Local 102, Electrical Workers

352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 102, International Union of Electrical, Radio and Machine Workers, AFL-CIO and Philco-Ford Cor- poration and General Teamsters, Chauffeurs, Ware- housemen and Helpers, Local 470, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 4-CD-317 August 8, 1973 and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II THE LABOR ORGANIZATION The parties stipulated, and we find, that IUE Local 102 and Teamsters Local 470 are labor organizations within the meaning of Section 2(5) of the Act. DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Philco-Ford Corporation, hereinafter called the Employer, alleging a violation of Section 8(b)(4)(D) by Local 102, International Union of Elec- trical, Radio and Machine Workers, AFL-CIO, here- inafter called Respondent or IUE Local 102. Pursuant to notice, a hearing was held on June 13, 1973, at Philadelphia, Pennsylvania, before Hearing Officer Joseph C. Kelly. The Employer, Respondent, and General Teamsters, Chauffeurs, Warehousemen and Helpers, Local 470, affiliated with International Brotherhood of Teamsters Local 470, 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 Em- ployer, IUE Local 102, and Teamsters Local 470 thereafter filed briefs with the National Labor Rela- tions Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the basis of the briefs and the entire record in this case, the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER The parties stipulated that the Employer is a Dela- ware corporation engaged in the manufacture of con- sumer electronic and defense equipment. Annually, the Employer ships goods valued at well in excess of $50,000 from its facility at Willow Grove, Pennsylva- nia, to customers located outside the Commonwealth of Pennsylvania. We find, accordingly, that the Em- ployer is engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act III THE DISPUTE A. Background and Facts of the Dispute This case is closely related to the General Teamsters, Chauffeurs, Warehousemen and Helpers, Local 470, af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Philco-Ford Corporation) case I involving the same parties, same groups of employees, same labor con- tracts, and substantially the same types of work at the same employer facility. The Employer's headquarters are located in Blue Bell, Pennsylvania. Its principal manufacturing facili- ties are in the Delaware Valley and are located at Tioga and "C" Streets in Philadealphia, in Lansdale, and in Willow Grove, Pennsylvania. It is the latter facility, Willow Grove, which is involved in the in- stant case. Willow Grove is one of several locations to which employees are assigned to perform transportation functions under the terms of the Philadelphia Local Cartage Supplemental Agreement of the National Master Freight Agreement. The Employer is a party to this agreement with Teamsters Local 470. Three employees represented by Teamsters are assigned to the Willow Grove facility currently comprising Build- ings 35A and 35B. Additionally, at this facility, IUE Local 102 represents approximately 175 employees who are assigned to production and service functions under the contract between the Employer and IUE Local 102.2 Teamsters Local 470 and IUE Local 102 represent employees now situated at Willow Grove who were previously assigned to work at the Employer's Philadelphia facility (referred to as Plant 50) until Plant 50 discontinued operations in Decem- ber 1972. In April 1972, the Employer began to relocate Plant 50 to a newly constructed building (Building 35B) at Willow Grove. Building 35B was constructed about 100 feet from an existing structure (Building 35A) '203 NLRB No 99 2 There are several record references to a continuing diminution in size of the Employer's employee complement. Thus, in the earlier case (fn. 1, supra), we found that there were four employees in the unit represented by Team- sters Local 470 and 256 in the unit represented by IUE Local 102 205 NLRB No. 59 LOCAL 102, ELECTRICAL WORKERS which had been in operation since 1960.' In May 1972, the Employer began limited manufacturing op- erations at Willow Grove in Building 35B. The move- ment of material and equipment between Buildings 35A and 35B by means other than licensed motor vehicles was at that time assigned to employees repre- sented by IUE Local 102. However, on May 19, 1972, Teamsters Local 470 filed a grievance alleging a con- tract violation in the Employer's assignment of this work to employees other than teamsters. The griev- ance was processed through the various steps of the contractually provided grievance procedure between the Employer and Teamsters Local 470. On October 25, 1972, the Employer and Teamsters presented their respective positions to the Eastern Conference Joint Area Grievance Committee. The decision of that Committee, which is the final step provided in the grievance procedure, was that "movement of material between buildings requiring the use of forklifts or other wheeled transportation equipment should come under the jurisdiction of Local 470." On November 10, 1972, the Employer proceeded to implement the decision of the Eastern Conference Joint Area Committee. The Employer reassigned the movement of material and equipment between Build- ings 35A and 35B from IUE Local 102-represented employees to those represented by Teamsters Local 470. On November 14, 1972, IUE Local 102 filed a grievance which alleged the Employer violated its agreement with IUE Local 102 when it reassigned the movement of material and equipment between Build- ings 35A and 35B to employees represented by Team- sters Local 470. This grievance was processed through the steps of the contractually provided grievance pro- cedure. On March 16, 1973, the IUE Local 102 griev- ance was the subject of arbitration between the Employer and IUE Local 102. On April 18, 1973, the award issued by Arbitrator Samuel H. Jaffee was that employees represented by IUE Local 102 "are entitled to perform the work of moving materials between Buildings 35A and 35B... . On April 24, 1973, Wilbert Kain, president of IUE Local 102, threatened the Employer with a strike if the work in dispute was not reassigned from employees represented by Teamsters Local 470 to employees rep- resented by IUE Local 102. Thereafter, on May 9, 1973, the Employer received assurance in a letter from Kain that IUE Local 102 would not take strike action during the processing of the instant 10(k) proceeding. Based upon this assurance, the Employer did not re- quest of the Board's Regional Office for Region 4 that 3 Building 35A is a research and development center while Building 35B is a production plant 353 injunctive relief be sought under Section 10(1) of the Act, and no such relief was sought. B. The Work in Dispute The work in dispute is the movement of material and equipment between Buildings 35A and 35B by means other than licensed motor vehicles .4 If this work necessitated the use of licensed motor vehicles, the parties agree that such would properly be assigned to Teamsters Local 470-represented employees. How- ever, this dispute concerns only movement of material by such nonlicensed motor vehicles as forklift trucks, handcarts, handtrucks, and electric platform trucks, which is a typical method used by the Employer for moving materials between Buildings 35A and 35B. C. Contentions of the Parties The Employer takes the position that the work in dispute should be awarded for reasons of efficiency and economy of operation to employees represented by IUE Local 102. IUE Local 102, in agreement with the Employer as to who should be awarded the work, cites its contract, the Employer's past practices, the arbitrator's award, and the initial assignment. Teamsters Local 470 claims the disputed work on the basis of its contract and past practice at the Employer's Plant 50. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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 and that there is no agreed-upon method for settling the dispute. As to the latter, the parties stipulated that there is no agreed-upon method for settling the dis- pute. All the parties stipulated that on or about April 24, 1973, IUE Local 102 President Kain threatened C. J. Duncan, Jr., the Employer's personnel and labor re- lations manager, that IUE Local 102 would strike the Employer's Willow Grove facility if the Employer did not assign the disputed work to employees repre- sented by IUE Local 102. Based on the record, we are satisfied that there is reasonable cause to believe that 4 The only substantial difference between the earlier case involving this Employer (fn. 1, supra), and the instant one is that in the former the work in dispute concerned movement of materials from outside storage pads to Buildings 35A and 35B whereas in this case the work involves movement of materials between the two buildings The parties stipulated that the Employer's operations have remained unchanged since the hearing in the prior case 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there has been a violation of Section 8(b)(4)(D) of the Act and that the dispute is properly before the Board for determination. E. Merits of the Dispute As the Board stated in J. A. Jones Construction Company,' we shall determine the appropriate assign- ment of disputed work in each case presented for resolution under Section 10(k) of the Act only after taking into account and balancing all relevant factors. 1. Collective-bargaining agreements By article I, section 1, of its contract with IUE Local 102, the Employer recognizes that Union as the sole and exclusive bargaining representative for all employees on an hourly basis in production and ser- vice. The agreement, in relevant part, also provides broadly that certain practices or customs, called "past practices," which come into existence in the course of the relationship between the parties, shall, to the ex- tent they are not inconsistent with the terms of the contract, be binding on the parties except as noted. The Local Cartage Agreement between the Em- ployer and Teamsters Local 470 states at article 40, section 2, that the employees covered by that agree- ment include in relevant part "employees used in dock work, checking, stacking, loading, unloading, handling, shipping, receiving, switching, forklift, Teamster Rigger, and assembling or drag line and allied work." The same section also provides that: It is understood, however, that the term employ- ees shall be construed to mean those employees of the Employer employed directly and indirectly by and/or under the control of the Employer, and who are represented by the Local union or during the life of this Agreement may come to be represented by the Local Union.6 The Board will rely on a contract's provision if the assignment of the work in dispute is made in clear and unambiguous terms in that contract. Such is not the case with the IUE Local 102's contract which broadly covers production and service work at the Employer. And while the Teamsters Local 470 contract states it covers "forklift" work, it also states that it covers loading, unloading, and shipping and receiving, which 5 International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402 6 Additionally, the National Master Freight Agreement , to which the Em- ployer and Teamsters Local 470 are signatories and to which the Local Cartage Agreement is a supplement , states that the master agreement is not applicable to "those operations of the Employer where the employees are covered by a collective bargaining agreement with a Union not signatory to this agreement or to those employees who have not designated a signatory Union as their collective bargaining agent " jobs have traditionally been done by members of IUE Local 102 with no claim ever having been made to that work by Teamsters Local 470. The employees performing the work in dispute were initially repre- sented by IUE Local 102. On balance , we find that the factor of collective- bargaining agreements weighs in neither IUE Local 102's nor Teamster Local 470's favor. 2. Employer's assignment and past practice Prior to the Employer assigning the work in dispute to Teamsters Local 470-represented employees on November 10, 1972, IUE Local 102-represented em- ployees were exclusively assigned to operate nonli- censed vehicles between Building 35A and 35B. Additionally, Edward Chapin, Employer's supervisor of material handling, testified (1) that there was no distinction between the work functions assigned to IUE Local 102 at Willow Grove and at its predecessor Plant 50, and (2) that at Plant 50 Teamsters-repre- sented employees were never involved in the opera- tion of forklift or material handling equipment. Such work, according to Chapin, was assigned to employ- ees represented by IUE Local 102. Teamsters Local 470's evidence that it has done some of the work in dispute in the past for the Em- ployer demonstrated that it had done so (1) only when licensed motor vehicles were used or (2) at times oper- ating forklifts at Plant 54. We find that it has been the practice of the Employ- er to assign the work in dispute to employees repre- sented by IUE Local 102. Such a practice, which the Employer wishes to continue, is a factor favorable to reassigning performance of the work to these employ- ees. 3. Economy and efficiency The Employer and IUE Local 102 state that assign- ing the work in dispute to Local 102-represented em- ployees is the most efficient and economical method of handling the work in dispute. All materials are received in Building 35B. Any material that has a designation to Building 35A has to be moved over to 35A. This could be component ma- terial, stationary, work supplies, large equipment, computers, test equipment-anything needed to sup- port that Building's functions. Such vehicles, other than licensed ones, as forklift trucks, handcarts, hand- trucks, and electric platform trucks, were used in the transportation of material and equipment by employ- ees represented by IUE Local 102 before November 10, 1972, when the work in dispute was assigned to employees represented by Teamsters Local 470. LOCAL 102, ELECTRICAL WORKERS When employees represented by IUE Local 102 performed the disputed work, and a shipment of ma- terial destined for Building 35A came in, a single IUE Local 102-represented employee in either the store- keeper or material handler classification would un- load the material by forklift or by hand from a truck dock located at Building 35B and determine to which building the material was to go; if destined for 35A, the particular employer would take the material to the 35A dock by forklift, and then take it inside Building 35A for delivery. If the material delivered to the dock at Building 35B was destined for 35B, IUE Local 102-represented em- ployees would unload it from the truck with one of the nonlicensed vehicles and take it inside Building 35B. By assigning the work in dispute to employees rep- resented by IUE Local 102, one person performed all the required work functions, except where a truck was required to move materials from Building 35B to Building 35A. According to Mr. Chapin, added cost burden and ineffective use of manpower is incurred by the Em- ployer when employees represented by Teamsters Lo- cal 470 are assigned the work in dispute. More than one employee is concerned with the movement of material or equipment between Buildings 35A and 35B. Following the reassignment of work to employ- ees represented by Teamsters Local 470 on November 10, 1972, these employees only performed the func- tions of moving materials from Building 35B to Build- ing 35A, but not the work functions in dock areas or inside buildings. When material is moved from Build- ing 35B, it is loaded on the truck by an IUE Local 102-represented employee. This employee and the driver, a Teamsters Local 470-represented employee, then drive over to Building 35A. The IUE Local 102 man then unloads the truck and delivers the material, so that two people travel with the material between the buildings. In addition to requiring two men to do what one man had been doing, this procedure created substantial delays when materials were needed and no driver represented by Teamsters Local 470 happened to be available because the drivers were on an assign- ment out of the area of picking up or delivering mate- rial. When employees represented by IUE Local 102 were assigned to the work in dispute, the flow of mate- rials or equipment was uninterrupted and was accom- plished on an as-needed basis. By using Teamsters Local 470-represented employees, the Employer has incurred delays in movement of material and the ma- terial is only moved from dock to dock at each build- ing. With IUE Local 102, the material could be moved directly to the requested location inside a building from the location inside the other building where it 355 was stored or in use. We find the factors of economy and efficiency fa- vor the assignment of the disputed work to employees represented by IUE Local 102. 4. Board certification and prior awards There is no evidence indicating that a Board certifi- cation covers the disputed work. Teamsters Local 470 has claimed the work in dis- pute here on the basis of an award to it by the Eastern Conference Joint Area Grievance Committee which reads, in pertinent part, as follows: the claim of the Union [shall] be upheld in that movement of material between buildings requir- ing the use of forklifts or other wheeled transpor- tation shall come under the jurisdiction of Local 470... . IUE Local 102 has claimed the work in dispute by virtue of an award to it by Arbitrator Samuel H. Jaf- fee. We noted in the earlier case involving this Employ- er' that with respect to the claim of Teamsters Local 470, IUE Local 102 was not a party to the grievance proceedings before the Area Grievance Committee. We also note with regard to the claim of IUE Local 102, as was observed by Arbitrator Jaffee on pages 4 and 6 of his opinion, that Teamsters Local 470 was not a party to the grievance proceeding before the Arbitrator. In these circumstances, we deem the respective awards of no significance here since neither award is binding upon all the parties. Conclusions Upon the entire record , and after full consideration of all relevant factors here involved , we find that em- ployees represented by IUE Local 102 are entitled to perform the work in dispute . This award is supported by Employer's initial assignment of the work to em- ployees represented by IUE Local 102, the relative efficiency that results, and the concurrent economies of such an assignment . In making this award, we are assigning the work to employees represented by IUE Local 102 rather than to that organization itself or its members. Our present determination is limited to the particular controversy which gave rise to this proceed- ing. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings and upon 7 Fn 1, supra 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the entire record in the case, the Board makes the Union of Electrical, Radio and Machine Workers, following Determination of Dispute, pursuant to Sec- AFL-CIO, are entitled to perform the work of moving tion 10(k) of the Act : materials by hand or equipment other than licensed Employees of Philco -Ford Corporation who cur- motor vehicles , between plant buildings designated rently are represented by Local 102, International 35A and 35B located at the Employer's facility at Willow Grove, Pennsylvania.