Local 294, Teamsters

National Labor Relations Board - Board Decisions

Jul 19, 1971

192 N.L.R.B. 117 (N.L.R.B. 1971)

LOCAL 294, TEAMSTERS 117
Local. 294, international Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca and Eastern New York Construction Employers,
Inc. and Local 106, International Union of Operat-
ing, Engineers, AFL-CIO; Locals 190,157 and 452,
Laborers International Union- of North America,
AFL-CIO; Albany, Schenectady, Troy and Vicinity
District - Council of Carpenters; Local 12, Interna-
tional Association of Bridge, Structural and Orna-
mental , Ironworkers, AFL-CIO; and Locals 6, 16, S,
61, 67,10 and 77, Bricklayers , Masons,- Plasterers,
Marble, Tile and Terrazzo Workers International
Union, AFL-CIO. Case 3-CD-360
July 19, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
This is a proceeding under Sectjpn 10(k) of the
National Labor Relations Act, as amended, following
charges filed-by the Eastern New York Construction
Employers, Inc.," alleging that Local 294, Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America,2 has violated
Section 8(b)(4)(D), of the Act. A duly scheduled
hearing was held before Hearing Officer Paul E. Weil
on April 26 and 27,1971.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Association, Local 294, and Local 106, Interna-
tional , Union, of Operating Engineers, AFL-CIO,s
appeared at the hearing and were afforded a full
opportunity to be heard, to examine and cross-
examine witnesses , and to adduce evidence on the
issues. The remaining,labor organizations named in
the notice of hearing did not appear at the hearing or
otherwise. Certain letters and telegrams from the
other labor organizations purporting, to state their
disinterest in the proceedings or in the work which is
in issue herein were received in evidence.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.
Upon the entire record4 in this case including the
1 Hereinafter referred to as the Association.
2 Hereinafter referred to as Local 294 or the Teamsters.
¢ Hereinafter referred to as the Operating Engineers.
I The Association's motion to correct the record insofar as it incorrectly
states the name of Teamsters Business Agent Anthony Carusone is hereby
granted.
brief of the Association and the letter brief of Local
294, the Board makes the following findings:
1. THE BUSINESS OF THE ASSOCIATION
The parties stipulated to the following facts: The
Eastern New York Construction Employers, Inc., is
an organization of employers in the building and
construction industry including various employers in
and around the city of Albany and eastern New York.
The Association exists in part for the purpose of
engaging in collective bargaining with labor organiza-
tions on behalf of its members and on behalf of
nonmembers who have designated it as their collec-
tive-bargaining representative. Members of the Asso-
ciation, and nonmembers who have designated it as
their representative for the purpose of collective
bargaining, annually do business in interstate com-
merce in excess of $500,000. We find that the
Association is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it
will effectuate the policies of the Act to assert
jurisdiction herein.
U. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated and we find that the Respon-
dent, the Operating Engineers, and each of the
various potential intervenors named in the notice of
hearing are labor organizations within the meaning of
Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The State of New York has a huge' construction
project underway on approximately 100 acres of land
in the business district of Albany, New York. The
project is commonly known as the South Mall project.
For some time the assignment of the work of fueling
construction- equipment at the site has been a-
contested issue. In 1967, the Board issued a Decision
and -Determination of Disputes in which it awarded
the aspects of the fueling operation-involved'in that
proceeding to ' employees represented by the Operat-
ing Engineers as against the claims of Local 294.
Awarded to employees represented by the Operating
Engineers was the fueling of construction equipment,
including driving rigs, truck cranes and portable
welding machines, by fuel delivery, by truck hose, and
by portable drums and cans. After the Board's
decision the Teamsters continued in negotiations to
5- 165 NLRB 348. In a subsequent proceeding the Board found that
Local 294 had engaged in conduct violating 8(b)(4)(1) and (ii) in its
continuing efforts to obtain assignment of the work to the employees its
represents . Local 294, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, 180 NLRB No. 75.
192 NLRB No. 22
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursue its claim to fueling, of construction equipment,
including the work awarded to employees represented
by the Operating Engineers, with the Association. The
result was the inclusion of a provision in the
Teamsters' I 967 contract with the Association provid-
ing a 50-cent-per-hour premium above normal wages
when a teamster did not handle the fuel nozzle from
the fuel tank. Upon the expiration of that agreement
in 1970, the parties negotiated a new contract which
provided a wage rate for a teamster handling the fuel
nozzle. For a time thereafter, the parties continued in
effect the 50-cent provision. However, in early 1971
the Teamsters filed, grievances against certain of the
employers party to the contract claiming the entire
fueling operation.
Pursuant to the collective-bargaining agreement a
grievance meeting was called to dispose of the Team-
sters' grievance. Present at the meeting, in addition
to the Teamsters, were representatives of South: Mall
Constructors, DIC Concrete Corporation, and
Foster-Lipkin Construction Company; all parties to
the contract. At that meeting the Teamsters claimed
that employees it represents should handle all fuel-
ing at the jobsite including carrying the fuel to the
equipment., Its claim extended to carrying 5-gallon
cans of fuel obtained from 55-gallon storage drums
to wherever it was needed. The Association indicated
that the Operating Engineers claimed the fueling of
equipment operated by the employees they represent,
and took the position that the assignments would
continue as they were in the past; that is, the craft
operating the equipment would fuel it.
The grievance committee ruled on March 11, 1971,
that,, according to the intent of the collective-bargain-
ing agreement between the Association and Local
294, all on-site fueling, from a fuel truck including
nozzle shall be handled by the teamster fuel truck
drivers. The grievance committee considered the
Teamsters' claim as to the transporting of fuel to
wherever it was needed, but was unable to reach a
determination as to this claim. Thereafter, on March
15•, 1971, the Teamsters began picketing virtually all
the construction gates at the South Mall project. The
picket signs on each gate contained the same wording
except for the insertion of the appropriate employer's
name. - The signs read "Strike . . . (the Employer's
name) . . . failed to abide by decision of the joint
board." Picketing continued until March 22, 1971. A
meeting was held by the Association on March 15,
1971, in an attempt to resolve the issues causing the
picketing. Present were representatives of the Associ-
ation, Teamsters, and South Mall Constructors. In
that meeting, the Teamsters claimed any and all
fueling. The employers present agreed that the, fuel
s The Charging Party has moved to amend the notice of hearing to
include this work. The Hearing Officer refused to grant this motion. It has
truck was the work' of Teamsters;' but obtaini`iig: of
fuel, and actual fueling' of all construction equipment
was assigned and belonged to the craft Operating the
equipment.
At a meeting in the-office of the New°`YorkState
Office of General- Services ` in,-early April •1971 the
subject of fueling was again discussed."Present were
representatives of most of the various labor unions,
including the Operating Engineers and Teamsters. No
employers were present. Mr. Harry Livingston;' Labor
Relations Consultant Office of `General Services New
York State, testified that at that meeting there was a
general feeling that the teamsters were to bring` the
fuel to the site and handle the nozzle, including both
the fuel being put into the storage tank and fuel that
went directly from the truck into the `equipment. He
further testified that a majority of the unions present,
with the exception of the Operating Engineers, agreed
with the Teamsters that the teamsters would bring fuel
from the storage equipment to the equipment and that
the operator would then place the fuel in the
equipment. However, Mr. Ralph E. Cataldo, presi-
dent and assistant business representative of Local
190 of the Laborers, testified that there had' always
been an understanding between Local 294-and Local
190 that the ' teamsters would get the fuel ""there."
However, when he further described-. what the
teamsters would do he stated that the teamsters would
bring the fuel to a storage area and that the laborers
would then go to the, particular area and pickup the
fuel in , order to fuel their equipment ras well as the
equipment of the carpenters and masons.
B. Work in Dispute
The Teamsters acknowledged ' that they initially
claimed the entire process of fueling the equipment.
However, they have now modified 'their claim' to
include only delivery of 'the fuel to the actual location
of the work. They acknowledge that the actual fueling
of the machines is the work of the craft using such
machines with the exception of those machines` which
are fueled directly from the truck. The actual delivery
of the fuel to the construction site by the use of'trucks,
including the placing of the fuel in the storage tanks `or
directly into equipment, is not involved in ' this
proceeding.6
C. Contentions of the Parties
The Association and the Operating Engineers
contend that the employer assignment of the work of
fueling the equipment including the obtaining of fuel
from storage areas should be- assigned to the craft
operating the machines for the, following ° reasons:
renewed that motion before the Board. The motion is hereby denied.
LOCAL 294, TEAMSTERS
area practice, efficiency and economy of operations,
and employer assignment.
The Teamsters contends the work should be
assigned to employees whom it represents because of
the following factors: area practice and contract
requirements.
D: The Applicability of the Statute
The charge, which was duly investigated by the
Regional Director, alleges a violation of Section
8(b)(4)(D) of the Act._ The Regional Director was
satisfied upon the basis of such investigation that
there was reasonable cause to believe that a violation
had been committed and therefore directed- that a
hearing beheld in accordance with Section 10(k) of
the Act. On ' the basis of the entire record, including
the Teamsters picketing during March 1971alleging
that the employers represented by the Association
were, failing to meet the terms of the grievance
committee award of work to the teamsters, we find
that there is reasonable cause to believe that a
violation of the Act had occurred and that the dispute
is properly before the Board for determination.
E. The Merits of the Dispute
As the Board stated in J. A. Jones Construction Co., 7
we shall determine the appropriate assignment of the
disputed work and in each case present a resolution
under Section 10(k) of the Act only after taking into
account and balancing all relevant factors.
1. Employer preference
The employers had assigned the work in dispute
here to the crafts who operate the equipment
involved. The Association prefers an award to these
employees. This factor favors an award to the craft
operating the equipment involved.
2. Industry and area practice
The evidence presented tends to show that prior to
the Teamsters claim, the practice was for employees
using the equipment to fuel their own equipment
including the obtaining of the fuel from the storage
area. In particular, the Operating Engineers presented
evidence which established that all of the equipment
which was operated by an operating engineer was
fueled by the operator, including the obtaining of fuel
from the storage area. A Laborers representative
testified that the employees it represents operated in a
similar manner and that employees it represents
obtain the fuel for the masons and carpenters. The
Teamsters claim of area practice is based on the
119
assertion that the other unions, with the exception of
the" Operating Engineers,' have "acquiesced in its
claims. However, it is not clear from the record that
that is the case as Laborers president and assistant
business agent testified that the' Laborers agreed only
that the Teamsters"would bring the fuel to the storage
areas and that the fuel would be obtained from the
storage areas by the craftsIinvolved. This factor favors
an award to the craft operating the equipment
involved.
3. Contract
The Teamsters bases its claim for the work
primarily on its claim that its contract with the
Association requires such an award. Neither that
contract nor the Association's contract with any `of
the other unions specifically sets forth who is to
handle the disputed work. The Teamsters contract
with the Association does contain a. wage rate for
"fuel truck on the site (including nozzle)," which the
Teamsters claims amounts to award of the work to
employees it represents. However, the grievance
committee was only able to agree that the provisions
required an award of fueling from the truck into
storage tanks and directly into the vehicle from the
truck. We find that this factor favors none of the
interested unions as their contracts do not clearly
cover the disputed work.
4. Efficiency and economy of operations
The evidence indicates that either employees
represented by the Teamsters or the craft operating
the machines involved could perform the disputed
work without loss of time on the job. However, to the
extent that some of the employers do not presently
employ teamsters they would be required to hire such
employees for what would in some cases be work
which requires a relatively small percentage of the
working day. To the extent this factor favors either
group of employees, we find that it favors the
assignment of the work to the craft operating the
equipment.
Conclusions
In each case where a factor favored the assignment
of the disputed work to one or the other group of
employees, we have found that it favored the
assignment of the work to the craft employees
operating the equipment. Thus, on this record we can
find no compelling reason for disturbing the employ-
ers' assignment of the work. Accordingly, we shall
determine the existing jurisdictional dispute by
7 International Association of Machinists, Local No. 1743, AFL-CIO (J.
A. Jones Construction Co.), 135 NLRB 1402.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
awarding the work of delivering of the fuel to the
actual location of the work to the craft employees
operating the machines rather than to employees
represented by the Teamsters. In making this determi-
nation, we are assigning the disputed work to the craft
employees operating the equipment and not to unions
they are represented by or the members of those
unions .8 Our present determination is limited to the
particular dispute which gave rise to this proceeding.
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
hereby makes the following Determination of Dis-
pute:
1. Members of the various crafts employed by
employers who are members of or represented by the
Eastern New York Construction Employers, Inc., are
entitled to obtain the fuel from storage areas for the
B Nor is this award to be taken as affecting the practice of having
employees represented by the Laborers obtain fuel for equipment operated
equipment they operate at the South Mall Construc-
tion project.
2. Local 294, International Brotherhood of Team-
sters, 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
employers who are members of or represented by the
Eastern New York Construction Employers, Inc., to
assign such work to employees represented by it.
3. Within 10 days from; the idate ^of !this, Decision
and Determination of Dispute, Local 294, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, shall notify the
Regional Director for Region 3, in writing, whether or
not it will refrain from forcing or requiring employers
who are members of or represented by the Eastern
New York Construction Employers, 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.
by employees represented by other unions.