Dallas General Drivers, Local 745

National Labor Relations Board - Board Decisions

Feb 4, 1980

247 N.L.R.B. 767 (N.L.R.B. 1980)

DALLAS GENERAL DRIVERS, LOCAL 745
Dallas General Drivers, Warehousemen and Helpers,
Local 745, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Sullivan Transfer Compa-
ny, Inc., and International Union of Operating
Engineers, Local 714, AFL-CIO. Case 16-CD-129
February 4, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by Sullivan Transfer Company, Inc.,
herein called the Employer, alleging that Dallas
General Drivers, Warehousemen and Helpers, Local
745, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Teamsters, violated Section
8(b)(4)D) of the Act by engaging in certain proscrib-
ed activity with an object of forcing or requiring the
Employer to continue to assign certain work to
employees represented by it rather than to employees
represented by International Union of Operating
Engineers, Local 714, AFL-CIO, herein called the
Operating Engineers.
Pursuant to notice, a hearing was held before
Hearing Officer J. O. Dodson on May 23 and June 4,
1979. All parties appeared at the hearing and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence
bearing on the issues. Thereafter, the Employer, the
Teamsters, and the Operating Engineers filed briefs
which have been duly considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings made by the
Hearing Officer 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 specialized common carrier
operating, in part, within the State of Texas under
permits granted by the Texas Railroad Commission. It
is engaged in the business of heavy equipment drayage
and rigging and in the business of trade show
convention freight handling. The parties stipulated,
247 NLRB No. 116
and we find, that during the past 12 months, a
representative period, the Employer purchased goods
and materials valued in excess of $50,000 from points
located outside the State of Texas which were shipped
directly to the Employer within the State of Texas.
Based on the foregoing, we find that Sullivan
Transfer Company, Inc., 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 jurisdiction herein.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Teamsters and the Operating Engineers are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is a specialized common carrier
operating in the State of Texas. From its operations in
Houston and Dallas-Fort Worth, the Employer per-
forms, inter alia, heavy equipment drayage (transpor-
tation) and rigging. Such work involves the installa-
tion of heavy equipment and machine tools weighing
up to several hundred tons and constitutes approxi-
mately 60 percent of the Employer's work in Dallas-
Fort Worth, the site of the dispute here. The Employ-
er installs the equipment at two types of jobsites: (1)
so-called new construction jobsites where building
construction is performed pursuant to issued building
permits; and (2) so-called old construction jobsites
where work is done at existing structures. The work at
old construction jobsites typically requires less than a
day, while the work at new construction jobsites takes
much longer.
The Employer's practice had been to assign com-
posite crews of employees to perform old and new
construction work. In 1967, the Employer recognized
the Operating Engineers and the Teamsters as the
representatives, respectively, of its various employees.
After the Teamsters expressed no interest in new
construction work, the Employer began assigning all
new construction work to employees represented by
the Operating Engineers. No change occurred as to
the old construction work, however, and the Employer
continued its practice of using compsite crews to
perform the old construction work after its employees
were organized.
The record shows that the members of each
compsite crew on old construction work perform
interchangeable functions. The Employer has assigned
the bulk of the old construction work to its approxi-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mately 25 to 28 permanent employees represented by
the Teamsters. The Employer also has assigned such
work to two permanent employees represented by the
Operating Engineers, but does not request referrals
from the Operating Engineers hiring hall for assign-
ment to old construction work.
On April 13, 1979, the Employer's president,
Toomey, told Teamsters President Rogers that he
"was receiving considerable pressure from the Operat-
ing Engineers to change [his] . . . traditional assign-
ment of the forklifts to Teamsters on old construc-
tion." Rogers replied that the Teamsters would picket
and take strike action if the Employer assigned the
disputed work to members of another union. On April
20, 1979, the Employer filed the charge in this
proceeding.
B. The Work in Dispute
The work in dispute, as described in the notice of
,hearing, consists of the following tasks: "All fork-lift
or fork truck work performed by employees of
Sullivan Transfer, Inc., which involves the relocation,
installation or removal of machinery or equipment in
existing construction."
C. Contentions of the Parties
The Employer contends that the award of the
disputed work "should be made in accordance with
the [Employer's] previous assignment, and not exclu-
sively to employees represented by the [Operating
Engineers]." Thus, the Employer points out that it
"predominantly has assigned the work in dispute to its
employees represented by the Teamsters," and that
employees represented by the Operating Engineers
have been assigned approximately one-quarter of the
disputed work. The Employer further contends that
an award exclusively to employees represented by the
Operating Engineers would interfere with the efficien-
cy and economy of its operations. The Teamsters also
requests the "issuance of a Board order directing
maintenance of the status quo composite crew ar-
rangement that favors the Teamsters." Both the
Employer and the Teamsters contend that there is no
agreed-upon method of voluntary adjustment of the
dispute.
The Operating Engineers contends that the Board
should quash the notice of hearing because there is an
agreed-upon method of voluntary adjustment of the
dispute. In the alternative, the Operating Engineers
contends that the work should be awarded to its
members, who have performed the work in the past.
Also, the Operating Engineers contends that efficiency
and economy of operations favors an award of the
disputed work to employees represented by the Oper-
ating Engineers.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that (1) there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated, and
(2) there is no agreed-upon method for the voluntary
resolution of the dispute.
With respect to (1), above, the record discloses that,
on April 13, the Employer's president, Toomey, told
Teamsters President Rogers that he "was receiving
considerable pressure from the Operating Engineers to
change [his] . . . traditional assignment of the forklifts
to Teamsters on old construction." Rogers replied that
the Teamsters would picket and take strike action if
the Employer assigned the disputed work to members
of another union. Accordingly, we are satisfied that
reasonable cause exists to believe that Section
8(b)(4)(D) has been violated.
With respect to (2), above, it is clear, from the
record as a whole, that there is no agreed-upon
method for the voluntary resolution of this dispute. In
this connection, the record shows that, on May 17,
1977, the parties agreed "that the International
Unions will meet, decide and agree upon whether [the
disputed work] will be assigned to [the Employer's]
employees who are represented by the [Operating
Engineers] or [Teamsters]." On August 25, 1977, the
IBT-IUOE Jurisdictional Committee "unanimously
agreed that the Co-Chairman should notify the [Em-
ployer] that they are obligated to abide by the 1969
Jurisdictional agreement between the IUOE and the
IBT on all new construction work." (Emphasis sup-
plied.) None of the parties appears to contend that this
Committee "minute" that refers to "new" construc-
tion work covers the work in dispute here.
The Operating Engineers relies instead on the so-
called Owens agreement, a one-page document signed
by Thomas H. Owens of the IBT and I. A. Middleton
of the IUOE in February 1978. This document
purportedly interprets the "application of the [1969]
Jurisdictional agreement and the contracts the parties
have with the [Employer]." Specifically, the document
states that the Employer is "obligated to assign all
fork lift driver work concerning the renovation or
remodeling of existing construction to IUOE. Includ-
ed in the fork lift driver work would be the handling of
any machinery to be removed or installed in existing
buildings."
The Employer and the Teamsters contend that they
did not agree to be bound by the Owens agreement.
Instead, they claim that the Committee minute of
August 1977, supra, represented the consummation of
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DALLAS GENERAL DRIVERS, LOCAL 745
the tripartite agreement, and that such minute man-
dated the maintenance of the status quo. In short, they
contend that nothing beyond the Committee decision
of August 1977 was authorized by all of the parties.'
On the record as a whole, we find that the evidence
fails to establish that all of the parties authorized or
agreed to be bound by the Owens agreement.' Hence,
we find no agreed-upon method for the voluntary
resolution of the dispute.'
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.' The Board has held
that its determination in a jurisdictional dispute is an
act of judgment based on commonsense and experi-
ence reached by balancing those factors involved in a
particular case.'
The following factors are relevant in making the
determination of the dispute before 'us:
1. Certification and collective-bargaining
agreements
Neither of the labor organizations involved herein
has been certified by the Board as the collective-
bargaining representative for a unit of the Employer's
Dallas Employees.
The record shows that, since 1967, the Employer
has executed a series of collective-bargaining agree-
ments with the Teamsters and the Operating Engi-
neers, respectively. It appears that the Employer's
current agreements with both the Teamsters and the
Operating Engineers cover forklift work. In practice,
since 1967, the disputed work has been assigned to a
composite crew of employees represented by the
Teamsters and the Operating Engineers, respectively,
with the predominant share of the disputed work
assigned to employees represented by the Teamsters.
Accordingly, we find that this factor is inconclusive
and does not favor an award of the work in dispute to
' The record shows that the Teamsters also signed a tripartite agreement
with Local 819 of the Operating Engineers and the Employer that provided
that the International Unions would meet, decide, and agree on an assignment
of the same type of work as is here in dispute at another location. This
tripartite agreement further provided that such agreement must take place
"by September 1, 1977." The Committee minute of August 1977, discussed
above, lists the Teamsters, the Operating Engineers, the Employer, and Local
819.
' The Operating Engineers filed a motion to quash the notice of hearing
based on its contention that the parties had agreed to a voluntary method for
resolving the dispute. The Operating Engineers presented evidence in support
of the motion in the form of an offer of proof. Even accepting such evidence,
we find from the record as a whole that there is no agreed-upon method
binding on all of the parties. Accordingly, we deny the motion to quash.
' Nor do we find merit in the Operating Engineers contention, raised at the
hearing but not in its brief, that the jurisdictional dispute here has already
employees represented by either the Teamsters or the
Operating Engineers.
2. The Employer's past practice and preference
It is uncontroverted that before and after 1967,
when the Employer recognized the Teamsters and the
Operating Engineers as the representatives, respective-
ly, of its various employees, it has been the Employer's
practice to assign the disputed work to employees
represented by both the Teamsters and the Operating
Engineers.6 The record further shows that the Em-
ployer has assigned approximately 75 percent of the
disputed work to its 25 to 28 permanent employees
represented by the Teamsters and approximately 25
percent of the disputed work to its two permanent
employees represented by the Operating Engineers.'
These employees have performed such work as mem-
bers of a composite crew.
Although the Employer has indicated in its brief
that it "prefers to award the disputed work to the
Teamster employees," it also has indicated in the
"conclusion" of its brief "that the award of the
disputed work should be made in accordance with the
[Employer's] previous assignment and not exclusively
to employees represented by the [Operating Engi-
neers]."
We find that the factors of the Employer's past
practice and preference do not favor an exclusive
award of the work in dispute to employees represented
by either Union.
3. Industry and area practice
There is no specific evidence of industry or area
practice as to the work in dispute. Accordingly, we
conclude that industry and area practice does not
favor an award of the disputed work to employees
represented by either the Teamsters or the Operating
Engineers.
been resolved by the General Counsel's dismissal of the charge in Case 16-
CD-123. Thus, we note that the General Counsel did not pass on the validity
of the "decision of the International Unions," and that such dismissal was
predicated on the absence of reasonable cause to believe that Sec. 8(bX4XD)
had been violated.
N.LR.B. v. Radio d Television Broadcast Engineers Union. Local 1212.
International Brotherhood of Electrical Workers AFL-CIO [Columbia Broad-
casting System], 364 U.S. 573 (1961).
'International Association of Machinists, Lodge Na 1743. AFL-CIO (J. A.
Jones Construction Company). 135 NLRB 1402 (1962).
' It appears that the Employer has also assigned the disputed work to
members of the Iron Workers, who are not a party in this proceeding, as part
of the composite crews.
' These figures are for the years 1977-78, which are typical of the historical
assignment.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Training and skills
The record shows that the Employer's employees
represented by the Teamsters and by the Operating
Engineers, respectively, have performed the disputed
work. It appears that both groups of employees have
received the necessary training and possess the skills
to perform the disputed work. Consequently, we find
that this factor is not helpful in resolving the instant
dispute.
5. Economy and efficiency of operation
The Operating Engineers contends that its contract
with the Employer gives the Employer options and
flexibility not present under the Teamsters contract
with the Employer. Specifically, the Operating Engi-
neers points to the 2-4-8 provision of its agreement
which allows the Employer to pay members of the
Operating Engineers for time worked rather than for a
guaranteed 8-hour day under the Teamsters contract.
The Employer and the Teamsters contend that the
continued use of composite crews to perform old
construction work is the most economical and efficient
method of operation. They further contend that the
composite crew arrangement provides for the most
flexible use of the Employer's current complement of
permanent employees.
We find that economy and efficiency of operation
do not favor an exclusive award of the work in dispute
to employees represented by either Union.
Conclusion
Upon the record as a whole, and after full consider-
ation of all relevant factors involved, we conclude that
none of the factors traditionally considered by the
Board in resolving disputes of this nature favors an
exclusive award of the work in dispute to members of
either of the two Unions involved in the present
proceeding. Under these unusual circumstances, to
award this work to employees represented by either of
the two competing Unions, to the exclusion of the
other, would entail an unwarranted exercise of the
power granted to the Board under Section 10(k) of the
Act to resolve such jurisdictional disputes, as such an
award would be at best an arbitrary resolution of the
dispute. We are mindful of the fact that the Supreme
Court has held that Section 10(k) of the Act mandates
that we make an affirmative award in such cases, and
not merely determine that the employees represented
by one labor organization do not have jurisdiction
over the work in question. Columbia Broadcasting
System, supra. However, we believe that in the instant
situation it is within the Board's power to award this
work to employees represented by either of these two
Unions to the exclusion of all other possible claimants,
but to preserve in the Employer the right to assign the
work to employees represented by either or both
Unions in a manner consistent with its past practice.
In so holding, we note that the Supreme Court in
Columbia Broadcasting System stated (364 U.S. at
579): "To determine or settle the dispute [between two
groups of employees] would normally require a
decision that one or the other is entitled to do the
work in dispute." (Emphasis supplied.) It is therefore
apparent that the Supreme Court was aware that in
some selective situations an affirmative award of the
work need not necessarily have to be made on an
exclusive basis between the two disputants, and that
the main thrust of the Court in that decision was only
against the Board's past practice of refusing to make
any affirmative award whatsoever. Here, an affirma-
tive award is made to employees represented by either
of the Unions involved, but to neither group of
employees exclusively. This has been the practice in
the past, the Employer desires to continue it, and the
only evidence probative of the formulation of an
award indicates that the award should be based on this
practice. In making this determination, we are award-
ing the work in question to employees who are
represented by Dallas General Drivers, Warehouse-
men and Helpers, Local 745, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, and to employees
who are represented by International Union of Oper-
ating Engineers, Local 714, AFL-CIO, but not to
either 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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of Sullivan Transfer Company, Inc.,
who are represented by Dallas General Drivers,
Warehousemen and Helpers, Local 754, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and employ-
ees of said Employer, who are represented by Interna-
tional Union of Operating Engineers, Local 714,
AFL-CIO, are entitled to perform in a manner
consistent with past practice all forklift or fork truck
work performed by employees of Sullivan Transfer,
Inc., which involves the relocation, installation, or
removal of machinery or equipment in existing con-
struction.
2. Dallas General Drivers, Warehousemen and
Helpers, Local 745, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
770
DALLAS GENERAL DRIVERS. LOCAL 745
men and Helpers of America, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force or
require Sullivan Transfer Company, Inc., to assign the
disputed work exclusively to employees represented by
that labor organization.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Dallas General Drivers,
Warehousemen and Helpers, Local 745, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, shall notify
the Regional Director for Region 25, in writing,
whether or not it will refrain from forcing or requiring
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.
771