Laborers, Local 89

National Labor Relations Board - Board Decisions

Jul 11, 1972

198 N.L.R.B. 129 (N.L.R.B. 1972)

LABORERS, LOCAL 89 129
Laborers' International Union of North America,
Local No. 89, AFL-CIO (San Diego Zoological
Society) and Automotive and Allied Industries
Employees of San Diego County, Local No. 481,
International Brotherhood of Teamsters, Chauf-
feurs , Warehousemen and Helpers of America.
Case 21-CD-313
in value and purchased goods and supplies directly
from suppliers located outside the State of California
exceeding $50,000 in value. Accordingly, 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 policies of the Act to assert
jurisdiction in this proceeding.
July 11, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Automotive and Allied Indus-
tries Employees of San Diego County, Local No.
481, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
hereinafter called Teamsters, alleging a violation of
Section 8(b)(4)(D) by Laborers' International Union
of North America, Local No. 89, AFL-CIO, here-
inafter called Laborers.
Pursuant to notice, a hearing was held on April 10,
11, and 12, 1972, at San Diego, California, before
Hearing Officer Scott Forman. All parties' appear-
ing at the hearing were afforded full opportunity to
be heard, to examine and cross-examine witnesses,
and to adduce evidence bearing on the issues.
Thereafter, Laborers, Operating Engineers, the Em-
ployer, and Teamsters filed briefs in support of their
respective positions.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its authority in this proceeding 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 basis of the briefs and the entire record
in this case, the Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is a California nonprofit educational
corporation which operates the San Diego Zoo in
Balboa Park, and also the Wild Animal Park in San
Pasqual, both located in San Diego, California.
During the 12-month period ending March 31, 1972,
the Employer had gross receipts exceeding $500,000
i At the heanng , San Diego Zoological Society, hereinafter called the
Employer , International Union of Operating Engineers , Local 12,
AFL-CIO, hereinafter called Operating Engineers , and the City of San
Diego, hereinafter called City, intervened.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Teamsters,
Laborers, and Operating Engineers are labor organi-
zations within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
On February 13, 1969, the City of San Diego and
the Employer entered into an agreement whereby the
City granted the use and occupancy of a certain
portion of land in the San Pasqual Valley to the
Employer for the purpose of the establishment,
maintenance, and operation of a wild game preserve,
hereinafter called the Wild Animal Park.
Pursuant to this agreement, certain construction
contracts were let by the City, and other construction
contracts were let by the Employer, for various
construction projects in the Wild Animal Park. These
projects require landscape gardening work, including
the planting of trees, shrubs, flowers, and lawns.
None of the construction contracts let by the City or
the Employer included the performance of landscape
gardening work.
The Wild Animal Park project began May 18,
1969, and landscaping for the project commenced in
the early spring of 1970. All landscaping work was
performed by the Employer's own employees, repre-
sented by Teamsters.
On March 7, 1972, Joseph Alcoser, assistant
business representative of Laborers, sought access to
the construction site at the Wild Animal Park. He
was confronted by Robert L. Riley, resident ranger
of the Wild Animal Park, who was under instructions
to refuse access to all persons unless they were there
to see a specific individual. Alcoser stated that he did
not desire to see anyone in particular, but just
wanted to walk through the construction site .2 Riley
therefore denied access to Alcoser and suggested that
Alcoser telephone Harold R. Barr, director of
construction and maintenance for the Employer,
who could authorize Alcoser's admission to the Wild
Animal Park.
2 The master labor agreement in the San Diego County area provides
that employers who are signatories thereto shall afford union representa-
tives free access to thejobsite for the purpose of conducting union business.
The Employer is not a party to this agreement.
198 NLRB No. 27
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After attempting to contact Barr by telephone and
failing to do so, Alcoser, on the evening of March 7,
1972, went to the regularly scheduled meeting of the
Building Trades Council and requested picket
sanction based on the Employer's refusal of access to
Alcoser and Alcoser's belief that some work at the
Wild Animal Park belonged to laborers, but was
being performed by other workers. The Building
Trades Council granted such sanction.
On March 8, 1972, about 7:20 a.m., Laborers
established picket lines at three entrance gates to the_
Wild Animal Park. At each gate, two pickets carried
signs which read, "AFL-CIO Picket Sanctioned by
Building Trades Council." Some construction work-
ers refused to cross the picket line and some
deliveries of construction materials were not made.
Upon being notified that pickets were at the gates,
Barr contacted Laborers, and it was agreed that in
return for a cessation of the picketing, the Employer
would cease performing the disputed work. Pursuant
to this agreement, the picket line was removed. There
is disagreement , unnecessary to resolve, as to
whether or not it was also agreed that a meeting was
to take place at the Wild Animal Park at I 1 a.m. that
day between Barr and Laborers. However, Barr did
meet representatives of Laborers in the afternoon of
March 8, 1972, at which time he told them that any
further dealings relating to the problem would have
to be handled through the Employer's labor repre-
sentative.
On March 9, 1972, a meeting was held at which
time representatives of Laborers, Teamsters, and the
Employer were present. The parties agreed that the
aforementioned agreement between Barr and Labor-
ers would continue until at least March 13, 1972.
In the meantime, Edward J. Riccio, the City's
project officer for the Wild Animal Park, requested
Barr to find a quick resolution of the dispute to
insure that the Wild Animal Park would open to the
public on schedule. Thereafter, the Employer ar-
ranged for Louetto Construction Company (Louetto)
to perform the disputed work with members of
Laborers. The agreement between the Employer and
Louetto was terminable at will, and provided that the
Employer would reimburse Louetto for the cost of
employing laborers for the disputed work.
Immediately following the granting of a temporary
injunction against further picketing by Laborers on
March 30, 1972, the Employer terminated the
agreement with Louetto and again assigned the
disputed work to its Teamsters employees.
B. The Work in Dispute
The hearing shows that the work in dispute
involves the landscaping, including the planting of
trees, shrubs, flowers, and lawns, only in those areas
of the Wild Animal Park presently under construc-
tion. Some of this work involves the use of equipment
such as motor operated diggers , skip loaders, and
various trucks . The parties , at the hearing, stipulated
that the subsequent landscape maintenance work is
under the exclusive jurisdiction of the Teamsters, and
is not in dispute.
C. Contentions of the Parties
Laborers contends that its master labor agreement
with a contractors association requires that all
landscaping work performed at new construction
areas be assigned to laborers . In support of this
contention , Laborers points to the classifications in
the master labor agreement for San Diego County,
which include landscape gardener and nurseryman,
and the laying of all nonmetalic pipe, such classifica-
tion claimed to cover the insertion of sprinkling
systems within the landscaping. Laborers argues that
the construction work being performed at the Wild
Animal Park falls under the classification "New
Construction Work" and thereby is governed by the
master labor agreement.
Operating Engineers likewise contends that much
of the planting work should be assigned to laborers
under its master labor agreement ; but it argues that
the landscaping work involving the use of machinery
should be assigned to operating engineers under the
master labor agreement with the San Diego County
general contractors.
In addition , Laborers and Operating Engineers
argue that assignment of the disputed work to
teamsters would violate California state law, on the
ground that the wage rates paid to Teamsters
employees do not meet the established minimum
prevailing wage rates for the tasks performed.
Whether the wage rates received by the teamsters
violate state law, however, is a question which should
be pursued in the state judicial system . Assuming,
arguendo, that such wage rates violate state law,
assignment of the disputed work to Teamsters
employees would have no effect upon state law. The
remedy , we believe , would be to compel the
Employer to comply with state law , rather than for
us to assign the disputed work to other employees.
Both Laborers and Operating Engineers further
contend that all the parties have agreed to a method
of settlement which precludes the Board from
asserting jurisdiction under Section 10(k) of the Act.
The Employer and Teamsters contend that the
disputed work should be performed by teamsters for
the following reasons: (1) The past practice of the
Employer has been to assign such work to teamsters,
(2) teamsters have the requisite skills to perform the
LABORERS , LOCAL 89 131
work properly, (3) the Employer and Teamsters are
parties to a collective-bargaining agreement, whereas
neither Laborers nor Operating Engineers is a party
to any agreement with the Employer, and (4) the
Employer prefers to assign the work to teamsters.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a 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
settlement of the dispute.
A question has been presented as to whether the
City or Louetto should be regarded as the employer
for the purpose of assigning the disputed work. The
record discloses that none of the contracts let by the
City or the Employer permanently assign the
disputed work . It is true that for 3 weeks during
March 1972 Louetto hired laborers to perform a part
of the disputed work. However, this was based on a
temporary agreement between the Employer and
Louetto to insure the work at the Wild Animal Park
would continue until the instant dispute could be
resolved. As noted under Background and Facts of the
Dispute, once the temporary injunction had issued,
the agreement between Louetto and the Employer
was terminated and the Employer resumed complete
control and responsibility for the performance of the
disputed work. Accordingly, we are satisfied that the
Zoological Society is the Employer for work assign-
ment purposes.
The uncontradicted evidence discloses that on
March 8, 1972, Laborers established pickets at the
gates to the Wild Animal Park. While Laborers
contends that the picket lines were established only
because one of its business representatives had been
refused access to the Wild Animal Park, the record
reveals that a major object of the picketing was to
have the disputed work assigned to laborers.
Alcoser himself testified that when he sought
sanction for the pickets he told the chairman of the
Building Trades Council that the reason he wanted
access to the Wild Animal Park was because he
believed there was work being done that belonged to
laborers. He further stated that the problem of who
was doing the landscaping was an element in the
decision to picket.
The record further discloses that on March 8, 1972,
Laborers, after gaining access , insisted that Barr
discuss the assignment of the disputed work. In fact,
Dean Armstrong, secretary-treasurer of Laborers,
admitted at the hearing that he told Barr that if Barr
refused to discuss the work dispute Armstrong would
put back the pickets.
Laborers and Operating Engineers argue that the
parties have agreed upon a method for voluntary
settlement of the dispute. This argument rests on an
agreement entered into on March 9, 1972, by the
Employer, Teamsters, and Laborers to submit the
dispute to California State Conciliator Tom Vitiach.
Laborers contends that the dispute was to be
submitted to Vitiach for binding arbitration. The
Employer and Teamsters contend that the agreement
was only to allow Vitiach, in his role as conciliator, to
try to bring the parties together. We note in any
event that Operating Engineers was not a party to
this disputed agreement. Further, Teamsters has
consistently maintained that the work in dispute was
solely within its jurisdiction. Under these circum-
stances, we believe there is no agreed-upon method
for voluntary settlement of the dispute. Furthermore,
on the record as a whole, we are satisfied that there is
reasonable cause to believe a violation of Section
8(b)(4)(D) has occurred and that the dispute is
properly before the Board for determination.
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 the various relevant factors.
1. Certification and collective-bargaining
agreements
There is no Board certification which covers the
work in dispute. However, since 1959, the Employer
has had a series of collective -bargaining agreements
with Teamsters covering a unit which includes the
classification "gardener." On the other hand, the
Employer has no employees represented by either
Laborers or Operating Engineers.
2. Employer and area practice
The Employer's consistent practice, with two
negligible exceptions, has been to assign the disputed
work to its employees represented by the Teamsters.
With respect to area practice, the record discloses
that contractors who are parties to master labor
agreements with Laborers or Operating Engineers,
and whose contracts call for landscaping, assign the
disputed work to laborers or operating engineers,
respectively.
3. Relative skills, economy, and efficiency of
operations
The record shows that the employees presently
employed by the Employer possess sufficient skills to
perform satisfactorily the work in dispute and the
Employer is fully satisfied with the productivity and
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
efficiency of its employees and desires to continue
assigning such work to them. The record also shows
that laborers, during the 3 weeks in March 1972
when they performed the disputed work under
Louetto, also performed satisfactorily. However, if
laborers continued to be assigned the disputed work
after the Employer terminated Louetto's contract,
the productivity and efficiency of the Employer's
operations would be impaired, since the Teamsters
employees can satisfactorily perform all the disputed
work, including the operation of machinery, while
laborers can perform only that work not requiring
the use of machinery.
Conclusion
Upon the entire record in this proceeding and after
full consideration of all the relevant factors, in
particular the contractual relationship between the
Employer and Teamsters, the Employer's past
practice, and the economy and efficiency of opera-
tions, we conclude that employees of the Employer
who are represented by Teamsters are entitled to the
work in question , and we shall determine the dispute
in their favor. We do not, however, award the work
to Teamsters 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
hereby makes the following Determination of Dis-
pute:
1. Employees of the San Diego Zoological Society
currently represented by Automotive and Allied
Industries Employees of San Diego County, Local
No. 481 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America,
are entitled to perform the work of landscaping,
including the planting of trees , shrubs , flowers, and
lawns , in all areas under construction of the Wild
Animal Park , located in the San Pasqual Valley, San
Diego , California.
2. Laborers ' International Union of North Amer-
ica, Local No. 89 , AFL-CIO, is not entitled by
means proscribed by Section 8(b)(4)(D ) of the Act to
force or require the San Diego Zoological Society to
assign the above work to employees represented by
said Union.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Laborers ' Interna-
tional Union of North America , Local No. 89,
AFL-CIO, shall notify the Regional Director for
Region 21 , in writing , whether or not it will refrain
from forcing or requiring the San Diego Zoological
Society , by means proscribed by Section 8(b)(4)(D)
of the Act, to assign the work in dispute to employees
represented by it rather than to employees represent-
ed by Automotive and Allied Industries Employees
of San Diego County , Local No . 481, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America.