Teamsters, Local 294

National Labor Relations Board - Board Decisions

Jun 13, 1967

165 N.L.R.B. 348 (N.L.R.B. 1967)

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America, Local 2941 and Eastern New York
Construction Employers, Inc. and Fehl-
haber Corporation and Horn Construction
Company, Inc., A Joint Venture 2 and Local
106, International Union of Operating
Engineers , AFL-CIO. Cases 3-CD-177 and
3-CD-177-2
June 13, 1967
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, Series 8, as amended,
following charges filed by Eastern New York
Construction Employers , Inc., hereinafter called
Employer Association , and Fehlhaber Corporation
and Horn Construction Company, Inc., A Joint
Venture, hereinafter called Employer , alleging, in
effect , that International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America, Local 294, hereinafter called Teamsters,
has violated Section 8 (b)(4)(D) of the Act.
A hearing was duly held before Hearing Officer
Thomas J. Sheridan on November 29, 1966, and
January 17, 18, and 31, 1967. All parties appeared
at the hearing and were afforded full opportunity to
be heard , to examine witnesses , and to adduce
evidence bearing on the issues . The rulings of the
Hearing Officer made at the hearing are free from
prejudicial error and are hereby affirmed. The
Employer Association , the Employer , Teamsters,
and Local 106 , International Union of Operating
Engineers , AFL-CIO, hereinafter called Operating
Engineers , have filed briefs, which have been duly
considered.
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 EMPLOYERS
The parties stipulated, and we find, as follows:
Fehlhaber Corporation and Horn Construction
Company, Inc., is a joint venture engaged in
constructing the foundation for the South Mall,
Albany, New York, under contract with the State of
New York. Both are New York State corporations.
The South Mall job is valued at or about $37 million
and both corporations receive in excess of $50,000
' The name appears as amended at the hearing
worth of goods and materials annually from points
located outside New York State.
Eastern New York Construction Employers, Inc.,
is a New York State corporation engaged in
negotiating labor agreements and handling other
labor relations matters for its member-employers,
including the Employer herein. Its members
annually receive in excess of $50,000 worth of goods
and materials from points located outside New York
State.
George Frueh & Sons is presently engaged in the
trucking of fuel and fuel oil to the South Mall jobsite
under a contract with the Employer, and during the
past year purchased in excess of $50,000 worth of
fuel and fuel oil from Mobil Oil Company, Port of
Albany, Albany, New York, which fuel and fuel oil
were shipped to Mobil from outside New York State.
The parties further stipulated, and we find, that all
of the above companies are employers engaged in
commerce within the meaning of Section 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
The parties stipulated , and we find, that
Teamsters and Operating Engineers are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. Background
This case involves the fueling of certain
equipment on the construction jobsite. In July 1966,
the Employer began work, pursuant to its contract
with the State of New York, on the construction of a
foundation for the platform of the South Mall,
Albany, New York. The South Mall project consists
of the construction of a complex of buildings
covering a 99-acre area.
By letter dated August 11, 1966, the Employer
contracted with Frueh to supply diesel fuel from
Frueh's metered trucks into the Employer's
construction equipment such as driving rigs, truck
cranes, and portable welding machines, as well as
stationary fuel tanks and portable fuel drums, on the
Employer's jobsite. The fuel is fed into the
equipment, tanks, and drums directly from the truck
through a hose with an attached nozzle. At all times
material, George Frueh and his son, James, who also
is his partner, drove their own fuel trucks, with
James Frueh making most of the fuel deliveries to
the Employer. Frueh had no employees. Both
George Frueh and his son are members of
Teamsters.
Through its membership in Employer Association,
the Employer has a collective-bargaining contract
2 The name appears as amended at the hearing
165 NLRB No. 44
TEAMSTERS , LOCAL 294
with Operating Engineers covering oilers and
operating engineers who operate and maintain the
construction equipment here involved. It also has a
collective-bargaining agreement with Teamsters
covering employees who operate the Employer's
material pickup trucks on the jobsite. Although the
testimony is somewhat conflicting, there is evidence
that prior to the instant dispute, Frueh or his son
filled the stationary fuel tanks and portable drums
on the Employer's jobsite, and then drove the truck
to the construction equipment operated by members
of Operating Engineers. If the operating engineer or
oiler asked for the hose nozzle, or if the equipment
fuel tank was too high off the ground for Frueh to
insert the nozzle into the equipment fuel tank, Frueh
or his son handed the nozzle to the operating
engineer or oiler, and the latter fueled the
equipment. On those occasions when no operator or
oiler was present, or when these men did not ask for
the nozzle, Frueh or his son did the fueling.
Construction equipment was also occasionally
fueled from the portable drums, as well as from 5-
gallon cans in which fuel was carried from the
stationary tanks.
As indicated above, prior to October 6, 1966, only
Frueh or his son rode in Frueh's trucks on the
Employer's jobsite. On October 6, 1966, Teamsters
Business Agent Carusone instructed Leo Lester,
employed by the Employer to drive one of its pickup
trucks and the Teamsters steward on the jobsite, to
ride Frueh's truck and "give him a hand" with the
fueling. Lester accompanied Frueh on the truck, but
when he attempted to fuel the equipment manned by
Operating Engineers members, O'Brien, the
Operating Engineers job steward, insisted that
Lester give him the nozzle to fuel the equipment and
stated that the work belonged to operating
engineers. Lester did give him the nozzle.
Later that same day, when the Employer's piling
and sheeting superintendent, Fearon, objected to
Lester's riding Frueh's truck, Lester replied that
Carusone had instructed him to have a Teamsters
employee of the Employer ride on Frueh's truck.
Fearon and the Employer's general foreman,
Andreassen, then met on the jobsite with Carusone
and Teamsters Business Agent Germain. Fearon told
Carusone that he would not permit one of his
employees to ride on Frueh's truck, and Carusone
insisted that a Teamsters man was going to fuel
the equipment. Carusone also stated that he had
given orders for a teamster to put the nozzle into the
tank and not surrender it to an operating engineer.
Also on October 6, Carusone told Burros, the
Employer's project manager, that the fueling of the
equipment belonged to his local, that he was going to
insist that all phases of the fueling be done by his
teamsters, and if it was not done by them, he would
stop delivery of fuel to the job. A meeting to resolve
the dispute was arranged with Operating Engineers
officials for October 12.
349
During the October 12 meeting, which was
attended by representatives of the Employer,
Employer Association, and the two Unions, an
Operating Engineers representative asked Team-
sters Business Agent Germain if his union was also
claiming fueling with 55-gallon portable drums and
5-gallon cans, and Germain said it was.
On October 14, Fearon saw James Frueh on the
job and asked him why he was not fueling. Frueh
replied that he would be fined $500 by his union if he
did. Fearon asked Lester if this was true, and Lester
confirmed it. The Employer then arranged to have
the equipment fueled from the drums, some of which
drums were filled by Frueh and others sent to
outside suppliers to be filled.
On October 17, Carusone informed Burros that
his teamsters were going to handle the nozzle and, if
they insisted on giving the nozzle to the engineers,
they would not get any fuel into the job at all. Burros
replied that he wanted to bring the matter to a head,
and would instruct the equipment operators to fuel
their own equipment. The next morning, Lester
again rode on Frueh's truck with James Frueh, and
when operating engineers asked for the nozzle,
Lester refused to give it to them. When the fuel
supply was used up that day, Fearon asked Lester to
get the drums filled at an outside supplier. Lester
replied that Carusone would not permit him to do so.
Several meetings took place on October 18 among
representatives of the Employer, Employer
Association, and the two Unions, during which
Carusone threatened to place pickets on the job
when Fearon told him that the Employer's
employees would fuel the equipment themselves;
either Carusone or Germain stated that any
teamster who took the drums outside to be filled
would be fined $500; and Carusone threatened to
place a picket line around the entire South Mall job
if operating engineers were permitted to fuel their
equipment with 5-gallon cans. Later that day, the job
was shut down due to the lack of fuel.
B. Contentions of the Parties
The Employer and the Employer Association
contend that a jurisdictional dispute exists between
Teamsters and Operating Engineers over the
assignment of work involving not only the handling
of the nozzle on the fuel truck , but also the fueling of
the equipment with drums and 5-gallon cans; and
that the disputed work should be awarded to
members of the Operating Engineers , based on,
inter alia, its assignment , efficiency of operation,
and past practice.
Operating Engineers agrees with the Employer's
position , and further contends that the disputed
work is covered by the contract between Employer
Association and Operating Engineers.
Teamsters contends that there is no jurisdictional
dispute; if there is a dispute , it involves only the
handling of the hose nozzle of the fuel truck ; and the
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work should be awarded to its members on the
grounds of past practice, Operating Engineers
cession of jurisdiction over the disputed work to the
Teamsters, and the Teamsters contract with
Employer Association.
C. Applicability of the Statute
Before the Board may proceed to a determination
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.
Teamsters contends that it did not violate Section
8(b)(4)(D) because the Employer in its letter to Frueh
dated August 11, 1966, stating "we accept your
proposal to furnish, from your metered trucks into
our equipment on the jobsite, Diesel fuel at the price
of twelve and one half cents ($0.125) per gallon,"
contracted out the work in dispute to a third party,
Frueh, which has no employees, and there is
therefore no dispute over an assignment of
particular work from one group of employees to
another group of employees. Teamsters also argues
that the Employer shut down the job of its own
volition.;
We find no merit in these contentions. The record
shows that on two occasions, October 6 and 18, Leo
Lester, an employee of the Employer, upon
instructions from Teamsters, of which he was a
member, rode the Frueh fuel truck around the
jobsite and attempted to, and did, perform the work
of inserting the truck's hose nozzle into construction
equipment, and Teamsters also claimed the work of
fueling construction equipment, from portable
drums and cans, which work was also claimed by,
and assigned by the Employer to, its employees
represented by Operating Engineers; that during the
period October 6 to 18, 1966, Teamsters threatened
to picket and stop all deliveries of fuel to the jobsite
with an avowed object of forcing or requiring the
Employer to assign the disputed work to employees
represented by Teamsters, rather than to employees
of the Employer who are represented by Operating
Engineers; and that on October 18 the Employer's
job on the South Mall project was shut down for lack
of fuel. In these circumstances, we conclude, on the
basis of the entire record, that there is reasonable
cause to believe that a violation of Section 8(b)(4)(D)
has occurred, and that the dispute is properly before
the Board for determination under Section 10(k) of
the Act.
D. The Disputed Work
The work in dispute is fueling the tanks of
construction equipment, including driving rigs,
truck cranes, and portable welding machines, by
fuel delivery truck hose, portable drums, and cans.
The fuel tanks are part of equipment operated or
manned by Employer's employees who are members
of Operating Engineers, at the South Mall building
construction jobsite.4
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 the evidence
supporting the claims of the parties and balancing all
relevant factors.5
1. Certification and bargaining agreements
There is no Board certification covering the
disputed work.
The Teamsters contract with the Employer
Association contains a Wage Scale Agreement
setting forth pay rates for "fuel trucks" on the site.
The Operating Engineers agreement with the
Employer Association contains pay rates for oilers
and engineers and requires that engineers on certain
equipment perform the duties ordinarily performed
by oilers on such machines. While these contract
provisions fix the wage rates which the Employer is
required to pay specific classifications of employees,
and contain references to "fuel trucks" and
"engineers and oilers," the Teamsters contract, in
general, covers only driving of trucks for
transportation of materials to and on the jobsite, and
the reference in the Operating Engineers contract to
the duties of engineers is not related to the fueling of
equipment by an offsite fuel supplier. Neither
contract specifically refers to the work in dispute.
Therefore, since neither the Teamsters nor the
Operating Engineers collective-bargaining agree-
ment refers to the specific work in dispute, it would
appear that these contracts do not favor either party.
2. Other agreements
Teamsters argues that the Employer's contract
with Frueh, a teamster, requiring Frueh to furnish
fuel from his metered trucks "into our equipment on
the job site" constituted an assignment of the
disputed work to Teamsters. However, this
agreement related primarily to the supply of fuel to
the jobsite and the price to be paid by the Employer
for the fuel; it does not specify the details of delivery
or the kinds of equipment to be fueled, nor does it
refer to the handling of the nozzle. Moreover, there is
no evidence that at the time Frueh began to supply
3 In connection with this contention, at the hearing Teamsters
made a "Motion for Intervention," requesting consolidation of the
charges herein with a charge which it filed in Case 3-CD-178, on
November 14, 1966, against Operating Engineets This motion
was referred by the Hearing Officer to the Regional Director, who
did not rule thereon The motion is denied because, among other
reasons, the charge in Case 3-CD-178 was dismissed on
December 22, 1966, with no appeal being taken
" There is no dispute over the work of filling the stationary fuel
tanks
S International Association of Machinists, Lodge 1743,
AFL-CIO (J A Jones Construction Co), 135 NLRB 1402,
N L R B v Radio and Television Broadcasting Engineers Union,
Local 1212 (Columbia Broadcasting System), 364 U S 573
TEAMSTERS, LOCAL 294
fuel to the Employer, or at any other time, any
representative of the Employer mentioned whether
or not Frueh was to handle the nozzle.
Teamsters also contends that a 1959 intraunion
agreement it signed with International representa-
tives of Operating Engineers gave jurisdiction of the
fuel truck to Teamsters. However, as Operating
Engineers Financial Secretary Moran testified, he
was present when this agreement was signed. The
agreement related solely to the driving of the fuel
truck, which on occasion had been driven by
Operating Engineers members, and his Union
specifically retained jurisdiction over the fueling of
the equipment.
Teamsters also introduced into evidence a 1965
document signed by Operating Engineers President
Daniel McGraw in connection with a series of unfair
labor practice charges filed against the Union. This
document states that Operating Engineers gave up
its claim to the nozzle. However, the dispute to
which the document referred arose under the so-
called Heavy and Highway Contract, and concerned
the transportation of fuel on highway construction
projects,i' not involved herein.
Therefore, since neither the Employer's fuel
contract with Frueh, nor any of the above intraunion
agreements covers the specific work in dispute,
none of these agreements favors either party.
3. Skill and training
Inasmuch as it is undisputed that there is no
particular skill or training required for the
performance of the disputed work, these factors also
fail to favor either Teamsters or Operating
Engineers.
4. Employer, area, and industry practice
The evidence adduced at the hearing is conflicting
with respect to the custom and practice of the
Employer before the dispute herein arose, and the
custom and practice in the area and in the industry.
However, there was testimony by Employer and
Employer Association representatives that, prior to
the dispute, the equipment operated or manned by
Operating Engineers was fueled by either Frueh or
the equipment operator handling the nozzle of the
delivery truck. There was also testimony by some 20
members of Operating Engineers that they fueled
their own equipment and handled the nozzle. The
Fruehs and four Teamsters members testified that
the fuel truck driver almost always handled the
nozzle on the Employer's job prior to the dispute,
and on other area jobs. Three of the Employer's
c There is no merit in Teamsters contention that it was
prejudiced by the Hearing Officer's rejection, as not material or
relevant, of evidence that two unfair labor practice charges were
filed in August 1965, by Teamsters against Operating Engineers
in Cases 3-CD-155 and 3-CD-148-2, involving the fueling of
heavy and highway construction equipment, as, among other
reasons, the charges have been withdrawn
351
laborer employees testified that prior to the dispute,
they saw the fuel truck driver handle the nozzle on
occasion.
With regard to fueling with drums and 5-gallon
cans, the evidence shows that Operating Engineers
and Teamsters members have fueled heavy
equipment at the Employer's jobsite in this manner.
There is thus evidence of Teamsters members
performing fueling operations on highway
construction, and on other general construction jobs.
Although Teamsters have also fueled the Employer's
equipment from drums and cans, this practice has
been mixed. However, Teamsters members who are
employees of the Employer have never, except on
the two occasions which gave rise to this dispute,
handled the nozzle of the delivery truck hose,
whereas employee-members of Operating Engineers
have done so.
5. Efficiency of operation
The record establishes that equipment must be
stopped during fueling,' so that the operating
engineer on the equipment is available to handle the
hose. Since the fuel tank on some of the equipment
is several feet off the ground, it would appear to be
as practicable and efficient for the fuel truck driver
to hand the nozzle to the equipment operator, as it
would be for the driver to climb up on the equipment
and insert the nozzle in the fuel tank. Moreover, the
operator is charged with responsibility for the care
and maintenance of the equipment he operates.
Since fueling may be considered a part of
maintenance, it would be appropriate for the
operator to fuel the equipment that he maintains.
Conclusion
Upon consideration of all pertinent factors in the
entire record, we find that employees represented by
Operating Engineers are entitled to the disputed
work. The Employer has assigned the work to them
on the reasonable theory that the individual
operating and manning the equipment should fuel it.
The employees to whom the work has been assigned
have performed it to the Employer's satisfaction,
and it is clear that the present assignment is
practical, efficient, safe, and not inconsistent with
past practice on this jobsite or in the building
construction industry. Therefore, we shall determine
the existing jurisdictional dispute by awarding the
disputed work to employees represented by
Operating Engineers, rather than to employees
represented by Teamsters. In making this
determination, we are awarding the disputed work to
' The Hearing Officer referred to the Board the Employer's
request that the Board take judicial notice of the New York State
Code, Rule No 23, that cranes must he locked and engines must
be shut off for fueling Teamsters objected on the grounds of
relevancy As we find this rule relevant to the issues herein, the
request is granted, and the code provision has been considered
352 DECISIONS OF NATIONAL
employees represented by Operating Engineers, but
not to that Union or its members.
Accordingly, we find that Teamsters was not, and
is not, entitled, by means proscribed by Section
8(b)(4)(D) of the Act, to force or require the Employer
to assign the disputed work to employees
represented by said Union, rather than to the
Employer's employees represented by Operating
Engineers.
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:
1. Employees employed by the Employer, who are
represented by Local 106, International Union of
Operating Engineers, AFL-CIO, are entitled to
perform the work of fueling equipment operated or
9 Our determination herein is restricted to the fueling, by the
insertion of delivery truck hose nozzles, and by portable drums
and 5 -gallon cans, of equipment operated or manned by
LABOR RELATIONS BOARD
manned by them on the Employer's jobsite at the
South Mall building construction project located in
Albany, New York.8
2. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Local294, is not entitled, by means
proscribed by Section 8(b)(4)(D) of the Act, to force
or require the Employer to assign the above-
described work to employees represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local 294, shall
notify the Regional Director for Region 3, in writing,
whether or not said Union will refrain from forcing or
requiring the Employer to assign the work in dispute
to employees represented by said Union, rather than
to employees of the Employer represented by
Local 106, International Union of Operating
Engineers, AFL-CIO.
employees who are represented by Operating Engineers, and does
not include such fueling of equipment by members of other crafts
not involved in the dispute herein