Millwright & Machinery Erectors, Local 1906

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Millwright and Machinery Erectors, Local 1906, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and C. Schmidt & Sons, Inc. and District Lodge No. 1, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 4-CD-350 February 14, 1975 DECISION AND DETERMINATION OF DISPUTE BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by C. Schmidt & Sons, Inc. (hereinafter called Schmidt), alleging that Millwright and Machinery Erectors , Local 1906, United Broth- erhood of Carpenters and Joiners of America, AFL-CIO (hereinafter called the Millwrights), vio- lated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Schmidt to assign certain work to employees represented by the Millwrights rather than to employees represented by District Lodge No. 1, International Association of Machinists and Aeros- pace Workers, AFL-CIO (hereinafter called the Machinists). Pursuant to notice, a hearing was held before Hearing Officer Solomon S . Spector on August 12, 15, and 26 and September 19, 1974. 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 on the issues . Thereafter, Millwrights and Machinists filed briefs. 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 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: I. THE BUSINESS OF THE EMPLOYER The parties stipulated that Schmidt, a Pennsylvania corporation, is engaged in the production and sale of beer at plants located in Philadelphia and Norris- town, Pennsylvania, and Cleveland, Ohio. Its annual sales are in excess of $1 million. It annually ships goods valued in excess of $1 million to points outside of Pennsylvania, and annually receives goods valued 216 NLRB No. 117 in excess of $1 million from points outside of Pennsylvania . Accordingly, we find that Schmidt is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction here. H. 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. III. THE DISPUTE A. The Work in Dispute The work in dispute, as described in the notice of hearing, is the erecting, installing, and maintenance of certain machinery at the C. Schmidt & Sons, Inc., facility in Philadelphia, Pennsylvania. B. Background In 1954, the United Brotherhood of Carpenters and Joiners of America and the International Association of Machinists, the two international unions with which the Millwrights and the Machinists respective- ly are affiliated, entered into an agreement in order to settle jurisdictional disputes between the two Unions in the brewing and printing industries. To the extent relevant here, that agreement provided, in substance, that the work jurisdiction of the Mill- wrights was: The handling, erecting and installation of certain brewery and bottling plant equipment such as washers, pasteurizers, packaging machines , uncas- ers, and various types of conveyors, including machinery, motors, conveyors and equipment in new construction or additions to or in existing buildings of the Employer's Philadelphia facility. Schmidt adhered to the 1954 agreement and, until 1972, assigned the foregoing work to employees represented by the Millwrights. The foregoing agreement remained in effect both on the national level and locally at Schmidt's until 1966, when it was abrogated by the United Brother- hood of Carpenters and Joiners. However, the terms of that agreement were continued in effect by Schmidt pursuant to an oral understanding between the business representatives of the two locals. In 1969, however, the newly elected business representa- tive of the Machinists declined to be bound by his predecessor's oral agreements, and notified the Millwrights business representative of his position. At about the same time, Machinists also notified the MILLWRIGHT & MACHINERY ERECTORS, LOCAL 1906 611 Employer that it was claiming the work in dispute, as discussed infra. Although Schmidt had for many years employed members of both the Millwrights and Machinists, prior to 1969, Schmidt did not have a written collective-bargaining agreement with either Union. Employees of these crafts were employed pursuant to year-to-year oral agreements that generally reflected the terms and conditions of employment prevailing in the area for their respective crafts. In 1969, however, the first written agreement between Schmidt and the Machinists was negotiated. The Machinists, during the negotiations, attempted to have Schmidt assign to it the work then being done by employees represented by the Millwrights as one of the terms of the contract. The attempt failed, and Schmidt continued to assign the work in dispute to its four' employees represented by the Millwrights. In June 1972, a new labor agreement was negotiat- ed between Schmidt and the Machinists. During the negotiations for this 2-year contract, the Machinists renewed its demand for a jurisdictional clause covering the work then being performed by the millwrights. The Machinists succeeded in obtaining such jurisdictional clause. Thus, article 1, section 2, of the Machinists collective-bargaining agreement provided that: The Machinists shall continue to perform the work previously performed by members of their bargaining unit. It is agreed that the Machinists shall perform the work of handling, erecting, installation and repair of machinery and equip- ment; and the handling, erecting and installation of brewery and bottling plant equipment, for example: fillers, crowners, seamers, labellers, conveyors, washers, pasteurizers, palletizers, and packaging machines. It is also agreed that the Machinists will perform the work of handling, erecting and installing machinery, motors and equipment in new construction work. The foregoing shall not be construed to prohibit the Employer from using the services of outside contractors. The above provision was clarified by a subsequently executed supplemental agreement which provided that: The Company agrees that work heretofore per- formed by the millwrights in the Philadelphia Plant of C. Schmidt & Sons has been assigned to the machinists bargaining unit in Article I, I The record reveals that until sometime after 1972 Schmidt employed four millwrights on a full -time basis. However, at the time of hearing, there were only three millwrights employed at Schmidt because one of the four Section 2 of the collective-bargaining agreement, except that the four millwrights employed by the Company will continue to perform their usual duties until each of them dies, retires or quits. In the event that the millwrights refuse to perform work, engage in a slowdown, strike, picketing or any other activity which interferes with the operation of the plant, the Company may reassign the work to the millwrights until such time as relief against such activity may be secured from the National Labor Relations Board. The foregoing paragraph shall apply to a continu- ing dispute or a series of disputes until all jurisdictional matters are finally decided by the National Labor Relations Board including any and all appeals therefrom. The immediate effect of the contract and its supplement was to permit the incumbent millwrights to continue in their jobs, but to assign "outside" work, which required the hiring of additional "outside" millwrights, to the Machinists. Thus no currently employed millwright was displaced. Millwrights was informed about and given a copy of the Machinists work jurisdictional clause soon after the contract was signed. Protests by the Millwrights followed and resulted in a meeting on July 19, 1972, between representatives of Schmidt and the Millwrights. At the meeting, an understand- ing was reached that the Millwrights would attempt to settle the matter with the Machinists, and that Schmidt would endeavor to avoid assigning the disputed work until the Unions were able to discuss the matter and hopefully resolve the controversy. Thereafter, Schmidt withheld undertaking any work requiring more than the four millwrights then employed. An attempt was made by Schmidt to use composite crews of millwrights and machinists on projects that could not be delayed, but this was found unsatisfactory even on a temporary basis because employees represented by the two Unions refused to work with each other. The Millwrights and the Machinists were unable to reach agreement during this time. In May 1973, the Millwrights invoked the "Internal Disputes" procedure under the AFL-CIO constitu- tion. The dispute was heard before an impartial umpire, whose decision issued in December 1973. The impartial umpire found that the work in dispute had customarily been performed by employees represented by both affiliates and that neither affiliate had an established work relationship en- had been ill for a long period of time and was not expected to return to work. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forceable against the other. The umpire therefore concluded that each affiliate was free to try to obtain the disputed work for its members, and that by doing so neither would be in violation of the AFL-CIO constitution. On January 9, 1974, the Millwrights, by letter of its attorney, requested that Schmidt enter into a written collective-bargaining agreement. The letter requested a work preservation clause and a jurisdictional clause coextensive with the division of work set forth in the 1954 agreement between the Millwrights and the Machinists. The parties met and exchanged corre- spondence but failed to reach agreement primarily because of the Millwrights' insistence on, and the Employer's resistance to, a jurisdictional clause covering the work done by members of the Mill- wrights under the 1954 agreement. On March 19, 1974, the Millwrights notified Schmidt that, if meaningful progress towards a contract was not forthcoming, it would establish a picket line in support of the overall demands. Continued correspondence was exchanged between the parties, but agreement was not reached. Subse- quently, on May 21, 1974, counsel for the Mill- wrights advised Schmidt by letter that: If we do not obtain agreement to a bargaining unit provision in the contract which all define the work to which the contract is applicable in a manner consistent with our proposal, the Mill- wrights intend to commence a strike against your client. The proposal referred to in the above quote was for a jurisdictional clause coextensive with the 1954 agreement. As a result of this letter, Schmidt filed the instant 8(b)(4)(D) charge which forms the basis for this 10(k) proceeding. The Millwrights agreed to withhold picketing pending resolution of the charge, and to date no picketing has occurred. C. Contentions of the Parties The Machinists contends that the dispute in this matter is not over the assignment of work within the meaning of Section 8(b)(4)(D) and is therefore not a dispute within the meaning of Section 10(k) of the Act. Rather, it maintains that the Millwrights May 21 threat to strike was made in the context of contract negotiations and was not in support of a demand for 2 In support of this contention, the Machinists asserts that at the time of the alleged unlawful activity there was not any work in dispute. We note from the record, however, that both the erection of a pasteurizer and associated conveyors and the installation and rerouting of conveyors in connection with a new labellor installation were jobs assigned to the machinists, that the machinists were perfornung this work during the time in question, and that the Millwrights had claimed this work. Although from all indications in the record this work is now completed , it is established Board a specific work assignment and that, therefore, the notice of hearing should be quashed. The Machinists alternatively contends, on the merits, that the work in dispute should be assigned to employees represent- ed by it on the basis of factors normally relied on by the Board. The Millwrights and Schmidt, on the other hand, contend that the present dispute is properly before the Board for determination under Section 10(k) of the Act because the Millwrights threat to strike provided reasonable cause to believe that a violation of Section 8(b)(4)(D) had occurred, and because no agreed-upon method binding on all of the parties exists for the voluntary adjustment of the dispute. The Millwrights further contends that the work in dispute should be assigned to the employees repre- sented by it on the basis of factors normally relied on by the Board. The Employer took no position with respect to the assignment of work. D. Applicability of the Statute Before the Board may proceed to the determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) reasonable cause exists to believe that a violation of Section 8(b)(4)(D) has occurred, and (2) an agreed-upon method binding on all parties does not exist for the voluntary adjustment of the dispute. As to the existence of reasonable cause, the evidence discloses that by letter of May 21, 1974, counsel for the Millwrights informed Schmidt that a picket line would be established on May 29 if Schmidt did not accede to its demand that the work in dispute be assigned to employees represented by it. The Machinists contends that the May 21 letter does not provide reasonable cause to believe that Section 8(b)(4)(D) had been violated because it was made in the context of negotiations for a collective-bargain- ing agreement and was therefore merely a threat to engage in an economic strike over the terms of the contract.2 We disagree. The record reflects that the Millwrights May 21 threat was the culmination of a longstanding jurisdic- tional dispute concerning which employees would be assigned the disputed work. Thus, from 1954 to 1972, employees represented by the Millwrights performed the disputed work. In 1969, Machinists attempted to obtain assignment of this work but failed. In 1972, however, the Employer assigned the work to Machin- policy nonetheless to make an award of the disputed work to prevent similar disputes from arising in the future . It is evident both from the continuing nature of the controversy and from the assertions of the parties at the hearing that similar disputes will arise in the future if they are not here determined, Metal Polishers, Buffers, Platers and Helpers International Union, Local 128, AFL-CIO (Thorsen Manufacturing Company), 193 NLRB 534, 539 (1971) at In. 3. MILLWRIGHT & MACHINERY ERECTORS, LOCAL 1906 613 ists in a written collective-bargaining agreement with that Union. Since that time, Millwrights made repeated, albeit unsuccessful, attempts to retrieve the work by various means, including an action under the AFL-CIO constitution. The impartial umpire in that proceeding found that neither Union had an enforceable claim to the work and that therefore each was free to attempt to secure the work for employees represented by it. Thereafter, Millwrights sought once more to obtain assignment of the work directly from the Employer-this time by requesting that such assignment be made in a written collective- bargaining agreement . On May 21, Millwrights threatened to strike unless the Employer agreed to a jurisdictional clause awarding the disputed work to it. Viewed in this context, we find irrelevant that the Millwrights claim for the work and threat in support of such claim were made during contract negotia- tions. For it is clear from the entire history of the dispute that Millwrights was seeking assignment of specific work which its members had performed from 1954 until 1972 and that the threat to strike was exclusively in support of such demand.3 The record demonstrates and we find that an agreed-upon method binding on all parties does not exist for the voluntary adjustment of this dispute. Accordingly, we find that reasonable cause exists to believe a violation of Section 8(b)(4)(D) has oc- curred; the dispute is properly before the Board for determination pursuant to Section 10(k) of the Act: and we deny the Machinists motion to quash the notice of hearing. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the work in dispute after giving due consideration to various relevant factors, including the following: 4 1. Certification and collective-bargaining contracts Neither the Millwrights nor the Machinists has been certified by the Board as the bargaining representative of Schmidt's employees for the work in dispute. The Millwrights does not have a written collective- bargaining agreement with Schmidt. The Machinists does have a current contract with Schmidt , contain- ing a jurisdictional clause which specifically covers the work in dispute. The Millwrights contends, 3 Local 1.10, Sheet Metal Workers International Association, AFL-CIO (Brown and Williamson Tobacco CotporationA 143 NLRB 947, 950-951 (1963). 4 International Association of Machinists, Lodge No. 1744 AFL-CIO (J. A. Jones Construction Company). 135 NLRB 1402,1410-11 (1962). however, that the Machinists obtained the jurisdic- tional clause in 1972 by threat of a strike , and that this contract should therefore not be considered a factor favoring an award of the work to the Machinists. However, the testimony regarding the Machinists alleged threat to strike was disputed at the hearing, the matter was not fully litigated, and, in any event, the alleged threat, if indeed it occurred, was made more than 2 years ago and our reliance on it is therefore barred by Section 10(b) of the Act. Local Union No. 134, International Brotherhood of Electrical Workers, AFL-CIO (International Tele- phone & Telegraph Corporation, Communications Equipment and Systems Division), 191 NLRB 828, fn. 1 (1971). Accordingly, we find that the collective- bargaining agreement assigning the work to the Machinists favors awarding the work in dispute to employees represented by the Machinists. 2. The Employer's assignment and past practice Prior to 1972, Schmidt assigned the work in dispute to the Millwrights pursuant to the 1954 agreement between the two international unions. That agree- ment was abrogated by the Millwrights parent organization on the national level in 1966, and by the Machinists business representative at the local level in 1969. In 1972, the work was contractually assigned to the Machinists. However, Schmidt and Machinists subsequently executed a supplemental agreement which provided that the millwrights then employed by Schmidt would continue in their jobs and perform the work until they died, quit, or retired. Since that time, Schmidt has assigned the disputed work, i.e., the "outside work," to employees represented by the Machinists.5 Moreover, the record indicates that Schmidt and the Machinists have entered into a new collective-bargaining agreement that contains the same jurisdictional clause as the 1972 contract. Although Schmidt's pre-1972 practice would tend to favor the Millwrights, we find that on balance the current assignment of disputed work favors awarding the work in dispute to the employees represented by the Machinists. 3. Area and industry practice The record indicates that there is no well-defined area practice with respect to the work in dispute. At the two breweries in the immediate Philadelphia area, neither the Machinists nor the Millwrights 5 The record reveals that, because of the dispute, Schmidt attempted to assign the disputed work to a composite crew of both millwrights and machinists. This arrangement was unsatisfactory because the members of the crafts refused to work with each other . Since that time the disputed work has been assigned to the employees represented by the Machinists. 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD claims to represent the employees who perform analogous work to that here in dispute. We find, therefore, that the factor of area practice is too inconclusive to support an award of the disputed work to the employees represented by either Union. With respect to industry practice, the Machinists introduced into evidence a list of the collective- bargaining agreements which other locals of the Machinists have with breweries throughout the United States, and copies of relevant portions of these agreements . Some of these agreements clearly show that the employees represented by other Machinists locals perform the work identical to that here in dispute . The Millwrights introduced no evidence of industry practice to support its claim for the work. On the basis of the evidence before us, we find that the industry practice favors awarding the work in dispute to the employees represented by the Machinists. 4. Efficiency and economy of operation Schmidt did not present evidence with respect to which local would be more efficient and economical in performing the work in dispute. The Machinists contends that it would be more efficient and economical for Schmidt to assign the work to machinists because the 28 machinists regularly employed by Schmidt work on all 3 shifts and are thus readily available to perform the work whenever it arises. The three millwrights, by contrast, all work on the first shift only. We note, however, that the millwrights have performed the work in this manner from 1954 to 1972, apparently to the Employer's satisfaction. Under these circumstances, we are unable to conclude that this factor favors awarding the work in dispute to either the Millwrights or the Machinists. 5. Award of the umpire As a reiult of the dispute between the Machinists and the Millwrights, the Millwrights invoked the "Internal Disputes" procedure pursuant to the AFL-CIO constitution. The impartial umpire found that the dispute was essentially over which group of employees would perform certain kinds of work, and concluded that each of the Unions was free to try to obtain the disputed work for its members as neither Union had an established work relationship enforce- able against the other. However, Schmidt did not participate in the proceeding, and the award is therefore not binding on all the parties. Moreover, umpire's award on its face was inconclusive and favored neither Union. Accordingly, we find that this factor also does not favor awarding the work in dispute to the employees represented by either Union. 6. Job impact The supplement to the 1972 collective-bargaining agreement between Schmidt and the Machinists expressly provides that "the four millwrights employ- ed by the Company will continue to perform their usual duties until each of them dies, retires, or quits." Thus, although the permanent employees whom the Millwrights presently represents would not be affect- ed adversely by an award of the work in dispute to the Machinists, the Millwrights would ultimately lose all the positions in its bargaining unit as each of the present millwrights dies, retires, or quits. In addition, the Employer's award of the work to the Machinists has resulted in the possibility of the loss of additional "outside" jobs to employees represented by the Millwrights. On the whole, the factor of job impact is not conclusive. Conclusion Based upon the entire record in this proceeding and after full consideration of all relevant factors, we conclude that Schmidt's employees who are repre- sented by the Machinists are entitled to perform the work in dispute. Although we have found that the Employer's pre-1972 practices tend to favor the Millwrights claim, we do not find these factors sufficient to outweigh the specific language of the Machinists collective-bargaining agreement, the in- dustry practice, and Schmidt's current assignment of disputed work, all of which favor the Machinists claim. Accordingly, we shall award the work in dispute to Schmidt's employees represented by the Machinists but not to that Union. In consequence, we find that the Millwrights is not entitled by means proscribed by Section 8(b)(4XD) of the Act to force or require Schmidt to assign the disputed work to employees represented by it. DETERMINATION OF DISPUTE 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 case, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of C. Schmidt & Sons , Inc., who are represented by District Lodge No. 1, International Association of Machinists and Aerospace Workers, AFL-CIO, are entitled to perform the work of erecting, installing, and maintaining certain machin- ery at the C. Schmidt & Sons, Inc., facility in Philadelphia, Pennsylvania. MILLWRIGHT & MACHINERY ERECTORS, LOCAL 1906 615 2. Millwright and Machinery Erectors, Local 1906, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the National Labor Relations Act, as amended, to force or require C. Schmidt & Sons, Inc., to assign the above work to individuals represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Millwright and Machinery Erectors, Local 1906, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, shall notify the Regional Director for Region 4, in writing, whether or not it will refrain from forcing or requiring C. Schmidt & Sons, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute in a manner inconsistent with the above determination.