Machinists, District Lodge 27

MACHINISTS, DISTRICT LODGE 27 407 International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 27 and Joseph E. Seagram & Sons, Inc. and Millwrights, Conveyors and Machinery Erectors Local Union No. 2209, United Brotherhood of Carpernters and Joiners of America, AFL-CIO. Case 9-CD-255 July 26, 1972 DECISION AND DETERMINATION OF DISPUTE Accordingly, the parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Machinists and the Millwrights are labor organiza- tions within the meaning of Section 2(5) of the Act. BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by the Joseph E. Seagram & Sons, Inc., herein called the Employer, alleging that International Association of Machinists and Aeros- pace Workers, AFL-CIO, District Lodge No. 27, herein called the Machinists, has violated Section 8(b)(4)(D) of' the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by the Machinists, rather than to employees represented by Millwrights, Conveyors and Machinery Erectors Local Union No. 2209, United Brotherhood of Carpernters and Joiners of America, AFL-CIO, herein called the Millwrights. A hearing was held before Hearing Officer Edward C. Verst on May 1, 1972, in Louisville, Kentucky. 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 upon the issues. There- after, a brief was filed by the Millwrights. 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 Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that the Employer is an Indiana Corporation engaged in the manufacture and distribution of alcoholic beverages at Louisville, Kentucky. During the past 12 months, a representa- tive period, the Employer shipped products valued in excess of $50,000 from its Louisville, Kentucky, plant directly to points outside the State of Kentucky. III. THE DISPUTE A. The Work in Dispute The work in dispute, as stipulated to by the parties at the hearing, involves the assignment of mainte- nance work on automatic palletizing equipment, located in the Employer's finished case goods warehouse in Louisville, Kentucky. A palletizer is a packaging machine which receives sealed cartons and forms them into palletized units consisting of many cartons. This process is accomplished through the use of glue, bands, and cardboard pallets. B. Background and Facts of the Dispute The Employer is a party to collective-bargaining agreements with both the Machinists and the Millwrights. Prior to 1971, the Millwrights had jurisdiction to maintain the roller conveyors used to transport finished cases from the packaging depart- ment to the shipping department, where the cases were transported by hand for shipment. During the spring of 1971, the Employer opened a new finished case goods warehouse to replace the old shipping department. The new warehouse contains an auto- matic system for loading cases into palletized units, which are then ready for shipment. The Employer initially assigned the maintenance work on the new palletizing equipment to the Machinists. Shortly thereafter, on May 19, 1971, the Millwrights filed a grievance in accordance with the terms of its collective-bargaining agreement asserting its right to jurisdiction over the work in question. On March 7, 1972, a hearing was conducted by Arbitra- tor Louis C. Kesselman in Louisville, Kentucky, with the Employer and the Millwrights participating. The Machinists was not party to this proceeding, and did not participate in the arbitration. On March 22, the Arbitrator issued the following award: The Union grievance, dated May 19, 1971, is sustained. The Company improperly awarded work jurisdiction over maintenance of the new palletizing equipment to the Machinists. The proper remedy is to give the Millwrightsjurisdic- 198 NLRB No. 64 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion over maintaining this equipment starting with the beginning of the next pay period. After receiving the arbitration award, the Employ- er's administrative manager, Fred Brand, notified Joseph Howard, the Machinists shop steward, of the award, and informed him that the Employer would comply with its terms by reassigning the work in dispute to the Millwrights. Following the above communication, Howard telephoned Brand about an hour later and informed Brand that he, the steward, had considered the matter with Haskell Marshall, the Machinists busi- ness manager, and that it was the Machinists position that it would protect the original work assignment with any means available to it, including possibly striking in the event the work was reassigned to the Millwrights. Howard advised Brand that a formal response, by letter, would be forthcoming. Shortly thereafter, on March 24, 1972, Brand received a letter from the Machinists, which stated in part: "Also please be further advised that this union intends to take whatever action, economic or otherwise, it deems necessary to protect the work of our members." The record shows that Donald Wharton, who represented the Machinists at the hearing, stated that the Machinists did, in fact, threaten to strike to protect its assignment of the work in dispute. The Employer filed the charge initiating this proceeding on March 29, 1972. C. Contentions of the Parties The Employer's position is that its original assign- ment of the work in dispute to machinists was correct. The Employer contends that it related this work to similar maintenance performed on plant machinery by machinists, and that its assignment is consistent with its practice at two other plants. The Employer contends further that the assignment is also consistent with the assigned work tasks in the bottling and packaging departments, where machin- ists maintain machines and conveyors powered by such machines, which perform functions other than transport. The Employer has no preference as to which of the competing employees should be assigned the work, but takes the position that factors such as efficiency, economy, skill of operation, and safety are comparable, regardless of which of the employees perform the disputed work. The Machinists position is essentially the same as that of the Employer. It contends that the original assignment of the work to its members was correct based upon the following factors: (a) machinists perform maintenance work on similar type machin- ery in the plant; (b) the Employer's past practice; (c) area practice; and (d) economy of operation. The Millwrights position is that the work in dispute should be reassigned in accordance with the terms of the arbitration award, which considers the mainte- nance work on the palletizing equipment to be similar in nature to the work now performed by millwrights on the conveyor equipment leading directly to the palletizers. The Millwrights also contends that the historical practice at the Employ- er's Louisville plant (to award millwrights jurisdic- tion to maintain machinery related to moving or finished case goods) supports the assignment of the work to it because of the claim that the palletizer is a conveyor device and not machinery related to bottling and packaging. The Millwrights contends further that it is the area practice for members of the Millwrights to install palletizers, and in addition, to maintain them, as employees of a contractor, for a limited period of time. 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) has been violated, and that there is no agreed-upon method for the voluntary adjustment of the dispute. At the 10(k) hearing in this matter, Donald Wharton, representing the Machinists, stated: It is the Respondent's position that without questioning the witnesses put on by Employer, that we are admitting that we had threatened to strike. Based on the foregoing and the record as a whole, we find that an object of the Machinists threat was to force or require the Employer to assign the disputed work to employees represented by the Machinists. Accordingly, we find that reasonable cause exists to believe that a violation of Section 8(b)(4)(D) of the Act has occurred. The record shows that the Machinists was not a party to the arbitration proceeding. Section 10(k) requires the Board to hear and determine jurisdic- tional disputes unless the parties ". . . have adjusted, or agreed upon methods for the voluntary adjust- ment of, the dispute." The clear import of this language is that unless all parties involved in the dispute bind themselves to voluntarily ^ settle the jurisdictional dispute, the Board itself must deter- mine the issue. As the Machinists was neither a participant in the aforesaid arbitration nor bound by the agreement pursuant to which it was conducted, it is clear that the voluntary adjustment condition of Section 10(k) has not been met. In these circum- MACHINISTS, DISTRICT LODGE 27 stances, we are unable to conclude that all the parties have agreed voluntarily to be bound by the arbitra- tion proceeding, and we therefore find that this dispute is properly before the Board for determina- tion. E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors, and the Board has held that its determination in dispute cases is an act of judgment based upon commonsense and experience in balancing such factors.' Certain of the usual factors considered by the Board in these cases, such as certifications, contracts, skills, and efficiency and economy of operation, provide little basis for determining the instant dispute. Thus, while both unions have been certified for many years, neither certification is dispositive of the work in question. Furthermore, neither collective-bargaining agreement specifically covers the work in dispute. The requisite skills to perform the work in question are possessed by members of both unions. Although the Machinists attempted to rely on economy of operations, the evidence in this regard is inconclusive. Finally, since the Machinists did not participate in the arbitration proceeding, which culminated in an award of the work in dispute to the Millwrights, we can give little weight to that award. 1. Employer assignment and practice The Employer initially assigned the work in dispute to machinists. While the Employer has indicated no preference as to which of the two unions should be, awarded jurisdiction over the work, it takes the position that its original assignment to machinists was correct. With regard to employer practice, the record shows that the Employer has awarded maintenance work on palletizing equipment to 409 machinists at two of its other plants located at Lawrenceburg, Indiana, and Relay, Maryland. 2. Area practice The area practice with respect to the maintenance on similar type machinery favors the assignment of the work in dispute to machinists. The record shows that machinists perform such work at Brown and Williamson, Louisville, Kentucky. The Millwrights was unable to cite any instance wherein its members, as part of an industrial unit of employees, have performed such maintenance work on palletized equipment. Conclusions Having considered all pertinent factors present herein, we conclude that employees who are repre- sented by the Machinists are entitled to perform the work in dispute. This assignment is consistent with the initial assignment, the Employer's practice, and the area practice. In making this determination, we are awarding the work in question to employees represented by the Machinists, but not to that Union or its members. The present determination is limited to the particular controversy which gave rise to this proceeding. 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: Employees of Joseph E. Seagram & Sons, Inc., who are currently represented by International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 27, are entitled to do the maintenance work on automatic palletizing equipment in the Employer's finished case goods warehouse in Louisville , Kentucky. ' International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402