UAW

12 months, a representative period, the Employer sold and shipped goods and materials valued in ex- cess of $50,000 from its Dayton, Ohio, facility direct- ly to points outside the State of Ohio. Accordingly, we find that the Employer is engaged in commerce and in a business affecting 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 juris- diction in this proceeding. 11. THE LABOR OR(GANIZATIONS INVOLVED The parties stipulated. and we find, that UAW and Teamsters are labor organizations within the mean- ing of the Act. ll. IHE DISPUTE A. Background and Facts of the Dispute From the 1940's until February 1976, truckdrivers (represented by Teamsters) who made deliveries to the Employer's facility were responsible for the un- loading of their cargo. Since the number of unload- ing docks at the Employer's facility was limited, the truckdrivers would wait in line for a vacant dock and then proceed to back their trucks into the dock, where the actual unloading would be performed by the Employer's employees who are represented hb lJAW. As a result of discussions between the Employer and the various independent carriers providing deliv- ery service to the Employer, it was decided to imple- ment a "switcher" system for the handling of trailers waiting to be unloaded on the Employer's premises. The switcher, a tractor-like piece of equipment, would move a deposited trailer from a waiting area, known as the bullpen, to an unloading dock when a dock became available.' This system eliminated the downtime for truckdrivers, i.e., the waiting time in- curred by truckdrivers waiting for their trucks to be unloaded. Under the new system, a driver, upon ar- riving at the Employer's location, would deposit his trailer in the bullpen and either pick up a loaded trailer for shipment elsewhere or simply return to the carrier for further assignment. The Employer canvassed the local market for comni- panies providing switcher service and determined that the Dol-Mar Corp., herein called Dol-Mar, pre- sented the most reasonable package for the required work. The Employer recommended Dol-Mar to the carriers, who, in apparent agreement with the Em- ployer's evaluation. signed a contract with Dol-Mar to provide a switcher and the necessary drivers on tI he mnoing of a tra;ller tor an unlaoilna dok i known a. srdxting International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW and General Motors Corporation, Delco Mo- raine Division and Teamsters Local Union No. 957, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 9-CD-332-1-2 November 20, 1978 DECISION AND DETERMINATION OF DISPUTE By MEMBERS JENKINS. Mt;RPHY. AND TRLUESDA FE This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by General Motors Corporation, Delco Moraine Division, herein called the Employer, alleg- ing that International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, herein called UAW, has violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or re- quiring the Employer to assign certain work to em- ployees represented by UAW, rather than to employ- ees represented by Teamsters Local Union No. 957, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters. Pursuant to notice, a hearing was duly held in Dayton, Ohio, before Hearing Officer Mark G. Me- has on September 28, 1977. 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, all parties filed briefs, which have been duly consid- ered. 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 rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the basis of the entire record in this case. the Board makes the following findings: I 1THE BItSINE.SS O()Fi IE iEMPLOYEIR The parties stipulated, and we find, that the Em- ployer, a Delaware corporation, is engaged in various manufacturing operations throughout the United States, including the manufacture of brake systems at its facility located in Dayton, Ohio. During the past UAW 365 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Employer's premises to handle the carrier's trail- ers. As had been the practice, it was understood that the Employer's own employees would continue to drive and unload all Employer-owned tractors and trailers. The switcher would be utilized exclusively to handle the carriers' equipment on the Employer's grounds. In February 1976, the switcher system was put into effect. Initially, the two employees performing the work, provided and paid by Dol-Mar, were not rep- resented by any union. Shortly thereafter, however. Teamsters entered into a contract to represent the Dol-Mar employees who drive the switcher. Following the implementation of the switcher sys- tem, employees of the Employer represented by UAW filed grievances alleging that the Employer's employees should be assigned the driving of the switchers. The grievances were processed to either the second or third stage of the grievance procedure and later were made a UAW negotiating demand in 1976 contract negotiations. On April 8, 1977, UAW struck the Employer in support of various contract demands, one of which involved the switcher work. As a result thereof, the Employer filed the instant 8(b)(4)(D) charge resulting in the current proceeding. B. The Work in Dispute The record establishes that the work in dispute consists of the spotting of trailers at the Employer's Needmore Road and Wagoner Ford Road, Dayton, Ohio, facility. C. Contentions of the Parties The Employer contends that the work in dispute should be assigned to employees represented by Teamsters for the following reasons: (1) since a switcher costs $30,000 to $50,000, it is far more eco- nomical for the Employer to have the work subcon- tracted out than for it to purchase the equipment and train its own employees to operate it; (2) driving a switcher requires skills that no current UAW- represented employee possesses; (3) assignment of the work in dispute to UAW-represented employees would result in the immediate layoff of Teamsters- represented employees; and (4) the current area practice as well as the Employer's practice is to have employees represented by Teamsters operate switch- ers. Teamsters contends that the current assignment should remain as it is in light of the following: (I) Teamsters-represented employees possess the requi- site skills to operate the sophisticated switcher ma- chinery; (2) the Employer's practice is to utilize em- ployees represented by Teamsters to perform the work in dispute; (3) assigning the work in dispute to the Employer's own employees would be an expen- sive alternative in view of the high cost of the switch- er; and (4) the Employer's preference is to assign the work to Teamsters-represented employees. UAW, on the other hand, contends that the work in dispute is merely an extension of the work done in the Employer's production/shipping and receiving department where employees are represented by UAW. Contrary to the Employer, UAW argues that the industry practice is to use employees represented by UAW to drive the switchers. UAW also asserts that the skills required to operate the switcher are no greater than those necessary to drive an over-the- road tractor and that UAW members are capable of performing either function. Finally, UAW contends that, as the loading and unloading operation is an integral part of the Employer's shipping and receiv- ing operation, having UAW-represented employees driving the switcher would enhance the overall effi- ciency of the operation. D. Applicability of the Statute Before the Board may proceed with a determina- tion of 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) of the Act has been violated. Thus, there must be evidence that one group of employees has exerted improper pressure upon the Employer to compel it to assign certain work to that group of employees rather than to an- other group which also seeks the work. As it appears that UAW picketed the Employer in order to force the reassignment of work from employees repre- sented by Teamsters to employees represented by UAW, we find that there is reasonable cause to be- lieve that there has been a violation of Section 8(b)(4)(D) of the Act. Also, it appears from the rec- ord that there is no agreed-upon method for the vol- untary settlement of this dispute. Accordingly, we conclude that the dispute is properly before the Board for determination. Our dissenting colleague would find that the Em- ployer does not possess the requisite authority to as- sign the work in dispute and that such authority lies solely with Dol-Mar, the subcontractor who directly employs and controls the working conditions of the individuals currently performing the disputed work. Our colleague argues that, inasmuch as Dol-Mar was not named in this proceeding and did not participate therein, all necessary parties to the dispute are not now before us and, therefore, we are without power to determine this dispute. 366 a current contract with Teamsters encompassing these employees. In view of the above, we conclude that the factor of a relevant collective-bargaining agreement favors an award of the work in dispute to employees repre- sented by Teamsters. 2. Economy It is undisputed that Dol-Mar currently provides the switchers being used on the Employer's premises and the personnel necessary to operate them. If the Employer's employees represented by UAW were as- signed the work in dispute, it would appear necessar'i for the Employer to purchase at least two switchers, costing between $30,000 and $50,000 each, to replace Dol-Mar's equipment. In addition, as Dol-Mar, a separate and distinct business entity, is responsible for transporting the carriers' trailers to and from the bullpen area, it alone is responsible for any damage incurred during this process. Were we to award the switcher work to UAW-represented employees, the economic burden of insuring the carriers against any resulting loss to cargo or equipment would shift com- pletely to the Employer, as its employees would be responsible for any necessary transportation. Ac- cordingly, it is evident that the factor of economy, which the Employer considered in recommending the contract with Dol-Mar. favors awarding the dis- puted work to Teamsters-represented employees rather than to the Employer's UAW-represented em- ployees. 3. Job impact It is evident from the record that the assignment of the disputed work to employees represented by Teamsters would have no impact upon the employ- ment status of any of the Employer's employees rep- resented hb) AW. However, it is equally apparent that an award of the switcher work to UAW-repre- sented employees would result in the layoff of the two Dol-Mar employees now doing the work. We, therefore, find that the factor of job impact favors the continued assignment of the work to employees represented by Teamsters. 4. Relative skills The record reveals that the work of operating the switcher requires skills that are possessed equally by both groups. Accordingly, we conclude that this fac- tor favors neither claim for the work. We disagree with our colleague's premise that the Employer lacks control over the work in dispute. To the contrary, considering the realities of the present situation, we find that, inasmuch as the Employer possesses the proprietary power to nullify Dol-Mar's contract with the carriers by its ability to prohibit Dol-Mar from performing switcher work on its premises, the Employer exerts sufficient control over the work in dispute for it to be considered the em- ployer herein for the purposes of this proceeding. Furthermore, even were we to accept our colleague's finding that the Employer lacks the authority to ef- fect an assignment of the work in dispute, we would still find that the Employer has raised a cognizable jurisdictional dispute under the rationale set forth in the Board's recent decision in International Long- shoremen's Association, AFL-CIO, Local No. 1911 (Cargo Handlers, Inc.), 236 NLRB No. 191 (1978). 2 In Cargo Handlers, the Board held that the term "em- ployer" in Section 8(b)(4)(D) of the Act applies not only to employers whose work is in dispute but to any employer against whom a union engages in un- lawful strike activity. Inasmuch as we find that the Employer, at the very least, falls within the latter ca- tegory, we conclude that it is entitled to the protec- tion of Section 8(b)(4)(D) of the Act and shall there- fore determine the dispute, employing our traditional guidelines for so doing.3 E. Mlerits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work af- ter giving due consideration to various factors.4 The following factors are relevant in making a determina- tion of the dispute before us: I. Certification and collective-bargaining agreements There is no Board certification covering the work in dispute. The Employer's bargaining agreement with UAW does not cover the disputed work. Sub- contractor Dol-Mar, who is the immediate employer of the employees performing the disputed work, has 2 See also Lrcal 1291. International Lonyshoreme n .4sxoialon . .4 FL ( 10 (Pocahonuas Steartmhip (ompany). 152 NLRB 676 ( 1965) 3 Our colleague's citation to N L.R.B. v. Plasterers Lotal Lnion :Vo 9 Operatve Plasterers' and (ement Masons' International .4- ,-i iorrn 4 FL CIO /7e.tas State 7ile & Ierrazz, Co ./ 404 L S. I I6 ( 19 7 1 ). Is to, no a,. ai While that case holds that the emplo)er who controls the work is a neces- sary party for the voluntary resolution for a Jurlsdictional dispute. II does not follow that such emnployer Is also a neiessars parts n I HBoard p;oceed- inj to determine a dispute under Sec. 10tk) of the Act N' I R B. Radiu & ;'elezision Brlad,ali fngineers E nir, . . ,lat 12/2I Internatonal Brotherhood lf Elitrilcal a or,rkerr , 4I I- ( 10 /( ,uillhl, Breold casting Sysiem/n. 364 J.S 573 (19611) UAW 367 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Employer practice and preference Since the inauguration of the switcher operation in February 1976, Dol-Mar has provided the switchers and necessary manpower for trailer transportation on the Employer's premises. Since April 1976, Team- sters has been the exclusive bargaining representative of the employees performing the disputed work. In view of what the Employer considers to be a satisfac- tory arrangement, the Employer prefers that Dol- Mar adhere to the current assignment. These factors favor the continued assignment of the switcher work to employees represented by Teamsters. Conclusion Upon the record as a whole, and after full consid- eration of all relevant factors involved, in particular Teamsters collective-bargaining agreement, the econ- omy of the current operation, the impact of a reas- signment, and the Employer's practice and prefer- ence, we conclude that employees of Dol-Mar, represented by Teamsters, are entitled to perform the work in dispute. In making our present determina- tion, however. we award the work to employees who are represented by Teamsters, but not to that Union or its members. Further, our award is limited to the particular controversy which gave rise to this pro- ceeding. 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 pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: I. Employees of Dol-Mar Corp., who are current- ly represented by Teamsters Local Union No. 957, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, are entitled to perform the disputed work involving the spotting of trailers at the Employer's Needmore Road and Wagoner Ford Road, Dayton, Ohio, facility. 2. International Union, United Automobile, Aero- space and Agricultural Implement Workers of Amer- ica, UAW, is not entitled, by means proscribed by Section 8(b)(4)(D), to force or require General Mo- tors Corporation, Delco Moraine Division, to assign such work to individuals represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Union, United Automobile, Aerospace and Agricultural Im- plement Workers of America, UAW, shall notify the Regional Director for Region 9, in writing, whether it will refrain from forcing General Motors Corpora- tion, Delco Moraine Division, by means proscribed by Section 8(b)(4)(D), to assign the work in dispute to employees represented by it rather than to em- ployees represented by Teamsters Local Union No. 957, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. MEMBER TRUESDALE, dissenting: Unlike my colleagues, I would quash the notice of hearing herein because the dispute is not cognizable under Section 10(k) of the Act and because one of the essential parties to the dispute, Dol-Mar Corp., the employer who has exclusive control over the as- signment of the work in dispute and whose employ- ees are now performing that work, was not named in the notice of 10(k) hearing, was not served with a copy of such notice of hearing, and did not partici- pate in this proceeding. The facts herein are uncomplicated. They show that the independent carriers making deliveries to the Employer contracted with Dol-Mar to provide switching services for their trailers while on the Em- ployer's premises. Dol-Mar assigned the work in dis- pute to its employees who are represented by Team- sters. The Employer's employees who are represented by UAW claimed this work and, during the ensuing contract negotiations, picketed the Employer partly in support of their claim. The Employer thereupon filed an unfair labor practice charge under Section 8(b)(4)(D) of the Act, which triggered this proceeding under Section 10(k) of the Act. It is clear from the record that the Employer who was picketed is not the employer who has control over the disputed work and the accompanying au- thority to assign or reassign employees to perform such work. The employees performing that work are employees of Dol-Mar and subject to its exclusive control. Only Dol-Mar can hire or fire these employ- ees. The E:mployer has no control over Dol-Mar's labor relations. No contention was made and no facts were introduced into the record to show that the Employer and Dol-Mar are joint employers of Dol-Mar's employees who are performing the disput- ed work. Rather, the record shows that Dol-Mar is an entity independent and separate from the Em- ployer and that Dol-Mar was engaged by the carriers to perform the desired switching service. Inasmuch as the Employer did not contract or subcontract the switching operation to Dol-Mar, and is not a signato- ry to the carriers' contract with Dol-Mar, it cannot be argued that the Employer has even indirect con- trol over the work in dispute by virtue of its authority 368 integral and essential party to a proceeding under Section 10(k) of the Act.) Inasmuch as Dol-Mar, the employer having exclusive control over the assign- ment of the disputed work, was not named in the notice of hearing, was not served a copy of such no- tice, and did not participate in this proceeding,6 all necessary parties to a determination of dispute are not before the Board.7 Accordingly, I would quash the notice of hearing for this additional reason. See : L R B X Plavrerers Lual f nion No 79. Operative Pla.sterers and (Cemnt 4asons International Assoeiation. ,4Ff (O10, 404 I S. 116 1971) Local 895, Lniled Brotherhood of Carpenters. A FL CIO, et al (George A fuller (smpantr. Inc., r ta/y). 186 NLRB 152. 153 (1970); International Broth- e'rhIod of Electri al ui orkers. local 439 (John J Dunn (Consirutilon (ompa- nt J, 195 N LRB 976. 977 (19472): Inrnational Asisoisation of Bridge. Structur a/d ()rnamentail Iron W;orkers Lo'a! So 21 {l/ueder Construction ( opitan), 233 NLRB 1139 (1977) I he importance of joining all necessar) parties to a jurisdictional dis- pute, including the emplo)er who controls the disputed work. is demon- strated in C(arpenier I-loi al No 48(. affiliated with United Brotherhood of ('arptenter and Joiners o! America. AFL CIO (Chei' Chase Project 9), 204 NlRB 444. fn I 11973). There. the employer who allegedly controlled the work. and who was not the charging part). failed to appear at the hearing despite having received notice thereof. In response to a motion to quash the nmstice of hearing because of the absence of that employer, the Board noted that. as the emplover had been served with due notice of the hearing and thus been afforded a full opportulits to participate In the proceeding. it was proper for the Bosard to proceed and determine the dispute on the merits. Here. no evidence that any employer other than General Motors Corpora- tion. D)elco Moraine Division. was formally apprised of this proceeding has been introduced. to cancel any agreement with Dol-Mar. And, while the Employer may well have had an initial interest in determining which contractor performed switching work on its premises, it is clear that the carriers-not the Employer-have an unqualified veto over the se- lection of such contractor. In view of all the circum- stances, it is obvious that the Employer has no au- thority over the work in dispute and is powerless to assign or reassign employees to perform that work. Therefore, while the UAW's picketing of the Em- ployer in support of the work assignment demand may well have been unlawful under some other sec- tion of the Act, I fail to perceive that reasonable cause exists to believe that Section 8(b)(4)(D) has been violated. Accordingly, I would quash the notice of hearing. Even assuming, however, that Section 8(b)(4)(D) prohibits a union from exerting secondary pressure upon one employer for the purpose of forcing anoth- er employer to assign work from one group of em- ployees to another, I believe the Board cannot fairly determine such a dispute under Section lO(k) without having all of the necessary parties before it. The Su- preme Court has held that the employer having con- trol over the assignment of the work in dispute is an UAW 369