Lumber and Sawmill Workers Local 2592

186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lumber and Sawmill Workers Local 2592, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Louisiana-Pacific Corporation and Association of Western Pulp and Paper Workers, Association of Western Pulp and Paper Workers Local 49, Independent. Case 20-CD-432 March 28, 1975 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by Louisiana-Pacific Corporation, herein called Employer, alleging that Lumber and Sawmill Workers Local 2592, United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO, herein called Lumber and Sawmill Workers, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Em- ployer to assign certain work to employees represented by Lumber and Sawmill Workers rather than to em- ployees represented by Association of Western Pulp and Paper Workers, Association of Western Pulp and Paper Workers Local 49, Independent, herein called A.W.P.P.W. Pursuant to notice, a hearing was held'before Hear- ing Officer Eileen H. Hamamura on December 3, 1974. The Employer, the Lumber and Sawmill Workers, and the A.W.P.P.W. appeared at the hearing and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing on the issues. Thereafter, Lumber and Sawmill Workers and A.W.P.P.W. 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-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, and we find, that the Em- ployer, a Delaware corporation with its principal office in Portland, Oregon, and a pulp and lumber mill com- plex in Samoa, California, is engaged in the production and wholesaling of lumber, wood, pulp products, and wood products, and that during the 12 months preced- ing the hearing its gross volume of business exceeded $500,000 per year. The parties further stipulated that during the same period the Employer sold and shipped directly to customers located outside the State of Cali- fornia goods and services valued in excess of $50,000 and that it purchased and received from suppliers located outside the State of-California goods and ser- vices valued in excess of $50,000. Accordingly,-we find that the Employer 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 jurisdic- tion herein. II THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Lumber and - Sawmill Workers and A.W.P.P.W. are labor organiza- tions within the meaning of Section 2(5) of the Act. III THE DISPUTE A. Background and Facts The Employer's operations in Samoa, California, consist primarily of a pulpmill, a sawmill, and a power- house complex. In the area surrounding the power- house there are several conveyors which carry fuel pro- duced in the sawmill, as well as several other conveyors which transport fuel obtained from other sources. Among the latter are conveyors 6 and 7 which were constructed in 1972 for the purpose of carrying fuel from a fuel hopper located near the powerhouse onto conveyor 1 a which, in turn, directly supplies the boilers which generate power for both the pulpmill and the sawmill. Although the Employer utilized employees represented by Lumber and Sawmill Workers to build conveyors 6 and 7, at varying times since 1972 it has assigned the nonelectrical maintenance work on these two conveyors both to employees represented by Lum- ber and Sawmill Workers and to employees represented by A.W.P.P.W. It is clear, however, that at no time during this period have the respective groups of em- ployees performed such work simultaneously. At some time in September 1974, Lumber and Saw- mill Workers apparently was informed that employees represented by A.W.P.P.W. were performing the non- electrical maintenance work on conveyors 6 and 7. On September 27, 1974, as a result of that assignment by the Employer, Lumber and Sawmill Workers, pursuant to its contract with the Employer, filed a grievance in which it claimed the nonelectrical maintenance work on the two conveyors and demanded that the Employer engage in "no further violation of this nature." Shortly thereafter, according to the undisputed testimony of the Employer's personnel manager, Manuel Simas, during an attempt to adjust the grievance Lumber and Sawmill Workers Business Representative Alfred Las- 217 NLRB No. 39 LUMBER AND SAWMILL WORKERS LOCAL 2592 ley told him that, if the Employer did not assign the nonelectrical maintenance work on conveyors 6 and 7 to employees represented by that Union, the latter would call a strike and "shut the place down." At approximately the same time, Robert Hedland, a repre- sentative of A.W.P.P.W., informed Simas of A.W.P.P.W.'s position that such work fell within its jurisdiction. B. The Work in Dispute The work in dispute consists of nonelectrical mainte- nance work, including mechanical and cleanup work, on fuel conveyors 6 and 7 at the Employer's Samoa, California, complex. C. Contentions of the Parties At the hearing the Employer, through the testimony of witnesses called on its behalf, expressed its prefer- ence that the Board award the disputed work to its employees represented by A.W.P.P.W.I The Em- ployer contended that the factors of efficiency and con- tiniuity of operations favor an award of the disputed work to these employees. A.W.P.P.W. also takes the position that the factors of efficiency and continuity of operations favor an award of the disputed work to employees represented by it. It further contends that its prior certification by the Board as collective-bargaining representative for a unit of the Employer's production and maintenance employees encompasses employees within both the pulpmill and powerhouse and, therefore, such certifica- tion covers the , disputed work. Additionally, A.W.P.P.W. argues that the Board should award the disputed work to employees represented by it because conveyors 6 and 7 are functionally interrelated with conveyor la, which is an integral part of powerhouse operations, and that in the past this latter conveyor has been maintained exclusively by employees represented by A.W.P.P.W. Lumber and Sawmill Workers contends primarily that the factors of efficiency and continuity of opera- tions favor an award of the disputed work to employees represented by it. It further argues that the parties by past practice have interpreted the Board certification of the A.W.P.P.W. as limited solely to production and 1 At the hearing certain officials of the Employer, who were called to testify on behalf of Lumber and Sawmill Workers, stated that they would prefer that the Board award the disputed work to employees represented by that Union. However, the two witnesses called by the Employer testified that the Employer had taken the position that the disputed work should be awarded to employees represented by A W.P P W and a third witness, who made the formal appearance at the hearing on behalf of the Employer, also expressed the Employer's preference for such an award. In these circum- stances, we conclude that the Employer, in fact, has expressed a preference that the Board award the disputed work to employees represented by A.W P P.W. 187 maintenance employees within the pulpmill and that, therefore, such certification is inconclusive with respect to the disputed work which is performed within the powerhouse complex. D. Applicability of the Statute Before the Board may proceed with a determination 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 settlement of the dispute. As stated above, it is uncontroverted that Lumber and Sawmill Workers demanded the disputed work and threatened to strike and close the plant down in support of its demand. Based on the foregoing and the record as a whole, we find that Lumber and Sawmill Workers sought to force or require the assignment of the dis- puted work to employees represented by it rather than to employees represented by A. W.P.P. W. Accordingly, we find reasonable cause exists to believe that Lumber and Sawmill Workers violated Section 8(b)(4)(D) of the Act. No party contends, and the record discloses no evi- dence showing, that an agreed-upon method for the voluntary adjustment of this dispute exists to which all parties are bound. Accordingly, we find that the dis- pute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to various relevant factors. 1. Certification and collective-bargaining agreements Lumber and Sawmill Workers has never been certi- fied as collective-bargaining representative for a unit of the Employer's employees. In 1966, A.W.P.P.W. was certified as collective-bargaining representative for a unit of all production and maintenance employees. However, it appears from a careful reading of the Board's Decision and Direction of Election which preceded certification that such certification, encom- passed only production and maintenance employees at the Employer's pulpmill.2 This certification has not 2 Sub nom. Georgia-Pacific Corporation, 156 NLRB 946 (1966) This case involved the question of the appropriateness of separate units at the Em- ployer's Samoa, California, pulpmlll and powerhouse, and elections were directed among three separate voting groups. Following the elections, the International Brotherhood of Electrical Workers was certified as collective- bargaining representative of two separate units, one comprised of mainte- nance electricians and one of all recovery steampower group employees in Continued 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been formally amended or clarified by the Board to extend to production and maintenance employees per- forming work within the powerhouse complex. Fur- thermore, as noted above, the record clearly indicates that the Employer in the past has assigned the disputed work at various times to employees represented by Lumber and Sawmill Workers as well as to those repre- sented by A.W.P.P.W. and that the parties themselves have never delineated the jurisdiction of the respective Unions with regard to the disputed work. The factor of certification, therefore, is not determinative of the in- stant dispute. The Employer currently has collective-bargaining agreements with both Lumber and Sawmill Workers and A.W.P.P.W. An examination of these agreements discloses that Lumber and Sawmill Workers has been recognized by the Employer as representative of em- ployees within the sawmill and woods operations only and that A.W.P.P.W.'s recognition extends only to em- ployees within the pulpmill.3 Furthermore, neither contract specifically mentions the work in dispute. This factor, therefore, is inconclusive. 2. Employer's past practice, assignment, and preference It is undisputed that since the construction of con- veyors 6 and 7 the Employer at varying times has as- signed the disputed work to employees represented by the respective Unions. Furthermore, although the events which precipitated the instant dispute arose from the Employer's assignment of the disputed work to employees represented by A.W.P.P.W., it is clear that, thereafter, the Employer also assigned such work to employees represented by Lumber and Sawmill Workers. The factors of the Employer's assignment and past practice, therefore, are not determinative of the instant dispute. the pulpmill and powerhouse area, and A W P.P.W. was certified to repre- sent "all production and maintenance employees " Neither A.W P P.W 's certification nor the Board's decision makes any specific mention of em- ployees performing nonelectrical maintenance work within the powerhouse complex, the particular category of employees involved herem 3 The contract between the Employer and Lumber and Sawmill Workers contains the following recognition clause which reads in pertinent part: During the life of this agreement Union shall be the sole collective bargaining agency for all hourly employees, permanent, temporary, and part-time, in the sawmill and woods operations of Employer . . [Emphasis supplied ] The contract between the Employer and A.W P.P.W. contains the following relevant provision which reads in pertinent part Company recognizes the Signatory Union as the sole collective bargain- ing agent for all hourly employees of Company employed in the mill covered by this Agreement .. [Emphasis supplied ] As noted above, the Employer, through the tes- timony of various witnesses and particularly that of its designated representative for the purpose of making its formal appearance at the hearing, expressed its prefer- ence that the disputed work be awarded to employees represented by A.W.P.P.W. While we do not afford controlling weight to this factor, we find that it tends to favor the award of the disputed work to employees represented by the A.W.P.P.W. 3. Relative skills, efficiency, and continuity of operations It is undisputed that each of the respective groups of employees possess the requisite skills to perform the disputed work in a manner satisfactory to the Em- ployer. This factor, therefore, does not aid us in making a determination of the dispute. The record further discloses that the Employer's pulpmill is operated on a 7-day-a-week, 24-hour-a-day basis and that conveyors 6 and 7 are in use on the same schedule in order that fuel may be supplied continu- ously to the boilers which generate power for the pulp- mill. Inasmuch as employees represented by the A.W.P.P.W. also perform maintenance work in the pulpmill, at least some of these' employees are available at all times. The employees represented by Lumber and Sawmill Workers are principally assigned to the saw- mill. Although the sawmill is located only some 100 yards from the powerhouse, a distance considerably closer than the pulpmill which is approximately 1 mile from the powerhouse, it is closed after regularly sched- uled hours on Saturdays and during the entire day on Sundays and, therefore, employees represented by Lumber and Sawmill Workers are not usually sched- uled for work during these times. Thus, in the'event of a breakdown of conveyor 6 or 7 during these periods, employees represented by the A.W.P.P.W. are readily available to perform maintenance work on these con- veyors, whereas employees represented by Lumber and Sawmill Workers would have to be contacted at home prior to reporting for work, thereby delaying the time in which the conveyors would be repaired and, conse- quently, further disrupting operations within the pulp- mill. Furthermore, in the past only employees repre- sented by the A.W.P.P.W. have been assigned maintenance work on conveyor la which, as noted above, is connected to conveyors 6 and - 7 and leads directly to the boilers, and, therefore, these employees are both available for, and capable of, maintaining the entire fuel conveyor system emanating from the fuel hopper. The factors of efficiency and continuity of op- erations, therefore, favor an award of the disputed work to employees represented by A.W.P.P.W. LUMBER AND SAWMILL WORKERS LOCAL 2592 189 CONCLUSION Upon the record as a whole, and after full considera- tion of all relevant factors involved , we conclude that the Employer's employees represented by A.W .P.P.W. are entitled to perform the work in dispute. We reach this conclusion upon the facts that such assignment will result in greater efficiency and continuity of operations; such assignment is consistent with the Employer's pref- erence; and these employees possess the requisite skills to perform the disputed work satisfactorily . Accord- ingly, we shall determine the dispute before us by awarding the work in dispute to the Employer's em- ployees represented by A.W .P.P.W., but not to that Union or its members . In consequence, we also find that Lumber and Sawmill Workers is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work to employees represented by it. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceed- ing, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Louisiana-Pacific Corporation who are currently represented by Association of Western Pulp and Paper Workers, Association of Western Pulp and Paper Workers Local 49 , Independent, are entitled to perform the work of nonelectrical maintenance work, including mechanical work and cleanup work, on fuel conveyors 6 and 7 at the Employer 's Samoa, California, complex. 2. Lumber and Sawmill Workers Local 2592 , United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is not entitled by means proscribed by Sec- tion 8(b)(4)(D) of the Act to force or require Louisiana- Pacific Corporation to assign the above work' to em- ployees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Lumber and Sawmill Work- ers Local 2592, United Brotherhood of Carpenters and joiners of America, AFL-CIO , shall notify the Re- gional Director for Region 20, in writing, whether or not it will refrain from forcing or requiring the Em- ployer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by Lumber and Sawmill Workers rather than to employees represented by A.W.P.P.W.