Bakery Workers Local 334 (Interstate Brands Corp.)

National Labor Relations Board - Board Decisions

Aug 17, 2001

334 N.L.R.B. 1161 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1161
Bakery, Confectionery, Tobacco and Grain Millers
International Union, Local 334, AFL–CIO and
Interstate Brands Corporation and Teamsters
Union Local 340, a/w International Brotherhood
of Teamsters, AFL–CIO. Case 1–CD–1017
August 17, 2001
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE AND WALSH
The charge in this Section 10(k) proceeding was filed
January 31, 2001, by Interstate Brands Corporation (In-
terstate or the Employer), alleging that the Respondent,
Bakery, Confectionery, Tobacco and Grain Millers Inter-
national Union, Local 334, AFL–CIO (BCT Local 334),
violated Section 8(b)(4)(D) of the National Labor Rela-
tions Act by engaging in proscribed activity with an ob-
ject of forcing the Employer not to reassign certain work
from employees represented by BCT Local 334 to em-
ployees represented by Teamsters Union Local 340, af-
filiated with International Brotherhood of Teamsters,
AFL–CIO (Teamsters Local 340). The hearing was held
on March 14 and 15, 2001, before Hearing Officer Gene
Switzer.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire re-
cord, the Board makes the following findings.
I. JURISDICTION
The Employer is a Delaware corporation engaged in
the operation of a bakery in Biddeford, Maine. During
the 12 months preceding the hearing, it purchased and
received goods valued in excess of $50,000 that were
shipped directly from points located outside the State of
Maine. 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. We further find, based
on the stipulation of the parties, that BCT Local 334 and
Teamsters Local 340 are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In the late 1990s, the Employer purchased J.J. Nissen
Baking Company (Nissen), which operated a bakery in
Portland, Maine. At the time, Nissen had begun building
a new bakery in Biddeford, Maine, to replace the Port-
land facility. After the purchase, the Employer com-
pleted the Biddeford plant, transferred the Portland em-
ployees to Biddeford, and closed the Portland bakery.
When the Employer acquired Nissen, it also adopted a
collective-bargaining agreement terminating May 4,
2002, with BCT Local 334 (the BCT contract). Al-
though the BCT contract originally covered a unit of
production employees at the old Portland bakery, the
Employer and BCT Local 334 continued to apply the
BCT contract at the new Biddeford facility.
The BCT contract refers to the position of “Yardman-
Shipper.” Yardmen-shippers performed the yard work at
Portland and perform the yard work at Biddeford. Yard
work involves backing empty trailers up to the loading
dock, pulling loaded trailers away from it, and otherwise
moving trailers around the yard as necessary. After the
yardman-shipper moves a loaded trailer away from the
dock to the “staging area” or “the line,” an over-the-road
transport driver hooks it up and hauls it away. Transport
drivers operating out of the Biddeford facility are repre-
sented by Teamsters Local 340. When not needed for
yard work, the yardmen-shippers do shipping work in-
side the plant, which involves readying goods for loading
as indicated on the applicable shipping documents, and
then helping to load the goods onto trailers. Unlike the
employees represented by BCT Local 334, Biddeford’s
Teamsters-represented employees do not perform any
inside work.
During the transition from Portland to Biddeford,
Teamsters-represented employees were occasionally
asked to move a trailer within the Biddeford yard. BCT
Local 334 filed a grievance protesting this practice in
July 1999. In response, Biddeford’s human resources
manager, Richard Morgano,1 undertook on the Em-
ployer’s behalf to “discontinue this practice” and to “take
further steps to avoid reoccurrence.” No Teamsters-
represented employee has ever been regularly assigned to
perform yard work at Biddeford.
At roughly the same time that the Employer was mov-
ing its Portland operation to Biddeford, it was also clos-
ing down another bakery, this one located in Natick,
Massachusetts. While Natick was still operational, its
tractor-trailer transport drivers were represented by
Teamsters Local 494. The collective-bargaining agree-
ment between Interstate and Local 494 (the Local 494
contract) contained the following yard-work provision:
“The Company agrees to continue its practice of having a
minimum of three (3) tractor trailer drivers available for
yard work.” Consistent with this provision, Local
494−represented transport drivers did the yard work at
Natick. When Natick closed, some of its transport driv-
ers transferred to Biddeford; but there is no evidence that

1 The Employer has moved to correct the misspelling, throughout the
transcript, of the name of Richard Morgano, the human resources man-
ager at Biddeford. We grant the Employer’s motion.
334 NLRB No. 142
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1162
any Natick production, or Natick production employees,
likewise moved to the Biddeford facility.
In 2000, the Employer engaged in negotiations for a
collective-bargaining agreement with the New England
Bakery Drivers Council (NEBDC), which comprises a
number of Teamsters locals. Teamsters Local 340 is a
member of the NEBDC, so an Interstate-NEBDC agree-
ment would cover the transport drivers operating out of
Biddeford. The negotiators used the Local 494 contract
as a model. Although there was no discussion of yard-
men or yard work during negotiations, the above-quoted
provision from the Local 494 contract assigning yard
work to Teamsters-represented employees found its way
into a draft Interstate-NEBDC agreement. Truman
Holman, Interstate’s senior manager of labor relations,
sent a copy of the draft agreement to Human Resources
Manager Morgano for review. Morgano told Holman
that the yard-work provision needed to be removed from
the draft because yard work at Biddeford is not per-
formed by Teamsters-represented workers. The NEBDC
membership ratified the draft agreement in late Septem-
ber 2000, but the Employer has never executed it.
On November 2, 2000, Teamsters Local 340 presented
the Employer with a grievance asserting that the Em-
ployer was failing to honor the “contract” because it had
not assigned three Local 340−represented transport driv-
ers to perform yard work at Biddeford pursuant to the
yard-work provision in the Interstate-NEBDC draft
agreement.2 On December 6, 2000, Local 340 demanded
arbitration of this grievance. On January 12, 2001, BCT
International Vice President Arthur Montminy wrote as
follows to the general manager of the Biddeford plant:

It has come to my attention that your company is con-
sidering the assigning of hostler yardwork, currently
being done in Biddeford by [BCT] Local #334 mem-
bers, to workers represented by the IBT. I also under-
stand that you are considering the IBT demand of arbi-
tration in order to resolve this dispute.

At this time I must inform you that if these jobs are as-
signed to workers represented by the Teamsters, or if

2 During the hearing, William Turkewitz, the representative of
Teamsters Local 340, took the position that a collective-bargaining
agreement is in place between Local 340 and the Employer, and that
the yard-work provision from the Local 494 contract constitutes part of
that agreement. Leonard Singer, the Employer’s representative, consis-
tently disagreed with Turkewitz’ position concerning the yard-work
provision. On p. 141 of the transcript, a statement advocating
Turkewitz’ position is attributed to Singer. The Employer moves to
correct this apparent misattribution; Teamsters Local 340 does not
oppose the motion. Accordingly, we grant the Employer’s motion to
substitute “Mr. Turkewitz” for “Mr. Singer” at p. 141, L. 9 of the tran-
script.
the company agrees to arbitrate this case with the IBT,
the [BCT] Local #334 members who are your employ-
ees in Biddeford will engage in strike action against
your company.

The Employer continued to assign yard work at Biddeford
to employees represented by BCT Local 334.
B. The Work in Dispute
By stipulation of the parties, the work in dispute is
yard work performed at the Employer’s facility located
in Biddeford, Maine. “Yard work” involves using a type
of tractor known as a “yard tractor” or “yard horse” to
back empty trailers up to the loading dock, to pull loaded
trailers away from the dock, and otherwise to move trail-
ers around the yard area as necessary.
C. Contentions of the Parties
The Employer contends that BCT Local 334’s threat to
“engage in strike action” if the Employer either assigns
the Biddeford yard work to Teamsters-represented em-
ployees or agrees to arbitrate the assignment of that work
with Teamsters Local 340 creates reasonable cause to
believe that Section 8(b)(4)(D) has been violated. The
Employer further contends that all the factors relevant to
determining the assignment of the disputed work favor
assigning it to employees represented by BCT Local 334.
BCT Local 334 contends that the relevant factors are all
either neutral or favor assigning the work to employees it
represents.
At the outset of the hearing, Teamsters Local 340
joined in stipulating that both itself and BCT Local 334
claim the work in dispute. In its opening statement,
however, Local 340 asserted that the Board should
“quash this hearing” because Local 340 was not claiming
the disputed work after all. In response to questioning by
the hearing officer, Local 340 explained that it was
claiming yard work at Biddeford, but it was not seeking
to have any yard work taken away from employees rep-
resented by BCT Local 334.3 In its posthearing brief,
Teamsters Local 340 now contends that no Section 10(k)
dispute exists here because “the Teamsters have not at
this time made a claim for the three (3) yard jobs.” Ac-
cordingly, Local 340 advances no reasons why the work
in dispute should be assigned to employees it represents.
3 In its brief, the Employer characterizes Local 340’s demand to be
assigned three yard-work positions over and above the positions cur-
rently filled by BCT-represented yardmen-shippers as amounting to the
contention that the Employer ought to be required to assign Teamsters-
represented employees to perform yard work even if there is nothing
for them to do.
BAKERY WORKERS LOCAL 334 (INTERSTATE BRAND CORP.) 1163
D. Applicability of the Statute
Before the Board may proceed to determine a dispute
under Section 10(k) of the Act, it must be satisfied that
(1) there are competing claims to the work, (2) there is
reasonable cause to believe that Section 8(b)(4)(D) has
been violated, and (3) the parties have not agreed on a
method for the voluntary adjustment of their dispute.
Contrary to what Teamsters Local 340 now contends,
there are competing claims to the work in dispute. Local
340 asserted a claim to the work when it filed a grievance
over, and demanded arbitration of, the Employer’s failure
to assign three Teamsters-represented employees to do
yard work at Biddeford. Moreover, Teamsters Local 340
stipulated at the hearing that it claimed the work in dis-
pute. A union may, of course, disclaim its interest in
previously disputed work; but “a disclaimer eliminating
the existence of a jurisdictional dispute must be clear,
unequivocal, and unqualified and disclaim all interest in
the work in dispute.” Machinists Local 724 (ATSL, Inc.),
317 NLRB 781, 782 (1995). In Local 340’s opening
statement at the hearing, it purported to disclaim the dis-
puted work by stating that although it still claimed the
yard work at Biddeford it was not seeking to have yard
work taken from employees that BCT Local 334 repre-
sents. This statement is self-contradictory because the
yard work performed by BCT Local 334 members and
the Biddeford yard work are one and the same given that
BCT Local 334 members perform all of the Biddeford
yard work. Thus, the statement does not represent a
clear, unequivocal and unqualified disclaimer of all in-
terest in the Biddeford yard work. So also, Local 340’s
purported disclaimer in its posthearing brief—that it is
not “at this time” claiming any yard jobs—is ineffective
because it is not unqualified and does not disclaim all
interest in the disputed work.
We find that BCT Local 334’s letter of January 12,
2001, constituted a threat of strike action if the disputed
work were reassigned to Teamsters-represented workers.
Thus, reasonable cause exists to believe that a violation
of Section 8(b)(4)(D) has occurred. The parties have
stipulated, and we find, that there is no agreed-upon
method for voluntary adjustment of the dispute. Accord-
ingly, we find that this jurisdictional dispute is properly
before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive 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 balancing the factors in-
volved in a particular case. Machinists Lodge 1743 (J. A.
Jones Construction), 135 NLRB 1402, 1410–1411
(1962). The following factors are relevant in making the
determination of this dispute.
1. Certifications and collective-bargaining agreements
No evidence was introduced that either Union has been
certified to represent employees performing the disputed
work. As indicated, the Employer adopted the collec-
tive-bargaining agreement between BCT Local 334 and
Nissen, the Employer’s predecessor, covering production
employees at the Portland bakery; and the Employer and
BCT Local 334 continued to apply the BCT contract
after the Portland employees transferred to the new Bid-
deford facility. The BCT contract refers to the job classi-
fication “Yardman-Shipper,” and there is no dispute that
the “Yardman” part of this classification designates one
who performs yard work. Thus, we find that the BCT
contract encompasses the work in dispute.
The draft agreement between the Employer and the
NEBDC, of which Teamsters Local 340 is a member,
also refers to yard work. The evidence demonstrates,
however, that the negotiators of the draft agreement used
the Local 494 contract formerly in place at the Em-
ployer’s Natick facility as a model, that the Local 494
contract contained a yard-work provision assigning Na-
tick’s yard work to Teamsters-represented employees,
that Biddeford’s human resources manager immediately
recognized that the yard-work provision would have to
be removed before the Employer could execute the draft
agreement, and that the Employer has never signed off
on the draft agreement. Moreover, Teamsters Local 340
admits in its posthearing brief that the Employer and the
NEBDC have yet to reach a meeting of minds on at least
14 separate issues. Accordingly, we find that there is no
collective-bargaining agreement between the Employer
and Teamsters Local 340 that encompasses the work in
dispute. Based on the foregoing, we conclude that the
collective-bargaining agreement factor favors awarding
the disputed work to employees represented by BCT Lo-
cal 334.
2. Employer preference and assignment
The Employer prefers to assign, and has assigned, the
yard work at Biddeford to employees represented by
BCT Local 334. Although employees represented by
Teamsters Local 340 have been asked on rare occasions
to move trucks within the yard, Teamsters-represented
employees have never been assigned to do yard work at
Biddeford. The Employer prefers to assign the disputed
work to BCT-represented yardmen-shippers because they
are available to work inside the bakery when there is no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1164
yard work to do. Teamsters Local 340, on the other
hand, expressly disclaims any interest in performing in-
side work. Accordingly, we find that the factor of em-
ployer preference and assignment favors awarding the
disputed work to employees represented by BCT Local
334.
3. Employer past practice
According to BCT International Vice President Arthur
Montminy, with the exception of Biddeford and the now-
closed Portland bakery, Interstate assigns the yard work
at its other New England facilities and elsewhere to
Teamsters-represented employees. At Biddeford, Inter-
state has assigned BCT-represented yardmen-shippers to
perform the yard work, following the continuous practice
of its predecessor, Nissen, at Portland since 1952.4
Based on the practice at Biddeford and Portland, Inter-
state contends that the factor of the Employer’s past prac-
tice favors assigning the disputed work to BCT-
represented workers. We disagree. Although the past
practice at Portland and Biddeford is significant, the Em-
ployer’s practice at other facilities—particularly those
located in the same area as the site of the disputed
work5—is also relevant. Because the past practice at
Biddeford, although well established, does not fit the
pattern of the Employer’s practice elsewhere in New
England, we find that the Employer’s past practice is
mixed and does not favor employees represented by ei-
ther Union.
4. Area and industry practice
Again according to Montminy, BCT-represented em-
ployees perform yard work at “many” non-Interstate fa-
cilities throughout New England. Further questioning
revealed, however, that out of several hundred such fa-
cilities, BCT-represented employees do the yard work at
roughly 50, and Teamsters-represented employees per-
form the yard work at the rest. Because a considerable
majority of area facilities assign yard work to Teamsters-
represented employees, we find that the factor of area
and industry practice favors awarding the disputed work
to employees represented by Teamsters Local 340.

4 An employer’s past practice encompasses the relevant past practice
of the employer’s predecessor, see Machinists Local 1363 (Consoli-
dated Freightways), 223 NLRB 1074 (1976), and past practice at a
particular facility includes the past practice at that facility’s predeces-
sor, Teamsters Local 470 (Philco-Ford Corp.), 203 NLRB 592, 594–
595 (1973). Thus, Interstate’s past practice at Biddeford includes Nis-
sen’s past practice at Biddeford’s predecessor facility, the Portland
bakery.
5 See, e.g., Teamsters Local 578 (Rockwell International), 226
NLRB 657, 659 (1976); Carpenters Local 1026 (McKinney Drilling
Co.), 264 NLRB 261, 264 (1982).
5. Relative skills
Operating a “yard tractor” at the Biddeford plant re-
quires a Maine CDL driver’s license, which BCT Local
334 yardmen-shippers and Teamsters Local 340 transport
drivers alike possess. Evidence was introduced at the
hearing that the shipping work performed by yardmen-
shippers requires training that Biddeford’s Teamsters-
represented employees lack. This evidence is irrelevant:
the work in dispute is limited to just the “yard work” part
of what yardmen-shippers do. We find that the relative
skills factor does not favor employees represented by
either Union.
6. Economy and efficiency of operations
Yard work is not necessarily a full-time job at the Bid-
deford plant, particularly during the evening and night
shifts. When there is no yard work to be done, the yard-
men-shippers load trucks and perform a number of other
necessary tasks. Of the five yardmen-shippers currently
employed at Biddeford, one devotes an average of 20
hours per week, and a second an average of 15 hours per
week, to tasks other than yard work. Teamsters Local
340 expressly disclaims any interest in doing these non–
yard work tasks, and the record contains no evidence that
Teamsters-represented employees assigned to yard work
at Biddeford would have other useful work to perform
when there is no yard work to be done.6 Thus, we find
that having yardmen-shippers perform Biddeford’s yard
work makes for a more efficient use of manpower, and
accordingly we further find that the factor of economy
and efficiency of operations favors awarding the disputed
work to employees represented by BCT Local 334.
Conclusion
After considering all the relevant factors, we conclude
that employees represented by BCT Local 334 are enti-
tled to perform the work in dispute. We reach this con-
clusion relying on the collective-bargaining agreement
between the Employer and BCT Local 334, the Em-
ployer’s preference and assignment, and economy and
efficiency of operations. In making this determination,
we are awarding the work to employees represented by
BCT Local 334, not to that Union 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 follow-
ing Determination of Dispute:

6 Indeed, according to the testimony of a former Natick manager, the
Teamsters-represented workers who were assigned to yard work at that
facility had no work to do at least half the time.
BAKERY WORKERS LOCAL 334 (INTERSTATE BRAND CORP.) 1165
Employees of Interstate Brands Corporation, Kansas
City, Missouri, represented by Bakery, Confectionery,
Tobacco and Grain Millers International Union, Local
334, AFL–CIO are entitled to perform the yard work at
the Employer’s facility located in Biddeford, Maine.