Teamsters Brewery & Soft Drink Workers Local Union 896

1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Teamsters Brewery & Soft Drink Workers Local Union 896, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO and Miller Brewing Company . Case 21-CB- 9935 September 29, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY II. THE UNFAIR LABOR PRACTICES 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. Upon a charge filed June 16, 1987, by Miller Brewing Company (Miller or the Employer), the General Counsel of the National Labor Relations Board issued a complaint on July 16, 1987, against the Respondent, Teamsters Local 896 (the Re- spondent, Union, or Local 896). The complaint al- leges that the Respondent has engaged in certain unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and (2) and Sec- tion 2(6) and (7) of the National Labor Relations Act. On September 20, 1988, the parties and the Gen- eral Counsel filed a joint motion to transfer the in- stant proceeding to the Board without benefit of a hearing 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 October 5, 1988, 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. I. JURISDICTION Miller Brewing Company is a Wisconsin corpo- ration with an office and place of business located in Irwindale, California, where it is engaged in the manufacture and sale of beer and malt beverages. In the course and conduct of the Employer's busi- ness operations in Irwindale, 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 Miller Brewing Compa- ny is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. We also find that the Respondent is a labor organiza- tion within the meaning of Section 2(5) of the Act. B. Facts From 1966 until 1980, Miller was a member of the California Brewers Association (Association). During that period, the labor committee of the As- sociation negotiated a series of collective-bargain- ing agreements with Teamsters Brewery and Soft Drink Workers Joint Board of California (Joint Board), which bargained on behalf of a number of Teamsters' locals including those representing all of Miller's brewers, checkers, and bottlers. In 1975, prior to the commencement of 1976 negotiations between the Association and the Joint Board, Miller withdrew from the Association the authority to bargain collectively on its behalf. Since that time, Miller has not authorized any entity to bar- gain on its behalf at the Irwindale facility. As a result of brewery closures and withdrawals from the bargaining unit, the Association has not en- gaged in bargaining on behalf of any brewery for a number of years . The Teamsters Joint Board no longer exists. Teamsters Local 896 now represents separate units of former Association employer- members Anheuser-Busch, Miller Brewing Compa- ny, and Stroh Brewing Company employees under separate collective-bargaining agreements." On or about June 1 , 1985, Local 896 and Miller entered into a collective-bargaining agreement ef- fective from that date to May 31 , 1988. Section 4 of that contract relates to employee seniority, and section 5 describes exclusive hiring hall procedures. According to the provisions of section 4 of the parties' agreement, the Miller bargaining unit in- cludes separate classifications for permanent brew- ers, permanent bottlers, permanent storeroom at- tendants, temporary brewers, temporary bottlers, temporary storeroom attendants, and new employ- ees. A permanent employee is any employee who has completed 45 weeks (or 1600 hours for I At the time of the stipulation of facts executed in Teamsters Local 896 (Anheuser-Busch), 296 NLRB No 132, a companion case that we decided this same day, Anchor Steam was the only brewery operating in Califor- nia whose employees were not represented by Local 896 296 NLRB No. 133 TEAMSTERS LOCAL 896 (MILLER BREWING) bottlers) of employment "under this Agreement in one classification in calendar year as an employee of the brewing industry of 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 per- manent bottler. A new employee is any employee who has not met the time requirements for perma- nent or temporary status . For purposes of seniority, the brewers, bottlers, and storeroom attendants are grouped into four classifications : permanent em- ployees; temporary employees (other than bottlers); temporary bottlers; and new employees. All perma- nent employees are senior to all temporary employ- ees in the classification, and all temporary employ- ees are senior to all new employees. Pursuant to section 4(c) of the contract, Miller maintains plant seniority lists for the unit classifica- tions. Plant seniority dates from the first day of employment at Miller as a permanent, temporary, or new employee in the relevant classification. When the plant seniority of several employees runs from the same day, their relative seniority is deter- mined by "length of service in the industry in Cali- fornia." On Thursday of every week, Miller determines its labor needs for the following week and then no- tifies 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 perma- nent employee list is exhausted, Local 896 general- ly refers temporary employees in order of contrac- tual plant seniority. If the work force is to be re- duced, layoffs are based on the same plant seniority standards.2 Section 4(b) provides the following exception to referral by 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- 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 Company need not employ such permanent employee 2 Sec. 5(e) of the contract specifically states that the Union will not discriminate on the basis of union membership or activity "in carrying out the provisions of this Agreement with respect to seniority and hiring and the registration and dispatch of prospective employees " 1031 unless he is competent to fill the position held by the temporary employee 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, An- heuser-Busch or Stroh), they are dispatched to Miller instead of the least senior Miller temporary or new employee who would otherwise be sched- uled to work. Even if Miller does not require any additional employees, a permanent employee who has been laid off from Anheuser -Busch or Stroh will be dispatched from the Union to replace or "bump" the least senior temporary or new employ- ee of Miller who otherwise would have worked. This practice has been called the "permanent em- ployees' bumping right." The permanent employee "bump-ins" have no seniority at Miller at the time of their dispatch and are not employees of Miller prior to their dispatch. Upon commencement of employment, such permanent employee "bump-ins" have been accorded the status of permanent em- ployees by Miller. On or about February 2, 1987 , Local 896 dis- patched Norm Berseth to Miller pursuant to sec- tion 4(b). Berseth had previously been employed by Anheuser-Busch as a permanent bottler at its brewery in Van Nuys, California. Berseth displaced union member Jaime Centano, a temporary bottler who had accumulated plant seniority and would have been scheduled to work on February 2. Ber- seth had no accumulated seniority at Miller at the time of his dispatch, but once he began working at Miller he was placed at the bottom of the relevant plant seniority list and thereafter treated the same as other permanent employees. Provisions identical to section 4(b) were included in every contract negotiated between the Joint Board and the Association dating back to 1962 and have been included in every contract negotiated by Local 896 or its predecessors with Miller, An- heuser-Busch, and Stroh since the respective with- drawal of each brewery employer from the multi- employer Association. Since its withdrawal from the Association in 1976, the Employer has never filed a grievance regarding the referral and hiring practices set forth in section 4(b) of the agree- ments. Prior to June 16, 1987, Miller had never re- fused to accept for employment permanent employ- ee "bump-ins" who were dispatched by the Union and who were previously employed as permanent employees by Anheuser-Busch or Stroh. By virtue of provisions of collective-bargaining agreements negotiated with the Teamsters since 1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1975, including section 52 of the current contract, Miller makes payments to the supplemental unem- ployment benefit fund (S.U.B. fund) and industry vacation fund, now merged into a single fund. These funds were established when Miller was still a multiemployer bargaining unit member. Payments to these funds are also made by Anheuser-Busch and Stroh. The S.U.B. fund provides supplemental employment benefits to laid off permanent employ- ees of all three breweries. In addition, under cer- tain circumstances, vacation entitlement is based on aggregated periods of work at all three breweries. The industry vacation fund reimburses an employer for vacation payments that are attributable to peri- ods 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 and 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 Miller is not a member of a multiem- ployer bargaining unit, the bumping right prefer- ence is unlawfully based on union considerations. The General Counsel further asserts that the alle- gations of the complaint are not time-barred by Section 10(b) of the Act both because mere mainte- nance of a facially unlawful contractual provision within the 6-month 10(b) period makes it the proper subject of an unfair labor practice charge and because Local 896 dispatched Berseth pursuant to the allegedly unlawful contractual preference within the period. The Respondent contends that the complaint fails to state any violation of employees' Section 7 rights because all of the affected employees-both the permanent employee "bump-ins" and the em- ployees whom they "bump"-are union members or union represented. The application of the bump- ing provision in the contract allegedly neither en- courages unionism nor penalizes employees who exercise the right under Section 7 of the Act to re- frain from union activities. The Respondent further asserts that a multiemployer bargaining relationship still exists among Miller, Anheuser-Busch, and Stroh, at least for preserving earned seniority through the bump-in preference, industry vacation, and S.U.B. funds. The Respondent also argues that the 10(b) period started when the contract contain- ing disputed 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 Board should adhere to its decision in Teamsters (Anheuser-Busch), 277 NLRB 1097 (1985), holding that an arbitration award upholding a similar bumping preference was "not clearly repugnant to the principles 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. We reject the Respond- ent's contention. The complaint does not challenge the execution of the contract. It alleges only un- lawful application of the contract's permanent em- ployee bumping rights provision in the 6-month period prior to the filing of the charge. Conse- quently, 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).3 In a companion case, Teamsters Local 896 (An- heuser-Busch), 296 NLRB 1025 (1989), the parties advanced essentially the same contentions as in the instant matter. Based on the stipulated record in that case, we have concluded that the General Counsel failed to establish that the identical con- tractual seniority bumping preference, on its face4 or as applied, violates Section 8(b)(1)(A) and (2) of the Act. In making this conclusion, we found that: (1) there was no evidence that continuation of the preference after dissolution of the multiemployer Association has actually resulted in any discrimina- tion on the basis of nonunion or nonunit status; (2) the challenged seniority preference is capable of an interpretation that it is a lawful seniority-based con- tractual right, and the Board has in fact recognized the reasonableness of such an interpretation in de- ferring to the arbitration award in Teamsters (An- heuser-Busch), supra; and (3) even assuming that some element of union-based discrimination and en- couragement of union membership were present in the bumping preference, a permissible justification S The Respondent also raises deferral as an affirmative defense making essentially the same arguments as in the companion Anheuser-Busch case We reject this defense for the reasons stated in that case. 4 As in Teamsters Local 896 (Anheuser-Busch), supra, Member Cracraft finds it unnecessary to rely on her colleagues' possible interpretation of the contract regarding giving credit towards permanent employee status for work performed for nonsignatory California brewers in agreeing that the Respondent did not violate Sec 8(b)(1)(A) and (2) in enforcing the contract clause TEAMSTERS LOCAL 896 (MILLER BREWING) existed for its maintenance because it was one of three seniority-based contractual vestiges of the multiemployer bargaining relationship that was vol- untarily continued by Miller and other surviving employer-members to preserve their employees' se- niority-based benefits and to provide work oppor- tunities for a pool of experienced brewery workers after dissolution of the formal multiemployer unit. The stipulated facts here are not materially dif- ferent from the stipulated facts in that companion 1033 case. Accordingly, for the reasons set forth in Teamsters Local 896 (Anheuser-Busch), supra, we conclude that the General Counsel has failed to prove that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by enforcing section 4(b) of its collective-bargaining agreement with Miller. We will therefore dismiss the complaint. ORDER The complaint is dismissed.