IAM, District Lodge 115

IAM, DISTRICT LODGE 115 369 International Association of Machinists and Aero- space Workers, AFL-CIO, District Lodge 115, Lo- cal Lodge 824' and Myers Drum Company and General Truck Drivers, Warehousemen, Helpers and Automotive Employees of Contra Costa Coun- ty, Local 315, IBTCWHA. Case 20-CD-456 September 16, 1975 DECISION AND DETERMINATION OF DISPUTE Employer's facility located in Richmond, California, is involved in this proceeding. The Employer is en- gaged in the manufacture of steel pails and drums and the reconditioning of steel drums. During the 12 months preceding June 30, 1975, the Employer sold and shipped goods valued in excess of $50,000 to lo- cations directly outside the State of California. We find that the Employer is engaged in commerce with- in 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. BY MEMBERS FANNING, JENKINS, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed on April 16, 1975, by Myers Drum Company, herein called the Employer, alleging that International Association of Machinists and Aero- space Workers, AFL-CIO, District Lodge 115, Local Lodge 824, herein called the Machinists, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or re- quiring the Employer to assign certain work to em- ployees represented by the Machinists rather than to employees represented by General Truck Drivers, Warehousemen, Helpers and Automotive Employees of Contra Costa County, Local 315, IBTCWHA, herein called the Teamsters. Pursuant to notice, a hearing was held before Hearing Officer Paula J. Paley on June 4 and July 1, 1975. All parties, including the Employer, the Ma- chinists, and the Teamsters, 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, the Em- ployer filed a brief. 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 made by the Hearing Officer at the hearing and finds they are free from prejudicial error. The rulings are hereby af- firmed. Upon the entire record in this case, including the aforementioned brief, the Board makes the fol- lowing findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that Myers Drum Company is a wholly owned subsidiary of Kaiser Steel Corp., a Nevada corporation. Only the 1 The Machinists name appears as amended at the hearing. 11. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Ma- chinists and the Teamsters 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 manual loading and unloading of the Employer's trucks and other truck equipment at the Richmond, California, plant. B. Background and Facts On April 3, 1975, Teamsters Joint Council 7 La- bor-Management Committee issued a decision in fa- vor of the Teamsters on a grievance presented to it by the Union alleging a violation of its collective- bargaining agreement with the Employer in that em- ployees represented by the Machinists were being utilized to load the Employer's product into its trucks. The Machinists was not a party to these pro- ceedings. On April 7, 1975, the Employer informed Machinists Business Agent Ronald Silva that, pur- suant to the decision, the disputed work would be assigned to the employees represented by the Team- sters. That same day, Silva wrote a letter to Carl Cundiff, manager of the Richmond facility, claiming the disputed work for the employees represented by the Machinists and stating that, should the work be assigned to the employees represented by the Team- sters, the Machinists would consider the Employer in breach of the Machinists collective-bargaining agree- ment with Employer and would "immediately vacate and strike your plant until the correction of the as- signment is made." C. Contentions of the Parties The Machinists claims the disputed work should be assigned to the employees it represents based on 220 NLRB No. 67 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Employer's past practice, economy and efficien- cy, necessary skills, and its collective-bargaining con- tract. The Employer prefers assignment of the disputed work to the employees represented by the Machinists based primarily on considerations of economy and efficiency. The Employer further contends that as- signment to the employees represented by the Ma- chinists is consistent with its past practice and its relevant contractual obligations. The Teamsters contends that the Employer is obli- gated to assign the disputed work to the employees it represents based on its collective-bargaining agree- ment and on the past practice of the Employer. D. Applicability of the Statute Section 10(k) of the Act empowers the Board to determine a dispute out of which an 8(b)(4)(D) charge has arisen. However, before the Board pro- ceeds with a determination of dispute, it must be sat- isfied 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 settle- ment of the dispute. As previously stated, the Machinists, after being informed that the Employer intended to assign the disputed work to the employees represented by the Teamsters, threatened to strike the plant until the disputed work was assigned to the employees repre- sented by the Machinists. No party contends, and the record discloses no ev- idence showing, that an agreed-upon method for the voluntary adjustment of the instant dispute exists to which all parties are bound. On the basis of the above-described threat and the record as a whole, we find there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute 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 that the Board make an affirmative award of the disputed work af- ter giving due consideration to various relevant fac- tors. 1. Certification and collective-bargaining agreements There is no evidence that either of the contending Unions has ever been certified by the Board. The collective-bargaining agreements of both Unions cover the disputed work. The Teamsters contract contains article 47, section 2(a), which states that "loading or unloading by hand of trucks, trailers, or vans or any other equipment used as a truck, trailer or van shall continue to be recognized as bargaining unit work." The aforementioned arbitration decision based on that section and deciding the dispute be- tween the Employer and the Teamsters does not con- stitute an assignment of the disputed work and is not controlling herein since the Machinists did not par- ticipate in the arbitration? The Machinists contract contains the job classification "carloader/truckload- er." The record reveals that in the mid-1950's the Employer commenced using trucks, as well as rail, for its shipping. At that time, employees represented by the Machinists in the carloader classification loaded and unloaded trucks, as well as railroad cars. The truckloader classification was added as an amendment to the agreement in 1968 at the Employer's request to more accurately reflect the ex- isting situation. Since both collective-bargaining agreements cover the disputed work, we find that this factor is not helpful to our determination. 2. Area or industry practice The Employer's facility is patterned after Rheem Drum Manufacturing Company which is located within the geographical jurisdiction of the instant Machinists and Teamsters Unions. When Myers Drum Company began operations, it adopted the same job classifications as those existing at Rheem. The record reveals that a similar work dispute exists at that company between the instant Unions. There- fore, this factor favors neither bargaining unit. 3. Employer's practice The Employer has four other plants in California and Oregon. The employees at these plants are repre- sented by unions different from those involved here- in and each plant has developed its own work prac- tices with regard to the assignment of loading and unloading trucks. The Richmond facility, involved herein, began op- erations in 1949. Almost immediately the Machinists was certified as the representative of all production and maintenance employees. As previously ex- plained, the parties adopted the job classification scheme used at the Rheem Drum Company, includ- ing the carloader classification. Employees in this classification were responsible for loading the fin- 2 Newspaper & Mail Deliverers' Union of New York City and Vicinity (The New York Times Company), 152 NLRB 871 (1965). IAM, DISTRICT LODGE 115 ished product into railcars and unloading raw mate- rials. In the middle 1950's the Employer began to acquire its own trucks for delivering its product. Em- ployees represented by the Machinists in the carload- er classification were used to load and unload the trucks. In 1956 the Employer voluntarily recognized the Teamsters as the representative of its drivers. The record reveals that the drivers often participated in the loading and unloading process over the years, but less so over the last 4 or 5 years . The decline in their participation recently is due to the fact that the Em- ployer has acquired additional truck trailers in order that continuous loading may take place while the drivers are away. Though the Employer's past practice has been somewhat mixed, we find upon the evidence present- ed that the predominant past practice tends to favor assignment to the employees represented by the Ma- chinists. 4. Interunion agreement One Teamsters witness testified that he overheard the making of an alleged agreement between a Mr. Swisher of the Machinists and a Mr. Simon of the Teamsters in 1966 that as Machinists -represented carloader/truckloader employees either retired or left the work force they were to be replaced by Team- sters-represented employees . The witness conceded that the Employer was never apprised of any such agreement. In addition , he did not know whether the agreement was ever recorded by either of the parties. A former business agent for the Machinists testified that he would have known of any such agreement. He further testified that Swisher would not have had sufficient authority to enter into such an agreement. There is no other evidence to support the fact that such an agreement was ever reached , or that either party attempted to comply with such an agreement. The testimony regarding the existence of the agree- ment is clearly hearsay . Furthermore, any such agreement would not affect an assignment of all the work. On the basis of all the foregoing, we find that this factor is not helpful to our determination. 371 6. Employer preference The record indicates that the Employer' s intention over the years, based on considerations of economy and efficiency, has been to use primarily employees represented by the Machinists. The record further in- dicates that the Employer maintains a preference for this assignment. We find that this factor supports an award of the work to the employees represented by the Machinists. 7. Economy and efficiency As previously mentioned, the record reveals that, over the last 4 or 5 years the Employer has been acquiring additional vans beyond the number of truck tractors presently in use. The reason for these additional acquisitions is so that continuous loading may proceed while drivers represented by the Team- sters are away from the yard making deliveries. This continuous operation would be disrupted by an as- signment to the employees represented by the Team- sters. There would be no loading at all during the periods that the drivers are away unless the Employ- er were prepared to hire additional employees repre- sented by the Teamsters and dispose of the two em- ployees represented by the Machinists in the truckloader classification. During the Employer's busy season, and occasionally at other times, vans are loaded on the swing shift. At present there are no employees represented by the Teamsters on that shift. Thus, additional employees represented by the Teamsters would have to be hired to meet these swing shift requirements. The record further reveals that assignment of the disputed work to employees represented by the Machinists provides the Employer with much flexibility and economy while utilizing its present employees. During busy periods of loading and unloading machinists in the "Extra Man" classi- fication can be used. During slow periods truckload- ers can help with railroad cars or be used in some other labor classification. On the basis of the evi- dence presented, we find that the factors of economy and efficiency of operation strongly favor assignment of the disputed work to the employees represented by the Machinists. 5. Skill There are no special skills required in performance of the disputed work. Thus, we find that the skill factor does not favor assignment to either of the competing groups of employees. Conclusion Upon the record as a whole, and after full consid- eration of all relevant factors involved, we conclude that the Employer's employees who are represented 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Machinists are cntitled to perform the work here in dispute . In reaching this conclusion , we have relied on the Employer's preference, considerations of economy and efficiency , and the Employer's pre- dominant past practice . Accordingly, we shall de- termine the dispute before us by awarding the work in dispute to the Employer's employees represented by the Machinists, but not to that Union or its mem- bers. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings, and the entire record in this pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: Employees employed by Myers Drum Company currently represented by International Association of Machinists and Aerospace Workers, AFL-CIO, Dis- trict Lodge 115, Local Lodge 824, are entitled to per- form the work in dispute.