Teamsters Local 282 (Active Fire Sprinkler Corp.)

National Labor Relations Board - Board Decisions

Dec 14, 1977

233 N.L.R.B. 1230 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 282, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca and Active Fire Sprinkler Corp. and Local 1,
United Association of Journeymen & Apprentices
of the Plumbing & Pipe Fitting Industry of the
United States & Canada, AFL-CIO and Local
918, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 29-CD-237
December 14, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended,
following a charge filed by Active Fire Sprinkler
Corp., herein called the Employer or Active, alleging
that Local 282, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein called Local 282, violated Section
8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring the Employer to assign certain work to
employees represented by Local 282 rather than to
employees represented by Local I, United Associa-
tion of Journeymen & Apprentices of the Plumbing
& Pipe Fitting Industry of the United States &
Canada, AFL-CIO, herein called Local I, and Local
918, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called Local 918.
Pursuant to notice, a hearing was held before
Hearing Officer Steven Davis on August 3 and 23,
1977,1 in Brooklyn, New York. All parties appeared
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. Thereafter, Local 1
and Local 282 filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed. The Board has considered the briefs and
the entire record in this case and hereby makes the
following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer, a New York corporation with its
main office and principal place of business in
Brooklyn, New York, is engaged as a plumbing
contractor in the construction industry. During the
calendar year preceding the hearing, the Employer
purchased goods and materials from outside the
State of New York having a value in excess of
$50,000. Accordingly, we find, as the parties have
stipulated, that the Employer is engaged in com-
merce 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.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local 282,
Local 1, and Local 918 are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
As set forth in the notice of hearing, the work in
dispute consists of the "transportation of employees,
equipment and materials of and consigned to the
Employer to, from and at the U.S. Postal Service
Mail Handling Facility under construction at J.F.K.
Airport, Jamaica, New York." Local 282 concededly
does not claim jurisdiction over the work of
transporting materials and equipment from the
Employer's shop to a single location within the
jobsite, work presently performed by employees
represented by Local 918. Local 282 does, however,
claim jurisdiction once a truck enters the jobsite over
the delivery of such materials and equipment to
multiple, rather than to single, locations within the
jobsite. Thus, the dispute, as it pertains to Local 918,
is limited to the work of transporting materials and
equipment from the entrance to the jobsite to
multiple locations therein. The dispute, as it pertains
to Local 1, consists of the transportation of employ-
ees, materials, and equipment to and from various
points within the jobsite.
B. Background and Facts of the Dispute
The Employer is party to separate collective-
bargaining agreements with Local 918 and Local 1.
In February, the Employer entered into a subcon-
tracting agreement with General Contractor John T.
Brady (herein called Brady) in which the Employer
agreed to provide plumbing, sprinkler systems,
compressed air equipment, exterior sanitary sewer
I All dates herein are 1977 unless otherwise indicated.
233 NLRB No. 166
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LOCAL 282, TEAMSTERS
systems and drainage systems for a new mail facility
at the Kennedy Airport in New York. Thereafter, in
accordance with its collective-bargaining agreement
with Local 1, the Employer hired 10 plumbers to
work at this facility.
In March, the Employer commenced work at the
new mail facility and assigned the work of transport-
ing the necessary materials and equipment from its
shop either to a single location or to various locations
within the jobsite to employees represented by Local
918. The Employer assigned to employees represent-
ed by Local I the work of transporting its plumbers,
equipment, and plumbing materials from place to
place within the jobsite in the Employer's vehicles,
which consisted of a jeep and jeep-truck.
Brady is party to a collective-bargaining agreement
(called the High Rise Agreement) with Local 282
which provides that employees represented by Local
282 shall drive all trucks on the construction site in
connection with work for which Brady is responsible,
or which Brady manages or performs. The agreement
also provides that any contract or subcontract
awarded or managed by Brady shall be covered by
that agreement. Active is not a party to the High Rise
Agreement and has never had a collective-bargaining
relationship with Local 282.
On May 21, Local 282's business agent, Ed
McFarland, informed Brady's general superinten-
dent, Louis Ferrari, that, pursuant to the High Rise
Agreement, the job of transporting Active's materi-
als, equipment, and plumbers to specific work areas
within the jobsite belonged to employees represented
by Local 282 and not to those represented by Local
1. McFarland also told Ferrari that, in order to meet
its contractual obligations, Brady would have to
assign an employee covered by the High Rise
Agreement to perform such work. Thereafter, be-
tween May 22 and June 15, an employee represented
by Local 282 appeared on the site daily to drive
Active's jeep-truck, but was not assigned to do so.
During this period, Ferrari tried to persuade Active
to hire an employee covered by the High Rise
Agreement to drive its truck or to sign an agreement
with Local 282. Active, however, refused on grounds
that, if it took such action, its employees represented
by Local I would refuse to work.
On June 16, pursuant to the terms of the High Rise
Agreement, the Joint Trade Board2 was convened to
settle the dispute between Brady and Local 282. The
Joint Trade Board, on June 16, found that Brady had
violated the terms of the High Rise Agreement and
ordered Brady to assign to an employee covered by
the High Rise Agreement the work of transporting
Active's plumbers, plumbing materials, and equip-
2 The Joint Trade Board hears all complaints, disputes, and differences
arising under the High Rise Agreement. A decision by the Joint Trade
Board is final and binding on all parties to that agreement.
ment from the Employer's "shanty" on the jobsite to
various locales within the jobsite. Later that day,
Local 282 set up a picket line at the jobsite, using
signs with the legend "John T. Brady Unfair to Local
282." That same day, Ferrari met with Brady's vice
president, Stanley Stevens, and they decided that
Brady would pay 17 days' backpay to the employee
covered by the High Rise Agreement who, as
previously indicated, appeared at the site daily to
drive Active's truck but was not assigned to do so.
Ferrari and Stevens also agreed to place that
employee on Brady's payroll. Upon learning of this
decision, Local 282 ceased picketing. Immediately
thereafter, in a letter dated June 17, Brady informed
Active that Active's,
failure to use proper union personnel on [its]
trucks within the site has caused a strike by [Local
282] and a halt to all work on the job affecting us
and all subcontractors. .... In order to immedi-
ately resume the progress on the job, with a
minimum of damages to all parties, we are hiring
a [person represented by Local 282] to cover your
work effective June 17, 1977. The cost of this man
is your responsibility and we will charge your
account accordingly. In addition, [Local 282] is
requiring that we pay seventeen (17) days back
pay for the time your trucks did not use
Teamsters. We are paying this charge and
likewise will bill your account.
On June 24, Local 282's secretary-treasurer, Robert
Sasso, informed Ferrari that he wanted an employee
represented by Local 282 actually driving Active's
truck and not merely on the payroll. Shortly
thereafter, on June 27, Brady filed a charge (appar-
ently later withdrawn) against Local 282 alleging a
violation of Section 8(b)(4)(D) of the Act. On the
following day, Sasso asked Ferrari, "Why did you go
to the NLRB, instead of putting a Teamster on the
truck?" That same day, Local 282 commenced
picketing the jobsite. The employees of Brady and of
subcontractors other than Active honored the picket
line. As a result, on June 30, Ferrari informed Sasso
that Active was being suspended from thejobsite and
that Brady wanted work at the jobsite resumed by
July 1. Sasso agreed to end the picketing, stating that,
as long as no one other than an employee covered by
the High Rise Agreement was driving Active's truck,
everybody could go back to work. On June 29,
Active filed a charge alleging that Local 282 violated
Section 8(b)(4)(D) of the Act by picketing the jobsite
for the sole purpose of forcing Active into assigning
to employees represented by Local 282 the work
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described above and presently performed by employ-
ees represented by Local 918 and Local 1, respective-
ly.
C. Contention of the Parties
Local 282 contends that there is no jurisdictional
dispute cognizable under Section 10(k) of the Act
because (1) the dispute is not one between competing
groups of employees of the same employer and (2)
the only issue involves Brady's failure to adhere to
the terms of the High Rise Agreement. At the
hearing, Local 282 further argued, as to the merits,
that the work in dispute should be awarded to
employees represented by Local 282.
Local I contends that the job of transporting the
Employer's plumbers, materials, and tools from place
to place within the jobsite has traditionally been
performed by plumbers. Local 918 did not file a brief
but contended at the hearing that the delivery of
Active's plumbing material and equipment from
outside the jobsite to a single location, as well as
multiple locations, within the jobsite has traditionally
been done by employees represented by it.
The Employer also did not file a brief with the
Board but, at the hearing, contended that Local 282
violated Section 8(b)(4)(D) by seeking to compel,
through picketing, the assignment of the disputed
work to employees represented by it. The Employer
further contends that the disputed work is properly
assigned to employees represented by Local 918 and
Local 1 on the basis of the collective-bargaining
agreements it has with each of these Unions, plus the
considerations of efficiency and economy of opera-
tions, past company practice, and the Employer's
preference.
D. Applicability of the Statute
Before the Board may proceed with the determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that there is reasonable cause to
3 We find no merit to Local 282's contention that no jurisdictional
dispute cognizable under Sec. 10(k) of the Act exists because such a dispute
must involve competing groups of employees of the same employer, for it is
well established that there is no such requirement. On the contrary, it is clear
that, in order for there to be a cognizable jurisdictional dispute, it is only
necessary that there be a dispute between two or more groups of employees
over which group is entitled to do the disputed work. Brotherhood of
Teamsters & Auto Truck Drivers Local No. 85, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America (Pacific
Maritime Association), 224 NLRB 801, 807 (1976); Local Union No. 3,
International Brotherhood of Electrical Workers, A FL-CI0 (Western Electric
Company, Incorporated), 141 NLRB 888, 894 (1963).
' N.L.R.B. v. Plasterers Local Union No. 79, Operative Plasterers' and
Cement Masons' International Association, AFL-CIO, 404 U.S. 116 (1971);
Local Union No. 459, Laborers International Union of North America, AFL-
CIO (Cord North American Moving and Storage), 224 NLRB 690 (1976).
s N.L.R. B. v. Radio and Television Broadcast Engineers Union. Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573 (1963).
believe that (1) Section 8(b)(4)(D) of the Act has
been violated, and (2) there is no agreed-upon
method, binding on all parties, for the voluntary
adjustment of the dispute.
As to (1) above, the record establishes that Local
282 twice picketed the jobsite when Active refused to
assign the work in dispute to drivers represented by
Local 282, and that the stated object of the picketing
was to force assignment of the work in dispute to
employees covered by the High Rise Agreement. In
these circumstances, we find that there is reasonable
cause to believe that Section 8(b)(4)(D) of the Act
has been violated. 3
As to (2) above, there is no evidence that an
agreed-upon method, binding on all parties, exists for
the resolution of the dispute. 4 Accordingly, we find
the dispute is properly before the Board for determi-
nation under Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving
due consideration to various factors. 5 The Board has
held that its determination in a jurisdictional dispute
is an act of judgment based on commonsense and
experience reached by balancing those factors
involved in a particular case.6 The following factors
are relevant in making the determination of the
dispute before us:
1. Collective-bargaining agreements
As noted above, both Local I and Local 918 are
parties to collective-bargaining agreements with the
Employer. These contracts, however, do not contain
provisions which specifically cover work of the type
in dispute here. Local 282, as previously noted, is
party to the High Rise Agreement with Brady. The
High Rise Agreement contains certain provisions
which arguably cover the work in dispute.7 The
Employer, however, is neither a party to the High
a International Association of Machinists, Lodge Na 1743. AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
7Sec. 9(2) of the High Rise Agreement in part provides:
The driving of all trucks at the site of construction in connection with
work which the Employer is contracted to be responsible for, manage,
or perform, shall be performed by employees of the Employer and
covered by this Agreement, provided that the Employer may contract
or subcontract said work only to an employer or person who is party to
or bound by this agreement, regardless of past practice and custom.
This section shall not apply to the driving of a truck entering or leaving
the site of construction for the sole purpose of making a single delivery
and/or single pick up from the construction site of materials, tools or
personnel, provided such single delivery and/or pick up may be made
only to (or from) a single location per delivery or pick up on the site. A
truck making a single delivery to single location may make a single pick
up from a separate single location.
The Employer will not accept a contract to be responsible for, manage
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LOCAL 282, TEAMSTERS
Rise Agreement nor has it agreed to be bound by its
terms. Accordingly, we find this factor inconclusive
in making our determination.
2. Employer's past practice
At the hearing, witnesses for the Employer testified
without contradiction that, on all of Active's previ-
ous jobs, the work in dispute, as it pertains to Local
1, has always been done by plumbers. Furthermore,
while it was not established that the Employer has
consistently used employees represented by Local I
in the past to perform such work,8 the record
establishes that the Employer, in 1969, used employ-
ees represented by Local I to perform the work
presently claimed by them.
The record is silent, however, as to the Employer's
past practice concerning the work in dispute claimed
by employees represented by Local 918. As previous-
ly stated, the Employer has never had a contract with
Local 282 and, as the record reveals, has never
assigned any of the disputed work to employees
represented by that Union. Thus, we find that the
Employer's past practice of assigning the work,
claimed by Local 1, to its plumbers favors an award
of that work to employees represented by Local 1.
However, we find that this factor is not relevant as to
the disputed work vis-a-vis employees represented by
Local 918.
3. Skills, efficiency, and economy
It is undisputed that no particular skills or
requirement, other than a valid chauffeur's license, is
needed to perform the work in dispute. Accordingly,
we find that relative skills are not a factor in
awarding the disputed work.
With respect to the disputed wor. claimed by
Local 1, the Employer's president, Morton Hirsch,
testified without contradiction that it is more
efficient for an employee represented by Local I to
perform such work inasmuch as a plumber cannot
only transport employees and equipment to an area
but can also perform the necessary plumbing work in
that locale. We therefore find that considerations of
efficiency and economy favor awarding the work to
employees represented by Local I and 918.
4. Employer preference
For the reasons stated above, the Employer found
it preferable to assign the work in dispute to
employees represented by Local 1 and Local 918 and
. . .or perform any work which excludes on-site trucking from its
scope.
The provisions of this Agreement re on-site trucking shall be made a
condition of any supply contract, and any contract or subcontract
awarded or managed by the Employer covered by this Agreement.
the record establishes that the Employer is satisfied
with the results of the assignment. Accordingly, we
find that this factor favors awarding the work to
employees represented by those Unions.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that employees of Active Fire Sprinkler
Corp. who are represented by Local I and Local 918
are entitled to perform the work in dispute. We reach
this conclusion relying on the efficiency and econo-
my of the assignments, the Employer's preference in
making the assignments, and, as it pertains to the
work claimed by Local 1, the Employer's past
practice of assigning such work to plumbers. In
making this determination, we are awarding the work
in question to employees who are represented by
Local I and Local 918, but not to those Unions or to
their members. The present determination is limited
to the particular controversy which gave rise to this
proceeding.
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
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
1. Employees employed by Active Fire Sprinkler
Corp., who are represented by Local 1, United
Association of Journeymen & Apprentices of the
Plumbing & Pipe Fitting Industry of the United
States & Canada, AFL-CIO, are entitled to perform
the work of transporting by jeep or jeep-truck,
employees, equipment, and materials between points
at the U.S. Postal Service Mail Handling Facility
under construction at Kennedy Airport, Jamaica,
New York.
2. Employees employed by Active Fire Sprinkler
Corp., who are represented by Local 918, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, are entitled to
perform the work of delivering materials by truck
from Active's shop to the U.S. Postal Service Mail
Handling Facility under construction at Kennedy
Airport, Jamaica, New York, and the making of
single or multiple deliveries therein.
I Although Active has always employed plumbers, these employees have
not always been represented by Local I.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Local 282, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is not entitled, by means proscribed by
Section 8(b)(4)(D) of the Act, to force or require
Active Fire Sprinkler Corp., to assign any such
disputed work to employees who are represented by
that labor organization.
4. Within 10 days from the date of this Decision
and Determination of Dispute, Local 282, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, shall notify the
Regional Director for Region 29, in writing, whether
it will refrain from forcing or requiring the Employer,
by means proscribed in Section 8(b)(4XD) of the Act,
to assign the disputed work in a manner inconsistent
with the above determination.
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