Brewery Workers Union No. 9, DALU-AFL-CIO (Pabst Brewing Company)

National Labor Relations Board - Board Decisions

Jul 30, 1982

263 N.L.R.B. 41 (N.L.R.B. 1982)

BREWERY WORKERS UNION NO. 9
Brewery Workers Union No. 9, DALU-AFL-CIO
and Pabst Brewing Company and Local Union
No. 113, Laborers International Union of North
America, AFL-CIO. Case 30-CD-104
July 30, 1982
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Pabst Brewing Company,
herein called the Employer, alleging that Brewery
Workers Union No. 9, DALU-AFL-CIO, herein
called the Brewery Workers, had violated Section
8(b)(4)(D) of the Act by engaging in certain pro-
scribed activity with an object of forcing or requir-
ing the Employer to assign certain work to em-
ployees it represents rather than to employees rep-
resented by Local Union No. 113, Laborers Inter-
national Union of North America, AFL-CIO,
herein called the Laborers.
Pursuant to notice, a hearing was held before
Hearing Officer Rocky L. Coe on March 15, 1982.
All parties appeared and were afforded full oppor-
tunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the
issues. Thereafter, the Brewery Workers, the La-
borers, and the Employer filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
Pabst Brewing Company is a Delaware corpora-
tion engaged in brewing beer at its facilities located
in Milwaukee, Wisconsin. During the past calendar
year, a representative period, the Employer re-
ceived gross revenues in excess of $500,000 in the
course and conduct of its business and, during the
same period of time, it sold and shipped goods and
materials valued in excess of $50,000 directly to
points located outside the State of Wisconsin. The
parties stipulated that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that it will effectuate the pur-
poses of the Act to assert jurisdiction herein. Ac-
263 NLRB No. 6
cordingly, we find that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Brewery Workers and the Laborers are labor orga-
nizations within the meaning of Section 2(5) of the
Act.
II1. THE DISPUTE
A. The Work in Dispute
The work in dispute, which was stipulated to by
the parties, involves the loading, unloading, han-
dling, and shipping of advertising materials at the
Employer's Delta warehouse.
B. Background and Facts
The Employer purchased Blatz brewery in 1959,
a purchase which included Blatz' complex known
as the East Side Plant. At that time, both the
Brewery Workers and the Laborers had collective-
bargaining agreements with Blatz and both Unions
continued to represent employees at the East Side
Plant. Between 1959 and 1982, the Employer
stored its advertising or merchandising materials,
which consist of promotional supplies such as
signs, coasters, napkins, clocks, and beer glasses, at
a warehouse at the East Side Plant. As more fully
set forth below, the work of handling these materi-
als was divided between employees represented by
the Brewery Workers and the Laborers pursuant to
an understanding reached in December 1961.
Between 1959 and 1981, the Employer operated
out of several outside leased warehouses in addition
to the facilities located at the East Side Plant.' The
Employer also owns a facility known as the Delta
warehouse which, prior to 1970, had been leased
by it to other entities and was not used for its own
business. From 1970 until 1981, the Employer uti-
lized the Delta warehouse to store brewery materi-
als.
Sometime in 1981, the Employer decided that it
would be more efficient and economical to consoli-
date the receiving, shipping, and storing of brew-
ery materials, supplies, and advertising or merchan-
dising materials at the Delta warehouse. To that
end, the warehouse was renovated at a cost of ap-
proximately $2.6 million.
In contrast to the mixed jurisdiction at the East
Side Plant, the handling of materials at the Delta
'The record refers to at least two such facilities: the Globe Union
building on North Hopkins and the International Harvester building on
16th Street in Milwaukee.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warehouse had always been done exclusively by
employees represented by the Brewery Workers
and the Employer determined that the advertising
materials formerly stored at the East Side Plant
should be handled by these employees, at least
some of whom were transferred to the Delta ware-
house from the East Side Plant.2 It is the assign-
ment of this work when the consolidation was ef-
fected in late 1981 that gave rise to this proceed-
ing.
C. The Contentions of the Parties
The Brewery Workers and the Employer con-
tend that the Employer's assignment of the work in
dispute to employees represented by the Brewery
Workers is consistent with the terms of the collec-
tive-bargaining agreements, and is supported by the
Employer's preference, the Employer and area
practice, and the efficiency and economy of the
Employer's operation of the Delta warehouse.
The Laborers argues that the work in dispute has
traditionally been performed by employees repre-
sented by it and that the collective-bargaining
agreements favor continuation of Laborers' per-
formance of the work. The Laborers further con-
tends that two employees represented by it were
laid off as a direct result of the Employer's assign-
ment of the work to employees represented by the
Brewery Workers and, thus, the factor of job
impact supports assignment of the work to employ-
ees represented by the Laborers.
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 there is no agreed-upon
method for the voluntary settlement of the dis-
pute. 3 The parties have stipulated, and we find,
that on or about February 18, 1982, the Brewery
Workers threatened the Employer that it would, if
necessary, engage in a strike if the work in dispute
should be assigned to employees represented by the
Laborers. Accordingly, we find that a jurisdictional
dispute exists in this case and that there is reason-
able cause to believe that Section 8(b)(4)(D) has
been violated.4
2 As a result of the consolidation, approximately 17 members of the
Brewery Workers and 2 members of the Laborers were laid off.
3 N.LR.B. v. Radio A Television Broadcast Engineers Union, Local
1212, International Brotherhood of Electrical Workers. AFL-CIO LColum-
bia Broadcasting System], 364 U.S. 573 (1961).
4 We also note that it is irrelevant that the party making the threat is
the one presently performing the disputed work. See, e.g., International
Union of Operating Engineers Local 542.Z AFL-CIO (C. J. Langenfelder
and Son, Inc.), 241 NLRB 562 (1979).
Furthermore, the parties stipulated, and we find,
that there exists no agreed-upon method for the
voluntary settlement of the dispute. Accordingly,
we find that this dispute is properly before the
Board for determination under Section 10(k) of the
Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors. The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case.5
The following factors are relevant in making the
determination of the dispute before us:
1. Agreements
Both the Brewery Workers and the Laborers
have collective-bargaining agreements with the
Employer. The agreement with the Brewery
Workers provides, inter alia, that the "storage, han-
dling and transporting of brewery materials, bot-
tles, kegs and cases . . . whether at the brewery or
at Employer-owned, leased or operated warehouses
in Milwaukee County and environs, comes within
the coverage of this agreement."6 The agreement
further provides that:
6. The loading or unloading of advertising
materials at the brewery, or at Employer-
owned, leased or operated warehouses in Mil-
waukee County and environs, or at railroad
sidings, shall be performed by members of the
Union, provided however that such jurisdic-
tion does not conflict with jurisdiction over
such work which is performed by members of
another Union recognized by the Employer. 7
The Employer's agreement with the Laborers
provides in pertinent part that "work which is or
has been exclusively performed by members of the
Union will not be assigned to employees of any
other bargaining unit of the Employer."
The Employer also introduced into evidence a
letter dated December 26, 1961, which confirms an
understanding reached at an earlier meeting con-
cerning jurisdiction over the loading and unloading
of advertising materials. The letter states that the
Brewery Workers would have jurisdiction over the
loading of such materials for all beer wholesaler
and company-owned trucks and unloading of all
6 International Association of Machinists. Lodge No. 1743. AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
Art. XVI, sec. 4.
7Id., sec. 6.
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BREWERY WORKERS UNION NO. 9
company-owned trucks. The letter further states
that the Laborers would have jurisdiction over the
loading of "cartage company" trucks for both in-
terplant shipments and intraplant shipments at the
East Side Plant and unloading of all trucks except
company-owned vehicles.
From the foregoing it is clear that both the
Brewery Workers and the Laborers have a colora-
ble claim to at least part of the work in dispute.
Accordingly, we find that these agreements favor
neither party to the dispute.8
2. Employer's past assignments
The record indicates that, in the past, the loca-
tion has in large measure determined the Employ-
er's assignment of work. As previously noted, the
work in dispute, when performed at the East Side
Plant, was divided between employees represented
by the Brewery Workers and the Laborers. How-
ever, the record shows that the work of handling
materials in general at the Employer's other ware-
houses9 has been performed exclusively by mem-
bers of the Brewery Workers. Industrial Relations
Manager Gary L. Lewitzke testified that members
of the Laborers "handled all of the movement on
the east side of the river" (the East Side Plant
complex) and members of the Brewery Workers
performed all of the material handling at all of the
Employer's other facilities, including the Delta
warehouse. In this regard, the record further indi-
cates that other work was assigned on the basis of
location. Thus, although members of the Brewery
Workers performed snow removal functions and
handled office supplies at the W. Juneau facility,
the same functions at the East Side Plant were per-
formed by members of the Laborers.
In light of the past practice of certain work as-
signments being determined by location, the fact
that members of the Brewery Workers have in the
past performed all handling work at the Delta fa-
cility favors assignment of the work in dispute to
them.
3. Area practice
The uncontradicted testimony of several wit-
nesses indicates that at Miller Brewing, the only
other brewery presently operating in Milwaukee,
the work of handling advertising materials is per-
formed by employees represented by the Brewery
Workers, although Miller has employees who are
represented by the Laborers. No other evidence
8 These included the W. Juneau property, the 16th Street facility (In-
ternational Harvester), and the North Hopkins warehouse (Globe Union)
in addition to the Delta facility.
9 See International Union of Operating Engineers, Local 542. AFL-CIO
(C. J. Langenfelder and Son. Inc.), supra.
was offered with respect to area or industry prac-
tice.
From the foregoing, we conclude that the area
practice also favors assignment of the work in dis-
pute to employees represented by the Brewery
Workers.
4. Employer preference
The Employer stated that it prefers that the as-
signment of the work in dispute be made to em-
ployees represented by the Brewery Workers.
Thus, the factor of Employer preference favors as-
signment of this work to employees represented by
the Brewery Workers.
5. Employee skills
The record shows that the work in dispute in-
volves no special skills and that both groups of em-
ployees could perform it with equal efficiency. Ac-
cordingly, this factor does not aid us in determin-
ing this dispute.
6. Economy and efficiency of operations
As noted above, the Employer has consolidated
its warehouse operations at the Delta facility. Until
the present dispute arose, members of the Brewery
Workers handled all materials at the Delta ware-
house. There was uncontradicted testimony that
the work in dispute is sporadic and would be part-
time employment and that, should members of the
Laborers be assigned to perform that part of the
handling of advertising materials previously per-
formed, the Employer would have required a la-
borer to be sent over to the warehouse each time
that advertising materials were handled. There was
further evidence that, since the Delta warehouse is
several miles from the East Side Plant, such action
would cause delays and possible demurrage
charges.
From the foregoing, it is clear that the factor of
economy and efficiency of operations supports as-
signment of the work in dispute to employees rep-
resented by the Brewery Workers.
7. Job impact
The Laborers asserts that two employees repre-
sented by it were laid off as a direct result of the
transfer of advertising materials to the Delta facili-
ty and the Employer's assignment of the work in
dispute to employees represented by the Brewery
Workers. However, the record reveals that a
number of members of the Brewery Workers were
also laid off as a result of the consolidation of the
Employer's warehousing operations and the Labor-
ers offered no specific evidence to support its
43
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claim, other than the conclusionary statement that
the two layoffs were a "direct result" of the assign-
ment to members of the Brewery Workers. In addi-
tion, we note that the members of the Laborers
who handled advertising materials at the East Side
Plant also performed a number of other job func-
tions. Thus, it appears that the layoffs were caused
in some measure by an overall decrease in work at
the East Side Plant resulting from the consolidation
of all warehouse functions at the Delta warehouse.
Finally, the fact that no evidence was offered to
contradict testimony that the handling of advertis-
ing materials at the Delta warehouse would be a
part-time job belies the assertion that two full-time
employees were laid off as a direct result of the as-
signment of the work in dispute to members of the
Brewery Workers. Accordingly, this factor does
not support assignment of this work to employees
represented by the Laborers.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that the Employer's employees represented
by the Brewery Workers are entitled to perform
the work in dispute. We reach this conclusion rely-
ing on the Employer's preference, past assignments,
area practice, and the economy and etticiency of
operations, all of which favor awarding the disput-
ed work to the employees represented by the
Brewery Workers. In making this determination,
we are assigning the work to employees represent-
ed by the Brewery Workers, and not to that Union
or its members. The present determination is limit-
ed to the particular controversy which gave rise to
this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
Employees employed by Pabst Brewing Compa-
ny who are represented by Brewery Workers
Union No. 9, DALU-AFL-CIO, are entitled to
perform the work of handling advertising materials
at the Employer's Delta warehouse operation.
44