struction and repair jobs. During the past 12-month period, the Employer purchased and received goods 240 NLRB No. 85 valued in excess of $50,000 directly from points out- side the Commonwealth of Massachusetts. Accord- ingly, we find, and the parties have stipulated, that the Employer is an employer within the meaning of Section 2(2) of the Act, it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. II HF ILABOR OR(iANIZAIONS INVOI.VED The parties stipulated, and we find, that Truck Drivers & Helpers Local No. 170, a/w the Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, and Massachu- setts Laborers District Council. Laborers International Union of North America, AFL-CIO, are labor organizations within the meaning of Sec- tion 2(5) of the Act. rll. tHE DISPUTE A. Background and Facts of the Dispute The situs of the dispute is a highway project in Ashby, Massachusetts, which is within the territorial jurisdiction of Local 170. In July 1978. the Employer received a subcontract from the DeMatteo Construc- tion Company, general contractor on the Ashby job, to perform fence and guardrail installation. Work on the DeMatteo job involves the transport- ing of material from the Employer's yard to the job- site in four or five trucks. Once at the jobsite, the employees work off the trucks. The actual work of installing fences and guardrails requires the services of several employees working together systematically as a team. Fencing involves having three or four em- ployees pull wire, splice it, cut it, and actually hang the fabric (fencing material). Guardrail installation requires the use of two or three employees who lay out the lines, drive the guardrail posts, put in the rail, and tighten the rail with bolts. The driving of the trucks is incidental to the installation and erection work inasmuch as the trucks are used only for trans- porting material to and from the yard and for pur- poses of unloading material as the work progresses. Any employee who drives a truck spends his non- driving time doing installation and erection work once at the jobsite. No employees have been hired for the exclusive purpose of driving a truck. The Employer has been using six or seven of its employees on the DeMatteo job. All of the Employ- I he tlFiployer has a ork force of approximatel 30 emplo ees who do the t\p.e of ork tha i iI dispule TRUCK DRIVERS & HELPERS LOCAL NO. 170 645 er's employees, with the exception of James DeLuc- ca, son of its president. Joseph DeLucca, are mem- bers of the Laborers. James DeLucca is a member of Teamsters, Chauffeurs. Warehousemen & Helpers Union Local 437, herein called Local 437.2 Prior to 1976, the Employer had not employed anN Teamsters members. However, in that ear James Del.ucca joined Local 437 pursuant to an agreement between Teamsters and Laborers officials which settled a Teamsters demand in the latter part of 1975 that the Employer hire an employee represented by the Teamsters.' Thereafter, the Employer signed the 1973-76 Teamsters Massachusetts heavv construc- tion agreement and, subsequently, the 1976 79 Teamsters Massachusetts heavy construction agree- ment (hereinafter referred to as the Teamsters agree- ment).4 James DeLucca performs the same ork as do employees represented by the Laborers and is em- ployed on the DeMatteo project. Shortly after the Employer was awarded the sub- contract on the Ashby job in July 1978. Joseph De- Lucca received a phone call from the general con- tractor concerning George Valery, business agent for Local 170. DeMatteo told DeLucca that Valery said if the Employer (DeLucca) was on the job. it would have trouble. DeLucca contacted Valery, who told him that a man represented by Local 170 had to be put on the DeMatteo job. DeLucca told Valer that the Ashby job did not call for the employment of a teamster and that he would let him know later what he planned to do. Thereafter, a meeting was held to discuss Local 170's demand. Joseph and James De- Lucca testified that Valery threatened to picket the Ashby jobsite unless the Employer put an emplo\ee represented by Local 170 on the job.s The threat to picket gave rise to the present proceedings. B. tflork i Dispulr The work in dispute involves fence and guardrail installation and truckdriving by employees of the Employer. C. Contentions of the Partiex The Employer and the l.aborers contend that. pur- ' Local 437 took part in he hearing n Ihe in it ase tI he pa.rtie Mtipu- laited that It is a labor orgilnliallon Ulthln the mleaing of Sec 2(5) of the Act LI.ocal 171) was t ot prm to th agreement 4 he t.mpoer s a member of the I.hbor Relation, [)i ,ron f the ( on- strucl on Industiries of %'la sachusett,, Inc , nd I .i a parl to the current collective-bargaining agreement hetween Ihat ai,socilatlion and ;.arllos delcg- nated lealnlter, Ilcal I nions. icuJnL I .cals 170 and 43'7 hC Ihe 11 - sters agreement applies t the 1 allpnrtllllg oIf imateriala for hliwh\ a. 1l hea;l constructln prolect Ihere hi,; heen no plcketlng suant to their collective-bargaining contract, the work in dispute should be awuarded to employees rep- resented by the Laborers. The Employer notes that it has rccognized the aborers as the collective-bar- gaining representative of its employees ho perform the disputed work for at least the past 14 years. The Employer further asserts that the factors of area practice. job impact. skills, and economlr and effi- ciencN of operations support assigning the work to employees represented by the Laborers. I.ocal 170 takes the position that. based on the col- lective-hbargaining agreement in effect hetween the Employer and the Teamsters, the Employer inust emplo, one of Local 170's members on work per- formed within Local 170's jurisdiction. D. .1/licarilitv of t/he' 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(h)(4)(D) of the Act has been violated. The parties stipulated that there is no agreed-upon method, binding on all the parties. for the voluntary: settlement of the dispute. l.ocal 170 contends that it is not attempting to ex- ert improper pressure on the EmploNer to assign the disputed work to one of its members in violation of Section 8(b)(4)([)) of the Act. Instead. Local 170 ar- gues. it only seeks to have the Employer conform to that provision in the Teamsters agreement requiring that an employee represented bh Local 170 be as- signed to work performed within Local 170's territo- rial jurisdiction. EssentiallN, l.ocal 170 contends that this is not a jurisdictional dispute but a contractual dispute. We find no merit in l.ocal 170's contention. That the basis for Local 170's action was the Teamsters agreement with the Emploxer does not, as the Board has consistentlN held in similar cases, detract from the jurisdictional nature of the dispute. 6 It appears to us that an object of l.ocal 170's action was to force the mplo, er to assign at least a portion of the dis- puted work (i.e.. the truckdriving) to an individual represented b Local 170. After considering the contentions of the parties and the evidence with respect thereto, we find that the Board is not precluded from making its determi- nation in this proceeding. that there is reasonable cause to believe that a violation of Section 8(b)(4([)) has occurred, and that the dispute as described abo\ e ' It lI( l, lrntl I "l Ch "l I"rcI''" ', ,l,, l, i ' tr l , i , , , 7 '~ ~ t,, IN, t ],P / tlflet I, .. rl[I Mtg lr~luc ' i llC(/ JJ' N trclh II, UWe't I rr , I. / . , /9 (I tI ll ll~ ilill Imp. l,b/ , . h t (t, am (ta! -I, ,-/anita . 144 NI RB 1432. 1439(19 3): I,! /I ) Si, i , Ih iI in t t i , 1 ,ttnit> I I.tt ..! t I,, tllru, t - I 10 aa itt ,at,,.,, ,tt,,,i (...t..lt, iln 143 NI RB q147, * 1 (19'61i 646 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD is properly before the Board for determination under Section 10(k) of the Act. E. Merits of it' I)Ji,.'l I. ('ollective-bargaining contracts In pertinent part, the contract between the Em- plover 7 and the Laborers (hereinafter referred to as the Laborers agreement) reads: St B)i\ ISIO A ARII(I . IX II [AVY ANDI) IlI(;i.AY (()ONSIKR:('IION INDI) SIRI S Section . he terms of this Subdivision shall apply to the following work when performed in connection with the }Heave and lighwaN ('on- struction Industries, i.e..... fence and guard rail erectors. Section 2. Hleavy and Highway construction. where referred to in this Agreement, is defined as the . . . heavy and utility construction of all roads, streets, alleys. drivewa ys. sidewalks. guard rails, fences. parkways .... AR III XI WAG(l RAIIS \NI) I \SSIFI(AIIt)NS Section 2. The rate to be paid for intermediate classifications shall be as follows: T''he amount indicated shall he the amount to be paid per hour, over and above the basic wage rate re- ferred to above: Pipelavers. $0.25; Fence and Guard Rail Erectors, $0.25. In the instant case, the record reveals that the Erm- ployer follows the aborers agreement for its fence and guardrail installers, and that at least some of these employees also drive and unload trucks as part of their work. The Teamsters agreement in pertinent part reads: ARII(' I.: II Scope of Employment Item 1: This Agreement shall apply to all highway and heavy construction performed by As mllember of the I.aho Rchltiln, i)l'i,l) o f o lif (,1,rorLI1 1 Ill- dustrcs of Mlssichusetts. Inc . the iEnplocI r a pitr l to he currenit -- lctirc-bIrgaiLring algrcCIvnclt hctecnIl thaIt U.'s CliltlOll alnd [he I.,lhol S coverinlg all of Ma.s,achusetts the Employer. For the purposes of this Agree- ment, "Heavy and lighway Construction" shall include, but is not limited to. the construction of roads, streets, alleys, driveways, sidewalks, guard rails, fences, parkways. parking areas operation of trucks of all descriptions .... Item 6: The hauling of any construction mate- rials to a jobsite or jobsites by a signatory to this Agreement shall be performed by employees covered by this Agreement. 'Ihe contract between the aborers and the Em- ployer contemplates the assignment of "work when performed in connection with" "heavy and utility construction of all . . . guard rails [and] fences" to emlploees represented by the Laborers. Therefore, under the terms of this agreement, employees repre- sented by the Laborers are entitled to do the actual fence and guardrail installation and erection. In the satie manner, under the terms of the agreement be- tween the Teamsters and the Employer, the trans- porting of materials used for the construction of fences and guardrails is to be performed by employ- ees represented by the Teamsters. If the work in dispute was intended to be divided, it would appear that employees represented by the learmsters would be entitled to the work of truck- driving, and employees represented by the Laborers would be assigned the work of fence and guardrail installation. However, the Employer strongly urges, and other factors, discussed infra, dictate, that the work in dispute be viewed as constituting a unified whole. Accordingly, we find that both Unions have legiti- malte contractual claims to a portion of the work in dispute, and that the factor of collective-bargaining contracts does not unequivocally favor an assign- ment to the employees in either unit over those in the other. 2. Employer and area practice For at least the past 14 ears, the Employer has recognized the aborers as the collective-bargaining representative of its employees who perform the work in dispute. With regard to area practice, two other employers in the fence and guardrail installa- tion business, one doing work in eastern Massachu- setts and lower New Hampshire and the other work- ing within 20 miles of Boston, testified to having collective-bargaining relationships with the Laborers to perform the same kind of work as that in dispute in the instant case. The factors of Employer and area practice. therefore, favor an award of the disputed work to the employees represented by the Laborers. TRUCK DRIVERS & HELI.PERS .(XOCAL NO. 170 647 3. cononl m, efficienct of operation. and job impact Ihe Employer argues that it will be much more efficient and economical to assign the work to em- ployees represented by the Laborers. as these enm- ployees share the work of truckdriving and fence and guardrail installation. The Employer contends that no employees are hired for the exclusive purpose of truckdriving inasmuch as truckdri ing is merel inci- dental to the fence and guardrail installation. F:ur- thermore, the Employer maintains that because the same crews of employees nw work in tealIs. it would be inefficient to break up these teams and eim- ploy members of Local 170. If emploe ces represen ted bh Local 170 were hired to (lo the truckdrix ing. the result would be that, for the most part. these emplo - ees would be idle for long periods of time xshile the trucks were not in use. In addition. the Enmploer testified that an assignment of the work in dispute to employees represented hb Local 170 would cause the layoff of some employees representetd b\ the Iabor- ers. We therefore find that the factors of econoniN. ef- ficiency of operation. and oh inlpact favor an award of the disputed work to the laborers.9 4. Skills Local 170 contends that no specific skill is re- quired to perform the disputed work. The mplo\ er argues. however, that 4 or 5 mlonths' experience is necessar for fence erectors and that 2 or 3 months' experience is needed for guardrail installers. In this regard, the Emploser points out that its employees represented b the Laborers now have the necessair erection and installation skills and. furthermore, th;at they also do whatever incidental driving is required. The Employer further asserts that there is n e i- dence indicating either that employees represented hb ILocal 170 possess these requisite skills or that spe- lhe use of rlcks is I\plaill' II1tited tI tile trIpoiti n 4u f rIl,llcrl.ls tlo the jobslile. hercupon the triucks are uItloI .dd .ind Ilnt.liltlll .1l d eti'tl i work is hegun Once ;il he ijohile. enmplN e, virk off the rucks, m1 li / them .a horl distalnce ,s to, thIree tlimlles . d .ax is he rbh prire ,es I he truLks ;re nlot ulsed It) make repealer tripLs back aid forth i the orthsits ' See frill riJr l A il l 1 r , 1r/ i ll l' , lltr , i l h ',nr li lu, l r1t! h-,ihl h--. Il [llanlter, ( hullur.i 1r t Iiih iu,,cmL and h '// l rt i t/lot r t t Ii , (l icd (,nieral ( nlra arr, f ,[ ifa/ni [lm h ,]i n ) 2 16) \I RH 236. 21' (I975) n ir edsiratul (iera ( mnlri, -1n, tle ork in dispule i ]\ed lile "l'adin . unloin. gidg and dillill[ of tructks hichI luerc] wiied for tr.1llipr - Ing equlpnenl and nllterlils ti .lid fr i Lo)ll'trtl Ul.II siles " I lie1 IfmplkiNcr rnillelded that hc.laue I itkx uerc used t i llx 111trilltt lllttt i11 1 i1 oper;ltio s. it utIlli he iIlefficleit di ille -llltc Iil IO I.: ild tie 111 i lk. o f truckdrlin tio emploir cs, repreeniled h Iclmlllltcrs I .[ 1-1) I ilT e .illre part. as in the inrntil ,se hbeAc lThe ble i et x.ilk he.r. e te drmi g l he HBoard aireed vi Ih the I ipl.er', c Ionteillr cial driving skills are needed for the work in dispute. Accordlingl. this factor favors an award of the dis- puted work to employees represented hb the abor- ers. 5. Lmploer's assignment and preference As previousl\ stated, the Emplo)er assignet the tasks of i nstalliig fences and uardrails and dri in tr-ucks to elmlplo ees represented bh the l.aborers. Also. a;s noted earlier. the niployer has had collee- ti ve-hargaining agreement with the L.aborers cover- ing its fence and uardrail installers for over the past 14 Nears. urthermore, the t ploer prefers that the stork in dispute colntinue to he assigned to emploeess represented b the I.aborers. Accordingl\. these fac- tors fa vor an avard of the disputed work to enplo}- ces represented bh, the I.aborers. ( 'oncl usion lipon the record as a whole and after full consid- eration of all the relevant factors inv olx ed. vr c(n- clude that the l:mplo\er's emploees represented bh the I aborers are entitled to perform the disputed uwork andl we shall determine the dispute in their fa- x or. herlc jobh impact. skills. and economrn and effi- ciencv favor an assignment of the work to emplo ees represented hb the l.aborers: where there is Fm- ploer and area practice which favor such an assign- ment: and here the }:mploer has been satisfied with and continues t prefer the assign ment, we must cornclude that an assignIent of the wuork to the l.a- borers is warranted. In miaking this deterininatioti. vC are assigni ng the disputetd work to emplo ees eplo ed hb the tml- plo er and represented bh the l.aborers. and not to that I!nion or its members. he present determin;la- tion is limited to the particular controversx which gave rise to this proceeding. D)tTERMINATION OF D)ISPLT'E Pursuant to Section 10(k) of the National I.abor Relations Act. as amended, and upon the basis of the foregoing findings. and the entire record in this pro- ceedinig. the National I .abor Relations Board malkes the following [)etermination f )ispute: 1. FinploNees of Del ucca ence ompanv. Inc.. who are represented hb Massachusetts Laborers [)is- trict Council. Laborers International Union of North America, Al. ('1(). are entitled to perform the work of fence anld ulardrail installation aind truckdrivinl at the EtmploNer's construction site in Ashhb. Mlassa- chusetts. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Truck Drivers & Helpers Local No. 170, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is not enti- tled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require DeLucca Fence Compa- ny, Inc., to assign the disputed work to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute. Truck Drivers & Helpers Local No. 170, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, shall notify the Regional Direc- tor for Region 1, in writing, whether it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination.