Operating Engineers, Local 12

National Labor Relations Board - Board Decisions

Jun 22, 1976

224 N.L.R.B. 1609 (N.L.R.B. 1976)

OPERATING ENGINEERS , LOCAL 12 1609
International Union of Operating Engineers, Local
Union No. 12 , AFL-CIO and Associated Concrete
Products, Inc. and General Truck Drivers, Ware-
housemen and Helpers Union, Local 235, Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Case 31-
CD-162
State of California and had gross revenues in excess
of $500,000 during this same period. We find that the
Employer is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and that it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
June 22, 1976
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, based on
a charge filed by Associated Concrete Products, Inc.,
herein called the Employer . The charge alleges that
International Union of Operating Engineers, Local
Union No. 12, AFL-CIO, herein called Operating
Engineers , violated Section 8(b)(4)(D ) of the Act by
engaging in certain activity in order to force the Em-
ployer to assign certain work to individuals repre-
sented by Operating Engineers rather than to em-
ployees of the Employer represented by General
Truck Drivers , Warehousemen and Helpers Union,
Local 235, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America,
herein called Teamsters.
A duly scheduled hearing was held on March 5,
1976, and April 15, 1976, before Hearing Officer
Ralph Perez . All parties appeared at the hearing and
were afforded full opportunity to be heard , to exam-
ine and cross-examine witnesses , and to adduce evi-
dence bearing on the issues . Thereafter, briefs were
filed by the Employer and Operating Engineers.
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 in this case, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The Employer is a California corporation engaged
in the business of manufacturing precast concrete
products. During the year preceding the hearing, it
purchased and received materials valued in excess of
$50,000 directly from suppliers located outside the
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Operating
Engineers and Teamsters are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute consists of the placing of pre-
cast concrete products into prepared excavations at
construction jobsites but does not include the placing
of such products onto the ground.
B. Background and Facts of the Dispute
The Employer manufactures precast concrete
vaults, including manhole shafts and underground
utility vaults, for delivery to construction sites in the
Los Angeles, California, area. These products are de-
livered by the Employer's drivers in trucks fitted with
a hydraulic crane or boom. The products are loaded
at the Employer's supply yard and driven to the
customer's construction site, at which time the driver
offloads the precast products at the direction of the
customer's supervisor.
The driver is generally asked to offload the prod-
ucts directly into the prepared excavation site, but on
rare occasions is asked to offload the products onto
the ground or some other suitable place. Offloading
is accomplished by the truckdriver, who utilizes the
truck's boom to hoist the concrete product into its
designated site. The truckdriver is the only person
who operates the boom but he is assisted by the
customer's laborers who help attach boom cables to
the concrete product and help guide the product into
place.
Since 1965, the Employer has been signatory to a
collective-bargaining agreement which expressly as-
signs the work in dispute to drivers represented by
Teamsters. Prior to that time, the Employer assigned
some portion of its offloading work to drivers repre-
sented by Operating Engineers and was a party to a
short-form collective-bargaining agreement with the
Operating Engineers. In 1965, however, that bargain-
ing relationship was apparently terminated in favor
of one which granted the Teamsters exclusive repre-
sentation of the Employer's truckdrivers. There has
224 NLRB No. 213
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been no collective-bargaining agreement between the
Employer and Operating Engineers since 1965.
Notwithstanding the contract between the Em-
ployer and the Teamsters, Operating Engineers has
continued to claim the work in dispute. By a settle-
ment agreement dated December 3, 1974, Operating
Engineers agreed not to engage in conduct prohib-
ited by Section 8(b)(4) with the object of forcing the
Employer to assign the work in dispute to members
of Operating Engineers rather than to members of
Teamsters.
Adding impetus to the dispute between Operating
Engineers and Teamsters is the presence of an agree-
ment subscribed to in 1969 by the International
Union of Operating Engineers and the International
Brotherhood of Teamsters. That agreement provides
that the work of hoisting materials into place (such as
the hoisting of precast concrete products) is the rec-
ognized work of the Operating Engineers. At a meet-
ing on January 20, 1976, between the Operating En-
gineers and the Teamsters, called for the purpose of
discussing the dispute herein, Milton Merrill, the
Teamsters business representative, went so far as to
agree that the disputed work belonged to the Operat-
ing Engineers and communicated this fact to the Em-
ployer. The Teamsters position at the time of hear-
ing, however, was that the disputed work belonged to
it.,
The events actually giving rise to the present pro-
ceeding occurred on January 12, 1976. On that morn-
ing, the Employer was scheduled to deliver two pre-
cast manholes to a construction site at Inglewood,
California, pursuant to a purchase order contract
with Bovee and Crail Construction Company. Under
the terms of the purchase order contract, Bovee and
Crail had the option of having the precast manholes
placed directly into the prepared excavation or
placed at some other designated offloading point.
Franklin Kerr, truckdriver for the Employer, testi-
fied that he arrived at the construction site at approx-
imately 8:30 in the morning. He proceeded to hoist
the components of the first manhole assembly into
the prepared excavation, but had to set one of the
manhole assembly's four interlocking components
beside the hole because of some problem.2 Kerr then
1 Merrill's concession that the work in dispute belonged to the Operating
Engineers was made in full knowledge of the fact that the Teamsters con-
tract with the Employer obligated employees represented by the Teamsters
to perform this work Shortly after the meeting, Merrill communicated to
the Employer his intention of fully abiding by the collective-bargaining con-
tract Operating Engineers does not contend that Merrill's oral concession
constitutes an effective disclaimer of the work in dispute nor, in light of the
circumstances mentioned above, do we so find
2 The testimony of Walter Denny, project manager for Bovee and Crad,
establishes that there was an elevation problem with the first manhole which
was corrected the following day by delivery of a substitute component of
different dimensions
repositioned his truck at the second excavation site
and began hoisting the second manhole into place.
While Kerr was hoisting the second manhole assem-
bly into the hole, Milton Carter, the business repre-
sentative for Operating Engineers, walked up to Pete
Alferro, the onsite foreman, and talked with him.'
Carter then approached Kerr and instructed him that
he could not set the manhole assembly into place but
could set it down on the ground. Carter showed Kerr
a copy of the 1969 jurisdictional agreement between
the International Brotherhood of Teamsters and In-
ternational Union of Operating Engineers which as-
signed the work of lowering materials in place to the
Operating Engineers. Kerr stopped work and asked
Carter to talk to Kerr's supervisor on the telephone.
Kerr and Carter then walked to the contractor's job
trailer where Kerr called Ed Colinsky, the
Employer's director of industrial relations. Colinsky
talked with Carter, then got back on the phone with
Kerr and told Kerr to wait until Colinsky called him
back. After an hour, Colinsky called Kerr back and
told him to go ahead and set the concrete products in
place. Kerr walked to the Bovee and Crail trailer and
spoke with Walter Denny, project manager for Bovee
and Crail. Denny instructed Kerr that since Carter,
who had by that time left, was not around Kerr
should set the remaining manhole components on
the ground.
Ed Colinsky testified that on January 12, 1976, he
received a call from Kerr, who told him that Carter
had prevented him from completing delivery of the
two manhole assemblies. At Colinsky's request, Car-
ter got on the phone and told Colinsky that the Em-
ployer was illegally doing work that belonged to the
Operating Engineers and that he, Carter, had direct-
ed that it be stopped. Cal ter based his claim to the
work on the jurisdictional agreement subscribed to
by the two International Unions. Colinsky replied
that he was not aware of such an agreement, that the
Employer was not signatory to it, and that he felt it
was not binding.
Walter Denny testified that on the morning of Jan-
uary 12, 1976, Kerr came into his trailer, asked for
the phone, and informed Denny that he had been
stopped from setting the manhole assemblies into
place. Later, after Kerr had been instructed to put
the remaining manhole components on the ground
and Kerr and Carter had both left the site, Denny
called Carter and accused him of shutting down the
job. Carter denied this but agreed to Denny's request
that Carter come back out to the jobsite and talk
about the matter. At the jobsite, Carter admitted
J Bovee and Crail subcontracted its manhole work to Alco Pipeline Com-
pany Pete Alferro was superintendent for Alco Pipeline and supervised the
installation of the manhole assemblies
OPERATING ENGINEERS, LOCAL 12
having stopped Kerr from setting the second man-
hole assembly into place and referred Denny to the
1969 jurisdictional agreement. Denny asked if he
would be cited for a violation, since Kerr had placed
part of the manhole assemblies into the prepared ex-
cavation site . Carter replied that no violation would
issue as long as Denny used Operating Engineers
people in the future to perform the work.
Later that day, Denny used one of his own cranes
to hoist the remaining part of the second manhole
assembly into place. Denny estimated that as a result
of the stoppage the project lost 2 or 3 hours of work.
Carter's testimony conflicted with that of Kerr,
Colinsky, and Denny. Carter testified that about 10
a.m. on January 12, 1976, he spotted the Employer's
truck unloading the manhole assemblies into place.
Carter first talked with Pete Alferro, who was super-
vising the hoisting operation, then spoke with Kerr
and discovered that Kerr was a Teamsters member
rather than an Operating Engineers member. Carter
testified that he then returned to Alferro and told
him that he was in violation of the Operating Engi-
neers master labor agreement with Alco Pipeline for
permitting someone other than a member of Operat-
ing Engineers to hoist materials into place.4 Carter
denied that he told Kerr to cease performing his
work.
After speaking with Alferro, Carter testified that
he walked to the general contractor's trailer to say
that the general contractor too was in violation of the
Operating Engineers master labor agreement. While
there he was accosted by Kerr who demanded proof
that the hoisting of products into place was Operat-
ing Engineers work. Only then did Carter show Kerr
a copy of the 1969 jurisdictional agreement. Carter
denied having admitted to Denny or to Colinsky that
he had stopped Kerr from completing his work.
Carter testified that the Operating Engineers mas-
ter labor agreement forbids the assignment of the
hoisting of materials into place to persons who are
not members of the Operating Engineers and that
part of his job involves policing this agreement. He
further testified that he acted on January 12 only to
enforce the provisions of the master labor agreement.
None of his activity was directed at the Employer or
its employees. He claimed that, in accordance with
his regular practice, he informed C. V. Holder-Equi-
nox, Bovee and Crail, and Alco Pipeline that they
were in violation of the master labor agreement and
4 C V Holder-Equinox, general contractors at the Inglewood construc-
tion site, and Bovee and Crail and Alco Pipeline, subcontractors, are all
parties to a master labor agreement with Operating Engineers The agree-
ment contains a clause recognizing Operating Engineers to be the sole and
exclusive representative of all employees performing work over which Oper-
ating Engineers has jurisdiction
1611
should accordingly reassign the disputed work to em-
ployees represented by the Operating Engineers.5
C. The Contentions of the Parties
The Employer contends that a jurisdictional dis-
pute exists and that there is reasonable cause to be-
lieve that Section 8(b)(4)(D ) of the Act has been vio-
lated . It further contends that the disputed work
should be awarded to employees represented by the
Teamsters on the basis of its collective -bargaining
agreement with the Teamsters , its assignment of the
work , economy, efficiency , and area and industry
practice.
The Teamsters agrees with the Employer that rea-
sonable cause exists to believe that a violation of Sec-
tion 8(b)(4)(D) has occurred and agrees that the work
should be assigned to the employees it represents.
The Operating Engineers contends that no juris-
dictional dispute exists which is cognizable under
Section 10(k) of the Act and that there is no evidence
to sustain a reasonable belief that it has violated Sec-
tion 8(b)(4)(D) inasmuch as it has only sought to ob-
tain the contractors ' compliance with its master labor
agreement and has not attempted to interfere with
the Employer 's assignment of work . Operating Engi-
neers also contends that it is merely trying to pre-
serve work historically assigned to it and that such
activity does not come within the intended proscrip-
tion of Section 8(b)(4)(D). Should a statutory dispute
exist , however, Operating Engineers contends that
employees represented by it should be awarded the
work on the basis of its agreement with the Team-
sters, prospective loss of jobs, economy and efficien-
cy, and industry and area practice.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion 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
and that there is no agreed-upon method for volun-
tary adjustment of the dispute.
The Board, in jurisdictional dispute cases, is not
charged with finding that a violation did in fact oc-
cur, but only with finding that there is reasonable
cause to believe that a violation has been committed.
Considering the matter in this light, and without rul-
s In this, Carter's testimony conflicted to some extent with that of William
Floyd, district representative for the Operating Engineers Floyd testified
that , in his experience, whenever an Operating Engineers business agent
discovered that a contractor was assigning disputed hoisting work to some-
one other than a member of Operating Engineers, the business agent would
rely on the 1969 jurisdictional agreement in getting the contractor to reas-
sign the work
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mg on the credibility of the testimony adduced at the
hearing, we find that there is reasonable cause to be-
lieve that Operating Engineers Agent Carter did pre-
vent the Employer's truckdriver, Kerr, from setting
precast concrete products into place and that he did
so with the intent of causing the Employer to assign
the disputed work to employees represented by Oper-
ating Engineers.'
We find no merit to Operating Engineers conten-
tion that no jurisdictional dispute exists inasmuch as
Operating Engineers was simply attempting to pro-
tect and preserve work traditionally performed by it.'
Although the record shows that Operating Engineers
at one time represented some of the Employer's
truckdrivers, the Employer has since 1965 exclusively
allocated the work in dispute to employees repre-
sented by the Teamsters. It strains credulity to sug-
gest that Operating Engineers present activity consti-
tutes a belated attempt to retrieve work long since
transferred away from it. Accordingly, we find that
there is reasonable cause to believe that Section
8(b)(4)(D) of the Act has been violated and that the
dispute is properly before the Board for determina-
tion under Section 10(k).
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work af-
ter giving due consideration to all relevant factors
involved. The following factors are relevant in mak-
ing a determination of the dispute before us:
1. Collective-bargaining agreement
The Employer has had collective-bargaining agree-
ments with the Teamsters since 1965. The current
agreement, effective at all times relevant to this pro-
ceeding, contains the following jurisdictional provi-
sion which assigns to the Teamsters the work in dis-
pute:
The Union claims jurisdiction over all employ-
ees outlined in classifications set forth in Appen-
dix A of this Agreement when same are to be
used for the delivery of concrete products in-
cluding off-premise duties of drivers operating
6 Local 150, Operating Engineers, AFL-CIO (Components, Inc), 197
NLRB 569 (1972)
7 See Seattle Building & Construction Trades Council, AFL-CIO, et at
(Seattle Olympic Hotel Company), 204 NLRB 1126 (1973), Highway Truck-
drivers & Helpers, Local 107, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Independent (Safeway Stores,
Incorporated), 134 NLRB 1320 (1961)
Boom Units to set in the excavation and deliver
concrete products to its customers.
The Employer has no collective-bargaining agree-
ment with Operating Engineers. The contractual re-
lationship between the Employer and the Teamsters
thus favors assignment of work to employees repre-
sented by the Teamsters.
2. Employer and area practice
Three competitors of the Employer, all of them
engaged in the manufacture and delivery of precast
concrete products, testified that their operations were
conducted in the same way as the Employer's. Each
competitor testified that its deliveries were made by
unaccompanied boom truck operators who offloaded
the precast products into prepared excavation sites.
All three competitors assign the job of boom truck
operator to members of Teamsters. Operating Engi-
neers produced no testimony showing that a compa-
ny engaged in the manufacture and delivery of pre-
cast concrete products performs the work in dispute
differently than the Employer. This factor, therefore,
favors the employees represented by the Teamsters.
3. Economy and efficiency
The record establishes that the Employer and its
competitors charge a set rate per hour for the period
of time during which the boom truck driver offloads
the precast concrete product. With the exception of
one competitor, the same rate is charged for setting
the product into place as for setting the product onto
the ground. Testimony was adduced which showed
that if the Employer's truckdrivers were only permit-
ted to unload the concrete products onto the ground
the construction contractors would be required to
rent a crane to perform the work of setting the prod-
ucts into place. Since the time involved in setting the
product on the ground is the same as the time in-
volved in setting the product into place, the proce-
dure advocated by the Operating Engineers of letting
operating engineers set the products into place would
result in duplication of effort and cost the contractor
additional expense.
This factor, therefore, favors employees repre-
sented by the Teamsters.
4. Interunion agreement
The 1969 agreement between the International
Brotherhood of Teamsters and the International
Union of Operating Engineers assigns the work in
dispute to operating engineers. While this factor fa-
OPERATING ENGINEERS, LOCAL 12 1613
vors assignment of the work to operating engineers,
we do not accord it great weight in light of the
Employer's contrary past practice and the other fac-
tors mentioned above B
Conclusion
Upon the record as a whole, and after full consid-
eration of all relevant factors involved, we conclude
that the employees of the Employer who are repre-
sented by the Teamsters are entitled to the work in
dispute In reaching this conclusion, we have particu-
larly relied on the Employer's assignment of the dis-
puted work to its employees, the fact that this assign-
ment is consistent with the Employer's past practice,
with the Employer's current collective-bargaining
agreement with the Teamsters, and with the area and
industry practice of its competitors, and the efficien-
cy and economy of operations which result from
such assignment We shall therefore determine the
dispute before us by awarding the work involved
herein to employees represented by the Teamsters,
but not to that Union or its members 9
8 Local 150 Operating Engineers supra
9It should be noted that our determination herein does not touch upon
and is not intended to validate the assignment of the work in dispute by
Bovee and Cratl Alco Pipeline or C V Holder Equinox (the construction
site contractors)
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 of Associated Concrete Products,
Inc , represented by General Truck Drivers, Ware-
housemen and Helpers Union, Local 235, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, are entitled to
perform the work in dispute which consists of the
placing of precast concrete products into prepared
excavations at construction jobsites serviced by the
Employer
2 International Union of Operating Engineers,
Local Union No 12, AFL-CIO, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require the assignment of the above work to
its members or to the employees it represents
3 Within 10 days from the date of this Decision
and Determination of Dispute, International Union
of Operating Engineers, Local Union No 12, AFL-
CIO, shall notify the Regional Director for Region
31, in writing, whether it will refrain from forcing or
requiring, by means proscribed by Section 8(b)(4)(D)
of the Act, the assignment of the work in dispute to
employees represented by the Operating Engineers,
rather than to employees represented by the Team-
sters