Teamsters Local Union, No. 5

National Labor Relations Board - Board DecisionsJun 30, 1964

147 N.L.R.B. 1216 (N.L.R.B. 1964)

1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In sum , I conclude that Murray was concerned about the deprivation by the out- of-towners of jobs in Trenton for other laborers who had local residences and was particularly aroused over this circumstance by the fact that these out-of-towners were somehow connected with Rowe whom he disliked. His demand for the re- moval of these persons was prompted by his resentment over the layoff by Rowe of two local employees on October 1. I find that when Murray for these reasons called the work stoppage of October 2 he did cause or attempted to cause a layoff or discharge of the six employees named in the complaint. I do not, however, find that any of the reasons which impelled his action were proscribed by the Act. Unlike the precedents relied upon by the General Counsel,6 this case does not involve the causation of employee terminations for reasons pertaining to union membership or for any other reason which, had an employer been motivated thereby to discharge employees, would have resulted in conduct violative of Section 8(a)(3) of the Act. The Union's purpose in demanding the removal of the out-of-towners is more akin to the reason asserted by the unions in those cases where with statutory impunity they insisted on preferment in employment of persons with local residences.? CONCLUSIONS OF LAW 1. McCloskey Construction Corp. is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 369, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint that the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) and,1(A) of the Act have not been sustained. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. 6 Animated Displays Company, 137 NLRB 999; Ace Electric Co., 135 NLRB 498. 4 Bricklayers, Masons and Plasterers' International Union, etc . (Plaza Builders, Incorpo- rated ), 134 NLRB 751; Bricklayers, Masons and Plasters' International Union, Local No. 2 (Wilputte Coke Oven Division, Allied Chemical Corporation), 135 NLRB 323. Teamsters Local Union , No. 5, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America , Ind. and Hart-McCowan Foundation Co., Inc. Case No. 15-CD-39. June 30, 1964 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10 (k) of the National Labor Relations Act, following a charge filed on December 9, 1963, by Hart- McCowan Foundation Co., Inc., herein called Hart-McCowan or the Employer, alleging that Teamsters Local Union No. 5, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind., herein called Teamsters or Respondent, had violated Section 8(b) (4) (D) of the Act. A duly scheduled hear- ing was held before Hearing Officer Fred A. Lewis on March 10, 1964. All parties appearing were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings made at the hearing are free from prejudi- 147 NLRB No. 158. TEAMSTERS LOCAL UNION NO. 5, ETC. 1217 cial error and are hereby affirmed. Briefs were filed by the Employer and by International Union of Operating Engineers, Local Union No. 406, herein called Operating Engineers, who appeared at the hear- ing as a party to the dispute. Upon the entire record in the case, the Board I makes the following findings : I. THE BUSINESS OF THE EMPLOYER Hart-McCowan, a Mississippi corporation with its main office at. Jackson, Mississippi, is engaged in the construction of concrete build- ing foundations in the States of Louisiana, Alabama, and Mississippi. During the 12 months immediately preceding the filing of the charge herein, its business outside the State of Mississippi exceeded $70,000. We find that the Employer is engaged in commerce within the mean- ing of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATIONS INVOLVED The Teamsters and the Operating Engineers are labor organizations, within the meaning of the Act. III. THE DISPUTE A. The work at issue The,work performed by the Employer in laying building founda- tions consists of digging a number of holes approximately 12 feet in depth by means of power-driven drilling rigs, and filling the holes with concrete. The particular drilling equipment employed by Hart McCowan.is called a bell-bottom rig because it. is capable of construct- ing holes which are bell-shaped at the bottom. A bell-bottom drilling. rig consists of drilling apparatus 8 feet in width at the base, with a boom extending upward between 35 and 40 feet. It is mounted on the rear of a rubber-tired, flat-bed trailer to facilitate movement of the equipment between drilling sites. The drilling rig weighs approxi- mately 15,000 pounds excluding the weight of the tractor which hauls. the trailer. No dispute exists concerning the Operating Engineers' right to, operate the drilling machinery but, rather, the present controversy involves competing claims by the Teamsters and Operating Engineers. over driving the rigs between drilling spots within the construction site. 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its. powers in connection with this case to a three-member panel [ Members Leedom ,Fanning, and Brown]. 7 5 6-2 3 6-6 5-v o l. 14 7-- 7 8 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B Evidence of conduct violative of Section 8(b) (4) (D) Petrocon, Inc, a general contractor from Houston, Texas, entered into a contract on November 9, 1963, to build a liquid oxygen-nitrogen plant for Big Three Welding & Supply Company at Baton Rouge, Louisiana On December 2, Petrocon subcontracted to Hart-McCowan the job of laying a foundation for the building The subcontract involved the drilling of approximately 97 holes in an area of 150 feet by 175 feet, and filling the holes with concrete Hart-McCowan began work on the job on the morning of Decem- ber 5 Shortly after the work commenced, Boeta, a Teamster steward employed by Petrocon, approached Ashley, the operator of the Em- ployer's drilling rig, and demanded that three Teamster members be hired by the Employer to drive the rigs Ashley refused, saying that the Employer did not use Teamster members because each operator moved his own rig Voohries, the Employer 's district manager, was contacted and arrived at the construction site to meet with Boeta who repeated the Teamsters demand Voohries thereupon rejected the demand, ordered Ashley to proceed with the drilling , and returned to his office Boeta thereafter approached Gillis, Petrocon's project superintendent, and told him of the Teamsters demand and Voohries' rejection Later that morning, Voohries was again called to the jobsite On this occasion , Boeta stated that the Employer would be required to employ only one Teamster member as a driver and one warehouseman to receive materials Voohries agreed to hire a warehouseman, but advised Boeta that he did not intend to employ a driver Boeta re- plied that he would have to put up a picket line if the Employer would not agree to the Teamsters demands Thereafter, about noon on the same date, Boeta was observed carrying a picket sign which read "Hart-McCowan Foundation Company Unfair to Local 5 " As a result of the picketing , the Employer 's employees and the employees of Petrocon ceased working and did not return to work until a Federal district court enjoined the picketing on January 17, 1964 Golsan, assistant manager of two contractor associations in Baton Rouge, testified that he conferred with officers of the Teamsters, during the period of the picketing and was advised by them that, in order to resolve the dispute, Teamster members would have to drive the drill- ing rigs C Contentions of the parties The Operating Engineers claims that its members are entitled to the disputed work in view of their extensive skill and experience, the Employer's assignment, and the fact that such work is customarily performed by Operating Engineers as a matter of industry and area practice TEAMSTERS LOCAL UNION NO. 5, ETC. 1219 The Employer takes the position that the Teamsters members are not qualified to drive the rigs, and that to permit them to do so would expose themselves, others, and the equipment to undue danger. The Employer further asserts that to allow Teamsters members to drive the rigs would be inefficient and uneconomical due to the long periods of drilling operations during which the driver would be idle. The Respondent was duly served in advance to the hearing with, and acknowledged receipt of, a notice of hearing, an order changing place of hearing, and a copy of the charge in which it was specifically desig- nated as the Respondent, but it neither appeared at the hearing nor filed a brief with the Board. We find that where, as here, all parties to the dispute are served with notice of hearing and afforded oppor- tunity to participate and to introduce evidence, the purposes intended in hearings under Section 10 (k) are adequately served 2 Accordingly, we shall proceed to make a determination on the basis of the uncon- tradicted evidence on the record before us. D. Applicability of the statute Section 10(k) of the Act empowers the Board to determine the dis- pute out of which a Section 8(b) (4) (D) charge has arisen. How- ever, before. the Board proceeds w'ith a determination of dispute, it must be satisfied that there is reasonable cause to believe that Section 8 (b)^(4) (D) has been violated. As hereinabove set forth, the record'elearly shows that the Respond- ent picketed the jobsite and thereby succeeded in inducing a work stoppage for the purpose of forcing the Employer to assign the work in dispute to the Teamsters instead of the Operating Engineers. Accordingly, we find, on the entire record, that there. is reasonable cause to believe that a violation of Section 8(b) (4) (D) has occurred K afid'that the work dispute is properly-before 'the Board for determina- tion under Section 10 (k) of the Act. E. Merits of the dispute As we stated in the J. A. Jones case,3 we will, pursuant to the Su- preme Court's CBS decision,' determine in each case presented for resolution under Section 10(k) of the Act, the appropriate assign- ment of disputed work only after taking into account and balancing .all relevant factors. The following factors are asserted in support of the claims of the parties herein : 2 Local 1 , Bricklayers , Masons and Plasterers International Union of America, APL_ .010, et al . ( Consolidated Engineering Co., Inc.), 141 NLRB 119, 123, footnote 3. a International Association of Machinists, Lodge No. 1743 (J. A. Jones Construction Company ), 135 NLRB 1402. "N.L.R. B. v. Radio & Television Broadcast Engineers Union, Local 1 $12,'IBEW ( Colum- .bia Broadcasting System ), 364 U.S. 573. 1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Certification ; contract ; and Employer 's assignment Neither the Teamsters nor the Operating Engineers has been certi- fied by the Board as representative of any employees of the Employer. Although both labor organizations have contractual relations with the Baton Rouge chapters of the Associated General Contractors of America and the Industrial Contractors Association, under which con- tracts Petrocon and Hart-McCowan each agreed to operate, the con- tracts are of little practical assistance in determining this dispute since neither contract specifically covers the jurisdiction of the work involved herein. However, as mentioned above, the Employer has assigned the work of driving the rigs to employees represented by the Operating Engineers. 2. Work skills The record evidence shows that special skill and experience are, nec- essary in order to drive a bell -bottom rig. Thus, it appears that both by reason of the weight distribution and the height of the drilling boom, and the uneven terrain of a construction site, a rig is susceptible of being ^ easily tilted and. damaged . Ashley, the employee assigned by the Employer to operate and drive the rig, testified that it would take approximately 5 years' training to operate the rig. ' His testimony was supported by the Employer's district manager, Voohries, who testified that a driver has got "... to be able to know what that rig can do, how to handle it, and an operator will sense, he can feel that rig the minute it begins to tilt and he's got to know how to handle it." He further testified that members of the Operating Engineers possess. the requisite skills, but that he knows of no Teamster members who have the requisite skill and experience to handle the rig. - There is no showing on the record that any Teamster members possess the ability to drive a bell-bottom drilling rig. 3. Employer ;. industry; and area practice The driver and operator of the bell -bottom rig in. the instant case testified that in his 12 years as an operator he has never seen a Teamster member driving similar equipment for any contractor . Brignac, busi- ness agent for the Operating Engineers in the State of Louisiana, testified that he has seen similar pieces of equipment belonging to other contractors being driven by members of the Operating Engineers, and that his union has, when requested by Employers in the construction industry, referred many of its members for such work. With respect to Baton Rouge and the immediate vicinity , Manager' Voohries testified that he knew of competitors who used similar rigs and who also employed members of the Operating Engineers to.drive TEAMSTERS LOCAL UNION NO. ' 5, ETC. 1221 and operate their equipment. As for the Employer, Voohries stated that the bell-bottom rig is regarded as a specialized piece of equipment and not primarily as a truck and, therefore, it has never permitted a Teamsters member to drive the rig. He further explained that on two occasions, involving jobs of only 1-day duration, on request of the general contractor the Employer agreed to hire Teamsters members as drivers, but refused to let them touch the rig. On one of the two -occasions, the general contractor reimbursed the Employer the amount it had paid to the idle driver. Thus, all of the record evidence shows that within the industry and the Baton Rouge area operating engi- neers traditionally perform the disputed work and, further, that the '.Employer uses members of the Operating Engineers exclusively. 4. Efficiency and economy of operation Ashley testified that the tractor that moves the rig is idle most of the time; that in an 8-hour day, no more than 15 to 20 minutes is spent in moving the rig from one location to another. Voohries added that in 1 day the rig is not usually moved more than a few hundred feet be- cause the drilling machinery may be operating in one spot for as much as 3 or 4 hours at a time, and the next drilling spot may be only 10 feet away. Thus, the evidence demonstrates that it is substantially more efficient and economical to assign the rig operator the work of driving the rig between drilling spots rather than to require the Employer to hire a separate employee each day to perform a few :minute's work. F. Conclusions as to the merits of the dispute On the basis of the record as a whole, and on appraisal of the rele- vant considerations, including the Employer's assignment, the operat- ing engineers' skill and experience to perform the work, the custom 'in the industry, and the substantial economy effectuated, we shall determine the existing jurisdictional dispute by awarding the work of -driving the bell-bottom drilling rigs to the employees of the Employer represented by the Operating Engineers rather than to employees :represented by the Teamsters. The Scope of the Determination In its brief, the Operating Engineers urges the Board to apply the -instant determination not only to the dispute herein but also to future operations of the bell-bottom rigs in this geographical area. In sup- port, it points out that although the Petrocon project has long since been completed, Hart-McCowan has awarded the identical work in dis- 1222 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD pute herein to operating engineers on two current projects in the Baton Rouge area , and that a third job has been planned . Thus, the. Operating Engineers argues, particularly in view of the Teamsters" failure to defend its actions herein, that there is no indication that the, Respondent will not picket the Employer 's current or' future job, projects in support of identical demands as were present in the instant proceeding. The Board has previously decided not to restrict the scope of its de- termination to a specific jobsite if there is evidence that similar dis- putes may occur in the future .' Accordingly, in view of the evidence before us, we hold that the determination in this case applies , not only to the job in which the dispute arose, but to all similar work done or to be done by Hart-MeCowan on any other projects in the Baton Rouge vicinity, but not to other employers not parties herein. Ins making this determination , we are awarding the disputed work to em- ployees represented by the Operating Engineers , but not to that labor organization or its members. DETERMINATION OF DISPUTE Upon the basis of the foregoing, and upon the entire record in this- case, the Board makes the following Determination of Dispute pur- suant to Section 10 (k) of the Act : 1. Employees engaged as bell-bottom rig drivers and operators, cur= rently represented by the International Union of Operating Engi- neers, Local No. 406, are entitled to drive and operate the bell-bottom rig for Hart-McCowan Foundation Co., Inc., at the Petrocon project,. Baton Rouge, Louisiana, and at other construction projects in the vicinity of Baton Rouge, Louisiana. 2. Teamsters Local Union No. 5, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind., is not and has not been entitled to force or require Hart- McCowan to assign Teamster members the work. of driving belt- bottom rigs. 3. Within 10 days from the date of this Decision and Determination of Dispute, Teamsters Local No. 5, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer: ica, Ind., shall notify the Regional Director for the Fifteenth Region, in writing, whether or not it will refrain from forcing or requiring Hart-McCowan, by means proscribed by Section 8(b) (4) (D), to as- sign the work in dispute to its members rather than the employees of the Employer, represented by the Operating Engineers. 5 Plumbers 6 Fitters Local 761 , etc. (Matt J. Zaich Construction Co.), 144 NLRB* 133; ; International Association of Bridge, Structural and Ornamental Iron Workers, Local 474; et at.. (Structural Concrete Corporation ), 146 NLRB 1435.