Teamsters Local No. 864

National Labor Relations Board - Board Decisions

Nov 23, 1976

226 N.L.R.B. 1127 (N.L.R.B. 1976)

TEAMSTERS LOCAL NO 864
Teamsters Local Union No . 864 and Rocky Mountain
Prestress , Inc. and Ironworkers Local Union No.
396. Case 17-CD-206
November 23, 1976
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, based on
a charge filed by Rocky Mountain Prestress, Inc.,
herein called the Employer. The charge alleges that
Teamsters Local Union No. 864, herein called Team-
sters, violated Section 8(b)(4)(D) of the Act by en-
gaging in certain activity in order to force the Em-
ployer to assign certain work to individuals
represented by Teamsters rather than to employees
of the Employer represented by Ironworkers Local
Union No. 396, herein called Ironworkers.
A duly scheduled hearing was held on April 28,
1976, before Hearing Officer John P. Hurley. Al-
though properly notified, neither Union appeared at
the hearing. The Employer appeared and was afford-
ed full opportunity to be heard, to examine witnesses,
and to adduce evidence bearing on the issues. There-
after, a brief was filed by the Employer.
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-
ing made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is a contractor engaged in the man-
ufacture and erection of concrete foundations for
buildings, from a facility located in Kansas City,
Kansas. The Employer annually sells goods and ma-
terials or performs services valued in excess of
$50,000 directly to customers located outside the
State of Kansas, and it annually purchases goods and
materials valued in excess of $50,000 directly from
sources located outside the State of Kansas. We find
that the Employer is engaged 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 juris-
diction herein.
11. THE LABOR ORGANIZATIONS INVOLVED
1127
We find that Teamsters and Ironworkers are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute concerns the assignment of
the following work task:
The driving of a truck belonging to Rocky
Mountain Prestress, Inc., outfitted with a port-
able welding machine and tools used in conjunc-
tion with the erection of enlisted men's barracks
at Fort Leonard Wood, Missouri.
B. Background and Facts of the Dispute
The Employer has a contract to provide hollow-
core floor and roof members, stairs, and landings for
the enlisted men's barracks at Fort Leonard Wood,
Missouri. The Employer's construction crew is repre-
sented by five different labor organizations, includ-
ing the Teamsters and the Ironworkers, parties
herein.
On March 24, 1976, Berlin Wallace, business agent
for the Teamsters, called Turner Carter, general
manager for the Employer, and demanded that the
Employer assign the work of driving its tool pickup
truck to members of the Teamsters. Since the tool
pickup truck had customarily been driven by an iron-
worker, Carter refused to grant the Teamsters re-
quest.
On March 29, 1975, the Teamsters began picketing
in protest of the Employer's job assignment and
again, through its business agent, demanded that the
work of driving the tool pickup truck be assigned to a
member of the Teamsters. As a result of the picket-
ing, all work at the Fort Leonard Wood construction
jobsite was shut down. The picketing was withdrawn
shortly after the charge in the instant case was filed
on March 30.'
The pickup truck in question carries a welding ma-
chine, which is permanently attached to the bed of
the truck, and other tools used by the construction
site's ironworkers. The truck is driven to the jobsite
every day by the ironworker foreman, who uses the
truck for his personal transportation after hours.'
' Neither the Teamsters nor the Ironworkers appeared at the hearing The
above findings are based on the uncontradtcted testimony of Turner Carter,
general manager for the Employer
2 The only evidence in the record concerning the ironworkers foreman's
Continued
226 NLRB No. 181
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer is required under its contract with the
Ironworkers to provide the foreman with this person-
al transportation.
C. Contentions of the Parties
The Employer contends that a jurisdictional dis-
pute exists and that there is reasonable cause to be-
lieve that Section 8 (b)(4)(D) of the Act has been vio-
lated . It further contends that the disputed work
should be awarded to the employees represented by
the Ironworkers on the basis of its collective -bargain-
ing agreement with the Ironworkers , its assignment
of the work , past practice, and economy and efficien-
cy.
None of the other parties made any contentions.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of dispute pursuant to Section 10(k) of the Act,
it must be satisfied that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated and
that there is no agreed-upon method for voluntary
adjustment of the dispute.'
The Board is not required to find that a violation
did in fact occur, but only that there is reasonable
cause to believe that a violation has been committed.
Considering the matter in this light, and in view of
the fact that the testimony given at the hearing was
uncontroverted, we have no difficulty finding that
there is reasonable cause to believe that the Team-
sters picketed the Employer's jobsite with the intent
of causing the Employer to assign the work in dis-
pute to employees represented by the Teamsters. Ac-
cordingly, we find that there is reasonable cause to
believe that Section 8(b)(4)(D) of the Act has been
violated and that the dispute is properly before the
Board for determination under Section 10(k).
E. Merits of the Dispute
1. Collective-bargaining agreement
The Employer's collective-bargaining agreement
with the Ironworkers requires that the ironworker
status is that he is a "working foreman" and a member of the Ironworkers
bargaining unit Since no party to the proceeding has claimed that the iron-
worker foreman is a supervisor within the meaning of the Act, and in the
absence of any concrete evidence which establishes that he is in fact a
supervisor , we presume him to be an employee within the meaning of the
Act
3 By a letter sent to the Regional Director prior to the hearing, Ironwork-
ers certified that its failure to appear and participate at the hearing should
not be interpreted to mean that it does not continue to claim the work in
dispute
foreman be permitted to drive the tool pickup truck
for his personal use . This factor favors the Ironwork-
ers.
2. Employer and area practice
The Employer has always assigned the work in dis-
pute to ironworkers. This factor favors the Ironwork-
ers.
3. Economy and efficiency
The Employer's general manager testified that af-
ter the tool pickup truck has been driven to the job-
site the truck generally sits where it is parked for the
entire day, although occasionally it is necessary to
drive it from one portion of the jobsite to another
during the course of the day. The ironworker fore-
man spends the bulk of his time working as an iron-
worker and only a small amount of his time driving
the pickup truck. Thus, if a Teamsters-represented
employee were assigned the job of driving the pickup
truck, that employee would spend virtually all of his
time doing nothing. This factor consequently favors
the Ironworkers.
Conclusions
Upon the entire record as a whole, and after full
consideration of all relevant factors involved, we
conclude that the employees of the Employer who
are represented by the Ironworkers are entitled to the
work in dispute. In reaching this conclusion, we have
particularly relied on the Employer's assignment of
the disputed work to its employees; the fact that this
assignment is consistent with the Employer's past
practice; the Employer's current collective-bargain-
ing agreement with the Ironworkers; and the effi-
ciency and economy of operations which result from
such assignment We shall, therefore, determine the
dispute before us by awarding the work involved
herein to employees represented by the Ironworkers,
but not to that Union or its members.
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:
1. Employees of Rocky Mountain Prestress, Inc.,
represented by Ironworkers Local Union No. 396,
are entitled to perform the work in dispute which
consists of the driving of a truck belonging to Rocky
TEAMSTERS LOCAL NO 864
Mountain Prestress, Inc., outfitted with a portable
welding machine and tools used in conjunction with
the erection of enlisted men's barracks at Fort Leo-
nard Wood, Missouri.
2. Teamsters Local Union No. 864 is not entitled
by means proscribed by Section 8(b)(4)(D) of the Act
to force or require the assignment of the above work
to its members or to the employees it represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Teamsters Local
Union No. 864 shall notify the Regional Director for
Region 17, in writing, whether it will refrain from
forcing or requiring, by means proscribed by Section
8(b)(4)(D) of the Act, the assignment of the work in
dispute to employees represented by the Teamsters,
rather than to employees represented to the Iron-
workers.
CHAIRMAN MURPHY, dissenting:
I am unable to agree with my colleagues that the
record establishes that a jurisdictional dispute exists
which is cognizable under the Act. The work in dis-
1129
pute has been assigned to the individual designated
as the foreman of the ironworkers . However , the evi-
dence does not establish whether the "foreman" is a
supervisor within the meaning of the Act; if so, there
is no jurisdictional dispute within the meaning of
Section 10(k). Local 294, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (John V. Warren, Inc.), 203 NLRB 1255
(1973); Local 236, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Maxon Construction Compa-
ny), 194 NLRB 594 (1971).
Under the circumstances, I would remand the case
to the Regional Office for the purposes of taking evi-
dence on this issue . A proceeding under Section
10(k) is an investigatory matter in which there is no
burden of proof on any party; accordingly, I consid-
er it improper to resolve our doubts by presuming
that an individual is an employee rather than a su-
pervisor because of the absence of evidence in the
record.