Teamsters Local 420 (Stief Co.)

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 814 (N.L.R.B. 1994)

814
313 NLRB No. 138
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Operating Engineers Local 12 did not appear at the hearing.
2 In his report, the hearing officer incorrectly gives a date of Sep-
tember 1991 for Local 420’s threat of economic action against the
Employer. The correct date is August 24, 1992.
Building Material and Dump Truck Drivers, Local
420, International Brotherhood of Teamsters,
AFL–CIO and Stief Co. West and International
Union of Operating Engineers, Local 12, AFL–
CIO. Case 21–CD–608
February 28, 1994
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
The charge in this Section 10(k) proceeding, filed on
August 26, 1992, by the Employer, alleges that the Re-
spondent, Teamsters Local 420, 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 Op-
erating Engineers Local 12. The hearing was held on
May 19, 1993, before Hearing Officer Kevin R.
Steen.1 The Employer filed a posthearing brief.
The National Labor Relations Board affirms the
hearing officer’s rulings, finding them free from preju-
dicial error.2 On the entire record, the Board makes the
following findings.
I. JURISDICTION
The Employer, Stief Co. West, is a California cor-
poration engaged in highway construction. It annually
purchases and receives supplies worth over $50,000 di-
rectly from businesses within California, which in turn
purchase and receive supplies worth over $50,000 di-
rectly from businesses outside California. We find that
the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
Operating Engineers Local 12 and Teamsters Local
420 are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is a subcontractor engaged in the con-
struction of concrete barriers on bridge and highway
projects in California. As part of the construction proc-
ess, the Employer uses a boomtruck, which is a tractor
with a rear-mounted crane and an attached 45-foot
trailer. Heavy forms used in fabricating the barriers are
carried on the boomtruck trailer. The crane is used to
remove and position them at the jobsite.
The Employer’s employees who drive the
boomtruck and operate its crane are classified as work-
ing truckdrivers. In accord with its collective-bargain-
ing agreement with Teamsters Local 420, the Em-
ployer has assigned the driving and operation of its
boomtrucks to working truckdrivers represented by that
Union.
The Employer has never had a collective-bargaining
agreement with Operating Engineers Local 12. The
Operating Engineers, however, does have collective-
bargaining agreements with several general contractors,
including Kiewit Pacific, that provide grievance proce-
dures for resolving jurisdictional disputes. On August
19, 1992, Local 12 filed a grievance against Kiewit Pa-
cific regarding the subcontracting work involved here.
Local 12 Representative Brad Nelson informed Kiewit
Representative Bill Murphy that the work was operat-
ing engineers’ work and that Local 12 wanted Stief to
sign a collective-bargaining agreement with Local 12
and wanted an operating engineer on the boomtruck.
Subsequent to Local 12’s filing the above grievance,
Local 420 claimed in an August 24 letter that the
boomtruck work performed by the Employer at the
Garden Grove Interchange jobsite should continue to
be assigned to employees it represented. It also threat-
ened to take immediate economic action if the Em-
ployer removed these employees from boomtruck work
on that project.
B. Work in Dispute
The disputed work, as agreed to by the parties ap-
pearing at the hearing, involves the task of driving the
Employer’s boomtruck to and from jobsites and the
operation of the boomtruck at jobsites, including the
lowering, setting, and raising of barrier forms.
C. Contentions of the Parties
The Employer contends that there are competing
claims for the work in dispute and that there is reason-
able cause to believe that each of the Unions involved
in this proceeding has violated Section 8(b)(4)(D). The
Employer and Teamsters Local 420 maintain that the
work in dispute should be awarded to employees rep-
resented by the Teamsters on the basis of collective-
bargaining agreements, the Employer’s preference and
past practice, relative skills, area practice, and econ-
omy and efficiency of operations. In addition, the Em-
ployer seeks an award that encompasses not only per-
formance of the work in dispute at the Garden Grove
Interchange site, but also performance of such work at
all the Employer’s future jobsites in southern Califor-
nia.
As noted previously, Local 12 did not appear at the
hearing. Its legal counsel, in a letter that is in evi-
dence, advised the Regional Director for Region 21
815TEAMSTERS LOCAL 420 (STIEF CO.)
3 We do not construe counsel’s letter as an attempt to disclaim the
work. In that regard, we note that Local l2 sought to have an operat-
ing engineer represented by it placed on the boomtruck, rather than
have a current employee of the Employer placed under its represen-
tation.
4 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 with the general contractor.
that it does not seek representation of the Employer’s
employees and thus would not participate.3
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 no agreed-upon method for voluntarily resolving
the dispute. As discussed above, there is evidence that
representatives of Teamsters Local 420 and Operating
Engineers Local 12 have made competing claims to the
work in dispute.4 Teamsters Local 420 also threatened
economic action if the work in question did not con-
tinue to be assigned to employees it represents. We
therefore find reasonable cause to believe that such a
violation has occurred. We further find that no agreed-
upon method exists for voluntary adjustment of the
dispute within the meaning of Section 10(k) of the
Act. Thus, 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 a collective-bargaining agreement
with Teamsters Local 420 that covers the truckdriver
classification involved in performing the work in dis-
pute. The Employer has never had a collective-bargain-
ing agreement with Operating Engineers Local 12.
This factor favors award of the disputed work to em-
ployees represented by Teamsters Local 420.
2. Employer preference and past practice
The Employer has always assigned the work in dis-
pute to truckdrivers represented by Local 420 and pre-
fers to continue doing so. Consequently these factors
favor an award to employees represented by Local
420.
3. Area practice
The Employer and Local 420 presented testimony
that the area practice is to have the disputed work per-
formed by employees represented by the Teamsters.
No witness could cite any instance in which the work
in dispute was performed by employees represented by
the Operating Engineers. Absent evidence to the con-
trary, this factor also favors an award to employees
represented by the Teamsters.
4. Relative skills
A class 1 driver’s license is required to drive the
boomtrucks used in performing the work in dispute.
Employees represented by Local 420 possess this li-
cense. There was no evidence that employees rep-
resented by the Operating Engineers have a class 1
driver’s license. This factor weighs in favor of an
award to employees represented by the Teamsters.
5. Economy and efficiency of operations
The Employer presented testimony that it is both
safer and more efficient to have the truckdriver operate
the boom. The Employer also maintained that it is
more economical and more efficient to have its work
performed by employees represented by the Teamsters
because they work with a composite crew on other
tasks when they are not driving or operating the boom.
The Employer also testified that employees represented
by the Operating Engineers are only required to oper-
ate the boom. The uncontroverted testimony regarding
this factor thus favors award of the work to employees
represented by the Teamsters.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Teamsters Local
420 are entitled to perform the work in dispute. We
reach this conclusion by relying on the factors of col-
lective-bargaining agreements, employer preference
and practice, area practice, relevant skills, and econ-
omy and efficiency of operations. In making this deter-
mination, we are awarding the work to employees rep-
resented by Teamsters Local 420, not to that Union or
its members.
Scope of Award
The Employer has requested a broad award covering
the work in dispute at all future Stief Co. West
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
projects in southern California. To make such an
award, the Board must find that: (1) the work in dis-
pute 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 (Paschen Contractors),
270 NLRB 327, 330 (1984); Electrical Workers IBEW
Local 104 (Standard Sign), 248 NLRB 1144, 1147–
1148 (1980). Inasmuch as employees represented by
charged party Teamsters Local 420 have been awarded
the work in dispute, however, there is no identifiable
‘‘offending union’’ in this proceeding, and thus no
basis for any broad award. Accordingly, we limit the
award to the controversy at the jobsite that gave rise
to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Stief Co. West represented by Team-
sters Local 420 are entitled to perform the work on the
Garden Grove Interchange construction project of driv-
ing the Employer’s boomtruck to and from jobsites,
and operation of the boomtruck at jobsites, including
the lowering, setting, and raising of barrier forms.