International Brotherhood Of Teamsters, Chauffeurs, Warehousemen And Helpers Of America, Afl--Cio

798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD General Teamsters and Warehousemen, Local 543, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO and GenCorp, Inc. d/b/a GenCorp Automotive and United Rubber, Cork, Linoleum & Plastic Workers of America, Local 626. Case 25-CD-252 September 29, 1989 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY The charge in this Section 10(k) proceeding was filed March 16, 1989, by the Employer, alleging that the Respondent, General Teamsters and Ware- housemen Local 543, 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 United Rubber Workers Local 626. The hearing was held April 11, 1989, before Hearing Officer Walter Steele. 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 is an Indiana corporation with its principal place of business in Wabash, Indiana, and is engaged there in the business of the manufacture and production of extruded rubber and related products. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that General Teamsters and Warehousemen, Local 543 and United Rubber Workers Local 626 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE resented by Teamsters use motorized vehicles to transport raw materials to the production areas and to transport finished production from the produc- tion areas to the warehouse. However, the employ- ees represented by Rubber Workers also use vari- ous motorized vehicles, including standup forklifts, to transport materials. The present dispute began in 1986 when the Em- ployer relocated department 215. Before this, em- ployees represented by Rubber Workers had moved material with standup forklifts between de- partments 215 and 221 , which were in close prox- imity. When department 215 was moved, approxi- mately 120 yards away, the Employer assigned this work to employees represented by Teamsters, who move the material with sitdown forklifts . Rubber Workers filed grievances over this change in 1986. These grievances were not resolved. In December 1988, the Oiler classification repre- sented by Rubber Workers began using a motor- ized cushman cart to haul oil and grease around the plant for use in lubricating machinery . Shortly thereafter, Teamsters filed a grievance challenging the use of this equipment by employees represented by Rubber Workers. In January 1989, Teamsters filed a grievance claiming all work involving mo- torized equipment. On February 16, 1989 , during a meeting on the latter grievance, Teamsters Chief Steward New- comer told the Employer, "[W]e'd better get reso- lution of this real quick because the guys are get- ting real anxious out here, and I don't know what I can do to stop them" and "[W]e're going to have to do something pretty quick, because I don't know how much longer we'll hold this together." On March 6, 1989, Teamsters International Repre- sentative Goodnight said to the Employer, "You know, I will not authorize a strike because we have a no strike clause in our contract. But once again, I want to remind you there are some times when I cannot control the anger of my people, especially when they feel very strongly about the actions going on." On March 16, 1989, the Employer filed the present unfair labor practice charge. A. Background and Facts of Dispute The Employer's production and maintenance em- ployees, numbering approximately 580, have been represented for more than 40 years by Rubber Workers Local 626 (Rubber Workers). The Em- ployer's approximately 20-30 shipping and receiv- ing employees have also been represented for more than 40 years by General Teamsters and Warehou- semen, Local 543 (Teamsters). The employees rep- B. Work in Dispute At the outset of the hearing, the work at issue was all work performed with motorized equipment. However, during the hearing, Teamsters dropped its claim to all such equipment, including the claim for the cushman cart used by the Oilers, except forklifts, both standup and sitdown. Rubber Work- ers acknowledges that sitdown forklift work be- 296 NLRB No. 98 TEAMSTERS LOCAL 543 (GENCORP AUTOMOTIVE) longs to employees represented by Teamsters.) In addition, we are not satisfied that the record shows that Rubber Workers claims the use of a standup forklift in the receiving department that has been operated exclusively by Teamsters-represented em- ployees. We therefore find that the only work actu- ally in dispute is the operation of eight standup forklifts that are used in the production area of the Employer's facility. C. Contentions of the Parties The Employer, which took a position of neutrali- ty at the hearing, now contends that a clear state- ment preserving the status quo would be the best resolution of this dispute, and argues that such a resolution is supported by past practice, the Em- ployer's collective-bargaining agreement with Teamsters, and economy and efficiency of oper- ations. The Employer proposes an order that it says would preserve the status quo, and that would award the use of standup forklifts within depart- ments to employees represented by Rubber Work- ers and the use of sitdown and standup forklifts be- tween departments to employees represented by Teamsters. Rubber Workers also contends that the status quo should be maintained. However, Rubber Workers asserts that the Employer's description of the status quo is erroneous because standup forklift work is not currently assigned on an intra - versus inter-departmental basis. According to Rubber Workers, some of the employees it represents trans- port material between departments with a standup forklift, but some Teamsters-represented employees running equipment in the Banbury never leave that department. Rubber Workers urges the Board to issue an order that the assignments of the work in dispute stay as they are . However, Rubber Work- ers says, if the Board does issue an order assigning the work in dispute on an inter- versus intrade- partmental basis, the order should be completely consistent, and those jobs currently performed by the Teamsters-represented employees which do not require the employees to leave their own depart- ments should be given to employees represented by Rubber Workers. Teamsters also take issue with the Employer's proposed order. It contends that employees repre- sented by Teamsters have historically performed all forklift work in the millroom, Banbury, and main- tenance departments of the plant and that work in these departments should continue to belong to ' We find that included in the srtdown forklift work that is not in dis- pute as the transportation of material between departments 215 and 221 that the Employer assigned to employees represented by Teamsters in 1986. 799 Teamsters-represented employees regardless of the type of forklift used to perform it. Teamsters also notes that a standup forklift is used on occasion in the receiving department, and it asserts that use of this forklift has been recognized as "Teamsters work." Finally, Teamsters contends that every- thing transported between departments should be transported by employees represented by Team- sters, regardless of what type of forklift is used. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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-on method for the voluntary resolution of the dispute. As noted above, Teamsters Chief Steward New- comer told the Employer that they had to resolve the work dispute quickly because "the guys are getting real anxious out here, and I don't know what I can do to stop them . I don't know how much longer we'll hold this together" and Team- sters International Representative Goodnight told the Employer "there are some times when I cannot control the anger of my people , especially when they feel very strongly about the actions going on." These statements provided reasonable cause to believe Section 8(b)(4)(D) has been violated.2 At the hearing, Rubber Workers motioned to ad- journ the proceedings pending resolution of the dispute. Rubber Workers maintained that it and Teamsters are affiliates of the AFL-CIO and the AFL-CIO's constitution contains an internal proce- dure for resolving work jurisdictional disputes. However, the Employer stated that it was unwill- ing to be bound by this procedure on the grounds that it could not participate in the proceedings, and Rubber Workers' motion was denied. We find that there is no agreed-on 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. 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 2 Compare Carpenters Local 1005 (Stebbins Engineering), 223 NLRB 1225 (1976) (Board found union business representative 's statement that he "couldn 't be held responsible for ... whether there'd be pickets or no pickets" supported finding of reasonable cause to believe the Act had been violated). 800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 the dispute. 1. Certification and collective-bargaining agreements Employer Director of Human Resources Wil- helm testified that he did not know whether either Teamsters or Rubber Workers had ever been for- mally certified by the Board as the bargaining agent of the Employer's employees. There is no other evidence in the record regarding certifica- tion. With regard to collective-bargaining agreements, article I of the Employer's current agreement with Teamsters provides that the Employer recognizes Teamsters as the representative of employees "per- forming the duties of jeep drivers ,"s while article I of the Employer's contract with Rubber Workers specifically excludes "jeep drivers" from the em- ployees represented by Rubber Workers. However, article 4, section 401(a) of the most recent Team- sters agreement provides that "Teamsters Local 543 employees will continue to perform the jobs they currently perform. There will be no realign- ment of Teamsters and United Rubber Workers duties for the duration of this contract, under the present structural setup." Under the present setup, employees represented by Rubber Workers operate the eight standup forklifts used in the production area.4 We find that the factor of collective-bargain- ing agreements favors awarding the work in dis- pute to employees represented by Rubber Workers. 2. Employer preference and past practice As noted above, the Employer's past practice has been to assign the standup forklift work involv- ing the eight standup forklifts in the production area to employees represented by the Rubber Workers. In its brief, the Employer states that its preference is for an award preserving the status quo. However, the record shows that the Employ- er's description of the status quo, that employees represented by Rubber Workers use standup fork- lifts within departments and employees represented by Teamsters use sitdown forklifts between depart- ments, is not accurate . The record establishes the status quo in a different fashion , i.e., that some em- ployees represented by Rubber Workers use standup forklifts between departments , that some employees represented by Teamsters use sitdown forklifts entirely within certain departments, and one Teamsters-represented employee uses a standup forklift within the receiving department. We find that the factor of the Employer's past practice favors awarding the work in dispute to employees represented by Rubber Workers. Because evidence of Employer preference, in light of the Employer's description of the status quo, is somewhat ambigu- ous, we find that this factor does not favor an award of the work to employees represented by either Union. 3. Economy and efficiency of operations Human Resources Director Wilhelm and Rubber Workers President Rasmussen testified that Rubber Workers-represented employees who use standup forklifts do not run them full time, 5. but use them ancillary to their production activities . Consequent- ly, Wilhelm testified, awarding forklift work to em- ployees represented by Teamsters would necessi- tate bringing in Teamsters-represented employees in addition to the production employees just to run the forklifts . At the end of the hearing Wilhelm, consistent with the Employer's position of neutrali- ty at the hearing, testified that there was no benefit in efficiency from awarding standup forklift work to employees represented by one Union or the other, and also said that awarding such work to employees represented by Teamsters would not ne- cessitate hiring additional employees. Notwith- standing these latter comments , we find that the record establishes that awarding standup forklift work to employees represented by Teamsters would require bringing such employees into the production area just to run forklifts that are now operated by Rubber Workers-represented employ- ees ancillary to their production duties. We there- fore find that the factors of efficiency and economy of operations favor awarding the work in dispute to employees represented by Rubber Workers. 4. Relative skills Human Resources Director Wilhelm testified that the skills to operate the sitdown and standup forklifts are "readily transferable," and that OSHA training is required on both pieces of equipment. Thus, we find that the factor of relative skills does 5 In contrast, Teamsters Steward Newcomer testified that a couple of The record shows that "jeep" is another term for "forklift " employees represented by Rubber Workers operate standup forklifts full ° As noted above, we find that Rubber Workers does not claim the time. We find, based on a preponderance of the evidence, that Rubber standup forklift used on occasion in the receiving department by Team - Workers-represented employees do not operate standup forklifts on a full- sters-represented employees time basis TEAMSTERS LOCAL 543 (GENCORP AUTOMOTIVE) 801 not favor an exclusive award of the work in dis- pute to employees represented by either Union. Conclusions After considering all the relevant factors, we conclude, based on the facts in the record before us, that the employees represented by Rubber Workers are entitled to perform the work in dis- pute, in a manner consistent with past practice. We reach this conclusion relying on the factors of col- lective-bargaining agreements, employer past prac- tice, and economy and efficiency of operations. In making this determination, we are awarding the work to employees represented by Rubber Work- ers, not to the Union or its members. The determi- nation 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 GenCorp, Inc. d/b/a GenCorp Automotive who are represented by United Rubber, Cork, Linoleum & Plastic Workers of America, Local 626 are entitled to operate the eight standup forklifts used in the production area of the Employer's Wabash, Indiana facility, in a manner consistent with past practice. 2. General Teamsters and Warehousemen, Local 543, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force GenCorp, Inc. d/b/a GenCorp Automotive to assign the dis- puted work in a manner inconsistent with this de- termination. 3. Within 10 days from this date General Team- sters and Warehousemen, Local 543, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America , AFL-CIO shall notify the Regional Director for Region 25 in writing whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with the determination.