Teamsters, Local No 612

National Labor Relations Board - Board Decisions

Apr 5, 1973

202 N.L.R.B. 924 (N.L.R.B. 1973)

924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 612 , Teamsters, Chauffeurs, Warehouse-
men and Helpers of America and Brown Mechani-
cal Contractors , Inc. and Local Union No. 91,
United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry.
Case 10-CD-243
April 5, 1973
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Brown Mechanical Contractors,
Inc., herein called the Employer, alleging that Local
No. 612, Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called Teamsters, has
violated Section 8(b)(4)(i) and (ii)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing the Employer to assign certain work to
employees represented by Teamsters rather than to
employees represented by Local Union No. 91,
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry, herein
called Pipefitters. A hearing was held before Hearing
Officer Thaddeus R. Sobieski on November 15, 1972,
in Birmingham, Alabama. The Employer, Teamsters,
and Pipefitters 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. The Employer and Teamsters
filed posthearing 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 rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is an Alabama corporation with its
home office located in Birmingham, Alabama. It is
engaged in the business of furnishing labor and
materials for the installation of piping, air-condition-
ing, plumbing, and heating equipment. Currently, the
Employer is party to a contract with U.S. Steel to do
I There are two other trucks at the construction site which are personally
owned and operated by two supervisors of the Employer These trucks are
not marked with the Employer' s name , as is the pickup truck in contention
Teamsters claims for the assignment of the truckdriving work performed by
yard piping and relocating of existing piping at the
latter's Fairfield, Alabama, facility. This contract has
a dollar value of an excess of $100,000.
During the past year, the Employer has purchased
and received goods valued in excess of $50,000 from
points located outside the State of Alabama. Accord-
ingly, all parties concede, and we find, that the
Employer is engaged in commerce within the
meaning of Section (7) of the Act. We find further
that it will effectuate the policies of the Act to assert
jurisdiction herein.
II, THE LABOR ORGANIZATIONS
The parties stipulated and we find that Teamsters
and Pipefitters 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 task of driving
any pickup truck owned by the Employer when the
truck is utilized to transport material, tools, or
personnel at the so-called Q-BOP (Basic Oxygen
Process) Furnace Project at the Fairfield, Alabama,
works of U.S. Steel.i
B. Background and Facts of Dispute
Brown, as noted supra, is currently engaged in
providing services under a contract to U.S. Steel at
its Fairfield, Alabama, facility. It began its work
around mid-July 1972, at which time it assigned the
disputed work to members of Pipefitters. Thereafter,
the Teamsters, through two of its stewards, Robert
Armstrong and Charles Jennings,2 made oral claims
for the work in question to A. L. Fowler, Brown's
superintendent of piping.3 According to Fowler, the
stewards then told him that the Teamsters had been
"having trouble" with Brown for years and that
Brown was going to have to put teamsters on the
pickups and "would have trouble" if it did not.
According to Armstrong, who is corroborated by
Jennings, he and Jennings merely told Brown that
they expected any hauling on the job to be
performed by teamsters and that Fowler replied that
there would be no hauling on the site but that if there
were, Brown would call for a teamster because the
teamsters' rate was lower than that of the pipefitters.
Based upon subsequent observation that pipefitters
were still driving the pickups, on October 12, 1972,
Armstrong told Fowler that if the teamsters were not
the Employer do not extend to these two trucks
2 Both stewards are employed by another subcontractor on the site
3 According to Fowler, the conversation was witnessed by Forsman, a
Brown foreman , and William Young , a U S Steel engineer
202 NLRB No. 148
TEAMSTERS, LOCAL NO 612
going out on the trucks that day, he had been
instructed by Teamsters Business Agent Donald
West to put up pickets.
Pickets appeared at the site on October 13 and all
employees at the site ceased work. The pickets were
removed that same afternoon. There has been no
subsequent picketing and construction has since
proceeded normally.
C. Contentions of the Parties
Teamsters bases its claim for the disputed work on
allegations that: (a) it had long been the practice and
custom in the Birmingham area to use Teamsters for
the performance of the work in question and (b)
Brown, through Superintendent Fowler, orally
agreed, in substance, to be bound by the terms of a
contract negotiated by the Associated General
Contractors, Alabama branch, which contract pro-
vides, in part, that Teamsters shall have jurisdiction
over the kind of work here in dispute.
The Employer claims its assignment of the disput-
ed work to employees represented by Pipefitters is
consistent with and follows the customary construc-
tion of its contract with the Pipefitters. It further
claims that area industry practice and economy
dictate an assignment of the work to pipefitters. It
specifically denies that it is in any way bound by, or
that it agreed to be bound by, the Alabama AGC
contract, which it concededly has not signed.
Pipefitters position is substantially the same as the
Employer's-that employees represented by Pipefit-
ters are entitled to the work in view of its contract
with the Employer, contracts it signed with other
contractors, longstanding area practice, and efficient
operation.
D. Applicability of the Statute
Before the Board may proceed with the determina-
tion 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. As
all parties concede that on October 13, 1972,
Teamsters picketed the Fairfield, Alabama, site in
furtherance of its request that the work in dispute be
assigned to its members, we `find that there is
reasonable cause to believe that a violation of the
Act has occurred and that the dispute is properly
before the Board for determination.
4 In reaching this conclusion, we assume, without deciding, that Brown's
superintendent told Teamsters agents in July 1972 that Brown would assign
"hauling" work to teamsters
5 Brown admitted that it employed a member of Teamsters Local 612 on
a polypropylene job at U S Steel Fairfield works for 2 weeks to drive a 2-
ton stake body truck hauling pipe from an offsite storage area This driver
E. Merits of the Dispute
925
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.
1. Collective-bargaining agreements
The collective-bargaining contracts between the
Employer and Pipefitters and its parent International
do not specifically refer to the work of driving pickup
trucks. The national contract merely says that it
covers all handling of materials and tools of the
pipefitting trade. The local contract provides that the
covered employees shall not be required to transport
their tools in their personal vehicles, and O. D.
Petersen, business agent for Local 91, testified that
his local has always construed and applied the local
contract to cover the work here in question.
Teamsters admits that the Employer has not signed
any agreement related to the disputed work. But,
based on statements its agent's claim that Brown's
superintendent made in July 1972, Teamsters asserts
that Brown orally agreed to abide by the terms of the
Associated General Contractors' Alabama branch
contract. Although Teamsters did not produce this
contract in evidence, its agents testified that the
contract provides that the work in dispute is
rightfully theirs.
We find that neither the express terms of the
Employer's contracts with Pipefitters nor those relied
upon by Teamsters as part of its claim of an oral
agreement with Brown clearly cover the work here in
dispute.4
2. Employer and area practice
The Employer has been engaged in business in the
Jefferson County-Birmingham, Alabama, area for at
least 13 years and during that time it has consistently
assigned the disputed work to members of the
Pipefitters with one isolated exception.5
The record evidence as to area practice is that local
mechanical contractors customarily assign the work
in dispute to employees represented by Local 91.6
Although Teamsters Business Agent West cited
isolated projects in which teamsters were assigned to
the disputed work, he admitted he had never
personally observed such assignments and that his
knowledge of such assignments was based entirely
intermittently drove the pickup truck on that job so as not to be idle
6 Carson Inscho, Jr, .president of Inscho Mechanical Contractors. Inc ,
and Nicholas D Vance, vice president and treasurer of Mason and Dullion
Co, a mechanical contractor firm operating in Birmingham , Alabama,
testified as to area practice Each stated that his company and others in the
area had consistently assigned the work to pipefitters for the past 50 years
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon hearsay. Employer and area practice favor the
Employer's assignment.
3. Skills, efficiency, and economy of
operations
Driving the Employer's pickup truck does not
involve any special skill. However, the truck is
specially equipped with welding equipment necessary
for the pipefitting work on the project and is used to
haul the necessary materials as determined by the
drivers from blueprints of the job. It is therefore
necessary that drivers possess knowledge of the
properties of the various fittings and which fittings
are appropriate for specific tasks. Pipefitters possess
such knowledge while teamsters do not. The truck is
rarely used for incidental transportation chores and
may very often remain idle. This being the case, it
would be most inefficient to substitute a teamster,
qualified only to drive, for a pipefitter qualified to
drive as well as to exercise the necessary judgment. A
teamster unable even to recognize the requested
materials would spend little productive time on the
j ob.
Accordingly, we find that the factors of skill,
efficiency, and economy of operations favor the
Employer's assignment.
4. Conclusions
Having considered all the pertinent factors present
herein, we conclude that employees who are repre-
sented by Pipefitters are entitled to perform the work
in dispute. This assignment is consistent with
employer and area practice and supported by the
evidence adduced relative to skills, efficiency, and
economy of operations. In making this determination
we are awarding the work in question to employees
represented by the Pipefitters, but not to that Union
or its members. The present determination is limited
to the particular controversy which gave rise to the
proceedings.
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:
1. Employees of the Employer who are currently
represented by Local Union No. 91, United Associa-
tion of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry, are entitled to the work of
driving the pickup truck owned by Brown Mechani-
cal Contractors, Inc., at the Q-BOP construction site
of U.S. Steel, Fairfield, Alabama, facility, in connec-
tion with the handling of pipefitter materials within
the construction site.
2. Local No. 612, Teamsters, Chauffeurs, Ware-'
housemen and Helpers, 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 work to
its members or employees whom it represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute, the labor organiza-
tion listed in the preceding paragraph shall notify the
Regional Director for Region 10, in writing, whether
or not it will refrain from forcing or requiring Brown
Mechanical Contractors, Inc., by means proscribed
by Section 8(b)(4)(D) of the Act, to assign the work
awarded above in a manner inconsistent with the
above determination.