Brewery Workers Union No. 9, DALU-AFL-CIO (Pabst Brewing Company)

BREWERY WORKERS UNION NO. 9 Brewery Workers Union No. 9, DALU-AFL-CIO and Pabst Brewing Company and Local Union No. 113, Laborers International Union of North America, AFL-CIO. Case 30-CD-104 July 30, 1982 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Pabst Brewing Company, herein called the Employer, alleging that Brewery Workers Union No. 9, DALU-AFL-CIO, herein called the Brewery Workers, had violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing or requir- ing the Employer to assign certain work to em- ployees it represents rather than to employees rep- resented by Local Union No. 113, Laborers Inter- national Union of North America, AFL-CIO, herein called the Laborers. Pursuant to notice, a hearing was held before Hearing Officer Rocky L. Coe on March 15, 1982. All parties appeared and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Brewery Workers, the La- borers, and the Employer 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 Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER Pabst Brewing Company is a Delaware corpora- tion engaged in brewing beer at its facilities located in Milwaukee, Wisconsin. During the past calendar year, a representative period, the Employer re- ceived gross revenues in excess of $500,000 in the course and conduct of its business and, during the same period of time, it sold and shipped goods and materials valued in excess of $50,000 directly to points located outside the State of Wisconsin. The parties stipulated 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 pur- poses of the Act to assert jurisdiction herein. Ac- 263 NLRB No. 6 cordingly, 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 pur- poses of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Brewery Workers and the Laborers are labor orga- nizations within the meaning of Section 2(5) of the Act. II1. THE DISPUTE A. The Work in Dispute The work in dispute, which was stipulated to by the parties, involves the loading, unloading, han- dling, and shipping of advertising materials at the Employer's Delta warehouse. B. Background and Facts The Employer purchased Blatz brewery in 1959, a purchase which included Blatz' complex known as the East Side Plant. At that time, both the Brewery Workers and the Laborers had collective- bargaining agreements with Blatz and both Unions continued to represent employees at the East Side Plant. Between 1959 and 1982, the Employer stored its advertising or merchandising materials, which consist of promotional supplies such as signs, coasters, napkins, clocks, and beer glasses, at a warehouse at the East Side Plant. As more fully set forth below, the work of handling these materi- als was divided between employees represented by the Brewery Workers and the Laborers pursuant to an understanding reached in December 1961. Between 1959 and 1981, the Employer operated out of several outside leased warehouses in addition to the facilities located at the East Side Plant.' The Employer also owns a facility known as the Delta warehouse which, prior to 1970, had been leased by it to other entities and was not used for its own business. From 1970 until 1981, the Employer uti- lized the Delta warehouse to store brewery materi- als. Sometime in 1981, the Employer decided that it would be more efficient and economical to consoli- date the receiving, shipping, and storing of brew- ery materials, supplies, and advertising or merchan- dising materials at the Delta warehouse. To that end, the warehouse was renovated at a cost of ap- proximately $2.6 million. In contrast to the mixed jurisdiction at the East Side Plant, the handling of materials at the Delta 'The record refers to at least two such facilities: the Globe Union building on North Hopkins and the International Harvester building on 16th Street in Milwaukee. 41 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warehouse had always been done exclusively by employees represented by the Brewery Workers and the Employer determined that the advertising materials formerly stored at the East Side Plant should be handled by these employees, at least some of whom were transferred to the Delta ware- house from the East Side Plant.2 It is the assign- ment of this work when the consolidation was ef- fected in late 1981 that gave rise to this proceed- ing. C. The Contentions of the Parties The Brewery Workers and the Employer con- tend that the Employer's assignment of the work in dispute to employees represented by the Brewery Workers is consistent with the terms of the collec- tive-bargaining agreements, and is supported by the Employer's preference, the Employer and area practice, and the efficiency and economy of the Employer's operation of the Delta warehouse. The Laborers argues that the work in dispute has traditionally been performed by employees repre- sented by it and that the collective-bargaining agreements favor continuation of Laborers' per- formance of the work. The Laborers further con- tends that two employees represented by it were laid off as a direct result of the Employer's assign- ment of the work to employees represented by the Brewery Workers and, thus, the factor of job impact supports assignment of the work to employ- ees represented by the Laborers. D. Applicability of the Statute Before the Board may proceed with a determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that there is no agreed-upon method for the voluntary settlement of the dis- pute. 3 The parties have stipulated, and we find, that on or about February 18, 1982, the Brewery Workers threatened the Employer that it would, if necessary, engage in a strike if the work in dispute should be assigned to employees represented by the Laborers. Accordingly, we find that a jurisdictional dispute exists in this case and that there is reason- able cause to believe that Section 8(b)(4)(D) has been violated.4 2 As a result of the consolidation, approximately 17 members of the Brewery Workers and 2 members of the Laborers were laid off. 3 N.LR.B. v. Radio A Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers. AFL-CIO LColum- bia Broadcasting System], 364 U.S. 573 (1961). 4 We also note that it is irrelevant that the party making the threat is the one presently performing the disputed work. See, e.g., International Union of Operating Engineers Local 542.Z AFL-CIO (C. J. Langenfelder and Son, Inc.), 241 NLRB 562 (1979). Furthermore, the parties stipulated, and we find, that there exists no agreed-upon method for the voluntary settlement of the dispute. Accordingly, we find that this 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 the Board to make an affirmative award of disputed work after giving due consideration to various factors. The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case.5 The following factors are relevant in making the determination of the dispute before us: 1. Agreements Both the Brewery Workers and the Laborers have collective-bargaining agreements with the Employer. The agreement with the Brewery Workers provides, inter alia, that the "storage, han- dling and transporting of brewery materials, bot- tles, kegs and cases . . . whether at the brewery or at Employer-owned, leased or operated warehouses in Milwaukee County and environs, comes within the coverage of this agreement."6 The agreement further provides that: 6. The loading or unloading of advertising materials at the brewery, or at Employer- owned, leased or operated warehouses in Mil- waukee County and environs, or at railroad sidings, shall be performed by members of the Union, provided however that such jurisdic- tion does not conflict with jurisdiction over such work which is performed by members of another Union recognized by the Employer. 7 The Employer's agreement with the Laborers provides in pertinent part that "work which is or has been exclusively performed by members of the Union will not be assigned to employees of any other bargaining unit of the Employer." The Employer also introduced into evidence a letter dated December 26, 1961, which confirms an understanding reached at an earlier meeting con- cerning jurisdiction over the loading and unloading of advertising materials. The letter states that the Brewery Workers would have jurisdiction over the loading of such materials for all beer wholesaler and company-owned trucks and unloading of all 6 International Association of Machinists. Lodge No. 1743. AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1962). Art. XVI, sec. 4. 7Id., sec. 6. 42 BREWERY WORKERS UNION NO. 9 company-owned trucks. The letter further states that the Laborers would have jurisdiction over the loading of "cartage company" trucks for both in- terplant shipments and intraplant shipments at the East Side Plant and unloading of all trucks except company-owned vehicles. From the foregoing it is clear that both the Brewery Workers and the Laborers have a colora- ble claim to at least part of the work in dispute. Accordingly, we find that these agreements favor neither party to the dispute.8 2. Employer's past assignments The record indicates that, in the past, the loca- tion has in large measure determined the Employ- er's assignment of work. As previously noted, the work in dispute, when performed at the East Side Plant, was divided between employees represented by the Brewery Workers and the Laborers. How- ever, the record shows that the work of handling materials in general at the Employer's other ware- houses9 has been performed exclusively by mem- bers of the Brewery Workers. Industrial Relations Manager Gary L. Lewitzke testified that members of the Laborers "handled all of the movement on the east side of the river" (the East Side Plant complex) and members of the Brewery Workers performed all of the material handling at all of the Employer's other facilities, including the Delta warehouse. In this regard, the record further indi- cates that other work was assigned on the basis of location. Thus, although members of the Brewery Workers performed snow removal functions and handled office supplies at the W. Juneau facility, the same functions at the East Side Plant were per- formed by members of the Laborers. In light of the past practice of certain work as- signments being determined by location, the fact that members of the Brewery Workers have in the past performed all handling work at the Delta fa- cility favors assignment of the work in dispute to them. 3. Area practice The uncontradicted testimony of several wit- nesses indicates that at Miller Brewing, the only other brewery presently operating in Milwaukee, the work of handling advertising materials is per- formed by employees represented by the Brewery Workers, although Miller has employees who are represented by the Laborers. No other evidence 8 These included the W. Juneau property, the 16th Street facility (In- ternational Harvester), and the North Hopkins warehouse (Globe Union) in addition to the Delta facility. 9 See International Union of Operating Engineers, Local 542. AFL-CIO (C. J. Langenfelder and Son. Inc.), supra. was offered with respect to area or industry prac- tice. From the foregoing, we conclude that the area practice also favors assignment of the work in dis- pute to employees represented by the Brewery Workers. 4. Employer preference The Employer stated that it prefers that the as- signment of the work in dispute be made to em- ployees represented by the Brewery Workers. Thus, the factor of Employer preference favors as- signment of this work to employees represented by the Brewery Workers. 5. Employee skills The record shows that the work in dispute in- volves no special skills and that both groups of em- ployees could perform it with equal efficiency. Ac- cordingly, this factor does not aid us in determin- ing this dispute. 6. Economy and efficiency of operations As noted above, the Employer has consolidated its warehouse operations at the Delta facility. Until the present dispute arose, members of the Brewery Workers handled all materials at the Delta ware- house. There was uncontradicted testimony that the work in dispute is sporadic and would be part- time employment and that, should members of the Laborers be assigned to perform that part of the handling of advertising materials previously per- formed, the Employer would have required a la- borer to be sent over to the warehouse each time that advertising materials were handled. There was further evidence that, since the Delta warehouse is several miles from the East Side Plant, such action would cause delays and possible demurrage charges. From the foregoing, it is clear that the factor of economy and efficiency of operations supports as- signment of the work in dispute to employees rep- resented by the Brewery Workers. 7. Job impact The Laborers asserts that two employees repre- sented by it were laid off as a direct result of the transfer of advertising materials to the Delta facili- ty and the Employer's assignment of the work in dispute to employees represented by the Brewery Workers. However, the record reveals that a number of members of the Brewery Workers were also laid off as a result of the consolidation of the Employer's warehousing operations and the Labor- ers offered no specific evidence to support its 43 DECISIONS OF NATIONAL LABOR RELATIONS BOARD claim, other than the conclusionary statement that the two layoffs were a "direct result" of the assign- ment to members of the Brewery Workers. In addi- tion, we note that the members of the Laborers who handled advertising materials at the East Side Plant also performed a number of other job func- tions. Thus, it appears that the layoffs were caused in some measure by an overall decrease in work at the East Side Plant resulting from the consolidation of all warehouse functions at the Delta warehouse. Finally, the fact that no evidence was offered to contradict testimony that the handling of advertis- ing materials at the Delta warehouse would be a part-time job belies the assertion that two full-time employees were laid off as a direct result of the as- signment of the work in dispute to members of the Brewery Workers. Accordingly, this factor does not support assignment of this work to employees represented by the Laborers. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that the Employer's employees represented by the Brewery Workers are entitled to perform the work in dispute. We reach this conclusion rely- ing on the Employer's preference, past assignments, area practice, and the economy and etticiency of operations, all of which favor awarding the disput- ed work to the employees represented by the Brewery Workers. In making this determination, we are assigning the work to employees represent- ed by the Brewery Workers, and not to that Union or its members. The present determination is limit- ed 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 proceeding, the National Labor Relations Board makes the following Determination of Dispute: Employees employed by Pabst Brewing Compa- ny who are represented by Brewery Workers Union No. 9, DALU-AFL-CIO, are entitled to perform the work of handling advertising materials at the Employer's Delta warehouse operation. 44