Local 294, Teamsters

National Labor Relations Board - Board Decisions

Jun 6, 1973

203 N.L.R.B. 1255 (N.L.R.B. 1973)

LOCAL 294, TEAMSTERS
Local 294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
and John V. Warren, Inc. and Local 105, United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO. Case 3-CD-390
June 6, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by John V. Warren, Inc., herein called
the Employer, alleging that Local 294, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called Respon-
dent or Teamsters, violated Section 8(b)(4)(D) of the
Act.
A hearing was held before Hearing Officer Jerome
P. Coyle on January 25, 1972. Counsel for the Em-
ployer, for the Respondent, and for the Regional Di-
rector of Region 3 appeared at the hearing and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses , and to adduce evidence
bearing upon the issues . The parties waived the filing
of briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record, the Board makes the fol-
lowing findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated that the Employer, John V.
Warren, Inc., is a New York corporation engaged in
mechanical construction with gross revenues in excess
of $3 million during the 12 months preceding the hear-
ing, and that during the same period it received goods
valued in excess of $50,000 directly from sources out-
side the State of New York. We find that the Employ-
er is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and
that it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
1255
The parties stipulated, and we find, that Teamsters
and Local 105, United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, AFL-CIO,
herein called Plumbers, are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background 'and Facts of the Dispute
In the autumn of 1971,' the Employer was engaged
in industrial piping at three locations at the General
Electric complex in Schenectady, New York. The
work in progress in which the Employer was involved
included plumbing, heating, air-conditioning, and
work related to mechanical construction. Among oth-
er kinds of equipment at the Employer's General
Electric jobsites were pickup trucks and winch trucks.
Around the middle of October, an individual who
identified himself as a shop steward for Teamsters
approached the Employer's superintendent of pipefit-
ting for the General Electric jobs and told him he
wanted employees represented by Teamsters on the
pickups and winch trucks. He said the Teamsters
business agent would be up to see the superintendent
the next morning. No one contacted the superinten-
dent in connection with this matter, however, until
November 29. On that date, the steward returned with
the business agent, who repeated the steward 's claim
for the work assignment. The superintendent first ex-
plained that the two pickup trucks to which the busi-
ness agent had referred were not owned by the
Employer, but by employees. (As the superintendent
testified later, he owned one of the pickup trucks him-
self, and the other one was owned by a laborer.) The
business agent then referred to the winch trucks, and
the superintendent told him that they were considered
tools of the trade for the plumbers and steamfitters
who used them. Finally, the business agent asked
about "the pickup truck or the truck that takes the
men over to the other job." The superintendent an-
swered that a foreman drives that truck "over there in
the morning and it sets there all day and then the
foreman drives it back with the men at night," and
that he "was not putting a Teamster on a vehicle just
for half a mile of driving in the morning and half a
mile at night and pay him for a whole day's pay." 2
The business agent said, "We'[ll] see about that," and
left.
1 Hereinafter all dates, unless otherwise stated, are in 1971.
2 It is not clear from the record what kind of truck the superintendent was
referring to
•
203 NLRB No. 185
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 2 days later, pickets appeared at the job
location at which the previously reported conversa-
tions took place. The picket signs said, in substance,
"John V. Warren employees do not receive benefits
from Local 294." The picket line remained for about
a week. About 4 days after the first picket line began,
picketing occurred at the other two Employer jobsites
at General Electric. Employees of some of the con-
tractors at one of the sites refused to cross the picket
line.
B. The Work in Dispute
The work in dispute is the transporting of plumbing
and heating materials and employees at the
Employer's jobsites in the General Electric complex
in Schenectady, New York.3
C. Contentions of the Parties
The Employer has assigned the work in dispute to
employees represented by the Plumbers or their su-
pervisors and, to a limited extent, to a laborer. The
Employer contends that its assignment is justified by
past practice, economy and efficiency, and, insofar as
the work performed by employees represented by the
Plumbers is concerned, by an applicable collective-
bargaining agreement , by area practice, and by the
required skills of operating the equipment.
The Respondent contends that the work in dispute
is covered by a collective-bargaining agreement it has
with Eastern New York Construction Employers,
Inc., to which it claims the general contractors on two
of the jobs in question are bound, and which it claims
requires the general contractors to make their subcon-
tractors conform.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion 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, and
that there is no agreed-upon method for voluntary
adjustment of the dispute.
3 As the Acting Regional Director did in his notice of hearing herein, we
describe the work in terms of the goal to be accomplished rather than the
operation of specific kinds of equipment . We do this because it is not clear
from the record what particular pieces of equipment were encompassed in
Respondent's demand , as articulated in the last conversation the business
agent had with the superintendent before the picketing began . It appears
from the superintendent 's testimony , however, that the Respondent's de-
mand included not only the transporting of materials , as set forth in the
notice of hearing , but also the transporting of men . As to the geographical
scope of the dispute , while there was some testimony about Teamsters claims
to similar work on other jobsites in the past , there is insufficient evidence on
which to conclude that such claims are current.
The facts are undisputed, Teamsters having partici-
pated, in the hearing only to the extent of asserting its
contractual claim and its contention of the existence
of an agreed-upon method for voluntary settlement,
as set forth below. The sequence of events recited
above makes it at least probable that the Teamsters
picketing was in support of its requests or demands
that persons represented by it be employed to perform
the work in dispute. We find that reasonable cause
exists to believe that Teamsters conduct violated Sec-
tion 8(b)(4)(D) of the Act.
To the extent, however, that the work in dispute is
being performed by supervisors, such as the superin-
tendent and foremen, Section 10(k) is inapplicable
and we will not pass on the propriety of such assign-
ments.4
Teamsters asserts that at the time of the hearing it
had submitted the dispute over this work assignment
to the grievance procedure established pursuant to its
collective-bargaining agreement to which two of the
general contractors were bound. It asserts that the
matter was deadlocked before the Joint Committee
which acts in the first step of that grievance proce-
dure, and that application had been made to the New
York State Board of Mediation for the appointment
of an arbitrator to render a final decision. Teamsters
argues that the Employer is a party to the arbitration
proceeding by virtue of the subcontracting clause in
the general contractors' agreement with Teamsters.
The record, on the other hand, contains no evi-
dence that the Employer is a party or has otherwise
agreed to be bound by any agreement with Teamsters
and, in fact, shows that the Employer has not received
any notice of the grievance referred to by Teamsters.
We conclude that the parties have not agreed to any
methods for the voluntary adjustment of the dispute.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after giving
due consideration to and balancing all relevant fac-
tors. The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
The agreement between Employer and the, Plum-
bers assigns to the Plumbers jurisdiction over the in-
stallation of all plumbing and pipefitting systems and
component parts, including handling, unloading, dis-
tributing, reloading, trying-on, and hoisting, by any
4 Local 236, affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Maxon Construction Com-
pany), 194 NLRB 594.
LOCAL 294, TEAMSTERS
method. The jurisdictional statement also incorpo-
rates the following:
47. The handling and using of all tools and
equipment that may be necessary for the erection
and installation of all work and materials used in
the pipe fitting industry.
The record indicates that the Employer's winch
trucks are used principally to raise and lower materi-
als being installed by plumbing employees and are
considered tools of the trade. The materials are
brought to the jobsite by outside carriers and are
transported by the winch trucks no further than 300
or 400 feet.
The agreement relied on by the Teamsters purports
to assign to the teamsters the work of all employees
"engaged in construction and supply work as chauf-
feurs." The minimum rates of pay established under
that agreement specifically cover drivers of winch
trucks and pickup trucks. As set forth above, the Em-
ployer is not a party to this agreement.
2. Employer's assignment, past practice,
and area practice
To the extent the work in dispute is related to
plumbing and pipefitting, the Employer has assigned
it, both on the jobs before us and generally, to em-
ployees represented by the Plumbers. The Employer's
superintendent of pipefitting testified that in 25 years
in this line of work, including work for other employ-
ers, he has never seen anyone but plumbers or fitters
operate on-site winch trucks.
The only other vehicles specifically referred to in
Respondent's request or demand were two pickup
trucks. One of the pickup trucks was owned by the
superintendent, who used it to transport himself and
a box of tools, and occasionally some equipment or
material from job to job during the working day. We
are not entertaining this part of the dispute. The other
pickup truck, owned by a laborer, was used by him to
transport himself and his tools and equipment to his
assignments .' The Employer paid the laborer a flat
$10 a week for using his pickup.
As set forth above, a foreman is assigned to trans-
port employees from one jobsite to another in the
morning and to return them at night, a distance of
about one-half mile. Since the foreman is apparently
a supervisor, we are not entertaining this part of the
dispute either.
5 It would appear, although this finding is not crucial to our determination
of the dispute, that the Laborer was unrepresented
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3. Relative skills, efficiency, and economy
There is no evidence as to the skills involved in
driving a winch truck, but the record indicates that
they are frequently driven, rarely used on a highway,
and that the major part of their operation consists of
handling pipes and fittings, which requires the skills
of a plumber or steamfitter. All of these employees
have sufficient skills to operate the winch trucks, and
no particular employees are assigned to operate them.
As there is relatively little driving to be done, as
such, and as much of that involves transporting what-
ever employee is presently doing the driving, it would
appear to be uneconomical for the Employer to em-
ploy a chauffeur or driver.
Conclusions
Upon the record as a whole, and after full consider-
ation of all relevant factors involved, we conclude that
employees of the Employer who are represented by
Plumbers and a laborer are entitled to the work in
dispute. The Teamsters offered no evidence upon the
merits of the dispute except for its contractual claim,
which we find to be without merit, and the relevant
factors discussed above lend support to the existing
work assignment, which we hereby ratify to the extent
that the work was being performed by employees and
not supervisors.
In making this determination, we are assigning the
disputed work to the laborer and to the employees of
the Employer who are currently represented by the
Plumbers, but not to that Union 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 pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
1. Employees employed by John V. Warren, Inc.,
who are currently represented by Local 105, United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, and an employee em-
ployed as a laborer, are entitled to perform the work
of transporting plumbing and heating materials at the
Employer's jobsites in the General Electric complex
in Schenectady, New York.6
2. Local 294, International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers of
6 Inasmuch as the record shows that the transporting of employees is
performed by an apparent supervisor , we make no award of that portion of
the work in dispute , nor do we, for the same reason, make any award of the
driving performed by the superintendent of pipefitting.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, is not, and has not been, entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require the Employer to assign the above work to
its members or employees it represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Teamsters shall notify
the Regional Director for Region 3, in writing wheth-
er it will refrain from forcing or requiring the Employ-
er, by means proscribed by Section 8(b)(4)(D), to as-
sign the above work to individuals represented by it
rather than to employees represented by the Plumbers
and to an employee employed as a laborer.
* U S GOVERNMENT PRINTING OFFICE 1975 0-550-241
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