Operating Engineers Local 12 (Stief Co West)

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 580 (N.L.R.B. 1992)

580
306 NLRB No. 109
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 By letter dated October 16, 1991, Operating Engineers Local 12
declined to appear at the hearing.
International Union of Operating Engineers, Local
12, AFL–CIO and Stief Co West
Building Material and Dump Truck Drivers, Local
420, International Brotherhood of Teamsters,
AFL–CIO and Stief Co West
Teamsters, Chauffeurs, Warehousemen, Industrial
and Allied Workers of America, Local 166,
International Brotherhood of Teamsters, AFL–
CIO and Stief Co West. Cases 21–CD–597, 21–
CD–598, and 21–CD–599
February 28, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The charge in Case 21–CD–597 in this consolidated
Section 10(k) proceeding was filed on September 10,
1991, by the Employer, alleging that the Respondent,
Operating Engineers Local 12, violated Section
8(b)(4)(D) of the National Labor Relations Act by en-
gaging in proscribed activity with an object of forcing
the Employer to assign certain work to employees it
represents rather than to employees represented by
Teamsters Local 420 and Teamsters Local 166. The
charges in Cases 21–CD–598 and 21–CD–599 were
also filed on September 10, 1991, by the Employer, al-
leging that the Respondents, Teamsters Local 420 and
Teamsters Local 166, violated Section 8(b)(4)(D) by
engaging in proscribed activity with an object of forc-
ing the Employer to continue to assign certain work to
employees they represent rather than to employees rep-
resented by Operating Engineers Local 12. The hearing
was held on October 16, 1991, before Hearing Officer
Jean C. Libby.1 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, the Board makes the following findings.
I. JURISDICTION
The Employer, Stief Co West, is a California cor-
poration engaged in the highway construction business.
It annually purchases and receives supplies worth in
excess of $50,000 directly from businesses located
within California which in turn purchase and receive
supplies worth in excess of $50,000 directly from busi-
nesses located outside California. We find that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that Operating En-
gineers Local 12, Teamsters Local 420, and Teamsters
Local 166 are labor organizations within the meaning
of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is a subcontractor engaged in the con-
struction of concrete barriers on numerous bridge and
highway projects in the State of California. As part of
the construction process, the Employer uses a boom
truck, which is a tractor with a rear-mounted crane and
an attached 45-foot trailer. Heavy forms used in the
concrete barrier fabrication process are transported on
the boom truck trailer and are positioned and removed
at the jobsite by operation of the crane.
The Employer’s employees who drive the boom
truck and manipulate its crane are classified as work-
ing truckdrivers. In accord with several collective-bar-
gaining agreements between the Employer and Team-
sters Locals 420 and 166, the Employer has assigned
the driving and operation of its boom truck to working
truckdrivers who are represented by those Unions.
The Employer has never had a collective-bargaining
agreement with Operating Engineers Local 12. The
Operating Engineers do have collective-bargaining
agreements, however, with general contractors Kasler,
MCM, and Brutoco. These agreements contain griev-
ance procedures to resolve jurisdictional disputes.
From July 1990 through August 1991, Operating Engi-
neers Local 12 filed four grievances against general
contractors claiming that boom truck work should be
performed by employees it represents rather than by
employees of subcontractor Stief Co who are rep-
resented by Teamsters Local 420 and Teamsters Local
166. Those grievances involved a Kasler project in the
Wilmington-San Pedro area of Los Angeles, a Brutoco
project on Gage Avenue, an MCM project on Oso
Parkway in Orange County, and a Kasler project on I-
10 in Redlands. In addition to the grievances, officials
of Operating Engineers Local 12 made direct claims to
Stief Co officials that operating engineers were entitled
to perform boom truck work on the first three of the
aforementioned projects.
On April 3, 1991, the Employer’s president, Judith
Carter, attended a second step meeting on the griev-
ance filed by Operating Engineers Local 12 against
Brutoco. Teamsters Local 420 agent Greg Boverson,
Operating Engineers Local 12 agent Bob Burns, and
Brutoco official Tom Salado were also present at the
meeting. Carter testified that Burns reacted to
Boverson’s assertion of a claim to boom truck work by
jumping from his chair, pushing the conference table
and papers against Carter and Salado, and threatening
to ‘‘get you both.’’
581OPERATING ENGINEERS LOCAL 12 (STIEF CO WEST)
2 For the reasons set forth in the ‘‘Scope of Award’’ section of
this Decision and Determination of Dispute, we reject the stipulated
inclusion of union jurisdictional areas in the description of the work
in dispute.
3 Chairman Stephens notes that, unlike the union in Laborers
Local 731 (Slattery Associates), 298 NLRB 787 (1990), in which he
dissented, Local 12 has not established that it has an arguably meri-
torious claim that work has been subcontracted to the Employer in
breach of a lawful union signatory subcontracting clause. Further, he
notes that Local 12 did not restrict its conduct to merely filing griev-
ances.
In letters to the Employer dated September 6 and
17, Teamsters Local 166 threatened to engage in eco-
nomic action if the boom truck work were reassigned
to employees represented by the Operating Engineers.
In letters to the Employer dated June 12 and Sep-
tember 5, Teamsters Local 420 also threatened eco-
nomic action if the boom truck were reassigned to em-
ployees represented by the Operating Engineers.
B. Work in Dispute
The disputed work involves the task of driving the
Employer’s boom truck to and from jobsites and the
operation of the boom truck at the jobsites.2
C. Contentions of the Parties
The Employer contends that there are current com-
peting claims for the work in dispute and that there is
reasonable cause to believe that each of the three
Unions involved in this proceeding has violated Sec-
tion 8(b)(4)(D). The Employer and the Teamsters
Locals contend that the work in dispute should be
awarded to employees represented by the Teamsters on
the basis of collective-bargaining agreements, the Em-
ployer’s preference and past practice, relative skills,
area practice, and economy and efficiency of oper-
ations. Furthermore, these parties seek a broad award,
encompassing not only the performance of the work in
dispute at current jobsites but also the performance of
such work at all future jobsites of the Employer in the
Southern California area.
As previously indicated, Operating Engineers Local
12 did not appear at the hearing. Its October 16 letter
contends that it ‘‘has not restrained or coerced the
charging party to affect its work assignments, nor is it
claimed [sic] the work in question as performed by the
charging party.’’
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k), it must be sat-
isfied that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated and that the parties
have not agreed on a method for voluntary adjustment
of the dispute. As discussed above, there is evidence
that representatives for Teamsters Locals 420 and 166
and Operating Engineers Local 12 made competing
claims to the work in dispute. It is also uncontroverted
that each Teamsters Local threatened to engage in eco-
nomic action if the Employer reassigned the work in
dispute to employees represented by Operating Engi-
neers. Although Operating Engineers Local 12’s letter
denies engaging in coercive action or claiming the
work in dispute, it is uncontroverted that an agent of
that Union threatened physical reprisal against the Em-
ployer’s president in the context of a discussion of a
grievance claiming the work in dispute and that Local
12 continues to maintain grievances seeking this work.
Based on the foregoing, we find reasonable cause to
believe that a violation of Section 8(b)(4)(D) has oc-
curred.3 We further find that there exists no agreed
method for voluntary adjustment 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. Collective-bargaining agreements
The Employer has collective-bargaining agreements
with Teamsters Locals 420 and 166 which generally
cover all truckdriver classifications and performance of
the work in dispute. The Employer and the Operating
Engineers have never had a collective-bargaining
agreement. We find that the factor of collective-bar-
gaining agreements favors an award of the work in dis-
pute to employees who are represented by the Team-
sters Locals.
2. Company preference and past practice
The Employer prefers that the work in dispute be
performed by truckdrivers who are represented by
Teamsters Local 420 and Local 166. The Employer
has consistently assigned boom truck work to employ-
ees represented by Locals 420 and 166 and has never
assigned such work to operating engineers. We find
that this factor favors an award to employees rep-
resented by the Teamsters Locals.
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. Area practice
The uncontroverted evidence is that other companies
using boom trucks in the Southern California area have
consistently assigned the driving and operation of
those trucks to truckdrivers who are represented by
Teamsters Local 420 and Teamsters Local 166. There
is no evidence of the work in dispute having been per-
formed by employees represented by Operating Engi-
neers Local 12. We find that this factor favors an
award of the work in dispute to employees who are
represented by the Teamsters Locals.
4. Relative skills
It is undisputed that a Class 1 driver’s license is re-
quired for the operation of a boom truck. Working
truckdrivers represented by the Teamsters Locals pos-
sess Class 1 licenses. There is no evidence that oper-
ating engineers customarily possess such licenses or
the truckdriving skills necessary to obtain them. Ac-
cordingly, we find that this factor favors an award of
the work in dispute to employees represented by the
Teamsters Locals.
5. Economy and efficiency of operations
According to uncontradicted testimony, working
truckdrivers represented by the Teamster Locals can
perform other concrete barrier construction tasks on a
composite work crew at times when they are not need-
ed to operate the boom truck. Operating engineers
would be able only to perform the work in dispute.
They would sit idle at times when there was no boom
truck work to be done. Accordingly, we find that the
factor of economy and efficiency of operations favors
an award of the work in dispute to the employees rep-
resented by the Teamsters Locals.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Teamsters Locals
420 and 166 are entitled to perform the work in dis-
pute. We reach this conclusion by relying on factors
of collective-bargaining agreements, employer pref-
erence and past practice, area practice, relevant skills,
and economy and efficiency of operations. In making
this determination, we are awarding the work to em-
ployees represented by Teamsters Locals 420 and 166,
not to those Unions or their members.
Scope of Award
The Employer and the Teamsters have requested a
broad award covering the work in dispute at all future
Stief Co projects in which the geographic work areas
of Teamsters Locals 166 and 420 overlap with Oper-
ating Engineers Local 12. Before the Board will make
such an award, it must be shown that: (1) the work in
dispute has been a continuous source of controversy in
the relevant geographic area and is likely to recur; and
(2) the offending union has a proclivity to engage in
further unlawful conduct in order to obtain the work
in dispute. See, e.g., Laborers International (Paschen
Contractors), 270 NLRB 327, 330 (1984); Electrical
Workers IBEW Local 104 (Standard Sign), 248 NLRB
1144, 1147–1148 (1980). There is no indication in this
record that Operating Engineers Local 12 is likely to
engage in unlawful conduct in pursuit of work similar
to the work in dispute at future projects. Accordingly,
the award is limited to the controversy at the jobsites
that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Stief Co West represented by
Teamsters Local 420 and Teamsters Local 166 are en-
titled to perform the work of driving to and from the
jobsite and operating boom trucks for Stief Co West.
2. Operating Engineers Local 12 is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force Stief Co West to assign the disputed work to em-
ployees represented by it.
3. Within 10 days from this date, Operating Engi-
neers Local 12 shall notify the Regional Director for
Region 21 in writing whether it will refrain from forc-
ing the Employer, by means proscribed by Section
8(b)(4)(D), to assign the disputed work in a manner in-
consistent with this determination.