Teamster Local 639 (United Rigging & Hauling)

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 803 (N.L.R.B. 1989)

TEAMSTERS LOCAL 639 (UNITED RIGGING & HAULING) 803
Drivers, Chauffeurs and Helpers Local Union No.
639 a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America , AFL-CIO and United Rigging and
Hauling, Inc. and International Association of
Bridge, Structural and Ornamental Iron Work-
ers, Local Union No. 5. Case 5-CD-291
September 29, 1989
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFF AND DEVANEY
The charge in this Section 10 (k) proceeding was
filed February 8, 1989, by the Employer, alleging
that the Respondent, Teamsters Local 639, 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 em-
ployees represented by Iron Workers Local 5. The
hearing was held March 7, 8, 9, and 13, 1989,
before Hearing Officer Kevin J . Sturm.
The National Relations Board has delegated its
authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer 's rulings,
finding them free from prejudicial error. On the
entire record , the Board makes the following find-
ings.
I. JURISDICTION
The Employer, a Delaware corporation , with its
principal office in Beltsville , Maryland, is engaged
in the business of hauling and relocation of heavy
machinery and other objects in and around the
Washington, D.C. metropolitan area. During the 12
months preceding the hearing , a representative
period, the Company purchased goods and materi-
als valued in excess of $50 ,000 directly from out-
side the State of Maryland. The parties stipulated,
and we find , that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and that Teamsters Local 639 and Iron
Workers Local 5 are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer's rigging work involves the
movement of heavy, bulky, fragile, or unusually
shaped items , equipment , or objects to be transport-
ed and/or hoisted on and off buildings . The Em-
ployer's rigging work usually entails the operation
of jacks, rollers, dollies, forklifts, cables, levers,
hoists, and other common rigging equipment. At
times, the rigging done by the Employer may also
involve blueprint reading , fabricating , welding,
burning steel , climbing steel , and work with scaf-
folding , skills the Employer refers to as "rigging
plus."
The Employer began operating in 1969 , and that
year it entered into the first of a series of collec-
tive-bargaining agreements with Teamsters Local
639. From 1969 until 1975, Local 639 was the sole
representative of the Employer 's riggers . In 1975,
the Employer hired its first two ironworkers to
perform rigging work and entered into the first of
a series of collective-bargaining agreements with
Iron Workers Local 5. From 1975 to 1980, approxi-
mately 75 percent of all rigging work was assigned
to employees represented by Local 639, with the
remaining rigging work going to employees repre-
sented by Local 5 . In 1983 , the Employer hired its
last rigger represented by Local 639, and since
1983, as riggers represented by Local 639 have left
the Employer, they have been replaced by riggers
from the Local 5 hiring hall.
At the time of the hearing , the Employer em-
ployed 23 riggers represented by Local 639, 3 per-
manent riggers represented by Local 5, and, on any
given day, approximately 25 or more riggers re-
ferred from the Local 5 hiring hall . At times, all
rigging work on a particular job has been per-
formed by riggers represented by Local 639, and
on other occasions the rigging work has been done
solely by riggers represented by Local 5 . And rig-
gers represented by Local 639 and Local 5 have
sometimes worked together on the same job.
From June 22 through October 28, 1988, Local
639 filed several grievances in response to the Em-
ployer's assignment of rigging work on various
jobs in the Washington area to riggers represented
by Local 5 instead of to those represented by
Local 639. In November 1988, officials from the
Employer, Local 639, and Local 5 met to discuss
the jurisdictional dispute . Employer Vice President
of Operations Elliotte testified at the hearing that
the Employer told the Teamsters to stop "harass-
ing" the Employer with grievances and to resolve
the dispute with the Iron Workers. According to
Elliotte , Local 639 President Feaster responded
that the Teamsters claimed all rigging work and
that the Iron Workers should get out of their juris-
diction . Elliotte testified that Feaster then stated
that if the Employer needed any help closing its
doors he would be happy to oblige . In his testimo-
ny, Feaster denied making this statement , and testi-
fied that he had said , in response to the Employer's
claims that it may have to cease operations , that he
wanted employees represented by Local 639 to be
296 NLRB No. 100
804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
working for the Employer right up until the Em-
ployer actually closed its doors . In a letter to El-
liotte dated December 6, 1988 , Feaster stated that
Local 639 demanded immediate recognition as the
exclusive representative of the Employer 's classifi-
cation of drivers, helpers, and riggers , claimed all
work performed under these classifications , and de-
manded the payment of dues and health and wel-
fare and pension contributions for "any " employee
performing rigging work . The letter then stated
that Feaster intended "to take every legal and eco-
nomical resource available to see that this demand
is carried out."
B. Work in Dispute
The disputed work involves all rigging work
performed by the Employer in the course of its op-
eration of its Beltsville, Maryland facility.
C. Contentions of the Parties
The Employer contends that, in accordance with
its past practice , it should be allowed to assign the
disputed work to either employees represented by
Local 639 or employees represented by Local 5, as
economic considerations dictate .' The Employer
contends that its preference is supported by econo-
my and efficiency of operations , the relative skills
and qualifications of the competing groups of em-
ployees, the area and national practice in the con-
struction rigging industry, its own past practice,
and an interunion agreement between Local 639
and Local 5 to share rigging work . The Employer
further notes that an award sanctioning its prefer-
ence will not result in job displacement of either
group of employees . The Employer also states that
if the Board is constrained by the description of the
work in dispute , and must award all the disputed
work to either one group of employees or the
other, then the rigging work should be awarded to
the employees represented by Local 5.
Local 639 contends that the dispute is only nomi-
nally jurisdictional and that the issue is actually
which Union should represent the employees who
perform rigging work for the Employer . Local 639
claims that in 1969 it organized a wall-to -wall bar-
gaining unit that included riggers, that over the
years riggers represented by Local 5 began to re-
place Local 639 riggers , and that under Local 639's
collective -bargaining agreement with the Employ-
' Specifically , the Employer proposes to continue its practice of assign-
ing "overflow" rigging , i.e., the work in addition to that being handled
by its permanent riggers, to riggers referred from Local 5's hiring hall
At one point in its brief, the Employer proposes to assign its "rigging
plus" work to employees represented by the Iron Workers (Br. 4), but
later it indicates that its actual practice has been to assign such work to
either a composite crew of employees represented by both Unions or a
crew composed exclusively of employees represented by Local 5
er, all employees who perform rigging work are
represented by Local 639. Local 639 also argues
that factors such as area and national practice in
the nonconstruction rigging industry , economy and
efficiency , and the potential job impact on the ex-
isting Local 639 riggers support awarding the dis-
puted work to the employees whom it represents.
Local 5 asserts that Local 639's contention that
the dispute is representational in nature is without
basis and is merely an attempt to avoid a decision
on the merits . Local 5 contends that the dispute is
clearly jurisdictional,2 and that factors such as area
and industry practice , relative skills of the compet-
ing groups of employees, interunion agreements,
and economy and efficiency of operations support
awarding the disputed work to employees that it
represents . Local 5 notes that the Employer 's pref-
erence is to be allowed discretion in assigning the
disputed work to either of the competing groups,
but contends that the Board should adhere to the
description of the work in dispute and award all
such work to employees represented by Local 5.
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 the parties have not agreed on a
method for the voluntary adjustment of the dis-
pute.
As noted above , Employer Vice President El-
liotte testified that Local 639 President Feaster,
during a meeting to resolve the work dispute, told
employer officials that if the Employer needed any
help closing its doors he would be happy to
oblige.3 As was also noted above, Feaster told El-
liotte in a letter dated December 6, 1988, that
Local 639 demanded immediate recognition as the
exclusive representative of the Employer 's riggers,
and that he intended "to take every legal and eco-
nomical resource available to see that this demand
is carried out."4 These statements by Feaster pro-
vide reasonable cause to believe Section 8(b)(4)(D)
had been violated . The parties stipulated at the
hearing, and we find, that there is no agreed-on
method for voluntary adjustment of the dispute
2 The Employer makes the same argument.
a Feaster denied this specific allegation by Elliotte Because the Board
need only find reasonable cause to believe that a violation occurred, a
conflict in testimony does not preclude the Board from determining a
10(k) dispute . Laborers Local 334 (C.H. Heist Corp.), 175 NLRB 608, 609
(1969)
4 This comment is comparable to statements that the Board has relied
on to find reasonable cause to believe Sec. 8 (b)(4)(D) has been violated
See, e.g, Iron Workers Local 433 (Crescent Corp), 277 NLRB 670 ( 1985);
Teamsters Local 6 (Anheuser-Busch), 270 NLRB 219 (1984)
TEAMSTERS LOCAL 639 (UNITED RIGGING & HAULING)
within the meaning of Section 10(k) of the Act.
Accordingly, we find that the dispute is properly
before the Board for determination.5
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
various 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 bal-
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of the dispute.
1. Certifications and collective -bargaining
agreements
Neither Local 639 nor Local 5 has been certified
as the collective-bargaining representative for a
unit of the Employer's riggers . With regard to col-
lective-bargaining agreements , at the time of the
hearing both Unions had collective-bargaining
agreements with the Employer that explicitly cov-
ered the disputed work. Article 21 of the agree-
ment between the Employer and Local 639, effec-
tive by its terms from May 23, 1986, through May
22, 1989, set forth the classifications claimed by
Local 639, which included master and apprentice
riggers . Section 2 of the agreement between Local
5 and the Iron Workers Employers Association of
Washington , D.C. (to which the Employer was a
party), effective by its terms from May 1, 1987,
through April 30, 1989, sets forth the craft jurisdic-
tion of Local 5, which included "rigging." Accord-
ingly , we find that the factors of certification and
collective-bargaining agreements do not favor an
award of the disputed work to employees repre-
sented by either Union.
2. Company preference and past practice
The record indicates that the Employer 's prac-
tice, particularly since 1983 , has been to assign
available rigging work to its permanent employees,
most of whom are represented by Local 639 and
some by Local 5, and then "overflow" rigging
S We reject Local 639's contention that the dispute is representational
rather than jurisdictional in nature . Although distinguishing work assign-
ment disputes from controversies over which of two unions should repre-
sent certain employees is sometimes difficult, it is clear from the record
that the central issue in this case is which group of employees should be
assigned rigging work , as opposed to which union should represent the
particular employees who perform such work See, e g ., Graphic Arts
Local 289 (Detroit News), 246 NLRB 981 (1979). Harley-Davidson Motor
Ca, 234 NLRB 1121 (1978)
805
work to riggers from Local 5's referral hall. The
number of referrals from Local 5's hall averages
approximately 25 per day . When a job involves
"rigging plus" work , such as blueprint reading, fab-
ricating , welding, burning steel , climbing steel, and
work with scaffolding , the Employer 's practice has
been to assign either a composite crew or a crew
composed exclusively of riggers represented by
Local 5.
At the hearing and in its brief , the Employer ex-
pressed its preference for an award that would
assign the disputed work , in accordance with its
past practice, to employees represented by either
Union depending on the circumstances facing the
Employer when the work must be performed.
We find that the factors of the Employer's past
practice and preference do not favor an exclusive
award of the work in dispute to employees repre-
sented by either Union.
3. Area and industry practice
The record indicates that the Employer is the
only unionized company in the Washington, D.C.
area that does strictly rigging work . Consequently,
in trying to establish that area and industry practice
supported their positions , both Local 639 and
Local 5 relied on evidence that they represent em-
ployees in other industries who perform rigging
work . Local 5 introduced evidence that several
construction contractors in the metropolitan Wash-
ington area use employees referred by Local 5 to
perform their rigging work .6 This evidence, how-
ever , is of limited relevance to the Employer 's situ-
ation because , according to Vice President of Op-
erations Elliotte, only 25-30 percent of the Em-
ployer's work is done on new construction sites.
Local 639 introduced evidence that it represents
riggers employed by a number of government con-
tractors and by contractors in the exhibition and
trade show industry . But Local 639 Business Agent
Woodward admitted that the rigging work done by
the government contractors was not as "involved"
as that performed by the Employer, and his testi-
mony also indicated significant differences between
the rigging work in the exhibition and trade indus-
try and the rigging work done by the Employer.
Accordingly , on review of the record , we con-
clude that the factor of area practice is inconclu-
6 Carroll Allison , president of the Iron Workers District Council of the
Mid-Atlantic States, testified that 292 contractors are signatory to a na-
tional agreement between the Iron Workers International and the Nation-
al Council of Erectors, Fabricators, and Riggers However, because
Local 5 did not introduce evidence of how many of these contractors
were rigging contractors and what type of rigging work they perform,
we cannot determine the relevance of this agreement to the instant dis-
pute
806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sive and does not favor an award of the disputed
work to employees represented by either Union.
4. Relative skills
The record shows that riggers represented by
Local 5 are more qualified to perform the work the
Employer refers to as "rigging plus." Local 5 pre-
sented evidence that its 4-year apprenticeship pro-
gram provides extensive training in rigging, includ-
ing training in blueprint reading , burning steel, and
welding . In contrast , Local 639 stipulated that it
does not provide any training in rigging, and the
record indicates that of the employees Local 639
represents , only five can burn competently, only
two can weld , only one can read blueprints, and
only five or six can climb steel . Consequently, ac-
cording to employer witnesses , the Employer relies
almost exclusively on riggers represented by Local
5 to do its "rigging plus" work.
Local 5's training program has also made it a re-
liable source of qualified riggers for the Employer's
"overflow" rigging work . Local 639, by contrast,
has not referred a qualified rigger to the Employer
since 1983 or 1984 , and Local 639 's counsel even
acknowledged at the hearing that "[t]here appears
to be no question that the Teamsters cannot supply
qualified riggers in the numbers needed by the
Company."
On the other hand, the record shows that the
permanent riggers represented by Local 639 are
fully qualified to perform straight rigging . Accord-
ing to Employer Vice President/Job Superintend-
ent Grooms , most of these riggers have worked for
the Employer for more than 10 years, and there is
no indication in the record that they have ever
been unable to do the rigging work assigned them.
Based on the preponderance of the evidence, we
find that the factor of relative skills does not favor
an exclusive award of the work in dispute to em-
ployees represented by either Union.
5. Economy and efficiency of operations
The record shows that the riggers represented
by Local 5 and those represented by Local 639 are
fully qualified to perform straight rigging work.
Therefore, an award of the disputed work to either
Union would not impose any costs or inefficiencies
on the Employer with regard to its straight rigging
work . However, because most of the riggers repre-
sented by Local 639 cannot perform "rigging plus"
work , an award of the disputed work to them
would impose significant constraints on the Em-
ployer 's ability to perform "rigging plus" work ef-
ficiently. An award of the work to Local 639
would also make it more difficult for the Employer
to find qualified riggers to do its overflow rigging
work . Local 5 Business Manager Richbourg testi-
fied that the Iron Workers Union will not refer its
members to contractors with whom it does not
have a collective-bargaining agreement . Thus, if
the disputed work were awarded to Local 639, the
Employer would be prevented from drawing on
Local 5 's referrals , its sole reliable source of quali-
fied riggers for its overflow work . Given Local
639's admission that it cannot supply a sufficient
number of qualified riggers to the Employer, and
the fact that the record does not reveal an alterna-
tive to Local 5 as a source of qualified riggers, the
Employer would likely have to incur the consider-
able cost and inconvenience of training inexperi-
enced employees to do its overflow rigging work.
Under these circumstances , we find that the fac-
tors of economy and efficiency favor allowing the
Employer to use its discretion in assigning rigging
work , rather than making an exclusive assignment.
6. Interunion agreements
Former Local 5 Business Agent Walker testified
that at a meeting in 1975, Local 5 and Local 639
entered into a "Gentleman 's Agreement" under
which the Employer would hire two permanent
riggers represented by Local 5; assign an equal
number of riggers represented by Local 5 and
Local 639 to power plant projects ; and for new
hiring would be free to employ members of either
Union to do its rigging work. Local 639 officials
Marcy and Mattia, who Walker testified were
Local 639's representatives at the meeting, both
testified at the hearing that they had never attend-
ed such a meeting with Walker , and Marcy,
Mattia, and Local 639 President Feaster all denied
that such an agreement ever existed between Local
639 and Local 5 . In any event , by the early 1980's,
both Unions were claiming the right to represent
all the Employer's riggers . In July 1982 , officials
from both Unions met to try to resolve the juris-
dictional dispute . Local 639 officials testified that
their understanding after this meeting was that the
two Unions had agreed that the Employer would
retain two permanent riggers who were represent-
ed by Local 5, and the rest of the Employer's rig-
gers would be represented by Local 639. Local 5
officials testified that they understood the agree-
ment to be that the Employer would retain all its
permanent riggers, and could hire employees repre-
sented by either Union as new riggers . Thus, it ap-
pears that there was no real "meeting of the
minds" between the two Unions on this issue. Ac-
cordingly, we find that the factor of interunion
agreements is not helpful to a determination of the
dispute.
TEAMSTERS LOCAL 639 (UNITED RIGGING & HAULING)
7. Job impact
An award of the disputed work to employees
represented by either Union would likely displace
the permanent riggers represented by the other.
The Employer 's assignment practices , on the other
hand, have not resulted in the loss of jobs for em-
ployees of either Union. Therefore, we find that
the factors of job impact favors allowing the Em-
ployer to exercise its discretion in assigning rigging
work in accordance with its longstanding practice,
rather than making an exclusive assignment.?
Conclusions
After considering all the relevant factors, we
conclude that none of the factors favors an award
of the Employer 's rigging work to employees rep-
resented by one Union to the exclusion of other
employees to whom the Employer has assigned
such work in the past . In these circumstances, we
conclude that the Employer has the right to assign
the work, in accordance with its past practice,8 to
employees represented by either Union , depending
on the circumstances involved.9 We reach this con-
clusion relying on the factors of employer past
practice and preference , relative skills, economy
and efficiency of operations, and job impact. In
making this determination , we are awarding the
work to employees represented by either Union,
Member Cracraft does not rely on this factor in reaching the conclu-
sion that the work should be assigned in accordance with the Employer's
past practice
a We emphasize in particular that the Employer 's assignment of "rig-
ging plus- work must be in accordance with its past practice of assigning
such work to composite crews as well as crews composed exclusively of
employees represented by Local 5
9 See, e.g, Graphic Communications Local 670 (Reynolds Metals), 289
NLRB 947 ( 1988); Machinists District 118 (Meredith Printing), 243 NLRB
892 (1979).
807
not to the Unions or their members. The determi-
nation is limited to the controversy that gave rise
to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of United Rigging and Hauling,
Inc., who are represented by International Associa-
tion of Bridge , Structural and Ornamental Iron
Workers, Local Union No. 5, and employees of the
Employer, who are represented by Drivers , Chauf-
feurs and Helpers Local Union No. 639 a/w Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO, are entitled to perform in a manner consistent
with past practice and in accordance with the Em-
ployer 's assignment the rigging work performed by
the Employer in the course of its operation of its
Beltsville, Maryland facility.
2. Drivers, Chauffeurs and Helpers Local Union
No. 639 a/w International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
A.aerica , AFL-CIO is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force
United Rigging and Hauling, Inc., to assign the dis-
puted work in a manner inconsistent with this de-
termination.
3. Within 10 days from this date, Drivers, Chauf-
feurs and Helpers Local Union No. 639 a/w Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO shall notify the Regional Director for Region
5 in writing whether it will refrain from forcing
the Employer , by means proscribed by Section
8(b)(4)(D), to assign the disputed work in a manner
inconsistent with the determination.