Laborers Massachusetts Council (A. Amorello & Sons)

National Labor Relations Board - Board Decisions

Jun 22, 1994

314 N.L.R.B. 61 (N.L.R.B. 1994)

61
314 NLRB No. 16
LABORERS MASSACHUSETTS COUNCIL (A. AMORELLO & SONS)
1 At the hearing, the Employer made a motion that the Board take
administrative notice of the transcript, exhibits, and briefs in Case
1–CD–925, involving a dispute between the Unions over driving the
Employer’s six-wheel trucks. We grant this unopposed motion. 2 All subsequent dates are in 1993 unless noted.
Massachusetts Laborers’ District Council and A.
Amorello & Sons, Inc. Case 1–CD–936
June 22, 1994
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS DEVANEY, BROWNING, AND COHEN
The charge in this Section 10(k) proceeding was
filed November 2, 1993, by A. Amorello & Sons, Inc.
(the Employer), alleging that the Respondent, Massa-
chusetts Laborers’ District Council (the Laborers), vio-
lated Section 8(b)(4)(D) of the National Labor Rela-
tions Act by engaging in proscribed activity with an
object of forcing the Employer to assign certain work
to employees it represents rather than to employees
represented by the International Brotherhood of Team-
sters, Local 170, AFL–CIO (the Teamsters). The hear-
ing was held December 21, 1993, before Hearing Offi-
cer Thomas J. Morrison. The Employer filed a
posthearing brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record,1 the Board makes the following findings.
I. JURISDICTION
The Employer is engaged in heavy and highway
construction involving paving, excavating, and install-
ing and repairing sewer systems. Annually the Em-
ployer purchases and receives goods valued in excess
of $50,000 directly from suppliers located outside the
Commonwealth of Massachusetts. The parties stipulate,
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 the Laborers and Teamsters 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 a seasonal construction busi-
ness in the Worcester, Massachusetts area. It has had
a collective-bargaining relationship with the Laborers
since approximately 1946 and with the Teamsters from
about 1967.
Historically the Employer has owned a fleet of six-
wheel trucks, including water trucks, that it uses on
construction projects. The Employer has also owned
10-wheel vehicles, including dump trucks, trailers, and
a low-bed truck. According to the Employer, employ-
ees represented by the Teamsters traditionally have
driven its 10-wheel trucks but Laborers-represented
employees have driven its water trucks and other six-
wheel vehicles. The dispute in this case centers exclu-
sively around assignment of the work of driving water
trucks.
In December 1992, the Employer wrote the Team-
sters stating that, for financial reasons, it was dis-
continuing its trucking operations effective January 1,
1993. Because of this decision no Teamsters-rep-
resented employees were recalled from layoff for the
1993 season. Instead, the Employer filled its needs for
driving 10-wheel vehicles by leasing trucks driven by
employees of a leasing company.
The Employer owns two types of water trucks. One
truck is a 2000-gallon fuel truck that the Employer has
converted for use with water. The Employer also uses
smaller ‘‘water wagons’’ consisting of water tanks
towed by six-wheel tool trucks. The water truck and
water wagons, which are infrequently used, are used to
control dust on jobsites, to protect equipment from
overheating, and to wet down paving rollers.
Because the large water truck is not registered, the
Employer moves it from site to site on a low-bed
truck. Previously, an employee represented by the
Teamsters drove the low-bed truck that transported the
water truck. Since 1993, the Employer has rented a
low-bed truck and driver to transport its water truck to
jobsites.
Once on a jobsite, employees represented by the La-
borers historically have operated the water truck and
water wagons. The Laborers-represented employee
who is assigned the water truck fills the water tank,
disperses the water, and moves the truck as needed on
the site. On average, the water truck is repositioned by
the laborer about three times each day, and each move
takes a few minutes. When the water truck is idle, the
laborer performs laboring work.
In the summer of 1993,2 the Employer used its
water truck on the I-190 highway construction job in
the Worcester area. On July 27, the Teamsters filed a
grievance alleging that water truck work traditionally
belonged to it, that the five employees it represented
were on layoff, and that the Employer improperly used
another employee for the water truck work. On August
9, counsel for the Employer wrote the Teamsters deny-
ing this grievance and stating that the Employer would
not arbitrate the work dispute. On August 10, the
Teamsters wrote the Employer’s attorney stating that
its contract, the Massachusetts Heavy Construction
Agreement, explicitly covered, among other things,
water and fuel trucks.
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 We have taken notice, supra, of the record in Case 1–CD–925
which involved six-wheel trucks other than the water trucks. There
the Laborers additionally argued that: (1) the Laborers’ agreement
covered small trucks, but the Teamsters’ contract generally covered
larger vehicles; (2) there was no voluntary mechanism to resolve the
dispute between the parties; (3) the Employer’s past practice clearly
favored assignment of the disputed work to employees it rep-
resented; (4) area practice favors an award of work to Laborers-rep-
resented employees; and (5) it would be much more costly and inef-
ficient to assign the disputed work to Teamsters-represented employ-
ees.
On October 5 or 6, Laborers’ regional director, Paul
McNally, telephoned the Employer saying he had
heard of the Teamsters’ grievance. McNally stated that
the water truck work belonged to the Laborers, and
that it always had. McNally additionally stated that he
would strike the Employer if it awarded the work to
the Teamsters.
B. Work in Dispute
The disputed work involves operation of the Em-
ployer’s water trucks on the Employer’s construction
projects in central Massachusetts.
C. Contentions of the Parties
1. The Employer
The Employer contends that the disputed work
should be assigned to employees represented by the
Laborers. The Employer maintains that for 47 years, its
undisputed, uniform practice has been for laborers to
drive its water truck and wagons. The Employer con-
tends that, until now, the Teamsters has never pro-
tested this work assignment. The Employer also argues
that it is more efficient and economical for Laborers-
represented employees to load, move, and spray water
because this work is an integral aspect of laboring. Ad-
ditionally, submits the Employer, because it takes only
a few minutes to move the water trucks, it would be
inefficient to assign this work to employees rep-
resented by the Teamsters.
The Employer further argues that if it were required
to assign the water truck work to Teamsters-rep-
resented employees it would have to lay off experi-
enced laborers from its construction crew. This, the
Employer submits, would result in a separate crew of
Teamsters-represented truckdrivers who would sit idle
in water trucks while laborers performed jobsite con-
struction work.
Finally, the Employer contends that assignment of
the water truck work is consistent with the parties’ col-
lective-bargaining agreements. Although the Employer
concedes that the Teamsters’ contract explicitly covers
water trucks, it argues that, from 1967 until now, the
Teamsters has never claimed that employees it rep-
resents were entitled to operate its water trucks.
2. The Laborers
The Laborers did not submit a brief in this case or
make a statement of position at the hearing. The La-
borers, however, has claimed the water truck work, as-
serting that it traditionally has been assigned to em-
ployees it represents. Through questioning by its coun-
sel at the hearing, the Laborers also sought to prove
that the Teamsters has never before contractually
claimed the water truck work, nor sought to resolve
the jurisdictional dispute under a purported 1947
agreement between the Laborers and the Teamsters.3
3. The Teamsters
The Teamsters did not file a brief or make a formal
statement of position. The Teamsters’ representative
did assert at the hearing, however, that the Teamsters’
contract explicitly covered water truck work and that
the Laborers’ agreement did not. In addition, a witness
for the Teamsters testified that the Teamsters recently
negotiated an agreement with another area employer,
Barton Trimont, which formalized that employer’s
practice of assigning water truck work to Teamsters-
represented employees. This witness further testified
that the Teamsters and Laborers have a longstanding
agreement to resolve jurisdictional disputes without
submitting them to Section 10(k) proceedings. Finally,
the Teamsters argued in this case, as well as in Case
1–CD–925, that it would not be a hardship for the Em-
ployer to reassign water truck work to employees it
represents. Unlike some other operations where Team-
sters’ drivers do not get out of their trucks, the Team-
sters asserts that the 10-wheel drivers frequently per-
form laborer work when they are not driving. The
Teamsters Union also asserts that, to its knowledge,
Laborers has never complained about Teamsters-rep-
resented drivers performing laborers’ work.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute under Section 10(k) of the Act, it must be
satisfied that: (1) there are competing claims for work;
(2) there is reasonable cause to believe that Section
8(b)(4)(D) has been violated; and (3) that the parties
have not agreed on a method for the voluntary adjust-
ment of the dispute.
Initially, we find that there are competing claims for
the water truck work. The Teamsters demanded this
work in a July 27 grievance against the Employer and
in its August 10 followup letter. The Laborers simi-
larly claimed the work in its October 5 or 6 telephone
call to the Employer.
There is also reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated. The Laborers threat-
ened to strike the Employer if it awarded the work to
63LABORERS MASSACHUSETTS COUNCIL (A. AMORELLO & SONS)
4 This agreement is between the Labor Relations Division of Con-
struction Industries of Massachusetts, Inc., of which the Employer is
a member, and the Massachusetts Laborers’ District Council of the
Laborers’ International Union.
the Teamsters-represented employees. See generally
Laborers (RMC Lonestar), 309 NLRB 412 (1992).
Finally, no agreed-on method exists for voluntarily
adjusting the dispute. Although the Teamsters and La-
borers entered into an agreement in 1947, which they
reaffirmed in 1991, providing that they would resolve
jurisdictional disputes without recourse to the National
Labor Relations Board, the Employer was not party to
this agreement. Second, although article 2, item 5, of
the Teamsters’ contract with the Employer contains a
mechanism for resolving jurisdictional disputes, this
provision applies only to disputes between Teamsters
locals. Finally, the Employer has made clear that it
would not arbitrate any dispute over assignment of the
water truck work.
On these bases, we find reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred and
that there exists no agreed method for voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act. 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 affirm-
ative 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 balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certification and collective-bargaining
agreements
There is no evidence that either Union has been cer-
tified to represent employees performing the disputed
work. Both parties assert, however, that their respec-
tive collective-bargaining agreements entitle them to
the water truck work.
The Laborers has had a collective-bargaining rela-
tionship and successive agreements with the Employer
for almost 50 years. The current contract, effective
from June 1, 1991, through May 31, 1994, provides at
article VIII, section 2, that heavy highway construction
work includes the ‘‘operation of all on-site pick-up and
service trucks.’’4
The Employer has had a bargaining relationship
with the Teamsters since about 1967. The 1993–1996
Massachusetts Heavy Construction Agreement, to
which the Employer and Teamsters Local 170 are
bound, covers ‘‘tank trucks used for transporting any
type of . . . water,’’ as well as the ‘‘transportation of
all building and excavating materials and equipment
including . . . water.’’ Identical provisions were in-
cluded in the 1990–1993 Massachusetts Heavy Con-
struction Agreement.
The 1991–1994 contract binding the Employer and
the Laborers arguably encompasses the disputed work.
Similarly, the 1990–1993 and 1993–1996 Teamsters’
agreements also purport to cover the disputed work.
Accordingly, this factor favors neither group of em-
ployees.
2. Employer preference
The Employer prefers to use employees represented
by the Laborers, rather than Teamsters-represented em-
ployees, to drive and operate its water trucks. There-
fore, this factor favors the award of the disputed work
to employees represented by the Laborers.
3. Employer past practice
For the approximately 47 years that the Employer
has been signatory to agreements with the Laborers, it
has assigned to employees represented by this Union
the work of driving and operating its water trucks.
Other than placing the water truck on a low-bed truck
and delivering it to the jobsite, the Teamsters Union
does not claim that employees it represents have ever
performed water truck work. Thus, the factor of em-
ployer practice favors the award of the disputed work
to employees represented by the Laborers.
4. Area practice
The Employer states that it does not know who
drives its competitors’ water trucks. The Teamsters
Union asserts that another area contractor, Barton
Trimont, assigns water truck work to its Teamsters-
represented employees, and has formalized this prac-
tice in its current contract with the Teamsters. Based
on the evidence presented, we find that the factor of
area practice is inconclusive.
5. Economy and efficiency of operations and
job impact
The Employer argues that it is more efficient to as-
sign the disputed work to employees represented by
the Laborers. The Employer asserts that water truck
work typically takes only minutes a day. During the
remainder of the workday, the Employer contends that
the laborer assigned to the water truck performs reg-
ular laboring work. Conversely, the Employer contends
that because it no longer employs any Teamsters-rep-
resented employees, it would be inefficient to use them
for water truck work. Thus, the Employer argues that
it would have to lay off one of its experienced and
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
skilled laborers and hire a Teamsters-represented em-
ployee for a few minutes’ work, because the Laborers
would not allow Teamsters-represented employees to
perform laboring work.
The Teamsters, in this case and in Case 1–CD–925,
claims that employees it represents have performed
considerable laboring work for the Employer. The
Teamsters asserts that when employees it represents
were not driving 10-wheel vehicles, they drove the
Employers’ other vehicles and performed laboring du-
ties.
Under these circumstances, we do not rely on these
factors in determining the assignment of the disputed
work.
6. Relative skills
The Employer contends that it was ‘‘satisfied with
the relative skills of employees represented by the La-
borers in operating the water trucks’’ and that, there-
fore, this factor favors the award of the work to em-
ployees the Laborers represents. The record, however,
contains no evidence as to whether special skills or li-
censes are required to operate the Employer’s water
trucks. Accordingly, this factor is inconclusive.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the Laborers are
entitled to perform the disputed work. We reach this
conclusion by relying on the factors of employer pref-
erence and past practice. In making this determination
we are awarding the work to employees represented by
the Laborers, not to that Union or its members.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of A. Amorello & Sons, Inc., represented
by Massachusetts Laborers’ District Council are enti-
tled to perform the work of driving and operating
water trucks for A. Amorello & Sons, Inc. on the Em-
ployer’s construction sites in central Massachusetts.