Laborers Local 243 (A. Amorello & Sons)

National Labor Relations Board - Board Decisions

Jul 22, 1994

314 N.L.R.B. 501 (N.L.R.B. 1994)

501
314 NLRB No. 85
LABORERS LOCAL 243 (A. AMORELLO & SONS)
1 All subsequent dates refer to 1993 unless otherwise specified.
Local 243, Laborers’ International Union of North
America, AFL–CIO and A. Amorello & Sons,
Inc. and International Brotherhood of Team-
sters, Local 170, AFL–CIO. Case 1–CD–925
July 22, 1994
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS DEVANEY, BROWNING, AND COHEN
The charge in this Section 10(k) proceeding was
filed April 19, 1993,1 by the Employer, A. Amorello
& Sons, Inc., alleging that the Respondent, Local 243,
Laborers’ International Union of North America, AFL–
CIO, violated Section 8(b)(4)(D) of the National Labor
Relations Act by engaging in proscribed activity with
an object of forcing the Employer to assign certain
work to employees it represents rather than to employ-
ees represented by the International Brotherhood of
Teamsters, Local 170, AFL–CIO. The hearing was
held May 12, 1993, before Hearing Officer Laura A.
Sacks. Thereafter, the parties filed briefs in support of
their positions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free of prejudicial error. On the entire record,
the Board makes the following findings.
I. JURISDICTION
The Company engages in the business of heavy and
highway construction involving paving and excavating,
installing, and repairing sewer systems, out of its facil-
ity in Worcester, Massachusetts, where it annually, in
the course and conduct of its business operation, pur-
chases and receives goods, materials, and supplies val-
ued in excess of $50,000 directly from suppliers lo-
cated outside the State of Massachusetts. We find that
the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The par-
ties stipulate, and we find, that Laborers’ Local 243
and International Brotherhood of Teamsters Local 170
are labor organizations within the meaning of Section
2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer has been a signatory to agreements
with the Laborers since the late 1940s and a signatory
to agreements with the Teamsters since the late 1960s.
Amorello employed 20 Laborers Local 243-rep-
resented employees, 5 Teamsters Local 170-rep-
resented employees, and 10 Local 4 Operating Engi-
neers-represented employees during the 1992 season.
Amorello’s president, Anthony Amorello, testified that,
traditionally and customarily, Laborers-represented em-
ployees have driven the pickup, 350 Ford (6-wheel)
rack body, and International (6-wheel) dump trucks.
On the other hand, Teamsters-represented employees
have driven, almost exclusively, the Company’s 10-
wheel, trailers, and low-bed trucks. On rare occasions,
Teamsters Local 170-represented employees have driv-
en the 6-wheel trucks. Occasionally Teamsters-rep-
resented employees performed tasks generally per-
formed by Laborers-represented employees, including
mixing concrete, rolling materials, pushing wheel-
barrows, digging trenches, and paving. For the 1993
season Amorello decided not to own and operate 10-
wheel dump trucks, trailers, and low beds. Instead,
Amorello rented 10-wheel trucks and trailers, driven
by employees of the leasing company.
About January 1993, James Porter, Local 243’s
business manager, called Anthony Amorello and ex-
pressed concern that Teamsters Local 170 would try to
obtain the work of driving the smaller trucks. On April
7, Victor Monteverdi, a Teamsters-represented em-
ployee and steward, filed a grievance regarding the
Employer’s use of a Ford 350 dump truck to haul ma-
terial while Monteverdi was on layoff. About April 12,
Laborers’ District Council Manager McNalley phoned
Amorello and stated that if the Teamsters took over the
6-wheel trucks, the Laborers would strike or picket
Amorello.
B. Work in Dispute
The disputed work involves driving the Employer’s
6-wheel trucks.
C. Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that the Laborers violated Section
8(b)(4)(D) of the Act and that the work in dispute
should be awarded to employees represented by the
Laborers. The Employer and the Laborers contend that
the work in dispute has been assigned primarily to the
Laborers-represented employees, although the Team-
sters-represented employees, on rare occasions, have
been assigned the work. Further, the Laborers and the
Employer rely on employer preference and on econ-
omy and efficiency in arguing that the disputed work
should be assigned to employees represented by the
Laborers. The Employer argues further that an award
to employees represented by the Laborers is supported
by its agreement with that Union. The Laborers request
a broad, areawide award of the disputed work claiming
that Teamsters Local 170 ‘‘has engaged in a long-term
effort to strip other construction trades unions of work
assignments involving the operation of small trucks.’’
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Employer’s contract was with the Massachusetts Laborers’
District Council of the Laborers’ International Union of North Amer-
ica, AFL–CIO, ‘‘acting for and on the behalf’’ of various Local
unions, including Local 243. Thus, we conclude that the District
Council was acting on behalf of Local 243 when it threatened to
strike or picket the Employer if work traditionally performed by
Local 243-represented employees was reassigned to Teamsters-rep-
resented employees.
3 As to Local 170’s contention that it had an ‘‘oral understanding’’
with the Employer that a teamster could bump a laborer from a 6-
wheel truck to avoid lay off, we note that although the Employer’s
president, Amorello, testified that he thought the Teamsters had al-
lowed the Employer to assign to the laborers the driving of the 6-
wheel trucks as a concession for signing with the Teamsters, he
Teamsters Local 170 asserts that it had an oral un-
derstanding with the Employer’s president, Anthony
Amorello, that the laborers could drive the 6-wheel
trucks as long as all the teamsters who wished to work
were working, but that a teamster could bump a la-
borer from a 6-wheel truck to avoid being laid off.
Local 170 also contends that the Employer’s employ-
ees represented by Local 170 did the same hand work
as the laborers when the teamsters were not needed for
hauling. Local 170 further contends that the work now
being done with the 6-wheel trucks includes work done
before with the 10-wheel trucks. Local 170 also asserts
that the Laborers and the Teamsters have an agreement
which contains a mechanism to resolve jurisdictional
disputes.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that a violation of Section 8(b)(4)(D) has oc-
curred and that there exists no agreed-upon method for
the voluntary adjustment of the dispute.
Initially, we find that there are competing claims for
the driving of the Employer’s 6-wheels trucks. The
Employer’s president, Anthony Amorello, testified that,
on March 4, 1993, Teamsters Local 170’s business
agent, Peter Mancuso, stated that Mancuso could not
allow the Laborers to continue to drive the 6-wheel
trucks. On April 7 the steward for Teamsters Local
170 filed a grievance over the Employer’s use of a
Ford 350 (6-wheel) truck driven by a laborer to haul
material while the steward was on layoff. We also find
reasonable cause to believe that Section 8(b)(4)(D) has
been violated. Thus, Laborers’ District Council Man-
ager Paul McNalley told the Employer’s president that
if the Teamsters took over the 6-wheel trucks, the La-
borers would strike or picket the Employer.2
Finally, we find that there is no agreed-upon method
for the voluntary adjustment of the dispute binding all
the parties. Thus, although the Teamsters and Laborers
International Unions have an agreement that contains a
mechanism for resolving their jurisdictional disputes,
the Employer is not a party to the agreement. Local
170 points to article 2, item 5 of its collective-bar-
gaining agreement with the Employer. However, that
item applies only to the resolution of jurisdictional dis-
putes between Local 170 and ‘‘any other Union of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America.’’
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred, and we find that
there exists no agreed-upon method for voluntary ad-
justment of the dispute within the meaning of Section
10(k) of the Act. Accordingly, we find that the dispute
is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering several
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Collective-bargaining agreements
The Employer has had a collective-bargaining rela-
tionship with the Massachusetts Laborers’ District
Council of the Laborers’ International Union of North
America, AFL–CIO, since about the late 1940s. The
Employer was a party to the contract effective June 1,
1991, through May 31, 1994, between the Labor Rela-
tions Division of Construction Industries of Massachu-
setts, Inc. (Association) and the Massachusetts Labor-
ers’ District Council of the Laborers’ International
Union of North America, AFL–CIO, acting for and on
the behalf of various Local unions, including Local
243. Article VIII, section 2 of this contract provides,
inter alia, that heavy and highway construction as de-
fined in the contract shall include the operation of all
onsite pickup and service trucks.
The Employer has had a contract with the Inter-
national Brotherhood of Teamsters, Local 170, AFL–
CIO, since around the 1960s. The latest contract was
effective from June 1, 1990, to May 31, 1993. The
contract applies to the transportation of all building
and excavating materials and equipment and to the
driving of certain trucks when hauling materials,
equipment, and parts to, on, and from the jobsite.
Both contracts arguably cover the work in dispute.
Under these circumstances, we find the factor of col-
lective-bargaining agreements does not favor an award
of the disputed work to either group of employees.3
503LABORERS LOCAL 243 (A. AMORELLO & SONS)
could not recall any statement, made at any time, that the laborers
could drive the 6-wheel trucks only as long as the teamsters were
working. Nor is there any contention that the Laborers were a party
to such an agreement. Therefore, even assuming that such an oral
agreement existed, it does not negate the contract between the Em-
ployer and the Laborers.
2. Employer preference and past practice
The Employer has assigned the disputed work to La-
borers Local 243-represented employees. As noted
above, driving the 6-wheel trucks traditionally and cus-
tomarily has been assigned to laborers, although on oc-
casion teamsters have driven these trucks and per-
formed the related manual work. The Employer prefers
its assignment to employees represented by the Labor-
ers to continue. Thus, the factor of employer pref-
erence and past practice favor the continued assign-
ment of this work to the employees represented by the
Laborers.
3. Area practice
The Employer’s president, Amorello, testified that
most of his competition was nonunion. Jack Valeri, a
business agent for Teamsters Local 170, testified that
Local 170-represented employees drive 6-wheel trucks
at Capera Construction, as well as at other companies
performing excavation work in the Worcester area. On
the other hand, James Porter, business manager for La-
borers’ Local 243, testified that the area practice was
that construction companies assigned driving the 6-
wheel trucks to employees represented by the Labor-
ers. Based on the evidence presented, we find that this
factor is inconclusive and does not favor an award of
the disputed work to either group of employees.
4. Relative skills
There is no specialized training for any of the Em-
ployer’s employees, although state law does require a
class II driver’s license to drive any of the Employer’s
vehicles except pickup trucks and Ford 350 (6-wheel)
trucks. The record does not show that either group of
employees possesses any greater skills than the other
in driving the 6-wheel trucks. We, therefore, find that
this factor is inconclusive and does not favor an award
of the disputed work to either group of employees.
5. Economy and efficiency of operations
Anthony Amorello, the Employer’s president, testi-
fied that it is more economical and efficient to have
the disputed work performed by Local 243-represented
employees. He testified that they are more skilled at
performing manual labor after the 6-wheel truck ar-
rives at the jobsite and driving is not being required.
Local 170 presented testimony that employees it rep-
resented had performed manual labor and had driven
the 6-wheel trucks in the past. In these circumstances,
we find that the factor of economy and efficiency of
operations does not favor an award of the disputed
work to either group of employees.
Conclusions
After considering all the relevant factors, we con-
clude that the Employer’s employees represented by
Laborers’ Local 243 are entitled to perform the work
in dispute. We reach this conclusion by relying on the
factors of employer preference and past practice. In
making this determination, we are awarding the work
to employees represented by Laborers’ Local 243, not
to that Union or its members.
Scope of Award
The Laborers Local 243 request a broad, areawide
award covering the work in dispute.
The Board customarily declines to grant an areawide
award in cases in which the charged party represents
the employees to whom the work is awarded and to
whom the employer contemplates continuing to assign
the work. See Laborers (Paul H. Schwendener, Inc.),
304 NLRB 623 (1991). Accordingly, we shall limit the
present determination to the particular controversy that
gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of A. Amorello & Sons, Inc., represented
by Local 243, Laborers’ International Union of North
America, AFL–CIO, are entitled to perform the work
of driving 6-wheel trucks for A. Amorello & Sons,
Inc.