Teamsters Local 282 (Mount Hope Trucking)

National Labor Relations Board - Board Decisions

Feb 15, 1995

316 N.L.R.B. 305 (N.L.R.B. 1995)

305
316 NLRB No. 67
TEAMSTERS LOCAL 282 (MOUNT HOPE TRUCKING)
1 Local 282 would not enter into a stipulation concerning com-
merce jurisdiction or the nature of the dispute, nor would it stipulate
that Mount Hope Trucking was not failing to conform to a Board
order or certification determining the bargaining representative for
the employees performing the work in dispute. We have based our
findings as to these issues on evidence received by the hearing offi-
cer.
2 Unlike the delivery of asphalt, the delivery of stone simply in-
volves transporting stone from Hope Products’ quarry in Wharton,
New Jersey, and dumping it at the jobsite or plant for which it is
destined.
3 All dates hereafter are in 1994 unless otherwise noted.
Local 282, International Brotherhood of Teamsters,
AFL–CIO and Mount Hope Trucking Com-
pany, Inc. and Local 560, International Broth-
erhood of Teamsters, AFL–CIO. Cases 29–CD–
434 and 29–CD–439
February 15, 1995
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
The charges in this Section 10(k) proceeding were
filed May 11 and June 10, 1994, by Mount Hope
Trucking Company, Inc. (the Employer) alleging that
the Respondent, Local 282, International Brotherhood
of Teamsters, AFL–CIO (Local 282) violated Section
8(b)(4)(D) of the National Labor Relations Act by en-
gaging in proscribed activity with an object of forcing
the Employer to assign certain work to employees it
represents rather than to employees represented by
Local 560, International Brotherhood of Teamsters,
AFL–CIO (Local 560). The hearing was held July 14,
21, and 26, 1994, before Hearing Officer Paul
Richman.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
The Employer, a New Jersey corporation, is engaged
in the business of delivering stone and asphalt mate-
rials produced by Mount Hope Rock Products to var-
ious locations in the New York and New Jersey area.
The Employer annually transports material valued at
between $1.5 million and $2 million directly to loca-
tions outside the State of New Jersey. Local 560 and
the Employer stipulated, and we find, that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.1 The parties stipulated,
and we find, that Local 282 and Local 560 are labor
organizations within the meaning of Section 2(5) of
the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
This dispute arose on a construction site in New
York City. Mount Hope Rock Products (Hope Prod-
ucts), a New Jersey corporation that produces fresh
stone and asphalt for construction, had a contract to
provide a customer, Carlo Lizza and Sons Paving Co.
(Lizza), with asphalt for the paving of a parking lot at
the Waldbaum shopping center in Queens. Hope Prod-
ucts uses the Employer (Hope Trucking) to effect de-
liveries of materials it produces, and the price at which
the product is sold includes delivery. Employees rep-
resented by Local 560 make deliveries for the Em-
ployer.
Delivery of asphalt includes transporting the asphalt
to the site and delivering the asphalt into the spreader,
which spreads the asphalt on the ground. The truck-
driver lifts the body of the asphalt truck and the as-
phalt is dumped from the delivery truck into the hop-
per of the spreader. The hopper usually cannot hold a
truckload of asphalt. Therefore, the spreader and the
truck are temporarily joined, and the spreader pushes
the truck forward until the truckload of asphalt is
dumped into the hopper and eventually spread by the
spreader. It is the latter phase of the work that Local
282 has particularly contested, contending that this
constitutes ‘‘working the job site’’ and should be done
by the New York employees who are represented by
Local 282.2
The Employer’s Local 560-represented drivers began
making deliveries of asphalt to Lizza on April 5,
1994.3 On April 6, James Horan, vice president of op-
erations for Hope Products, heard that the next day
there would be ‘‘a union problem at the site . . . be-
cause Local 282 was going to be picketing the site.’’
Horan telephoned Aldo Colussi, secretary-treasurer for
Local 282, and suggested to Colussi that there should
not be a problem because the Employer’s drivers were
in a local of the same International. Colussi responded
that there was a problem, that Local 282 drivers were
out of work, and that this was not Local 560’s work.
Colussi stated that he would be at the site the next day
with picketers.
When Horan arrived at the site on April 7, he saw
50–60 people at the entrances, some of whom wore
hats or jackets with the Local 282 logo. Several of
them also held picket signs that stated, ‘‘Carlo Lizza’’
and ‘‘unfair labor practice.’’ At the site, Horan met
with Colussi and Vinny Scavetta, a Local 282 delegate
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 No jurisdictional award was introduced into the record.
5 The contract clause that Local 282 relies on states as follows:
The Employer shall not hire outside trucks or equipment unless
all his available, suitable trucks and equipment are in use.
Thereafter, the Employer shall hire only from others whose driv-
ers receive wages, working conditions, benefits and standards of
employment at least as favorable as those contained herein.
from the Bronx. Horan told Colussi that Hope Truck-
ing had already delivered with the Local 560 drivers
for the past couple of days, and that he had delivered
in the past to New York City. Colussi told Horan that
this was Local 282’s worksite, that a lot of men were
out of work, and that Lizza could get the asphalt from
several other companies located nearby. Horan testified
that Scavetta stated that ‘‘this is going to happen wher-
ever we go, if we decide to go to another job site . . .
that he was going to have strikes at other job sites.’’
Scavetta also threatened to talk to another customer
with whom Hope Products was negotiating.
When the first Hope Trucking truck arrived, the
picketers surrounded it so that the truck could not
enter. Only when the police arrived in force later that
morning, did the Hope Trucking trucks enter one at a
time. The picketers shouted to the drivers as their
trucks entered the site where the asphalt spreaders
were waiting for the asphalt to be received from the
Hope Trucking trucks. Lizza vehicles entered through
one of the entrances where the picketers were located
but were not approached by the picketers. The Hope
Trucking trucks were the only vehicles approached by
the picketers that day.
Hope Trucking had a contract to deliver stone to
Petosa Brothers, at a construction site at Staten Island
College in New York City, as it had done on previous
occasions. On June 7, Bryan Misbach, a sales rep-
resentative for Hope Products, called Horan and told
him that there would be ‘‘a union problem tomorrow
delivering the stone to the Staten Island College.’’
When Horan arrived on June 8, two persons who iden-
tified themselves as Local 282 stewards approached
him. One of the stewards, A. Schoppo, said that he
recognized Horan from the Waldbaum site in Queens.
Schoppo asked if Horan had heard about a jurisdic-
tional award in which Local 282 was ‘‘awarded the ju-
risdictional right to deliver asphalt to the New York
sites, and Mount Hope Trucking was not given the
jurisdiction[al] right for stone or asphalt anywhere in
New York City or the five boroughs.’’4 Horan said
that he had not been informed of such a decision and
told Schoppo that he was to deliver several loads to
this site. Schoppo suggested that Horan have the stone
dropped off elsewhere.
Later that morning when a Hope Trucking vehicle
entered the worksite, Schoppo told the driver that this
was a sanctioned strike. When the driver said that he
did not see picket signs, Schoppo had a sign placed on
a car windshield which had the words ‘‘Petosa’’ and
‘‘area standards’’ on it. Schoppo continued his con-
versation with the driver stating that Local 282 drivers
got $22 per hour while Local 560 drivers receive $12
an hour, that this was the work of Local 282, and that
the trucks were not going to deliver to the site. At this
time several trucks of other companies, including a
Petosa truck, entered the site without being stopped.
Horan and the Local 560 driver spoke by telephone
with Local 560 Representative Carmine Pizzuto who
said that Local 560 would honor the strike. The driver
then said he would honor the strike. As a result, Hope
Trucking made no deliveries that day although there
were 10 deliveries scheduled. There has been no fur-
ther picketing.
B. Work in Dispute
Local 282 would not stipulate to the work in dis-
pute. Local 282 claimed that it had no dispute with
Hope Trucking but that its dispute was with other em-
ployers who use the services of Hope Trucking instead
of adhering to the terms of their collective-bargaining
agreements with Local 282. Based on evidence ad-
duced at the hearing, we find that the work in dispute
includes all hauling and delivery of rock, asphalt, and
related products assigned to drivers by Mount Hope
Trucking Company, Inc. to the Carlo Lizza & Sons
construction site at the Waldbaum shopping center in
the Borough of Queens, New York City, and to the
Petosa Brothers construction site at Staten Island Col-
lege in the Borough of Staten Island, New York City.
C. Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that Local 282 violated Section
8(b)(4)(D) of the Act. The Employer further contends
that the work in dispute should be awarded to employ-
ees represented by Local 560 on the basis of the col-
lective-bargaining agreement, employer preference and
past practice, area practice, and efficiency and econ-
omy of operations. The Employer seeks an award co-
extensive with the geographical jurisdiction of Local
282 and Local 560 because both will continue to claim
this work and Local 282 has demonstrated a proclivity
to engage in unlawful conduct in order to ensure that
the disputed work is assigned to employees it rep-
resents.
Local 282 contends that it has no dispute with the
Employer and, at the hearing, moved to dismiss the
proceeding, arguing that its dispute is a contractual one
with employers under contract with Local 282 who
have violated the subcontracting clause in their con-
tracts by subcontracting work to Mount Hope.5 Local
282 argues that there is no basis for a finding of ‘‘rea-
sonable cause’’ that Local 282 engaged in unfair labor
practices within the meaning of Section 8(b)(4)(D),
307TEAMSTERS LOCAL 282 (MOUNT HOPE TRUCKING CO.)
6 280 NLRB 818 (1986), enfd. 827 F.2d 582 (9th Cir. 1987).
7 209 NLRB 320 (1974).
8 The Respondent also contends that the alleged strike on June 8
was not authorized. We find it unnecessary to decide in this 10(k)
proceeding whether the Respondent is legally responsible for the
stewards’ actions because the Board, in a jurisdictional context, is
not charged with finding that a violation actually occurred, but only
that there is reasonable cause to believe that Sec. 8(b)(4)(D) has
been violated. See Mine Workers (Stag Construction), 313 NLRB
434, 435 (1993).
9 185 NLRB 186 (1970), vacated and remanded 467 F.2d 1011
(9th Cir. 1972), on remand 203 NLRB 861 (1973).
10 134 NLRB 1320 (1961).
11 Waterway Terminals Co., supra at 188, quoting in part from
Safeway Stores, supra.
which is the jurisdictional underpinning for this pro-
ceeding. Citing Teamsters Local 578 (USCP-Wesco)6
and Chicago Web Printing Pressmen’s Union 7 (Met-
ropolitan Printing Co.),7 in which the Board declined
to assert jurisdiction under Section 10(k), Local 282
contends that Section 10(k) jurisdiction may not be a
substitute for the resolution of contractual disputes be-
tween an employer and a union.8
Local 282 further contends that the parties have
agreed to be bound by the determination of the Inter-
national Brotherhood of Teamsters (IBT). Specifically,
Local 282 argues that Local 560 and Local 282 are
bound by the constitution of IBT, and that the Em-
ployer is bound because its most recent collective-bar-
gaining agreement with Local 560 provided: ‘‘The
Employer agrees to respect the jurisdictional rules of
the Union.’’
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that reasonable cause exists to believe
that Section 8(b)(4)(D) has been violated and that there
is no agreed-upon method for the voluntary adjustment
of the dispute.
As discussed above, Local 282 Secretary-Treasurer
Colussi told Employer’s vice president, Horan, that the
delivery work was Local 282’s work and threatened to
and did in fact picket the Lizza construction site. Dur-
ing the picketing, Local 282 Delegate Scavetta told
Horan that he was going to have strikes at other
jobsites, and that this would happen wherever he went.
In the second incident of picketing, at the Petosa con-
struction site, Local 282 Steward Schoppo told a Local
560 driver that the strike was a sanctioned strike, that
the work belonged to Local 282, and that the trucks
were not going to deliver to the site.
Based on the foregoing, we find reasonable cause to
believe that Local 282 has violated Section 8(b)(4)(D).
We further find that this case is distinguishable from
USCP-Wesco and Metropolitan Printing Co., supra,
cited by the Respondent and from Longshoremen
ILWU Local 8 (Waterway Terminals Co.)9 and High-
way Truckdrivers & Helpers Local 107 (Safeway
Stores).10 Each of those cases involved a claim against
an employer by a union seeking to prevent reallocation
of work in order to protect bargaining unit work from
erosion. In those cases, the essential dispute was be-
tween a union and an employer rather than between
rival groups of employees. In the instant case, there is
no work preservation issue because there is no evi-
dence that employees represented by Local 282 have
ever performed the disputed work for the Employer
pursuant to their collective-bargaining agreement. Be-
cause the Local 282-represented employees have never
performed this work, unlike the cases cited above,
there is here no union’s ‘‘‘attempt to retrieve the jobs’
of employees whom the employer chose to supplant by
reallocating their work to others.’’11 We find that the
real dispute here is between employees represented by
Local 282 and those represented by Local 560, and
that Local 282 is attempting to capture for its employ-
ees work that the Local 560-represented employees
have always performed. Thus, we conclude that the
evidence in this case is sufficient to establish a juris-
dictional dispute between two groups of employees
that is cognizable under Section 10(k) of the Act. Ac-
cordingly, the Respondent’s motion to dismiss is de-
nied.
Local 282 further contends that there is an agreed-
upon method of adjustment between the parties. Local
282 claims that a dispute between Local 282 and Local
560 concerning each union’s jurisdictional area is now
pending before the International Brotherhood of Team-
sters, and that all parties are bound by the determina-
tion of the International. In this connection, Local 282
maintains that, by entering into a contract with Local
560 which stated that the Employer agreed to respect
the jurisdictional rules of the Union, the Employer
agreed to be bound by the determination of the IBT.
The provision which Local 282 cites reads in full as
follows:
(a) The Employer agrees to respect the jurisdic-
tional rules of the Union, and shall not direct or
require their employees or other persons other
than its employees in the bargaining unit hereto
involved to perform work which is recognized as
being within the Teamsters jurisdiction.
Whatever the arguable significance of this clause, we
note that the most recent collective-bargaining agree-
ment between the Employer and Local 560 expired on
August 31, 1991, prior to any claim to the disputed
work by Local 282. In these circumstances, even if the
contract provision could reasonably be interpreted in
the manner urged by Local 282, we are unable to find
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 See Jacksonville Tile Co., 125 NLRB 138, 142–143 (1959).
13 The spreaders were normally operated by employees represented
by other unions.
that the Employer is bound to a means for the vol-
untary settlement of the instant dispute.12
We conclude that there exists no agreed-upon meth-
od for voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act. Accordingly, we
find that the dispute is properly before the Board for
determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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 balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following facts are relevant in making the deter-
mination of this dispute.
1. Certification and collective-bargaining
agreement
There is no evidence that either of the Unions was
ever certified by the Board to represent the employees
of the Employer. The Employer had collective-bargain-
ing agreements with Local 560 commencing in 1985
which covered all deliveries of its stone and asphalt
products within a 135-mile radius of Mount Hope’s
quarry in New Jersey. However, the most recent con-
tract expired August 31, 1991. The Employer has
never had a collective-bargaining agreement with
Local 282. This factor does not favor the award of the
disputed work to either group of employees.
2. Employer preference and past practice
The Employer prefers that the work in dispute be
performed by employees represented by Local 560.
The Employer has used employees represented by
Local 560 to do this type of work since at least 1985
and prefers to continue to do so. There is no evidence
that employees represented by Local 282 have ever
performed this work for the Employer. Records in evi-
dence show that between 1989 and 1994 Hope Truck-
ing delivered approximately 38,000 truckloads of as-
phalt and 227,000 loads of stone to jobsites in New
York City. These included deliveries for Lizza to 26
separate jobsites in New York City and 5 separate
jobsites in other areas of New York State. The Em-
ployer submitted documentary evidence which shows
that from 1989 to 1994, about 15 percent of its deliv-
eries of asphalt and 36 percent of its deliveries of
stone were to New York City. The Employer used its
own employees represented by Local 560 for all of this
work. We find that the factor of employer preference
and past practice favors an award of the disputed work
to employees represented by Local 560.
3. Area and industry practice
No evidence was presented with respect to industry
practice. With respect to area practice, Colussi testified
that when a company employing Local 282 had suit-
able and available equipment, as was the case with
Lizza, it was customary for Local 282 to ‘‘work the
job site,’’ i.e., dump the asphalt into spreaders as the
spreaders distributed or laid down the asphalt over the
worksite.13 If the company had no such equipment,
then under the terms of the collective-bargaining agree-
ment, it could subcontract to other companies which
had equivalent standards. Although Colussi contended
that Mount Hope could have dropped the asphalt and
allowed a Lizza truck to reload and place it in the
spreaders, he could cite only one instance where this
had occurred and that was caused by unusual cir-
cumstances.
The procedure followed almost exclusively by the
Employer is that the same truck that delivers the as-
phalt unloads into the spreader at the worksite. Horan
testified that it was his business to be familiar with
area practices regarding delivery of rock products and
asphalt into the New York area because Hope bids the
same jobs as some of the other suppliers. He stated
that the delivery practice of other area companies,
which he identified by name and classified as ‘‘every-
body along that corridor,’’ was the same as Mount
Hope’s.
We find that the evidence of area practice is incon-
clusive and that this factor does not favor an award of
the disputed work to either group of employees.
4. Relative skills
The evidence shows that employees represented by
Local 282 and employees represented by Local 560
both have the skills to perform the delivery of asphalt
and stone. We find that this factor does not favor the
award of the disputed work to either group of employ-
ees.
5. Economy and efficiency of operations
Local 282 has suggested several ways in which the
Employer could allow employees represented by Local
282 to perform the work in dispute.
First, Local 282 suggested that the Employer’s em-
ployees represented by Local 560 dump the asphalt
and allow the New York employees represented by
Local 282 to reload the asphalt onto other trucks and
dump it into the spreader. However, Horan testified
309TEAMSTERS LOCAL 282 (MOUNT HOPE TRUCKING CO.)
that dumping the asphalt on the ground in order for it
to be reloaded onto another truck, rather than unload-
ing directly into the spreader, would result in the as-
phalt separating and losing its evenness. The result
would be that the asphalt would not be spread accord-
ing to specification and the Employer would con-
sequently be penalized by its customers.
Next, Local 282 suggested that Mount Hope could
deliver its asphalt and stone to locations away from the
worksite or, alternatively, purchase the materials from
suppliers in New York, and then allow the New York
purchaser’s employees represented by Local 282 to
pick up and deliver the product to the jobsite. The Em-
ployer presented evidence that either of these alter-
natives would be more expensive than its current prac-
tice. It would be much more costly to deliver asphalt
or stone to locations away from the worksite because
this would entail additional cost of delivery from the
drop off point to the worksite. The Employer would
not recoup this cost because its asphalt price is the
price delivered to the worksite. If the Employer pur-
chased the asphalt from a supplier near the worksite,
it would result in its not using its investment in the
New Jersey facility which produces these materials.
Finally, Local 282 argued that employees rep-
resented by Local 560 could drive the product from the
quarry to the worksite in the Employer’s trucks and
then allow employees represented by Local 282 to take
over and unload the trucks. The Employer dem-
onstrated that this would result in considerable increase
in costs. Hope Trucking would have to pay Local 282
drivers to unload the trucks and would also have to
pay its Local 560 drivers for the same time spent at
the site.
We find that the factor of efficiency and economy
of operations favors awarding the disputed work to
employees represented by Local 560.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Local 560 are en-
titled to perform the work in dispute. We reach this
conclusion relying on employer preference and past
practice, and economy and efficiency of operations. In
making this determination, we are awarding the work
to employees represented by Local 560, not to that
Union or its members.
Scope of the Award
The Employer contends that the determination
should be broad enough to encompass the geographical
area where the Employer does business and where the
jurisdictions of the competing unions coincide. For the
Board to issue a broad, areawide award, there must be
evidence that the disputed work has been a continuing
source of controversy in the relevant geographic area
and that similar disputes are likely to recur. There
must also be evidence which demonstrates that the
charged party has a proclivity to engage in unlawful
conduct to obtain work similar to the disputed work.
Electrical Workers IBEW Local 211 (Sammons Com-
munications), 287 NLRB 930, 934 (1987).
We have determined that there is reasonable cause
to believe that in two separate incidents, on two dif-
ferent jobsites, involving different contractors, Local
282 violated Section 8(b)(4)(D) of the Act through
threats and picketing to coerce the Employer to assign
work to employees it represents rather than to employ-
ees represented by Local 560. In addition, the Em-
ployer presented evidence that in the first incident
Scavetta threatened that he was going to have strikes
at other jobsites and that there would be a problem
wherever Mount Hope went. Horan testified that at the
Staten Island College construction site, Schoppo told
him that ‘‘there was no way that a Mount Hope truck
was going to deliver material to that job site that day
or any other job site.’’ Thus, it appears that assigning
work similar to the disputed work will continue to be
controversial, as the Employer intends to continue as-
signing the work to employees represented by Local
560, and Local 282 has shown by its statements and
conduct that it will likely resort to conduct prohibited
by Section 8(b)(4)(D) in order to obtain that work for
employees it represents.
In light of the evidence presented in this case, we
find that there is ample evidence that similar disputes
may occur in the future at other sites where the Em-
ployer attempts to deliver asphalt and stone. Accord-
ingly, our determination in this case applies to all simi-
lar disputes concerning the Employer’s delivery work
where the geographical jurisdictions of Locals 282 and
560 coincide. See Glaziers Glassworkers Local 636
(Plaza Glass Co.), 214 NLRB 912, 915 (1974).
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of the Employer represented by Local
560, International Brotherhood of Teamsters, AFL–
CIO are entitled to perform the work of hauling and
delivering rock, asphalt, and related products within a
135-mile radius of the Mount Hope quarry where the
jurisdictions of Local 560 and Local 282, International
Brotherhood of Teamsters, AFL–CIO coincide.
2. Local 282, International Brotherhood of Team-
sters, AFL–CIO 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 it.
3. Within 10 days from this date, Local 282, Inter-
national Brotherhood of Teamsters, AFL–CIO shall no-
tify the Regional Director for Region 29 in writing
310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 this deter-
mination.