Int'l Brotherhood of Teamsters, No. 146

National Labor Relations Board - Board Decisions

Mar 24, 1965

151 N.L.R.B. 1107 (N.L.R.B. 1965)

INT'L BROTHERHOOD OF TEAMSTERS, NO. 146 1107
4. Since May 1, 1961, a majority of Respondent's employees in the appropriate
unit, described immediately above, have been members of the Union, and at all times
since said date, the Union has been the duly designated and selected representative
of a majority of the employees in said appropriate unit for the purposes of collective
bargaining, and, by virtue of Section 9(a) of the Act, has been, and now is, the
exclusive representative of all the employees in said unit for the purposes of collec-
tive bargaining with respect to grievances, labor disputes, pay, wages, hours of
employment, and other terms and conditions of employment
5. The allegations of the complaint, as amended, that Respondent has engaged in,
and is engaging in, unfair labor practices, within the meaning of Section 8(a)(5) and
(1) of the Act, have not been sustained.
RECOMMENDED ORDER
It is recommended , upon the basis of the foregoing findings of fact and conclusions
of law, that the complaint , as amended , be dismissed in its entirety.
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Local No. 146 and Crafts-
man Construction Co., Inc. and International Hod Carriers,
Building and Common Laborers Union of America , Local No.
354, AFL-CIO, Party in Interest . Case No. 27-CD-56. March
24, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, as amended, following a charge filed by Crafts-
man Construction Co., Inc., herein called the Employer, alleging a
violation of Section 8(b) (4) (D) of the Act by International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local No. 146, herein called Respondent. The charge
alleges, in substance that the Respondent induced and encouraged
employees to engage in a strike or refusal to work, and threatened,
coerced, and restrained the Employer, and others, with an object
of forcing or requiring Craftsman Construction Co., Inc., to assign
particular work to employees represented by Respondent rather
than to employees represented by International Hod Carriers, Build-
ing and Common Laborers Union of America, Local No. 354,
AFL-CIO, herein called Laborers. Pursuant to notice, a hearing
was held before Hearing Officer Allison E. Nutt, on December 3, 1964.
All parties appeared at the hearing and were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. The rulings of the Hear-
ing Officer made at the hearing are free from prejudicial error
and are hereby affirmed. The brief filed by the Employer has been
duly considered.
151 NLRB No. 112.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to Section 3(b) of the Act, the National Labor Relations
Board has delegated its powers in connection with this case to a
three-member panel [Members Fanning, Brown, and Jenkins].
Upon the entire record in the case, the Board makes the following
findings :
1. THE BUSINESS OF THE EMPLOYER
Craftsman Construction Co., Inc., is a New Mexico corporation,
presently engaged in the general construction business in Colorado.
During the calendar year 1964, it received goods valued at more
than $50,000 which came to it directly from other States. We find
that the Employer is engaged in commerce within the meaning of
the Act, and that it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
All parties stipulated, and we find, that Respondent and the
Laborers are labor organizations within the meaning of Section 2(5)
of the Act.
III. THE DISPUTE
A. Basic facts
In June 1964 the Employer, a general contractor, was awarded
a contract for the construction of certain buildings at the Southern
Colorado State College in Pueblo, Colorado, and began work there-
after. This construction is not scheduled for completion until De-
cember 1965.
The work in dispute involves the loading, transporting, and un-
loading of wooden form material at the construction site. These
wooden forms are used in pouring concrete for buildings. After
use in one building they are removed and transported by truck
to another building where they are reused. The Employer has
available four trucks of different sizes for transporting form material
from one location to another, although one truck is seldom used,
and a pickup truck is used primarily for personnel transportation.
These vehicles are operated for short periods of time during the
day when transporting the form material, and possibly more than
one vehicle will be in use at the same time.
The Employer assigned the work of loading, unloading, and
transporting the form material to its own employees who are
represented by the Laborers. This was done pursuant to a collective-
bargaining agreement between the Employer and Colorado Laborers'
District Council which the signatories interpret as requiring the
assignment of the disputed work to members of the Laborers' union.
INT'L BROTHERHOOD OF TEAMSTERS , NO. 146 1109
The Employer does not employ members of Respondent and has
never had an agreement with Respondent.
On August 1, 1964, about 30 days after the first movement of
trucks on the jobsite, Robert llenapace, organizer for Respondent,
approached Duane Lucas, the Employer's job superintendent, and
said the Respondent wanted teamsters on the Employer's work and
that he would not take no for an answer. About 2 weeks later
another Teamsters' representative stated to Lucas that he would
like to get some teamsters on the job. Again on September 20, 1964,
llenapace talked to Lucas and claimed that there was work being
done on the job that should be assigned to teamsters. Finally, on
October 27, 1964, Dlenapace and Fred Beirig, president and business
manager of Respondent, told Lucas that either teamsters would be
put on any vehicle that moved construction equipment or material
or there would be a work stoppage. That same day, Beirig called
Frank Hall, Employer's president, at Denver, and told him to get
teamsters on the job or else there would be picketing, but did not
identify the work to which he wanted teamsters assigned. Lucas
and Hall both explained to Respondent's representative that the
Employer had no agreement with the Teamsters, had no employees
who were teamsters, and had no work for teamsters.
On October 28, Respondent placed pickets near the jobsite with
signs reading that the driver of equipment on the job is not a
member of Local 146. As a result of the picketing, trucks were
stopped and a number of trucks turned back, interfering with the
delivery of material and supplies. Picketing continued approxi-
mately 4 days, after which the pickets were removed by agreement.
Neither Respondent nor Laborers has been certified as bargaining
representative of the employees performing the disputed work. The
parties stipulated that there is no agreed-upon method for the adjust-
ment of this dispute which would be binding on all the parties.
B. Contentions of the parties
It appears that Respondent's main contention is that the work of
driving trucks has traditionally been assigned to employees rep-
resented by Teamsters. Respondent claims to have several agree-
ments with employers in the Pueblo area which call for the assign-
ment of the disputed work to its members.
The Employer, on the other hand, contends that it is bound by
the terms of the present bargaining agreement with the Laborers to
assign the work in dispute to laborers represented by Local 354. It
further argues that it has always been the Employer's practice to
assign such work to laborers. The Employer also takes the position
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the practice in the Pueblo area is to assign such work to
laborers . Finally , the Employer contends that efficiency of its
operation supports its present work assignment.
The Laborers essentially adopts the contentions of the Employer
and also points to its manual of jurisdiction of the Hod Carriers'
International Union which outlines its craft jurisdictional claims
and covers the work in dispute.
C. Applicability of the statute
Section 10(k) of the Act empowers the Board to hear and deter-
mine a dispute out of which a Section 8(a) (4) (D) charge has arisen.
Before the Board proceeds with a determination of dispute, how-
ever, it is required to find that there is reasonable cause to believe
that Section 8(b) (4) (D) has been violated.
The record shows that the Employer assigned the disputed work
to employees represented by Laborers Local 354, whereupon Re-
spondent claimed that its members were entitled to the work. The
Respondent thereafter threatened to picket and did picket the Em-
ployer's jobsite for 4 days and, as a result of the picketing, deliveries
of supplies and material were not made. Respondent does not deny
that it made a demand on the Employer for the work, and when it
was refused, it placed a picket on the jobsite, which interfered with
delivery of supplies and material. It is clear that the object of
Respondent's threats and picketing was to force the Employer to
change work assignments, an object prohibited by Section 8(b)
(4) (D). We find therefore that there is reasonable cause to believe
that a violation of Section 8(b) (4) (D) has occurred, and the dispute
is properly before the Board for determination under Section 10(k)
of the Act.
D. The merits of the dispute
There is no claim by either Union, nor does the record show,
that any special skill or training is required to load, transport, and
unload form material, or that either of the two competing groups
of employees is more capable than the other of performing the
disputed work. The Board has not issued a certification of bargain-
ing representative nor has there been any jurisdictional awards by
joint boards. Although these factors usually considered by the
Board in making jurisdictional awards are not present in this pro-
ceeding, there are other facts which we find persuasive in making
a determination.
1. Collective-bargaining agreements
The record shows that the Employer has had contractual relations
with the Laborers for some time. Prior to beginning construction
INT'L BROTHERHOOD OF TEAMSTERS , NO. 146 1111
on the Southern Colorado State College campus at 'Pueblo, the
Employer had agreed to be bound by the agreement negotiated with
the Laborers covering the employees to whom the Employer assigned
the work in dispute. Although the contract does not specifically
define the disputed work, it can be interpreted to cover such work,
and the Laborers and the Employer have so interpreted it in the
past. The Employer has no contract with the respondent.
2. Company and area practice
It has been the practice of the Employer since it began operations,
approximately 16 years ago, to use Laborers to perform the disputed
work. Further, the Employer has twice worked in the Pueblo area
in the past and assigned laborers to load, unload, and distribute
form materials on the jobsite. The Employer does not now employ
teamsters, and has not employed a teamster for some years.
In support of its claim, Respondent introduced evidence that
about 15 contracts had been negotiated with other contractors spe-
cifically awarding the type of work in dispute here to teamsters, but
named only one local Pueblo contractor as signatory to such contract.
On the other hand, the Laborers claim that the area practice is to
consider the truck as a tool to be used at the convenience of the
mechanic, and that laborers drive the trucks in the distribution
of material. In support of this claim, the president of the Pueblo
General Contractors Association, of which 12 contractors are
members, testified that teamsters drive trucks initially to the jobsite,
and thereafter when material is being reused and shifted it is the
area practice of laborers to do the work. The president of the
Allied Contractors Association, which association has 40 or 45 con-
tractors , similarly testified . In addition , the Laborers offered letters
written by representatives of five construction companies in Pueblo
and one union stating that the practice was to use laborers for
distribution of materials on the jobsite. Thus the assignment of the
disputed work here to laborers accords with the practice of the
majority of employers in the area.
3. Efficiency of Employer's operation
After a concrete job is poured, the Employer uses a composite
crew of carpenters and laborers to remove the form material. The
material is then loaded on a truck, transported to where it is to be
reused, unloaded, and again a composite crew of carpenters and
laborers erect the form material for reuse. Obviously, the work
can be performed more efficiently when done in a continuous opera-
tion by laborers who work closely with the carpenters and who
understand the numbering and sequence of the forms. The use of
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trucks in this process fluctuates with the pouring of concrete and on
occasions trucks are used simultaneously. A driver of a truck is
actively engaged in performing the disputed work only 20 percent
of the clay, which includes loading and unloading time. Since the
work in dispute is not of sufficient duration to justify employment of
a permanent teamster, laborers are used to load, drive, and unload
the trucks since they possess the necessary skills and can be utilized
on other operations as the work demands. Thus, the Employer's
assignment of the disputed work is consistent with the efficiency of
its operations.
Conclusions as to the merits of the dispute
Upon consideration of all relevant factors appearing in the record,
we shall assign the disputed work to the laborers who have per-
formed the work in the past to the satisfaction of the Employer,
which desires to retain then on the job in order to avoid fragmenta-
tion of the job into separate operations. This assignment of the
disputed work to the laborers is consistent with the Employer's
past practice, the practice of other employers in the area, and the
interpretation that the Employer and the Laborers give their col-
lective-bargaining contract. Our determination is limited to the par-
ticular controversy which gave rise to this proceeding. In making
this determination, the Board is assigning the disputed work to
laborers, who are represented by Laborers Local 354, but not to
that Union or its members.
In view of the above, we find that Respondent was not and is not
entitled by means proscribed by Section 8(b) (4) (i) and (ii) (D)
of the Act to force or require Craftsman Construction Co., Inc.,
to assign loading, transporting, and unloading form material on the
jobsite to teamsters rather than to laborers.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
this proceeding, the Board makes the following Determination of
Dispute pursuant to Section 10 (k) of the Act:
1. Employees engaged as laborers, currently represented by Inter-
national Hod Carriers, Building and Common Laborers Union of
America, Local No. 354, AFL-CIO, are entitled to perform the work
of loading, transporting, and unloading form material on the job-
site for Craftsman Construction Co., Inc.
2. International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local No. 146, is not entitled, by
means proscribed by Section 8(b) (4) (D) of the Act, to force or
require the Employer to assign the aforementioned work to teamsters
who are represented by it.
RICE LAKE CREAMERY COMPANY 1113
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute , International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, Local No. 146, shall notify
the Regional Director for Region 27, in writing, whether or not it
will refrain from forcing or requiring the Employer, by means
proscribed by Section 8(b) (4) (D), to assign the work in dispute to
teamsters rather than to laborers.
Rice Lake Creamery Company and General Drivers & Helpers
Union , Local 662, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America.
Case No. 18-CA-978. March 24, 1965
SUPPLEMENTAL DECISION AND ORDER
On June 23, 1961, the National Labor Relations Board issued a
Decision and Order in the above -entitled case,' directing , inter alia,
that the Respondent make whole certain employees discriminatorily
refused reinstatement by the Respondent. Thereafter, the Board's
Order was enforced in full by the United States Court of Appeals
for the District of Columbia Circuit,2 including its reinstatement
and backpay provisions. Subsequently, the Respondent's petition
to the Supreme Court of the United States for a writ of certiorari
was denied by the Court 3
On March 29, 1963, the Regional Director for Region 18 issued
and served upon the parties a backpay specification and notice of
hearing, and issued amendments to this specification on May 7, 1963.
The Respondent filed an answer to the original specification on
April 29, 1963.
Pursuant to notice, a hearing was held before Trial Examiner
Samuel Ross for the purpose of determining the amounts of back-
pay due the discriminatees. Also, during the hearing, evidence was
adduced concerning the circumstances attending Respondent's offers
of reinstatement which were alleged to be legally insufficient by the
General Counsel. On December 13, 1963, the Trial Examiner issued
his attached Supplemental Decision, in which he awarded specific
amounts of backpay to the 25 discriminatees and also made findings
and recommendations concerning Respondent's offers of reinstate-
ment. Thereafter, the Respondent filed exceptions to the Trial
1131 NLRB 1270.
2 General Drivers and Helpers Union , Local 662 , International Brotherhood of Team-
sters, etc . v. N.L.R . B., 302 F. 2d 908.
3371 U.S. 827.
151 NLRB No. 105.