Longshoremen, Local 6

LONGSHOREMEN, LOCAL 6 93 International Longshoremen's and Warehousemen's Union, Local 6 and Owens-Illinois, Inc. and Broth- erhood of Teamsters and Auto Truck Drivers, Local 70, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 20-CD-460 January 9, 1976 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed on May 7, 1975, by Owens-Illinois, Inc., hereinafter called the Employer, against the In- ternational Longshoremen's and Warehousemen's Union, Local 6, herein called Warehousemen, alleg- ing that Warehousemen violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed conduct with an object of forcing or requiring the Employer to assign certain work to its members rather than to the Employer's employees represented by Brother- hood of Teamsters and Auto Truck Drivers, Local 70, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Teamsters. A hearing was held before Hearing Officer Joseph R. Wirts on June 6, 10, and 13, 1975, at San Francis- co, California. 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, all parties 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 rulings of the Hearing Officer made at the hearing are free from prejudicial error and are here- by affirmed. Upon the entire record in this case, the Board makes the following findings: course and conduct of its business operations, the Employer, at its Oakland, California, facility, re- ceived gross revenue in excess of $500,000 and dur- ing the same period it sold and shipped directly to customers located outside the State of California glass containers valued in excess of $500,000. We find, therefore, that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Teamsters and Warehousemen are labor organizations within the meaning of Section 2(5) of the Act. 111. THE DISPUTE A. The Work in Dispute The work in dispute is the movement of palletized glassware from the edge of loading docks onto fixed rails, required for the loading of Strad-O-Lift vehi- cles, located at the Employer's plant in Oakland, Cal- ifornia. B. Applicability of the Statute Before the Board may proceed with a determina- tion 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 volun- tary adjustment of the dispute. The record establishes that there is no agreed-upon method for settling the dispute. The record also shows that on April 18, 1975, Toby Lee, chief stew- ard of Warehousemen, approached Bart Oxley, per- sonnel director for the Employer, and said, "If a Teamster puts one load of ware on these rails, there would be a walkout." In view of the foregoing, we find that there is rea- sonable cause to believe that there has been a viola- tion of Section 8(b)(4)(D) of the Act, and that the dispute is properly before the Board for determina- tion. 1. THE BUSINESS OF THE EMPLOYER The Employer, an Ohio corporation having a place of business at Oakland, California, is, and at all times material herein has been, engaged in the business of manufacturing glass containers for various business organizations which market their products in such containers. During the past calendar year, in the C. Background and Facts of the Dispute The Employer employs 1,800 persons to make and ship container ware which accounts for $62 million gross sales annually. The plant operates 24 hours a day, 7 days a week. Its production volume runs in advance of orders and is high. Hence some 1,200 pal- 222 NLRB No. 23 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lets of glassware, constituting an average of 60 truck- loads daily, must be shipped daily from the Oakland plant to nearby satellite warehouses, in addition to the shipments made to customers. Some 90 percent of the shipments to the satellite warehouses pass over the three loading docks at the Oakland plant warehouse, and the remaining 10 per- cent pass through a loading area where there is no dock. The lips of the loading docks are each approxi- mately 4 feet above the adjacent shipping area which they service. The glassware passing across the three loading docks to the satellite warehouses is moved onto trucks or vans in a two-step operation. Employees represented by Warehousemen move all palletized glassware on forklifts from the interior of the warehouse to the edge or lip of the loading docks, where it is put to rest. Employees represented by Teamsters then pick up the palletized ware and move the ware into vans or onto the flatbed trucks for shipment to the satellite warehouses. This divid- ing line has been uniformly applied to all multistep loading operations at the loading docks of the Oak- land plant. There are four loading areas at the plant, three of which have raised docks, and the fourth of which is a small area at year level. The principal loading activi- ty occurs at the front year dock, from which more than 70 percent of the shipments are made. The front yard dock is immediately adjacent to a warehouse where the glassware is stored awaiting shipment. A canopy extends out over a portion of the yard area beyond the front yard dock, permitting flatbed trucks to be parked under it for loading. The Em- ployer at one time used the yard area under the cano- py for storage, and warehousemen commonly operat- ed forklifts in that area for the purpose of storing-or breaking product out of storage. Since Labor Day of 1973, all storage of product has been inside the prin- cipal building, and there has been no warehousing activity in the yard. Storage facilities in the Employer's main building are not adequate, and the Employer maintains four additional separate warehouses, located at various distances from the -plant ranging from 3/4 of a mile to 3 miles. Daily shipments are made from the plant to the warehouses by flatbed trucks and daily deliv- eries to customers are made from the warehouses, as well as from the plant. Three of the warehouses have raised loading docks, and the loading and unloading of the product is accomplished in the same manner as in the front yard dock at the plant, i.e., warehouse- men move the pallets between the storage area and the lip of the dock, and teamsters move the pallets between the truckbed and the lip of the dock. One of the warehouses, known as warehouse "C," does not have a raised dock. Loading and unloading is accom- plished by means of a "drive-through" procedure, whereby the truck enters at one end of the ware- house, loads or unloads in the center of the building at the floor level, and exits at the other end. Loading in this warehouse is accomplished by a one-step op- erations; that is, a forklift operator moves the pallet of glassware from storage directly to the center of the building where the truck is parked, and deposits it on the bed of the truck. This work is assigned to ware- housemen. Teamsters are assigned to all warehouses, performing loading and unloading work, securing or untying loads, and performing other work incidental to truck movements. At warehouse "C," teamsters do not load or unload glassware, but they occasionally operate forklifts to load and unload empty pallets onto or off of trucks. In addition to the movement of the Employer's trucks in and about the plant for purposes of making deliveries to customers or the warehouses, a large number of .outside vehicles also come to the plant for pickups. These include trucks, of Yandell Trucking Company, which handles deliveries for which the Employer does not have equipment, customer trucks, contract carriers hired by customers, and common carriers. The loading areas, and particularly the front yard dock area, are very busy and congested. All of these trucks, are loaded by teamster forklift opera- tors, in each case taking the product from the lip of the dock where warehousemen have placed it,_ and depositing the pallets on the bed of the truck., Although teamsters are normally assigned either to truck driving or forklift work, there is frequent inter- change between the two, jobs. All teamsters are on the same seniority list and- layoffs or recalls may have the effect of requiring a driver to become a forklift operator, or vice versa. Frequently, a driver is as- signed to operate a forklift on weekend overtime work. The work assignment in this case arose in conse- quence of the Employer's decision to change the method of transporting glassware from its plant to its warehouses. The new operation will involve use of a piece of equipment called a Strad-O-Lift in the place of the flatbed truck. A Strad-O-Lift is powered by a detachable tractor, and clamps and -lifts the load which it straddles. It rolls on pneumatic tires, and is licensed to operate on city streets. In order to func- tion properly, it is necessary that the loaded pallets be placed, on rails raised several inches off the ground, so that the Strad-O-Lift may back over the load, and the clamping mechanism and "go under- neath the edge of the pallet." The rails need not be embedded in the ground, and can be moved from place to place in the yard. LONGSHOREMEN, LOCAL 6 . Strad-O-Lifts will be loaded in the front yard dock area because it affords the room-and easy access to storage areas which the volume of work requires. The loading operation will be the same two-step proce- dure which is -presently used in loading trucks in that area. The glassware will be,moved first from storage to the lip of the dock, which will involve the move- ment,of forklifts in the yard area at- the foot of the dock.-There will be-no attempt to move the glassware directly from storage down a- ramp and onto the rails as the Employer considers it impractical and ineffi- cient. The specific work in dispute in-the operation of the forklift,in the yard area to pick up the pallets from the lip of the dock and set them on the rails. Ware- housemen does not contest the assignment to team- sters- of the driving of the Strad-O--Lift, but claims that the _Movement of the _glassware from the lip of the dock onto the rails should be, assigned to the warehousemen, The Employer has assigned the work in dispute to forklift operators represented by the Teamsters. - The Employer maintains that the purpose in ac- quiring Strad-O-Lifts is to achieve greater economy in transporting glassware,to its warehouses. Although the Strad-O-Lifts do not carry the same volume of product, they operate on a far superior turnaround time-. The, complete cycle from loading at the plant to warehouse and return-to the plant for a flatbed truck occupies about 2-1/2 hours, the great majority of which is spent in loading' and unloading. The Strad- O-Lift will accomplish the same cycle in 20 minutes. D. The Contentions of the Parties The Employer contends that as the disputed work will be performed in the yards opposite the various loading docks it would-be more efficient to supervise and direct the work of the teamsters who normally perform all the yard work, rather than have employ- ees represented by both crafts working side by side. Moreover,' the Employer contends that the place= ment of palletized wares on the rails is similar to the placement of wares on a flatbed truck and that the teamsters regularly perform those functions. Ware- housemen contends that the rails are on the ground, that such rails do not replace the flatbed trucks, and they have jurisdiction of placing loads on the ground. Teamsters contends that the placing_of loaded pallets on rails is not warehousing, it is functionally related to the loading of the Strad-O-Lift and is therefore teamsters work. E. Merits of the Dispute 95 Section 10(k) of the Act requires the Board to make an affirmative award of disputed work =after giving due consideration to various factors. The fol- lowing factors are relevant in making a determina- tion of the dispute before us: - 1. Certification and collective-bargaining agreements There is no evidence that either of the labor orga- nizations involved herein has been certified by the Board for a unit of the Employer's employees. The, Warehousemen's agreement provides the fol- lowing'iecognition-clause: - - ARTICLE I, SECTION 1 - The Company recognizes the' Union as the sole- collective bargaining agent in the Company's Oakland and San Francisco ware- houses for all hourly workers employed on occu- pations listed in schedule "A" which is attached- hereto and made a part of this agreement. The -classifications listed in schedule "A" include "highlift operator" and "car loader-ware handler" but make no reference to Strad--O-Lift loading or to' any general loader category apart from the "car load- er-ware handler"- classification associated with ware- house work. The Teamsters agreement provides in article 9 -the following "Work Jurisdiction" provision, in part: WORK JURISDICTION Section 1. Except as provided in this Article, only persons working under the jurisdiction of this Agreement shall: - a. Drive, load and unload trucks, trailers, vans or any other type of equipment used in connec- tion-with trucks. b. Operate power equipment used in connec- tion with loading and unloading." Section 2. Work at Premises of Shippers and Consignees: a. Loading or unloading by hand off trucks, trailers, vans or any other type of equipment used as a truck, trailer or van, shall continue to be recognized as.-bargaining unit work, and shall be performed only by persons employed under the Local Pickup and Delivery Agreement and, in particular employees of any company not party to that agreement shall not load, unload by handor enter any such equipment for that purpose. The only exceptions to this paragraph are: 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d. Loading and unloading with mechanical equipment only or into trucks, trailers, or vans, or -equipment used as trucks, trailers, or vans, may be performed by such employees as the Employer and the consignee or shipper may agree. * Section 3, Warehouse C: All operations with the loading and unloading of trucks in Ware- house C shall be performed by Local 6. a. At Warehouse "C" there shall be a Local 70 Teamster in attendance at all times that truck loading or unloading is being performed. (He can be performing any teamster work). (Owens employee.) b. In all Owens-Illinois Warehouses (except Warehouse C) drivers may, load and unload their own equipment. Both contracts encompass the operation of fork- lifts, which are used in the performance of the disput- ed work." It appears- that the basic difference between the two agreements is that the Warehousemen agree- ment relates to warehousing activities, and the Team- sters agreement relates to the driving, loading, and unloading of trucks. Warehousing activity, we be- lieve, involves movement of merchandise into storage and breaking it out of storage in preparation for ship- ment. In this case, the Strad-O-Lift will be substitut- ed for the flatbed truck in making delivery over city streets to Employer's warehouses located up to three miles away from the plant. The disputed work is more functionally related to loading of trucks than to warehousing. As the disputed work is part of "load- ing" the Strad-O-Lift, it lies within Teamsters juris- diction under its agreement with the Company. Ac- cordingly, we find this factor provides some support for an award to the employees represented by the Teamsters. The 1958 Yard Agreement The 1958 Yard Agreement between the Employer and Warehousemen and the dispute it resolved pre- dates all Strad-O-Lift operations. During the 1950's teamster drivers operated under an incentive com- pensation plan which increased a driver's compensa- tion in direct proportion to the number of deliveries made. Prior to 1973, glassware was stored in the front yard area covered by the canopy. Warehousemen performed the work of moving the product into and out of that storage area. The result was that forklift operators represented by both Unions moved in and about the yard area. Teamster drivers sometimes re- fused to wait for warehousemen to break out loads from storage, and would do that work themselves to expedite the loading of their equipment. In 1958 the Employer and Warehousemen entered into an agree- ment designed to resolve the problems. The agree- ment assigned to warehousemen "all work under the canopies at the main plant" except for "the transfer of ware from loading docks . . . to trucks" which is recognized as teamster work "provided that transfer is made directly to the bed of the truck." The agree- ment is limited in duration to the term of the then existing contract between Warehousemen and the Employer, but its intent has been complied with in succeeding years. The subject matter of this agreement became moot by the removal of all storage under the canopy area during the Labor Day weekend in 1973. Warehousemen has urged that the 1958 agreement, to which the Teamsters was not a party, should be treated as awarding the disputed work in this case to it, since it occurs under the canopy. It contends, "Our 1958 Agreement is the common law of this plant." We find no merit in this contention. The 1958 agreement to which the Teamsters was not a party can have no reference to Strad-O-Lift vehicles. No such vehicles were employed at the Oakland plant in 1958. Further, the agreement has no present effect, both because it expired long ago and because there is no longer warehousing activity in the area to which it pertains. The 1968 Grievance Settlement In 1968 a decision was issued by a grievance panel under the agreement between Teamsters and the Em- ployer which involved a jurisdictional question simi- lar to that in the instant case. One of the Employer's customers, Shippers' Encinal, whose cannery was near the Company's plant, began picking up glass- ware during canning season with a straddle lift truck which is comparable to the Strad-O-Lift in this case. The procedure required glassware to be placed by forklift on a specially constructed skid, which the straddle truck hoisted by clamps and transported to the cannery. Shipper's Encinal was a party to a col- lective-bargaining agreement with Teamsters Local 70, and the straddle truck was driven by a teamster covered by the contract. The Employer assigned the work of placing the glassware on the skid to ware- housemen. The reason was that the loading was per- formed in the one loading yard area where there is no raised dock, so that the movement from storage to skid was a one-step process. Teamsters grieved the LONGSHOREMEN, LOCAL 6 97 assignment, and the question was resolved by the grievance panel as follows: Due to the K & P decision between the N.L.R.B. and because there is an agreement existing with all truckers in the Local 70 area on the loading of palletized and unitized freight and since the straddle lift does not belong to Owens-Illinois, the claim of the Union is denied. The decision regarding this grievance applies only to the straddle lift operation as applied and operated by Encinal Terminal. If Owens-Illinois purchas- es or leases straddle-life equipment, it shall be loaded and unloaded by Local 70 employees. The 1968 grievance settlement is very limited. Nothing in it purports to give Teamsters the right to any one-step loading operations by which glassware is brought directly from the in- terior of the warehouse onto Strad-O-Lift load- ing rails. To the extent that the 1968 grievance settlement has any bearing on the present case, it is consistent with the Employer's assignment of work to the teamsters in multistep loading op- erations. -a Teamster to unload a truck or to load the rail. And these were the primary considerations that we used in determining the . . . in giving the work to the Teamsters. Further, the Employer contends it has experienced difficulties when a trucking supervisor has attempted to give directions to warehousemen, which would necessarily occur if the disputed work were assigned to warehousemen. We find that the Employer's as- signment of the disputed work to the teamsters was based on sound business considerations, including economy, efficiency and flexibility of operations. Ac- cordingly, we find these factors favor the Employer's assignment. 3. Relative skills It is uncontroverted that both teamsters and ware- housemen at the Employer's plant are experienced- forklift drivers who possess sufficient skills to per- form the disputed work. Consequently, the factor of skills involved favors neither group of employees. Conclusion 2. Employer's assignments, existing practice, efficiency, and economy In considering these factors we note that the load- ing operation is to be performed in two steps, and involves different sets of forklifts, one group operat- ing on the raised dock area, and the other at the ground level. The Employer has assigned the loading of the Strad-O-Lift rails to the teamsters. Under ex- isting practices, teamsters have no occasion to oper- ate forklifts on the dock area, and warehousemen have no occasion to operate forklifts in the yard, ex- cept for occasional clearing of breakage. There are separate lines of supervision for teamsters and ware- housemen, and if warehousemen were to be assigned the disputed work they would be working in an area which is covered by the Teamsters contract. The Em- ployer made the following explanation of its reasons for assigning the disputed work to the teamsters: We felt that there was ... the size of the dock would aid us. We felt that by taking the ware from the lip of the dock, using the Teamster to place it on the rail, would be more efficient than taking a warehouseman and putting him in the yard and limiting him only to loading rails, as he would not be able to load a flatbed or unload a flatbed or anything else; and that Teamsters are assigned in this area, they work in this area. I have three loaders there already. I felt that it would give us better flexibility to be able to use Upon the entire record, after full consideration of all relevant factors here involved, we believe that the work in dispute should be awarded to employees rep- resented by the Teamsters. The fact that the team- sters employed by the Employer not only have the requisite skills but are familiar with all facets of the work, and the attendant efficiency and concurrent economy of utilizing the services of the teamsters for the tasks necessary for the Strad-O-Lift loading work, lead us to conclude that the Employer's assign- ment of work to teamsters is a proper one. Therefore, we shall assign the work in question to employees of the Employer who are represented by the Teamsters. In making this determination, which is limited to the controversy that gives rise to this proceeding, we are assigning the disputed work to employees who are represented by Brotherhood of Teamsters and Auto Truck Drivers, Local 70„ but not to that Union or its members. Scope of the Award The Employer requests an areawide award that would extend across all the Employer's Oakland op- erations' and clarify the jurisdictional boundary be- tween teamsters' and warehousemen's work hence- forth. However, we do not find the record evidence herein sufficient to establish a pattern of misconduct suggestive of a likelihood that this dispute will extend to other jobsites or recur in the future. Accordingly, 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we do not believe that the board order requested by the Employer is appropriate at this time and, there- fore, the determination herein shall apply to the job- site presently under consideration. DETERMINATION-OF DISPUTE Pursuant to Section 19(k) of the National Labor Relations Act, as amended, and upon the foregoing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following -Determination of Dispute: 1. Employees of Owens-Illinois, Inc., who are rep- resented by Brotherhood of Teamsters and Auto Truck Drivers, Local 70, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, are entitled to perform the work of the movement of palletized glassware from the edge of the loading docks onto fixed rails, required for the loading of Strad-O-Lift vehicles, located at the Owens-Illinois, Inc., plant in Oakland, California. 2. International Longshoremen's and Warehouse- men's Union, Local-6, is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force or require Owens-Illinois, Inc., to assign the above work to employees represented by it. 3. Within 10 days from the date of this-Decision and Determination of Dispute, International Longshoremen's and Warehousemen's Union, Local 6, shall notify the Regional Director for Region 20, in writing, whether or not it will refrain from forcing or requiring the Employer, 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 Brotherhood of Teamsters and Auto Truck Drivers, Local 70, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.