Warehouse Union Local 6, International Longshoremen And Warehousemen'S Union

1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Warehouse Union Local 6, International Longshore- men and Warehousemen's Union and Golden Grain Macaroni Company and Local 125, Bakery, Confectionery and Tobacco Workers' International Union. Case 32-CD-82 19 July 1985 DECISION AND DETERMINATION OF -DISPUTE BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The charge in this Section . 10(k) proceeding was filed 5 October ' 1984 by Golden Grain.Macaroni Company (the Employer), alleging that the Re- spondent, Warehouse Union Local 6, International Longshoremen and Warehousemen's Union (Local 6), violated Section -8(b)(4)(D) ` of the National Labor Relations Act by engaging in proscribed ac- tivity with an object of -forcing the- Employer to assign certain work id -employees" it represents rather than to,employees represented by Local 125, Bakery, Confectionery and Tobacco Workers' International Union (Local -125). The hearing was held 16 November .1984 before Hearing Officer Ruby J. Palmer.' The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. 1. JURISDICTION The Employer, a California corporation with a wholly owned subsidiary, Ghirardelli Chocolate Company, is engaged in the proceessing and pack- aging of food products at its separate facilities in San Leandro, California. During the past calendar year, its business operations generated gross reve nues in excess" of $500,000 and, during the same period, it purchased and received materials valued in. excess of $50,000 directly from points outside the State of California. The parties stipulate, and we find, that the Em- ployer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that Local 6 and Local 125 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer is a member of the Industrial Em- ployers and Distributors Association (IEDA), which has a current collective-bargaining agree- ment with Local 6 covering all production, mainte- nance, and warehousing employees employed at the Golden Grain plant. The Employer by its Ghirardelli division is also a member of the Con- fectioners' Council of East Bay, which has a col- lective-bargaining agreement with Local 125 recog- nizirig its exclusive jurisdiction over production employees at the Ghirardelli plant. In 1981 the Employer began manufacturing the Golden Grain stuffing mix. Local 6 workers were assigned the bread crumb- packaging, and Local 125 workers packaged- the spice pouch and com- bined the two packets (bread crumbs and spice) in the stuffing boxes. Plant Manager William Hoffman testified that in 19841 customer complaints revealed that an inconsistent percentage of finer as com- pared to larger pieces of bread crumbs were being packaged, producing a less appetizing product. Ac- cording to Hoffman, the bread crumb packaging work was then transferred to the Ghirardelli plant because the Triangle machine there has two con- tainers for dropping materials separately, eliminat- ing. the problem by sifting out the finer bread crumbs. - On 2 October the Employer met with Local 6 representatives to discuss the packaging of the Golden Grain stuffing mix. According to Personnel Manager John Sullivan, Local 6 maintained that the employees it represents-were entitled to the work of packaging the bread 'crumbs. Local 6 pro- posed that such employees be allowed to do the work at the Ghirardelli facility or that the Triangle and Barteldt machines used to package the bread crumbs at Ghirardelli be moved to the Golden Grain facility., The Employer rejected the Union's proposals. Sullivan also testified that Al Lannon, president of Local 6, said, "The Union would do whatever they had to do to retain their work." On 3 October Sullivan spoke with Virgil Cum- mings, president of Local 125, who claimed any work at the Ghirardelli plant for the employees it represents. On 4 and 5 October, Local 6 workers and union officials engaged in and caused a work stoppage at. the Ghirardelli facility. They encircled the Barteldt, machine, wrapped crepe paper around it, and placed a sign that said, "Unfair to Local 6." Sullivan also testified that Lannon said, "They were going to stay until they got their work back." No work- stoppages have occurred since then. B. Work in Dispute The work in dispute is the packaging of bread crumbs for Golden Grain stuffing mix at the Ghir- ardelli Chocolate Company plant. ' All dates refer to 1984 unless otherwise noted 275 NLRB No. 162 - LONGSHOREMEN ILWU LOCAL 6 (GOLDEN GRAIN) • . 1129 C. Contentions of the Parties In its brief Local 6 contends that no traditional jurisdictional dispute exists because its object was to preserve the work of employees it represents, re- lying on Seattle Building . Trades Council, 204 NLRB 1126, 1127 (1973), and Maritime Union, 227 NLRB 1081 , 1082 (1977). Local 6 further contends that the Board lacks jurisdiction because there exists an agreed-upon voluntary method of adjust- ing the underlying dispute . Local 6 argues that all three . parties are contractually bound to enter into tripartite arbitration based on each union's arbitra- tion provisions in their collective-bargaining agree- ments with the Employer. On the merits, Local 6 maintains that the work in dispute should be awarded to employees it rep- resents based on past practice and the Employer's contractual obligation to have Local 6 bargaining unit members produce and package Golden Grain products, notwithstanding agreed-upon limited ex- ceptions in addenda to the collective -bargaining agreement. The Employer contends that the disputed work should be assigned , to employees represented by Local 125 because no Local 6 -represented employ- ee has ever performed production work at the Ghirardelli facility, and because Local 6's defense ignores the Employer's longstanding practice of having a limited interchange of work between the two facilities . Finally, the Employer argues that Local 6's work assignment demands are not limited to protecting work of employees within the Em- ployer's Golden Grain collective -bargaining unit, but extends to asserting jurisdiction over work transferred to the Ghirardelli plant . In its brief, the Employer maintains that the disputed work should be assigned to employees represented by Local 125 based on efficiency, employer preference, product quality, economy, present assignment , and its col- lective-bargaining agreement with Local 125. D. Applicability of the Statute Before the Board can determine a dispute pursu- ant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Sec- tion 8(b)(4)(D) has been violated and that the par- ties have not agreed upon a voluntary adjustment of the dispute. In this case, it is undisputed that Local 6 claimed the disputed work and engaged in and caused work stoppages at the Ghirardelli plant. Local 6 argues that no jurisdictional dispute exists because its sole, object was work, preservation . 2 We find this bon- 2 We reject Local 6's contention that no jurisdictional dispute exists under Seattle Building and Maritime Union, supra In those cases the tentioli unsupported by the record. The record es- tablishes that the Employer's practice is to produce certain Golden Grain products in either of the two bargaining units. For example, the 1975 addendum prohibits the processing of Golden Grain products containing pasta in the 'Ghirardelll plant, but the 1979 addendum provides that certain types of rice and new products introduced after 1 June 1979 can be packaged in the Ghirardelli plant. The record also shows that Local 6-represented employees have never. held production jobs in the Employer's Ghirardelli facility. Therefore, all work at the Ghirardelli plants, including any that has been transferred there, has. been performed by employ- ees represented by Local 125. . The work in question, though formerly per- formed at the Golden Grain plant, is now part of the operation of the Ghirardelli plant. The record shows that, the packaging of the Golden Grain bread crumbs. has significantly changed and is now performed by a new process. Before 1984, the bread crumbs were packaged on the Triangle ma- chine at-the Golden Grain plant. They were placed into a single container hopper that dispensed an in- consistent percentage of finer as compared to larger pieces of bread crumbs into the bread crumb pouch. The bread crumb pouches were then trans- ferred to the warehouse before being sent to the Ghirardelli plant where they were, combined with the spice pouch (containing herbs, dried vegetables, and rice), into a single box. The packaging of bread crumbs is now part of a single integrated operation performed by Local 125-represented employees 'at the Ghirardelli plant. The new process entails packaging all ingredients for the Golden Grain stuffing mix on machines at the Ghirardelli plant. Now the bread crumbs are fed into the double hopper Triangle machine which separates the larger and finer pieces of bread crumbs before final packaging into pouches with an equalized distribution of finer and large crumbs. The bread crumb and spice packets' are then com- bined-on the Clybourne Horizontal packaging ma- chine at the Ghirardelli plant. Thus, the evidence shows that the disputed work is now part of an in- tegrated operation, and' although the objective has remained the same, i.e., packaging the stuffing mix, Board found no real competing claims between two groups of employees because the disputes were with the employer and concerned the recap- ture of work for displaced employees Here, by contrast, there are no dis- placed workers Local 6 workers continue to manufacture and process Golden Grain products on the Triangle machine at the Golden Grain plant Furthermore, Local 125-represented employees were assigned the work in dispute, Local 125 has not disclaimed the work, and Virgil Cum- mings, vice president of Local 125, testified that he wanted to continue to have Local 125-represented employees perform the work on the Triangle machine at the Ghirardelli plant 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "the means for accomplishing that objective- have undergone a significant metamorphosis." Long- shoremen Local 62 (Chevron, U.S.A.), 237 NLRB 835, 837 fn. 3 (1978). _ This is not a case in which Local 6, is attempting to protect and preserve work which -has tradition- ally been. performed by employees it represents. Rather, Local 6, is: attempting to expand its - tradi- tional'domain to work performed at the Ghirardelli plant. Personnel Manager Sullivan's uncontradicted testimony shows that one of Local 6's proposals was to have employees it represents -perform the work in question at the Ghirardelli facility. 'We find, therefore, reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred.3 We also reject the Respondent's contention that because the two involved Unions have respective contract arbitration: provisions with the Employer, there exists a voluntary means for adjusting the un- derlying dispute. Although the Employer's respec- tive contracts with the Unions contain provisions for the arbitration of disputes-between the contract- ing parties, neither contract provides for tripartite arbitration. These circumstances- do not provide" "a method for binding all parties in a single proceed- ing." San'Diego Stereotypers Union 82, 201, NLRB 8.93,;'895'(1973). - - ` Furthermore, . Local 6 argues that its action in district court seeking to compel arbitration consti- tutes an agreed-upon method for the voluntary ad- justment of the dispute. The Board has held, how. ever, that a pending Section 301 suit, does not con- stitute an agreed-upon method-for voluntary adjust- ment of the. dispute. International Die Sinkers' Con- ference, _197 NLRB, 1250,. 1252 (1972)._ Accordingly, we: find that the. dispute is properly before the' Board for determination. E. Merits' of the Dispute Section 10(k)* requires the Board to make an af- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), -364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bah ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). - - The following factors are relevant in m aking "the determination of the dispute. - - - 3 We deny Local 6's motion to quash the notice of hearing Chairman Dotson finds it unnecessary to rely on the above rationale utilized for rejecting Local 6's work preservation claim 1. Collective-bargaining agreements .The Employer currently has respective collec- tive-bargaining agreements with Local 6 and Local 125. Both' agreements were submitted into evi- dence. Neither contract, however, specifically covers the work in dispute. The record also demonstrates- that, since 1975, Local 6 and the Employer have entered into vari- ous agreements specifying which Golden Grain products could be manufactured in the Ghirardelli plant. In 1975 Local 6 and the Employer agreed that certain Golden Grain products would no longer be processed in the Ghirardelli' facility. These products included specified rice products, cheddar, cheese products, and Golden Grain prod- ucts containing pasta. In 1979 the agreement was amended to provide that any new pasta product in- troduced after 1 June 1979 may be packaged on the Triangle' machine at the Ghirardelli plant. The agreement also -contained a general waiver that "any new product introduced after June 1, 1979" may be packaged at the Ghirardelli plant. This agreement was subsequently amended in 1981 and included' a proviso allowing' pasta products intro= duced after 1 June 1979 to be packaged at the Ghirardelli plant, but there was no general waiver provision. ' . The Employer argues that, because the bread crumbs-are not a pasta product, they can be pack- aged at the Ghirardelli plant under either the 1979 or 1981- agreement. Although -the Golden Grain stuffing mix was first manufactured in 1981, we find that neither' agreement covers - the disputed work or categorically assigns the packaging of bread crumbs to employees represented by Local 125. Therefore, because the collective-bargaining agreements and addenda do not clearly show which group of employees is entitled to perform the disputed ,work, we find that this factor is not helpful to a determination. 2. The Employer's preference and past practice - ' From 1981 until 1984, the Employer used em- ployees represented by Local 6 -to package the bread crumbs at the Golden Grain plant. Accord- ing 'to Plant Manager Hoffman, the Employer de- parted from this arrangement -because of customer complaints that the bread crumbs were too finely ground. The Employer then assigned the disputed work to Local 125-represented employees because the Ghirardelli plant had the necessary equipment to remedy the problem. We find' there is no past practice with regard to the packaging of bread crumbs at the Ghirardelli facility. - LONGSHOREMEN ILWU LOCAL 6 (GOLDEN GRAIN) The Employer's preference is to have Local 125- represented employees perform the work in dis- pute. The Employer's preference, while not deter- minative, favors an award of the work to employ- ees represented by Local 125. 3. Relative skills No particular skill is necessary to perform the disputed work ; therefore, this factor favors neither group of employees. 4. Economy and efficiency of operations It is undisputed that the Golden Grain- plant lacks the equipment to perform adequately the work in dispute , but Local 6 argues that the Trian- gle and the Barteldt machines could be moved to the Golden Grain plant from the Ghirardelli plant. Hoffman testified , however,' that there was insuffi- cient space in the Golden brain facility to operate the work efficiently and that , because the Triangle machine is two stories high, construction of a second floor at Golden Grain would be necessary. Under the present assignment, employees repre- sented by Local 125 perform :every function in- volved in processing and packaging the stuffing mix. The packaging of the spice pouch and the bread crumb pouch , and the placement of both packets in the stuffing mix boxes are handled by a single unit of employees . This new procedure eliminates the need for moving and storing the packaged bread crumbs by Local 6 -represented em- ployees. Before - integrating the processing and packaging of the stuffing mix, the bread crumb bags were placed in large cartons which were pal- letized onto a pallet and driven by a forklift opera- tor to the Golden Grain warehouse. The entire op- eration now is simultaneously performed on. three machines that are proximately situated, providing for a more economical use of available floor space and a more continuous and efficient use of equip- 1131 ment . Thus, the factor of economy and efficiency of the Employer's operations favors an assignment of the disputed work to employees represented by Local 125. Conclusion After considering all the relevant factors, we conclude that the employees represented , by Local 125 are entitled to perform the work in dispute. In reaching this conclusion, we have relied on the ef- ficiency and economy resulting from such an as- signment and the Employer's preference. In making this determination, we are awarding the 'work to employees represented by Local 125, not to that Union or its members . The determination is limited to the controversy that gave rise to this proceed- ing. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of the Employer represented by Local _125; Bakery, Confectionery and Tobacco Workers' International Union are entitled to pack- age the bread crumbs for Golden Grain stuffing mix at the Ghirardelli plant. 2. Warehouse Union Local 6, International Longshoremen and Warehousemen 's Union is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Golden Grain Macaroni Com- pany to assign the-disputed work to employees rep- resented by it. 3. Within 10 days from this date, Warehouse Union Local 6, International Longshoremen and Warehousemen's Union shall notify the Regional Director for Region 32 in writing whether it will refrain from forcing the Employer, by means pro- scribed by Section 8(b)(4)(D), to assign the disput- ed work in a manner inconsistent with this determi- nation.