Hoisting and Portable Engineers, Local 450

National Labor Relations Board - Board Decisions

Nov 25, 1970

186 N.L.R.B. 835 (N.L.R.B. 1970)

HOISTING AND PORTABLE ENGINEERS, LOCAL 450
Hoisting and Portable Engineers , Local No. 4501 and
United Engineers & Constructors , Inc? and ' Gener-
al Drivers, Warehousemen and Helpers Local
Union No. 968.3 Case 23-CD-231
November 25, 1970
DECISION AND ORDER QUASHING
NOTICE OF HEARING
By MEMBERS FANNING, BROWN, AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed on March 24, 1970, alleging violation of
Section 8(b)(4)(D) of the Act.
Pursuant to a notice, a hearing was held before
Hearing Officer Paul L. Harper on May 5, 1970. 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 and Operating
Engineers filed briefs which have been duly consid-
ered.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegat-
ed its powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.
Upon the entire record in this case, the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated and we find, that the
Employer, a general contractor in heavy industrial
construction, is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Operating Engineers and the Teamsters are labor
organizations within the meaning of the Act.
III. THE DISPUTE
A. The Facts
The dispute herein involves the operation of a fuel
truck in Texas City, Texas, where the Employer is
under contract with the Union Carbide Company for
I Affiliated with International Union of Operating Engineers and herein
called Operating Engineers
2 Herein called the Employer
3 Herein called Teamsters
It appears that the Teamsters struck for a day or two to protest the
exclusion of its member from the crew
835
the construction of new plant units and the mainte-
nance of existing plants.
The project herein requires the use of gasoline and
diesel equipment. The Employer has had various
types of trucks in recent years for the fueling of
nonmobile equipment.
The fuel truck in 1966, herein called Truck 1, was a
flatbed truck with a gasoline tank and a diesel tank
from which the fuel was dispensed by a hand pump.
The driver of the truck was a member of the
Teamsters. In addition, an engineer and an oiler, who
were members of the Operating Engineers, alternated
on the tasks of pumping fuel, holding and directing
the hose, and checking oil and water.
In February 1967, Truck 1 was supplanted by
Truck 2, a metal enclosed truck with two tanks from
which gasoline and diesel fuel were dispensed by a
power take-off or lever located on the instrument
panel in the driver's cab of the truck. The Employer
assigned all functions, including driving, control of
the power take-off, and dispensing of the fuel, to a
two-man crew consisting of an engineer and an oiler
who performed these duties interchangeably.4
In mid-summer 1968, the Employer reverted to the
same type of vehicle 5 as Truck 1 and again employed
a three-man crew whose duties and union affiliation
were like those of the 1966 crew.
In late February or early March 1970, the Employer
decided to replace Truck 3 with a flatbed trucks
which, like Truck 2, had a mechanized pumping
device. At that time, Clifford L. Blevins, the Employ-
er's project superintendent, described the new truck to
Wilburn A. Grissom and Norbert F. Renaud, the
respective business agents of the Teamsters and the
Operating Engineers, and notified them of his
intention to eliminate the oiler from the crew and to
assign the work as follows: the driving of the truck
and control of all levers in the cab to the driver-
member of the Teamsters, and the fueling operation
on the back of the truck to the engineer-member of
the Operating Engineers.? While Grissom agreed to
this arrangement, Renaud, according to Blevins,
stated that he "would pull thejob if [Blevins] went this
route."
On March 17, 1970, Blevins called another meeting
at which he announced he was putting the plan into
effect. Grissom again accepted the assignment but
Renaud expressed dissatisfaction therewith. The
latter instructed the steward of the Operating Engi-
neers, Lawrence M. Pride, who was present at the
meeting, "that if [Truck 4] was put into operation
Herein called Truck 3
fi Herein called Truck 4
7 The written award which Blevins handed to Renaud stated that the
assignment was in accordance with the new [Jurisdictional] International
Agreement , dated June 10, 1969" between the Internationals of the
Operating Engineers and the Teamsters
186 NLRB No. 125
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without an oiler on it, it would be in violation of our
contracts and we would leave the job."
On the morning of March 19, 1970, the Employer
commenced using Truck 4 in accordance with its new
assignment. At the end of the lunch period at 12:30
p.m., most of the members of the Operating Engineers
did not return to work. Blevins thereupon asked Pride
what it would take "to get the people back on the job."
According to Blevins, Pride replied, "Get the teamster
off the truck and put an oiler on there and we will
come back to work." However, Pride testified that the
sole condition he set for giving up the strike was that
the oiler be "put back" on the truck. The strike
continued through March 25, 1970.
B. Contentions of the Parties
The Operating Engineers moved that the notice of
hearing be quashed on the ground that there is no
jurisdictional dispute between it and the Teamsters.
Although the Operating Engineers indicated at the
outset of the hearing that it preferred having all
functions on the truck performed exclusively by its
members, it was made clear during the course of the
hearing that it did not oppose the assignment of the
driving and control of the fuel power take-off to the
member of the Teamsters. In this connection, the
Operating Engineers submitted to the Hearing Officer
a written statement "disclaim[ing] any interest in or
right to operate the truck in question including the
operation of the two levers which activate the flow of
diesel and gasoline fuel...."
The Operating Engineers stated that its only
objection was that it was entitled to an oiler on the
basis of past practice and section 19(e) of its
agreement with Associated General Contractors.9
The Teamsters agreed that it had no jurisdictional
dispute with the Operating Engineers concerning the
assignment made by the Employer. It also took the
position that it was not concerned with the question
whether an oiler should be included in the crew to
assist the engineer.
The Employer contended at the hearing that under
the jurisdictional agreement between the two
Internationals 10 all operations of the fuel truck
8 The agreement between the Operating Engineers and the Houston
Chapter Associated General Contractors, dated April 1, 1969.
9 Sec. 19 is entitled "Repairing and Hoisting Equipment" and
subsection (e) provides that, "Greasing on racks and pits and fueling of
equipment shall be done by a Heavy Equipment Operator and one (1)
Oiler."
10 Art . VII thereof provides that "the jurisdiction of fuel trucks belongs
to the Teamster [sic 1."
should be under the exclusive jurisdiction of the
Teamsters." The Employer also contended that
section 19(e) of the agreement between the Operating
Engineers and the Associated General Contractors is
not applicable herein as it does not pertain to fuel
trucks and the Employer is not a member of
Associated General Contractors.
C. Applicability of the Act
We are of the opinion that the record in its entirety
does not establish that a jurisdictional dispute exists
herein which is cognizable under Section 10(k) of the
Act.
There is no substantial evidence that two competing
groups of employees are contending for the work
described above . Thus, the Operating Engineers has
explicitly disclaimed any interest in the work assigned
to the driver-member of Teamsters, and the latter
organization has not claimed the work assigned to the
engineer-member of the Operating Engineers.
As noted above , the Employer argued that all work
on the fuel truck should be under the exclusive
jurisdiction of the Teamsters , and the Operating
Engineers pressed the Employer to restore the
position of oiler . We find that these opposing claims
were essentially disputes between the Employer and
the Operating Engineers.
The Board has repeatedly held that Sections
8(b)(4)(D) and 10(k) of the Act were intended to deal
with disputes between two or more competing
employee groups claiming the right to perform certain
tasks, and not as here , with disputes between a union
and an employer where no such competing claims
between rival groups of employees are involved.12
Accordingly, we find that there is herein no
jurisdictional dispute within the meaning of Section
8(b)(4)(D) and Section 10(k) of the Act . We shall
therefore quash the notice of hearing.
ORDER
It is hereby ordered that the Notice of Hearing
issued in this case be, and it hereby is, quashed.
11 The Employer explained at the hearing that its assignment dividing
the work between the members of the two unions was designed to avoid a
dispute between these organizations . However, in its brief to the Board, the
Employer argued that the Board should "award the operation of the fuel
truck . . . to individuals represented by the Teamsters."
12 Harrisburg Glass, Inc., 181 NLRB No. 54; Acoustics & Specialties,
Inc., 139 NLRB 598; Safeway Stores, Inc., 134 NLRB 1320.