Local 4, Int'l Brotherhood of Teamsters, Etc.

LOCAL 4, INT'L BROTHERHOOD OF TEAMSTERS, ETC 265 Board would place a discriminatee on the horns of such a dilemma and thereby defeat the public purpose of remedying discriminatory discharges. Such an interpre- tation or limitation upon the Board's ability to grant backpay would be incongruous and would fall far short of effectuating the policies of the Act.35 Then, too, the Board has held that the quitting of an interim job for a good personal reason does not mitigate against the eligibility of a discriminatee for backpay.36 For Villasenor, a skilled Linotype operator, to be tied down to a menial job at the Forum Cafeteria at $1 an hour and thus greatly impinge on his efforts and the time available to him to find employment at his trade would appear to be a good personal reason to quit in order to devote all of his time to obtaining a job as a Linotype operator.37 Con- sequently, in leaving the Forum job, Villasenor did not incur a willful loss of earn- ings. It is not believed that a discriminatee is required to continue working at such a job under the conditions heie delineated in order to avoid a finding of willful loss of earnings.38 Then, too, there has been no evidence offered to show that Villasenor ever refused a specific offer of new employment. It is not believed that wholly apart from the fact that Villasenor acted reasonably and with due diligence in mitigating the financial impact of Respondent's unfair labor practices, he was, under penalty of willful loss, obligated, as a matter of law, to assume the onerous duties that Respondent would have thrust upon him. Villasenor is not a culprit and it is he, not Respondent, whose rights the Board and the court of appeals have found to be violated; and while Villasenor has an obligation to exercise due diligence in mitigating Respondent's backpay liability, the Act cannot be administered so as to permit a lawbreaker, himself, to assure the benefits of his unlawfulness, and this would be the effect were some of Respondent's contentions in that respect to be accepted. The law does not require this. Accordingly, it is concluded and found that Respondent's obligation to make whole Villasenor in the manner prescribed in the Board's decision will be satisfied by pay- ment to him of the sum of $11,980.90.36 The payment of interest on the net backpay will not be recommended as it was not required by the Board's original Order which was enforced by the court.40 It is recommended that the Board adopt the foregoing findings and conclusions. as Cf. N L.R B. v. Cashman Auto Company, et al., 223 F 2d 83 (C A. 1), enfg 109 NLRB 720. See also Efco Manufacturing Inc, 111 NLRB 1032, Brotherhood of Painters, Decorators & Paperhangers, etc (Lauren Burt, Inc.), etc, 114 NLRB 295; Southern Silk Mills, Inc., supra; East Texas Steel Castings Co., 116 NLRB 1336, 1347-1348, enfd 255 F 2d 284 (C.A. 5) (welder's acceptance of lower paying job as cabdriver) See East Texas Steel Castings Company, Inc., supra, at 1347-1348. 87 See Harvest Queen Mill and Elevator Co , supra, with respect to a backpay claimant giving up desirable new employment which Villasenor's janitor's job at the Forum Cafeteria was not. 11 Ozark Hardwood Company, 119 NLRB 1130, enfd. 282 F. 2d 1 (CA 8). 39 The specification alleges $12,04090, this does not include the claimant's uncon- tradicted interim earnings of $60 while employed by the Del Moral Printery in the third quarter of 1961 It is understood, of course, that the obligation to make Villasenor whole shall accrue until the date of a proper order of reinstatement A P.W. Products Co , Inc., 137 NLRB 25. 40 Mooney Aircraft, Inc, 148 NLRB 1057, Ellis and Watts Products, Inc., 143 NLRB 1269, and cases cited therein , General Engineering, Inc., and Harvey Aluminivn, 147 NLRB 936. Local 4, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and P. Ballantine & Sons. Case No. 22-CD-105. April 09, 1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10 (k) of the National Labor Relations Act, as amended, following charges filed by P. Ballantine & Sons, herein called the Employer, alleging that Local 4, Interna- 152 NLRB No. 28. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Brewers, threatened, coerced, and restrained the Employer with an object of forcing or requiring the Employer to assign certain work to members of the Brewers, rather than to employees represented by Lodge No. 340 and Lodge No. 1697, International Association of Machinists, herein called IAM. A hear- ing was held before Hearing Officer John P. Cooleen on February 3 and 11, 1965, at which. 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. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. The parties waived their right to file briefs in the interest of obtaining an early resolution of the dispute. Upon the entire record in this proceeding, the National Labor Rela- tions Board makes the following findings: 1. The business of the Employer P. Ballantine & Sons is a New Jersey corporation engaged in the business of manufacturing beer and other malt beverages. During the past year, gross annual revenue from the sale of its products de- livered directly to points outside the State of New Jersey exceeded $50,000. We find that P. Ballantine & Sons is engaged in commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction in this proceeding. 2. The labor organizations involved The parties stipulated, and we find, that Brewers and IAM are labor organizations within the meaning of Section 2(5) of the Act. 3. The dispute The Work at Issue The work in dispute is the installation of a newly invented device known as the "Ballantine Easy Tap" in the heads of aluminum or stainless steel beer barrels. The installation involves the manual place- ment of a metal valve with an attached plastic tube in the barrel and securing it in place by tightening a nut and two small screws, a process which consumes approximately 3 minutes. The Basic Facts The Employer's beer barrels have a tap hole in the head from which beer is drawn at the retail establishment and another hole in the side or belly, known as the bung, through which it is cleaned and filled. When an empty barrel is returned to the brewery, it is cleaned by an employee in the Brewers' unit and a member of this unit inserts a cork LOCAL 4, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 267 in the tap hole. Since the cork is removed when the barrel is tapped, this operation is repeated each time an empty barrel is returned to the brewery. Subsequently, the barrel is filled and the bung hole sealed with a wood bung or plug by a brewer and sent to the shipping department. The Employer decided to modify the tap hole by substituting a permanently installed metal valve known as the Ballantine Easy Tap, which eliminated the need for a new cork each time the barrel was refilled. In January 1965, the Employer began installation of the new taps on a 10,000 barrel lot and assigned the work to the Brewers' unit. It is estimated that it will take two men 2 months to complete the lot. Conversion of the Employer's remaining 180,000 barrels will depend upon customer acceptance of the new tap. Applicability of the Statute Charges herein allege a violation of Section 8 (b) (4) (D) of the Act. Testimony established that the Employer commenced the disputed work in January 1965 and assigned it to employees who are represented 'by the Brewers. At the time of the assignment, the IAM demanded that the Employer assign the disputed work to the employees it repre- sents and instituted a grievance proceeding to accomplish that result. The Employer notified the Brewers of the IAM grievance and the Brewers reasserted its claim to the disputed work. On December 18, 1964, the Brewers' secretary-treasurer notified the Employer that -should the Employer assign the disputed work to any employee not represented by the Brewers, the Brewers "shall consider this sufficient cause to strike your plant." Since the Employer has not changed its original work assignment, no strike took place. We find that there is reasonable cause to believe that a violation of Section 8 (b) (4) (D) has occurred and that the dispute is properly before the Board for deter- mination under Section 10(k) of the Act. Contentions of the Parties Brewers contends it has historically exercised jurisdiction over all work involved in the sealing of beer barrel holes, that the area practice is to use brewers exclusively for such work, that the work does not demand any craft skills, and that such skills as are required in the operation are imparted in the Brewers' apprentice program. The IAM's chief contention is that it is entitled to the disputed work because the work is essentially an assembling operation and its collec- tive-bargaining agreement with the Employer recognizes it as bargain- ing representative for employees engaged in assembling and dis- mantling. The Employer asserts that the work in dispute eliminates work formerly performed by brewers, and its assignment to them is com- pensatory for the job losses they -would otherwise suffer; that it is 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD more economical to use brewers on this simple manual operation rather than highly skilled machinists who command higher pay rates; and that the nature of the work and location in the plant make it more efficient to use brewers. 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 relevant factors. The following factors are asserted in support of the claims of the parties herein : 1. Contracts and certifications: The IAM claims the disputed work on the ground that the Employer has contractually recognized it as bargaining agent for employees engaged in certain work which in- cludes "assembling." Brewers likewise claims the disputed work on the ground that its contract embraces brewing operations of which the work in question is included. Although both unions contend that the contracts generally apply to the disputed work, neither contends that. its contract has specific application to the work in question since their contracts antedate the initiation of the disputed work. Both Unions have been certified by the Board as bargaining agents for certain em- ployees, but neither certification relates specifically to the work lit dispute. 2. Industry and area practice : The record indicates that other brewers in the Newark area who use tapping devices similar to the Ballantine Easy Tap have for many years employed brewers rather than machinists to install such devices. It further appears from the record that many New England breweries and some large breweries with plants located in various parts of the country use brewery workers exclusively in performance of the disputed work. No evidence that machinists installed tapping devices in the area or elsewhere was offered at the hearing. 3. Efficiency of operation: It is not considered that either brewers or machinists lack the skills or ability to equip barrels with the Bal- lantine Easy Tap. Employer witnesses testified, however, without contradiction, that the nature of the work and its location in the plant made it more efficient to use brewers for this particular installation. CONCLUSIONS AS TO THE MERITS OF THE DISPUTE Upon consideration of all pertinent factors appearing in the entire record, we shall not disturb the assignment of the work in dispute to the brewers. They are as skilled in the performance of the work as the machinists who compete for it and have performed it to the satis- faction of the Employer, who desires to retain them on the job. The present assignment of the work to brewers is not inconsistent with their collective-bargaining agreement, it conforms to the practice in LOCAL UNION NO. 272, INT'L ASSN. OF BRIDGE, ETC. 269 the area and to the general practice in the industry, and it appears that brewers may perform the disputed work more efficiently for the Employer than may the machinists. We shall, accordingly, determine the existing jurisdictional dispute by deciding that brewers, rather than machinists, are entitled to the work in dispute. In making this determination, we are assigning the disputed work to the employees of the Employer who are represented by the Brewers but not to that Union or its members. 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. Brewers employed by P. Ballantine & Sons, who are represented by Local 4, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, are entitled to perform the work of installing the Ballantine Easy Tap in the heads of metal beer bar- rels in the Employer's plant in Newark, New Jersey. CHAIRMAN MCCULLOCH took no part in the consideration of the above Decision and Determination of Dispute. Local Union No. 272, International Association of Bridge , Struc- tural and Ornamental Iron Workers, AFL-CIO and Prestress Erectors, Inc. and Carpenters' District Council of Miami, Florida and Vicinity, AFL-CIO. Case No. 12-CD-52. April 29, 1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10 (k) of the National Labor Relations Act, as amended, following a charge filed on July 31, 1964, and an amended charge filed on August 31,1964, by Prestress Erectors, Inc., herein called Prestress or the Employer. The charges alleged that Local Union No. 272, International Association of Bridge, Struc- tural and Ornamental Iron Workers, AFL-CIO, herein called the Iron Workers, violated Section 8(b) (4) (i) and (ii) (D) of the Act. On August 14, 1964, the Acting Regional Director for Region 12 issued a notice of hearing, which was later amended on September 1 and 3. The hearing held in Miami, Florida, before Hearing Officer Obediah R. Miller, began on September 14 and ended on October 22. 152 NLRB No. 21.