Local 294, Teamsters

National Labor Relations Board - Board Decisions

Apr 14, 1967

163 N.L.R.B. 1066 (N.L.R.B. 1967)

1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Note: We will notify such employees if presently serving
in the Armed Forces of the United States of their right to
full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati, Ohio
45202, Telephone 684-3686.
I. THE EMPLOYER INVOLVED
The Employer is a New York corporation engaged
in the business of contract painting. During the past
year, the Employer performed services valued in
excess of $50,000 for other companies, including
Collins, which are directly engaged in interstate
commerce. Accordingly, we find that the Employer
is an employer 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.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 294 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America , and its agent , Anthony
Carusone and Sage Brothers Painting Co.,
Inc. and Local 12, Brotherhood of
Painters, Decorators and Paperhangers of
America, AFL-CIO. Case 3-CD-171.
April 14,1967
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , following
charges filed by Sage Brothers Painting Co., Inc.,
hereinafter called the Employer , under Section
8(b)(4)(D). The charges allege, in effect, that Local
294, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
Arherica , and its agent , Anthony Carusone,
Respondents , hereinafter called Teamsters and
Carusone , respectively , coerced and restrained the
Employer and D . , A. Collins Construction Co., Inc.,
hereinafter called Collins, by threatening to engage
in a work stoppage in order to force or require the
Employer to assign particular work to members of
Teamsters rather than to members of Local 12,
Brotherhood of Painters , Decorators and
Paperhangers of America, AFL-CIO, hereinafter
called the Painters . A hearing was held on
October 26 , 1966 , before Hearing Officer Nelson G.
Ross. All parties participated in the hearing and
were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to
adduce evidence bearing on the issues . The rulings
of the Hearing Officer made at the hearing are free
from prejudicial error, and are hereby affirmed.
Upon the entire record in this proceeding, the
Board ' makes the following findings:
The parties stipulated, and we find, that the
Teamsters and the Painters are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
This dispute involves the work of driving the
Employer's specialty truck which is used in
connection with painting operations while on a
construction jobsite. The particular dispute before
the Board in this proceeding occurred on July 25,
1966, and August 24, 1966, and involved alleged
threats of picketing and of a work stoppage by
Respondents Teamsters and Carusone.
As indicated, the Employer is engaged in
industrial, commercial, and residential painting
work. It is a member of the Capital District Chapter
of New York State, Painting and Decorating
Contractors of America. As such, the Employer is a
party to, and bound by, a collective-bargaining
agreement between the Capital District Chapter on
behalf of its members, and the Painters. The record
also shows that the Employer presently employs,
and has always in the past employed, employees
represented by the Painters. Sometime prior to the
dispute herein, the Employer received a subcontract
to paint a series of bridges located on an arterial
highway in Albany, New York, being constructed by
Collins, the general contractor. Collins is a party to a
collective-bargaining agreement executed between
New York State Teamsters Council, Construction
Division, of which Respondent Teamsters is a
member, and the Labor Relations Division of
Associated General Contractors of America, New
York State Chapter, Inc., of which Collins is a
member. In pursuance of the aforementioned
construction work, Collins employs, among others,
employees represented by Respondent Teamsters.
With respect to the instant dispute, the record
shows that the Employer owns an enclosed 1-1/2 ton
pickup truck which is termed in the industry as a
shop on wheels. The vehicle is used to transport men
' Pursuant to the provisions of Section 3(b) of the National
Labor Relations Act, as amended, the National Labor Relations
Board has delegated its powers in connection with this case to a
three-member panel.
163 NLRB No. 141
LOCAL 294, TEAMSTERS
and material to and from a single or several
simultaneous jobs. It is also used by the Employer's
employees for coffee and lunch breaks and as a
heated workshop in cold weather when, for example,
such weather interferes with the proper flow of
Bitumastic material. In addition, it is utilized as a
moveable base to support a scaffold and swinging
stage which is base-bolted to the truck body and on
which painters work to paint bridges and girders at
varying elevations. The scaffolding and swinging
stage are carried to the jobsite on racks located on
the truck and erected on the jobsite by members of
the Painters. When painting elevated structures,
painters utilize the scaffold and swinging stage to
paint the area within reach, and the truck is then
driven to the next area to be painted where it
remains stationary until this area is completed, and
so on.
The dispute encompassed by the instant charges
concerns the driving of the truck while on the
jobsite, which work is claimed by both the
Teamsters and the Painters. There is no dispute
concerning the driving of the vehicle to or from the
jobsite or with regard to the erection of the
scaffolding and swinging stage at the jobsite.
With respect to the dispute itself, the evidence of
which is uncontested and unrefuted by the
Respondents, the record establishes that on July 25,
1966, the truck was driven on the jobsite by Sage,
the Employer's president, and work on the job was
begun. While the scaffolding was being made ready,
Germane, the Teamsters steward on the Collins job,
approached Sage and asked if Sage knew that Sage
had to have a teamster drive the truck. Sage replied,
in effect, that he had always employed painters for
his work, that he would continue to do so, and that
he did not have to employ a teamster. Germane
stated that "we will see about that," and left. A short
while later, Germane reappeared with Respondent
Carusone, the Teamsters representative and agent.
Upon ascertaining that Sage had never used a
teamster to drive the truck and that he did not
intend to use one now, Carusone replied that while
he did not know what Sage had done in the past,
Sage was going to "use a Teamster driver on this job
or we're going to put a picket line up." Carusone
then left and returned shortly thereafter with
Collins' job superintendent, Hannon, to whom Sage
repeated his position and who, in reply, stated that
"we have to get this problem straightened out."
After further discussion with Sage, Carusone, in
Hannon's presence, repeated his threat to picket the
job if, on the following morning, a teamster was not
used to drive the truck. On the following day, the
2 Although the record is not clear as to the party from whom the
Teamsters was seeking the 5 days' pay, sections 17 5 and 17 5(a)
of article 17 of the collective-bargaining agreement between Col-
lins and the Teamsters lends credence to the assumption that the
party was Collins In pertinent part, these sections provide that
11. In the event that such work [the moving of equipment and
1067
Employer returned to the job, but without the truck.
Instead, the necessary materials and supplies were
carried to the job in automobiles owned by the
Employer's employees, and the Employer worked
that day without interruption.
The truck was next used on the job on August 24,
1966. At 9:30 a.m., after the scaffolding had been
erected and work started, Germane again
approached Sage to ascertain if Sage wanted a
Teamsters driver for the truck, and was again told
that Sage did not. One hour later, Hannon appeared
on the jobsite, informed Sage that Germane was
"down at the office raising hell," and stated that the
problem must be "straightened out immediately."
At 3:30 p.m. this same day, Hannon returned to the
jobsite with Carusone. After Carusone learned from
Sage that Carusone correctly understood that Sage
indeed was not going to put a Teamsters driver on
the truck, Carusone stated to Hannon that "you had
better have a lot of painters on the job tomorrow to
drive the truck because my men are going to be sick
or something else." Hannon thereupon radioed his
office, explained the situation, asked what he should
do, and was told by a voice loud enough to be heard
by Sage to tell the Employer not to return to the job
until the matter is resolved. While the Employer was
preparing to leave the job, which it did within 15
minutes, Carusone informed Hannon that "any
settlement here is going to involve five days pay,"
apparently referring to the total number of days the
Employer had been on the job.2 Although the
Employer protested that the truck had not been on
the job for 3 days, Germane replied that he had been
checking the job daily, that the Employer's
employees carried brushes and materials to the job
in their car trunks, and that "that is the same thing."
IV. CONTENTIONS OF THE PARTIES
1. Painters: The Painters contends that the
Employer's long-time assignment of the disputed
work to its members should be affirmed on the basis
of this past practice.
2. Teamsters: The Teamsters urges the Board to
assign the disputed work to it primarily on the basis
of its collective-bargaining agreement with Collins.
It also contends that it is entitled to the disputed
work because of an award of this work to it by the
New York State Heavy and Highway Construction
Grievance Committee, and on the basis of area
practice and the practice in different industries.
3. The Employer: The Employer agrees with the
Painters that the painters are entitled to the
assignment of the work in question, citing as reasons
materials] is performed by employees other than those covered
by the Agreement , it will, if established as having occurred,
subject the Employer to penalty pay on the following basis (a) An
employee covered by the Agreement shall be paid on the same
basis as if he had actually performed the work.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefor its assignment of the work to the painters,
its past practice, practice in other industries, union
agreements, and efficiency of operation.
V. APPLICABILITY OF THE STATUTE
Before the Board may proceed to a determination
of 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.
As indicated above, the record contains ample and
uncontradicted evidence that on July 25 and
August 24, 1966, the Respondents threatened both
to picket and to cause a work stoppage with an
avowed object of forcing or requiring the Employer
or Collins to assign the disputed work to employees
represented by the Teamsters, rather than to
employees of the Employer who are represented by
the Painters. Accordingly, we conclude, on the basis
of the entire record, that there is reasonable cause to
believe that a violation of Section 8(b)(4)(D) has
occurred, and that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.
VI. THE MERITS OF THE DISPUTE
As stated in the J. A. Jones case,3 we shall,
pursuant to the Supreme Court's C.B.S. decision,'
determine in each case presented for resolution
under Section 10(k) of the Act the appropriate
assignment of the disputed work only after taking
into account the evidence supporting the claims of
the parties and balancing all relevant factors.
A. Certification and Bargaining Agreements
The evidence indicates that there is no Board
certification relative to the disputed work. The
Teamsters contends, however, that its collective-
bargaining agreement with Collins covers the work
in issue, citing paragraph B of appendix A of this
contract which sets forth the hourly wages to be paid
drivers of pickup trucks, among others, and
paragraph 6.2 of article 6 which provides in pertinent
part that:
The Employer [Collins] agrees that the wages
hours and working conditions provided for by
this Agreement shall encompass the entire work
covered by this Agreement, thereby applying
equally to any sub-contract let by the Employer
on work covered by this Agreement. All
employees, including those employed by the
subcontractor and those on site work ... shall
be paid directly by the prime contractor ....
9 International Association of Machinists, Lodge No 1743,
AFL-CIO (J A Jones Construction Co.), 135 NLRB 1402.
' N L R B v Radio and Television Broadcasting Engineers
Union, et al (Columbia Broadcasting System), 364 U.S 573
It is argued that these provisions give to the prime
contractor the right to regulate and control the entire
construction job and subjects subcontractors to the
prime contractor's obligations to other
subcontractors on the job. While the foregoing
provisions may impose certain contractual
obligations on Collins, they do not bind either the
Employer or the Painters who are not parties to that
contract and, consequently, do not cover the
disputed work.
Therefore, because neither the Teamsters
bargaining agreement with Collins, nor the
Employer's contract with the Painters,' covers the
specific work in dispute, it would appear that the
disputants' contracts do not favor either party.
B. Skill and Training
Inasmuch as no particular skill and training
beyond that evidenced by an ordinary driver's
license is required for the performance of the
disputed work, these factors also fail to favor either
the Painters or the Teamsters.
C. Awards
The Teamsters contends that favorable
consideration should be given to it on the basis of a
grievance proceeding which awarded the work to it.
The record, however, shows that the award is not
dispositive of the issues because the grievance was
instituted by the Teamsters in accordance with its
contract with Collins, that the grievance was
resolved by a grievance committee having no
jurisdiction over either the Employer or the Painters,
and that neither the Employer nor the Painters were
parties to, or have agreed to be bound by, the award.
D. Employer, Area, and Industry Practice
Uncontradicted testimony establishes that, during
the past 12 to 14 years, the Employer's present
specialty truck, or one similar to it, has always been
driven on jobsites by the Employer's employees
represented by the Painters or by the Employer's
president. The record further establishes that, prior
to the instant proceeding, the Teamsters had never
before disputed the work in issue although the
Employer had worked on jobs on which the
Teamsters members had been employed by general-
and sub-contractors. In addition, Teamsters member
Germane testified that although he has been a
teamster since 1945 and has been employed in the
construction business since 1957, he could recall
only two instances, both of which occurred on the
5 While, as noted, the Employer has a contract with the
Painters, that contract does not refer to the job of driving the
truck
LOCAL 294, TEAMSTERS
Collins' job around 1963, when a painting
contractor's truck had been driven by a Teamsters
driver. Germane also testified, however, that he did
not know whether, in these two instances, the
Teamsters driver was also a member of the Painters.
In like vein, the Painters business agent testified
that beyond the foregoing and during the 53 years in
which he has been a member of the Painters, "a
Teamster never drove a truck for a painting
contractor unless he had a painter's [sic] card."
With respect to industry practice,6 the Employer
introduced into evidence some 30 letters received
from painting contractors located generally
throughout the State of New York which in
substance, state that teamsters do not and never
have driven their trucks which, instead, have always
been operated by an employer, or supervisory em-
ployee, or by employees represented by the Paint-
ers. While this evidence is not particularly weighty,
it does have some probative value as to the issue
under consideration.
E. Economy and Efficiency
The Teamsters introduced no evidence with
regard to these factors but merely contended, in
effect, that, despite these factors, a Teamsters driver
is entitled to drive the truck because "any truck on
the job hauling material belongs to the Teamsters."
The Employer, on the other hand, affirmatively
established that because a teamster is not qualified,
as is a painter, to perform painting work and to use
the truck's scaffolding and swinging stage in this
work, the assignment of a teamster to the disputed
work, which is intermittent in nature at best, would
require the employment of an unnecessary employee
who would, in effect, merely sit in the truck and do
nothing when it is not being moved, which, perforce,
could be all day long. It appears, therefore, that
because a teamster is not qualified, as is a painter, to
perform painting work in addition to the disputed
work which can and is being performed as ably by
Painters as by Teamsters, and considering further
that the truck itself is, in effect, a tool of the
painter's trade, the assignment of the work in
dispute to a teamster would curtail the efficiency,
economy, and flexibility of the Employer's operation.
e Teamsters member Germane testified that, while employed on
the Collins' job by a plumbing contractor, he had driven a
"specialty" truck which had as its sole purpose the transportation
of pipes, propane gas, plumbers' tools, and the like, between
various areas of the lobsite Similarly , the Employer 's president
testified that the Employer is a member of Eastern New York
Construction Employer's Inc , and that this corporation has an
agreement with Respondent Teamsters which provides that
"specialty use contractors" using caulking contract and other
specialty - use trucks on construction jobs need not employ "a
Teamster to drive on that particular truck " These factors,
VII. CONCLUSION
1069
Upon consideration of all pertinent factors in the
entire record, we find that employees represented by
the Painters are entitled to the assignment of the
disputed work. The Employer's assignment of the
work has been to employees who have performed it
to the Employer's satisfaction, it is work which is,
and long has been, performed by painters in the
immediate area and generally throughout the State
of New York, apparently with the acquiescence of
the Teamsters, and it results in economy, efficiency,
and flexibility of operation. Therefore, we shall
determine the existing jurisdictional dispute by
awarding the disputed work in the instant case to
employees represented by the Painters, rather than
to employees represented by the Teamsters. In
making this determination, we are awarding the
disputed work to employees represented by the
Painters, but not to that Union or its members.
Accordingly, we find that the Teamsters was not,
and is not, entitled, by means proscribed by Section
8(b)(4)(D) of the Act, to force or require the Employer
to assign the disputed work to employees
represented by said Union, rather than to the
Employer's employees represented by the Painters.
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 case,
the National Labor Relations Board makes the
following Determination of Dispute:
1. Employees employed by the Employer, who are
represented by Local 12, Brotherhood of Painters,
Decorators and Paperhangers of America,
AFL-CIO, are entitled to perform the work of
driving the Employer's specialty truck on the D. A.
Collins Construction Co., Inc., jobsite located in
Albany, New York.7
2. Local 294, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, and its representative and
agent, Anthony Carusone, are not entitled, by means
proscribed by Section 8(b)(4)(D) of the Act, to force
or require the Employer to assign the above-
described work to employees represented by it.
however, which involve work similar to that in dispute but in
different industries , are neither persuasive nor favor either party
' At the hearing, the Employer requested the Board to extend
the scope of its award beyond the particular truck and the
particular job involved herein , and to render its decision and
determination in this case on an areawide or statewide basis In
the absence of any evidence indicating that similar disputes may
occur in the future or have occurred elsewhere in the "area" or
the State , we shall restrict our determination herein to the
specific location and job giving rise to this dispute
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 294,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, and its representative and agent, Anthony
Carusone, shall notify the Regional Director for
Region 3, in writing, whether or not said Union and
Carusone will refrain from forcing or requiring the
Employer to assign the work in dispute to employees
represented by said Union, rather than to employees
of the Employer represented by Local 12,
Brotherhood of Painters, Decorators and
Paperhangers of America, AFL-CIO.
The Baton Rouge Water Works Company,
Employer-Petitioner and Office and
Professional Employees International
Union , Local 428, AFL-CIO, Union-
Petitioner and Representative of Group I
Employees , Petitioner . Cases 15-RM-214,
15-AC-7, and 15-AC-9.
Rouge Water Works Employees Association2 for
the past 15 years, following certification by the
Board in Case 15-RC-551. Office and Professional
Employees International Union, Local428,
AFL-CIO,:' has petitioned for an amendment of that
certification by substitution of its name therein,
claiming to be the constitutional successor to the
Association. The representative of Group I
employees petitioned the Board to amend the
certification by excluding the Group I employees
from the overall production and maintenance unit
within which they have been historically included.
The Employer has filed a petition for a
determination as to whether it is required to bargain
with the Association or Local 428. The Employer
alleges that the change in affiliation was improperly
carried out, but that, even if this were not so, the
Group I employees should be allowed to determine
in an election whether or not they wish to participate
in negotiations as part of the Local. The Group I
employees have not made a similar request for an
election.
Petition in Case 15-AC-9
April 14, 1967
DECISION AND ORDER CLARIFYING
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
Upon separate petitions duly filed under Section
9(b) and (c) of the National Labor Relations Act, as
amended, which petitions were subsequently
consolidated for hearing, a hearing was held before
Hearing Officer James N. Pratt. The Hearing
Officer' s rulings made at the hearing are free from
prejudicial error and are hereby affirmed. Briefs
have been filed by the Employer and by Local 428 in
support of their respective positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act.
2. The labor organization ' involved claims to
represent certain employees of the Employer.
3. The Employer, a public utility engaged in the
distribution of water, has bargained with the Baton
i The parties stipulated on the record that Local 428 is a labor
organization within the meaning of the Act
At the hearing an individual claiming to be the representative of
the Group I employees, who are described below, sought
amendment of the certification , requesting the Board to exclude
the Group I employees from the overall unit. The parties agreed to
refer to this individual as the representative of Group I
employees In view of our conclusion herein that the unit
The overall unit is comprised of approximately 110
employees consisting of 75 laborers referred to as
Group II employees, and 30-35 plant clericals (i.e.,
customer clerks, PBX operators, keypunch
operators, collectors, and storeroom assistants),
identified as Group I employees. As set forth above,
these employees have historically been represented
by the Association on an overall basis. After the
alleged change of affiliation took place, the Group I
employees sought to exclude themselves from the
unit and become a separate bargaining unit,
claiming that they did not want to be represented by
the Local. The instant petition presents for the
Board's determination the propriety of such a
separate unit.
In addition to the fact that the plant clerical
employees have at all times been part of the
plantwide unit , nothing in the record indicates that
the interests of Group I employees are now
substantially different from their former interests or
that they are such as to warrant severance.4 All
employees during the 15-year period have enjoyed
the same benefits and conditions of employment;
i.e., a companywide seniority plan, uniform vacation
and holiday plan, and similar hours of work. All
employees punch timeclocks and all work in close
geographical proximity. The record indicates, too,
that employees have transferred from one group to
requested in Case 15-AC-9 is- inappropriate , we find it
unnecessary to pass on the question of whether or not his
representative constitutes a labor organization or is an individual
seeking to represent employees as defined in the Act
2 Hereinafter referred to as the Association.
J Hereinafter referred to as the Local or Local 428
4 See Mallinckrodt Chemtcal Works, 162 NLRB 387
163 NLRB No. 122