Local 825, Int'l Union of Operating Engineers

National Labor Relations Board - Board Decisions

Nov 29, 1962

139 N.L.R.B. 1426 (N.L.R.B. 1962)

1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consequently, as the record shows that the requested quarry workers
are engaged in work, basically dissimilar, and at locations separate,
from the mill employees and in view of the existence over a long
period of separate units limited to quarry workers, we find that the
requested units are appropriate."
In view of the foregoing, we find that the following employees of
Bennett Stone Company, Bloomington, Indiana, McNeeley Quarries,
Inc., Ellettsville, Indiana, and Mid-West Quarries Co., Inc., Bloom-
ington, Indiana, constitute separate appropriate units for purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act: All employees of each employer engaged in and about its quarry,
excluding office clerical employees, foremen, professional employees,
all employees represented by other labor organizations, guards, and
supervisors as defined in the Act."
[Text of Direction of Elections omitted from publication.]
10 See, Monon Stone Company, supra
n In Case No . 25-RC-2152 the Petitioner requests that employees "who have been," as
well as those who are, represented by other unions be excluded from its proposed unit.
We have not included such language in the unit description because past representation
of employees in some other unit does not warrant their exclusion at this time from the
requested unit if they otherwise come within its coverage . Also in Case No. 25-RC-2152,
the supervisory status of the quarry foreman and head hooker was questioned. As for
the quarry foreman, the record shows he is responsible for the quarry operations and
for the work of the employees there employed Accordingly , we find he is a supervisor.
However, there is no evidence showing that the bead booker has authority to hire, dis-
charge, discipline , or responsibly direct the work of, employees or to make effective recom-
mendations affecting the status of employees . Accordingly , we find the head hooker is not
a supervisor.
Local Union 825, International Union of Operating Engineers,
AFL-CIO and Schwerman Co. of Pa., Inc. Case No. 2f-CD-54.
November 29, 1962
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the Act following
a charge filed by Schwerman Co. of Pa., Inc., herein called Schwer-
man, alleging a violation of Section 8 (b) (4) (D) by Local Union 825,
International Union of Operating Engineers, AFL-CIO, herein
called Respondent or Operating Engineers. Pursuant to notice a
regularly scheduled hearing was held on July 24, 25, 26, 28, 31, and
on August 1, 2, 7, and 8, 1961, before Alvin Lieberman hearing officer.
All parties appeared at the hearing and were afforded full opportu-
nity to be heard, to examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. The rulings of the hearing officer made
at the hearing are free from prejudicial error and are hereby affirmed.
Thereafter, briefs were filed by Schwerman, Operating Engineers,
139 NLRB No. 124.
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 1427
and Local 773, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called Teamsters.
Upon the entire record in the case, the Board makes the following
findings :
I. THE BUSINESS OF THE EMPLOYER
Schwerman is a Pennsylvania corporation engaged in the transpor-
tation of bulk and bag cement. During 1960 it received revenue in ex-
cess of $100,000 for transporting cement from its terminals in Naza-
reth, Universal, and West Winfield, Pennsylvania, to points outside
the State of Pennsylvania. Accordingly, we find that Schwerman is
engaged in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
Operating Engineers and Teamsters are labor organizations within
the meaning of the Act.
III. THE DISPUTE
A. The work at issue
As previously stated, Schwerman is engaged in the transportation
of bulk and bag cement. The dispute herein involves only bulk ce-
ment. The vehicle used to transport the cement is a tractor-drawn
semitrailer. The trailer is of a tank-type and is specifically designed
for the transportation of dry, bulk products. Unloading is accom-
plished by aerating the cement in the tank and blowing it into a silo or
storage bin. More specifically, the tractor engine, through a power
takeoff, powers a blower which is mounted on the tractor. The blower
transmits air through a hose into the tank trailer causing the cement
to be forced through another hose into the storage bin. All equip-
ment necessary to the unloading process, including the hoses, is at-
tached to or carried upon Schwerman's tractor-trailer rig.
Once the trailer is placed in position beside the silo for unloading, the
precise work functions, all of which are in dispute, include coupling
the hose from blower to trailer and the hose from trailer to silo, en-
gaging the power takeoff in the tractor cab and setting the tractor
engine at the revolutions per minute prescribed by the blower manu-
facturer, observing pressure gauges on the trailer, and manipulating
a valve which controls the flow of cement.
The Operating Engineers claims that operation of the above-
described equipment, whenever it is used for unloading at the construe-
1 Respondent ' s request for oral argument is hereby denied since the record and briefs
adequately present the issues and the positions of the parties.
672010-63-vol. 139-91
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion site, comes within its work jurisdiction. Schwerman and the
Teamsters Union, which represents Schwerman's drivers, contend that
the drivers have been assigned and should perform the unloading.
B. Evidence of conduct violative of Section 8(b) (4) (D)
The Operating Engineers has a collective-bargaining agreement
with Selby Drilling Corporation, a subcontractor at the Spruce Run
Dam project near Clinton, New Jersey. Schwerman, whose drivers
are represented by the Teamsters, contracted with Universal Atlas
Cement Division of U.S. Steel Corporation to deliver cement to Selby
at the Spruce Run project and delivery began in early May 1961.
On June 8, 1961, Schwerman's driver delivered a load of cement to
the project and was told by a member of Operating Engineers that
the truck could only be unloaded by an operating engineer. The driver
acquiesced. On June 9 another Schwerman truck hauled cement to the
site but the driver, acting pursuant to his superior's instructions,2 re-
fused to accede to the request of the Operating Engineers job steward
to allow operating engineers employed by Selby to unload. Conse-
quently, the loaded trailer was returned to Schwerman's terminal. On
June 12 an operating engineer again insisted upon unloading a de-
livery, but the driver was ultimately allowed to unload that load
and two loads delivered on the following day.' On June 14 another
load was dispatched to the jobsite and the operating engineers again
insisted upon unloading. The driver refused to permit this and re-
turned the loaded truck to Schwerman's terminal.
On June 19 several Schwerman officials, including its vice president
in charge of operations, accompanied two loaded trucks to the Spruce
Run Dam site. As the drivers began to prepare the equipment for un-
loading, several operating engineers approached. The Operating En-
gineers job steward and two other engineers physically obstructed
the intake to Selby's silo so that the driver could not couple the hose
and effect the discharge of cement. Through its job steward the Op-
erating Engineers claimed the work of unloading the trucks, whereas
Schwerman's vice president and the driver insisted that unloading was
the driver's function. After considerable discussion and more
thwarted attempts to couple the discharge hose, Schwerman's vice
president, "under protest" and over the protests of the driver, al-
lowed the operating engineers to unload.
C. The contentions of the parties
Schwerman and the Teamsters contend that unloading bulk cement
from tank trailers through truck-mounted power equipment has tradi-
2 The June 8 incident had been reported to Schwerman officials
3 The details of this arrangement are not reflected in the record
LOCAL 825, INT'L UNION OF, OPERATING ENGINEERS 1429
tionally, throughout the United States, been performed by truck-
drivers and that the specific, disputed unloading has been assigned
to Schwerman's drivers by their collective-bargaining contract.
The Operating Engineers basically contend that, in the State of
New Jersey, such work has traditionally been performed by operating
engineers represented by it, as has the operation of all power equip-
ment on construction sites. Further it contends that its "dual-purpose
truck agreement" with the Teamsters places the power-unloading of
cement within its jurisdiction. Finally, it contends that the disputed
work has been assigned to operating engineers by virtue of its collec-
tive-bargaining contract with Selby Drilling Corporation.
D. Applicability of the statute
The Operating Engineers contend that the dispute herein is not
properly before the Board inasmuch as its "dual-purpose truck agree-
ment" with the Teamsters constitutes a method for voluntary adjust-
ment of the dispute. Apart, however, from questions as to the present
vitality of this agreement, it does not preclude our consideration of the
dispute as Schwerman was not a party thereto and has not adopted
the agreement.
Turning then to the events out of which the alleged violation of
8(b) (4) (D) stemmed, the record discloses that members of the Op-
erating Engineers, in the presence of and with the assistance of the
job steward, asserted on several occasions the right of operating en-
gineers to unload Schwerman's trucks. These attempts to acquire the
unloading functions culminated on June 19 in the Operating Engineers
members and job stewards physically preventing the unloading of
Schwerman's trucks. Considering together the claims to the work and
the physical interference by the Operating Engineers agent, it is rea-
sonable to conclude that the objects of such action were to cause
Schwerman's driver to refuse to perform the unloading and to cause
Schwerman to use operating engineers to unload its trucks. Un-
deniably the actions of the Operating Engineers had these effects. In
the circumstances we find that there is reasonable cause to believe that
a violation of Section 8(b) (4) (D) has occurred and that the dispute
is properly before the Board for determination under Section 10(k)
of the Act.
E. The merits of the dispute
There are no Board orders or certifications of representatives ap-
plicable to this dispute. In determining the merits of the dispute, the
following factors deserve attention :
1. Contract provisions
As previously stated, the Teamsters represent Schwerman's drivers
under a collective-bargaining contract. Also the Operating Engineers
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has a contract with Selby Drilling Corporation. In sum, the Oper-
ating Engineers contend that, as this agreement by its terms covers
all subcontractors of Selby and requires that all work be sublet subject
to the terms of the agreement, the unloading of Schwerman's trucks
is necessarily within its coverage, such unloading involving the oper-
ation of power equipment on the construction site. Inherent in such
reasoning is the conclusion that Schwerman is a subcontractor of
Selby and further that Schwerman acquired the work subject to the
terms and conditions set forth in the Operating Engineers contract
with Selby. The evidence, howeveor, does not support these con-
clusions. Thus, it is not shown that Schwerman in any manner
adopted any of the terms or conditions of the Operating Engineers
collective-bargaining contract. Indeed, it is not shown that any
contractual relationship exists between Schwerman and Selby. In
addition, Schwerman does not have and has never had a collective-
bargaining contract with the Operating Engineers. In these circum-
stances we find that the Operating Engineers has no contractual claim
against Schwerman respecting the work in dispute.4 On the other
hand, the Teamsters contract with Schwerman provides wage rates
for unloading by drivers and sanctions for careless loading and un-
loading. It therefore appears that driver-unloading was contem-
plated 5 even though, as the Operating Engineers points out, no spe-
cific assignment of the disputed work is made by the contract.
2. Union constitutions
Little, if any, aid is provided by the constitutions of either the
Operating Engineers or the Teamsters since each, by rather specific
provisions, lays claim to the general operations of loading and unload-
ing materials. Thus, the Operating Engineers constitution provides
that that organization has jurisdiction over "all other engines and
machines, . . . used on building and construction work, or in the load-
ing, unloading or storage of commodities, at or in terminals." Simi-
larly, the Teamsters constitution frames its jurisdiction as encompass-
ing "all workers loading or unloading freight, merchandise or other
material on to or from any type of vehicle ...."
4 The record shows , rather, that Selbey contracted with Universal Atlas Cement for
the purchase of cement, and Universal independently contracted with Schwerman to trans-
port the cement. Thus, schwerman was not a subcontractor of Selby, and would not be
bound even under the terms of the Operating Engineers contract with Selby, absent an
express assumption of the contract 's provisions by Schwerman Accord* Local 825,
International Union of Operating Engineers , AFL-CIO (Fluoro Electric Corporation),
128 NLRB 725. However, even assuming Schwerman to be bound by the Operating
Engineers collective-bargaining contract , that document , though extensively enumerating
devices whose operation "belongs" to operating engineers , by no means lays explicit claim
to the operation of the equipment in question
5 The uncontradicted testimony of the Teamsters negotiating committee chairman sub-
stantiates this finding
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 1431
3. Determinations of the Joint Board
The Operating Engineers submitted some 15 decisions of the Joint
Board for the Settlement of Jurisdictional Disputes as having a bear-
ing on the disposition of the disputed work. Nine of these decisions
related to the operation of forklifts while the remainder were con-
cerned with various devices such as a "dinky locomotive." a "hy-
dralift crane," and a "sand blasting compressor." Though most of
these decisions involved disputes between the Operating Engineers
and the Teamsters, none sheds light upon the dispute before us.
The Teamsters, on the other hand, point to a decision by an Arbi-
tration Committee appointed by the Executive Council of, and adopted
by, the Convention of the American Federation of Labor held in
Portland, Oregon, in October 1923. This decision resolved in favor
of the Teamsters their dispute with the Bridge and Structural Iron
Workers' International Union over the loading and unloading of
trucks, etc. The minutes of the 72d meeting of the Joint Board for
the Settlement of Jurisdictional Disputes dated May 19, 1950, contain
letters exchanged between Richard Gray, then president of the Build-
ing and Construction Trades Department, and William Green, then
president of the A.F. of L., by which Gray asked Green to render a
decision as to whether the above-mentioned 1923 decision related to
the handling of all materials or only to materials used by ironworkers.
President Green's interpretation, as reflected in his reply, was that
". .. loading, handling and unloading of materials on and off .. .
trucks .. . comes under the exclusive jurisdiction of the . . . Team-
sters ...." We note in this regard, however, that while this decision
is persuasive in the general area of the work in dispute, it apparently
has not operated to quell disputes as to specific methods of loading
and unloading. In fact, within the 1923 decision a distinction is made
where material is "hoisted" from the carrier, such hoisting remaining
within the jurisdiction of ironworkers.
No decision of the Joint Board has been presented which deals
with the specific machinery in question possibly because of its newness,'
and the fact that the Teamsters withdrew from the jurisdiction of the
Joint Board in March 1961.
4. Custom and practice
The evidence concerning custom and practice relating to the specific
equipment, owned by the specific employer involved, and in use at the
specific situs of the dispute herein, is in conflict. Thus, there is testi-
mony that Schwerman assigned the work of unloading its trucks to
O The record indicates that the equipment, the operation of which is in dispute, came
into use in 1959
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its own drivers and that the drivers performed this work. There is
other testimony, however, that operating engineers actually unloaded
Schwerman's trucks at the Spruce Run project. Broadening the scope
of inquiry to include the State of New Jersey, the same conflict exists.
Thus, there is testimony that operating engineers unload all cement
delivered to construction sites in the State, while there is other testi-
mony by both trucking company officials and drivers that all cement
hauled by truck is unloaded by drivers. In short, the record does not
permit a determination as to local practice with respect to the specific
work in dispute.
With respect to other relevant custom and practice, the record rather
firmly establishes that operating engineers operate the great part
of all power equipment used on construction sites, both at Spruce Run
and elsewhere. It is also apparent from the record that drivers unload
the type of cement trucks in question at delivery points other than
construction sites in New Jersey and at certain construction sites in the
State, though it is not shown that operating engineers were employed
on those sites. There is further evidence from officials of trucking
companies other than Schwerman that all unloading of the type of
dispute is assigned to drivers and any unloading by nonemployees
of the trucking companies has not been brought to their attention or
to the attention of Teamsters officials. There is evidence that drivers
are assigned the disputed work under the Teamsters Eastern Cement-
Haul Agreement which, the record shows, covers all major cement-
hauling companies in the Eastern United States, including New
Jersey. The Operating Engineers do not have a collective-bargaining
agreement with any signatory to this agreement. Similarly, under
the Teamsters agreement covering some 25 Central and Southern
States, unloading the equipment in dispute is assigned to drivers.
There is also direct testimony that in a number of these States drivers
actually perform the work which is the subject of the dispute herein.
The Operating Engineers submitted no specific' evidence to show
performance of the disputed work by operating engineers outside New
Jersey.
With regard to the specific custom and practice of hauling cement
by other means to construction sites, the record shows that operating
engineers have performed the unloading when cement was carried in
railroad cars. Operating engineers have also unloaded tank trucks
where the device used to develop the air for unloading was not
mounted on the truck. Also, operating engineers have unloaded, with
forklifts, bagged cement situated on pallets on truck beds. On the
other hand, when cement has in the past been hauled by dump-trucks,
the driver has customarily been responsible for unloading.
7 The Operating Engineers maintains, however , that its members operate all power
equipment on construction sites in the United States
LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 1433
The Operating Engineers contends that the equipment in question
is a "dual-purpose" truck, the operation of which on the construction
site has traditionally been within the jurisdiction of that organiza-
tion. Apart from the disputed question of whether Schwerman's ce-
ment truck is a dual-purpose truck, the record indicates that there are
exceptions to the rule that operating engineers operate such vehicles
on the construction site, and the exceptions involve vehicles in a sense
similar to the cement trucks. Thus, drivers unload ready-mix cement
trucks at construction sites. They also unload oil which is trucked
onto the construction site and off-loaded by a pump which is mounted
on the vehicle. These exceptions to the "general rule" are recognized
in New Jersey.
CONCLUSION
After consideration of the entire record, we are persuaded that
drivers employed by Schwerman are entitled to perform the disputed
work. Schwerman, consistent with its contract with the Teamsters,
assigned the unloading of its trucks to its drivers. While the Operat-
ing Engineers contends that the work was assigned by Selby to operat-
ing engineers, we note that no official of that company was called to
testify in this regard. Moreover, the work wasn't Selby's to assign.
The record shows that Schwerman's assignment to its drivers was con-
sistent with the practice of other cement-hauling companies within
the general area and over a large number of States.
While the Operating Engineers developed considerable evidence
to prove that its members operated various types of power equipment
on construction sites, the utility of such evidence in resolving the in-
stant dispute has been limited. Thus, accepting the argument that the
device used to develop air for unloading the trucks is a "compressor"
rather than a "blower," proof that operating engineers operate com-
pressors on construction sites does not settle the dispute, for this case
does not involve the operation of equipment customarily found on
construction sites. We are impressed by the fact that the equipment
customarily operated by operating engineers at construction sites is
more directly involved with actual construction work than is the
equipment in question. Thus, operating engineers may operate sta-
tionary compressors to provide air for jackhammers or sandblasters.
Similarly they may operate such a compressor even if it is mounted on
a truck, but the compressor is again being used in direct connection
with construction. Operating engineers may operate stationary com-
pressors for the purpose of pressurizing railroad cars or tank trucks
to effect the off-loading of bulk cement. Again however, the equip-
ment is located on the site and generally may be used for other pur-
poses more directly concerned with construction. A different situa-
tion exists with regard to the equipment whose operation is disputed.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, the sole function of the trucks involved herein is to transport
cement and other dry, bulk material. An integral part of the vehicle
is the device used to unload the cargo. It is a special device used only
for this purpose. As such it is inextricably tied to the primary func-
tion of the truck, which is transportation. The operation of such a
vehicle, including unloading, is more nearly analogous to the opera-
tion of the ready-mix truck or oil truck discussed previously.
Accordingly, we shall determine the dispute by deciding that driv-
ers employed by Schwerman are entitled to operate the truck-mounted
equipment for the purpose of unloading cargo from Schwerman's
trucks at construction sites. Our decision extends also to the coupling
of hoses, manipulation of valves, and all other functions necessary to
the discharge of cargo in the manner here in dispute. Our determina-
tion is limited to the particular controversy giving rise to this pro-
ceeding. By our determination we are assigning the disputed work
to drivers, who happen at the present time to be represented by the
Teamsters but not to the Teamsters or its members.
In view of our determination, we find that Operating Engineers
was not and is not entitled, by means proscribed by Section
8(b) (4(D), to force or require Schwerman to assign the work to its
members or employees represented by it.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
the case, the Board makes the following Determination of Dispute
pursuant to Section 10 (k) of the Act :
1. Employees engaged as drivers, currently represented by Local
773, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, are entitled to operate the truck-
mounted equipment used in unloading Schwerman 's trucks at the
Spruce Run Dam project , Clinton, New Jersey.
2. Local Union 825 , International Union of Operating Engineers,
AFL-CIO, is not entitled , by means proscribed by Section
8(b) (4) (D ), to force or require Schwerman Co. of Pa., Inc., to assign
the aforesaid work to employees engaged as operating engineers, who
are currently represented by Local 825 , International Union of Op-
erating Engineers , AFL-CIO.
3. Within 10 days from the date of this Decision and Determination
of Dispute , Local Union 825 , International Union of Operating En-
gineers, AFL-CIO, shall notify the Regional Director for the Twenty-
second Region, in writing, whether or not it will refrain from forcing
or requiring Schwerman Co. of Pa., Inc., by means proscribed by Sec-
tion 8 ( b) (4) (D) to assign the work in dispute to operating engineers
rather than to drivers employed by Schwerman.