Teamsters Local Union 896 (Anheuser-Busch)

TEAMSTERS LOCAL UNION 896 (ANHEUSER-BUSCH) Teamsters Local 896 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO and Anheuser-Busch, Inc. Case 31-CB-6633 September 29, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On a charge filed on May 9, 1986, by Anheuser- Busch, Inc. (Anheuser-Busch or the Employer), the General Counsel of the National Labor Relations Board issued a complaint on August 14, 1986, against the Respondent, Teamsters Local Union 896 (the Respondent, the Union, or Local 896). The complaint alleges that the Respondent has en- gaged in certain unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the National Labor Relations Act. On June 21, 1987, the parties and the General Counsel filed a joint motion to transfer the instant proceeding to the Board without benefit of a hear- ing before an administrative law judge , and they submitted a proposed record consisting of the formal papers and the parties ' stipulation of facts with certain attachments. On August 3, 1987, the Board issued an order granting the motion, approv- ing the stipulation, and transferring the proceeding to the Board. The General Counsel, the Employer, and the Respondent filed briefs. The National Labor Relations Board has delegat- ed its authority in this matter to a three-member panel. On the entire record in this case, the Board makes the following findings. 1. JURISDICTION Anheuser-Busch is a Missouri corporation with an office and place of business located in Van Nuys, California, where it is engaged in the manu- facture, sale, and distribution of malt beverages. In the course and conduct of Anheuser -Busch's busi- ness operations in Van Nuys, it annually purchases and receives goods valued in excess of $50,000 di- rectly from points outside the State of California. Accordingly, we find that Anheuser-Busch is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. We also find that the Respondent is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES 1025 A. Issue The issue presented is whether the Respondent violated Section 8(b)(1)(A) and (2) of the Act by invoking a provision of the applicable collective- bargaining agreement giving permanent employees laid off by other employers who have contracts with the Respondent a preferential seniority right to work for the Employer instead of temporary employees whose job seniority with the Employer would otherwise have entitled them to work. B. Facts A collective-bargaining relationship has existed between the Employer and the Teamsters at least since 1956. Until 1970, California breweries bar- gained with the Teamsters on a multiemployer basis through the Labor Committee of the Califor- nia Brewers Association (the Association). The Teamsters locals were represented in those negotia- tions by the Teamsters Brewery and Soft Drink Workers Joint Board of California (the Joint Board). In 1970, prior to the commencement of negotia- tions, Anheuser-Busch withdrew bargaining au- thority from the Association but signed the final negotiated agreement as a separate and independent party. Since 1970, Anheuser-Busch has participated in national negotiations with Teamsters' representa- tives on national issues while negotiations concern- ing local issues have taken place between Employ- er's representatives from individual breweries and representatives from the Teamsters' locals in- volved. Anheuser-Busch has not authorized any entity to bargain on its behalf on a multiemployer basis with regard to its Van Nuys brewery. After Anheuser-Busch withdrew from the multi- employer bargaining unit, a number of other Cali- fornia breweries also withdrew. As a result of brewery closures and the withdrawals from the bargaining unit, the Association has not engaged in bargaining on behalf of any brewery for a number of years. The Teamsters Joint Board no longer exists. Teamsters Local 896 now represents sepa- rate units of Anheuser-Busch, Miller Brewing Company, and Stroh Brewing Company employees under separate collective-bargaining agreements. At the time of the parties' stipulation, those compa- nies and Anchor Steam had the only operating breweries in California. Anchor Steam employees are not represented by Local 896. The relevant sections of the Anheuser-Busch col- lective-bargaining agreements with the Teamsters have remained the same from the 1956 agreement through the 1985-1988 agreement. Section 4 relates 296 NLRB No. 132 1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to employee seniority, and section 5 describes ex- clusive hiring hall procedures. According to the provisions of section 4 of the parties' agreement, the Anheuser-Busch bargaining unit includes separate classifications for permanent brewers, permanent bottlers, permanent storeroom attendants, temporary bottlers, temporary store- room attendants, and new employees. A permanent employee is any employee who has completed 45 weeks (or 1600 hours for bottlers) of employment "under this Agreement in one classification in one calendar year as an employee of the brewing indus- try in this State." A temporary employee is any person other than a permanent employee or bottler who has worked for at least 60-working days under the above-quoted standards. A temporary bottler is any bottler other than a permanent bottler. A new employee is any employee who has not met the time requirements for permanent or temporary status. All permanent employees are senior to all temporary employees in the classification , and all temporary employees are senior to all new employ- ees. Pursuant to section 4(c) of the contract, An- heuser-Busch maintains plant seniority lists for the unit classifications. Plant seniority dates from the first day of employment at Anheuser-Busch as a permanent, temporary, or new employee in the rel- evant classification. When the plant seniority of several employees runs from the same day, relative seniority is determined by "length of service in the industry in California." On Thursday of every week, Anheuser-Busch determines its labor needs for the following week and then notifies Local 896 of those needs in accord with the exclusive hiring hall provisions of section 5 of the contract . If additional workers are needed, Local 896 first refers permanent employees according to their contractual plant seniority. After the permanent employee list is exhausted the Union generally refers temporary employees in order of contractual plant seniority . If the work force is to be reduced, layoffs are based on the same plant se- niority standards.' Section 4(b) provides the following exception to plant seniority: A permanent employee who has been laid off and not discharged by an Individual Employer in the exercise of management's function may be dispatched-if such employee so desires- for work in any establishment of any Individ- ual Employer in the local area of his last em- I Sec 5(e) of the contract specifically states that the Union will not discriminate on the basis of union membership or activity "in carrying ployment and shall have the right to replace- as of Monday-the temporary employee or new employee with the lowest plant seniority therein employed regardless of anything in this Agreement to the contrary. The Individual Employer need not employ such permanent employee unless he is competent to fill the po- sition held by the temporary or new employee who is to be replaced. In accord with section 4(b), if there are perma- nent brewers, bottlers, or storeroom attendants who have been laid off by another local area brew- ery that has a contract with the Union (that is, Miller or Stroh) they are dispatched to Anheuser- Busch instead of the least senior Anheuser-Busch temporary or new employee who would otherwise be scheduled to work. Even if Anheuser-Busch does not require any additional employees, a per- manent employee who has been laid off from Miller or Stroh will be dispatched from the Union to replace or "bump" the least senior temporary or new employee of Anheuser-Busch who otherwise would have worked. This practice has been called the "permanent employees' bumping right." The permanent employee "bump-ins" have no seniority at Anheuser-Busch at the time of their dispatch and are not employees of Anheuser-Busch prior to their dispatch. 2 In the time period of November 9, 1985 , to April 15, 1987, the Union notified Anheuser-Busch that it was dispatching and did dispatch 20 permanent em- ployees laid off from Miller or Stroh . In each in- stance these "bump-ins" displaced temporary em- ployees who would have been scheduled to work. All displaced temporary employees were union members at the time of the bumping. Once these permanent employee "bump-ins" begin working at Anheuser-Busch they are placed on the relevant plant seniority list and thereafter are treated in the same manner as other permanent employees of An- heuser-Busch, consistent with their seniority. The manager of employee relations for An- heuser-Busch has previously advised the Teamsters' representative that Anheuser-Busch believed the permanent employees' bumping right was unlawful and that Anheuser-Busch would not accept "bump- ins." In 1979, picketing of Anheuser-Busch com- menced immediately and ceased only when the permanent employee "bump-ins" were accepted. In late 1981 or early 1982, the union representatives told the Employer that the Union would shut down the brewery if the Employer refused to employ the permanent employee "bump -ins." In out the provisions of this Agreement with respect to seniority and hiring x Provisions identical to sec 4 (b) are contained in Local 896's separate and the registration and dispatch of prospective employees " contracts with Miller and Stroh TEAMSTERS LOCAL 896 (ANHEUSER-BUSCH) 1027 1985, the Union's representatives told the Employ- er's manager for employee relations during con- tract negotiations that the permanent employees' bumping right was a strike issue. Anheuser-Busch was a party to a 1978 arbitra- tion concerning its asserted right to refuse to hire permanent employees dispatched by the Union who were laid off from a closed signatory brewery in northern California. The arbitrator did not reach the issue asserted by Anheuser -Busch that any "bumping" based on service at a union brewery of a different employer in the absence of a multiem- ployer bargaining unit was unlawful. Instead, the arbitrator decided that Anheuser-Busch had not violated the contract by refusing referrals pursuant to its "full right of selection " in contract section 16. Two 1981 arbitration decisions involving the employment of Larry Luera likewise did not ad- dress the legality of the permanent employees' bumping right. In accordance with provisions of collective-bar- gaining agreements negotiated with the Teamsters since 1970, including section 52 of the current con- tract, Anheuser-Busch makes payments to the sup- plemental unemployment benefit fund (S.U.B. fund) and industry vacation fund . These funds were es- tablished when Anheuser-Busch was still a multi- employer bargaining unit member . Payments to these funds are also made by Miller and Stroh. The S.U.B. fund provides supplemental employment benefits to laid-off permanent employees of all three breweries . In addition, under certain circum- stances, vacation entitlement is based on aggregat- ed periods of work at all three breweries. The in- dustry vacation fund reimburses an employer for vacation payments that are attributable to periods of work performed by an employee for the other breweries. C. Contentions of the Parties The General Counsel and the Employer contend that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by applying section 4(b) of the parties' collective-bargaining agreement through its exclusive hiring hall dispatches, thereby causing the Employer to refuse to employ certain of its temporary employees based on preferences given to nonunit permanent employees laid off by other employers who have contracts with the Respond- ent. The Employer and the General Counsel argue that because Anheuser-Busch is not a member of a multiemployer bargaining unit, the bumping right preference is unlawfully based on union consider- ations. The General Counsel further asserts that the allegations of the complaint are not time-barred by Section 10(b) of the Act because the challenged unlawful conduct by Local 896 of giving dispatch preferences to 20 permanent employees occurred within the 6-month 10(b) period. The Respondent contends that the complaint fails to state any violation of employees' Section 7 rights because all the affected employees-both the permanent employee "bump-ins" and the employ- ees whom they "bump"-are union members or union represented. The application of the bumping provision in the contract, the Respondent argues, neither encourages unionism nor penalizes employ- ees who exercise the right under Section 7 of the Act to refrain from union activities . The Respond- ent further asserts that a multiemployer bargaining relationship including Anheuser-Busch still exists among Anheuser-Busch, Miller, and Stroh, at least for preserving earned seniority and for other pur- poses such as the industry vacation and S.U.B. funds. The Respondent also argues that the 10(b) period started when the contract containing disput- ed section 4(b) was executed and lapsed prior to the filing of the unfair labor practice charge in this case so that no further attack on the negotiated contract seniority preference can be made. Finally, the Respondent contends that the Employer is en- gaging in forum shopping and that the Board should adhere to its decision in Teamsters (An- heuser-Busch), 277 NLRB 1097 (1985), holding that an arbitration award upholding a similar bumping preference was "not clearly repugnant to the prin- ciples and policies of the Act." D. Discussion and Conclusions Preliminarily, we address the Respondent's con- tention that the complaint is procedurally 'time- barred by Section 10(b) because the parties execut- ed the 1985- 1988 collective-bargaining agreement more than 6 months before the filing of an unfair labor practice charge here. As correctly stated by the General Counsel, the complaint does not chal- lenge the execution of the contract. It alleges only unlawful enforcement of the contract's permanent employees' bumping rights provision in the 6- month period prior to the filing of the charge. Consequently, Section 10(b) does not bar litigation of the issues presented. See, e.g., Auto Workers Local 1161 (Pfaudler Co.), 271 NLRB 1411, 1416 (1984). We also find no merit in the Respondent's proce- dural defense that consideration of the merits of the unfair labor practice issue here should be con- trolled by the Board's deferral to an arbitrator's award in Teamsters (Anheuser-Busch), supra. Al- though the bumping issue presented in that case was similar to the one presented here, the arbitra- tion involved a different collective-bargaining 1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD agreement, contract provision, employee unit, and Teamsters' local. There is no basis under either the principles of res judicata and collateral estoppel or of Spielberg Mfg. Co., 112 NLRB 1080 (1955), for precluding litigation here because of that earlier case.3 Furthermore, it is undisputed that none of the three arbitration awards involving interpreta- tion of the bumping rights in predecessors to the current contract between Anheuser -Busch and the Teamsters' local representing Van Nuys plant em- ployees considered the validity of those rights under the Act.4 We turn next to the merits of the complaint's al- legations that according the bumping rights to per- manent employees laid off from Miller and Stroh is unlawful. For the reasons set forth below, we find that the stipulated record does not establish that the contractual seniority bumping preference, on its face or as applied , violates Section 8(b)(1)(A) and (2) of the Act. First, there is no evidence that the continuation of the preference in the more than 15 years since Anheuser-Busch withdrew from the multiemployer bargaining unit has actually resulted in any discrimination against any employee or hiring hall applicant on the basis of nonunion or nonunit status. In the absence of such evidence, it cannot be presumed from the contractual language itself, which is amenable to a lawful interpretation, that the Respondent would act unlawfully by refus- ing to dispatch as a permanent employee "bump- in" an individual claiming credit for employment with a California brewer , such as Anchor Steam, whose employees are not represented by the Union.5 Second, the circumstances and the back- ground of this case present an unusual justification for the bumping practice in that the preference is but one of three seniority -based contractual ves- tiges of the multiemployer relationship voluntarily continued by Anheuser-Busch and other surviving employer-members after their withdrawal from the formal multiemployer unit. The contractual bumping preference clearly does not discriminate on the basis of union membership. It does entail a credit for work experience with employers having a contract with the Respondent, but the preference challenged here differs signifi- a As indicated below, however, we find that the Board's reasoning in deciding to defer in that case is relevant to our consideration of the sub- stantive merits of the allegation that the bumping preference here is un- lawful. * See Spielberg Mfg. Ca, supra, and Olin Corp, 268 NLRB 573 (1984) * The result reached here might* well be different if there were evi- dence that nonunion or nonunit permanent employees actually had been denied the seniority preference . Even absent specific examples of actual discrimination, the Board will, of course , find unlawful the maintenance of a contractual referral preference that is unlawful on its face E g., Sea- farers' Intl. Union (American Barge Lines), 244 NLRB 641, 642 (1979). As further stated in this analysis, however, the bumping preference here is not clearly unlawful on its face cantly from those preferences based on prior union signatory employment found unlawful by the Board in cases cited by the General Counsel and the Charging Party.6 These critical differences relate specifically to the statutory issues of whether there is discrimination in the preference that ex- pressly relates to union considerations and if so whether and to what extent it is discrimination that encourages union representation. Here, in contrast to the cited cases, the perma- nent employee bumping right does not prevent a job applicant "from obtaining initial employment unless he has had prior employment at which he was represented by the Union ,"7 does not create a general referral class preference based exclusively on work experience under union signatory and union security conditions,8 does not preclude anyone from achieving permanent employee status, and does not permit one permanent employee to bump another permanent employee on the basis of prior nonunit experience . Thus, the contract provi- sion at issue is arguably skill based. Furthermore, the bumping right cannot be secured or avoided merely by joining the Union or by working for em- ployers who have contracts with the Union. Rather, individuals claiming the right must also have worked a specific length of time to attain per- manent employee status and thereafter have been laid off by a signatory employer .9 Finally, the lan- guage of section 4(a)(1) of the contract ambiguous- ly defines a permanent employee as one who has worked 45 weeks "under this Agreement in one classification in one calendar year as an employee of the brewing industry in this State." The italicized phrase is capable of an interpretation, in the ab- sence of actual practice to the contrary and in light of the nondiscrimination clause in the contract,10 that the parties may give credit towards permanent 6 Seafarers, supra, Teamsters Local 83 (AGC), 243 NLRB 328 (1979), New York Typographical Union 6 (Royal Composing Room ), 242 NLRB 378 (1979), enf denied in relevant part 632 F .2d 171 (2d Cir. 1980); Paint- ers Local 77 (Colorite), 222 NLRB 607 (1976); Directors Guild of America, 198 NLRB 707 (1972), enfd . 494 F.2d 692 (9th Cir. 1974); iA7S& Local 659 (MPO-TV), 197 NLRB 1187 (1972), enfd. 477 F 2d 450 (D.C. Cir. 1973), cert. denied 414 U.S. 1157 (1974) 7 IATSE, Local 659, supra at 1189, see also Directors Guild, supra. 8 See Seafarer , supra, and Painters Local 77, supra 8 It is apparent from contract sec. 5 (c)(2) that the right to bump tempo- rary and new employees with plant seniority does not extend to unem- ployed registrants for hiring hall referral who attained permanent em- ployee status with a signatory employer but left their prior employment for reasons other than layoff 10 Contractual nondiscrimination clauses will not save an otherwise fa- cially discriminatory referral provision . E g., Teamsters Local 83, supra at 333-334. Here, however, the hiring hall nondiscrimination clauses are rel- evant factors rebutting the inference of discriminatory intent in a contrac- tual preference that is not facially invalid See Teamsters Local 357 (Las Angeles-Seattle Motor Express) v NLRB, 365 U S 667 (1961) TEAMSTERS LOCAL 896 (ANHEUSER-BUSCH) employee status to work performed for nonsigna- tory California brewers."" Admittedly, the provision's limiting of the bump- ing right to permanent employees who have been laid off by signatory employers appears to discrimi- nate on its face against brewery workers whose last employer did not have a contract with the Union, but it also discriminates against permanent employ- ees who left their prior employment with a signato- ry employer for reasons other than layoff. To the extent that the union signatory layoff requirement discriminates on the basis of union considerations, it is highly speculative to suggest that such discrim- ination would encourage brewery workers to re- strict their work experience to union signatories. In any event, as further discussed below, multiem- ployer considerations carrying over from the de- funct multiemployer unit fully justify this inciden- tal, potentially discriminatory feature. Thus, the challenged seniority preference is ca- pable of an interpretation that it is a lawful seniori- ty-based contractual right. In fact, the Board has held that an arbitral determination upholding a nearly identical preference in a contract between Anheuser-Busch and another Teamsters' local was not clearly repugnant to the Act because the arbi- trator found that the preference addressed the se- niority rights an employee acquired after working in a represented unit and only individuals already employed were affected. Teamsters (Anheuser- Busch), 277 NLRB 1097 (1985). If the bumping preference were facially discriminatory, deferral would not have been appropriate. Recently the Board has held that if it found that a contract provision, alleged to be violative of Sec- tion 8(b)(1)(A) and (2), treated employees different- ly on the basis of union status or activity and that this differential treatment encouraged union mem- bership, it would then determine whether the justi- fication for the differential treatment was permissi- I I Member Cracraft finds it unnecessary to rely on this possible inter- pretation of the contract in agreeing that the Respondent did not violate Sec 8(b)(1)(A) and (2) in enforcing the contract clause. 1029 ble under the Act.12 Here, even if the elements of discrimination and encouragement of union mem- bership were present, the Respondent has come forward with a legitimate justification; specifically, this preference has been voluntarily carried over by the parties from the multiemployer bargaining unit. Although this unit has long since ceased to exist for contract bargaining purposes, the former employer members of the multiemployer bargain- ing association have each agreed to retain identical and reciprocal multiemployer seniority, vacation, and supplemental unemployment benefit provisions in their separate contracts with the Respondent. In our view, these provisions originated during indus- trywide collective bargaining as a means of pre- serving seniority-based benefits obtained in the California brewing industry and of providing work opportunities for a pool of experienced brewery workers. It is not apparent that the demise of a formal multiemployer unit or the mere passage of time since that demise has vitiated the original pur- pose of the bumping right.19 Accordingly, and in the absence of any discriminatory application of the agreement, there is no basis for inferring that the seniority preference was established or exists for an improper discriminatory motive.14 Based on the foregoing, the General Counsel has failed to prove that the Respondent violated Sec- tion 8(b)(1)(A) and (2) of the Act by enforcing sec- tion 4(b) of its collective-bargaining agreement with Anheuser-Busch. Accordingly, the complaint should be dismissed. ORDER The complaint is dismissed. 12 Manilowac Engineering Co., 291 NLRB 915, 917 ( 1988). 13 In addition to the preservation of seniority, it seems possible that the bumping right serves the purpose of a cost containment alternative for employers by providing employment to laid-off permanent employees who might otherwise qualify for disbursements from the multiemployer supplemental unemployment benefit fund. 14 See NLRB Y. New York Typographical Union 6, 632 F.2d 171, 181- 183 (2d Cir 1981), and Miller Brewing Ca v. Brewery Workers, 739 F.2d 1159, 1165-1167 (7th Or. 1984)