Truck Drivers and Helpers Union Local 170

National Labor Relations Board - Board Decisions

Apr 8, 1980

248 N.L.R.B. 1008 (N.L.R.B. 1980)

1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Truck Drivers And Helpers Union, Local No. 170,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America and The Labor Relations
Division of Construction Industries of Massa-
chusetts, Inc. and The Barletta Company and
Massachusetts Laborers' District Council a/w
Laborers' International Union of North Amer-
ica, AFL-CIO. Case 1-CD-579
April 8, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by The Labor Relations Division
of Construction Industries of Massachusetts, Inc.,
on behalf of its member contractor, The Barletta
Company, herein called Barletta or the Employer,
and various member subcontractors alleging that
Truck Drivers and Helpers Union, Local No. 170,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called Teamsters or Local 170,
had violated Section 8(b)(4)(D) of the Act by en-
gaging in certain proscribed activity with an object
of forcing or requiring the Employer to assign cer-
tain work to its members rather than to employees
represented by Massachusetts Laborers' District
Council, a/w Laborers' International Union of
North America, AFL-CIO, herein called Laborers.
Pursuant to notice, a hearing' was held before
Hearing Officer Francis X. McDonough on August
13, 1979. All parties appeared and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues.
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 Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record2 in this proceeding, the
Board makes the following findings:
I A. L. Amaral Construction Corp., Metropolitan Fence Corp., Stan-
dard Sign and Signal Co., Inc., and P. J. Keatting Company were al-
lowed to intervene at the hearing on grounds that the dispute herein in-
volves trucks used by them on construction projects on which they are
subcontractors of Barletta.
2 The Employer's request for oral argument as to the scope of the
Board's determination herein is hereby denied as the record and briefs
adequately present the positions of the parties.
248 NLRB No. 114
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Massachusetts corporation, is engaged in
the heavy and highway construction business.
During the past year, the Employer purchased
goods, materials, and supplies from outside the
State having a value of $50,000. The parties also
stipulated, and we find, that the Employer is en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Team-
sters and Laborers are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Barletta has been a general contractor in the
highway and heavy construction industry through-
out New England for some 64 years. It is currently
engaged in a number of highway construction pro-
jects, five of which are located in the geographic
area covered by the jurisdiction of Teamsters
Local 170. Two of these projects are separate con-
tracts on Interstate 190 in Worcester, Massachu-
setts. Another two projects are also on Interstate
190, some 17 miles north of the other projects, in
Lancaster and Leominster, Massachusetts. A fifth
job is some 15 miles east of Worcester, in Hudson
and Marlboro, Massachusetts. Barletta is a signato-
ry to the statewide Massachusetts Heavy Construc-
tion Agreement with the Teamsters who represent
Barletta's truckdrivers. Barletta is also signatory to
a statewide agreement with the Laborers. On its
construction projects in the Teamsters area, Barlet-
ta has engaged a number of subcontractors, all of
which are signatory to the statewide agreement
with the Laborers.
In connection with the construction of these
highways, Barletta and its subcontractors utilize a
number of small pickup trucks. These trucks are
either driven home in the evening by one of the
foremen of the laborer crews or are left at the job-
site overnight. In the morning, the pickup trucks
are loaded with laborer crews, tools, and material
such as nails, cement bags, and bricks. The trucks
are then driven from the Employer's jobsite trailer
to the area of the job to which the crews have
been assigned on any given day. Once unloaded,
the trucks generally remain parked in the work
area until the crew is directed to move to another
jobsite. However, when needed, the trucks are
used to move materials and equipment such as gen-
TRUCK DRIVERS AND HELPERS UNION, LOCAL 170 1009
erators and compressors to different parts of the
project. On these occasions, the trucks are driven
by employees represented by the Laborers. The
record discloses that there are approximately two
or three such moves in the course of a day requir-
ing total driving time of 20 minutes and involving a
total distance of only a few miles.
The Teamsters threatened to picket and strike
Barletta over the assignment of pickup truck driv-
ing to laborers in 1978 and early 1979. On July 10,
1979, Teamsters Business Agent George Valery or-
dered a strike against Barletta ostensibly because
employees represented by the Laborers were oper-
ating a pickup truck to transport a generator and a
compressor from one crew to another. The entire
jobsite was shut down and Valery allegedly also
called Barletta's ready-mix supplier and told him
not to deliver anything to Barletta using a Local
170 driver. The strike ended 2 hours after it began
when Barletta paid two laid-off employees repre-
sented by the Teamsters for work performed by
Laborers which the Teamsters claimed the laid-off
employees should have done.
B. The Work in Dispute
The notice of hearing describes the work in dis-
pute as: "The operation of The Barletta Company's
pickup, utility and service trucks on a site or sites
certain within the County of Worcester, Massachu-
setts." More specifically, Teamsters Business Agent
Valery testified without contradiction that the
Teamsters does not claim that employees represent-
ed by it have the right to drive the Employer's
pickup trucks when those trucks are used to trans-
port laborer crews and their tools to a jobsite or
from jobsite to jobsite during the day. The Team-
sters does contend, however, that employees it rep-
resents have the right to drive the pickup trucks
when used to transport materials and equipment to
a jobsite or from jobsite to jobsite. The Employer
and the Laborers, on the other hand, assert that the
work in dispute is the operation of the pickup
trucks assigned to the construction crews of Barlet-
ta and its subcontractors and that employees repre-
sented by the Laborers should drive them even
when small amounts of materials and equipment are
carried, for such is merely incidental to the trans-
porting of the crews. After a review of the evi-
dence and the contentions of the parties, we find
that the work in dispute is in fact the operation of
pickup trucks when used for the casual or occa-
sional hauling of materials and equipment on the
jobsites involved herein.
C. The Contentions of the Parties
The Employer contends that a jurisdictional dis-
pute exists and that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) of the Act has been
violated. On the merits, the Employer contends,
inter alia, that the collective-bargaining agreements
involved and the industry and area practice of as-
signing the disputed work to laborers, as well as
considerations of efficiency, economy, skill, and
safety support the assignment of the operation of
these trucks to employees represented by the La-
borers, and, thus, that the work should be awarded
to these employees.
The Laborers contends that there is reasonable
cause to believe that Section 8(b)(4)(D) of the Act
has been violated, and, as to the merits, that neither
contract clearly establishes the right to the work of
one group of employees to the absolute exclusion
of the other group of employees; and that for rea-
sons of efficiency and economy employees repre-
sented by the Laborers should be awarded the
work in dispute.
The Teamsters contends that the Board does not
have reasonable cause to believe that there was a
violation of Section 8(b)(4)(D) of the Act because,
inter alia, the dispute which motivated the work
stoppage was resolved when the Employer in ac-
cordance with the Teamsters contract paid the em-
ployees represented by the Teamsters for the lost
work. On the merits, the Teamsters contends pri-
marily that article 2, section 4, of its contract with
the Employer gives it the work of transporting ma-
terials and equipment on the job except in emer-
gencies or on occasional errands and that this regu-
lar transportation of materials and equipment is the
basis of the dispute. It disclaims any right to trans-
port any laborer personnel or their tools but con-
tends that the hauling of materials and equipment
on a regular basis is properly the work of employ-
ees represented by the Teamsters no matter what
type of truck is used.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is reasonable
cause to believe that (I) Section 8(b)(4)(D) of the
Act has been violated and (2) the parties have not
agreed upon a method for the voluntary adjust-
ment of the dispute.
As to (1) above, the Teamsters both threatened
and engaged in a strike to protest the laborers' oc-
casional use of pickup trucks to transport materials
and equipment. An object of this strike was to
force Barletta to assign the driving of the pickup
trucks to employees represented by the Teamsters.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Therefore, we find that there is reasonable cause to
believe that Section 8(b)(4)(D) of the Act has been
violated.
As to (2) above, the parties stipulated that there
is no agreed-upon method, binding on all parties,
for the voluntary settlement of the dispute. Ac-
cordingly, we find the dispute is properly before
the Board for determination under Section 10(k) of
the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors.3 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case.4 The
following factors are relevant in making the deter-
mination of the dispute before us:
1. Collective-bargaining agreements
Article 2, section 4, of the Teamsters contract 5
states:
Pickup trucks, station wagons and panel trucks
shall be operated by Teamsters when being
used to haul materials, equipment and parts to,
from or on a jobsite or jobsites. Excluded from
these categories shall be pickup trucks, station
wagons and panel trucks operated by supervi-
sory personnel, maintenance mechanics, and
pickup trucks, station wagons and panel trucks
used occasionally for errands and emergencies.
The collective use of pickup trucks, station
wagons and panel trucks as a substitute for a
flat rack or service truck that would be used
for hauling materials, equipment and parts
shall be a violation of this Agreement. The
within exceptions shall not be used to circum-
vent the intent of this provision.
The Laborers agreement, on the other hand,
does not expressly refer to "pickup trucks" but
does empower laborers to distribute materials from
stockpile areas to work areas by means of a "mo-
torized unit" and generally provides for the han-
dling and distributing of materials on the jobsite by
laborers.
s N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers, AFL-CIO [Colum-
bia Broadcasting System], 364 U.S. 573 (1961).
4 International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
The contract, which is contained in the Employer's Exh. I, was in
effect from 1976 until 1979 The contract currently in effect between the
Employer and the Teamsters contains the same clause but, as of the hear-
ing, had not been printed yet. However, it is undisputed that all the par-
ties to the contract have agreed to it.
It is apparent that the use of the pickup trucks is
arguably within the meaning of both contracts.
However, the Teamsters asserts the right to haul
all material and equipment irrespective of what
type of truck is used. The Teamsters contends that
the contract provision quoted above supports this
right; its position is in accord with Barletta's long-
standing practice; and there was no dispute over
this practice until approximately I year prior to the
hearing. In support of its position, the Teamsters
produced a letter written by Barletta's attorney to
Barletta which states, in part:
We can no longer defend some of the abuses
that are occurring in the use of pickup trucks .
. we urge you to comply with these provi-
sions [of the Teamsters contract] in the future
in order to avoid the penalties which may
result from arbitration.
However, from the above-quoted contractual
provision it is clear that under the Teamsters con-
tract employees other than those represented by
the Teamsters may drive pickup trucks for occa-
sional errands and emergencies if such use does not
circumvent the intent of the agreement. Since the
work in dispute is occasional in nature, it may well
fall within this exception in the Teamsters contract
and thus would not circumvent of the agreement.
Since the work in dispute is occasional in nature, it
may well fall within this exception in the Team-
sters contract and thus would not circumvent the
agreement. Further, as noted, the work is arguably
within the Contractors. In these circumstances, we
conclude that both parties have colorable claims to
the disputed work under their agreements with the
Employer. Therefore, we find that the collective-
bargaining agreements do not favor an award to
either group of employees of such work.
2. Employer and area practice
Vincent Barletta, president of the Employer, tes-
tified that his Company has always assigned the
disputed work to laborers and that this same prac-
tice is followed by all subcontractors on Barletta
jobsites. He stated further that, under this practice,
if a full-time employee is needed to haul material to
or on a project the assignment is made to an em-
ployee represented by the Teamsters, but, where a
minimal use of the pickup trucks is involved, the
assignment has always been to the laborers in the
crew. James Merloni, the Laborers president, simi-
larly testified that the employees represented by
the Laborers have always driven the pickups when
the operation of the vehicle is incidental to the
work of the laborers and that teamsters only drive
the trucks when they are used full time to haul ma-
TRUCK DRIVERS AND HELPERS UNION. LOCAL 170 1011
terials. He testified that the practice in New Eng-
land has always been to assign the driving of
pickup trucks to employees represented by the La-
borers. On the other hand, George Valery, the
business agent for the Teamsters, testified that em-
ployees represented by the Teamsters claim the
right to haul all materials and equipment no matter
what type of truck is used and that that has always
been the practice. In this regard, he testified that
he has handled the Barletta contract for 19 years
and that the employees represented by the Team-
sters have always done the work of hauling materi-
als, equipment, and parts in the pickup trucks. He
also testified that he services the Teamsters con-
tracts with approximately six other contractors in
the geographical area and that the only problem
with respect to pickup trucks concerns Barletta.
Valery stated that the Teamsters has filed over 200
grievances in the past year concerning the dispute.
It is undisputed that employees represented by
the Teamsters have never been assigned full time
to drive Barletta's pickup trucks. Instead, when the
use of the truck is incidental to the work of the
construction crew, the pickups have always been
driven by laborers. On the other hand, if a full-time
employee is needed to haul material to or on a pro-
ject, it is undisputed that the assignment is made to
employees represented by the Teamsters. There-
fore, having found that the work in dispute is the
casual or occasional hauling of materials or equip-
ment which is incidental to the normal work of the
laborer crews, we find that employer practice sup-
ports an award of the work in dispute to employees
represented by the Laborers.
In addition, there are a number of cases in the
Worcester, Massachusetts, area involving Local
170 in which the Board has awarded the work of
driving pickup trucks to employees represented by
the Laborers. See, e.g., Truck Drivers Union Local
170, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America (Associated General Contractors), 216
NLRB 236 (1975); Teamsters Local Union No. 170,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America (The Henley-Lundgren Co.), 240 NLRB
No. 91 (1979); Truck Drivers & Helpers Local No.
170, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(DeLucca Fence Company), 240 NLRB No. 85
(1979). In these cases the employers alleged that
area contractors have always assigned the work of
driving pickups to employees represented by the
Laborers and the Board so found.
Valery, on the other hand, as discussed above,
testified that employees represented by the Team-
sters perform work such as that in issue here for six
other area contractors. He further testified that the
only problem in the area concerning who should
perform such work is with Barletta.
Valery's testimony, therefore, is contradicted to
some extent by the prior Board decisions involving
Local 170 and, thus, it appears that the record does
not establish the area practice with respect to the
disputed work. We therefore conclude that the
factor of area practice does not tend to favor
award of the work in dispute to one group of em-
ployees rather than the other.
3. Economy and efficiency of operation
There is no dispute that laborers use the pickup
trucks in the morning to travel from the Employ-
er's yard to a construction jobsite. They then leave
the parked vehicle and work as productive mem-
bers of the construction crew. It is further undis-
puted that employees represented by the Teamsters
could not perform the construction work. There-
fore, the Employer asserts that it is impractical to
assign an employee represented by the Teamsters
to drive a pickup truck which at best will be used
sporadically for a total of 20 minutes during the
day to haul some equipment and materials for use
by the laborers, because, in that case, an employee
represented by the Teamsters would have nothing
to do for all but 20 minutes per day. Thus, the Em-
ployer contends that it is easier and more produc-
tive for laborers to drive the pickups when such is
incidental to their regular work and done on an in-
frequent basis.
In Henley-Lundgren Co., which, as noted, also in-
volved Local 170, the Board found:
Thus, in light of the type of work in which the
pickup or service trucks are engaged, it is ap-
parent that such is merely incidental to the pri-
mary function of a laborer. Since a laborer, as
a member of the Employer's construction
crew, can and has operated pick-up and ser-
vice trucks as part of the regular assignment in
that crew, and as the assignment to employees
represented by Local 170 would result in an
extra, unneeded, and unproductive employee,
it is clear that the work in dispute is done
more economically if it is performed by em-
ployees represented by the Laborers rather
than employees represented by Local 170. Ac-
cordingly, we find that factors of economy
and efficiency favor the assignment of the
work in dispute to employees represented by
the Laborers.
The Board similarly found in DeLucca Fence Co.,
supra:
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees represented by Local 170 were
hired to do the truckdriving, the result would
be that, for the most part, these employees
would be idle for long periods of time while
the trucks were not in use.
Therefore, we find that the factors of economy
and efficiency of operation favor an award of the
work to employees represented by the Laborers.
4. Employer's assignment
The Employer assigned the work in dispute to,
and prefers that it be performed by, the employees
represented by the Laborers; this factor, while not
determinative, favors an award to those employees.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors favors involved,
we conclude that employees who are represented
by the Laborers are entitled to perform the work
in dispute. We reach this conclusion relying on the
fact that the occasional hauling of materials and
equipment by laborers is consistent with Employer
practice and that it is more efficient for the labor-
ers to perform the work. In making this determina-
tion, we are awarding the work in question to em-
ployees who are represented by the Laborers, but
not to that Union or its members. The present de-
termination is limited to the particular controversy
which gave rise to this proceeding.6
" The Employer requested a broad work award to be applicable
throughout the area. T'he Board has previously held that it will restrict
the scope of its determination to a specific jobsite unless there is evidence
that similar disputes may occur in the future. Glaziers, Gla.sworkers and
Glass Warehouse Workers Union, Local No. 636, affiliated with the Interna-
tional Brotherhood of Painters and Allied Tradesr, AFL CIO (Plaza Glass
Company), 214 NLRB 912, 915 (1974). The Board has not previously de-
termined jurisdictional disputes involving Barletta and Local 170. Fur-
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 Barletta Construction Company
and its subcontractors, who are represented by
Massachusetts Laborers' District Council a/w La-
borers' International Union of North America,
AFL-CIO, are entitled to perform the work in dis-
pute of operating pickup trucks when used for the
casual or occasional hauling of materials and equip-
ment on the jobsites involved in this Decision.
2. Truck Drivers and Helpers Union, Local No.
170, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force
or require Barletta Construction Company and its
subcontractors to assign the disputed work to em-
ployees represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Teamsters shall
notify the Regional Director for Region 1, in writ-
ing, whether or not it will refrain from forcing or
requiring the Employer, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the disput-
ed work in a manner inconsistent with the above
determination.
thermore. there is no evidence that Local 170 has claimed similar work
to be performed by the Employer in the future Accordingly, we find the
evidence insufficient to show a propensity by Local 170 to engage in
similar disputes with Barletta in this area and therefore limit this determi-
nation to the particular controversy which gave rise to this proceeding.
Local Union No. 417. International Association of Bridge. Structural and
Ornamental Ironwvrkers, AFL-CIO (Spancrete Northeast, Inc.), 219 NLRB
986, 989 (1975).