Teamsters Local 600 (Central Hardware)

612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Highway, City, and Air Freight Drivers, Dockmen, Marine Officers Association and Helpers, Teamsters Local Union No. 600, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO and Central Hardware Company and Carpenters District Council of Greater St. Louis, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO and United Food and Com- mercial Workers Union, Local 655, affiliated with United Food and Commercial Workers International Union, AFL-CIO. Case 14-CD- 783 July 29, 1988 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT The charge in this Section 10(k) proceeding was filed December 1, 1987, by Central Hardware Company (Central Hardware or the Employer), al- leging that the Respondent, Teamsters Local 600, violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by UFCW Local 655.' The hearing was held January 22, 1988, before Hearing Officer Lynette K. Zuch. Thereafter, Teamsters Local 600 and Central Hardware filed briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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. I. JURISDICTION The Employer, Central Hardware, a wholly owned subsidiary of Interco, Incorporated, a Dela- ware corporation with its principal offices and a warehouse facility located in Bridgeton, Missouri, and nine hardware stores located in St . Louis, Mis- souri, and stores located in Alton, Fairview Heights, and Granite City, Illinois, is engaged in the retail sale of hardware and building materials. Central Hardware annually derives gross revenues in excess of $500,000 from the operation of its i At the hearing, the Employer, Teamsters Local 600, and the Carpen- ters District Council of Greater St. Louis (Carpenter) stipulated that there was no dispute with respect to the Carpenters, whereupon the Car- penters left the hearing. hardware stores, and purchases and receives goods valued in excess of $50,000, which are shipped di- rectly to its St. Louis, Missouri and Illinois facili- ties from points located outside the States of Mis- souri and Illinois respectively. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. We also find that Teamsters Local 600 and UFCW Local 655 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute Central Hardware has participated in the annual Tinker Show at the Cervantes Convention Center since 1975 . The Tinker Show is a consumer show designed to inform customers how to perform re- pairs around their homes. Since 1977, Central Hardware has assigned to its own employees, rep- resented by UFCW Local 655, the tasks of unload- ing merchandise from trailers at the Convention Center and loading the trailers at the close of the Tinker Show. The most recent show was held Sep- tember 11-13, 1987. Central Hardware and Teamsters Local 600 stip- ulated that the Teamsters made demands on Cen- tral Hardware to assign the disputed work to Teamsters-represented employees at the September 1987 Tinker Show, that the Teamsters threatened to picket and picketed during the September 1987 show, and that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. On December 11 and 15, 1987 , about a month before the hearing, the NLRB received two letters from UFCW Local 655. The first letter said in part: It is the understanding of Local 655 that Local 600 has jurisdiction for the unloading of trucks to transport cargo directly to the exhibition floor or to a storage area . Local 655 has juris- diction over the moving, handling, stocking and returning to storage of any materials whose unloading to the exhibition floor or to a storage area has already been completed by Local 600. We understand Local 600 has no claim to this work. Accordingly, it is the posi- tion of Local 655 that there is no jurisdictional dispute. The second letter said: UFCW 655 disclaims any jurisdiction over the unloading of trucks to transfer cargo directly to the exhibition floor or to a storage area which is the jurisdiction of Teamsters Local 600. 290 NLRB No. 75 TEAMSTERS LOCAL 600 (CENTRAL HARDWARE) B. Work in Dispute The disputed work consists of the unloading and loading of trucks for Central Hardware at the Cer- vantes Convention Center during the annual Tinker Show. C. Contentions of the Parties Central Hardware contends that the work in dis- pute should be awarded to employees represented by UFCW Local 655 based on the fact that it has a collective-bargaining agreement with UFCW Local 655 and no contract with Teamsters Local 600, em- ployer preference, past practice, and economy and efficiency. Teamsters Local 600 contends that there is no jurisdictional dispute because UFCW Local 655 has disclaimed an interest in the work. In the event the Board determines to the contrary, Teamsters Local 600 argues the disputed work should be awarded to Teamsters-represented employees based on a number of factors, including area and industry practice and relative skill. 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 on a method for the voluntary adjustment of the dis- pute. Teamsters Local 600 and Central Hardware stip- ulated that the Teamsters demanded the Employer assign the disputed work to Teamsters-represented employees, that the Teamsters threatened to picket and did picket when the Employer did not assign the work to Teamsters-represented employees, and that there is reasonable cause to believe that Sec- tion 8(b)(4)(D) has been violated. Teamsters Local 600 and Central Hardware also stipulated there is no agreed-on method for the adjustment of this dis- pute to which the parties are bound. Regarding the purported disclaimer by UFCW Local 655, it is well established that when a party to a jurisdictional dispute effectively renounces its claim to the work in question, the Board considers the dispute to be at an end and quashes the notice of hearing. Operating Engineers Local 369 (Sustin Co.), 255 NLRB 476, 478 fn. 1 (1981). It is also well established that the party raising such an issue "has the burden to satisfy the Board' s requirements of a clear, unequivocal, and unqualified disclaimer of all interest in the work in dispute." Operating Engineers Local 77 (C. J. Coakley Co.), 257 NLRB 436, 438-439 (1981). Teamsters Local 600 argues that the two letters that UFCW Local 655 sent to 613 the Board constitute an effective disclaimer of the work in dispute. Based on the particular circum- stances presented, we disagree. First, we think it important to observe that the party which purportedly disclaimed the work is not the party asserting there was a disclaimer. UFCW Local 655 may, of course, show there was a disclaimer by another union, but merely introduc- ing letters from another union, which, for reasons stated below, are best ambiguous, without present- ing agents of the other union to testify in order to explain the ambiguous communications falls far short of establishing an effective disclaimer.2 Fur- ther, although UFCW Local 655 sent letters to the Board in December 1987, it did not send these let- ters to the Employer. During roughly the same time period it was allegedly disclaiming the work in its letters to the Region, UFCW Local 655 was negotiating a new collective-bargaining agreement with the Employer. Despite the fact that it had been performing the disputed work for over 11 years and that it concurrently was sending letters to the Region allegedly disclaiming the work, UFCW Local 655 did not discuss the work in ques- tion during such negotiations, nor did it seek to clarify the work UFCW Local 655-represented em- ployees were to perform at future Tinker Shows to exclude the disputed work. The failure of UFCW Local 655 to raise these matters during the negotia- tions in light of its long-existing practice of per- forming the work is conduct inconsistent with its disclaiming the loading and unloading work. Under all the circumstances presented, therefore, we cannot conclude that Teamsters Local Union No. 600 has established that there was an effective disclaimer and that UFCW Local 655 has clearly, unequivocally, and unqualifiedly renounced interest in having the disputed work assigned to employees it represents.3 We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred and that there exists no agreed method for voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dis- pute is properly before the Board for determina- tion. 2 Although served with notice of the 10(k) hearing, UFCW Local 655 was not present at the hearing. S Operating Enginners Local 825 (Patock Construction), 285 NLRB 1211 (1987), is distinguishable. In that case a disclaimer was found effective where, unlike here, the disclaiming union renewed its disclaimer to the Region at the hearing and in its briefs to the Board . Further, there was no evidence in PatocA that the allegedly disclaiming union engaged in conduct inconsistent with the existence of a disclaimer 614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 bal- 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 making the determination of'this dispute. dividuals represented by Teamsters Local 600 or UFCW Local 655.4 4. Relative skills Teamsters Local 600 claims that employees it represents are more skilled in performing the work in dispute because of familiarity with the unusual safety considerations of the Cervantes Convention Center. After reviewing the evidence pertaining to the skills of the two groups, we find that both are equally capable of performing the work. Accordingly, we find that this factor does not favor either group. 1. Certification and collective-bargaining agreements There was no evidence presented that either union has been certified by the Board as the collec- tive-bargaining representative of any of the em- ployees involved. Accordingly, this factor is not helpful in determining the dispute. Teamsters Local 600 and Central Hardware have no collective-bargaining agreement. Central Hard- ware and UFCW Local 655 have a collective-bar- gaining agreement which does not contain a de- scription of unit work. Accordingly, we find that this factor does not favor either group of the em- ployees involved. 2. Company preference and past practice Central Hardware has assigned the work in dis- pute to its own employees represented by UFCW Local 655 since 1977. Central Hardware prefers to continue assigning this work to employees repre- sented by UFCW Local 655. This factor favors an assignment of the work to employees represented by UFCW Local 655. 3. Area and industry practice Robert Ramshaw, the Teamsters Local 600 busi- ness agent responsible for the Convention Center and the Teamsters' hiring hall , testified that Team- sters-represented employees have historically un- loaded and loaded freight at the Cervantes Con- vention Center for all the shows and exhibitions that are held there. At the same convention center, UFCW Local 655-represented employees have per- formed the disputed work for Central Hardware for over 11 years. No evidence was presented as to which Unions represent employees performing freight handling for other exhibitions in the St. Louis area. We find the record inconclusive regarding area and industry practice . Accordingly, these factors do not favor an award of the disputed work to in- 5. Economy and efficiency of operations We find, based on the testimony of Stephen East, the executive vice president of Central Hardware, that utilizing UFCW Local 655-represented em- ployees is more efficient . East's testimony estab- lishes that because of Central Hardware 's employ- ees' familiarity with the merchandise , it is not nec- essary to label the boxes to be loaded and unloaded and the employees require less supervision. Addi- tionally, the Employer would need its employees at the Convention Center to set up the display booths even if it assigned the unloading and loading of the trailers to Teamsters -represented employees. Thus Central Hardware would have to compensate and manage its employees as well as Teamsters -repre- sented employees for work currently satisfactorily performed by only one group of employees. Accordingly, we conclude the record establishes that the factors of efficiency and economy of oper- ations favor awarding the work to employees rep- resented by UFCW Local 655. Conclusions After considering all the relevant factors, we conclude that employees represented by UFCW Local 655 are entitled to perform the work in dis- pute. We reach this conclusion relying on employ- er preference and past practice and economy and efficiency of operations. In making this determina- tion, we are awarding the work to employees rep- resented by UFCW Local 655, not to that Union 4 Member Babson notes that, were the factor of "area practice" limited to the Convention Center, it is clear, as the Employer itself implicitly concedes, that this factor would favor employees represented by Team- sters Local 600 but he further notes the lack of evidence regarding the practice in the St. Louis area generally. Moreover, he notes Teamsters' contention that an agreement between it and certain other unions whose members perform work at the Convention Center gives it jurisdiction over loading and unloading freight at the Center, but he notes also that UFCW Local 655 is not a signatory to this agreement . He gives this agreement little weight, at the least because of the Employer's longstand- ing contrary past practice. Cf. Operating Engineers Local 150 (Compo- nents, Inc.), 197 NLRB 569 (1972). TEAMSTERS LOCAL 600 (CENTRAL HARDWARE) or its members. The determination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Central Hardware represented by United Food and Commercial Workers Union, Local 655, affiliated with United Food and Com- mercial Workers International Union, AFL-CIO, are entitled to unload and load trucks for Central Hardware Company at the Cervantes Convention Center during its annual Tinker Show. 2. Highway, City and Air Freight Drivers, Dockmen, Marine Officers Association and Help- 615 ers, Teamsters Local Union No. 600, affiliated with International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Central Hardware Company to assign the disputed work to employees represented by it. 3. Within 10 days from this date, Teamsters Local 600 shall notify the Regional Director for Region 14 in writing whether it will refrain from forcing the Central Hardware Company, by means proscribed by Section 8(b)(4)(D), to assign the dis- puted work in a manner inconsistent with this de- termination.