Brewers Local 5, Brewery Workers

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brewers Local Union No . 5, United Brewery & Soft Drink Workers of Philadelphia and Vicinity , Inter- national Union of United Brewery, Flour , Cereal, Soft Drink and Distillery Workers of America, AFL-CIO and International Union of United Brewery , Flour, Cereal, Soft Drink and Distillery Workers of America , AFL-CIO and C. Schmidt & Sons, Inc. and Local 830, International Brother- hood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, Ind. Case 4-CD- 187 September 30, 1968 DECISION AND DETERMINATION OF DISPUTE By MEMBERS FANNING, JENKINS, AND ZAGORIA This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by C. Schmidt & Sons, Inc , herein called the Employer, alleging that Brewers Local Union No. 5, United Brewery & Soft Drink Workers of Philadel- phia and Vicinity, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, (hereinafter called Brewers Local 5) and International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO (hereinafter called "The International") have violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held before William R Tait, Jr, Hearing Officer, on April 24 and 25, 1968. 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 The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Thereafter, the Employer, Brewers Local 5 and Teamsters Local 830, filed briefs which have been duly considered. 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. Upon the entire record in this case, the Board makes the following findings. 1. THE BUSINESS OF THE EMPLOYER C Schmidt & Sons, Inc. is a Pennsylvania corpora- tion engaged in the brewing and sale of beer and ale with its main offices located in Philadelphia, Penn- sylvania and plants located in Philadelphia and Norris- I Local 830, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter referred to as Teamsters Local 830) has intervened in this matter claiming the disputed work Brewers Local Union 183, United Brewery and Soft Drink Workers of Philadelphia and Vicinity, International Union of town, Pennsylvania and Cleveland, Ohio. During the past fiscal year it shipped finished goods valued in excess of $100,000 from its plant in Philadelphia, Pennsylvania to points outside the Commonwealth of Pennsylvania. We find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. it. THE LABOR ORGANIZATIONS INVOLVED The parties have stipulated, and we find, that Brewers Locals 5 and 183, their Joint Executive Board, the "International," and Teamsters Local 830 are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background The dispute herein involves the work of handling palletized empty beer kegs by means of forklift and the depalletization of such empty kegs in the Em- ployer's new plant in Philadelphia, Pennsylvania. It arises out of the Employer's assignment, under circumstances hereinafter described, of the work to employees represented by Teamsters Local 830. On August 31, 1948, Brewers Locals 5 and 183 were certified in a single bargaining unit of all bottle platform men and emergency servicemen but ex- cluding truckdrivers, keg platform men, warehouse- men, laborers, and helpers in the delivery department, office and clerical employees, watchmen, professional employees, salesmen, and supervisors Since that time, the Employer has been a party to continuing collective-bargaining agreements with Brewery Workers Local Unions No. 5 and 180 which cover all employees in the brewing and bottling department. The Employer also has had a contract with Teamsters Local 830 covering drivers, forklift operators, helpers, keg platform men, and garagemen. The Employer, prior to commencing operations at its new facilities on April 16, 1968, had maintained a production facility located at Edward and Hancock Streets in Philadelphia. Since about 1950, tractor- trailers pulled into its docks at Edward Street where empty kegs were manually unloaded and placed on a conveyor which routed them into the building. This unloading operation was performed by members of the Teamsters, and other Teamster members stationed inside removed the empty kegs from the conveyor and placed them either in storage or on vibrating skids The vibrating skids transported the kegs to the United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America , AFL-CIO (hereinafter referred to as Brewers Local 183) and the Joint Local Executive Board in Philadelphia and Vicinity of Brewers Local 5 and 183 (hereinafter called the Joint Executive Board) were permitted to intervene. 173 NLRB No. 14 BREWERS LOCAL 5, BREWERY WORKERS debunging operator, a member of Brewers Local 5, who debunged (removed wooden plugs) the kegs and placed them on a set of tracks leading into the washing machine. After being automatically washed and inspected, the empty kegs then proceeded through normal production channels to the filling stage, with such work being performed by members of Brewers Local 5. Several years ago, the Employer began working on modernization of its production facility and con- structed a new building close by its existing facility. In October 1967, as the new building was nearing completion, management personnel and representa- tives of Brewers Local 5 and Teamsters Local 830 held several meetings at which the assignment of work under the new system was discussed. Under the new operation the empty kegs arrive in tractor-trailers on pallets, which hold 12 kegs. Em- ployees, who are members of the Teamsters, unload the trailers using forklift trucks which place the three-tiered pallets on a conveyor which leads to an automatic elevator which in turn lifts them to the second floor washing and racking room where they are automatically discharged and moved on to a conveyor which transports them to a set position from which the kegs can be removed from the pallets for washing. At this point, the kegs are lifted manually from the pallet and placed on a conveyor which supplies the new automatic debunger, washing and racking line. This work requires two employees per shift. In addition to placing the empty kegs manually on the automatic wash line, these two employees also manually remove the intermediate boards which separate the tiers of kegs, as well as the base pallets, and stack them in positions alongside their work place. In addition, there is a forklift drivers' job, which consists of removing from the conveyor on the second floor those pallet loads which are not immediately required in the wash line, storing them in the storage area and returning them to the depalletizing station when they are needed. The forklift driver also transports the base pallets and intermediate boards to the palletizing machine which is used to palletize the kegs after washing and racking. The Employer's assignment of these three jobs; namely, the manual removal of the kegs from the pallets and the operation of the forklift truck, to employees who are members of the Teamsters, is the work in dispute herein. B. Contentions of the Parties The Employer assigned the work to the members of Teamsters rather than to members of the Brewers 2 The relocation of this work , namely the handling of empty kegs prior to washing, to the second floor has resulted more in a change of location of such work than in the functional aspects of the work itself It is also noted that since 1950 or 1951 , the Brewery Workers have not 65 Local 5 because it analogized the new operation to the old and attempted to conform the jurisdiction as much as possible to the old method. It analogized the depalletizing of kegs to the work previously done by Teamster members in placing the empty kegs on the vibrating skids to feed the debunging operation. The Employer contends that the new operation will only cause a layoff of two members of Brewers Local 5, since attrition and transfers will take care of 14 employees. On the other hand, there will be 19 members of the Teamsters laid off despite the assignment of these three jobs to members repre- sented by that Union. Brewers Local 5 claims that this is an erroneous work assignment. They claim this is an entirely new operation and any analogies should be to case goods which are palletized in a similar manner, and are handled after leaving the loading platform exclusively by members of Local 183 of the Brewery Workers. The Respondent takes issue with the term "depal- letizing" and contends that the job is more properly a "feeding and wash machine" operation. The Re- spondent further contends that the situs of the work is away from the traditional work area of Teamster members and is located in the wash house and racking area which had heretofore been the exclusive juris- diction of the Brewers Local.' The intervening Teamsters Local 830 agrees with the Employer on the work assignment. It relies on the historical factor that keg platform men have been excluded from the Brewery Workers certification and the collective-bargaining agreement. It contends that the exclusion has special significance and refers to any employees who handle empty kegs up to the begin- ning of the debunging operation. It further contends that the disputed work involves exactly the same function as performed by members of the Teamsters under the old operation in supplying the debunging operation with empty kegs. C. The Applicability of the Statute The charges herein allege violations of Section 8(b)(4)(D) of the Act. The record shows, and Brewers Local 5 concedes, that by letter, dated on or about March 18,1968, from the "International" and by oral communications by representatives of Brewers Local 5, the Philadelphia Lager Beer Brewers' Association and the Employer, the Employer was informed that its decision to assign the disputed work to employees represented by Teamsters Local 830 was unacceptable and that unless the disputed work was assigned to employees represented by Brewers Local 5, members of Brewers Local 5 would withhold their services maintained exclusive jurisdiction over the wash house and racking area as alleged because since that time they have consented to the employment of members of the Teamsters in this area for purposes of handling empty kegs prior to washing. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the Employer and engage in a work stoppage. On the basis of the entire record, we conclude 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. D. The 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 Board has held that its determination in a jurisdictional dispute case is an act of judgment based upon common sense and experience balancing such factors as are invoked in a particular case rather than upon precedent.3 E. Conclusions as to the Merits of the Dispute We note, initially, that several factors ordinarily of importance in jurisdictional disputes are not present here. Thus, there is no claim by either Union, nor does the record in any way indicate, that any special skill is required or that either of the two competing groups of employees is more experienced in, or more capable of, doing the disputed work. Moreover, the Employer concedes that the assignment of the dis- puted work was not influenced by considerations of greater efficiency or greater economy. Also, the record herein shows that there is no uniformity of industry or area practice with respect to the disputed work because there are no operations equivalent or comparable to these operations at the Employer's new facilities The record does show that despite the greater degree of mechanization in the keg handling facilities of the new facilities, which accounts for the loss of jobs from both groups, the Employer, by its assign- ment of the disputed work to the members of the Teamsters, has attempted to maintain essentially the same work division between these two groups as was maintained at its old facilities. Thus, Teamster mem- bers continue to perform such manual handling of kegs and movement of kegs to and from temporary storage areas as is involved in the routing of empty kegs up until they reach the debunging operation. It therefore appears that while automation has elimi- nated a number of jobs in both bargaining units, the Employer's present operation insofar as the disputed work assignments are concerned has resulted more in a change in the place where the work is performed than in the nature of such work.' We therefore find 3 International Association of Machinists, Lodge No 1743, AFL- CIO (J A. Jones Construction Company), 135 NLRB 1402, 1411 4 We recognize that the place in which the work is to be performed has a bearing on the correctness of a disputed work assignment, and that this factor weighs in favor of Respondent' s claim to the work in dispute that the Employer's assignment of the work in dispute to employees represented by the Teamsters is in essential conformity to past assignments of work at the Employer's brewery. Furthermore, the Employ- er's assignment serves to divide more equally the loss of jobs occasioned by automation between the competing groups of employees. According to the testimony of Employer's representatives, the more extensive use of automation in the new facility has resulted in the loss of 14 jobs in the Brewery Workers' unit and 19 in the Teamsters' unit if the Employer's assignment of the disputed work to employees repre- sented by the Teamsters is allowed to stand. More- over, because of attrition and other factors, only two Brewery Workers are to be laid off. This contrasts with 19 Teamsters, who are to be laid off even with the Employer's assignment herein Moreover, although neither collective-bargaining agreement expressly assigns the depalletizing work to employees covered by it, the Teamsters Local 830 agreement does contain classification for forklift operator and keg platform men. Historically, em- ployees represented by Teamsters have performed the work related to these classifications. The Brewers Local 5 certification expressly excludes keg platform men. The record also shows that since 1950 Brewers Local 5 has acquiesced in the employment of keg platform men inside the facility for the manual handling of empty kegs up to the point of the debunging operation. We see no basis for altering this long established division of work jurisdiction between these two groups merely because the exact manner of performing such work has not been preserved and the work is performed at a different place. In these circumstances, we find that Teamsters Local 830 collective-bargaining agreement weighs in favor of the Employer's assignment of the disputed work. Conclusion as to the Merits of the Dispute Upon consideration of all pertinent factors appear- ing in the entire record, we shall assign the work in dispute to the Employer's employees represented by Teamsters Local 830. The Employer's assignment of this work is in basic conformity to its own past practices regarding the assignment of essentially sim- ilar keg handling functions. Also, this award effects the least disturbance of employees' job rights. In making this determination, we are therefore assigning the disputed work to employees of the Company who are represented by Teamsters Local 830, but not to that Union or its members. Respondent has, however, long acquiesced in assignment of keg handling functions which are performed "inside" to employees repre- sented by the Teamsters, and we find that other factors favoring assignment of the disputed work to such employees outweighs the "place" factor. BREWERS LOCAL 5, BREWERY WORKERS 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 the dispute. 1. Employees employed by C Schmidt & Sons, Inc., Philadelphia, Pennsylvania, who are currently represented by Local 830, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., are entitled to perform the depal- letization work and the the moving of such pallets used in the process of routing empty and full kegs to and from the Employer's debunging, washing, filling, and palletization department 2. Brewers Local Union No. 5, United Brewery & Soft Drink Workers of Philadelphia and Vicinity, 67 International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL- CIO, is not, and has not been, entitled by means proscribed by Section 8(b)(4)(D) of the Act, to force or require the Company to award the above work to its members or employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, Brewers Local Union No. 5, United Brewery & Soft Drink Workers of Philadelphia and Vicinity, International Union of United Brewery, Flour, Cereal, Soft Drink and Dis- tillery Workers of America, AFL-CIO, shall notify the Regional Director for Region 4, in writing, whether it will or will not refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D), to award the work in dispute to its members rather than to employees represented by Teamsters