United Catering, Hotel Workers, Local 1064

UNITED CATERING, HOTEL WORKERS, LOCAL 1064 United Catering, Restaurant, Bar and Hotel Workers, Local No. 1064, Retail, Wholesale, Department Store Workers Union, AFL-CIO and Canteen Cor- poration United Distributive Workers, Council 30, National Council of Distributive Workers of America and Canteen Corporation. Cases 7-CD-307-1 and 7- CD-307-2 July 14, 1975 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Canteen Corporation, alleging that United Catering, Restaurant, Bar and Hotel Workers, Local No. 1064, Retail, Wholesale, Depart- ment Store Workers Union, AFL-CIO (hereinafter called Local 1064), and United Distributive Workers, Council 30, National Council of Distributive Work- ers of America (hereinafter called Council 30) each has violated Section 8(b)(4)(D) of the Act by engag- ing in certain proscribed activity with an object of forcing or requiring Canteen Corporation to assign certain work to employees represented by it rather than to employees represented by the other. Pursuant to notice, a hearing was held before Hearing Officer Thomas Gallagher on April 22, 1975. 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, Local 1064 and Council 30 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: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that Canteen Corporation, a Delaware corporation with its principal place of business at the Merchandise Mart, Chicago, Illinois, is engaged in the provision of food services , and dur- ing the calendar year ending December 31, 1974, 127 purchased food supplies and other materials valued in excess of $50,000 directly from suppliers located outside the State of Michigan. Accordingly, we find that Canteen Corporation 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 herein. 11. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 1064 and Council 30 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute is "the nonsupervisory food preparation and distribution work within the two sat- ellite cafeteria areas, including retrieval of prepared and other food from the warehousing areas of the Hamtramck Assembly Plant and transfer of said food to the satellite cafeteria areas , placement of the prepared food into the `CounterVend' cabinets or machines within the satellite cafeteria areas, place- ment of various other prepared foods into their re- spective containers within the satellite cafeteria ar- eas, such as filling the milk dispenser , placement of salads into the chiller , and the placement of hot pre- pared foods into the steam cabinets and under the heat lights, preparation of hamburgers , hotdogs, and french fries in the satellite cafeteria areas , cashier work within the satellite cafeteria areas , and various other miscellaneous food-related job tasks within the satellite cafeteria areas." B. Background For a number of years, Canteen Corporation, un- der contract with Chrysler Corporation, has main- tained an operation at the Dodge main plant in Hamtramck providing food services to Dodge per- sonnel. Before February 1975, this operation in- volved a kitchen, a main dining room, and two satel- lite areas where Dodge personnel carried trays along cafeteria serving lines, requested various kinds of food as they passed down the line, and paid a cashier when they reached the end of the line. Food was brought in bulk to the plant's dock area, transferred from the dock area to the kitchen, and prepared in the kitchen. Some of it was then served in the dining room; the rest was put into large pans, wheeled to the satellite areas, placed on steam tables, ladled onto plates, and handed to Dodge personnel. In addition 219 NLRB No. 29 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the cafeteria serving lines, Canteen Corporation also maintained in the satellite areas coin-operated "Servinette" vending machines selling drinks and prepackaged food items. The 28 to 30 Canteen Cor- poration employees involved in transferring food from the plant's dock area, preparing it in the kitch- en, wheeling it to the satellite areas, and serving it to Dodge personnel were covered by a collective-bar- gaining agreement between Canteen Corporation and Local 1064 which by its terms applied to the positions of "chef, cook helper, general, and satellite specialist"; the 12 to 13 Canteen Corporation em- ployees involved in servicing and maintaining the coin-operated vending machines were covered by a collective-bargaining agreement between Canteen Corporation and Council 30 which by its terms ap- plied to the positions of "field maintenance, route service personnel, Servinette attendant, and 'Count- erVend' attendant." I The employees covered by the agreement with Local 1064 worked under Supervisor Palko, who reported to District Food Manager Igler, who in turn reported to Area Food Director Basset; the employees covered by the agreement with Coun- cil 30 worked under District Vending Manager Schafer, who reported to Area Vending Director Lee. In February 1975, Canteen Corporation decided, for business reasons, to change its operation at the plant essentially from a cafeteria-style service to an automat-style service. Under the new operation, the plant's kitchen was to be closed down completely, and the dining room and the two satellite areas were to be converted into three identical self-service areas where Dodge personnel could help themselves to food from manually operated "CounterVend" 2 auto- mat units and coin-operated "Servinette" vending machine units. The "CounterVend" units were to contain plates of food prepared, dished out, and indi- vidually wrapped at Canteen Corporation's commis- sary in nearby Dearborn; the "Servinette" units were to contain cans of soup, prepackaged items of food and machines for pouring hot and cold drinks. Canteen Corporation employees involved in the "CounterVend" part of the operation were to trans- fer the plates of food from the Hamtramck plant's i The agreement between Canteen Corporation and Local 1064 was scheduled to run from September 15, 1973, until September 15, 1976, with automatic renewal thereafter from year to year absent notice from either party to the contrary. The agreement between Canteen Corporation and Council 30 was scheduled to run from February 1, 1974, utnil February 1. 1977, with automatic renewal thereafter from year to year absent notice from either party to the contrary. 2 The "CounterVend" units were to be essentially a series of small com- partments, each with a clear plastic door on the side facing the customers, and each containing a plate of prewrapped food and a mechanism to keep the food hot or cold as desired . Dodge personnel were to walk in front of the units, opening the doors and removing the plates from the compartments; Canteen Corporation employees were to remain behind the units, placing the plates into the compartments. dock area to the self-service area, place the plates into the "CounterVend" units, and generally assist Dodge personnel when necessary in using the "CounterVend" units. They were also to serve as cashiers, to cook and serve hamburgers, hotdogs, and french fries, and to dish out bulk quantities of chick- en and fish into individual baskets 2 days a week and place the baskets on a counter for Dodge personnel to pick up; Canteen Corporation employees involved in the "Servinette" part of the operation were to maintain the "Servinette" units in working order, keep them fully stocked with food and drink, and generally assist Dodge personnel when necessary in using them. Supervisor Palko was to be transferred out of the plant, and District Vending Manager Schafer was to oversee both the "CounterVend" and the "Servinette" parts of Canteen Corporation's op- eration at the plant. On February 27, 1975, Canteen Corporation called a meeting with both Unions and announced its change in operation from a cafeteria-style service to an automat-style "CounterVend" service. Stressing that it believed the "CounterVend" work was cov- ered by the collective-bargaining agreement with Council 30 and that all of its other "CounterVend" work in the Detroit area was done by employees rep- resented by Council 30, Canteen Corporation stated that it was assigning the work to employees repre- sented by Council 30 and cancelling its collective- bargaining agreement with Local 1064.3 In response, Local 1064 Committeewoman and Chief Steward Turner warned that employees represented by Local 1064 would put up pickets and close the operation down if they did not receive the work in dispute, and added that she had United Auto Worker friends at the plant who would cause Canteen Corporation trouble. Local 1064 Executive Secretary and Business Agent Domany backed up Turner's threat to put up pickets and close the operation down. The parties then reached a temporary compromise whereby the work in dispute was to be performed by three em- ployees presented by Council 30 and nine employees represented by Local 1064. Pursuant to the temporary compromise, Canteen Corporation put its change in operation into effect on March 3, 1975. On March 11, 1975, Council 30 Representative Molnar wrote to District Vending Manager Schafer that Council 30 would take whatev- er action it deemed necessary, including a strike, if the employees represented by it did not receive all of the work in dispute. On March 13, 1975, Canteen Corporation filed the instant charges against both Council 30 and Local 1064. As of the hearing on The agreement with Local 1064 contained no provisions for cancellation in circumstances such as these UNITED CATERING, HOTEL WORKERS, LOCAL 1064 129 April 22, 1975, the work in dispute was still being done by three employees represented by Council 30 and nine employees represented by Local 1064 pur- suant to the temporary compromise. C. Contentions of the Parties Canteen Corporation contends (in a brief submit- ted to the Hearing Officer) that the work in dispute should be assigned to the employees represented by Council 304 because: (1) the collective-bargaining agreement between Canteen Corporation and Coun- cil 30 covers the work in dispute, and the collective- bargaining agreement between Canteen Corporation and Local 1064 does not; (2) Canteen Corporation has expressed its preference for assigning the work in dispute to employees represented by Council 30; (3) Canteen Corporation's general practice is to assign similar work in the Detroit area to employees repre- sented by Council 30; and (4) Canteen Corporation's operation at the plant would be made more efficient and economical by assigning the work in dispute to employees represented by Council 30. Council 30's contentions are essentially the same as Canteen Corporation's. Local 1064 contends that the work in dispute should be assigned to employees represented by it because (1) the collective-bargaining agreement be- tween Canteen Corporation and Local 1064 covers the work in dispute, and the collective-bargaining agreement between Canteen Corporation and Coun- cil 30 does not; and (2) the work in dispute involves essentially the same tasks which employees repre- sented by Local 1064 performed to Canteen Corporation's complete satisfaction for a number of years before the change in operations occurred. 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 (1) that reasonable cause exists to believe that a violation of Section 8(b)(4)(D) has been committed, and (2) that an agreed-upon meth- od binding on all parties does not exist for the volun- tary adjustment of the dispute. As to the existence of reasonable cause, the uncon- tradicted evidence indicates that Local 1064 Com- mitteewoman and Chief Steward Turner warned that 4 Neither Union contends that there is an agreed -upon method binding on all parties for the voluntary adjustment of the dispute . Council 30 con- tends that there is reasonable cause to believe that a violation of Sec. 8(b)(4)(D) has been committed by both Unions; Local 1064 denies that there is reasonable cause to believe that a violation has been committed by it, but does not deny that reasonable cause exists to believe that a violation has been committed by Council 30 employees represented by Local 1064 would put up pickets and close the operation down if they did not receive the work in dispute, and that Local 1064 Ex- ecutive Secretary and Business Agent Domany backed up this threat. The uncontradicted evidence also indicates that Council 30 Representative Mol- nar threatened that Council 30 would take-whatever action it deemed necessary, including a strike, if the employees represented by it did not receive the work in dispute. Accordingly, we find that reasonable cause exists to believe that violations of Section 8(b)(4)(D) have been committed both by Local 1064 and by Council 30. As to the existence of an agreed-upon method, the parties have made no allegation and the record con- tains no evidence that such a method is available. Accordingly, we find that an agreed-upon method binding on all parties does not exist for the voluntary adjustment of the dispute. Therefore, the dispute is properly before us for de- termination pursuant to 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 work in dispute after giving due consideration to various relevant factors, including the following: 5 1. Certification and collective-bargaining agreements The record contains no evidence that either Coun- cil 30 or Local 1064 has been certified by the Board as the bargaining representative of Canteen Corpora- tion employees for the work in dispute. The collective-bargaining agreement between Can- teen Corporation and Council 30 explicitly covers the position of "CounterVend attendant," and thus makes specific reference to the major tasks involved in the work in dispute. In contrast, the collective- bargaining agreement between Canteen Corporation and Local 1064 merely covers the position of "satel- lite specialist," which relates to a position in a manu- ally operated cafeteria. In addition, there is no refer- ence to any of the tasks involved in the work in dispute in the Local 1064 agreement. Accordingly, we find that the terms of the collective-bargaining agreements, while not by themselves determinative, tend to favor awarding the work to employees repre- sented by Council 30. 5 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402, 1410-11 (1962) 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Employer's preference and area practice The evidence clearly shows that Canteen Corpora- tion assigned the work in dispute to employees repre- sented by Council 30 initially and still prefers-the temporary compromise among the parties notwith- standing 6 -to assign the work to those employees now. The evidence also indicates that Canteen Cor- poration has assigned similar work to employees rep- resented by Council 30 in five of its six "Counter- Vend" operations in the Detroit area. Accordingly, we find that Canteen Corporation's expressed prefer- ence at the plant in question and its general practice in the Detroit area favor awarding the work to em- ployees represented by Council 30. 3. Efficiency and economy of operation The evidence indicates that employees represented by Local 1064 are as qualified as employees repre- sented by Council 30 to operate the "CounterVend" automat machines. However, according to District Vending Manager Schafer, the employees repre- sented by Council 30 are also experienced in operat- ing the "Servinette" vending machines, and the em- ployees represented by Local 1064 are not. As a result, Canteen Corporation could have its "Counter- Vend" attendants spend approximately 25 percent of their time helping to operate the "Servinette" ma- chines if the work in dispute is assigned to employees represented by Council 30, but will have to hire three to four additional employees-at an estimated ex- pense of $20,000 to $22,000 a year-to operate the "Servinette" machines if the work in dispute is as- signed to employees represented by Local 1064. Ac- cordingly, we find that efficiency and economy of operation favor awarding the work in dispute to em- ployees represented by Council 30. Conclusion Based upon the entire record, and after full consid- eration of all relevant factors, including the collec- tive-bargaining agreements, Canteen Corporations's assignment of the work in dispute, Canteen Corporation's area practice, and relative efficiency and economy of operation, we conclude that the work in dispute should be awarded to employees rep- 6 The compromise clearly was designed as a stopgap measure to avoid the possibility of strikes which had been threatened by the two Unions involved. resented by Council 30 (but not to that Union or its members). 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 Canteen Corporation who are represented by United Distributive Workers, Council 30, Naitonal Council of Distributive Workers of America, are entitled to perform the work consisting of all nonsupervisory food preparation and distribu- tion work within the two satellite cafeteria areas, in- cluding retrieval of prepared and other food from the warehousing areas of the Hamtramck Assembly Plant and transfer of said food to the satellite cafete- ria areas, placement of the prepared food into the "CounterVend" cabinets or machines within the sat- ellite cafeteria areas, placement of various other pre- pared foods into their respective containers within the satellite cafeteria areas, such as filling the milk dispenser, placement of salads into the chiller, and the placement of hot prepared foods into the steam cabinets and under the heat lights, preparation of hamburgers, hotdogs, and french fries in the satellite cafeteria areas, cashier work within the satellite cafe- teria areas, and various other miscellaneous food-re- lated job tasks within the satellite cafeteria areas. 2. United Catering, Restaurant, Bar and Hotel Workers, Local No. 1064, Retail, Wholesale, Depart- ment Store Workers Union, AFL-CIO, is not enti- tled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Canteen Corporation to assign the above work to individuals represented by it rather than to individuals represented by United Distributive Workers, Council 30, National Council of Distributive Workers of America. 3. Within 10 days from the date of this Decision and Determination of Dispute, United Catering, Restaurant, Bar and Hotel Workers, Local No. 1064, Retail, Wholesale, Department Store Workers Union, AFL-CIO, shall notify the Regional Director for Region 7, in writing, whether or not it will refrain from forcing or requiring Canteen Corporation, 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.