Brewery Workers Local No. 9, Directly Affiliated Local Union, AFL-CIO (Pabst Brewing Company)

BREWERY WORKERS LOCAL NO. 9 Brewery Workers Local No. 9, Directly Affiliated Local Union, AFL-CIO and Pabst Brewing Company and District 10, International Associ- ation of Machinists and Aerospace Workers, AFL-CIO. Case 30-CD-105 September 30, 1982 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER This is a proceeing 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 Local No. 9, Directly Affiliated Local Union, AFL-CIO, herein called the Brewery Workers, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by the Brewery Workers rather than to employees represented by District 10, International Associ- ation of Machinists and Aerospace Workers, AFL- CIO, herein called the IAM. Pursuant to notice, a hearing was held on April 5, 1982, before Hearing Officer Melissa Cherney. 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. Briefs were filed by all parties. 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: 1. THE BUSINESS OF THE EMPLOYER The Employer is a Delaware corporation en- gaged in the manufacture and sale of malt bever- ages at its Milwaukee, Wisconsin, location. During the past calendar year. a representative period, the Employer purchased and received goods valued in excess of $50,000 directly from points outside the State of Wisconsin. On the basis of the foregoing, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it would effectuate the purposes of the Act to assert jurisdiction herein. 264 NLRB No. 48 11. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Brewery Workers and the IAM are labor organiza- tions within the meaning of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer began using electric fork trucks in building #41 in 1971. Two standup-type electric fork trucks were purchased. These fork trucks did not have removable batteries, but when their re- chargeable batteries needed to be recharged em- ployees represented by the Brewery Workers plugged the cords into a recharging station. In the fall of 1976, the Employer purchased 20 sitdown-type electric fork trucks for building #42 (the new distribution center). The batteries in these fork trucks had to be exchanged and recharged after every 6-8 hours of operation. The Employer had available eight spare electric fork trucks, and, consequently, there were always two fork trucks down for preventive maintenance at all times. Since automechanics represented by the IAM per- formed the preventive maintenance on these elec- tric fork trucks on a full-time basis, they changed the batteries with a bridge crane during their avail- able time. In the spring of 1981, the Employer purchased two sitdown-type electric fork trucks for building #9 (the washhouse). Since the Employer did not have a safe method of exchanging batteries at the time, a temporary method was devised to exchange batteries by using propane fork trucks. This work was performed by IAM-represented automechan- ics. At the present time, there are six sitdown-type electric fork trucks in building #9, and a new bat- tery exchanger piece of equipment has been in- stalled. By using the new piece of equipment, bat- teries can be changed in a more simple. safe, and efficient manner. The Employer assigned to em- ployees represented by the Brewery Workers the work of using the new battery exchanger to change electric fork truck batteries in building #9. IAM-represented employees continue to perform all maintenance functions of the electric fork trucks. Upon learning of this work assignment, the IAM filed a grievance, and, when the Employer stated that it would continue to use employees represent- ed by the Brewery Workers to change the batter- ies, the IAM requested a panel of arbitrators. By letter dated February 24, 1982, the Employer wrote Kenneth Mueller, the Brewery Workers president, and asked if his Union would participate 401 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the arbitration proceeding. Mueller replied that the work belonged to members of his Union and that, if the Employer changed the work assign- ment, the Brewery Workers would take appropri- ate action which could include, if necessary, a strike against the Employer. The Employer then filed the instant charge. B. The Work in Dispute The disputed work involves the use of the bat- tery exchanger to change the batteries of electric fork trucks in building #9 of the Employer's facili- ties. C. Contentions of the Parties The Employer and the Brewery Workers take basically the same position and contend that the Employer's assignment should not be disturbed. The IAM argues that no jurisdictional dispute exists because there is no evidence of 8(b)(4)(D) ac- tivity. In addition, the IAM contends that the Board should defer to the arbitration proceeding between it and the Employer, and to a proceeding between the IAM and the Brewery Workers pursu- ant to a no-raid agreement. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the 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 the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. The record reveals that on December 9, 1981, the IAM filed a grievance in an attempt to obtain the disputed work. On February 26, 1982, the Brewery Workers informed the Employer, if the Employer reassigned the work to employees repre- sented by the IAM, the Brewery Workers would take appropriate action, including possible strike action. On the basis of the foregoing and the record as a whole, we find that there is reasonable cause to believe that the strike threat by the Brew- ery Workers violated Section 8(b)(4)(D) of the Act.' Further, although the IAM argues that the Board should defer to the arbitration proceeding, we note that the Brewery Workers did not agree to participate in that proceeding or to be bound by any award. Similarly, the Employer is not a party to or bound by the proceeding involving the no- raid agreement." Further, the parties stipulated at t See International Alliance of Theatrical Stage Emphloees and Moving Picture Machine Operators of the United States and Canada (Metromedia, Inc.), 260 NLRB 424 (1982). 2 It is well settled that "[t]he voluntary adjustment must bind all dis- puting unions as well as the Employer il order toi come within the mean- the hearing that there does not exist any agreed- upon method for the voluntary adjustment of the dispute. Accordingly, we find 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 disputed work after giving due consideration to various factors.3 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. 4 The following factors are relevant in the deter- mination of the dispute before us: 1. The collective-bargaining agreements Both Unions have collective-bargaining agree- ments with the Employer. Under the broad terms of the agreements each Union arguably has a claim to the disputed work. Accordingly, this factor does not favor an award to either group of employees over the other. 2. Company practice The battery exchanger is a new piece of equip- ment. Accordingly, there is no past practice which would favor an award to one group of employees as opposed to the other. 3. Relative skills The evidence in the record shows that operation of the battery exchanger is a simple task which can be performed by either group of employees. This factor does not favor an award to either group of employees as opposed to the other. 4. Employer preference Since the fall of 1981, the Employer has used employees represented by the Brewery Workers to operate the new battery exchanger equipment. It is satisfied with the results of the assignment and pre- fers that these employees continue to do the work. Thus the Employer's preference favors an assign- ment of the disputed work to employees represent- ed by the Brewery Workers. ing of voluntary settlement as set out in Section 10(k)." International Pho- tographers Local 659. affihiated with Interlnaio.:l 4 Aliance of Theatrical Stage Employees and Moving Picture Machine Operators otf the United States & Canada, AFL-CIO (King Broadcasting Company), 216 NLRB 860, 862 (1975). 3 NL.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers. .AFL-CIO [Colum- bia Broadcasting System], 364 U.S 573 (1961). 4International Association of Machinists. Lodge No 1743. AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1962) 402 BREWERY WORKERS LOCAL NO. 9 5. Area practice Besides the Employer, Miller Brewing Company is the only other brewery operating in the city of Milwaukee. The Employer presented evidence that Miller Brewing Company uses employees repre- sented by the Brewery Workers for the exchanging of batteries in its trucks, but the record does not reveal whether they operate the battery exchanger equipment. Accordingly, this factor does not favor an award to either group of employees. 6. Efficiency and economy of operations Inasmuch as there are no IAM-represented auto- mechanics located in building #9. it is more effi- cient and economical to have the disputed work performed by the electric fork truck operators, em- ployees represented by the Brewery Workers. As- signment of the disputed work to 1AM-represented employees would require transporting an autome- chanic to and from building #9 several times a day to perform a work task of approximately 5 minutes' duration. Accordingly, we find that this factor favors an award of the disputed work to employees represented by the Brewery Workers. Conclusion The record contains evidence that the Employer assigned the disputed work to employees represent- ed by the Brewery Workers on the basis of prefer- ence. Further, the record reveals that the Employ- er is satisfied with the performance of these em- ployees and prefers that they continue to perform the work in dispute. Additionally, the factor of effi- ciency and economy of operations supports the Employer's assignment. On the basis of the forego- ing, we conclude that the employees who are rep- resented by the Brewery Workers are entitled to perform the work in dispute and we shall therefore award the work in dispute to them. In making this determination, we are awarding the disputed work to employees who are represented by the Brewery Workers, but not to that Union or its members. Additionally, the scope of our award is limited to the 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 who are represented by Brewery Workers Local No. 9, Directly Affiliated Local Union, AFL-CIO, are entitled to perform the work of using the battery exchanger to change the batteries of electric fork trucks in building #9 of Pabst Brewing Company's Milwaukee, Wisconsin, facility. 403