Local 334, Laborers International Union

National Labor Relations Board - Board Decisions

Apr 25, 1969

175 N.L.R.B. 608 (N.L.R.B. 1969)

608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union - No. 334, Laborers International Union
of North America, AFL-CIO and C. H. Heist
Corporation and Local Union No. 20,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Ind. Case 7-CD-207
April 25, 1969
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended,
following a charge filed by C. H. Heist Corporation,
hereinafter referred to as the Employer or Heist,
against Local Union No. 334, Laborers
International Union of North America, AFL-CIO,
hereinafter referred to as Local 334 or Laborers.
The charge alleged that Laborers had threatened,
restrained, and coerced Heist for the purpose of
requiring it to assign certain work to employees
represented by Laborers rather than to employees
represented by Local Union No. 20, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Ind.,
hereinafter referred to as Local 20 or Teamsters. A
hearing was held at Detroit, Michigan, on October 9
and 10, 1968, before Hearing Officer Martin L.
Dean. , All parties participated in the hearing and
were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence on the issues. The rulings of the Hearing
Officer made at the hearing are free from prejudicial
error and are hereby affirmed. No briefs were filed.
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
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
Heist, a New York corporation whose main office
and place of business is in Cheektowga, New York,
is engaged in the business of industrial cleaning and
blasting, including high pressure water cleaning, and
painting. During the year ending December 31,
1967, it provided services valued- in excess of
$1,000,000 to customers located in states of the
United States other than New York, and purchased
goods valued in excess of $100,000 which were
shipped directly to its jobsites from points located
outside the States in which the jobsites were located.
In this same period, it performed services for
employers located in the State of Michigan, for
which it received revenue in excess of $ 100,000. 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 in this proceeding.
II. THE LABOR ORGANIZATIONS
The parties stipulated, and we find, that Local
334, Laborers, and Local 20, Teamsters, are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. The Work at Issue
This proceeding arises out of a dispute over
whether certain high pressure water cleaning of
machines and industrial drainage ductwork should
be performed by employees represented by
Teamsters Local 20 , or should be assigned to
workers represented by Laborers Local 334.
B. Background and Facts of the Dispute
Heist Corporation regularly performed hydro jet
cleaning operations at the Ecorse, Michigan plant of
Great Lakes Steel Corporation between March 1967
and June 1968. The hydro jet cleaning process
involves the application of water at high pressure to
pipes and machines, and results in the removal and
deposit of sludge and waste therefrom. The work is
performed by two-man pumptruck teams who use
equipment provided by Heist. Heist regularly
employed between one and three pumptruck teams,
who performed an average of 150 hours of work per
month, at Great Lakes.
Originally, none of the employees whom Heist
sent to Great Lakes was a union member. However,
sometime in March 1967, Laborers Local 334
discovered this. In response to pressure from that
Local, Heist provided several of its employees with
money with which to join the Union. Subsequently,
Heist hired additional employees from the Laborers'
hiring hall. Heist paid these employees at Laborers'
scale, and in addition sent completed fringe benefit
forms to the Union.
Laborers' business manager Carter asserts that in
June 1967, Heist area representative Biehl agreed to
contract with Laborers for performance of the
disputed work. Carter further asserts that Biehl,
who lacked authority to sign the agreement,
accepted a copy for signature by his superiors. Biehl
denies that the meeting took place, and further
denies both receipt of the contract and the existence
of any agreement. Carter did not produce a copy of
the purported agreement.
There was little further contact between Heist and
Laborers until the summer of 1968. On June 4,
1968, Heist's operations at Great Lakes Steel were
175 NLRB No. 103
LOCAL 334, LABORERS INTERNATIONAL UNION 609
terminated at the latter's request. The termination
came in response to a threat by Laborers to picket
Great Lakes Steel. In the course of investigating a
complaint by employee Raymond, Local 334 had
discovered the presence of nonunion employees at
the Heist jobsite. Great Lakes requested that Heist
leave the jobsite until its labor problems had been
settled.
Coincidentally, Teamsters Local 20 discovered
that certain other Heist employees, then performing
hydro jet cleaning work at the Northwood, Ohio
Esso plant, were not union members. After
obtaining the signatures of 9 of 11 such employees,
Local 20 was certified by the Toledo Labor
Management Citizens Committee. Heist then agreed
to bargain with Local 20. No NLRB certification
was obtained. On July 23, Heist was recalled to
Great Lakes to resume its cleaning operations, and
commenced work that day.
On July 25, after 3 weeks of negotiations, Heist
and Local 20 signed a contract recognizing that
union as bargaining agent for "all of the employees
working out of the Toledo, Ohio division and
engaged in `hydro jet cleaning process'." The area
covered includes "Northern Ohio, Southern
Michigan including Detroit, Northern Indiana and
contiguous territories." This area includes Great
Lakes' Ecorse, Michigan operations. That same day,
July 25, Great Lakes again requested the withdrawal
of Heist. Heist has notified Great Lakes of the
signing of the contract with Local 20, but the
business relationship between the two companies has
not been resumed.
On August 16, 1968, a meeting between
representatives of Heist, the Detroit Building Trades
Council, Teamsters Local 20, and Laborers Local
334 was held at the Hilton Hotel in Detroit. At this
meeting, according to the testimony of Borins, Heist
vice president and general counsel, Laborers'
business manager, Carter, threatened that if Heist
did not recognize it for the work in question there
would be hundreds of pickets at Great Lakes Steel.
Carter denies that he made such a threat. On an
earlier occasion, Carter had told Borins the work in
question should be assigned to Laborers and "that's
all there was to it."
Laborers further contends that it has been
Employer's past practice to hire Laborers for the
performance of the disputed work, and that Detroit
area practice is to award such work to Laborers.
Teamsters called no witnesses and appears to rest
its case on that of the Employer.
D. The 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 believe that Section 8(b)(4)(D)
has been violated.
Borins, vice president and general counsel of
Heist, testified that Carter, business manager of
Laborers, threatened at a meeting in Detroit on
August 16 to have hundreds of pickets at Great
Lakes Steel if Heist did not recognize Laborers for
the work in question. Carter denied that he had ever
made such a threat.
The Board is not charged with finding that a
violation did in fact occur, but only that reasonable
cause exists for finding such a violation. A conflict
in testimony does not prevent the Board from
proceeding with a determination of the dispute
under Section 10(k).' Therefore, without ruling on
the credibility of the testimony at issue, we find that
such reasonable cause exists, and that the dispute is
properly before the Board for determination under
Section 10(k) of the Act.
E. The 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 various relevant factors.
The Board has held that its determination in a
jurisdictional dispute is an act of judgment based
upon common sense and experience , reached by
balancing those factors involved in a particular case.2
The following factors are relevant in making a
determination of the dispute before us:
1. Collective-bargaining agreement
C. Contentions of the Parties
As of July 23, 1968, Heist has assigned the
disputed work to employees represented by
Teamsters Local 20. Heist contends that the
disputed assignment is covered by the collective
bargaining agreement between it and Local 20,
which was signed on July 25, 1968. Heist further
contends that in any case, members of Laborers do
not possess the requisite skills for the performance
of the job.
Laborers contends that the contract should not
govern because Heist entered into it with the
intention of avoiding its obligation to hire Laborers.
On July 25, 1968, the Employer and Local 20
entered into a collective-bargaining agreement which
by its terms specifically governs assignment of the
disputed work. The contract is regular on its face
and, presumably, enforceable in court.
Though Laborers contends that there exists a
prior contractual agreement between it and the
Employer, no such contract was introduced in
evidence, and the Employer denies making such an
agreement.
'Jefferson County. Alabama and Vicinity Carpenters District Council (S
& W Masonry, Inc.), 173 NLRB No. 190
'International Association of Machinist (J A Jones Construction Co J.
135 NLRB 1402
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Employer's past practice
Employer has employed Teamsters to perform the
disputed work at this location since July 23, 1968.
While the company does not deny that it has hired
Laborers at an earlier time, it contends that
Laborers did not perform the actual hydro jet
cleaning process , but merely removed the sludge.
Employer appears to contend that the more skilled
aspects of the hydro jet work were performed by
unrepresented employees. The record contains
testimony to support both positions. It is undisputed
that unrepresented employees were employed at the
jobsite. It is their presence which initiated this
dispute. However, members of Laborers testified
that they had performed all aspects of the hydro jet
process while working at the Heist jobsite.
Furthermore, Borins, Heist vice president and
general counsel, admitted on cross-examination that
he had no personal knowledge of the duties
performed by individual employees.
In eight of its other locations, Heist has contracts
with Painters' Locals for performance of work
identical to that in dispute here. In its Buffalo
region , Heist has a similar contract with the
Teamsters local. Heist is not under contract with
Laborers for the performance of hydro jet cleaning
at any location.
3. Area practice
Officials of both Laborers' and the Detroit
Building Trades Council testified as to area practice.
Their testimony reveals that practice in the Detroit
area was to assign such work to Laborers, with an
occasional award to Painters.
4. Skills
Employer contends that hydro jet cleaning
involves special skills and training which Laborers
do not possess . While members of Laborers do not
deny that they lack specialized knowledge, they
assert that such knowledge is not required at the
Great Lakes jobsite, and that they have in fact
performed all aspects of the operation. Specifically,
Laborers' witnesses contradict the Employer's
contention that the hydro jet worker must be able to
select from among 100 different nozzels in
performing various cleaning tasks. Laborer
Massingle testified that Heist equips employees at
its Great Lakes jobsite with only one or two nozzles.
5. Other factors
An award to Teamsters may result in greater
efficiency of operations, since all aspects of the
hydro jet process would be performed by employees
represented by one union. According to the
Employer, it was previously necessary to hire both
skilled and unskilled workers to perform various
phases of the same task.
As noted, the Employer has assigned the disputed
work to Teamsters.
Conclusions as to the Merits of the Dispute
Upon consideration of all pertinent factors
appearing in the record, we shall assign the work in
dispute to the Employer's employees represented by
Teamsters Local 20. There is some support in the
record for Employer's position that it has never
hired Laborers to perform certain aspects of the
disputed work. Similarly, it is not clear that
Laborers possess the requisite skills for the
performance of all phases of the hydro jet cleaning
process. With some of the factors on which we
normally rely being inconclusive in this case, we
believe that we should give substantial weight to the
collective-bargaining agreement between Employer
and Local 20, which specifically covers the disputed
work. The contract is regular on its face and
presumably enforceable in court. Moreover, the
assignment to the Teamsters serves the convenience
of the Employer. The geographic coverage of the
contract extends over the Employer's entire Toledo
region. This permits the Employer to deal
exclusively with one union for all its hydro jet
cleaning work in that region. Although area practice
seems to favor Laborers, we think it is outweighed
in this case by other factors favoring an award to
Teamsters.
In making this determination, we are awarding
the disputed work to employees who are represented
by Local 20, but not to Local 20 or its members.
In view of the above, we find that Laborers Local
334 was not and is not entitled by means proscribed
by Section 8(b)(4)(D) to force or require the
Employer to assign hydro jet cleaning work at Great
Lakes Steel to its members rather than to employees
represented by Teamsters Local 20.
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:
A. Employees of C. H. Heist Corp. currently
represented by Local 20, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Ind., are entitled to perform
the following work:
High pressure water cleaning of interiors and
exteriors of machines and drainage ducts at the
Great Lakes Steel jobsites of Heist Corporation.
B. Local 334, Laborers International Union of
North America, AFL-CIO, is not entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require Heist Corporation to assign such high
pressure water cleaning work to its members or to
LOCAL 334, LABORERS INTERNATIONAL UNION 611
employees whom it represents.
C. Within 10 days from the date of this Decision
and Determination of Dispute , Local 334, Laborers
International Union of North America , AFL-CIO,
shall notify the Regional Director for Region 7, in
writing, whether it will refrain from forcing or
requiring Heist Corporation , by means proscribed
by Section 8(b)(4)(D) of the Act , to assign the work
in dispute to employees represented by Local 334,
Laborers International Union of North America,
AFL-CIO , rather than to Heist employees who are
represented by Local 20, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Ind.