Local 470, Teamsters

434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 470, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and H. Perilstein Glass Company and Local 1166, Glassworkers of Philadelphia and Vicinity, Interna- tional Brotherhood of Painters and Allied Trades .' Case 4-CD-254 December 6, 1971 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by H. Perilstein Glass Company, herein called the Employer, under Section 8(b)(4)(D) of the Act. The charge alleges, in substance, that Local 470, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called Teamsters, coerced and restrained the Employer by threatening to engage in and thereafter engaging in a work stoppage in order to force or require the Employer to assign particular work to members of Teamsters rather than to members of Local 1166,, Glassworkers of Philadelphia and Vicinity, Interna- tional Brotherhood of Painters and Allied Trades, herein called Glassworkers. Duly scheduled hearings were held on July 14, July 28, and August 4, 1971, at Philadelphia, Pennsylvania, before Hearing Officer Alfred Vitarelli. All parties appeared at the hearing and were afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence on the issues. Thereafter, briefs were filed by the Employer, Teamsters, and Glassworkers. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor ,Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearings and finds that they are free from prejudicial error. The rulings are hereby affirmed. The Board has considered the entire record in this proceeding, including the briefs, and hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Employer is engaged in the fabrication, warehousing, and distribution of glass at its Philadelphia, Pennsyl- vania, facility, as well as at other of its facilities which it operates in various cities of the United States, that 1 The name of this party, which intervened on the basis of its collective- bargaining relationship with H Penistein Glass Company, appears as during the past year its total sales exceeded $500,000, and that during this same period, it has shipped goods valued in excess of $500,000 from its Philadelphia, Pennsylvania, plant to points located outside the Commonwealth of Pennsylvania. The parties further stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. We further find that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Teamsters and Glassworkers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Background Facts The Employer has 20 locations throughout the country where it is engaged in the business of fabricating, warehousing, distributing, and installing flat-glass products. Its Philadelphia, Pennsylvania, plant only is involved in the instant dispute which concerns the operation of a forklift utilized in loading and unloading raw and finished materials and products onto and from trucks, and transporting such materials and products on, to, from, and inside the Employer's dock, warehouse, and plant. At the time of the dispute, and for 33 years prior thereto, the Employer was bound by collective-bargaining agree- ments with both Teamsters, which represents the Employer's drivers, and Glassworkers, which repre- sents all of the Employer's inside glassworkers except glaziers. With respect to the instant dispute, the record shows that from 1937 to 1968, the Employer had no loading platform at its plant, which was divided by a public thoroughfare, and that the work of loading and unloading trucks was performed in and about the city streets, first manually and, since the mid-1940's, by forklift. Glassworkers, who theretofore had per- formed this work manually, were then assigned the forklift to perform not only this particular work, but also all forklift work within the Employer's plant. Undesignated members of Glassworkers continued to perform the foregoing work until August 1958, when the Employer specifically assigned the outside forklift work to Glassworkers member Davis in order to provide him with -a job. At or about this same time, Teamsters demanded the forklift work involved in loading and unloading trucks, arguing that, since the forklift carried a state license tag and was operated on city streets, such constituted transportation and amended at the hearing. 194 NLRB No. 64 LOCAL 470, TEAMSTERS 435 required a Teamsters driver. The Employer then reassigned this facet of forklift work to Teamsters, and Davis, who then became a Teamsters member, continued to operate the forklift until his departure in 1964. The Employer, however, also allowed Davis to perform forklift work inside the plant because it became "annoying" to change from a Teamsters to a Glassworkers operator at the plant door, thereby enlarging its assignment to Teamsters. During the 3 to 4 years after Davis' departure, no specific individual was assigned to the forklift which Teamsters continued to operate, both outside and inside the plant, almost exclusively, or at least a majority of the time. By or in January 1968, the Employer had consoli- dated its entire Philadelphia operation under one roof, thereby eliminating both the necessity of using the forklift on city streets and the grounds utilized by Teamsters in claiming the work. The Employer thereupon reassigned all forklift operations to mem- bers of Glassworkers. The record shows that such work consumes approximately 3 hours daily, half of which time is devoted to loading and unloading trucks at the Employer's platform, or dock, and the remain- der to the movement of merchandise inside the warehouse, the movement of raw material from storage areas into cutting or fabricating areas, and the movement of finished products to the washing or packing departments or storage areas. Shortly thereafter, the parties to the dispute attend- ed a meeting, where, according to Teamsters presi- dent, the dispute was settled through a verbal agreement proposed by the Employer's plant manager providing that "as long as there was 12 Teamsters on the payroll, they [Glassworkers ] could operate the forklift. When and if it went down below 12, a Teamster would drive it." This testimony was contest- ed by the Employer's plant manager who stated that he had presented the foregoing plan at the meeting as an offer only, and that although "there was an acquiescence on the part of all the parties involved, without signing anything, that there would be no further course of action. . . . We did not come up with a resolution in the meetings." Glassworkers vice president, who also was at the meeting, stated that, to his knowledge, the forklift operation was not dis- cussed at the meeting. In any event, on January 25, 1968, the Employer reduced its foregoing proposal to writing and submitted it to both Unions in the form of an undated agreement signed by the Employer. Neither Union executed the tendered agreement which, Teamsters claim, nevertheless is binding as an oral "gentlemen's agreement," and which Glasswork- ers characterize as being "very irregular." Glassworkers continued to perform all forklift work without controversy until a teamster was laid off, thereby reducing below 12 the number of Teamsters employed. Shortly thereafter, on either May 15.or 17, 1971, all Teamsters employed by the Employer engaged in a 1-day work stoppage . According to the uncontradicted testimony of the Employer 's presi- dent, Teamsters Business Agent McCaffrey told him that the work stoppage was occasioned by the Employer's failure to "Keep our word about some- thing," that Teamsters "wanted the forklift work .. . the platform loading, unloading . . . [and] everything in sight," and that he, McCaffrey , was going to make sure that "he got the forklift and other [undisclosed] things which were in contention." The Employer then filed the charges which gave rise to this proceeding. Prior to the commencement of the hearing, howev- er, Teamsters and Glassworkers had submitted their controversy to their respective International Unions for a joint determination which, these parties agreed, would be binding on them. Because of certain apparently unavoidable delays at the International level, the dispute still was unresolved as of the time of the hearing when Teamsters moved for a continuance until such time as the Internationals rendered a determination which, thereby, would "voluntarily settle this matter." Glassworkers agreed to a continu- ance and iterated its agreement to be bound by the Internationals' determination . The Employer, howev- er, while not objecting to a continuance , refused to be bound if the Internationals rendered a determination which "purports to split up the operation of the fork- lift between the competing Unions." The Hearing Officer thereupon denied the motion for continuance. B. The Work in Dispute The record shows that the work in dispute concerns the operation of a forklift utilized in loading and unloading raw and finished materials and products onto and from trucks, and transporting such materials and products on, to, from, and inside the Employer's dock, warehouse, and plant. Teamsters specifically disclaim the assignment of all loading, unloading, and other work unrelated to the forklift. C. Contentions of the Parties The Employer contends that the disputed work should be awarded to members of Glassworkers on the basis of the Employer's assignment of such work to members of this Union, its past practice , its practice at its 19 other locations throughout the United States, industry practice within the Philadelphia area, and considerations of skill, economy, and efficiency. The Employer also contends, in substance and effect, that its 10-year assignment of the disputed work to Teamsters was occasioned by special circumstances which were negated when it consolidated its operation 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that, even during this period, Teamsters did not operate the forklift exclusively. The Employer further contends that its proposal to award the disputed work to Teamsters whenever it employed less than 12 drivers is legally irrelevant since it was not executed by any of the parties. The Employer also contends that, while its bargaining agreements with each disputant favors neither, Teamsters reliance on the foregoing proposal as an "unexecuted modification" of its bargaining agreement amounts to an admission that its contract, without such modification, does not award the work to it. Glassworkers urges the Board to assign the disputed work to its members for substantially the same reasons as set forth by the Employer. Glassworkers also contends, in substance, that Teamsters reliance on the Employer's oral "offer" to assign the disputed work to Teamsters whenever less than 12 Teamsters members are employed by the Employer indicates that Teamsters is not claiming the work on an exclusive basis, or even seriously contending that the work was improperly assigned to Glassworkers, and urgues that this relied-upon ground is an unprece- dented basis on which to predicate an award. Teamsters contends that all of the parties to the dispute have agreed to a "continuance [of this proceeding] so that the respective International Unions involved could work to arrange a settlement of the matter." Teamsters further contends that all parties also agreed on the foregoing method of settlement, and that these agreements constitute a method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Based thereon, Teamsters argues that both the Act and Board decisions preclude the Board from determining the dispute, and that the Board must grant the requested continuance which its Hearing Officer erroneously rejected so that the dispute may be adjusted by "the two International Unions involved [which ] are still negotiating toward a settlement...." In like vein, Teamsters argues, in effect, that the parties orally agreed to utilize a teamster on the forklift whenever less than 12 Teamsters were employed, and that such constitutes "an oral, if not formal, understanding for a settlement of the prob- lem." Alternatively, Teamsters contends that the disputed work should be assigned to its members on the basis 2 L & K Contracting Company, Inc., 186 NLRB No. 152, Sicihano Brothers Inc, 185 NLRB No. 115; Lathers Union Local 104, The Wood, Wire and Metal Lathers International Union, AFL-CIO. (The Blaine Petty Company), 186 NLRB No 70; Plasterers Local Union No. 79 (Southwestern Construction Company), 172 NLRB No 77, enforcement denied 440 F 2d 174, cert granted U.S 3 We find no meat in Teamsters contentions that the parties orally agreed that the disputed work would be reassigned from Glassworkers to Teamsters whenever less than 12 teamsters were on the payroll, and that such agreement constitutes an "oral . understanding for settlement of of its bargaining agreement and past practice; i.e., the 10 years during which its members performed the work. D. Applicability` of the Statute Before 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 previously set forth, following the layoff of one of its members, Teamsters, through its business agent, McCaffrey, accused the Employer of failing "to keep [its] word about something," further stated that Teamsters wanted the forklift work as well as "other things which were in contention," and engaged in a work stoppage for the declared purpose of compelling the Employer to reassign the disputed work to its members. As to Teamsters arguments concerning the authori- ty of the Board to determine this dispute, we have consistently held in our 10(k) determinations that the employer controlling the work assignment as well as the rival unions involved comprise the parties to such dispute, and that all of the parties must approve and enter into a voluntary adjustment procedure in order to preclude a hearing and determination pursuant to that section of the Act.2 The record affirmatively shows, however, that the Employer did not either approve or enter into an adjustment procedure since its acquiescence in both Teamsters motion for a continuance and the proposed settlement procedure was preconditioned on the Employer's specific refusal to be bound by any joint- union determination unless it agreed with that determi- nation. We find, therefore, that all of the parties failed to approve and enter into a voluntary adjustment procedure, as required by Section 10(k) of the Act. We further find that the Hearing Officer properly denied Teamsters motion for continuance. Accordingly, we find that the Board is not precluded from making its determination in this proceeding.3 E. Merits of the Dispute We shall, in conformity with the J. A. Jones caue4 the problem " Inasmuch as the record clearly shows that Glassworkers vice president attended the meeting at which the foregoing "agreement" allegedly was made but was completely unaware of any discussion whatsoever concerning the forklift, it is apparent that the parties did not enter into the claimed "agreement" for settlement, or an "oral . . understanding for settlement," or that, as is implied in these contentions, the dispute was thusly settled, thereby precluding the necessity of a hearing and a Board determination of the dispute. 4 International Association of Machinists, Lodge No. 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402. LOCAL 470, TEAMSTERS 437 and pursuant to the Supreme Court's C.B.S. decision,5 determine in this case presented for resolution under Section 10(k) of the Act the appropriate assignment of the disputed work after taking into account and balancing all relevant factors. 1. Collective-bargaining agreements As previously indicated, the Employer and Team- sters are parties to national and local cartage bargaining agreements which cover, inter alia, "employees used in . . . forklift . . . work," and which also set forth the pay rates for such classifica- tion. The Employer's bargaining agreement with Glassworkers covers employees engaged in "fabricating, jobbing and handling of glass." While it is arguable that the specific language of Teamsters agreement is a factor favoring an award to Teamsters, the actualities show that Teamsters neither performed the disputed work subsequent to the effective date of its agreements, nor relied on those agreements when, over a year later, it claimed the work on the basis of a nonbinding "oral . . . understanding" which it later refused to execute when reduced to writing. Converse- ly, the absence of specific language in Glassworkers agreement indicating that a forklift was to be utilized by its members in their "handling of glass" does not negate the fact that they, in fact, performed that work with that machine, despite Teamsters agreements. In view of the foregoing, it appears that the respective agreements merely corroborate the claims of the disputants and do not clearly and uniformly favor or disfavor either labor organization. 2. Skill, efficiency, and economy There is nothing in the record to indicate that members of the competing labor organizations cannot perform the disputed work with equal skill. That work, however, consumes only 3 hours daily and is included within the tasks performed by Glassworkers. In addition, Teamsters agreement provides that employees who either are called in or start to work shall be paid for 8 hours. In view of the foregoing, an award of the work to Teamsters not only could require the Employer to utilize or hire additional unnecessary employees, but also would impair the efficient use of its manpower (particularly if the employee assigned this work was restricted to this operation), increase its operating costs, and affect the flexibility and economy of its operation. 5 N L R B v Radio & Television Broadcast Engineers Union, Local 1212, Electrical Workers (Columbia Broadcasting System), 364 U S. 573 6 We note further in this regard that the Employer's assignment of the work to Teamsters members was predicated on Teamsters claim that the 3. The Employer's preference and company and area practice The Employer strongly favors an award to its employees who are members of Glassworkers. The industrial practice within the Employer's Philadelphia area of operation as well as its practice at its 19 other locations throughout the United States also favors an award to those members. The record shows in this regard that, in the Philadelphia area, members of Teamsters employed by glass companies perform forklift operations for a few concerns which utilize forklifts on the waterfront, and for a company whose forklift operations are conducted on city streets, as the Employer's once was. Beyond the foregoing, Teamsters introduced virtually no evidence of area practice. The Employer and Glassworkers, on the other hand, offered evidence showing that, except as noted above, only members of Glassworkers perform the disputed work at six area glass companies which are comparable to, or larger in size than, the Employer, and that historically, only those members have performed this work at some of those concerns. In addition, undisputed testimony in the Employer's behalf indicates that only Glasswork- ers members perform the work at the Employer's 19 other locations. In view of the foregoing, and considering further the fact that members of Glassworkers performed the disputed work for 12 years prior and 3 years subsequent to the 10-year period during which Teamsters members performed it, it would appear that the period of Teamsters performance does not constitute an established Employer practice favorable to Teamsters and is an exception to established industry practice within the areas It appears, there- fore, that within the context of the proffered evidence, the foregoing factors favor an award to members of Glassworkers. Conclusion Having considered all pertinent factors present herein, we conclude that employees represented by Glassworkers are entitled to perform the work in dispute. In making this determination, we are assign- ing the disputed work to the employees of the Employer who are represented by Glassworkers, but not to that Union or its members. Our present determination is limited to the particular controversy which gave rise to this proceeding. operation of the forklift on city streets involved transportation, and that its assignment of the work terminated when its reasons for claiming the work terminated 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DETERMINATION OF DISPUTE to employees employed by H. Perilstein Glass Company who are represented by Local 470, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 470, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, shall notify the Regional Director for Region 4, in writing, whether or not it will refrain from forcing or requiring H. Perilstein Glass Company, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees employed by H. Perilstein Glass Company who are represented by Local 470, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, rather than to employees employed by H. Perilstein Glass Company who are represented by Local 1166, Glassworkers of Philadelphia and Vicinity, International Brotherhood of Painters and Allied Trades. Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and on 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 employed by H. Perilstein Glass Company who are represented by Local 1166, Glassworkers of Philadelphia and Vicinity, Interna- tional Brotherhood of Painters and Allied Trades, are entitled to perform the work of operating the forklift utilized in loading and unloading raw and finished materials and products onto and from trucks, and transporting such products on, to, from, and inside the Employer's dock, warehouse, and plant. 2. Local 470, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require H. Perilstein Glass Company to assign such forklift work