Teamsters Freight Local 988

National Labor Relations Board - Board Decisions

Mar 8, 1979

240 N.L.R.B. 1291 (N.L.R.B. 1979)

TEAMSTERS FREIGHT LOCAL 988 1291
Teamsters Freight, Tank Line and Automobile Indus-
try Employees Local 988, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and Sulli-
van Transfer Company, Inc. and International
Union of Operating Engineers, Local 450, AFL-
CIO. Case 23-CD-389
March 8. 1979
DECISION AND DETERMINATION OF
DISPUTE
By MEMBERS PNE.II.O, MltRPIY. AND TRt ItSI)AI I
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Sullivan Transfer Company,
Inc., herein called the Employer, alleging that Team-
sters Freight, Tank Line and Automobile Industry
Employees, Local 988, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called Team-
sters, violated Section 8(b)(4)(D) of the Act by en-
gaging in certain proscribed activity with an object of
forcing or requiring the Employer to continue to as-
sign certain work to employees represented by it
rather than to employees represented by Internation-
al Union of Operating Engineers, Local 450. AFI,
CIO. herein called Operating Engineers.
Pursuant to notice, a hearing was held before
Hearing Officer Donald R. Lewis on August 28,
1978. All parties appeared at the hearing and were
afforded full opportunity to be heard. to examine
and cross-examine witnesses, and to adduce evidence
bearing on the issues. Thereafter. the Employer,
Teamsters, and Operating Engineers filed briefs,
which have been duly considered.
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 rulings made by the
Hearing Officer 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 I1t BUtSINESS (O1- I: I MPI.()OYR
The Employer is a specialized common carrier op-
erating, in part, within the State of Texas under per-
mits granted by the Texas Railroad Commission. It is
engaged in the business of heavy equipment drayage
and rigging and in the business of trade show con-
240 NL.RB No. 181
vention freight handling. The parties stipulated, and
we find, that during the past 12 months, a representa-
tive period, the Employer purchased goods and ma-
terials valued in excess of $50,000 from points locat-
ed outside the State of Texas which were shipped
directly to the Employer within the State of Texas.
Based on the foregoing, we find that Sullivan
Transfer Company. Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and that it will effectuate the purposes of the Act to
assert jurisdiction herein.
II THE I.ABOR OR(; \l7AIIONS INVOL.VED
The parties stipulated, and we find, that Teamsters
and Operating Engineers are labor organizations
within the meaning of Section 2(5) of the Act.
11[ IE DISP TE
A. Background and Facts of the Dispute
As part of its common carrier service, the Em-
ployer delivers freight, such as machine tools, book-
lets, and flowers, to trade shows conducted within
the State of Texas. It does approximately 90 percent
of the convention drayage work performed in this
area. pon the receipt of these materials, the Em-
ployer may store the items in its warehouse until the
trade show opens. The Employer will then utilize em-
ployees represented by Teamsters to offload the
freight from the delivery, truck and to move the
freight to a storage place in its warehouse. In most
instances, however, the Employer delivers the freight
directly to the convention site. Employees repre-
sented by Teamsters load the materials on a truck
owned by the Employer, drive the vehicle to the con-
vention site, unload the materials, and deliver them
to the designated display area. The Employer sup-
plies forklifts, dollies, and carts to assist its employ-
ees in moving the freight.
The same employee may perform all these jobs on
deliveries to smaller exhibitions. When the Employer
is providing drayage service to a larger show, such as
the Offshore Technology Conference, one of the big-
gest conventions in the world, employees represented
by Teamsters are engaged in performing many dif-
ferent functions. Some employees operate forklifts of
various sizes in offloading the materials from the
Employer's trucks at the trade show site and in trans-
porting the materials to the convention floor; other
employees use carts and dollies to perform the same
functions: and still other employees move detached
trailers to and from designated docks or unloading
areas. At the conclusion of the trade show, the same
TEAMSTERS FREIGHT LOCAL 988
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operationa take place in reverse, except that they
must be done within a shorter period of time.
Another aspect of the Employer's operations in the
transportation of equipment and machine tools to
customers engaged in manufacturing operations.
When a shipment of these goods arrives at the Em-
ployer's warehouse, an employee represented by
Teamsters again unloads the equipment and puts the
equipment into storage. An employee represented by
Teamsters subsequently delivers the machinery to its
final destination at the customer's facility with the
aid of a forklift, dolly, or warehouse cart. Working as
part of a composite crew, the employee then assists
an ironworker and, on occasion, a millwright in rig-
ging the machinery. These employees might also re-
move the replaced equipment for the customer.
When the Employer is engaged in delivering heavy
equipment to a construction site, its operations in-
volve the addition of an operating engineer employed
by Pioneer Rental Equipment, a wholly owned sub-
sidiary of the Employer. An employee represented by
Teamsters still loads the freight on the Employer's
truck and drives the vehicle to the construction site.
There, in order to comply with the work jurisdiction
requirements of the building trades crafts, Pioneer
employs the operating engineer as a forklift operator
in the event that such equipment is required to move
the freight from the Employer's truck to a designated
area at the site.
On April 17, 1978,' Robert L. Johnson, business
representative and financial secretary of Operating
Engineers, met with representatives of the Employer
at the Employer's Houston office. Johnson requested
that the Employer sign an agreement with Operating
Engineers and assign all its forklift operations in the
Houston area to members of Operating Engineers. It
is clear, however, that Johnson was not seeking on
behalf of Operating Engineers the assignment of any
forklift work performed at the Employer's warehouse
or involved in the loading and unloading of trucks at
the delivery site. Furthermore, Johnson testified at
the hearing that Operating Engineers was not seeking
other work of the Employer, such as driving trucks or
pushing dollies and carts.
In answer to Johnson's demand, the Employer's
general manager, Cliff Berry, responded that except
for forklift work on new construction sites, Sullivan
Transfer Company had always assigned these opera-
tions to employees who are represented by Team-
sters. Berry also remarked that it was more efficient
for the Employer not to divide this work among two
separate unions. After Johnson stated that Operating
Engineers planned to do everything it could to get
All dates herein are in 1978 unless otherwise indicated.
this work and that it wanted this problem resolved
within 2 weeks, Berry asked if he was referring to the
upcoming Offshore Technology Conference, the Em-
ployer's largest trade show job. Johnson replied that
this show "was as good a place as any to start."
Thereafter, on April 25, Operating Engineers sent
a telegram to the Employer requesting that it negoti-
ate an agreement with Operating Engineers. When
Johnson met with Berry and Lawrence J. Toomey,
president of the Employer, on the following day, he
reiterated his demand that the Employer assign its
forklift work to Operating Engineers. Johnson also
told the Employer than an interunion agreement be-
tween Teamsters and Operating Engineers, signed
February 10, obligated Sullivan Transfer Company
to assign the disputed work to Operating Engineers.
The Employer's representatives rejected the Operat-
ing Engineers' demand, informing Johnson that Sul-
livan Transfer Company had a current agreement
with Teamsters covering the work in dispute.
On the afternoon of April 26, Toomey and Berry
met with Richard Hammond, president of Teamsters
Local 988, and Neil Mahoney, its business agent, to
discuss the Operating Engineers' claim for the fork-
lift work. Both Hammond and Mahoney advised the
Employer that Teamsters would cause a work stop-
page if the Employer assigned such operations to Op-
erating Engineers. In addition, Hammond informed
the Employer that Teamsters Local 988 was not
bound by the interunion agreement concerning fork-
lift work.
B. The Work in Dispute
The work in dispute, as described in the notice of
hearing, consists of the following tasks: "The use
and/or operation of forklift equipment by employees
of Sullivan Transfer Company, Inc., at trade shows
within the territorial jurisdiction of International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local 988." However,
the Employer made a motion at the close of the hear-
ing to broaden the scope of the disputed work to
include the assignment of all its forklift work in-
volved in delivering machine tools and heavy equip-
ment to customers engaged in manufacturing opera-
tions, i.e., "existing facilities." The Hearing Officer
referred the Employer's motion to the Board for de-
termination.
In support of its motion, the Employer argues that
Operating Engineers' demand for work assignments
encompasses forklift operations required on deliver-
ies of freight to manufacturing concerns, in addition
to forklift work performed at trade shows. The Em-
ployer points out that it presently assigns all forklift
TEAMSTERS FRIGHT LOCAL 988 1293
operations done at "existing facilities" to employees
represented by Teamsters. It further contends that
the question regarding the assignment of this work
was fully litigated by the parties at the hearing.
With respect to the Employer's motion, the notice
of hearing, as noted, clearly limits the dispute to the
use of forklifts at trade shows. Counsel for the Em-
ployer conceded that he did not file any motion with
the Regional Director prior to the hearing which
would have expanded the scope of the work dispute
to provide for the inclusion of additional forklift op-
erations conducted by the Employer. Furthermore,
the Employer did not raise this issue until the conclu-
sion of the hearing. While it is true that the parties
agreed at the start of the hearing that Operating En-
gineers' demand for assignment of the Employer's
forklift operations included work done by employees
represented by Teamsters at "existing facilities," we
find that this stipulation was insufficient to give the
two Unions notice that the 10(k) proceeding would
encompass jurisdictional rights beyond those set
forth in the notice of hearing.
Accordingly, we hereby deny the Employer's mo-
tion. We shall therefore confine our determination of
the dispute herein to the Employer's forklift work
described in the notice of hearing.
C. Contentions of the Parties
Operating Engineers contends that in 1969 it en-
tered into a Construction Site Jurisdictional Agree-
ment with the Teamsters whereby all forklift work
performed outside of warehouse and storage areas is
assigned to Operating Engineers. It also asserts that
on February 10, 1978, representatives of these
Unions specifically agreed that Operating Engineers
would perform the forklift work of the Employer
which is the subject of the instant dispute. Further.
Operating Engineers argues that while the Employer
is a common carrier, it is also engaged in the con-
struction industry when delivering goods and mate-
rials to trade shows. It notes that all of the work
performed at trade shows in the Houston area, with
the exception of the Employer's forklift operations. is
being done by members of the building trades crafts.
Thus, Operating Engineers concludes that the Con-
struction Site Jurisdictional Agreement is controlling
as to the work in dispute and, therefore, that the
forklift work of the Employer belongs to employees
represented by that Union.
The Employer asserts that the award of the disput-
ed work to its own employees represented by Team-
sters is appropriate in view of the collective-bargain-
ing agreement which exists between Sullivan
Transfer Company and Teamsters, past company
practice. the Employer's assignment of the work,
area practice. efficiency and economy of operation,
and the Board's decision in International Brotherhood
of TeamLsters, Chauffeurs, Warehousemen and Helpers
of America, General Local 959, State of Alaska (Kod-
iak Oilfield Haulers. Inc.), 233 NLRB 66 (1977). The
Employer further contends that it is a common car-
rier and is not engaged in the construction industry.
Finally, the Employer argues that it is not a party to
any interunion agreement which would require it to
assign the disputed work to employees represented
by Operating Engineers.
Teamsters contends that the disputed work should
be assigned to employees represented by it for the
reasons set forth by the Employer. It also argues that
neither the Construction Site Jurisdictional Agree-
ment nor any other interunion agreement is applica-
ble to the dispute herein, because it does not repre-
sent any employees engaged in the construction
industry.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(c) of the Act,
it must be satisfied that (I) there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated
and (2) there is no agreed-upon method for the vol-
untary resolution of the dispute.
With respect to (I ), above, the record discloses that
on April 17 and on April 26 Operating Engineers
demanded that the Employer assign the disputed
forklift work to employees represented by it. When
the Employer discussed Operating Engineers' claim
for such work with representatives of Teamsters on
the afternoon of April 26. they stated that Teamsters
would engage in a work stoppage if the Employer
assigned the disputed work to members of another
union. Accordingly, we are satisfied that reasonable
cause exists to believe that Section 8(b)(4)(D) has
been violated.
With respect to (2). above, it is clear, from the rec-
ord as a whole, that there is no agreed-upon method
for the voluntary resolution of this dispute. While the
1969 Construction Site Jurisdictional Agreement be-
tween the Internationals of Teamsters and Operating
Engineers contains, among other things, a method of
resolving disputes similar to that involved herein, it
applies only to disputes arising in the construction
industry. Inasmuch as the record evidence clearly in-
dicates that the Employer's operations, as relevant
herein, are limited to providing carrier service for
freight used in trade show exhibits, we find that the
Employer is a common carrier and is not engaged in
the construction industry. We therefore conclude, in
TEAMSTERS FREIGHT LOCAL 988
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accord with our findings in Kodiak Oilfield Hauier.,
Inc.. supra.2 that the 1969 Construction Site Jurisdic-
tional Agreement is inapplicable to a dispute involv-
ing an employer, such as the one herein, which func-
tions solely as a comnmon carrier. We have also noted
that the agreement between the two Unions of Feb-
ruary 1978 relates only to forklift operations con-
ducted by the Employer during the renovation or re-
modeling of existing construction and therefore does
not cover similar work performed at trade shows.
Furthermore, there is no evidence that the Employer
has at any time agreed to be hound by either agree-
ment between the International Unions.
Accordingly, as no agreed-upon method exists for
the voluntary settlement of this dispute, the dispute is
properly before the Board for determination under
Section 10(k) of the Act.
F. ic.critx of the Di.pute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work af-
ter giving due consideration to various relevant fac-
tors.) As the Board has frequently stated, the deter-
mination in a jurisdictional dispute case is an act of
judgment based on commonsense and experience in
weighing these factors. The following factors are rele-
vant in making a determination of the dispute before
us:
I. Certification and collective-bargaining
agreements
Neither of the labor organizations involved herein
has been certified by the Board as the collective-bar-
gaining representative for a unit of the Employer's
employees.
The parties stipulated that, at least since 1972.
there have been a series of collective-bargaining
agreements between the Employer and Teamsters
covering the work in dispute.' While the Employer is
a party to a contract with Operating Engineers, Local
714, covering unspecified operations at its facility in
Dallas, Texas, it was further stipulated that no such
contractual relationship exists between the Employer
and Operating Engineers in Houston. Accordingly,
2 Member Nlurph, dissenting on other ground,
N.I. R B * Radi & le k tltom Broladlsl f:ngince' t 1 ion, 1,,l Il 11).
Inernaltional BreJthrhod of F/eh'ti al Hi -tber. 4 /L (0 (,/ttmbow Boad-
, aitng Svt renl. 364 U.S. 573 1961): I/,l'rtoItumot/ M4m oattot o Ofts al/,titt
Lodge No 74 . Af1. ('10 J ,. Jstws ( onwrition {lt opar L, 135 \ I RB
14(12 (1962).
4 ]'he Emplo.er's most recent Igrreen lenlt ith Iean;l ters expired (illt Jul
25. 1978. Although the parties had not executed I renewal Igrcenirt h the
time of the hearing. loonelL testified tha the ELmplo>er and I ealniscrs had
%erhblly agreed on a nce eonr;lal and II1;e clnplo, ecs represenlted h\ l ela-
sters were continuing to perform the s,ork in dispute.
we find that this factor favors an award of the disput-
ed work to employees represented by Teamsters.
2. Employer practice and preference
Pursuant to its collective-bargaining agreement
with Teamsters, the Employer historically has as-
signed the work in dispute to its employees who are
represented by Teamsters, and it has manifested a
preference to continue that assignment. We therefore
find that this factor favors awarding the disputed
work to employees represented by Teamsters.
3. Industry and area practice
There is no specific evidence regarding the indus-
try practice as to the work in dispute. With respect to
the area practice. the Employer's president testified
that all the other companies performing trade show
drayage in the Houston area assign the disputed
work to employees represented by Teamsters. Oper-
ating ngineers has adduced no evidence that it per-
forms any of the disputed work in the relevant area.
Accordingly, we conclude that area practice favors
awarding the work in dispute to employees repre-
sented b Teamsters but that industry practice is in-
conclusive and does not favor an award to employees
represented by either Teamsters or Operating Engi-
neers.
4. Efficiency and economy of operations
The Employer maintained at the hearing that fac-
tors of efficiency and economy support assignment
of the disputed work to employees represented by
Teamsters. Under the present assignment of the dis-
puted work, employees represented by Teamsters
perform every function involved in delivering freight
from the Employer's warehouse to the desired dis-
play area at the convention site. Furthermore, as not-
ed. employees represented by Teamsters also operate
dollies and carts, in addition to forklifts, when those
means of conveyance are necessary to transport ma-
terials from the Employer's truck to the trade show
floor. Operating Engineers, by contrast, is claiming
only the forklift work which is performed at the actu-
al site of the exhibit and even then does not seek to
unload freight from the Employer's trucks. It is also
clear that Operating Engineers does not wish to per-
form any work at trade shows which involves the use
of dollies or carts. Thus, it is evident that the frag-
mentation of the Employer's operations, as Operat-
ing Engineers desires, would result in the Employer
hiring additional personnel to complete the same
amount of work. In this situation, an employee repre-
TEAMSTERS FREIGHT LOCAL 988 1295
sented by either Teamsters or Operating Engineers
often would stand idle while the other employee was
finishing a job currently performed by an employee
represented by Teamsters.
Therefore, we find that the factors of economy and
efficiency favor awarding the work in dispute to em-
ployees represented by Teamsters.
5. Agreements between the Unions
By its own terms, the Construction Site Jurisdic-
tional Agreement between the two Unions' Interna-
tional organizations, relied upon by Operating Engi-
neers, is applicable only to the construction industry.
Thus, inasmuch as we have found, supra, that the
Employer is a common carrier and is not engaged in
the construction industry. that agreement has no
bearing on the dispute before us. Furthermore, as
noted above, the agreement of February 1978 be-
tween Operating Engineers and Teamsters does not
relate to the forklift operations of the Employer at
trade shows.
Accordingly. we find that this factor is inconclu-
sive and does not favor an award to employees repre-
sented by either Teamsters or Operating Engineers.
Conclusion
Upon consideration of all the relevant factors. we
conclude that the Employer's employees who are
represented by Teamsters Freight, Tank Line and
Automobile Industry Employees. Local 988, affiliat-
ed with International Brotherhood of Teamsters.
Chauffeurs. Warehousemen and Helpers of America.
are entitled to perform the work in dispute. We reach
this conclusion based on the Employer's current col-
lective-bareaining agreement with Teamsters, the
Employer's preference and past practice of assigning
the disputed work to these employees, area practice,
and the fact that such an assignment will result in
greater efficiency economy of the Employer's opera-
tions. Accordingly. we shall determine the instant
dispute by awarding the disputed work to employees
represented by Teamsters Freight, Tank Line and
Automobile Industry Employees, Local 988, affiliat-
ed with International Brotherhood of Teamsters.
Chauffeurs. Warehousemen and Helpers of America.
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 hereby
makes the following Determination of Dispute:
Employees of Sullivan Transfer Company. Inc..
who are represented by Teamsters Freight. Tank
Line and Automobile Industry Employees. Local
988, affiliated with International Brotherhood of
Teamsters, Chauffeurs. Warehousemen and Helpers
of America. are entitled to perform the work of using
and,'or operating Sullivan Transfer Company, Inc.'s
forklift equipment at trade shows within the territori-
al jurisdiction of Teamsters Freight, Tank Line and
Automobile Industry Employees, Local 988, affiliat-
ed with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America.
TEAMSTERS FREIGHT LOCAL 988