Local 447 of District 15, Machinists

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 447 of District 15 of the International Association of Machinists and Aerospace Workers, AFL-CIO and The Hertz Corporation Local Union No. 584, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers .of America and The Hertz Corporation. Cases 29- CD-170 and 29-CD-171 July 23, 1974 States, where it is primarily engaged in the rental and lease of automobiles and trucks. During the past year it derived gross revenue from its lease and rental serv- ices in excess of $1 million and has purchased in ex- cess of $50,00 worth of cars and trucks directly from firms located outside the State of New York. The parties stipulated and we find that Hertz is engaged in commerce within the meaning of the Act; and we find that it will effectuate the policies of the Act to assert jurisdiction herein. DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNINGS AND JENKINS This is a consolidated proceeding under Section 10(k) of the National Labor Relations Act, as amend- ed, following charges filed by The Hertz Corporation, herein called Hertz, that Local Union No. 447 of Dis- trict 15 of the International Association of Machinists and Aerospace Workers, AFL-CIO, herein called Lo- cal 447; and that Local Union No. 584, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called Local 584, violated Section 8(b)(4)(D) of the Act. Teamsters Lo- cal Union 584 and Machinists Local Union 447 were permitted to participate as Parties in Interest in Cases 29-CD-170 and 29-CD-171, respectively. A hearing was held before Hearing Officer Eliza- beth K. Johnson on April 3 and April 10, 1974. The Employer, Local 447, and Local 584 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. Thereaf- ter, Local 447 and Local 584 filed briefs. 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-menber panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board `makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that The Hertz Corporation is a Delaware corporation with its principle place of business located at 660 Madison Avenue, New York, New York, and with numerous other places of busi- ness including garage maintenance facilities located at 5624 58th Street and 5657 58th Street, Maspeth, Queens New York, and in all 50 States of the United II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 447 and Local 584 are labor organizations within the meaning of Section 2(5) of the 'Act. III THE DISPUTE A. Background and Facts of the Dispute The Employer has had a series of collective-bar- gaining agreements with Local 447 since it took over the business of Metropolitan Distributors, Inc., herein called Metropolitan, in 1955. At that time, it assumed the then existing contract that Metropolitan had with Local 447. Prior agreements like the current agree- ment cover the approximately 300%maintenance me- chanics at, all of the Employer's locations in New York metropolitan area. The situs in dispute is located in the Long Island City district. Sometime in late 1959 or 1960, negotiations took place between the Employer and Hegeman Holland Farms, sometimes referred to as Holland or Holland Farms, for a leasing arrangement for Holland's milk trucks. The Employer was made aware by Holland of an existing collective-bargaining agreement it had with Local 584 covering the approximately nine main- tenance mechanics it utilized for service and repair of its milk trucks. One of the conditions imposed by Holland in grant- ing the lease was that Hertz assume the aforemen- tioned collective-bargaining agreement with Local 584. The Employer sought and received the assent of Local 447 to assume the Local 584 agreement. When the Employer assumed the Local 584 agreement, it also took over the Holland garage for the purpose of maintaining and servicing the leased milk trucks. About 6 months later, the Employer also started ser- vicing and repairing non-milk trucks in Holland's ga- rage. While the number of trucks serviced and repaired at this garage has fluctuated over the years, at present there are approximately 160 milk trucks and 35 non-milk trucks maintained and serviced at the Holland garage by about 20 mechanics who are 212 NLRB No. 71 LOCAL 447 OF DISTRICT 15, MACHINISTS 533 members of Local 584. In late 1972, representatives of Local 447 reportedly first learned that Local 584 me- chanics were performing work on non-milk trucks at the Holland garage . At that time, Business Represen- tative Ronald Touanen of Local 447 complained to Employer's personnel director, Roger Keehn, about the utilization of Local 584 mechanics to perform me- chanical work on the non-milk trucks. Touanen point- ed out that the Employer's collective-bargaining agreement with Local 447 covers the maintenance mechanics at all of the Employer's locations in the New York Metropolitan area. Keehn promised to dis- cuss the matter again with Touanen, but never did. During the spring of 1973, Local 447 requested arbi- tration but the request failed as the parties did not reach agreement on the selection of an arbitrator. Also during the spring of 1973, the Employer and Holland entered into lease renewal negotiations. Hol- land insisted that it would not renew the lease unless the Employer cease maintenance work on non-milk trucks in its garage before approximately 54 new milk trucks were delivered. The Employer accepted this condition and planned to use a lot and garage facili- ty' located across the street for the repair and mainte- nance of its non-milk trucks. The new milk trucks were scheduled to be delivered during the fall of 1973; however, due to production delays, only 6 of the 54 trucks ordered have been delivered, with the remain- der scheduled to arrive sometime in July of this year. On November 7, 1973, Keehn requested that the parties hold a meeting for the purpose of resolving the imminent dispute over the assignment of the work in connection with the maintenance and repair of the non-milk trucks. Present at the meeting were Keehn, for the Employer: Touanen, for Local 447; and Busi- ness Representative Joseph Barone, for Local 584. According to Keehn, he was threatened with picket- ing by the business representatives of both Union, if the work in, dispute was not awarded to employees who were members of their respective Unions. Both Touanen and Barone deny making any unlawful threat to compel the Employer to assign or reassign the work to employees represented by their respective labor organizations. B. The Work in Dispute The work in dispute is the maintenance and repair on non-milk trucks leased by the Employer which are serviced and repaired at its facilities located at 5657 58th Street and at 5624 58th Street, Maspeth, Queens, New York. 1 This leased lot and garage has been used for storage and minor repairs C. Contentions of the Parties The Employer requests that the work in dispute be assigned to either Union but not to both Unions on a mixed assignment basis. Local 584 contends that the disputed work should be assigned to its members because it has a contract with the, Employer which covers this work; the Em- ployer can operate his business more efficiently by using employees represented by Local 584; and the Employer's assignment, employee skills, and compa- ny practice favor the assignment to employees repre- sented by Local 584. Local 447 contends that the Board lacks the author- ity to hear and determine the dispute because, in view of the facts and conduct of the parties there is no reasonable cause to believe that Section 8(b)(4)(D) has been violated. Local 447 next contends that as- suming, arguendo, that the dispute is properly before the Board for determination pursuant to Section 10(k), the Board should award the work to it on the basis of its contract with the Employer's assignment and preference. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the 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 indicated, there is testimony that at the November 7 meeting between the Employer and the representatives of each Union, Business Repre- sentatives Touanen and Barone each threatened the Employer with picketing, the object of which was to force or require the Employer to assign the disputed work to members of their respective labor organiza- tions. Thus, we find reasonable cause to believe Sec- tion 8(b)(4)(D) has been violated and that the dispute is properly before the Board for determination pur- suant to Section 10(k) of the Act. E. Merits of the Dispute 1. Certification and bargaining agreements Neither Union has been certified by the Board to perform the work in dispute. The Employer is signatory to an agreement with Local 447 which provides, in pertinent part, that "The Company recognizes the Union as the sole bargaining agent for all of its employees coming under the classi- fications . . . Machinists, Mechanics. .." 2 The Employer also assumed an agreement which Holland 2 Local 447 Exh. 1, art I, III 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had with Local 584 and which presently contains the following relevant clause: "This Agreement shall cov- er every employee of the Employer employed in or about a milk distributing branch, pasteurizing plant, and garage in the Metropolitan area. .. ." "Thus both agreements contain language which could cover the work in dispute.' However, at the time that Local 447 assented to the Employer's assumption of the agreement that Local 584 and Holland were parties to, it was, at least as disclosed by the record, under- stood that the work would encompass only the main- tenance and servicing of the milk trucks at the Holland garage. Accordingly, we do not interpret the Local 584 agreement as a concession by Local 447, of any of the disputed work to Local 584. At the time of the assumption, it is clear that all maintenance, ser- vice, and repair work was being performed by em- ployees who were represented by Local 447. Inasmuch as the disputed work deals with the mainte- nance and servicing of non-milk trucks, the Employer's agreement with Local 447 more precisely provides for coverage of the disputed work. 2. Past practice The Employer has been in the rental and leasing business of automobiles and trucks for at least '16 years and has, during that time, continuously utilized, to the extent practicable, the services of employees represented by Local 447 with the exception of this one dispute. Under these circumstances, we find that past practice weighs in favor of awarding the work to employees represented by Local 447. 3. Skills and efficiency The degree of skill necessary to perform the disput- ed work is present in the members of both labor orga- nizations. There is also no indication that the Employer could operate its business more efficiently by using employees who are represented by one Union rather than those by the other. The record further indicates that (1) the Employer's employees possess the necessary skills to perform the disputed work and (2) the Employer is satisfied with their performance. We find that these factors favor neither labor orga- nization. Conclusions Having considered all pertinent factors herein, we conclude that employees represented by Local 447 are 3 Local 584 Exh. 1, par 3 entitled to perform the work in dispute. This award is consistent with the Employer's contractual obliga- tions and its overall past practice. In addition, the Employer is satisfied with the performance of its em- ployees, who posses the requisite skills for the type of work involved herein. Accordingly, on the basis of the entire record, we shall award the work in dispute to employees of the Hertz Corporation who are repre- sented by Local Union No. 447 of District 15 'of the International Association of Machinists and'Aero- space Workers, AFL-CIO, but not to that'Union or its members. The present'determination is limited to the particular controversy which gave rise to this pro- ceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the foregoing and the entire record in this case, the National Labor Relations Board hereby makes the following Determi- nation of Dispute: 1. Employees of The Hertz Corporation who are currently represented by Local Union No. 447 of Dis- trict 15 of the International Association of Machinists and Aerospace Workers, AFL-CIO, are entitled to perform the maintenance and repair of non-milk trucks leased by The Hertz Corporation and serviced and repaired at The Hertz Corporation's facilities lo- cated at 5657 58th Street and at 5624 58th Street, Maspeth, Queens, New York. 2. Local Union No. 584, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is not entitled by means pro- scribed by Section 8(b)(4)(ii)(D) of the Act to force or require The Hertz Corporation to assign the above work to individuals represented by Local Union 584, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local Union 584, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, shall notify the Regional Director for Region 29, in wirting, whether or not they will refrain from forcing-or re- quiring The Hertz Corporation, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by it rather than to employees represented by Local Union No. 447 of District 15 of the International Association of Ma- chinists and Aerospace Workers, AFL-CIO.