Local No. 505 Teamsters

National Labor Relations Board - Board DecisionsFeb 27, 1979

240 N.L.R.B. 960 (N.L.R.B. 1979)

960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 505, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and E. B. Combs Painting and Sandblasting Company and Badger Plants, Inc. and International Brotherhood of Painters and Allied Trades, Local 1072, AFLCIO. Cases 9-CD-357 and 9-CD-358 February 27, 1979 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, MURPHY, AND TRL ESDALE This a consolidated proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by E. B. Combs Painting and Sandblasting Company, herein called Employer Combs, and by Badger Plants, Inc., herein called Employer Badger, alleging that Local No. 505, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters Local 505, had vio- lated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Employer Combs and/or Employer Badger to assign certain work to its members rather than to employees represented by International Brotherhood of Painters and Allied Trades, Local 1972, AFL-CIO, herein called Painters Local 1072. Pursuant to notice, a hearing was held before Hearing Officer Donald L. Crain on December 5, 1978. All parties appeared and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the is- sue. 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 Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYERS The parties stipulated, and we find, that Employer Combs, an Alabama corporation with its principal place of business in Alabama, is engaged in the busi- ness of industrial painting. During the past year. Em- ployer Combs purchased goods and materials from outside the State of Alabama having a value in excess 240 NLRB No. 125 of $50,000 which were shipped directly to its Ala- bama jobsites. Also during the past year, Employer Combs purchased goods and materials from outside the Commonwealth of Kentucky having a value in excess of $50,000 which were shipped directly to its Kentucky jobsites. The parties stipulated, and we find, that Employer Badger, a Massachusetts corporation, is engaged in the business of industrial construction. During the past year Employer Badger purchased goods and materials from outside the Commonwealth of Ken- tucky having a value in excess of $50,000 which were shipped directly to its Kentucky jobsites. Accordingly, we find that the Employers are en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local No. 505. affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; and International Brotherhood of Paint- ers and Allied Trades, Local 1072. AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. IHE DISPUTE A. The Work in Dispute The work in dispute, as specified in the notice of hearing, consists of the driving of pickup and deliv- ery trucks, or other trucks, of the E. B. Combs Paint- ing and Sandblasting Company on the site of the H. Coal project under construction by Badger Plants, Inc., at Catlettsburg, Kentucky. B. Background and Facts of the Dispute Employer Badger is the general contractor for the construction of a coal conversion plant, known as the H. Coal project, at Catlettsburg, Kentucky. Em- ployer Combs is a painting subcontractor on that project; it commenced work on the project on or about October 5, 1978.' In performing its operations on the H. Coal proj- ect, Employer Combs employs approximately 12 em- ployees and uses a 3/4-ton pickup truck to transport materials, supplies, and employees to and from its various work locations within the boundaries of the construction project. From on or about October 5 All dates hereinafter refer to 1978 unless otherwise indicated. LOCAL NO. 505. TEAMSTERS through November 5, this truck was driven only by Employer Combs' employees. Employer Combs' nonsupervisory employees on the H. Coal project are members of and are represented by Painters Local 1072. On Friday, November 3, Teamsters Local 505's secretary-treasurer, Donald Bartram, complained to Employer Badger's project manager. Earl Bartash- nick, about the fact that the Painters were driving Employer Combs' pickup truck. Bartram requested that a teamster be used to drive the truck, in accor- dance with the subcontracting provisions of Em- ployer Badger's alleged collective-bargaining agree- ment with Teamsters Local 505.2 Bartashnick replied that if he took a painter off the truck and put a team- ster on, "[w]e'll have problems with the Painters." Bartram replied that if a teamster was not put on the truck, "you will have a problem with the Teamsters." Bartashnick thereupon agreed to put a teamster on the truck, starting Monday, November 6, at Em- ployer Badger's expense (i.e., on Employer Badger's payroll). Employer Combs understood the placement of a teamster on its truck to be a temporary measure, pending final resolution of the underlying work as- signment dispute. From November 6 through November 10, a team- ster on Employer Badger's payroll operated Em- ployer Combs' pickup truck. On Monday, November 13, Painters Local 1072's business agent advised Em- ployer Combs' project foreman that driving the truck was Painters work, that it had historically been so, and that Teamsters could no longer be permitted to operate the truck. Employer Combs' foreman, with- out notifying Employer Badger, thereupon told the teamster driver that he could no longer operate the truck. A member of Painters Local 1072 operated the truck for the remainder of that day. On the morning of Tuedsay, November 14, a sign was posted at the entrance to the project site: the sign stated: "UNFAIR LABOR PRACTICE ON THIS JOB SITE." All parties to this dispute concede that the only known labor dispute on the project at that time was the instant controversy. All employees on the project except the pipefitters honored the picket sign, and a work stoppage ensued. Although no persons actually carried picket signs or otherwise identified themselves with the work stoppage, Team- sters Local 505's job steward testified at the hearing that the dispute in question was over Employer Combs' removal of the teamster from the truck on November 13. The work stoppage remained in effect from November 14 through November 26. On Wednesday, November 22, representatives of : The contractual aspects of this dispute are dealt lth in sec El. ira Employers Badger and Combs and Teamsters Local 505 attended a meeting with the Regional Director for the Board's Region 9 in Cincinnati, Ohio, in an attempt to reach a voluntary resolution of the work assignment dispute.3 While no final resolution was reached, it was agreed that starting Monday, Novem- ber 27, a teamster on Employer Badger's payroll would be assigned to drive Employer Combs' pickup truck and would remain so assigned pending the de- termination of the dispute by the Board. On Sunday, November 26, a Teamsters Local 505 meeting was held, and the membership was informed of the temporary agreement reached in Cincinnati. The membership was told that the Teamsters would go back to work on the H. Coal project the next morning. On Monday, November 27, the picket sign was no longer present, and the work stoppage came to an end. C. The Contentions of the Parties Employer Badger contends only that the record establishes reasonable cause to believe that Section 8(b)(4)(D) has been violated. It takes no position on the question of to whom the work in dispute should be awarded and urges only that a final determination of the dispute be made. Both Employer Combs and Painters Local 1072 contend that the work in dispute should be awarded to Employer Combs' employees, who are represented by Painters Local 1072. Their contention is based on (1) contractual considerations; (2) company, area, and industry practice: and (3) economy and efficien- cy of operation. Teamsters Local 505 contends that the record does not establish reasonable cause to believe that Section 8(b)(4)(D) has been violated. It further contends that the work in dispute should be awarded to employees whom it represents, on the basis of () contractual considerations and (2) area practice. 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 (1) that there is reasonable cause to believe that Section 8(b)(4)(D) has been vio- lated and (2) that the parties have not agreed upon a method for the voluntary adjustment of the dispute. As to () above, the record reveals that both Paint- ers Local 1072 and Teamsters Local 505 have claimed the work in dispute, which from on or about October 5 through November 5 was performed by P.llnters Local 1072 was not represented at this meeting. 961 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer Combs' employees, represented by Paint- ers Local 1072. From November 6 through 10, how- ever, the disputed work was performed by a teamster after Teamsters Local 505's secretary-treasurer ad- vised Employer Badger that it would "have a prob- lem with the Teamsters" if a teamster was not as- signed to perform the work in dispute. Then, on November 13, the teamster that had been assigned by Employer Badger to perform the disputed work was relieved of those duties by Employer Combs af- ter a complaint from a Painters Local 1072 represen- tative. On November 14, a picket sign proclaiming "UNFAIR LABOR PRACTICES ON THIS JOB SITE" was posted at the entrance to the construction project, and a work stoppage thereafter ensued which effectively shut down work on the entire construction project. According to Teamsters Local 505's job steward, this work stoppage was precipitated by Em- ployer Combs' November 13 removal of the teamster from the work in dispute. The work stoppage did not end until November 27, when a teamster was reas- signed to the work in dispute by Employer Badger. In these circumstances, we find that there is reason- able cause to believe that Teamsters Local 505 threatened and eventually caused the aforemen- tioned work stoppage for an object proscribed by Section 8(b)(4)(D) of the Act. With respect to (2) above, the only evidence of- fered of an agreed-upon method for the voluntary adjustment of this dispute is the Jurisdictional Dis- putes and Arbitration-Grievance Procedure clauses of Teamsters Local 505's Building Construction Agreement with the Tri-State Contractors Associa- tion. However, since Employer Badger contends that it is at most only partially bound by this agreement (as discussed more fully in sec. E,l, infra) and since neither Employer Combs nor Painters Local 1072 is in any way bound by it, we find that there is no agreed-upon method for the voluntary resolution of this dispute which is binding upon all the parties con- cerned. Accordingly, upon the basis of the entire record. we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the voluntary adjustment of the dispute within the mean- ing of Section 10(k) of the Act. Thus, we find that this dispute is properly before the Board for determi- nation. E. Merits. of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors. 4 The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case.5 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements and Board certifications Employer Combs asserts that it has a collective- bargaining agreement with Painters Local 779, Mo- bile, Alabama (not a party to this proceeding), which requires Employer Combs, inter alia, to employ painters from the geographically appropriate Paint- ers local when Employer Combs engages in work be- yond the geographical jurisdiction of Painters Local 779.6 Pursuant to this purported contractual obliga- tion, on October 9 Employer Combs entered into a memorandum of understanding with Painters Local 1072. covering Employer Combs' operations on the H. Coal construction project. This memorandum of understanding requires Employer Combs to abide by all of the provisions of Painters Local 1072's local "area contract." 7 Employer Badger and Teamsters Local 505 both assert that Employer Badger is a party to a national agreement with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.? Teamsters Local 505 has a local area building construction agreement with the Tri-State Contractors Association. Employer Badger is not a member of Tri-State and is not a signatory to that agreement. Employer Badger claims that its national agree- ment with Teamsters International requires only, in effect, that Employer Badger abide by the terms of Teamsters Local 505's contract with Tri-State as it pertains to wages and fringe benefits alone. Team- sters Local 505 asserts, on the other hand, (1) that Employer Badger's national agreement with Team- sters International requires, in effect, that Employer Badger fidl/, abide by all terms of Teamster Local 505's contract with Tri-State and (2) that as a result of the operation of Employer Badger's national agreement with Teamsters International, Employer Badger, in effect, stands in the shoes of a Tri-State member with respect to Tri-State's contractual obli- 4 N 1, R B v. Radio and eleivion Broadcast ngineer Ulnion, Icxal 1212. Inlernotional Brorherhood of Electrical Workers. A FL (10O (Columbia Broad- i(a/mt .SIcwmnl, 364 U.S. 573 (1961). Intclrilllnal .A4ow(iaion ot AMachinisrv . odge o. 1743. 4 L- CIO (J. A. Jomne (/onsrlntion (onmpanv), 135 NLRB 1402 (1962). -A copy of this collective-hargaining agreement is not in evidence. A cop) of this local "area contract" is not in evidence. A copv of this national agreement is not in evidence. LOCAL NO, 505, TEAMSTERS 963 gations to Teamsters Local 505.9 It is evident that before the Board can attach an weight to collective-bargaining agreements as a fac- tor in awarding the work in dispute to one of the competing groups of employees, it must have before it copies of such purportedly relevant agreements. Here, neither Painters Local 1072's "area contract" nor Employer Badger's national agreement with Teamsters International is in evidence. Since Em- ployer Combs' memorandum of understanding with Painters Local 1072 relies for its substantive effect on Painters Local 1072's "area contract." we have no basis for determining whether Employer Combs and Painters Local 1072 have an agreement which covers the work in dispute. Similarly, the dispute between Employer Badger and Teamsters Local 505 as to the extent, if any, to which the former is bound bh the terms of the latter's building construction agreement with the Tri-State Contractors Association cannot be resolved without an inspection of Employer Badger's national agreement with Teamsters International. Accordingly, we are unable to rely on contractual considerations in determining this work in dispute. There is no evidence that either of the labor orga- nizations involved in this dispute has been certified by the Board as the collective-bargaining agent for a unit of either of the Employers' employees. Conse- quently, Board certifications are not a factor in re- solving this dispute. 2. Economy and efficiency of operation The record indicates that Employer Combs' pickup truck is driven, at most. a total of an hour and a half per normal 8-hour workday on the H. Coal project. On the limited occasions when the pickup truck is needed to transport materials, supplies, or painters from one location to another on the project site, a painter is available to drive the truck.'0 When not driving the pickup truck, painters paint and per- form other craft tasks. and in general remain produc- tive members of Employer Combs' painting crew. On the other hand, when not driving the pickup truck. a '~Teamsters L.ocal S05's contracl oath I r-Stalte requires. iii, it. ( I ial the wages. hours, and orking condition, contained therein hall in turn appl 5 to anN subcontract let h the contractors: (2t that eniplocs co.ered therein shall he emplo.ed on a project heneser an vork co.ercd therein is being performed (including. inter ai, the drniing f pickup trucks): and 31) that the (ontractors shall respect the lurisdictional rules f Iealilsicr, I.ocal 55 and shall not direct emplo\ees who are nolt in leanlsters I oc.il 505's bargainlig unit to perform work which recognized hei llE lthln [ eanisters lurisdictlon. M I he record reveals tha n speclal skill i. Ira uit. experience. or qull.ifl- callons are required to per ate nlipl)o\er ( nblh ' pickup truck and thi whicheser painter happens to he mniost asailahle it the time the truck is needed is assigned to die it hus. the relaltie skills of priltcrs atid tealll- sters as pickup-truck dri ers are not factors hich assist Li* ill dtecrin ti this dispute. teamster would otherwise remain idle. In light of the t\pe of work in which the pickup truck is engaged. it is apparent that such work is merely incidental to the primary function of a painter. Since painters can and have operated the pickup truck as part of their regu- lar duties, and since the assignment of the work in dispute to employees who are represented by Team- sters l.ocal 505 would require hiring an extra, un- needed. and otherwise unproductive employee. it is clear that the work in dispute is done more economi- call!x if it is performed by employees represented by Painters Local 1072. Accordingly. we find that fac- tors of economy and efficiency of operation favor the assignment of the work in dispute to Employer Combs' employees. who are represented by Painters I.ocal 1072.'i 3. Emploer preference and practice For the reasons discussed in the preceding section. Ermployer ('ombs prefers that employees represented by Painters Local 1072 be assigned the work in dis- pute.' 2 As indicated above, Employer Badger has ex- pressed no preference in this regard. By letter of October 16 to Painters Local 1072. Emploer Combs made the followinl formal work assignment for the II. Coal project: Operation and maintenance of any or all trucks, large or small. Any vehicle used to transport [Employer ('ombs'] work forces. equipment. paints, thin- ners. consumables, sand or small tools shall be operated b members of the Painters Union - 1072. Furthermore. Employer Combs asserts that although the Teamsters have requested to drive the pickup truck at other times and in other locations. Employer Combs has never hired Teamsters to do so. but has instead, for at least the past 20 ears. assigned the driving of its pickup truck to its painter employees.) Consequentl. we find that Employer Combs' prac- tice. assignment. and preference favor awarding the work in dispute to its employees who are represented by Painters Local 1072. [ca o,',!r1 I tsa I tx/ it \'' l'(It it'/[l I ,oijkr.,t (, . 240 N RB No 91 (179i. Bui//tdi tIi.'wral & tr Irit I l)retr-. It1,-i 4'1 (4il 4 altri- ii 4 pha/l. In 28 NIRB 934 1978) - Ilt thil regard, tplocr ( onlhbs asserts thait on secsril ,tcasolls &hell ti t. ilster .as l c, agned to driel the truck h I nlpl]o-cr Badcr. iluch tinle ,as spent i l ioc.ltill the rliel onr the .ohite lel a teed arose to tr an- port nteriils ind uppiles froli ei lcwti i .Inthrilet .s indicated earlier, thlie driini of iniploser ( oih, pickup truck hx eilistce froti ,Noeithetr 6 10 aid fromt Nsteihcf r 2 7 onaarsd s;is ;it the directitt and epeinse f [I [pl,xcr Badger LOCAL NO. 505. TEAMSTERS 3 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Area and industry practice Painters Local 1072 asserts that the historical prac- tice for at least the past 20 years in the local area in question is for Painters to drive the pickup trucks of painting subcontractors on construction projects and that, with specific reference to the H. Coal project, Painters in fact drive the pickup trucks of the other two painting subcontractors employed by Employer Badger on the H. Coal project. Teamsters Local 505, while denying any firsthand knowledge of the presence or practices of the two other painting subcontractors on the H. Coal project, nevertheless asserts that the practice in the local area is for Teamsters to drive the pickup trucks of paint- ing contractors and subcontractors on construction projects. However, Teamsmters Local 505 was able specifically to name only one painting subcontractor (J. L. Manta, in 1970) for whom its members drove pickup trucks prior to being assigned by Employer Badger to drive Employer Combs' pickup truck on November 6. Under these circumstances, we find that the fac- tors of area and industry practice favor awarding the work in dispute to Employer Combs' employees, who are represented by Painters Local 1072. Conclusion Upon the record as a whole, and after full consid- eration of all relevant factors involved, we conclude that employees who are represented by Painters Lo- cal 1072 are entitled to perform the work in dispute. We reach this conclusion relying on the relative effi- ciencies and concurrent economies of operation re- sulting from such an assignment, the prevailing area and industry practice, and Employer Combs' own demonstrated practice and preference in assigning the work in dispute to its painter employees. In mak- ing this determination, we are awarding the work in question to employees who are represented by Paint- ers Local 1072, but not to that Union or its members. The present determination is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute: I. Employees of E. B. Combs Painting and Sand- blasting Company, who are represented by Interna- tional Brotherhood of Painters and Allied Trades, Local 1072, AFL-CIO, are entitled to perform the work of driving pickup and delivery trucks of said company on the site of the H. Coal project under construction by Badger Plants, Inc., at Catlettsburg, Kentucky. 2. Local No. 505, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require E. B. Combs Painting and Sandblast- ing Company or Badger Plants, Inc., to assign the disputed work to employees represented by that la- bor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 505 shall notify the Regional Director for Region 9, in writing, whether or not it will refrain from forcing or requir- ing 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.