Teamsters, Local Union No. 920

National Labor Relations Board - Board Decisions

Oct 30, 1972

199 N.L.R.B. 1171 (N.L.R.B. 1972)

TEAMSTERS , LOCAL UNION NO. 920
Teamsters, Chauffeurs, Warehousemen, Industrial &
Allied Workers and Helpers, Local Union No. 920,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America and Babcock & Wilcox , B. & W. Construc-
tion Company and Laborers International Union of
North America, AFL-CIO, Local 353 and Interna-
tional Association of Heat & Frost Insulators and
Asbestos Workers, AFL-CIO, Local 112 . Case 23-
CD-289
October 30, 1972
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , following
charges filed by Babcock & Wilcox and its subsidiary,
B. & W. Construction Company (Employer), alleging
that Teamsters , Chauffeurs, Warehousemen , Indus-
trial & Allied Workers and Helpers , Local Union No.
920, affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers
of America (Teamsters), 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
Teamsters rather than to employees represented by
Laborers International Union of North America,
AFL-CIO, Local 853 (Laborers). The International
Association of Heat & Frost Insulators and Asbestos
Workers , Local 112, AFL-CIO (Asbestos Workers)
also appeared at the hearing and made claim to the
type of work involved herein.'
Pursuant to notice , a hearing was held before
Hearing Officer Michael Dunn on July 19, and 21,
1972. All parties 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, briefs were filed on
behalf of the Employer, Teamsters , and Laborers.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hear-
1 The Asbestos Workers, prior to the heanng and poor to the Employer's
assignment of the disputed work to the laborers, claimed the work in dispute
if the work was not awarded to the laborers. At the hearing , they made an
unqualified claim to such work but offered no evidence to support their
claim . Accordingly, we hereby dismiss the Asbestos Workers claim as being
without substance
1171
ing Officer made at the hearing and finds that they are
free from prejudicial error? They are hereby affirmed.
1. THE BUSINESS OF THE COMPANY
The parties stipulated, and we find, that the
Employer, Babcock & Wilcox, is a New Jersey corpo-
ration engaged in the manufacture and sale of steam
generating units for power plants with its general of-
fice in New York City, New York, and that its general
construction subsidiary, B. & W. Construction Com-
pany, is an operating division of Babcock & Wilcox
engaged in the business of general construction in
various cities and States in the United States. During
the past 12 months, Babcock & Wilcox subsidiary
purchased goods and materials in excess of $50,000
from points outside the State of Texas which were
shipped directly to their facilities within the State of
Texas. The parties stipulated, and we find, that the
Employer is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and it will effectuate
the policies of the Act to assert jurisdiction herein.
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Teamsters, Laborers, and Asbestos Workers are labor
organizations within the meaning of Section 2(5) of
the Act.
III THE DISPUTE
A. Background and Facts of Dispute
Babcock & Wilcox is subcontractor to Mid-Val-
ley Construction, which is engaged in constructing an
additional power unit for the Gulf States Utility Co.,
located in Bridge City, Texas. Babcock & Wilcox,
under its contract, furnishes boiler and steam generat-
ing facilities which were installed by its construction
subsidiary, B. & W. Construction Company. Babcock
& Wilcox has national agreements with all three un-
ions, parties herein.'
2 The Laborers at the heanng moved by way of objection that the proceed-
ings be dismissed as moot since all the work in question herein has been
completed . The Hearing Officer referred the matter to the Board We hereby
deny such motion since there is no conclusive proof that the same conditions
that prevailed herein could not reoccur.
The Laborers also offered proof that the employees represented by the
Teamsters were predominately white, while the employees represented by the
Laborers are black. As there was no offer by the Laborers to prove that
assignment was based on reasons of racial discrimination , and since the
Employer stated that no such element entered into its assignment , the Hear-
ing Officer 's rejection of the proffered evidence is hereby approved.
These national agreements generally provide that the Employer will
abide by the terms and conditions of employment required by the local
unions and their employers in the area where the work is to be performed.
In addition , these national agreements provide for procedures to be used in
the settlement of jurisdictional disputes , and further provide that there shall
Continued
199 NLRB No. 146
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 2, 1972,4 a railroad boxcar full of insula-
tion material was spotted on a railroad spur, within
the building site, to be unloaded and placed in B. &
W.'s storage shed used primarily for insulation mate-
rial and located close to the railroad spur. This shed
was a temporary structure erected to protect the mate-
rial from the elements and from which the material
was moved to the place of installation. The shed was
at a separate location from a central warehouse where
numerous materials were stored prior to use in the
construction on the facility being built. On May 2, the
Teamsters and Laborers claimed the unloading of the
boxcar and placing of the material in the storage shed.
On May 3, there was a meeting between James L.
Snow, Employer's site construction manager, and the
Teamsters and Laborers Unions. At this meeting, the
Teamsters claimed the work if it was not awarded to
the asbestos workers, the Asbestos Workers claimed
the work if it was not awarded to the laborers, and the
Laborers claimed the work without condition. On
May 5 there was another meeting between all parties
involved in the dispute on the jobsite. At this latter
meeting all three unions claimed the unloading work
and requested Snow to hold off assignment of the
work until May 9, in order for the three unions to get
in touch with their respective International represent-
atives and see if the matter could be resolved. Snow
agreed to this postponement. On or about May 5, the
Employer sent telegrams to the Internationals in-
volved and to the Building Trades representative in
Washington, D.C.5 On May 9, Snow, not having re-
ceived any replies from the Internationals concerned,
awarded the work in question to the laborers. On that
day the laborers started to perform the work of un-
loading at 8:30 a.m. About 11:30 a.m. the Teamsters
employed by B. & W. walked off the job, and 8 to 10
employees employed by Mid-Valley also walked off
the job. About 2 p.m. that day, the Teamsters estab-
lished a picket line at the entrance gate with Team-
sters members carrying a picket sign with the message
"On strike-unfair to me."6 On May 9, all crafts on
be no work stoppage or stake by any of the parties to the dispute'dunng the
time the settlement procedure is in process.
The local agreement between the Sabine Area Construction Committee
(Employers) and the Unions involved herein , which was adhered to by B &
W., also provides for a procedure to be followed in case of jurisdictional
disputes together with a no work stoppage clause . In addition , the Sabine
agreement provides that both parties shall respect International junsdichonal
agreements . The dispute was in fact presented to a panel of this committee
which , in turn , recommended that the disputants , Teamsters and Laborers,
refer the matter to their Internationals.
4 All dates herein are for the year 1972 unless otherwise specified
3 The Employer never received any replies to its telegrams . The record is
not clear as to whether the unions at the same time consulted with their
Internationals . However, there is testimony in the record that the Teamsters
and Laborers did at some tune submit the question to their Internationals
and received no reply
6 Teamsters representatives testified that the picketing was established
solely because of the Employer's assignment of the work to the laborers
the project, whether employees of Mid-Valley or B. &
W., continued working until the end of the workday.
However, on May 10, all crafts, including laborers by
whomever employed, approximately 235 employees,
honored the picket line. The same thing happened on
May 11 as the picketing continued. On May 12, the
laborers returned to work as did all other crafts, ex-
cept the teamsters. On May 12, all of the parties ex-
cept the Asbestos Workers met in Beaumont, Texas,
at the office of the Contractors Association Sabine
Area' (CASA) in an attempt to bring about a settle-
ment of the dispute. On May 18, Snow, the Teamsters,
and the Laborers met again at the CASA offices. Both
unions reiterated their claim to the work and no reso-
lution of the problem was reached. On May 19, Snow
met with representatives of the Teamsters, Laborers,
Asbestos Workers, Sabine Area Building Trades
Council, CASA officials, representatives of Mid-Val-
ley, and B. & W. No settlement of the dispute was
arrived at since all three unions continued to claim the
disputed work.
Following this meeting, Snow, through the inter-
cession of the representatives of unions working on
the job but not involved in the dispute, was assured
by the Teamsters business manager, Peveto, that B. &
W. would be given a letter of assurance that there
would be no more jurisdictional shutdowns on the
Gulf States job. However, when Snow went to pick up
the letter at Peveto's office, he noted that it did not
contain the assurances that Peveto had agreed to, and
thereupon questioned the contents of the letter. Peve-
to was not then available, and so Joyner, employed by
the Southern Conference of Teamsters and president
of the Teamsters local involved herein, was contacted.
Joyner refused to permit the issuance of the letter and,
in fact, would not authorize any letter.
C. V: Ball, the Mid-Valley project superintend-
ent, by memorandum informed Snow, on May 23,
that Joyner had called and stated he would allow B.
& W. to unload the five boxcars but thereafter, if the
assignment was not made to the teamsters on any
future boxcars received, would put a picket on the
job.'
A trailer truck arrived at the job the morning of
May 31 loaded with insulation materials. The Em-
ployer assigned laborers to unload the trailer. At or
about 12 noon, 3 teamsters employed by B. & W. and
8 or 10 employed by Mid-Valley walked off the job.
The following morning, June 1, the teamsters ap-
peared for work, worked about 1- 1/2 hours, and then
again walked off the job. The reason for the walkout
was the fact that a boxcar loaded with refractory was
r See In. 3. In addition to Teamsters and Laborers, other craft representa-
tives of employees employed by Mid-Valley and B & W. attended.
8 By May 23, all five boxcars had been unloaded by the Laborers
TEAMSTERS , LOCAL UNION NO. 920 1173
being unloaded by laborers as directed by the Em-
ployer.9
The Teamsters on June 2 established another
picket line carrying signs with the wording "On strike,
unfair to me" which was the same wording as on the
signs carried during the previous times of picketing.
As a result of the Teamsters picketing, about 75 per-
cent of the other crafts on the job refused to cross the
picket line. The Teamsters picketed again on June 5,
and again about 75 percent of the other crafts hon-
ored the picket line. The Teamsters ceased picketing
after June 5.
B. The Work in Dispute
This dispute concerns the assignment of the
work involved in unloading and moving of insulation
materials, including refractory material, from boxcars
and trailers, from the initial conveyance, whether rail-
road boxcars or trucks or trailers, to a temporary stor-
age shed, as distinguished from a central warehouse,
on a construction job project known as Gulf States
Utility Company, Sabine Station Plant, Bridge City,
Texas.
C. Contentions of the Parties
The Employer and the Laborers take the posi-
tions that the Employer' s assignment of the disputed
work was justified by the area practice respecting sim-
ilar work, that no special skill is required other than
the ability to perform hard manual work, and that the
work would be performed more economically and
efficiently when performed by the employees of the
Employer represented by the Laborers. The Laborers
further contends that a national jurisdictional agree-
ment between the Laborers and Teamsters Interna-
tionals awards this disputed work to the Laborers,10
and that the Teamsters in the instant case violated a
provision of that agreement prohibiting stoppages of
work on the job in the event of a dispute.
The Teamsters, on the other hand, contends that
its members are entitled to perform all unloading
from the initial conveyance (boxcars, trucks, or trail-
er) to the construction site ." In the main, however, the
Teamsters claim to the disputed work is based on area
practice and on a jurisdictional agreement entered
into between the Teamsters and Laborers Interna-
tionals on April 27, 1947.
Both the Laborers and the Teamsters testified
9 Refractory is a high temperature cement and in a sense is insulation
material which is applied by bricklayers.
10 This agreement is discussed infra.
11 This overall contention was vigorously protested at the hearing herein
wherein testimony was adduced to the effect that several crafts , such as
electricians , pipefitters , bricklayers, and asbestos workers, all perform un-
loading.
that their Internationals had been requested to make
a determination, and that at the time of the hearing
herein no such determination had been made. The
Employer, likewise, requested the two Internationals
without success to make such a determination. In
view of the latter, the Employer urges that such deter-
mination be made by the Board.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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.
The Teamsters work stoppages and picketing on
May 9, 10, 11, 12, and 21 and June 2, which resulted
in refusals of a large precentage of other crafts em-
ployed by Mid-Valley and B. & W. to cross the picket
lines, was for the avowed purpose of protesting the
Employer's assignment of the disputed work to the
Laborers. In fact, the Teamsters representatives testi-
fied that they were not contending that the picketing
was for any purpose other than to protest the work
assignment to the Laborers. Accordingly, we there-
fore find that there is reasonable cause to believe that
a violation of Section 8(b)(4)(D) has occurred with
respect to the unloading of insulation material from
railroad boxcars and trailers at and into temporary
storage sheds for such materials on a construction
jobsite, as distinguished from a central warehouse re-
ceiving various materials, and that only the dispute
concerning this work is properly before the Board for
determination.
We further find that the parties have not adjusted
the dispute and that if they had an agreed-upon meth-
od of adjusting it voluntarily, it was nullified by the
conduct of the parties. The Teamsters and Laborers
Internationals entered into an agreement on April 22,
1947, which purportedly established the jurisdictional
lines to be followed by members of both unions as to
loading and unloading of materials on construction
projects. The Teamsters and Laborers, disputants
herein, both claim that under their interpretation of
the agreement each is entitled to perform the disputed
work. This agreement, however, does provide a meth-
od for settlement of a dispute whenever it arises on a
job, pending which settlement there is to be no work
stoppage.12 While the disputants followed the proce-
dure provided for in the agreement, not only did the
12 The agreement provides ". in the event that any dispute arises on any
job, the said dispute shall be immediately referred to the local representative
of the Teamsters' and Laborers ' Unions involved. Failure on their part,
within a period of three days , to reach a solution , it shall be referred to the
International Representative in the district or to men assigned by the Interna-
tional offices . Failure on their part to arrive at a solution within a period of
ten days, the subject matter shall be referred to the General Presidents of the
two International Unions involved During the period of time these attempts
are being made for solution, there shall be no stoppage of work on the job."
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters not abide by the no work stoppage proviso,
but the result of these actions taken by the local repre-
sentatives of the disputant unions, which reached up
to the International presidents of the Internationals
involved, was nil. The Employer, while not bound by
the aforesaid agreement, did request the Internation-
als to intervene and settle the dispute. The Employer's
request was ignored.
We have long held that the purpose of the provi-
sions of Section 10(k) dealing with agreed-upon meth-
ods for voluntary adjustment of disputes is to
encourage parties to settle such disputes among them-
selves.13 However, when the parties fail to settle a
dispute among themselves, Section 10(k) not only em-
powers, but directs, the Board to determine the dis-
pute in the absence of an agreed-upon method for
voluntary adjustment.14 Board action is particularly
appropriate where, as here, the disputant unions have
failed to arrive at a voluntary settlement and where
the employer, while not a signatory to the agreement,
in good faith sought a settlement through the offices
of the Internationals' presidents and, receiving none,
resorted to the Board.
Accordingly, we find the dispute concerning the
unloading of insulation materials, including refracto-
ry materials, is properly before the Board for deter-
mination.
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 of all relevant factors. The
following factors are relevant in determining the dis-
pute herein:
1. Board certifications
The parties refused to stipulate at the hearing
that no Board certification has issued covering any of
the employees involved, but no party sought to urge
a certification in the proceeding. Thus, this factor
does not favor either the Teamsters or the Laborers.
2. Collective-bargaining agreements
The contracts between the Employer and the
Teamsters and Laborers do not spell out the jurisdic-
tion of the employees covered under them. Therefore,
this factor does not favor either union.
13 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Hers of America, Local # 236 (Wm. F. Traylor), 97 NLRB 1003, 1006.
1 All parties to the dispute requested Board action in view of the failure
of the two Internationals involved to take any action.
3. Custom and practice in the industry
The Employer testified that, before it made its
assignment of the disputed work, it contacted the
Construction Association of the Sabine area and was
advised the work was laborers work. In addition, the
Employer contacted various contractors in the area
and was assured the type of work disputed was the
work of Laborers.
The Laborers representatives testified to actual
cases going back to 1947 where the disputed work was
performed by laborers.
The Teamsters placed in evidence nine unsworn
statements of questionable probative value alleging
that the disputed work had previously been per-
formed by teamsters. They also adduced testimony of
witnesses who described certain instances where
teamsters were alleged to have performed the type of
work in dispute. However, this testimony in the main
did not distinguish between a central warehouse and
a temporary storage shed on the site of the construc-
tion project.
In evaluating all of the testimony and evidence
offered by the parties, we must conclude that the evi-
dence adduced at the hearing does not clearly estab-
lish that the area practice favors either of the unions
involved.
4. Relative skills, efficiency , and economy of
operations
No special training is required for the work other
than physical strength . It is also clear that the question
of efficiency is not a factor favoring either union.
However, the Employer is satisfied with the produc-
tivity, economy , and efficiency of its laborers, and
desires to continue assigning such work to them.
Conclusion
Upon the entire record in this proceeding, after
full consideration of the relevant factors, particularly
the Employer's assignment, the lack of special re-
quired skills, and the efficiency and economy of oper-
ations, we conclude that the laborers employed by the
Employer who are represented by Laborers Local 853
are entitled to the work in question, and we shall
determine the dispute in their favor. In making this
determination, we award the work to the employees
of the Employer who are represented by Laborers 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
TEAMSTERS, LOCAL UNION NO. 920 1175
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
1. Employees of Babcock & Wilcox, and its sub-
sidiary, B. & W. Construction Company, who are cur-
rently represented by Local 853, Laborers Inter-
national Union of North America, AFL-CIO, are en-
titled to perform the initial unloading and moving of
insulation materials, including refractory materials,
from the initial conveyance, whether railroad boxcars,
trucks, or trailers, to a temporary storage shed, as
distinguished from a central warehouse, on a con-
struction project known as Gulf States Utility Compa-
ny, Sabine Station Plant, Bridge City, Texas.
2. Teamsters, Chauffeurs, Warehousemen, In-
dustrial & Allied Workers and Helpers, Local Union
No. 920, affiliated with International Brotherhood of
Teamsters, 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 Bab-
cock & Wilcox, B. & W. Construction Company, to
assign work to teamsters or warehousemen or helpers
represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Teamsters, Chauf-
feurs, Warehousemen, Industrial & Allied Workers
and Helpers, Local Union 920, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, shall notify
the Regional Director for Region 23, in writing,
whether or not it will refrain from forcing or requiring
Babcock & Wilcox or its subsidiary B. & W. Con-
struction Company, by means proscribed by Section
8(b)(4)(D), to assign the disputed work to employees
it represents rather than to employees represented by
the Laborers.