International Association of Machinists & Aerospace Workers, AFL-CIO

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Machinists and Aerospace Workers, AFL-CIO and Local Lodge 681, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO and Brown & Williamson To- bacco Corporation and International Brotherhood of Electrical Workers, Local Union No. 369, AFL- CIO and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting In- dustry of the U.S. and Canada, Pipe Fitters Local No. 522, AFL-CIO, and Plumbers Local 107, AFL- CIO and International Brotherhood of Firemen and Oilers, Local Union No. 320, AFL-CIO and Bak- ery, Confectionery and Tobacco Workers Interna- tional Union, Local 185, AFL-CIO-CLC. Cases 9- CD-356-1 and 9-CD-356-2 May 7, 1979 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS PENELLO, MURPHY, AND TRUESDALE This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following charges filed by Brown & Williamson Tobacco Cor- poration, herein referred to as the Employer, alleging that the International Association of Machinists and Aerospace Workers, AFL-CIO, herein referred to as the IAM, and Local Lodge 681, International Associ- ation of Machinists and Aerospace Workers, AFL- CIO, herein referred to as Local Lodge 681, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requir- ing the Employer to assign certain work to employees represented by them rather than to employees repre- sented by the International Brotherhood of Electrical Workers, Local Union No. 369, AFL-CIO, herein re- ferred to as the IBEW; the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the U.S. and Canada, Pipe Fitters Local No. 522, AFL-CIO, and Plumbers Lo- cal 107, AFL-CIO, herein referred to as the Pipefit- ters; the International Brotherhood of Firemen and Oilers, Local Union No. 320, AFL-CIO, herein re- ferred to as the Oilers; or the Bakery, Confectionery and Tobacco Workers International Union, Local 185, AFL-CIO-CLC, herein referred to as the To- bacco Workers. Pursuant to notice, a hearing was held before Hear- ing Officer Raymond D. Neusch on December 6, 7, and 18, 1978. The Employer, the IAM and Local Lodge 681, the IBEW, the Pipefitters, the Oilers, and the Tobacco Workers appeared at the hearing and were afforded full opportunity to be heard, to exam- ine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. Thereafter, the Em- ployer, the Oilers, and the Tobacco Workers filed briefs, and the IBEW and the Pipefitters filed a joint 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 ruling of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, a Delaware corporation, is engaged in the business of the manufacture and sale of cigarettes and other tobacco products at its 1600 West Hill Street, Louisville, Kentucky, location. During the 12 months preceding the hearing, a representative period, the Employer purchased goods and materials valued in excess of $50,000 directly from suppliers located out- side the Commonwealth of Kentucky, which goods and materials it caused to be shipped, in interstate commerce, directly from points outside the Common- wealth of Kentucky, to its Louisville, Kentucky, loca- tion. Accordingly, we find that the Employer is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effecutate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the IAM, Local Lodge 681, the IBEW, the Pipefitters, the Oil- ers, and the Tobacco Workers are labor organizations within the meaning of Section 2(5) of the Act. IIll. THE DISPUTE A. Background and Facts In the 1930's the repair and maintenance of the internal combustion engine vehicles at the Employ- er's Louisville, Kentucky, facility were performed by the Employer's employees represented by the IAM and Local Lodge 681. From the 1940's to 1977, how- ever, such work, although still performed on the Em- ployer's premises, was subcontracted out. On August 1, 1977, the Employer again began to perform such work with its own employees and assigned it to em- ployees represented by the IAM and Local Lodge 681. The assignment was formalized in a memoran- dum of agreement, dated July 29, 1977, between the 242 NLRB No. 2 22 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO Employer and the IAM and Local Lodge 681, which states that the work jurisdiction of the classification of "automobile mechanic" would include the repair and maintenance of the internal combustion engine vehi- cles owned by the Employer at its Louisville facility. In practice, the work assignment includes the receiv- ing and stocking of parts which are delivered to the garage where the automobile mechanics are located. Other parts are picked up at the suppliers' premises by the automobile mechanics' supervisor. The classification of "automobile mechanic" is in- cluded in the IAM and Local Lodge 681 current col- lective-bargaining agreement with the Employer, which was effective August 1, 1977. On August 1, three employees represented by the IAM and Local Lodge 681 commenced training as automobile me- chanics. Thereafter, various other unions under their respec- tive collective-bargaining agreements with the Em- ployer claimed portions of the work which the Em- ployer assigned to employees represented by the IAM and Local Lodge 681. On August 1, the Tobacco Workers claimed the work of receiving parts for the repair and maintenance of the internal combustion engine vehicles. On August 2, the Pipefitters claimed the hydraulic work with respect to the internal com- bustion engine vehicles and on October 7, 1977, filed a grievance. On August 13, the IBEW claimed the electrical repair work and filed a grievance. On Octo- ber 25, the Oilers filed a grievance, claiming the lubri- cation work on the internal combustion engine vehi- cles. On June 1, 1978, an arbitration hearing was held with respect to the IBEW's grievance. Only the Em- ployer and the IBEW participated in the arbitration proceedings. The IAM and Local Lodge 681 were in- vited to participate but declined to do so. On October 31, 1978, the arbitrator awarded the electrical mainte- nance work on the internal combustion engine vehi- cles to employees represented by the IBEW. The award was to be implemented by October 23, 1978. Shortly thereafter, the IAM and Local Lodge 681 learned of the arbitrator's award. On October 16, Grand Lodge Representative Brown of the IAM oral- ly threatened the Employer with economic sanctions if the award was implemented. By letter dated Octo- ber 18, 1978, the IAM and Local Lodge 681' threat- ened to strike the Employer if it reassigned any por- tion of the work being performed by the automobile mechanics represented by them. At all times material The letter was signed by Grand Lodge Representative Brown of District 27 of the International Association of Machinists and Aerospace Workers, AFL-CIO. We note that the letterhead bore the legend and logo of the International Union and set forth the affiliated local lodges, including Local Lodge 681. herein since August 1977, the automobile mechanics represented by the IAM and Local Lodge 681 have continued to perform the work as assigned. B. The Work in Dispute The work in dispute consists of the repair and maintenance of, and the receiving and stocking of parts for,2 the internal combustion engine vehicles at the Employer's Louisville, Kentucky, facility. C. Contentions of the Parties The Employer contends that there is reasonable cause to believe that the IAM and Local Lodge 681 violated Section 8(b)(4XD) and that there is no agreed-upon method for the voluntary adjustment of the dispute. The Employer further contends that the employees represented by the IAM and Local Lodge 681 are entitled to perform the disputed work based on the factors of employer past practice and prefer- ence, area and industry practice, relative skills, and economy and efficiency of operations. The IAM and Local Lodge 681 have taken a position basically con- sistent with the Employer. They additionally argue that their collective-bargaining agreement with the Employer favors an award of the work in dispute to employees represented by them. At the hearing, the IBEW, the Pipefitters, the Oil- ers, and the Tobacco Workers moved to quash the notice of hearing, contending that there is no reason- able cause to believe that Section 8(bX4XD) has been violated. They argue that the Employer and the IAM and Local Lodge 681 are in collusion and the strike threat was not genuine. They also contend that the arbitration award is an agreed-upon method of re- solving the dispute inasmuch as the IAM and Local Lodge 681 were invited to participate in the arbitra- tion proceeding and the Unions informally agreed on an individual basis with the Employer to apply the arbitrator's decision to their respective claims al- though they did not participate in that proceeding. In the event, however, that the Board finds the dispute properly before it, these Unions contend that the em- ployees represented by them are entitled to the por- tions of the work which they respectively claim on the I We find no merit in the Tobacco Workers contention that there is no competing claim to the receiving and stocking work involved herein. Em- ployees represented by the IAM and Local Lodge 681 are presently perform- ing such work in connection with the repair and maintenance of the internal combustion engine vehicles. Further, the IAM and Local Lodge 681 threat- ened to strike if any of the work included in the automobile mechanic clausi- fication was reassigned. We therefore find that the receiving and stocking of parts for the internal combustion engine vehicles is clearly related to the work in dispute as described in the notice of hearing and properly comprises a portion of the work in dispute. 23 DECISIONS OF NATIONAL LABOR RELATIONS BOARD basis of their respective collective-bargaining agree- ments, the arbitration award, past practice, and area practice. D. Applicability of the Statute Before the Board proceeds with a determination of a 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 voluntary ad- justment of the dispute. As noted above, the IAM and Local Lodge 681 threatened the Employer that, if it complied with the arbitrator's award of the electrical maintenance work on the internal combustion engine vehicles to the em- ployees represented by the IBEW or reassigned any portion of the work, the IAM and Local Lodge 681 would strike the Employer's Louisville facility to re- tain the work. There is no evidence in the record that the strike threat was anything but genuine. Under set- tled Board policy, reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred exists if a labor organization, which represents employees who are assigned the disputed work, puts improper pres- sure upon an employer to continue such assignment.' Based on the foregoing, and the record as a whole, we find that there is reasonable cause to believe that an object of the IAM and Local Lodge 681's action was to force the Employer to continue to assign the dis- puted work to employees represented by the IAM and Local Lodge 681 and that a violation of Section 8(b)(4)(D) has occurred. We further find that there is no agreed-upon method for the voluntary adjustment of the dispute to which all parties are bound. The Employer's respec- tive contracts with the IAM and Local Lodge 681, the IBEW, the Pipefitters, the Oilers, and the Tobacco Workers contain provisions for the arbitration of a dispute between the contracting parties, but none of the contracts provides for multiparty arbitration. The IBEW, the Pipefitters, the Oilers, and the Tobacco Workers point out that the IAM and Local Lodge 681 were invited to participate in the arbitration but I See, e.g., International Association of Machinists and Aerospace W'orkers, AFL CIO, District Lodge No. 27 (Joseph E. Seagram & Sons, Inc.), 198 NLRB 407, 408 (1972); Local 1184, Southern California District Council of Laborers (H. M. Robertson Pipeline ('Constructors), 192 NI.RB 1078, 1079 (1971). In her dissent in International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, General Local 959, State of Alaska (Kodiak Oilfield Haulers, Inc.), 233 NLRB 66 (1977), Member Murphy indicated that she would closely scrutinize situations of this type to ascertain whether the statutory requirements for establishing a jurisdictional dispute exist in fact not just form: that is, the case was not "set up" by the employer and charged union to have the Board approve the work assignment to the latter. Here, she agrees with her colleagues that the situation was not contrived and that, therefore, there is reasonable cause to believe that a jurisdictional dispute exists. that they refused to do so. Under these circumstances, it is clear that the arbitration provisions of the respec- tive contracts do not provide an agreed-upon method for the voluntary adjustment of the dispute which would culminate in a single proceeding binding on all parties or which establishes a means by which a final and binding adjustment could be reached.4 It is fur- ther clear that all parties to the dispute did not in fact participate in or agree to be bound to such a proceed- ing. Accordingly, the matter is properly before the Board for determination under Section 10(k) of the Act.5 E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. I. Certifications and collective-bargaining agreements None of the Unions involved herein has been certi- fied by the Board as the collective-bargaining repre- sentative for a unit of the Employer's employees. Each has been recognized by the Employer as the collective-bargaining representative of their respec- tive units since the 1930's and 1940's and each cur- rently has a collective-bargaining agreement with the Employer. The recognition clauses and the classifica- tions set forth in the Employer's contract with the IBEW, the Pipefitters, the Oilers, and the Tobacco Workers are broad enough to cover the portions of the work in dispute which they respectively claim. However, the IAM's and Local Lodge 681's current collective-bargaining agreement with the Employer includes the classification of "automobile mechanic." The memorandum of agreement, which supplements that collective-bargaining agreement, specifies that the work jurisdiction of the automobile mechanics in- cludes "repairs and maintenance to internal combus- tion engine vehicles owned by Brown & Williamson Tobacco Corporation at its Louisville plant." Accord- ingly, we find that the IAM's and Local Lodge 681's collective-bargaining agreement, particularly when read in conjunction with the memorandum of agree- ment, more specifically pertains to the work in dis- pute and therefore the factor of collective-bargaining 4 International A4 i,,ciair,,n of Mahinisti and Alerospace Workers, A FI. ('10. Districtl Idge 2 ' (Joseph E. Seagram & Sons), supra at 408: Local 1184, Southern California District (ouncil of laborers (H M Robertson Pipeline Constructors), upra at 1079. See also Laborers' District Council of Washing- ton, D. C. and Laborers local L'nion 456, AF. ('10 (Fruin-Colnon Corpora- tion. Horn Construition (Co. Inc., and L and W' (oncrete, Inc., a Joint Ven- ture). 241 NLRB 126 (1979). ' In view of our decision herein, the motion to quash the notice of hearing. referred to the Board hb the Stearing Officer, is hereb' denied 24 INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL. ('10 agreements favors an award of the work to employees represented by them. 2. Arbitration awards As indicated above, the IBEW filed a grievance re- garding its claim to a portion of the work in dispute which resulted in an arbitration award. The IAM and Local Lodge 681, the Pipefitters, the Oilers, and the Tobacco Workers did not participate in the arbitra- tion proceedings, and the IAM and Local Lodge 681 did not agree to be bound by the award. Further- more, the arbitrator considered only that portion of the disputed work which the IBEW claimed. Accord- ingly, although the arbitrator's award is entitled to some weight, we decline to give controlling weight to that award.6 3. Employer's past practice and preference The record shows that employees represented by the IAM and Local Lodge 681 performed the dis- puted work during the 1930's, the only time prior to 1977 when the disputed work was performed on a regular basis by the Employer's employees. Some evi- dence was presented by the IBEW, the Pipefitters, and the Oilers indicating that from the 1940's to the early 1970's, before the subcontractor began to main- tain a crew on a 24-hour-a-day basis at the Employ- er's Louisville facility, employees represented by them occasionally performed work on the internal combustion engine vehicles. However, it is clear that such work was assigned to these letter employees only on an emergency basis when the subcontractor could not perform such work. Finally, as noted above, since August 1, 1977, when the Employer ceased subcon- tracting the work, employees represented by the IAM and Local Lodge 681 have exclusively performed the work in dispute. We find, therefore, that the predomi- nant past practice of the Employer favors an award to employees represented by the IAM and Local Lodge 681. As noted above, the Employer has stated its prefer- ence to continue to assign the work to employees rep- resented by the IAM and Local Lodge 681. Accord- ingly, we find that this factor, although not entitled to controlling weight, tends to favor an award of the disputed work to employees represented by the IAM and Local Lodge 681. 4. Area and industry practice It is undisputed that the IAM and Local Lodge 681 do not represent any other employees within the Lou- 6 International Die Sinkers' Conference and Detroit Dit' Sinkers' ldge No, 110 (General Motors CorporationJ, 197 NLRB 1250. 1252 1972). isville, Kentucky, area who perform work similar to the work in dispute. Evidence was presented that some employers in the Louisville area have employees in the classification of "automobile mechanic" who perform the repair and maintenance of the internal combustion engine vehicles, while other employers di- vide the work among employees represented by dif- ferent unions. We therefore find the factor of area practice is inconclusive. With respect to industry practice, the evidence re- veals that the IAM and Local Lodge 681 represent "automobile mechanics" who perform the work in dispute at the Employer's Petersburg, Virginia, facil- ity. There was conflicting evidence as to whether Philip Morris Tobacco Corp. in Richmond, Virginia, has automobile mechanics performing the work in dispute or whether it divides the work among em- ployees represented by different unions. Inasmuch as the record fails to show any affirmative industry prac- tice with respect to the disputed work, this factor is not determinative herein. 5. Relative skills and economy and efficiency of operations Employees represented by the IAM and Local Lodge 681 have been trained in and are capable of performing all aspects of the work of the repair and maintenance of the internal combustion engine vehi- cles. It is undisputed that they have been performing this work to the Employer's satisfaction since at least August 1977. Evidence was presented that the em- ployees represented by the IBEW, the Pipefitters, the Oilers, and the Tobacco Workers possess the skills necessary to perform the respective portions of the work which these Unions claim. There is, however, no contention made, nor is there evidence, that the employees represented b the latter Unions possess the requisite skills to perform all aspects of the work in dispute. The factor of relative skills therefore sup- ports an award of the work to the employees repre- sented by the IAM and Local Lodge 681. With respect to economy and efficiency of opera- tions, the IBEW, the Pipefitters, the Oilers, and the Tobacco Workers adduced evidence that all the other work at the Employer's Louisville facility, including the repair and maintenance of the electrically pow- ered engine vehicles, is divided among employees rep- resented by different unions. The Employer contends that it is more efficient and economical to have one group of employees perform all the work on the inter- nal combustion engine vehicles. especially since there are employees capable of doing so. The Employer presented evidence that the award of the work in dis- pute to employees represented by the IAM and local Lodge 681 would avoid the loss of time involved 25 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when an employee with one skill would have to wait until an employee with another skill would arrive from another area of the plant to complete a portion of the work. The IBEW, the Pipefitters, the Oilers, and the Tobacco Workers do not seek to have em- ployees represented by them perform all the work in dispute, and there has been no evidence to show that it would be at least as economical or efficient to as- sign portions of the disputed work to employees rep- resented by the various Unions herein. We therefore find that the factors of economy and efficiency of op- erations favor an award of the disputed work to em- ployees represented by the IAM and Local Lodge 681. Conclusion Upon the record as a whole, and after full consider- ation of all relevant factors involved, we conclude that employees represented by the IAM and Local Lodge 681 are entitled to perform the work in dis- pute. We reach this conclusion upon the following facts: The IAM's and Local Lodge 681's collective- bargaining agreement, as supplemented by the memorandum of agreement, specifically includes the work in dispute; the Employer's present assignment is consistent with its predominant past practice, and its preference and is not inconsistent with area or indus- try practice; the employees represented by the IAM and Local Lodge 681 possess the requisite skills to perform the work; and such assignment results in greater economy and efficiency of operations. In making this determination, we are assigning the disputed work to employees currently represented by the IAM and Local Lodge 681, but not to the IAM and Local Lodge 681 or their members. Our present determination 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 factors and the entire record in this pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute: Employees of Brown & Williamson Tobacco Cor- poration at its Louisville, Kentucky, facility who are currently represented by the International Associ- ation of Machinists and Aerospace Workers, AFL- CIO, and Local Lodge 681, International Association of Machinists and Aerospace Workers, AFL-CIO, are entitled to perform the work of repair and mainte- nance of, and the receiving and stocking of parts for, the internal combustion engine vehicles at the Em- ployer's Louisville, Kentucky, facility. 26