United Brotherhood of Carpenters, Local 183

1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, Local Union # 183 and Pabst Brewing Company and International Association of Machin- ists, AFL-CIO, Local Lodge No. 360. Case 38- CD-141 August 20, 1976 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 Pabst Brewing Company (herein called Employer) on April 1, 1976, alleging that Unit- ed Brotherhood of Carpenters and Joiners of Ameri- ca, Local Union # 183 (herein called Millwrights), violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activities with an object of forcing or requiring the Employer to assign certain work to employees represented by Millwrights rather than to employees represented by International Association of Machinists , AFL-CIO, Local Lodge No. 360 (herein called Machinists).' Pursuant to notice, a hearing was held before Hearing Officer Roger J . Bisanz, on April 20, 1976, at Peoria, Illinois. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine the cross-examine witnesses , and to adduce evidence bearing on the issues . Employer and Mill- wrights 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 . The rulings are hereby affirmed . The Board has considered the entire record in this case and hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer is a Wisconsin corporation engaged in the manufacture and sale of beer at its Peoria Heights, Illinois, facility, and during the past year the Em- ployer sold and shipped products directly to custom- ers located outside the State of Illinois which were valued in excess of $50,000. Accordingly, we find 1 This party was permitted to intervene in this matter 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 policies of the Act to assert juris- diction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Mill- wrights and Machinists are labor organizations with- in the meaning of Section 2(5) of the Act. 111. THE DISPUTE A. The Work in Dispute The work in dispute consists of certain mainte- nance work on the Alvey Air Magnet Depalletizer (herein called the Alvey depalletizer or Alvey) at the Employer's Peoria Heights, Illinois, facility, includ- ing the maintenance of the hoist, vacuum carriage assembly, hinged layer table, live roller discharge conveyor, speed roll, and stop bar. B. Background In 1968 representatives of the Employer, Mill- wrights, Machinists, and three other craft unions rep- resenting units of employees at the Employer's facili- ty 2 negotiated a craft assignment book dividing the assignment of maintenance work on the Employer's various equipment between employees represented by each Union. Both Machinists and Millwrights have current col- lective-bargaining agreements with the Employer ef- fective May 1, 1972, and extended until April 30, 1976, which incorporate by reference the craft as- signment book. The Millwrights contract provides that assignments "assigned or referred as carpenters and/or millwrights" in the craft assignment book shall be performed by the unit of employees which it represents, that craft maintenance assignments of new equipment "shall be assigned by past practice," and that, if no such past practice exists, then by the Employer based on bargaining unit claims. Similarly, the Machinists contract calls for maintenance work assignments to be set out in a work assignment book to be "drawn up by the Company." It further re- quires that specific assignments be made in accor- dance with traditional unit work and past practice and that unions having labor contracts with the Em- ployer shall review the book with "the Company to resolve areas of conflict." At the time the craft assignment book was devel- oped, the Employer did not have an Alvey depalletiz- 2 Identified in the record as Oilers, Electricians, and Pipefitters 225 NLRB No. 141 UNITED BROTHERHOOD OF CARPENTERS, LOCAL 183 1013 er in its Peoria plant. Instead, it had a GFE empty can depalletizer (herein also called the GFE or empty can depalletizer) and an Alvey deunitizer (herein also called the deunitizer). The craft assignment book as- signed the maintenance of the GFE depalletizer to millwrights and the maintenance of the deunitizer to machinists. These machines operate as follows. From a 30-foot conveyor system the GFE depalletizer re- ceives some 8,000 cans stacked in approximately 21 layers on a 45-inch square pallet. A hoist raises the pallet through a series of electric eyes and switches which cause a sweep bar to sweep one layer of cans at a time from the top of the stack onto a wire mesh conveyor. The cans are fed from this conveyor through a cross conveyor belt onto a turntable where they are sorted into single file in preparation for con- veyance to the bottle house. When the pallet has been swept clean, it is discharged via another con- veyor to a pallet stacker, and the process is repeated with the next full pallet. The deunitizer, on the other hand, is smaller than the empty can depalletizer and, while designed to use pallets, is utilized without such at the Employer's facility. In the Employer's opera- tion, the deunitizer hoist section receives interlocked cases of empty bottles from a conveyor belt. A hoist lifts the entire load into the air and all but the bottom layer is secured by side claim clamps. The bottom layer is discharged over a live roller takeaway, at the end of which is a stop bar which automatically allows one roll of cases to be kicked off over a speed roll onto a conveyor where the roll is aligned into posi- tion and thence carried to the bottle house. In late 1974, or early 1975, the Employer acquired four Alvey depalletizers, the machines which have led to this dispute. The Alvey depalletizer is larger than the deunitizer made by the same company. It operates by receiving interlocked cases of bottles stacked on pallets via a 75-foot long conveyor. This conveyor carries the pallets to the hoist section where they are elevated until the top layer of cases contacts the vacuum fan and carriage assembly. The fan creates a vacuum which secures the top layer of cases to the carriage, the hoist is lowered, and the carriage moves onto the hinge gravity layer table which low- ers so that the cases fall off onto a live roller dis- charge. These cases are restrained and then released automatically by a stop bar through a speed roller onto another conveyor where they are positioned for conveyance to the bottle house. The empty pallets are discharged by a conveyor to the pallet stacker. In late January 1976, Millwrights business agent, Hershel Davis, and a Millwrights steward spoke with the Employer's manager of industrial relations, Merle O'Donal. They claimed that the craft assign- ment book assigned depalletizer maintenance work to millwrights and that since the Alvey was a depalle- tizer type machine, the maintenance work on it be- longed to them. A few days later O'Donal notified and assured Davis that the work would, in all proba- bility, be assigned to millwrights. Thereafter, O'Don- al issued an internal memo to Maintenance Superin- tendent Warren Lancaster recommending that the work be assigned to those employees. Concurrently, however, Lancaster had been approached by a Ma- chinists steward, Player Shatto, concerning the as- signment of the same maintenance work on the Al- vey. Lancaster indicated to Shatto that, while a final decision had not been made, machinists were likely to get a majority of the work. Thereafter, O'Donal and Lancaster studied the craft assignment book, which does not specifically refer to maintenance work on the Alvey, observed all three types of equip- ment in operation, and based on the complexity of the Alvey and the Alvey's operational similarity to the Alvey deunitizer, the maintenance of which was currently assigned to machinists, decided to make the assignment of the disputed work to them. O'Donal then notified Machinists and Millwrights that the disputed maintenance work on the Alvey would be assigned to employees represented by the former.' Thereafter, on April 1, 1976, the Millwrights threatened to cause a work stoppage at the Employer's Peoria Heights plant if the Employer did not discontinue its present assignment and reassign the work in dispute to employees represented by the Millwrights. C. The Contentions of the Parties The Employer and Machinists assert that the work in dispute should be awarded to employees repre- sented by Machinists based on the operational and physical similarity between the Alvey depalletizer and the Alvey deunitizer, the maintenance of which was being performed by employees represented by Machinists, and the superior experience and skills of machinists . Machinists additionally contends that the certification issued to it entitles its members to perform the work in dispute. Millwrights contends, contrary to the Employer and Machinists , that the Alvey is similar to the GFE empty can depalletizer , currently maintained by mill- wrights, who it claims possess the necessary experi- ence and skills to perform the work, noting in this connection that they installed the Alveys in the plant. Millwrights also contends that the work in dispute 3 Maintenance of the Alvey's conveyor attachments was assigned to members of Millwrights and such work is not in dispute herein Nor was the Employer's assignment of the maintenance of the hydraulic and pneumatic mechanisms on the Alvey to members of Pipefitters challenged 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should be awarded to employees represented by it on the basis of its contract with the Employer, which incorporates the craft assignment book assigning maintenance work on "depalletizers" to its members. Lastly, it contends that the certifications of the two Unions are not dispositive of the instant dispute. 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) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) the parties have not agreed upon a method for voluntary adjustment of the dispute. As to (1) above, the parties stipulated that on or about April 1, 1976, Millwrights threatened to cause a work stoppage at the Pabst Brewing Company's Peoria Heights, Illinois, facility to force a change in the assignment of certain maintenance work on the Alvey depalletizers at the Employer's facility to em- ployees represented by Millwrights. We find, there- fore, that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated by the Millwrights threatened work stoppage. As to (2) above, the parties stipulated that no inde- pendent method for voluntary adjustment of disputes exists which is binding on all the parties herein. Ac- cordingly, we shall proceed to determine the instant dispute .4 E. Merits of the Dispute 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. The Employer's assignment and past practice After considering requests from Machinists and Millwrights for the work in question, the Employer assigned the disputed maintenance tasks to employ- 4 At the hearing Machinists moved to quash the notice of hearing on the ground that the assignment of the work was agreed to between the parties by a joint agreement reached in the 1960's However, the record does not identify this agreement with any degree of clarity or specificity and no express agreement to this effect was put into evidence If by reference to an agreement Machinists had in mind the craft assignment agreement dis- cussed previously, we note that that agreement does not cover the Alvey, nor could it, since it was executed long before the Alveys were installed Moreover, the stipulation that no method existed for resolving this dispute, in which Machinists joined, undercuts this motion Accordingly, the Ma- chinists motion to quash is denied as lacking in merit 5 International Association of Machinists, Lodge No 1743 (J A Jones Con- struction Co), 135 NLRB 1402, 1410-I1 (1962) ees represented by Machinists because it deemed the Alvey depalletizer comparable to the deunitizer, his- torically maintained by machinists. It concluded, therefore, that those employees would have the expe- rience and skill to be better able to perform the main- tenance work that would be required on the Alvey. The Employer points to the fact that like the deuni- tizer, the Alvey handles bottles rather than cans; has a more sophisticated feeding process which requires the cases of bottles to be "interlocked" before enter- ing the machine where they are sorted onto a convey- or; has an identical discharge section, including a live roller discharge, a stop bar, and a feed roll; and differs essentially only by the addition of a vacuum carriage assembly and a hinge layer table and the use of wooden pallets. Machinists agrees with the Employer's basis for assigning the disputed work. Millwrights disputes the validity of the Employer's reasons for the assignment by claiming that, to the contrary, the Alvey is similar to the GFE empty can depalletizer which has historically been maintained by employees it represents. Millwrights notes that the Alvey and the empty can depalletizer are larger and handle more types of bottles or cans, as the case may be, than the deunitizer; both machines have long feed conveyors, use wooden pallets to hold the cases feeding into them, and have an empty pallet dis- charge conveyor and stacker. Further, the Alvey and the empty can depalletizer have similar hoist sections which lift the cases and remove a layer of cases from the top, whereas the deunitizer has a different type of hoist with a side claim clamp and removes the layers from the bottom. The record provides support for each of the above positions. Thus, in some respects the Alvey is similar to the deunitizer and in others more camparable to the empty can depalletizer. However, in at least two aspects the Alvey differs markedly from these ma- chines in its component parts: the vacuum carriage assembly and the hinge layer table. Both of these features inject a new element of operation into the picture, which not only serves to distinguish the Al- vey as a machine in its own right, but which creates potentially different maintenance problems not en- countered on the other machines. Thus, while the Employer has historically assigned the deunitizer maintenance work to machinists and the empty can depalletizer maintenance work to millwrights, we conclude that these assignments indicate only that both groups of employees have performed mainte- nance work on machines similar to the Alvey, and based on that fact apparently are capable of per- forming the disputed work. Accordingly, we find that the factor of past practice is equally favorable to em- ployees represented by both Unions and, therefore, is UNITED BROTHERHOOD OF CARPENTERS, LOCAL 183 not dispositive of the instant dispute. However, we find that the Employer's assignment of the disputed work tasks to machinists and the preference that in- dicates is a factor favoring an award of such tasks to employees represented by Machinists. 2. Collective-bargaining agreements As discussed above, the collective-bargaining con- tracts between the Employer and both Unions incor- porate the craft assignment book which divides the performance of maintenance work between the members of the Employer's various craft unions in- cluding Machinists and Millwrights. The parties con- cede that the Alvey, which was not installed until 1975, is not specifically mentioned in the craft assign- ment book and thus there is no basis for establishing a clear and unambiguous contractual claim to the work on behalf of either Union and the respective employees each represents. Millwrights contends, however, that the craft as- signment book was intended to define general areas of work tasks to be performed by employees repre- sented by each of the craft unions and that mill- wrights are entitled to perform the maintenance of the Alvey because they have performed similar work on a similar depalletizer machine. Contrary to Mill- wrights contention that the craft assignment book defines general areas of work for assignment, that book's maintenance assignments relate by identifica- tion and location to specific pieces of machinery, which were already in place in the Employer's plant at the time the craft assignment book was drafted. Consequently, we are unable to conclude that the craft assignment book covers the assignment of the maintenance of newly acquired equipment other than merely providing that such assignment should be made on the basis of past practice whenever possi- ble. In view of our findings above that past practice equally favors the claims of both Unions for the dis- puted work and therefore cannot serve as a means of determining the instant dispute, and inasmuch as the respective contracts otherwise do not specifically re- fer to the disputed work, we find that the parties' collective-bargaining contracts do not favor an award of the disputed work tasks to employees repre- sented by either Machinists or Millwrights. 3. Certification The Millwrights was certified as the collective-bar- gaining agent for all carpenters and millwrights at the Employer's Peoria Heights, Illinois, facility on September 26, 1951. On December 13, 1950, Machin- 1015 fists was certified as the collective-bargaining agent for machinists, machinists apprentices, and helpers, who, inter alia, perform mechanical repairs and re- pair all machinery "of all descriptions and parts thereof." Thus, while the certifications show that each Union has a longstanding bargaining history with the Employer representing a designated group of employees who perform maintenance functions at the Employer's plants, these certifications make no specific mention of the work in dispute, and, there- fore, are not determinative of the instant dispute. 4. Experience and skills The record indicates that machinists have per- formed maintenance work on the Alvey deunitizer and possess the requisite skills and experience to maintain the Alvey depalletizer. Likewise, the record indicates that millwrights installed the Alvey, have worked with extremely low tolerances required in the precise maintenance of machines such as the Alvey, and have satisfactorily performed maintenance work on the GFE empty can depalletizer which is similar to the Alvey in many respects. As each competing group of employees appears to have the requisite ex- perience and skill to perform the work in dispute, we find that this factor favors both equally. 5. Industry practice The Employer admittedly did not base its assign- ment to machinists on this factor, but nevertheless presented evidence that in breweries where the Alvey depalletizer is used, it is maintained by employees represented by Machinists. However, it acknowl- edges that none of these breweries employ employees represented by the Millwrights and, therefore, im- plicitly recognizes that those situations are distin- guishable from the instant one on that ground. Nev- ertheless, such industry practice as shown provides some support for the Employer's assignment to ma- chinists despite the absence of millwrights as employ- ees to perform the work in the breweries concerned, and, thus, this factor favors an award to that former group of employees. Conclusion Based upon the entire record, and after full consid- eration of all relevant factors, we conclude that the employees who are represented by Machinists are en- titled to perform the work in dispute rather than em- ployees represented by Millwrights. We reach this conclusion based primarily upon the Employer's preference and industry practice, all other factors 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being equal. Thus, the Employer's past practice, the respective collective-bargaining agreements, and the Unions' certifications are not dispositive; experience and skills indicate that either group of employees can do the work. Accordingly, we shall determine the dis- pute before us by awarding the work in dispute to those employees represented by Machinists, but not to that Union or its members. The present determi- nation is limited to the particular controversy which gave rise to this proceeding. 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: 1. Employees of Pabst Brewing Company who are represented by International Association of Machin- ists, AFL-CIO, Local Lodge No. 360, are entitled to perform maintenance work on the hoist, vacuum car- riage assembly, hinge layer table, live roller discharge conveyor, speed roll, and stop bar of Alvey Air Mag- net Depalletizer at the Peoria Heights, Illinois, facili- ty of Pabst Brewing Company. 2. United Brotherhood of Carpenters and Joiners of America, Local Union #183, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Pabst Brewing Company to assign the above work to employees represented by it. 3. Within 10 days from the date of the Decision and Determination of Dispute, United Brotherhood of Carpenters and Joiners of America, Local Union #183, shall notify the Officer-in-Charge for Subre- gion 38 whether or not it will refrain from forcing or requiring the Employer by means proscribed by Sec- tion 8(b)(4)(D) of the Act to assign the work in dis- pute to employees represented by it rather than to employees represented by Machinists.