Teamsters Local 959 (Kodiak Oilfield Haulers)

National Labor Relations Board - Board Decisions

Oct 19, 1977

233 N.L.R.B. 66 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, General
Local 959, State of Alaska and Kodiak Oilfield
Haulers, Inc. and International Union of Operating
Engineers, Local 302. Case 19-CD-272
October 19, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, PENELLO, AND MURPHY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Kodiak Oilfield Haulers, Inc.
(herein called Kodiak or the Employer), alleging,
inter alia, that the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, General Local 959, State of Alaska
(herein called Teamsters), had violated Section
8(b)(4)(D) of the Act by engaging in certain
proscribed activities with an object of forcing or
requiring Kodiak to continue to assign certain work
to employees represented by the Teamsters rather
than assigning it to employees represented by the
International Union of Operating Engineers, Local
302 (herein called Operating Engineers).
A hearing was held before Hearing Officers Terry
C. Jensen on December 16, 1976, and Donald W.
Albright on January 10, 1977. All parties desiring to
do so 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, all parties 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 Hearing Officers'
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
1. THE BUSINESS OF THE EMPLOYER
Kodiak Oilfield Haulers, Inc., is a corporation
operating, in part, on the North Slope of Alaska, as a
common carrier offering freight-carrying services to
the public. Kodiak annually has a gross volume of
business valued in excess of $500,000 and annually
performs services valued in excess of $1 million for
several interstate oil corporations, including Arco,
BP, Mobil, and Exxon. The parties stipulated, and
we find, that Kodiak is an employer within the
meaning of Section 2(2) of the Act. We further find
that Kodiak is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it
233 NLRB No. II
will effectuate the purposes of the Act to assert
jurisdiction herein.
II. LABOR ORGANIZATIONS
The parties stipulated, and we find, that the
Teamsters and the Operating Engineers are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute involves the driving of loaders
when equipped either with forks and okie buckets or
with forks alone at locations on the North Slope of
Alaska. A loader is a four-wheeled, rubber-tired
vehicle most frequently used in the construction
industry, but which is also particularly well suited for
carrying heavy equipment, supplies, and bulk materi-
als over the rugged, generally nonsurfaced, terrain of
the North Slope. A loader may be fitted either with
"forks," thick heavy duty metal slats or prongs used
to pick up large items (referred to as a forklift), or
with heavy duty buckets (referred to as front-end
loader) used to carry smaller equipment and materi-
als which do not fit on the forks. It may not,
however, be fitted with both simultaneously. In
addition, a loader may be fitted with okie buckets
which are light metal boxes with one side and the top
open so that they resemble large scoops. These are
used only when the loader is fitted with forks and
are, thus, designed for easy attachment and removal
from the forks in a matter of minutes. The change-
over of a front-end loader to a forklift, on the other
hand, requires approximately an hour. Okie buckets
are light weight and have four or five times the
capacity of the heavier and sturdier factory-made
buckets on front-end loaders. On the North Slope,
okie buckets are used almost exclusively for snow
removal and were, in fact, initially designed in the
field in order to effectively and efficiently accomplish
that work task so often required by the shifting
Alaskan snowdrifts.
B. Background
In May 1972, Kodiak was acquired by its present
owner, Nabors Alaska Drilling (Nabors). At that
time, the Teamsters was the only Union representing
any of Kodiak's employees and the forklift operators
were among those represented. To meet its needs for
operators with skills other than those possessed by its
Teamsters employees, Kodiak used nonunion em-
ployees supplied by Nabors, and so, beginning in
May 1972, Nabors provided Kodiak with nonunion
front-end loader operators.
66
IBT, GENERAL LOCAL 959
On December 4, 1973, a certification election was
conducted among a group of Nabors' employees
(including those who had operated Kodiak's front-
end loaders) which the Operating Engineers won.
The unit certified, however, specifically excluded
therefrom all employees who, at the time of certifica-
tion, were covered by a collective-bargaining agree-
ment between the employer and another labor
organization. Following the Operating Engineers
certification, the newly unionized employees were
transferred to Kodiak and formally became employ-
ees of that Company. Kodiak then assumed Nabors'
collective-bargaining relationship with the Operating
Engineers and entered into a compliance agreement
by which it agreed to adhere to the master labor
agreement in effect between the Operating Engineers
and the Alaska Chapter of the Associated General
Contractors of America, Inc. (AGC). That collective-
bargaining contract contains wage provisions appli-
cable to forklift loaders but does not, otherwise,
specifically refer to the coverage of forklift drivers.
No reference is made therein to okie buckets.
Since the May 1972 acquisition by Nabors, Kodiak
has had a series of collective-bargaining agreements
with the Teamsters, covering certain of its employees.
The first such agreement (term of May 18-June 30,
1972) specifically listed the job classifications-driv-
ers, solo and flatbed and forklift operators-covered
by the contract. The second agreement (term of July
1, 1972-June 30, 1974) included two driver classifi-
cations, limited and general. The drivers-general
category was defined in a footnote as including,
among others, forklifts over 5 tons; 1 the drivers-
limited group included, among others, forklifts 5 tons
and under. The most recent contract (term of July 1,
1974-June 30, 1977), in effect at the time of the
hearing, included, among others, the categories of
"Drivers, General" and "Driver, Rig Up-Tear
Down," but at no place therein were these groups
specifically defined or the equipment drivers enumer-
ated. None of these contracts specifically mentioned
okie buckets as falling within its scope.
Since perhaps as early as 1968, Kodiak has utilized
forklifts with okie buckets attached for snow remov-
al. While the record is vague as to when the practice
actually began, it is clear that at the time of the
Operating Engineers certification in December 1973
Kodiak was using members of the Teamsters for its
okie buckets operation. Since then, Kodiak has
continued to assign its forklift operations, including
those with okie buckets, to employees represented by
Teamsters. Its front-end loader work has been
assigned to employees represented by the Operating
Engineers. The only exceptions to these practices
I There is record evidence that presently all of Kodiak's forklifts fall into
this latter category of machines over 5 tons in weight.
have been in the situations where no member of the
appropriate Union was available to perform a
particular job, in which case a member of the other
Union has been utilized.
It is this present assignment of forklift operations
which is the subject matter of the dispute herein. The
Teamsters does not object to members of the
Operating Engineers performing the front-end loader
work, but the Operating Engineers claims the forklift
work. With the first snowfall during the past several
winters, the Operating Engineers had orally protested
the assignment of the okie bucket and forklift work
to the Teamsters. During November 1976, for the
first time, however, the Operating Engineers filed a
formal grievance pursuant to the 1969 Construction
Site Jurisdictional Agreement between the Interna-
tional Organizations of the Teamsters and Operating
Engineers against Kodiak's assignment of said work.
In the past, Kodiak has attempted to resolve the
dispute through compromises. Such efforts, however,
have been soundly rebuffed by the Teamsters and
have elicited threats of economic action by that
Union should there be a reassignment of the work.
Indeed, at the hearing, Teamsters Business Represen-
tative Rodger Harris testified that in the event that
Kodiak assigns the work to the Operating Engineers,
and the Teamsters is unsuccessful in a grievance
relating to payment for the work, or if an arbitrator
splits the grievance "2/2," the Teamsters would take
economic action.
On or about November 24, 1976, Kodiak filed the
charge herein.
C. Contentions of the Parties
The Operating Engineers contends that Kodiak is
bound by the Operating Engineers-AGC contract
which assigns the forklift work to members of that
Union. Further, it asserts that while Kodiak is a
common carrier it is, nevertheless, also in the
construction business and, thus, that is the appropri-
ate industry to look to when determining the
customary practice. Moreover, the Operating Engi-
neers asserts that the Teamsters International organi-
zation has entered into a Construction Site Jurisdic-
tional Agreement under which forklift work outside
of warehouse or storage areas is assigned to operat-
ing engineers. The Operating Engineers contends,
therefore, that since virtually all of Kodiak's forklift
operations are outside of warehouse areas the work
belongs to employees it represents.
The Teamsters, on the other hand, contends that
the work should be assigned to its members based on
past practice, economy, efficiency, and area and
67
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
industry practice. Furthermore, the Teamsters asserts
that because Kodiak is a common carrier, and not in
construction, neither the Construction Site Jurisdic-
tional Agreement nor any other interunion agree-
ment is applicable to the dispute herein.
Finally, Kodiak contends that, for its own opera-
tional and economic requirements, it is essential that
the okie bucket and other forklift work be assigned to
employees represented by the same union. The
Employer further asserts that, based on its past
practice, the industry practice, economy, efficiency,
and safety, the work should be assigned to its
employees represented by the Teamsters.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated and
that there is no agreed-upon voluntary method for
resolving the dispute.
From the record as a whole, it is clear that there is
no agreed-upon method for the resolution of this
dispute. While the Construction Site Jurisdictional
Agreement between the Internationals of the Team-
sters and Operating Engineers contains, among other
things, a method of resolving disputes, it only applies
to the construction industry. Inasmuch as there is no
record evidence to the contrary, we find that Kodiak
is a common carrier and is not engaged in the
construction industry. Thus, that agreement is
inapplicable to the dispute herein. Moreover, that
agreement is between the two Unions and there is no
evidence that Kodiak has at any time agreed to be
bound thereby.
We are satisfied that there is reasonable cause to
believe that an 8(b)(4)(D) violation has occurred in
this case. Kodiak's president, James Taylor, testified
that during discussions with Teamsters Representa-
tive Harris the latter always gave the impression that
economic or some other action would occur if
members of his Union were removed as the forklift
operators. Taylor more specifically stated that he
"understood without a doubt" that Kodiak would be
shut down and operations stopped if it were to
change its practice as to loader assignments, and that
this certainly would occur, either before or following
the grievance procedure. Taylor further testified that
these discussions took place on numerous occasions
in the past, including every November when it snows,
once or twice in the last 6 months, and perhaps as
often as three or four times a year. The last
2 For the Board to proceed to a determination of dispute pursuant to Sec.
10(k) of the Act, it is sufficient that a showing is made that there is
reasonable cause to believe a violation of Sec. 8(bX4)D) has occurred. The
fact that Harris did not admit Taylor's testimony specifically in no way
lessens the propriety of jurisdiction by the Board.
conversation wherein such threats were made follow-
ing the Operating Engineers filing of grievances
relating to the forklift assignments, some 2 or 3 weeks
before December 16, 1976, the first day of the
hearing herein. Taylor testified that these threats
were one of the primary motivating factors in his
filing of the instant unfair labor practice charge
because he felt something would have to be done to
resolve the work assignment dispute.
Teamsters Representative Harris essentially cor-
roborated Taylor's testimony concerning the discus-
sions about changes in the forklift assignments and
possible economic action. While Harris was rather
vague as to precise comments made to Taylor, he did
generally outline in a manner supportive of Taylor's
account, the type of conversation he would have with
an employer in such a situations Furthermore,
Harris, in the course of his testimony, in effect
reiterated such threats by stating that if Kodiak, in
fact, had reassigned the work the Teamsters would
have taken economic action if its position had not
prevailed.
Based on the foregoing, and the record as a whole,
we find there is reasonable cause to believe that a
violation of Section 8(b)(4)(D) of the Act has
occurred. Further, since the parties have not agreed
upon a voluntary method of settling this jurisdiction-
al dispute, it is properly before the Board for
determination under Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to various relevant factors. 3
As the Board has frequently stated, the determina-
tion in a jurisdictional dispute case is an act of
judgment based on commonsense and experience in
weighing these factors. The following factors are
relevant in making a determination of the dispute
before us.
i. Board certifications
As noted above, on December 4, 1973, the
Operating Engineers was certified as collective-bar-
gaining representative of certain of Nabors' employ-
ees. That certification, however, specifically excluded
from the unit any employees who were covered by a
collective-bargaining agreement between the employ-
er and other labor organizations. At that time,
Kodiak's forklift operators were covered by a
contract with the Teamsters. Thus, the Operating
3 N. LR.B. v. Radio and Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting Systeml, 364 U.S. 573 (1961).
68
IBT, GENERAL LOCAL 959
Engineers certification does not extend to the
employees performing the work in dispute and
therefore is not controlling herein.
There is no Board certification applicable to the
unit of employees represented by the Teamsters.
Accordingly, this factor does not favor an award to
either group of competing employees.
2. Collective-bargaining agreements
As discussed above, both the Teamsters and
Operating Engineers have collective-bargaining
agreements with Kodiak. While the first two Kodiak-
Teamsters contracts (including the one in effect on
December 4, 1973, when the Operating Engineers
was certified by the Board) specifically referred to
forklift drivers, the current collective-bargaining
agreement omits any reference to these employees.
Nevertheless, Taylor testified, without contradiction,
that, in spite of the lack of reference to the forklift
operators therein, both parties to that contract
intended that those employees continue to fall within
the scope of the agreement. Buttressing this claim,
Taylor testified that, since the execution of that
contract, the Employer has, in fact, continued to
assign its forklift work, with or without the okie
bucket attached, to employees represented by the
Teamsters.
The Kodiak-Operating Engineers contract is mere-
ly a compliance agreement by which Kodiak agrees
to adhere to the AGC contract containing a wage
provision relating to forklift drivers. Otherwise,
however, that contract is silent as to forklift drivers.
We do not accept the Operating Engineers conten-
tion that, by adopting the AGC contract, Kodiak
agreed to award the forklift work to operating
engineers and to thereby, in effect, amend its
certification so as to voluntarily recognize that Union
as the representative of those employees. Taylor
testified that Kodiak accepted the AGC contract
because the Operating Engineers only represented
four of its employees, at the time there was little work
performed on the North Slope to which such an
agreement would be applicable, and it was expedient
to accept that contract. Such an explanation appears
logical. Moreover, we view Kodiak's adoption of the
AGC contract as limited to only the job classifica-
tions held, and work performed, by the four
employees then within the certified unit. By no
means do we construe Kodiak's adherence to that
agreement as a recognition of the Operating Engi-
neers as representative of the numerous employee
classifications listed in the contract in the event, if
ever, that the Employer utilized their services
sometime in the future. Forklift driver is but one of
the many job classifications enumerated in some 14
pages of the contract and so we find it difficult to
believe that Kodiak intended to so drastically enlarge
the unit of employees represented by the Operating
Engineers.
Accordingly, we find that the collective-bargaining
agreements, as most reasonably construed and as
implemented, favor an award of the work to
employees represented by the Teamsters.
3. Employer's past practice
Since May 1972, the Employer has consistently
assigned the disputed work to its employees repre-
sented by the Teamsters. Only on the rare occasions
when a Teamsters member has not been available for
the work has the Employer assigned the work to
employees represented by the Operating Engineers.
Accordingly, the Employer's past practice favors
an award of the work to employees represented by
the Teamsters.
4. Area and industry practice
As noted above, in spite of the Operating Engineers
claim to the contrary, we find that Kodiak is a
common carrier and is not engaged in the construc-
tion industry. Thus, in looking to the industry
practice, we shall consider only common carriers.
Further, due to the unique requirements of the
Alaskan North Slope we shall limit our consideration
to common carriers similarly situated. Given these
parameters, the record establishes that the area
practice with regard to forklift operations is to assign
that work to employees represented by the Team-
sters.
Accordingly, the area and industry practice favor
an award of the work in dispute to the employees
represented by the Teamsters.
5. Economy and efficiency
The record supports the Employer's contention
that the forklift and forklift-with-okie-bucket work
should be assigned to employees represented by the
same union. Okie buckets are used almost exclusively
for snow removal from materials and supplies which
later will be moved by forklifts. Thus, if two different
employees are assigned the regular forklift and okie
bucket work, respectively, there would be a consider-
able loss of man-hours while one employee waits idly
by for another to complete his job. Further, the cabs
of the loaders have space for only one operator at a
time. If employees from different unions are assigned
the various tasks at the remote field sites where most
of Kodiak's work is performed, one of the employees
would be exposed to the harsh, often dangerously
cold, climatic conditions of the North Slope, or else,
69
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to eliminate such possible perils, Kodiak would have
to construct shelter areas in numerous outlying areas
at significant financial cost. In addition, due to the
shifting snowdrifts on the North Slope, often several
full workdays are spent on snow removal in prepara-
tion for the carriage of supplies. Therefore, if the okie
bucket work is assigned to employees of one union
and the regular forklift work to employees of the
other, there would on occasion be several days
during which one group of employees would remain
idle at Kodiak's camp. In spite of their inability to
work, these employees would be contractually
entitled to a day's pay or transportation back to
Anchorage, Alaska, either of which alternatives
would involve substantial cost to Kodiak. Thus, in
light of the above considerations, it is clear that all
the work in dispute should be assigned to employees
represented by the same union.
The record, however, lacks relevant evidence to
establish differentials in the economy or efficiency in
assigning the work to members of one union over
another. Accordingly, this factor does not favor an
award to either group of competing employees, but
merely guides us in our ultimate disposition of this
dispute.
6. Agreement between the unions
By its own terms, the Construction Site Jurisdic-
tional Agreement between the two Unions' Interna-
tional organizations, relied upon by the Operating
Engineers, is only applicable to the construction
industry. Thus, inasmuch as we have found, supra,
that Kodiak is a common carrier and is not engaged
in the construction industry, that agreement has no
bearing on the dispute before us. No other agree-
ments between these two Unions have been submit-
ted for the Board's consideration in this case.
Accordingly, this factor does not favor an award to
employees represented by either Union.
Conclusions
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that Kodiak's employees represented by the
Teamsters are entitled to perform the disputed work.
In reaching this conclusion, we have relied upon
Kodiak's assignment of the disputed work consistent
with its past practice, the collective-bargaining
agreement between Kodiak and the Teamsters, and
the area and industry practice concerning the
assignment of the disputed work. Accordingly, we
shall determine the existing jurisdictional dispute by
deciding that employees represented by the Team-
sters, rather than those represented by the Operating
Engineers, are entitled to the work in dispute. In
making this determination, we are assigning the
disputed work to the employees of Kodiak who are
represented by the Teamsters, 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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
Employees of Kodiak Oilfield Haulers, Inc.,
represented by the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, General Local 959, State of Alaska,
exclusively, are entitled to perform the work of
operating Kodiak Oilfield Haulers, Inc.'s loaders
equipped with forklifts or with forklifts and okie
buckets at all locations on the North Slope of Alaska.
MEMBER MURPHY, dissenting:
I cannot agree with my colleagues insofar as they
find that there is reasonable cause to believe that a
jurisdictional dispute exists here. It is true that the
Operating Engineers protested the assignments of
forklift work to employees represented by Teamsters,
and the Employer has tried to resolve the dispute
through compromise. The majority draft states that
Teamsters has rejected such efforts and threatened
economic action if the work were reassigned.
However, facts supporting this latter finding do not
clearly appear in the record. Rather, the only actual
reference to possible economic action shown in this
case was by the Teamsters business agent during the
hearing. All other references to prior "possible"
violations are only stated in conclusionary terms in
the briefs. There are no factual statements set forth
as to what was said from which a threat could be
found.
It also is clear to me that this is not a proper case
for a 10(k) proceeding because it gives the impression
of having been "set up" by the Employer and the
Teamsters to have the Board approve the work
assignment to the Teamsters. I am aware that this
argument was rejected in Carpenters District Council
of Denver and Vicinity (Godwin Bevers Co., Inc.), 205
NLRB 155, 157, fn. 9 (1975). However, I disagree
with that holding and believe it merits reconsider-
ation and reversal. To act routinely in all cases-
without regard to whether the statutory requirements
exist in fact-allows misuse and abuse of the Board's
processes. For this reason, I believe this question
requires in-depth analysis and consideration after an
opportunity for expression of views by interested
parties-possibly in oral argument. I would so find.
70