Carpenters District Council

National Labor Relations Board - Board Decisions

Feb 25, 1980

247 N.L.R.B. 1393 (N.L.R.B. 1980)

CARPENTERS DISTRICT COUNCIL
Carpenters District Council of Milwaukee County and
Vicinity of the United Brotherhood of Carpenters
and Joiners of America, AFL-CIO and Pabst
Brewing Company and District No. 10 of the
International Association of Machinists and Aero-
space Workers, AFL-CIO. Case 30-CD-85
February 25, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by Pabst Brewing Company (herein the
Employer) on September 11, 1979, alleging that
Carpenters District Council of Milwaukee County and
Vicinity of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (herein the Mill-
wrights) had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activities with an object
of forcing or requiring the Employer to maintain the
assignment of certain work to employees represented
by it rather than to reassign such work to employees
represented by District No. 10 of the Association of
Machinists and Aerospace Workers, AFL-CIO (here-
in called the Machinists), or submit the matter to
arbitration with that Union.
Pursuant to notice, a hearing was held before
Hearing Officer Benjamin Mandelman, on October 2,
1979, at Milwaukee, Wisconsin. All parties appeared
at the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to
adduce evidence bearing on the issues. Thereafter, all
parties filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed. The Board has considered the entire record
in this case and hereby makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer is a Delaware corporation engaged in
brewing beer and other malt beverages at its Milwau-
kee, Wisconsin, facility, and that during the past year,
' Hydraulic cylinder operate with oil pressure while pneumatic cylinders
operate with air pressure.
247 NLRB No. 189
a representative period, the Employer received 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 products directly to points
outside the State of Wisconsin which were valued in
excess of $50,000. Accordingly, 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 policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Millwrights and Machinists are labor organizations
within the meaning of Section 2(5) of the Act.
II1. THE DISPUTE
A. Background
Both the Machinists and the Millwrights have
current collective-bargaining agreements with the
Employer. The Millwrights agreement is effective
October 1, 1978, through September 30, 1981; and the
Machinists agreement is effective August 5, 1978,
through August 1, 1981. In addition they are parties
to a job assignment agreement first entered into on
October 3, 1960, and modified several times since.
In 1965, the Employer acquired the first of seven
Alvey Series 400 Automatic Depalletizers. The Alvey
Depalletizer operates by receiving pallets upon which
cases of empty bottles have been layered. As the
machine strips the cases off the stack, the case stop
unit spaces them out by means of a stop bar that is
raised or lowered, for a measured, single-file entry of
the cases into the bottle house. The stop bar is
activated by an operating cylinder that is located
between the rollers on the discharge conveyer.
At first the operating cylinder was hydraulic.
Between 1976 and 1977, the cylinder was changed to
pneumatic to provide faster and more positive action
to the case stop bar.' Thereafter, a dispute arose
between the Machinists and the Millwrights concern-
ing whose work it was to remove and replace the
entire case stop assembly. The Employer assigned to
the employees represented by the Millwrights the
installation, removal, adjustment, and maintenance of
the case stop unit. On April 30, 1979, the Machinists,
in an attempt to secure an award that would change
that work assignment, filed a grievance over the
assignment. On June 28, 1979, the Employer denied
the grievance.
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lDECISIONS OF NATIONAL LABOR RELATIONS BO()ARI)
The Machinists subsequently made a demand for
arbitration under its collective-bargaining agreement
concerning the above work. On September 10, 1979,
having been advised of the Machinists arbitration
demand, the Millwrights business manager threatened
the Employer's industrial relations manager with a
work stoppage in the event that the Employer submit-
ted the work assignment issue to an arbitration
proceeding, or implicitly effected a change in that
assignment.
B. The Work in Dispute
The work in dispute is the installation and mainte-
nance of the Alvey Series 400 Automatic Depalletizer
pneumatic case stop unit (herein called the case stop
unit), excluding the repair of the pneumatic cylinder
and the machining of component parts, 2 at the
Employer's Milwaukee, Wisconsin, facility.
C. The Contentions of the Parties
The Employer asserts that the work assignment
made by it and the efficient and economical operation
of its plant require confirmation of the Board to the
assignment to employees represented by the Mill-
wrights. The Millwrights contends that the assignment
is but a continuation of the jurisdictional agreement
reached between the Employer and the Unions. It
urges that the Employer's construction of the 1960
agreement is proper since it maintains the historical
jurisdiction of both the Millwrights and the Machin-
ists and prevents one craft from encroaching upon the
jurisdiction of the other.
The Machinists contends that the Board should rule
that the most feasible assignment of the work in-
dispute should be to machinists and, alternatively, that
since all of the parties to this dispute are also parties to
collective-bargaining agreements that have arbitration
provisions, the proper forum for resolving the dispute
is arbitration. In this connection the Machinists notes
that it scheduled the matter for arbitration and has
offered the Millwrights a right to participate as a full
participant in an arbitration identical to the one the
Millwrights has for solving its disputes with the same
Employer.
This excluded work was assigned to employees represented by the
Machinists and is not here in dispute.
Albany Prinritg Pre.ssmen and Assistants' Unio l No. 2. AFL-CIO
(Williams Prts Inc.). 166 NLRB 693 (1967).
'The fact that the Millwrights may have been invited by the Machinists to
participate as a party in the arbitration sought by the Machinists is of no
consquence here. The Millwrights was lot required to do so and in the
D. Applicability of the Statute
Before the Board may proceed to a determination of
a dispute pursuant to Section 10(k) of the Act, it must
be satisfied that (I) there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated, and (2) the
parties have not agreed upon a method for voluntary
settlement of the dispute.
With respect to (1), above, the record discloses that
the Employer assigned the work in dispute to employ-
ees represented by the Millwrights in April 1979. The
Machinists on April 30, 1979, filed a grievance
contesting the assignment. Following the Employer's
denial of the grievance the Machinists sought arbitra-
tion. Thereafter, on September 10, 1979, the Mill-
wrights threatened a work stoppage in the event that
the Employer submitted the work assignment issue to
arbitration or, in effect, changed the assignment. It is
well established that when a union threatens a work
stoppage in the event the employer submits that
union's work assignment to arbitration with another
union, there is reasonable cause to believe that Section
8(b)(4)(d) has been violated.' Accordingly, we find
that a jurisdictional dispute exists in this case and that
there is reasonable cause to believe that Section
8(b)(4)(d) has been violated by the Millwrights con-
duct in furtherance of its claim to the disputed work.
With respect to (2), above, the record shows that
the Millwrights is not a party to the bipartite
arbitration proceeding initiated by the Machinists with
the Employer; nor is there evidence that the disputants
in this case are parties to any tripartite procedure
which could result in a binding determination of the
instant controversy. Furthermore, the parties stipulat-
ed, 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.4
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 jurisdictional dispute is an
act of judgment based on commonsense and experi-
ence reached by balancing those factors involved in a
particular case.'
absence of such participation cannot be bound by the results of any such
arbitration proceeding.
' N.L.R.B. v. Radio d Television Broadcast rEgineers Union. Local 1212.
International Brotherhod of Electrical Workers. AFL-CIO Columbia Broad-
caitisg Syrem l 364 U.s. 573 (196 1 ).
" International Association of Machioists Lodge No. 1743. 4FL-CIO (. A.
Jones Conrruction Cornpany). 135 NLRB 1402 1410- 1 (1962).
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CARPENTERS DISTRICT COUNCIL
The following factors are relevant in making a
determination of the dispute before us:
I. The Employer's past practice
Both groups of employees have worked on the case
stop unit. Apparently, neither group did it significant-
ly more than the other. We find that the factor of past
practice favors neither group of employees.
2. The present assignment
The Employer, in April 1979, made a general
assignment of the work in dispute to the employees
represented by the Millwrights, and states that it
prefers such an assignment. We find that the Employ-
er's assignment of the disputed work to the Mill-
wrights, consistent with the Employer's preference, is
a factor favoring an award to employees represented
by that Union.
3. Agreements
The Employer and the Unions are parties to a 1960
job assignment agreement. However, that agreement is
silent on automatic depalletizers since they were not in
use at the time. The first Alvey Series 400 Automatic
Depalletizer was installed in 1965.' On July 16, 1965,
the Employer issued a memorandum settling the
jurisdiction between the Millwrights and the Machin-
ists. That memorandum does not deal with the case
stop unit specifically. However, the parties did mutu-
ally agree, inter alia. that: (I) the Millwrights would
maintain all rollers and belts which convey pallets and
cartons both into and out of the machine and, also,
those rollers and associated belts and drivers on the
lift table; (2) the Machinist would maintain the
hydraulic pump and all hydraulic cylinders. The work
of maintaining the shafting and linkage which operates
the pressure plates which clamp and hold the cartons
in position when the lift table is lowered also was
awarded to the machinists on the basis that such work
constituted a mechanism operated by a hydraulic
cylinder.'
To the extent that a hydraulic cylinder was formerly
utilized in the case stop unit and the pneumatic
cylinder is a replacement for that cylinder, it could be
argued that the 1965 memorandum favors an award of
the work to employees represented by the Machinists.
However, the record indicates that during the period
from 1965 to 1976 or 1977, when the pneumatic units
were installed, both millwrights and machinists
worked on hydraulic units. As noted above, apparent-
ly neither group has performed the work significantly
Therc is no indication that there were any automatic depalletizers prior to
1965.
more than the other. Thus, it is apparent that even if
the award is properly read as giving all hydraulic
cylinder work' to machinists it is quite apparent that it
has been amended in practice with the result that both
groups have been assigned the work. Therefore, we
find that the 1960 agreement and the 1965 memoran-
dum cannot be accorded any significant weight in
determining which group of employees should be
awarded the work.
As to the current collective-bargaining agreements,
while both the Employer's respective contracts with
the Millwrights and the Machinists include some
references to jurisdiction, neither agreement contains
anything specific enough to be useful in resolving the
instant work dispute. We find this factor favors
neither group of employees.
4. Employee skills
Both groups of employees possess the requisite skills
to perform the work in dispute. Accordingly, we find
that this fact favors both equally.
5. Economy and efficiency of operation
With respect to economy and efficiency of opera-
tion, the case stop unit is located in the midst of the
case rollers and belt conveyers at the point where the
depalletizer discharges the cases. In order to perform
any major repair work or to remove the case stop unit
a substantial part of the case rollers and belt conveyer
has to be disassembled to make the case stop unit
accessible. All of this work is within the jurisdiction of
employees represented by the Millwrights, and has
been performed by them. Since millwrights have
performed all the preliminary work necessary to the
removal of the case stop unit, it is more efficient to
have them also perform the work in dispute rather
that splitting the operation with the resulting potential
loss of man-hours. Therefore, we find that the factors
of economy and efficiency of operation favor awarding
the work in dispute to employees represented by the
Millwrights.
6. Job impact
The work in dispute takes approximately 20 hours
per year per machine. Since the number of hours
involved is relatively small, the assignment to either
group would have relatively little impact on the other.
Accordingly, we conclude that the factor of job impact
does not favor either group.
* The Millwrights was awarded some unrelated work.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusion DETERMINATION OF DISPUTE
Upon the record as a whole, and after full consider-
ation of all relevant factors, we conclude that the
employees who are represented by the Millwrights are
entitled to perform the work in dispute. We reach this
conclusion based primarily upon the Employer's
assignment which is consistent with its preference and
economy and efficiency of operation. In making the
determination we are awarding the work in dispute to
those employees represented by the Millwrights, but
not to that Union or its members. The present
determination is limited to the particular controversy
which gave rise to this proceeding.
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
hereby makes the following determination of dispute:
Employees of Pabst Brewing Company who are
represented by Carpenters District Council of Mil-
waukee County and Vicinity of the United Brother-
hood of Carpenters and Joiners of America, AFL-
CIO, are entitled to perform the installation and
maintenance of the Alvey Series 400 Automatic
Depalletizer pneumatic case stop unit, excluding the
repair of the pneumatic cylinder and the machining of
component parts, at the Milwaukee, Wisconsin, facili-
ty of the Pabst Brewing Company.
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