Int'l Union of Operating Engineers Local 347

INT'L UNION OPERATING ENGINEERS LOCAL 347 763 group 2 in a single overall unit, which, in the circumstances, we find to be appropriate. The Regional Director is instructed to issue a, cer- tification or certifications as decided by the results of the elections. [Text of Direction of Election omitted from publication.] 8 MEMBER JENKINS took no part in the above Decision and Direction of Election. 8 Election eligibility lists, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 13, within 7 days after the date of this Decision and Direction of Elections . The Regional Director shall make the lists available to all parties to the elections No extension of time to file these lists shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the elections whenever proper objections are filed Excelsior Underwear Inc, 156 NLRB 1236. International Union of Operating Engineers , AFL-CIO, Local Union No. 347 and Falstaff Brewing Corporation and Interna- tional Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, Local Union No. 130. Case 23-CD-101. June 21,1966 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 by Falstaff Brew- ing Corporation, hereinafter called the Employer or Falstaff, under Section 8(b) (4) (i) and (ii) (D) of the Act. The charge alleges that on or about December 30, 1965, International Union of Operating Engineers, AFL-CIO, Local Union No. 347, hereinafter called the Respondent or Engineers, induced and encouraged employees of the Employer and also threatened, coerced, and restrained the Employer by threatening to engage in a work stoppage on and after Janu- ary 5, 1966, in order to force or require the Employer to assign par- ticular work to members of the Respondent, rather than to members of International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, Local Union No. 130, hereinafter called the Brewers. A hearing was held on February 16 and 17, 1966, at Galveston, Texas, before Hearing Officer Paul L. Harper. All parties participated in the hearing 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. All parties have filed briefs in support of 159 NLRB No. 51. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their positions taken during the hearing, which have been duly considered. Pursuant to the provisions of Secton 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 [Members Fanning, Brown, and Jenkins]. Upon the entire record in this case, the Board makes the following findings : I. TI-117 EMPLOYER The Employer is a Delaware corporation engaged in the manufac- ture and distribution of beer and related products throughout the United States. The Employer's plant involved in this proceeding is located at Galveston, Texas. During the 12-month period antedating the hearing herein, the Galveston plant purchased supplies and materials directly from sources outside the State of Texas valued in excess of $50,000. During the same period the Galveston plant manu- factured, sold, and shipped directly to purchasers located outside the State of Texas products valued in excess of $50,000. Accordingly, the parties stipulated and we find, that the Employer is an employer 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 in this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the respondent and the Brewers are labor organizations within the meaning of Section (2) (5) of the Act. III. THE DISPUTE In December 1965 the Employer installed new grain-drying and pelletizing equipment in its Galveston plant. The grain-dryer was placed into operation on or about December 23, 1965, on a regular part-time schedule. At the time of the hearing, the pelletizer had only been used sporadically on a trial basis. When these new facili- ties were in their final stages of installation, both the Respondent and the Brewers bade the Employer to assign the work of operating this equipment to employees whom they represented. After reviewing the various circumstances involved in assigning this work, including the pertient labor agreements and the current division of work in the plant between these two labor organizations, the Employer advised them that it intended to award the work to the Brewers. At this juncture; Respondent was willing to consider arbitration of the dis- pute but only on the condition that the Brewers and the Employer INT'L UNION OPERATING ENGINEERS LOCAL 347 765 would consent to be bound by the decision of the arbitrator. When this proved impossible, Respondent threatened the Employer with a ,work stoppage unless the disputed work was assigned to employees represented by Respondent. On December 30, 1965, A. G. Goodson, Respondent's business repre- sentative, sent a letter to the Employer reiterating its request that the disputed work be assigned to its members by January 5, 1966, and threatening to "cease work at your plant in order to enforce our demands in regard to the jurisdictional dispute." Concluding, the Respondent advised the Employer that failure to accede to Respond- ent's demand would "leave us no alternative but to resort to work stoppage." Subsequently, the Employer filed charges with the Board's Regional Office culminating in these proceedings. In the interim, the disputed work has been performed by the Brewers. The grain-dryer and pelletizer are adjacent to one another in a building across the railroad tracks from the main plant complex. This is the same building within which incoming malt and grains are received and customarily unloaded by employees represented by the Brewers. Respondent does not seek to have those whom it repre- sents perform the unloading of these raw materials from railroad cars, nor does it seek the work of loading the dried grain or pellets into railroad cars or trucks of the Employer's customers who purchase these by-products. Prior to the advent of this new equipment employ- ees represented by the Brewers performed all of these regular or rou- tine tasks in this plant area. Engineers are not directly involved in the operation of machinery or other units which are directly con- nected with the plant production processes. This work by custom and practice is within the province of the Brewers. In contrast, Engi- neers' work primarily consists of the in-plant supplying of utilities such as heat, steam, pressure, refrigeration, and the maintenance work related thereto. The grain-drying and pelletizing equipment is used to dry out spent grain resulting from the brewing process which heretofore had been sold in vet form, principally for use by suppliers of animal foods. According to the Employer, these additional steps in by- product preparation are economical and will yield greater profits. Essentially the drying operation is composed of two steps-pressing action for squeezing moisture from the spent grain used in the brew- ing process followed by conveying this grain into a large furnace capable of producing very high temperatures. The furnace is cylin- drical-approximately 13 feet long and 9 feet in diameter-and it opens into a 30-foot revolving drum also approximately 9 feet in diameter. After the grain is dried by the furnace and drum, it is 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD blown or sucked into a large holding bin. If the dried grain is to be formed into pellets, it is drawn from the holding bin, mixed with yeast, molasses, minerals, and steam, and the resulting agglomera- tion is pelletized. Employees operating this equipment are required to monitor the operations by observing meters on an electronic control panel. On and after July 1, 1966, the Employer plans to operate the grain- dryers during two shifts daily and the pelletizer simultaneously with one of these shifts. Consequently, under this projected schedule, the dispute herein involves the two additional employees who will man this equipment-one for each shift. IV. CONTENTIONS OF THE PARTIES 1. Respondent: Like the Brewers, the Respondent Engineers, in claiming the disputed work, strongly rely upon certain language in their existing bargaining agreement with Falstaff which runs to 1968. In article I, section 1, of the agreement, it is provided, inter alia, that Engineers "will be employed to operate, clean and inspect all boilers, engines, pumps . . . heaters." [Emphasis supplied.] Based upon the express mention of "heaters" in their contract and the fact that Engineers have traditionally operated all other gas-combustion devices' in the plant, the Engineers argue that the operation of the gas-fired grain dryer should be awarded to employees whom it repre- sents. As for the pelletizer, the Engineers also relies on general lan- guage in article I, section 1, of its agreement, stating that employees covered by its contract shall perform "servicing of ... any and all other machinery that comes properly under the jurisdiction of the Union ...." Apart from these contract provisions, the Engineers contends that its claim for the disputed work is justified on the basis of company, area, and industry practices; the efficiency of the Employer's busi- ness; basic craft jurisdictional requirements; and training and appren- ticeship factors. 2. Brewers: The Brewers contends that the following provision in its existing bargaining agreement with Falstaff, which also runs to 1968, is dispositive of the work assignment issue herein. Article II, section 4, thereof, reads, in pertinent part, as follows : Should the Company install a grain-drying process, malt storage bins or racking room, the men so employed shall come within the coverage of this contract and shall be paid regular journeymen's wages. i However, the record shows that the Brewers operate about 12 portable, kerosene-fired space heaters at various places in the plant during winter months. INT'L UNION OPERATING ENGINEERS LOCAL 347 767 In this connection, the Brewers contends that the contract provi- sions advanced by the Engineers in support of its claim are illogical and unrealistic, whereas the Brewers' contract clearly and unambigu- ously validates the Brewers' claim. Moreover, it contends that the disputed work is closely integrated functionally with other operations in the plant currently performed by employees it represents and should be retained by it because it is production work which is a logi- cal extension of the production process already under its contractual jurisdiction. Additionally, the Brewers relies on the circumstances that other Brewers' locals perform grain-drying operations in other Falstaff plants and that current practice in the brewing industry is to assign this work to employees whom they represent. 3. The Employer: The Employer, using substantially the same arguments presented by the Brewers, agrees with the Brewers that employees represented by that labor organization are entitled to the assignment of the work in question. V. APPLICABILITY OF THE STATUTE In order that the Board may proceed to a determination of a 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) has been violated. As noted above, the record contains adequate evidence that on December 30, 1965, if not before, the Respondent threatened the Employer with a work stoppage with the avowed objective of forcing or requiring the Employer to reassign the disputed work to employ- ees who are members of the Respondent, rather than to employees who are members of the Brewers' Union. Accordingly, we conclude, on the basis of the entire record, 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 determination pursuant to Section 10(k) of the Act. VI. THE MERITS OF THE DISPUTE The Board stated in the J. A. Jones Construction Company case 2 that it will , pursuant to the Supreme Court's C.B .S. decision,3 deter- mine the appropriate assignment of the disputed work only after taking into account the evidence supporting the claims of the parties and weighing all relevant factors. 2 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Con- struction Company ), 135 NLRB 1402, 1410. 3 N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1313, etc. ( Colnmbus Broadcasting System ), 364 U.S. 573. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Certification, Bargaining Agreements, Awards : According to the record, there is no Board certification relating to the disputed work, nor are there any agreements between these labor organiza- tions governing the work in issue. However, as stated in part IV, supra, both Respondent and the Brewers contend that their bargain- ing agreements support their respective claims for the operation of the grain-dryer and pelletizer. After considering the express lan- guage of the pertinent contractual provisions as previously set forth, we find, consistent with the positions of the Brewers and the Employer, that article II, section 4, of the Brewers' Agreement, when contrasted with cited provisions of Respondent's agreement, favors the award of the disputed work to the Brewers.4 In the Brewers' agreement, Falstaff had expressly obligated itself to assign the operation of "a grain-drying process" to the Brewers should such a process be installed. On the other hand, the Respondent is not persuasive when it premises its claim upon the argument that the grain-dryer is primarily a heater and "heaters" are mentioned in article I, section 1, of its agreement. The grain-dryer is not solely a heater but it also incorporates a compressing action in the course of dehydrating the spent grain. Consequently, it appears that the grain- drying process is analogous to other plant functions such as brewing or pasteurizing which are accomplished with heat and which lie within the undisputed jurisdiction of the Brewers. Nevertheless, although the Brewers' agreement strongly fortifies its claim, we do not rely solely on the terms of the respective labor agreements in making our determination herein. 2. Skill and Training: The evidence shows that the employees presently detailed to perform this work were given 5 days on-the-job training under the direction of the chief engineer. It is contemplated that once staff personnel become familiarized with the grain-dryer and pelletizer, additional employees will be trained by the chief brew- master when they are needed. Inasmuch as no particular or special- ized skill is required for the operation of the equipment, this factor fails to favor either the Brewers or the Respondent. 3. Integration of Grain-Drying With Other Production Functions Performed by the Brewers : The grain-drying and pelletizer is housed in the same building as the malt silo, near a railroad siding, where incoming malt and corn grits are unloaded and where the holding tanks for spent grain and yeast are situated. Brewers perform the unloading of new supplies of malt and grits in the same area where the grain-dryer is located. The spent grain which is to be dehydrated 4 See J. A. Jones Construction Company, supra, where "agreements between unions and employers" is stated to be one of the elements which the Board will consider in resolving work-determination disputes . In this connection, we note that neither labor agreement herein mentions the pelletizer. INT'L UNION OPERATING ENGINEERS LOCAL 347 769 is a direct result of the brewing process and is conveyed from the brewhouse by the Brewers to the holding tank adjoining the grain- dryer. Also, the yeast that is to be mixed with the spent grain to enhance its nutritive quality will be transferred to the correct tank by an employee represented by the Brewers so that it may later be infused into the grain-dryer or pelletizer by the grain-dryer operator. Under the present work assignment, the grain-dryer operator, when not occupied for a full shift, helps other Brewers unload malt and grits from railroad cars and similarly assists the loading of dried grain or pellets into waiting railroad cars or trucks. Accordingly, it is manifest that the grain-drying process is very closely interre- lated with other plant production operations which are all performed by the Brewers and that grain-dryer operators have a significant community of interest with other employees represented by the Brewers. 4. Company and Industry Practice. The record shows that most employers in this industry do not operate grain-dryers and pelletizers. However, as to Falstaff, its breweries which are located at Fort Wayne, Indiana; Omaha, Nebraska; and Cranston, Rhode Island, contain grain-drying facilities which are operated by the Brewers. Further, in these three breweries, as herein, the engineers are repre- sented by the Respondent. Moreover, the record also establishes that Brewer's members operate grain-dryers at breweries located in Mil- waukee, Wisconsin; Natick, Massachusetts; Cleveland, Ohio; Detroit, Michigan; and Belleville, Illinois, whereas the record is devoid of any showing that the Respondent represents any such employees in brew- eries located in the United States. In view of this evidence, as well as other evidence in the record, we find that company and industry practice governing grain-drying work assignment favors the Brewers' claim herein. 5. Economy and Efficiency: The Respondent asserts that assign- ment of the disputed work to employees it represents would be eco- nomical and efficient for the Employer because Engineers are already responsible for greasing and oiling the grain-dryer and pelletizer. While the evidence discloses that Enginers spend about 1 hour and 45 minutes per clay on these units, in accord with existing plant practice relating to machine lubrication, we believe that other considerations preponderate in favor of the Brewers' claim. As has been previously mentioned, the Brewers, who have been operating this equipment, also supplement the efforts of other employees represented by this Union in unloading incoming malt and grains and in loading dried grain and pellets into railroad cars or trucks. These functions are not sought, by the Respondent and, if the disputed work is awarded 'to the Respondent, the Employer would be confronted with the loss of 243-084--07-vol. 159-50 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the grain-dryer operators' contribution to their performance. Con- sequently, it would appear that the assignment of the work in dis- pute to the Engineers would curtail the flexibility and efficiency of the Employer's operations. VII. CONCLUSION Upon our consideration of all pertinent factors in the record, we find that grain-dryer and pelletizer 5 operators represented by the Brewers are entitled to the assignment of the disputed work. The Employer's award of the work has been to employees who have performed it economically and efficiently to the satisfaction of the Employer; it is work which, on the basis of the evidence at hand, is already performed by Brewers at three other Falstaff plants and in other breweries whereas the Respondent has not been able to show that its members perform this work in any other brewery ; our analysis of the respective bargaining agreements shows that perti- nent provisions in the Brewers' agreement more strongly substanti- ate its claim to the work; and the grain-drying process is closely integrated with other production functions performed by the Brew- ers. We conclude, therefore, that the Employer's assignment of the disputed work to the Brewers should not be disturbed. Accord- ingly, we shall determine the existing jurisdictional dispute by deciding that employees represented by the Brewers, rather than employees represented by the Respondent, are entitled to the dis- puted work. In making this determination, we are assigning the disputed work to the employees of the Employer who are repre- sented 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 hereby makes the following determination of dispute : 1. Employees of Falstaff Brewing Corporation, who are repre- sented by International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of American, AFL-CIO, Local Union No. 130, are entitled to perform the work of operating the grain-dryer and pelletizer at the Galveston, Texas, brewery of Falstaff Brewing Corporation. 2. International Union of Operating Engineers, AFL-CIO, Local Union No. 347, is not entitled, by means proscribed by See- 8 we are awarding operation of the pelletizer to employees who are represented by the Brewers because, as explained supra, the pelletizer is an integral part of the manufacture of the dried grain by-product. LAWSON PRINTERS, INC. 771 tion 8(b) (4) (D), to force or require Falstaff Brewing Corpora- tion to assign the work of operating the grain-dryer and pelletizer to employees represented by it at the Employer's Galveston, Texas, brewery. 3. Within 10 days from the date of this Decision and Determi- nation of Dispute, the International Union of Operating Engi- neers, AFL-CIO, Local Union No. 347, shall notify the Regional Director for Region 23, in writing, whether it will refrain from forcing or requiring Falstaff Brewing Corporation, by means pro- scribed by Section 8(b) (4) (D) of the Act, to assign the work in dispute in a manner inconsistent with the above determination. Lawson Printers, Inc. and Southwest Michigan District Joint Council, International Printing Pressmen and Assistants' Union of North America, AFL-CIO. Cases 7-CA-5194 and 5194(2). June 21, 1966 DECISION AND ORDER On January 25, 1966, Trial Examiner Owsley Vose issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. The Trial Examiner also found that the Respond- ent had not engaged in certain other unfair labor practices and rec- ommended that the allegations pertaining thereto be dismissed. Thereafter, the Respondent filed certain exceptions to the Trial Examiner's Decision and a brief in support thereof, and the General Counsel filed cross-exceptions and a supporting brief. 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 these cases to a three- member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 1 Of the violations found by the Trial Examiner , the finding of the discriminatory dis- charge of Kewley alone is excepted to by Respondent. 159 NLRB No. 75.