District No. 10, Aerospace Workers

I)EC(ISIONS O()F NATIONAL L.ABOR RELATIONS BOARD District No. 10 of the International Association of Ma- chinists and Aerospace Workers, AFL-CIO and Pabst Brewing Company and Carpenters District Council of Milwaukee County and Vicinity of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 30- CD 82 May 17. 1979 DECISION AND DETERMINATION OF [)ISPUTE BY ChAIRMAN FANNING ANI) MI MBERS PENEI.I.() ANI) TRUSI)DAIT. This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by Pabst Brewing Company, herein called the Employer, alleging that District No. 10 of the International Association of Machinists and Aerospace Workers, AFIL ('IO, herein called Ma- chinists. 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 its members rather than to employees repre- sented by Carpenters District Council of Milwaukee County and Vicinity of the United Brotherhood of Carpenters and Joiners of' America, AFL (IO, herein called Carpenters. Pursuant to notice, a hearing was held before Hear- ing Officer James H. Warmoth on February 15. 1979. All parties appeared and were afforded full opportu- nity to be heard, to examine and cross-examine wit- nesses, and to adduce evidence hearing on the issues. Thereafter, Carpenters. Machinists, and the Em- ployer filed briefs. Pursuant to the provisions of Section 3(b) of the National abor 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 Iearing Officer's rul- ings 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. I1F BLISINlSS 01 1111 IMPlO.()YIER Pabst Brewing Company is a Delaware corporation engaged in brewing beer and other malt beverages at its facilities located in Milwaukee. Wisconsin. During the past calendar year, a representative period, the Employer received 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 Sec- tion 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. Accordingly, 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 purposes of' the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. le I.ABOR ORGANIZATIONS INVO()IVEI) The parties stipulated, and we find, that Machinists and Carpenters are labor organizations within the meaning of Section 2(5) of the Act. ill. I'H1l' I)ISl'PUlE A. The Work in Dispute The work in dispute is the installation and mainte- nance of the Shuttleworth conveyor system on line number four at the Employer's Milwaukee. Wiscon- sin, operation. B. Background and Fac'ts For at least the past 20 years the Employer has recognized and bargained with the Machinists and has entered into a series of collective-bargaining agreements with the Machinists, the most recent of which is, by its terms, effective from August 5. 1978, to August , 1981. Also, for at least the past 20 years, the Employer has recognized and bargained with the Carpenters and has entered into a series of collective-bargaining agreements with the Carpenters, the most recent of which is, by its terms, effective from October 1. 1978, to September 30. 1981. The Employer utilizes several different types of conveyors at its Milwaukee operation. In 1960 the Employer, the Machinists, and the Carpenters en- tered into an agreement which provided for the as- signment of certain work to employees represented by the Machinists and the assignment of certain other work to millwrights represented by the Carpenters. The terms of the agreement became effective on Octo- ber 3. 1960, and there is no showing in the record that there have been any agreements, written or oral, since that date which modify or alter the terms of the agreement. Item 23 of the 1960 jurisdictional agreement pro- vides that "all conveyors. except table top chain" conveyors shall be assigned to millwrights represent- ed by the Carpenters, and item 24 of the agreement 242 NI.RB No. 49 318 DISTRICT 10 AEROSPACE WORKERS provides that "table top chain" conveyors shall be assigned to employees represented by Machinists.' In accordance with the terms of the 1960 agree- ment, the maintenance of tabletop chain conveyors was assigned to employees represented by the Ma- chinists,2 and the maintenance of pallet conveyors was assigned to millwrights represented by the Car- penters. Sometime after the 1960 agreement became effective the Employer began utilizing a mesh-top conveyor and it assigned the maintenance of this con- veyor system to millwrights represented by the Car- penters. The tabletop chain conveyor and the mesh- top conveyor are both used to convey bottles and cans. In April 1978 the Employer decided to replace a portion of its tabletop conveyor system with a new type of conveyor known as the Shuttleworth con- veyor. On or about April 28, 1978, the Employer as- signed to employees represented by Machinists the work of installing the Shuttleworth conveyor on line number four of its Milwaukee operation. The Em- ployer did not discuss the assignment of this work with the Carpenters prior to making the assignment. The work of installing the Shuttleworth conveyor on line number four was completed during the period between April 28 and May 1, 1978. The Shuttleworth conveyor replaced a section of tabletop chain con- veyor. On May 2, 1978, the Carpenters filed a grievance in protest of the Employer's failure to award the instal- lation and maintenance of the Shuttleworth conveyor to employees represented by the Carpenters. The grievance referred specifically to item 23 of the 1960 jurisdictional agreement. On May 26, 1978, the Em- ployer gave the following answer to the Carpenters' grievance: The shuttle-worth [sic] conveyor installed on line #4 will be assigned to the Millwrights effective 5/29/78, in accordance with the October 3, 1960 agreement signed by the Millwrights and Ma- chinists. Thereafter, maintenance of the Shuttleworth con- veyor was assigned to millwrights represented by the I Item 15 of the agreement awards work on "Elevators-Hydraulic Equip- ment" to machinists. and item 73 awards work on hydraulic dnves and elevators on pallet conveyors to machinists. Item 72 awards all other work on pallet conveyors to millwrights. There are no additional references to conveyors in the agreement. 2 Prior to the effective date of the 1960 agreement, the Employer utitlized a belt-type conveyor and assigned the work of maintaining this conveyor to the millwrights. A few years before the parties entered into the 1960 agree- ment, the Employer replaced the belt-type system with a table-top chain system and assigned the maintenance of the table-top chain system to the machinists. Carpenters, and this assignment was still in effect at the time of the hearing.3 On June 5, 1978, the Machinists filed a grievance in protest of the Employer's reassignment of the dis- puted work. The Machinists' grievance referred to ar- ticle I, section 2, of the collective-bargaining agree- ment between the Employer and the Machinists and to "past practice." Article I, section 2, of the contract in effect at that time does not refer specifically to work on conveyors. On June 6, 1978, the Employer answered the Machinists' grievance as follows: The Shuttle-worth [sic] conveyor installed on line #4 was assigned to the Millwrights in accord- ance with the October 3, 1960, agreement signed by the Millwrights and Machinists. Grievance denied. The record shows that the Shuttleworth conveyor operates on a principle different from all other con- veyors in operation at the Employer's Milwaukee fa- cility, including the tabletop chain conveyor and the mesh-top conveyor. Furthermore, the Employer's plant engineer, Arnold J. Luedtke, gave uncontra- dicted testimony that the Shuttleworth conveyor is a new type of conveyor which had not been previously used by the Employer at its Milwaukee operation. C. Contentions of the Parties Although the Employer reassigned the disputed work on the basis of the 1960jurisdictional agreement and adhered to that reassignment when presented a grievance by the Machinists, it took the position at the hearing that the work in dispute should be as- signed to employees represented by the Machinists rather than to employees represented by the Carpen- ters. The Employer states that its preference is based upon (a) past practice; (b) the avoidance of "split ju- risdictional problems" which may arise in instances where the Shuttleworth and the table top chain con- veyors are connected; and (c) the fact that machinists are "more familiar" with conveyors used for the pur- pose of conveying "individual bottles and cans." The Machinists contends that the work should be assigned to its members on the basis of past practice, efficiency of operation, and economy. Futhermore, the Machin- ists contends that the 1960 agreement should be inter- preted as referring only to work that was in existence at the time the parties entered into the agreement. The Carpenters contends that the work in dispute should be assigned to millwrights on the basis of (a) the 1960 agreement and the interpretation given to the 1960 agreement by the Employer at the time it The record reflects that the reassignment of the disputed work to the rmllwrights represented a settlement of the Carpenters' grievance by and between the Employer and the Carpenters 319 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reassigned the work from the machinists to the mill- wrights: (b) the fact that the Employer assigned work on mesh-top conveyors to the millwrights: and (c) the fact that the millwrights possess the skills necessary to perform the disputed work. 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 there is no agreed-upon method for the vol- untary settlement of the dispute.4 The Machinists' grand lodge representative. Kenneth W. Black. stipu- lated at the hearing that on or about January 8. 1979. the Machinists made a threat to the Employer that it would engage in a strike in furtherance of its claim that the work in dispute should be assigned to em- ployees represented by the Machinists. Furthermore. the parties stipulated, and we find. that there exists no agreed-upon method for the vol- untary settlement of the dispute. Accordingly, we find that this dispute is properly before the Board fior de- termination 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 jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors in- volved in a particular case.5 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements and present assignment Initially, we have considered the collective-bar- gaining agreements between the Employer and the Carpenters and between the Employer and the Ma- chinists outside the context of the 1960 jurisdictional agreement. Upon consideration of these contracts in that light, we find that they are not useful in making our determination. In addition, we have considered the 1960 jurisdic- tional agreement and the awards made since the agreement became effective on October 3. 1960. In this regard, we have carefully considered the testi- 'N.L.R.B. v. Radio & Tele iso,, Broadcast Eniginlcrs L U'/vi. b, Lol 1212,. International Brotherho d of Elertrical W,r err. .4 Fl. (10 (0dolilha Bro/ld- casting System]. 364 U.S. 573 (1961). lnrernaicinal A.sscxiation ofMoachinits. L.odge N. 1 74. AF1. ( /0 (J. . Jones Constructiown (Conimpay). 135 NLRB 1402 (1962). mony of the Employer's director of engineering. Frederick J. Hicks. Hicks, who was employed by the Employer at its Milwaukee operation at the time that the parties entered into the 1960 agreement. testified that it was his "thought" that the agreement covered only the work in existence at the time the agreement was consummated. In addition. Hicks testified that 't "was not the intent on my part" to assign future work. However, there is no evidence to show what, if anything, an)' of the parties said or did during the course of bargaining to indicate that it was the mu- tual intent of the parties to restrict work assignments to existing jobs and functions. Thus. there is no sup- port in the record for Hicks' belief that the 1960 agreement did not cover jobs and functions created after 1960 or fbr his conclusion that the Employer erred in reassigning work on the Shuttleworth con- veyor. As noted herein, there appear to have been two occasions since the 1960 agreement became effective on which the Employer introduced new or different conveyors. once when it began using the mesh-top conveyor and later when it introduced the Shuttle- worth conveyor. After the mesh-top conveyor was in- stalled, the work of maintaining that conveyor was assigned to the millwrights. It appears that this as- signment was consistent with the 1960 agreement. Furthermore. the record fails to show that there has been any dispute over the assignment of work on the mesh-top conveyor. After the Shuttleworth conveyor was installed, the F[-mploer initially assigned the work on it to machinists and then decided, in light of the 1960 jurisdictional agreement, to award the work to millwrights. Thus, the Employer not only changed its initial assignment on the Shuttleworth conveyor. but did so in specific reliance upon the 1960 agree- ment. Upon consideration. we find that the 1960jurisdic- tional agreement and the Employer's present assign- ment favor awarding the work in dispute to employ- ees represented by the Carpenters. 2. Employee skills and efficiency of operation The record shows that both groups of employees possess the necessary skills to perform the work in dispute and both groups could perform it with equal efficienc.' Accordingly. the factors of emploN ee skill b In this regard. we hase conisidered the tesrimon, ot Plalnl Engineer Ar- nold Luedtke that assignment of1 Ihe Aork to mach inists would a;olod the posslhilit otf lsigniig work on one continulous con\eor ioperation Ior to sepa:rate Crail. I.uedtke testified. howeer. that assignmenl o the work to the millw rights has not resulted in ans more downfliime han when the work was assigned It) the machinists. In according preference to the machinists. l.uedtke said he elt that machinists had more experience thant IlliYghtls in preforming work on consesors thalt carrs IndilidIual hboltles a id canll, lw Ce'.er there is no showing tha eperience in ihe the alhletp cliai i colllstl prosided the ilaichinist ls tihll speci./led kill tr perlorming ork in 320 DISTRICT =10 AEROSPACE WORKERS and efficiency of operation favor neither group and are neutral in resolving the dispute before us. 3. Industry practice The Employer's plant engineer. Arnold J. Luedtke. testified that prior to the installation of the Shuttle- worth conveyor at the Employer's Milwaukee opera- tion, a "similar" type of Shuttleworth conveyor was placed in operation at a Schlitz plant in Syracuse. New York. He testified that installation and mainte- nance of the conveyor system at the Syracuse location was assigned by Schlitz to employees represented b5 Machinists. There is no additional evidence regarding industry practice. We find that the assignment of work at the Schlitz plant in Syracuse is insufficient to establish a practice in the industry. 4. The Employer's preference In view of the facts of this case, we are unwilling to give substantial weight to the factors relied upon b the Employer in according preference to its employ- ees who are represented by Machinists. Moreover. we conclude that, in the circumstances of this case, the Employer's current preference is contrary to the weight of other relevant factors. Accordingly. we find that even though the Employer's present preference is a factor which favors awarding the disputed work to employees represented by Machinists, it is not enti- tled to controlling weight. Conclusion Having considered all pertinent factors present herein, we conclude that employees represented b) the Shuttleworth conveyor. In addition. Luedtke said that he wsas of the opinion that the experience of machinists on conveyors carrying Individual bottles and cans amounted to "past practice" which favored machinists liver millwrights. As noted herein, however, the Shuttleworth *was a tpe of con- veyor not previously used at the Emplo)er's Milwaukee operation. Further- more, the millwrights, as well as the machinists, had performed work on conveyors used for carrying bottles and cans for some sears prior to 1978 Carpenters are entitled to perform the work in dis- pute. In making this determination, we are awarding the work in question to employees represented by Carpenters. but not to that Union or its 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 and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: I. Employees employed by Pabst Brewing Com- pany who are represented by Carpenters District Council of Milwaukee County and Vicinity of the United Brotherhood of Carpenters and Joiners of America. AFI. CIO, are entitled to perform the work of installation and maintenance of the Shuttleworth conveyor on line number four at the Employer's op- eration in Milwaukee. Wisconsin. 2. District No. 10 of the International Association of Machinists and Aerospace Workers. AFL -CIO. is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Pabst Brew- ing Company to assign the aforementioned work to employees represented b,, that labor organization. 3. Within 10 dads of the date of this Decision and Determination of Dispute. District No. 10 of the In- ternational Association of Machinists and Aerospace Workers. AFL ('10. shall notify the Regional Direc- tor for Region 30. in writing. whether or not it will refrain from forcing or requiring Pabst Brewing Com- pany. bh means proscribed by Section 8(b)(4(D) of' the Act. to assign the work in dispute to employees represented b District No. 10 of the International Association of Machinists and Aerospace Workers. AFL-CIO. rather than employees represented by Carpenters District Council of Milwaukee County and Vicinity of the United Brotherhood of Carpen- ters and Joiners of America. AFL-CIO. 321