Teamsters Local Union, No. 5

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1216 (N.L.R.B. 1964)

1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sum , I conclude that Murray was concerned about the deprivation by the out-
of-towners of jobs in Trenton for other laborers who had local residences and was
particularly aroused over this circumstance by the fact that these out-of-towners
were somehow connected with Rowe whom he disliked. His demand for the re-
moval of these persons was prompted by his resentment over the layoff by Rowe
of two local employees on October 1. I find that when Murray for these reasons
called the work stoppage of October 2 he did cause or attempted to cause a layoff
or discharge of the six employees named in the complaint. I do not, however, find
that any of the reasons which impelled his action were proscribed by the Act. Unlike
the precedents relied upon by the General Counsel,6 this case does not involve the
causation of employee terminations for reasons pertaining to union membership
or for any other reason which, had an employer been motivated thereby to discharge
employees, would have resulted in conduct violative of Section 8(a)(3) of the Act.
The Union's purpose in demanding the removal of the out-of-towners is more akin
to the reason asserted by the unions in those cases where with statutory impunity
they insisted on preferment in employment of persons with local residences.?
CONCLUSIONS OF LAW
1. McCloskey Construction Corp. is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 369, International Hod Carriers, Building and Common Laborers Union
of America, AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
3. The allegations of the complaint that the Union has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(b)(2) and,1(A) of the
Act have not been sustained.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
6 Animated Displays Company, 137 NLRB 999; Ace Electric Co., 135 NLRB 498.
4 Bricklayers, Masons and Plasterers' International Union, etc . (Plaza Builders, Incorpo-
rated ), 134 NLRB 751; Bricklayers, Masons and Plasters' International Union, Local
No. 2 (Wilputte Coke Oven Division, Allied Chemical Corporation), 135 NLRB 323.
Teamsters Local Union , No. 5, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America , Ind. and Hart-McCowan Foundation
Co., Inc. Case No. 15-CD-39. June 30, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the National Labor
Relations Act, following a charge filed on December 9, 1963, by Hart-
McCowan Foundation Co., Inc., herein called Hart-McCowan or the
Employer, alleging that Teamsters Local Union No. 5, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, Ind., herein called Teamsters or Respondent,
had violated Section 8(b) (4) (D) of the Act. A duly scheduled hear-
ing was held before Hearing Officer Fred A. Lewis on March 10, 1964.
All parties appearing were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce evidence bearing
on the issues. The rulings made at the hearing are free from prejudi-
147 NLRB No. 158.
TEAMSTERS LOCAL UNION NO. 5, ETC. 1217
cial error and are hereby affirmed. Briefs were filed by the Employer
and by International Union of Operating Engineers, Local Union
No. 406, herein called Operating Engineers, who appeared at the hear-
ing as a party to the dispute.
Upon the entire record in the case, the Board I makes the following
findings :
I. THE BUSINESS OF THE EMPLOYER
Hart-McCowan, a Mississippi corporation with its main office at.
Jackson, Mississippi, is engaged in the construction of concrete build-
ing foundations in the States of Louisiana, Alabama, and Mississippi.
During the 12 months immediately preceding the filing of the charge
herein, its business outside the State of Mississippi exceeded $70,000.
We find that the Employer is engaged in commerce within the mean-
ing of the Act, and that it will effectuate the policies of the Act to
assert jurisdiction herein.
H. THE LABOR ORGANIZATIONS INVOLVED
The Teamsters and the Operating Engineers are labor organizations,
within the meaning of the Act.
III. THE DISPUTE
A. The work at issue
The,work performed by the Employer in laying building founda-
tions consists of digging a number of holes approximately 12 feet in
depth by means of power-driven drilling rigs, and filling the holes
with concrete. The particular drilling equipment employed by Hart
McCowan.is called a bell-bottom rig because it. is capable of construct-
ing holes which are bell-shaped at the bottom. A bell-bottom drilling.
rig consists of drilling apparatus 8 feet in width at the base, with a
boom extending upward between 35 and 40 feet. It is mounted on
the rear of a rubber-tired, flat-bed trailer to facilitate movement of the
equipment between drilling sites. The drilling rig weighs approxi-
mately 15,000 pounds excluding the weight of the tractor which hauls.
the trailer.
No dispute exists concerning the Operating Engineers' right to,
operate the drilling machinery but, rather, the present controversy
involves competing claims by the Teamsters and Operating Engineers.
over driving the rigs between drilling spots within the construction
site.
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its.
powers in connection with this case to a three-member panel [ Members Leedom ,Fanning,
and Brown].
7 5 6-2 3 6-6 5-v o l. 14 7-- 7 8
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B Evidence of conduct violative of Section 8(b) (4) (D)
Petrocon, Inc, a general contractor from Houston, Texas, entered
into a contract on November 9, 1963, to build a liquid oxygen-nitrogen
plant for Big Three Welding & Supply Company at Baton Rouge,
Louisiana On December 2, Petrocon subcontracted to Hart-McCowan
the job of laying a foundation for the building The subcontract
involved the drilling of approximately 97 holes in an area of 150 feet
by 175 feet, and filling the holes with concrete
Hart-McCowan began work on the job on the morning of Decem-
ber 5 Shortly after the work commenced, Boeta, a Teamster steward
employed by Petrocon, approached Ashley, the operator of the Em-
ployer's drilling rig, and demanded that three Teamster members be
hired by the Employer to drive the rigs Ashley refused, saying that
the Employer did not use Teamster members because each operator
moved his own rig Voohries, the Employer 's district manager, was
contacted and arrived at the construction site to meet with Boeta
who repeated the Teamsters demand Voohries thereupon rejected
the demand, ordered Ashley to proceed with the drilling , and returned
to his office Boeta thereafter approached Gillis, Petrocon's project
superintendent, and told him of the Teamsters demand and Voohries'
rejection
Later that morning, Voohries was again called to the jobsite On
this occasion , Boeta stated that the Employer would be required to
employ only one Teamster member as a driver and one warehouseman
to receive materials Voohries agreed to hire a warehouseman, but
advised Boeta that he did not intend to employ a driver Boeta re-
plied that he would have to put up a picket line if the Employer would
not agree to the Teamsters demands Thereafter, about noon on the
same date, Boeta was observed carrying a picket sign which read
"Hart-McCowan Foundation Company Unfair to Local 5 " As a
result of the picketing , the Employer 's employees and the employees
of Petrocon ceased working and did not return to work until a Federal
district court enjoined the picketing on January 17, 1964 Golsan,
assistant manager of two contractor associations in Baton Rouge,
testified that he conferred with officers of the Teamsters, during the
period of the picketing and was advised by them that, in order to
resolve the dispute, Teamster members would have to drive the drill-
ing rigs
C Contentions of the parties
The Operating Engineers claims that its members are entitled to
the disputed work in view of their extensive skill and experience, the
Employer's assignment, and the fact that such work is customarily
performed by Operating Engineers as a matter of industry and area
practice
TEAMSTERS LOCAL UNION NO. 5, ETC. 1219
The Employer takes the position that the Teamsters members are
not qualified to drive the rigs, and that to permit them to do so would
expose themselves, others, and the equipment to undue danger. The
Employer further asserts that to allow Teamsters members to drive the
rigs would be inefficient and uneconomical due to the long periods of
drilling operations during which the driver would be idle.
The Respondent was duly served in advance to the hearing with, and
acknowledged receipt of, a notice of hearing, an order changing place
of hearing, and a copy of the charge in which it was specifically desig-
nated as the Respondent, but it neither appeared at the hearing nor
filed a brief with the Board. We find that where, as here, all parties
to the dispute are served with notice of hearing and afforded oppor-
tunity to participate and to introduce evidence, the purposes intended
in hearings under Section 10 (k) are adequately served 2 Accordingly,
we shall proceed to make a determination on the basis of the uncon-
tradicted evidence on the record before us.
D. Applicability of the statute
Section 10(k) of the Act empowers the Board to determine the dis-
pute out of which a Section 8(b) (4) (D) charge has arisen. How-
ever, before. the Board proceeds w'ith a determination of dispute, it
must be satisfied that there is reasonable cause to believe that Section
8 (b)^(4) (D) has been violated.
As hereinabove set forth, the record'elearly shows that the Respond-
ent picketed the jobsite and thereby succeeded in inducing a work
stoppage for the purpose of forcing the Employer to assign the work
in dispute to the Teamsters instead of the Operating Engineers.
Accordingly, we find, on the entire record, that there. is reasonable
cause to believe that a violation of Section 8(b) (4) (D) has occurred
K afid'that the work dispute is properly-before 'the Board for determina-
tion under Section 10 (k) of the Act.
E. Merits of the dispute
As we stated in the J. A. Jones case,3 we will, pursuant to the Su-
preme Court's CBS decision,' determine in each case presented for
resolution under Section 10(k) of the Act, the appropriate assign-
ment of disputed work only after taking into account and balancing
.all relevant factors. The following factors are asserted in support of
the claims of the parties herein :
2 Local 1 , Bricklayers , Masons and Plasterers International Union of America, APL_
.010, et al . ( Consolidated Engineering Co., Inc.), 141 NLRB 119, 123, footnote 3.
a International Association of Machinists, Lodge No. 1743 (J. A. Jones Construction
Company ), 135 NLRB 1402.
"N.L.R. B. v. Radio & Television Broadcast Engineers Union, Local 1 $12,'IBEW ( Colum-
.bia Broadcasting System ), 364 U.S. 573.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Certification ; contract ; and Employer 's assignment
Neither the Teamsters nor the Operating Engineers has been certi-
fied by the Board as representative of any employees of the Employer.
Although both labor organizations have contractual relations with
the Baton Rouge chapters of the Associated General Contractors of
America and the Industrial Contractors Association, under which con-
tracts Petrocon and Hart-McCowan each agreed to operate, the con-
tracts are of little practical assistance in determining this dispute
since neither contract specifically covers the jurisdiction of the work
involved herein. However, as mentioned above, the Employer has
assigned the work of driving the rigs to employees represented by
the Operating Engineers.
2. Work skills
The record evidence shows that special skill and experience are, nec-
essary in order to drive a bell -bottom rig. Thus, it appears that both
by reason of the weight distribution and the height of the drilling
boom, and the uneven terrain of a construction site, a rig is susceptible
of being ^ easily tilted and. damaged . Ashley, the employee assigned
by the Employer to operate and drive the rig, testified that it would
take approximately 5 years' training to operate the rig. ' His testimony
was supported by the Employer's district manager, Voohries, who
testified that a driver has got "... to be able to know what that rig
can do, how to handle it, and an operator will sense, he can feel that
rig the minute it begins to tilt and he's got to know how to handle it."
He further testified that members of the Operating Engineers possess.
the requisite skills, but that he knows of no Teamster members who
have the requisite skill and experience to handle the rig. - There is no
showing on the record that any Teamster members possess the ability
to drive a bell-bottom drilling rig.
3. Employer ;. industry; and area practice
The driver and operator of the bell -bottom rig in. the instant case
testified that in his 12 years as an operator he has never seen a Teamster
member driving similar equipment for any contractor . Brignac, busi-
ness agent for the Operating Engineers in the State of Louisiana,
testified that he has seen similar pieces of equipment belonging to other
contractors being driven by members of the Operating Engineers, and
that his union has, when requested by Employers in the construction
industry, referred many of its members for such work.
With respect to Baton Rouge and the immediate vicinity , Manager'
Voohries testified that he knew of competitors who used similar rigs
and who also employed members of the Operating Engineers to.drive
TEAMSTERS LOCAL UNION NO. ' 5, ETC. 1221
and operate their equipment. As for the Employer, Voohries stated
that the bell-bottom rig is regarded as a specialized piece of equipment
and not primarily as a truck and, therefore, it has never permitted a
Teamsters member to drive the rig. He further explained that on two
occasions, involving jobs of only 1-day duration, on request of the
general contractor the Employer agreed to hire Teamsters members
as drivers, but refused to let them touch the rig. On one of the two
-occasions, the general contractor reimbursed the Employer the amount
it had paid to the idle driver. Thus, all of the record evidence shows
that within the industry and the Baton Rouge area operating engi-
neers traditionally perform the disputed work and, further, that the
'.Employer uses members of the Operating Engineers exclusively.
4. Efficiency and economy of operation
Ashley testified that the tractor that moves the rig is idle most of
the time; that in an 8-hour day, no more than 15 to 20 minutes is spent
in moving the rig from one location to another. Voohries added that in
1 day the rig is not usually moved more than a few hundred feet be-
cause the drilling machinery may be operating in one spot for as much
as 3 or 4 hours at a time, and the next drilling spot may be only 10
feet away. Thus, the evidence demonstrates that it is substantially
more efficient and economical to assign the rig operator the work of
driving the rig between drilling spots rather than to require the
Employer to hire a separate employee each day to perform a few
:minute's work.
F. Conclusions as to the merits of the dispute
On the basis of the record as a whole, and on appraisal of the rele-
vant considerations, including the Employer's assignment, the operat-
ing engineers' skill and experience to perform the work, the custom
'in the industry, and the substantial economy effectuated, we shall
determine the existing jurisdictional dispute by awarding the work of
-driving the bell-bottom drilling rigs to the employees of the Employer
represented by the Operating Engineers rather than to employees
:represented by the Teamsters.
The Scope of the Determination
In its brief, the Operating Engineers urges the Board to apply the
-instant determination not only to the dispute herein but also to future
operations of the bell-bottom rigs in this geographical area. In sup-
port, it points out that although the Petrocon project has long since
been completed, Hart-McCowan has awarded the identical work in dis-
1222 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD
pute herein to operating engineers on two current projects in the
Baton Rouge area , and that a third job has been planned . Thus, the.
Operating Engineers argues, particularly in view of the Teamsters"
failure to defend its actions herein, that there is no indication that the,
Respondent will not picket the Employer 's current or' future job,
projects in support of identical demands as were present in the instant
proceeding.
The Board has previously decided not to restrict the scope of its de-
termination to a specific jobsite if there is evidence that similar dis-
putes may occur in the future .' Accordingly, in view of the evidence
before us, we hold that the determination in this case applies , not only
to the job in which the dispute arose, but to all similar work done or
to be done by Hart-MeCowan on any other projects in the Baton
Rouge vicinity, but not to other employers not parties herein. Ins
making this determination , we are awarding the disputed work to em-
ployees represented by the Operating Engineers , but not to that labor
organization or its members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing, and upon the entire record in this-
case, the Board makes the following Determination of Dispute pur-
suant to Section 10 (k) of the Act :
1. Employees engaged as bell-bottom rig drivers and operators, cur=
rently represented by the International Union of Operating Engi-
neers, Local No. 406, are entitled to drive and operate the bell-bottom
rig for Hart-McCowan Foundation Co., Inc., at the Petrocon project,.
Baton Rouge, Louisiana, and at other construction projects in the
vicinity of Baton Rouge, Louisiana.
2. Teamsters Local Union No. 5, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Ind., is not and has not been entitled to force or require Hart-
McCowan to assign Teamster members the work. of driving belt-
bottom rigs.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Teamsters Local No. 5, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer:
ica, Ind., shall notify the Regional Director for the Fifteenth Region,
in writing, whether or not it will refrain from forcing or requiring
Hart-McCowan, by means proscribed by Section 8(b) (4) (D), to as-
sign the work in dispute to its members rather than the employees of
the Employer, represented by the Operating Engineers.
5 Plumbers 6 Fitters Local 761 , etc. (Matt J. Zaich Construction Co.), 144 NLRB*
133; ; International Association of Bridge, Structural and Ornamental Iron Workers, Local
474; et at.. (Structural Concrete Corporation ), 146 NLRB 1435.