Steelworkers, Local No. 4454

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Steelworkers of America , AFL-CIO and its Local No. 4454 and Continental Can Company, Inc. and Graphic Arts International Union, AFL-CIO, CLC and its Local No. 277 United Steelworkers of America, AFL-CIO, and its Local No. 4453 and American Can Company and Graphic Arts International Union, AFL-CIO, CLC and its Local No. 277. Cases 30-CD-46 and 30-CD-47 March 23, 1973 DECISION AND DETERMINATION OF DISPUTES BY MEMBERS FANNING, JENKINS, AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Continental Can Company, Inc., herein called Continental, and American Can Com- pany, herein called American, alleging that United Steelworkers of America, AFL-CIO, herein called Steelworkers; Local No. 4454, United Steelworkers of America, AFL-CIO, herein called Local 4454; and Local No. 4453, United Steelworkers of Ameri- ca, AFL-CIO, herein called Local 4453, had violated Section 8(b)(4)(D) of the Act. On April 12, 1972, the Regional Director for Region 30 consolidated the two cases. Pursuant to notice, a hearing was held in Milwaukee, Wisconsin, before Hearing Officer Robert E. Sheahan on April 27 and 28; May 2, 3, 16, 17, and 31; June 1; and December 19, 1972. All parties, including Graphic Arts International Union, AFL-CIO,' herein called Graphic Arts, and its Local No. 277, herein called Local 277, appeared and were afforded full opportu- nity to be heard, to examine and cross-examine witnesses, and to present evidence bearing on the issues.2 Thereafter, Continental, American, and Graphic Arts filed briefs and supplemental briefs. Graphic Arts also filed a motion to dismiss the proceedings. 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 i On September 4, 1972, Lithographers and Photoengravers Internation- al, AFL-CIO, changed its name to Graphic Arts International Union, AFL-CIO, CLC 2 Pursuant to a Board Order, the hearing was reopened on December 19, 1972 Steelworkers did not appear at the reopened hearing 3 The request of Graphic Arts for oral argument before the Board is hereby denied as the record, briefs, and supplemental briefs adequately present the issues and positions of the parties 4 Traditionally, the beer can has been assembled from three pieces, rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case,3 the Board makes the following findings: I. BUSINESS OF THE EMPLOYERS Continental, a New Jersey corporation, and Ameri- can, a Connecticut corporation, herein called the Employers, are engaged in Milwaukee, Wisconsin, in the manufacture of steel cans at their respective plants. During the past year, Continental and American each purchased and received goods at their Milwaukee plants valued in excess of $50,000 which were shipped from points located directly outside of the State of Wisconsin. During the same period, they sold and shipped goods valued in excess of $50,000 to customers located directly outside of the State of Wisconsin. We find that Continental and American are each 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 herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Steelwork- ers and its Locals 4454 and 4453 and Graphic Arts and its Local 277 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTES A. Background and Facts of the Disputes In September 1971, and November 1971, Conti- nental and American, having separate collective- bargaining agreements with the labor organizations here involved, decided to change to two-piece beer can manufacturing lines.4 Each Employer held meetings with their respective labor organizations on March 16, 1972, and informed them of the Employ- ers' decision to install the new two-piece production lines. At each of these meetings, a Steelworkers representative threatened a strike if the work on the new production lines was not awarded to it. The representative for Local 277 made no response to the demand at the Continental meeting; however, at the American meeting, the representative for Local 277 however, because of technological innovation, a beer can can now be assembled from two pieces The intricacies of this new two-piece production line have been set forth in our decisions in Joseph Schhtz Brewing Company, 192 NLRB No 79, and Kaiser Aluminum & Chemical Corporation, 177 NLRB 682 The only significant difference between the two-piece production lines involved in the instant disputes and those of the foregoing two cases is that a new decorator, a Van Vlaanderen unit manufactured by Levy Co, is utilized by Continental and American 202 NLRB No. 78 STEELWORKERS , LOCAL NO. 4454 653 stated that it had jurisdiction over the printing portion of the new production line. Early in April, both Employers advised Local 277 that they intended to assign the work in dispute to employees represented by Steelworkers. On April 7, 1972, Graphic Arts invoked the internal disputes plan of article XX of the AFL-CIO constitution to resolve the conflicting claims to the work. On April 17, 1972, Local 277 sent letters to the Employers invoking the arbitration procedures of its contracts with each Employer with regard to the work in dispute. Continental responded to Local 277's demand for arbitration by stating that it had filed 8(b)(4)(D) charges with the Board involving the dispute; American made no response to the demand of Local 277. After the hearing in this case had been closed, the Board received copies of a motion for dismissal of the proceedings from Graphic Arts alleging that article XX proceedings had been held pursuant to the AFL-CIO constitution; that an impartial umpire had found that Steelworkers had interfered with the established work relationship of Graphic Arts by seeking the assignment of the disputed work to employees it represented; and that Steelworkers thereafter, by letter, had informed each of the Employers that it was withdrawing the claims it had made for the work in dispute. Subsequently, the Board received copies of petitions allegedly signed by employees who had been assigned the work in dispute and who were represented by Steelworkers Locals 4453 and 4454 in which these employees claimed the disputed work in spite of the withdrawal of the claims by Steelworkers. The hearing was accordingly reopened for support- ing evidence on the existence of conflicting work claims, and employees from both Employers' plants reaffirmed their claims for the work in dispute, and stated that they would do whatever was necessary to keep the jobs assigned to them by the Employers. On the date of the reopened hearing, the new production lines at the Employers' plants were in operation, and the work on these lines was being performed by employees represented by Steelworkers. B. The Work in Dispute The work in dispute involves the maintenance and operation of the base coater, Van Vlaanderen decorator, varnish overcoater, and bottom coater portions of the Employers' new two-piece beer can lines.5 C. Contentions of the Parties Graphic Arts and its Local 277 claim that the Board should not make an award, as there is no reasonable cause to believe that Section 8(b)(4)(D) has been violated, and there exists a method for the voluntary adjustment of these disputes. Graphic Arts and Local 277 also argue that if the Board decides otherwise, the various factors involved favor an award of the work in dispute to Local 277. Finally, Graphic Arts moves, in view of the disclaimer by Steelworkers of its claims for the work in dispute, that the proceedings be dismissed. The Employers claim that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that there does not exist an all-party agreement for the voluntary adjustment of these disputes. The Employers further claim that their assignment of the work in dispute to employees represented by Steel- workers should be upheld. Finally, the Employers argue that since rival groups of employees at both plant locations continue to claim the work in dispute, despite the disclaimer of Steelworkers, the motion of Graphic Arts to dismiss the proceeding should be denied. 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. We find no merit in the claims of Graphic Arts and Local 277 that the threats made by the representa- tives of Steelworkers at the meetings held on March 16, 1972, do not come within the meaning of Section 8(b)(4)(D). First, Graphic Arts and Local 277 argue that the threats were made well before the new production lines were installed and were, therefore, not threats of imminent action. Second, Graphic Arts and Local '277 argue that the threats were only conditioned upon the work in dispute being assigned to employees other than those represented by Steelworkers, and that the conditions on which the threats were based never came into existence. We are of the opinion that these threats, nevertheless, were sufficient to provide reasonable cause to believe that Section 8(b)(4)(D) has been violated. First, our consideration of Section 8(b)(4)(D) of the Act does not lead us to the conclusion that the imminence of action pursuant to a threat is a factor to be considered in determining whether or not Section 8(b)(4)(D) has been violated. Second, where one of two unions seeking the assignment of disputed work 5 Neither Employer intends to have the cans on its new two-piece beer can line receive a base coat or overvarnish However, these two types of coating may be added to the new production lines at a later date. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to itself makes a direct and unambiguous threat, there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, regardless of whether or not the threat was successful.6 Moreover, it should be noted that, on the date of reopened hearing, employees who had been assigned the work in dispute by the Employers stated that they would do whatever was necessary to keep the jobs assigned to them. We find no merit in the claims of Graphic Arts and Local 277 that there exist methods for the voluntary settlement of these disputes. Graphic Arts and Local 277 first argue that one method for the voluntary settlement of these disputes is the AFL-CIO pro- ceedings which Graphic Arts has invoked, allegedly to determine which of the two claimants was entitled to the disputed work. Graphic Arts and Local 277 then argue that another method for the voluntary adjustment of these disputes arises from arbitration agreements that Local 277 has with each Employer. With regard to these arbitration agreements, Graphic Arts and Local 277 argue that the instant disputes turn upon the definition of the Employers' contractu- al obligations to them, and that arbitration will end the instant disputes. Furthermore, Graphic Arts and Local 277 argue that the Board should defer to the arbitration proceedings sought by Local 277 on the basis of its Decision in Collyer Insulated Wire, 192 NLRB No. 152. We note that neither Employer is a party to the AFL-CIO proceedings; likewise, we note that Steelworkers and its Local 4453 and 4454 are not parties to the arbitration proceedings sought by Local 277. In sum, the proceedings involved in each of these two alleged methods for the adjustment of these disputes exclude one of the parties to the disputes. As we have previously held, where the parties involved in a jurisdictional dispute do not all agree to a single method of settlement that is binding on all of them, there is no agreed-upon method of settlement.? We similarly find that Collyer does not apply to the present jurisdictional disputes. Here, we have no single arbitration provision that is binding on all of the parties. Thus, the use of the Graphic Arts arbitration clause cannot resolve the present disputes since the only issue before the arbitrator would be 6 See Carling Brewing Company, Inc, 136 NLRB 1216 It should be noted that the threat by Steelworkers in this case was direct and unambiguous 7 International Association of Bridge, Structural and Ornamental Iron Workers Local Union No 3, AFL-CIO (Dickerson Structural Concrete Corp), 195 NLRB No 90 s N L R B v Plasterers' Local 79, 404 U S 116, 134-135 See also Local 2, Bricklayers (Decora, Inc), 152 NLRB 278, International Union of Operating Engineers, AFL-CIO, Local 520 ( Biebel Bros , Inc), 170 NLRB 285, Pipehners Local No 798 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Moon Pipeline Contractors, Inc), 177 NLRB 872, and whether or not Local 277's contracts with each Employer purport to give that local jurisdiction over the work in dispute. This limited arbitration does not dispose of Steelworkers original claim, or take into consideration all the factors which must be consid- ered by the Board in a jurisdictional dispute proceeding. Moreover, the employees now perform- ing, and currently claiming the right to continue to perform, the disputed work, as well as Steelworkers, would be excluded from such arbitration. Finally, implicit within Collyer is the rationale that the Board will defer to arbitration proceedings only when, in effect, all parties involved are bound by the results of such arbitration. With regard to the motion of Graphic Arts that the proceeding be dismissed because of Steelworkers disclaimer of the work in dispute, the Board takes cognizance of the demand of the employees of both Employers for the work in dispute, and, accordingly, holds that the employees' demands effectively nullify the effect of the disclaimer of the Steelworkers.8. Accordingly, from the above we find that the matter is properly before the Board for determina- tion under Section 10(k) of the Act.9 E. Merits of the Disputes Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to all relevant factors involved. The following factors are relevant in making a determination of the disputes before us. 1. Certification and collective-bargaining agreements At Continental, Steelworkers and the predecessor of Local 277 were certified by the Board as representatives of two distinct units on November 17, 1950. Steelworkers was certified as the collective- bargaining representative for all production and maintenance employees, excluding "all lithographic pressmen, feeders, and their apprentices;" and the predecessor of Local 277 was certified for the employees covered by the quoted exclusion. At American, there is no Board certification for Steelworkers or Graphic Arts or Local 277.10 The recognition clause of Continental's current Local 153, International Brotherhood of Electrical Workers, AFL-CIO (Commerical Electronics, Inc), 197 NLRB No 133 9 In view of our disposition of the present matter at this point, the motion for dismissal of Graphic Arts is denied to There is record evidence of a Direction of Referendum issued by the Wisconsin State Employment Relations Board, dated January 5, 1951, which provides for an election among the employees of the American plant along the same lines as the election held at the Continental plant There is also record evidence of a Wisconsin Board Notice of Election for an election to be held at the same location involving the same employees on January 17, 1951 STEELWORKERS, LOCAL NO 4454 655 agreement with Steelworkers provides that its cover- age Includes all production and maintenance employ- ees, but excludes all . . . lithograph pressmen, lithograph press feeders, lithograph apprentices The recognition clause of Continental's current agreement with Local 277 provides for inclusion of "all employees performing lithographic production work." Lithographic production work, in turn, is defined as: [A)ll work, processes, and operations directly related to lithography or offset printing (wet or dry methods) including any technological change, evolutions, or substitution for any work processes or operations described'above. At American, the recognition clauses of that Employer's current agreements with Steelworkers and Local 277 are identical with those at Continen- tal. 2. Employer and area practice Continental has assigned work on its two-piece production lines at other plants to employees not represented by Graphic Arts or Local 277.11 Ameri- can has assigned the work on its two-piece pro- duction line at another, plant to employees represent- ed by Steelworkers. 12 The record shows that none of the 21 commercial two-piece can lines operating in the United States are operated even in part by employees represented by Graphic Arts. 3. Relative skills, economy, and efficiency of operations The record shows that the time spent manning the Van Vlaanderen decorator constitutes less than 20 percent of the time involved in operating the entire two-piece production lines. The remaining time is spent utilizing skills other than those unique to employees represented by Graphic Arts. Moreover, the record shows that the skills involved in operating the Van Vlaanderen decorator can be mastered by an employee in approximately 30 days, as opposed to a lithographer's apprenticeship program of 6 months for dry offset lithography and 4 years for wet offset lithography. The record further shows that the operation of the Van Vlaanderen decorator is highly automated, and that, accordingly, there are no register, overlapping of colors, or half-tone problems involved in its operation. Finally, the record shows that there are no packing blankets utilized in the operation of the decorator, and that the decorator uses premixed inks. 4. Gain and loss of employment Since the new two-piece production lines will have a capacity of approximately three and one-half to four conventional production lines, and will require less personnel to man them, the employees represent- ed by Steelworkers will lose jobs in the three-piece production lines because of the introduction of the new lines. However, the jobs lost by Steelworkers representing employees on the conventional lines will be offset by increased customer demand for pro- duction on the new two-piece production lines. It appears that the work performed by employees who are represented by Local 277 on the conventional three-piece production line will remain stable. 5. Umpire's decision Although we do not consider the Umpire's decision made pursuant to the AFL-CIO constitution's internal disputes plan binding on the Employers, we do consider it as a factor in determining the proper assignment of the work in dispute. However, in view of all the circumstances, we are of the opinion that his decision should not be given controlling weight herein. Conclusion Upon the entire record in this proceeding and after full consideration of all relevant factors and argu- ments, we conclude that employees of Continental and American who were assigned the work in dispute are entitled to continue doing the work, and we shall determine the dispute in their favor. We do not, however, award the work to Steelworkers or its locals. F. Scope of Determination Inasmuch as there is no dispute as to the scope of the award or record evidence of any likelihood that similar disputes between the same parties will occur in a broader geographic area than the sites here involved, the determination in this case shall cover only the two specific sites where the disputes arose.i3 DETERMINATION OF DISPUTES Pursuant to Section 10(k) of the Act, and upon the basis of the foregoing findings and the entire record in this proceeding, the Board hereby makes the following Determination of Disputes: 11 These new production lines are located at Van Nuys , California, and Houston, Texas 12 This new production line is located at Edison . New Jersey 13 Lathers Union Local 104 (The Blaine Petty Company), 186 NLRB 365 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees employed by Continental Can Compa- of the base coater, Van Vlaanderen decorator, ny and American Can Company, who were assigned varnish overcoater, and bottom coater portions of the work in dispute, are entitled to continue the new two-piece beer can lines of the Employers at performing the work of maintenance and operation their plants in Milwaukee, Wisconsin.