INTERNATIONAL UNION OF TEAMSTERS, LOCAL 179 (ROBERTS PIPELINE, INC.)

National Labor Relations Board - Board Decisions

Aug 5, 2014

361 N.L.R.B. 89 (N.L.R.B. 2014)

TEAMSTERS LOCAL 179 (ROBERTS PIPELINE, INC.) 89
International Union of Teamsters, Local 179 and
Roberts Pipeline, Inc. and Laborers Interna-
tional Union of North America and Internation-
al Union of Operating Engineers. Case 25–CD–
092655
August 5, 2014
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
Roberts Pipeline, Inc. (the Employer) filed a charge on
November 6, 2012, alleging that the International Union
of Teamsters, Local 179 (Teamsters Local 179) violated
Section 8(b)(4)(D) of the Act by engaging in proscribed
activity with an object of forcing the Employer to assign
certain work to employees it represents rather than to
employees represented by Laborers International Union
of North America (Laborers) or International Union of
Operating Engineers (Operating Engineers). A hearing
was held on April 17, 2013, before Hearing Officer Re-
bekah Ramirez.1
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, an Indiana corporation with headquar-
ters in Sulphur Springs, Indiana, stipulated that, during
the past year, it provided services valued in excess of
$50,000 to customers located outside the State of Indi-
ana. We find that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
We further find, consistent with the record and prior
Board decisions, that Teamsters Local 179, Laborers, and
Operating Engineers are labor organizations within the
meaning of Section 2(5) of the Act.2
1 Only the Employer appeared at the hearing and no briefs were
filed.
2 See, e.g., Teamsters Local 179, 334 NLRB 362, 362 (2001); St.
John’s Hospital, 222 NLRB 1150, 1152, 1155 (1976) (Laborers), enf.
granted in part, denied in part on other grounds 557 F.2d 1368 (10th
Cir. 1977); Manning, Maxwell & Moore, Inc., 143 NLRB 5, 6 (1963),
enfd. 324 F.2d 857 (5th Cir. 1963).
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer builds and maintains oil and natural gas
pipelines at locations throughout the Midwest. At any of
those jobsites, the Employer’s typical work crew consists
of four laborers, an operator, an oiler, and a foreman.
The Employer is a member of the Distribution Contrac-
tors Association (DCA), which bargains for national col-
lective-bargaining agreements with several unions on
behalf of its members. The Employer has been signatory
to contracts with Laborers to represent its laborers, and
with Operating Engineers to represent its operators and
oilers. These Unions have represented employees of the
Employer for at least 30 years.
The employees represented by Laborers drive pickup
trucks as needed in the course of their duties to transport
material, equipment, and workers to, from, and within
jobsites. Employees represented by Operating Engineers
drive lowboy tractor-trailer rigs to transport heavy
equipment; they load, unload, fuel, and operate the heavy
equipment; and they drive pickup trucks as needed to
acquire fuel for the heavy equipment. The Employer
requires all of its drivers to maintain the licenses and
endorsements required for the driving work they per-
form.
The Employer has never been signatory to a national
agreement with the International Brotherhood of Team-
sters and has never been party to any agreement with
Teamsters Local 179. However, in 2010, the Employer
had a project-only agreement with a different Teamsters
local. On that job, the drivers represented by the other
Teamsters local were idle for approximately half of their
worktime, and they did not load and unload heavy
equipment from the lowboys.
During the summer of 2012, at a jobsite in Will Coun-
ty, Illinois, an organizer from Teamsters Local 179 asked
Employer Superintendent Mark Decker to discuss plac-
ing employees represented by Teamsters Local 179 on
the Employer’s jobsites. Decker refused. Then, on 2
successive days in November 2012, Teamsters Local 179
picketed seven jobsites in Kane, Kendall, and Will Coun-
ties, Illinois, over driving work that the Employer had
assigned to employees represented by Laborers and Op-
erating Engineers. The picketers carried signs reading
“Teamsters Local 179 On Strike Against Roberts Pipe-
line” at each of the seven jobsites. The picketing caused
the cessation of work at all seven jobsites because em-
ployees represented by Laborers and Operating Engi-
neers would not cross the Teamsters’ picket line.
361 NLRB No. 13

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 90
B. Work in Dispute
We find, based on the record and as set forth in the no-
tice of hearing, that the work in dispute is:
The driving work including but not limited to trucking,
towing, pulling and hauling of material, equipment, and
workers, including compressors, on flat-bed trucks,
lowboys, stake-bed trucks, dump trucks and pickup
trucks as well as fueling of equipment at jobsites with-
in Kane, Kendall and Will Counties in the State of Illi-
nois.
C. Contentions of the Parties
The Employer contends that the work in dispute
should be awarded to Laborers and Operating Engineers.
It argues that existing collective-bargaining agreements
to which it is signatory, as well as its preference, current
assignment, and long-established past practice support
this award. It asserts that agreements between more than
100 pipeline companies represented by the DCA, Labor-
ers, and Operating Engineers show that industry practice
supports its position. It further asserts that its experience
with Teamsters-represented employees under a project-
only agreement demonstrates that assigning those em-
ployees to perform the disputed work creates gross inef-
ficiencies when compared to the present arrangement,
because, under the present arrangement, employees rep-
resented by Laborers and Operating Engineers produc-
tively perform other work when driving is not required.
Finally, it asserts that Teamsters Local 179’s unlawful
picketing has caused it severe economic damage and
accordingly requests that the Board determine the dis-
pute.
None of the Unions involved either appeared at the
hearing or has made any representation to the Board in
connection with this proceeding.3
D. Applicability of the Statute
The Board may proceed with a determination of a dis-
pute under Section 10(k) of the Act only if there is rea-
sonable cause to believe that Section 8(b)(4)(D) has been
violated. This standard requires finding that there is rea-
sonable cause to believe that there are competing claims
to the disputed work, and that a party has used proscribed
means to enforce its claim to the work in dispute. Addi-
tionally, there must be a finding that the parties have not
agreed on a method for the voluntary adjustment of the
dispute. See, e.g., Operating Engineers Local 150 (R&D
Theil), 345 NLRB 1137, 1139 (2005). We find that these
requirements have been met.
3 None of the parties filed posthearing briefs. The Employer pre-
sented its position to the Board in a closing statement at the hearing.
First, there is reasonable cause to believe that Team-
sters Local 179 claimed work also claimed by Laborers
and Operating Engineers. As discussed above, the Em-
ployer presented evidence that, in summer 2012, Team-
sters Local 179 attempted to secure the disputed work for
employees represented by it, and, after being rebuffed, it
picketed the Employer’s jobsites in November 2012.4
See Glaziers District Council 16 (Service West), 357
NLRB 560, 561–562 (2011) (picketing constituted an
effective claim to work previously sought by picketing
union). And, it is undisputed that Laborers-represented
and Operating Engineers-represented employees also
claimed this work by actually performing it. See id., at
563; see also Laborers Local 265 (Henkels & McCoy),
360 NLRB 819, 822 (2014) (performance of disputed
work by represented employees constitutes evidence of a
claim for the work, even absent an explicit claim by the
employees’ representative).
Next, we find that there is reasonable cause to believe
that Teamsters Local 179 has used means proscribed by
Section 8(b)(4)(D) to enforce its claim to the disputed
work. Teamsters Local 179 picketed seven Employer
jobsites in an effort to secure the disputed work, and the
Act proscribes the use of such means. See Electrical
Workers Local 71 (US Utility Contractor Co.), 355
NLRB 344, 346 (2010).
Finally, we find, based upon the Employer’s unrebut-
ted assertion, that there is no agreed-upon method for
voluntary adjustment of this dispute to which all parties
are bound.
Because we find that all three prerequisites for the
Boards’ determination of a jurisdictional dispute are es-
tablished, we find that this dispute is properly before the
Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia Broadcasting), 364 U.S. 573, 577 (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).
4 The hearing officer found, and we agree, that the record contains
no evidence that Teamsters Local 179 has subsequently disclaimed the
work.

TEAMSTERS LOCAL 179 (ROBERTS PIPELINE, INC.) 91
The following factors are relevant in making the de-
termination of this dispute.
1. Board certifications and collective-bargaining
agreements
The work in dispute is not covered by any Board or-
ders or certifications. As discussed above, however, the
Employer is signatory to national collective-bargaining
agreements with Laborers and Operating Engineers, but
is not party to any agreement with Teamsters Local 179.
Thus, we find that the factor of collective-bargaining
agreements favors awarding the disputed work to em-
ployees represented by Laborers and Operating Engi-
neers.
2. Employer preference, current assignment, and
past practice
The Employer prefers to maintain its current assign-
ment of the disputed work to employees represented by
Laborers and Operating Engineers because those em-
ployees can perform other work when not driving. The
Employer specifically prefers to assign employees repre-
sented by Operating Engineers to drive the lowboys, be-
cause they can load, unload, and fuel the equipment, re-
sulting in a more efficient operation. The hearing officer
found that Laborers and Operating Engineers have repre-
sented the Employer’s employees for more than 30 years,
while Teamsters Local 179 has never represented any
employees of the Employer. We accordingly find that
this factor favors awarding the disputed work to employ-
ees represented by Laborers and Operating Engineers.
3. Industry and area practice
Unrebutted evidence indicates that DCA represents
more than 100 pipeline companies, all of which have
relationships with Laborers and Operating Engineers,
and none of which have relationships with the Interna-
tional Brotherhood of Teamsters. Thus, we find that this
factor favors awarding the disputed work to employees
represented by Laborers and Operating Engineers.
4. Relative skills
The record shows that employees represented by La-
borers and Operating Engineers have the necessary skills,
and maintain the necessary licenses and endorsements, to
perform the disputed work. No evidence was presented
regarding the qualifications of employees represented by
Teamsters Local 179 to perform the disputed work.
Based on the record before us, we find that the relative
skills factor favors awarding the disputed work to em-
ployees represented by Laborers and Operating Engi-
neers.
5. Economy and efficiency of operations
The undisputed evidence establishes that Teamsters-
represented employees on a project-only contract re-
mained idle for approximately half of their worktime,
and did not load and unload heavy equipment from the
lowboys. Conversely, the assignment of the disputed
work to employees represented by Laborers and Operat-
ing Engineers, respectively, was more economical and
efficient, because the latter groups of employees could
perform other work instead of remaining idle when driv-
ing was not required. Thus, we find that this factor fa-
vors awarding the disputed work to employees represent-
ed by Laborers and Operating Engineers.
Conclusions
After considering all of the relevant factors, we con-
clude that employees represented by Laborers and Oper-
ating Engineers are entitled to perform the work in dis-
pute. We reach this conclusion relying on the factors of
collective-bargaining agreements, employer preference,
current assignment, past practice, industry and area prac-
tice, relative skills, and economy and efficiency of opera-
tions. In making this determination we award the work
to employees represented by Laborers and Operating
Engineers, not to those labor organizations or to their
members. The determination is limited to the controver-
sy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
1. Employees of Roberts Pipeline, Inc., represented by
Laborers International Union of North America and by
International Union of Operating Engineers, are entitled
to perform the driving work including but not limited to
trucking, towing, pulling and hauling of material, equip-
ment, and workers, including compressors on flat-bed
trucks, lowboys, stake-bed trucks, dump trucks, and
pickup trucks as well as fueling of equipment at jobsites
within Kane, Kendall, and Will Counties in the State of
Illinois.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 92
2. International Union of Teamsters, Local 179 is not
entitled by means proscribed by Section 8(b)(4)(D) of the
Act to force Roberts Pipeline, Inc. to assign the disputed
work to employees represented by it.
3. Within 14 days from this date, International Union
of Teamsters, Local 179 shall notify the Regional Direc-
tor for Region 25 in writing whether it will refrain from
forcing Roberts Pipeline, Inc., by means proscribed by
Section 8(b)(4)(D), to assign the disputed work in a
manner inconsistent with this determination.