Carpenters District Council of Milwaukee County

National Labor Relations Board - Board Decisions

Mar 31, 1981

255 N.L.R.B. 413 (N.L.R.B. 1981)

CARPENTERS DISTRICT COUNCIL OF MILWAUKEE COUNTY 413
Carpenters District Council of Milwaukee County
and Vicinity of the United Brotherhood of Car-
penters and Joiners of America, AFL-CIO and
Pabst Brewing Company and District No. 10 of
the International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 30-CD-
90
March 31, 1981
DECISION AND DETERMINATION OF
DISPUTE
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) on August 1, 1980, al-
leging that Carpenters District Council of Milwau-
kee County and Vicinity of the United Brother-
hood of Carpenters and Joiners of America, AFL-
CIO (herein called the Carpenters), had violated
Section 8(b)(4)(D) of the Act by engaging in cer-
tain proscribed activities with an object of forcing
or requiring the Employer to maintain the assign-
ment of certain work to employees represented by
it rather than to reassign such work to employees
represented by District No. 10 of the International
Association of Machinists and Aerospace Workers,
AFL-CIO (herein called the Machinists).
Pursuant to notice, a hearing was held before
Hearing Officer Catherine M. Roth on August 20,
1980, at Milwaukee, Wisconsin. All parties ap-
peared at the hearing and were afforded full oppor-
tunity to be heard, to examine and cross-examine
witnesses, and to adduce evidence bearing on the
issues. Thereafter, all parties filed briefs.
The Board has reviewed the rulings of the Hear-
ing 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 fol-
lowing findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer is a Delaware corporation engaged in brew-
ing beer and other malt beverages at its facilities
located in Milwaukee, Wisconsin. During the past
calendar year, a representative period, the Employ-
er received gross revenues in excess of $500,000 in
the course and conduct of its business and, during
the same period, it sold and shipped goods and ma-
terials valued in excess of $50,000 directly to points
outside the State of Wisconsin. 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.
255 NLRB No. 62
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Car-
penters and Machinists are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
For at least the past 20 years, the Employer has
recognized and bargained with the Machinists and
Carpenters, respectively, and has entered into a
series of collective-bargaining agreements with
each of those Unions. The current agreement with
the Machinists is effective from August 5, 1978, to
August 1, 1981, and the most recent agreement
with the Carpenters is effective from October 1,
1978, to September 30, 1981.
In 1960, the Employer, the Machinists, and the
Carpenters entered into an agreement, known as
the 1960 Job Assignment Agreement, which pro-
vides for the assignment of certain work to em-
ployees represented by the Machinists and the as-
signment of certain other work to millwrights rep-
resented by the Carpenters. The terms of this
agreement became effective on October 3, 1960,
and there is no showing that there have been any
agreements, written or oral, since that date which
modify or alter those terms.
Items 6 and 22 of the aforementioned 1960 agree-
ment provide that fans, blowers, and all conveyors,
except table top chains, come within the work ju-
risdiction of the millwrights represented by the
Carpenters. Item 5 of this agreement provides that
all vacuum pumps and positive displacement blow-
ers fall within the jurisdiction of employees repre-
sented by the Machinists.
In 1965, the Employer acquired the first of sev-
eral "J-N-J" and "Standard Knapp" Automatic
Flap Openers whose purpose was to open the flaps
of beer cartons, allowing the removal of bottles for
washing.' These flap openers operated by means of
suction cups attached to movable manifolds that
followed the cartons and opened the flaps. The op-
eration of these original units was slow and result-
ed in numerous delays caused by mechanical mal-
functions. Their maintenance was assigned to em-
ployees represented by the Machinists.
In early 1978, the Employer decided to replace
these units with a new style flap opener manufac-
tured by the Hytrol Company. Called the Hytrol
Automatic Flap Opener, this flap opener unit con-
sists, inter alia, of a section of belt case conveyor
over which is installed a high efficiency air blower
or fan and duct system connected to a sheet metal
i rior to 1965, the flap iof heer carlonls . er opcnecd h hand
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shroud. The shroud is positioned just above the
cases coming through on the belt. In operation, the
Hytrol unit functions like a vacuum cleaner. As the
case passes under the shroud, the case flaps are
sucked up and the case is laid open by rollers and
flap guides, which are also part of the Hytrol unit.
In contrast to the original mechanical operation,
this unit requires no complex timing or moving
parts except the blower. It is more efficient, moves
cases along at a faster speed, and malfunctions less
frequently.
The work of installing and maintaining the
Hytrol unit was assigned by the Employer to mill-
wrights represented by the Carpenters. This assign-
ment was still in effect at the time of the hearing.
The Employer now has these units on all of its re-
turnable bottle lines at this facility (a total of five
such units).2
On January 4, 1978, the Machinists, in an at-
tempt to secure an award that would change that
work assignment, filed a grievance which was
denied by the Employer on January 13, 1978.
Thereafter the Machinists took the matter to arbi-
tration, and, on June 7, 1978, a hearing before an
arbitrator was commenced between the Employer
and the Machinists but was recessed, without any
ruling being made, to enable the parties to try and
resolve the issue between themselves. On July 23,
1980, the Employer advised the arbitrator that it
was the wish of both the Machinists and itself that
the hearing be resumed, and he was requested to
provide dates for the resumption of the arbitration.
At the hearing herein, the parties stipulated that
on or about August 1, 1980, the Carpenters threat-
ened the Employer that it would engage in a work
stoppage if the Company went to arbitration with
the Machinists over the assignment of the installa-
tion and maintenance of the Hytrol unit, or if that
work were reassigned to the Machinists. 3
B. The Work in Dispute
The work in dispute is the installation and main-
tenance of the Hytrol Automatic Flap Opener units
at the Employer's Milwaukee, Wisconsin, oper-
ation.
C. The Contentions of the Parties
The Employer asserts that the main reason for its
work assignment is that a majority of basic compo-
nents in the Hytrol unit are traditionally within the
jurisdiction of the millwrights. The Employer fur-
ther states that it is its preference that the disputed
z The initial installation occurred in early 1978, two additional units
were placed in the spring (iof 1978, and the final Ito, early in 1979
:' Gary Lewitzlke, the Empll cr's indastrial relations manager, also tes-
tificd to these cevenls.
work remain with the millwrights in view of the
1960 Job Assignment Agreement, past practice in
assignment of this type of work, and the desire to
avoid split craft jurisdiction.
The Carpenters contends that the evidence sup-
ports the Employer's assignment and that the Em-
ployer and Carpenters are complying with the 1960
Job Assignment Agreement.
The Machinists asserts that the dispute is not
properly before the Board under Section 10(k) be-
cause the testimony showed the strike threat to be
over the fact that arbitration was going to begin
and not over the assignment of work; that if the
matter were properly before the Board, however,
then the work in dispute belongs to the Machinists,
who, up to 1977, had exclusive jurisdiction over
machinery that served the function of flap openers,
the function now being performed by the Hytrol
unit. The Machinists also claims that, since there is
uncontradicted testimony that the 1960 Job Assign-
ment Agreement has not been followed over the
years by the Employer, the mere fact that the flap
opener machinery is not vacuum operated does not
provide a valid reason for changing the Employer's
jurisdiction over such equipment from machinists
to millwrights.
D. Applicability of the Statute
Before the Board may proceed to a determina-
tion of a dispute pursuant to Section 10(k) of the
Act, it must be satisfied that (1) 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 began in early 1978 to assign the
work in dispute to millwrights represented by the
Carpenters. The Machinists on January 4, 1978,
filed a grievance contesting the assignment. Fol-
lowing the Employer's denial of the grievance the
Machinists sought arbitration. Thereafter, on
August 1, 1980, the Carpenters threatened a work
stoppage in the event that the Employer submitted
the work assignment issue to arbitration or if the
work were reassigned to the Machinists. 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 an-
other union, or threatens to strike if the work is
reassigned, there is reasonable cause to believe that
Section 8(b)(4)(D) has been violated.4 According-
4 See, e.g., Intlrnaional Alliance J Theratrical Stage Enployeer and
M.ovinlg Picture .Machite Operators o jthe Uniced Saies and Canada (Metro-
media. Ir(). 225 NI.R1i 75. 787 (1976);, lbtan Printing Prssnrili and 4,l -
vsitants Union, No. 23. FL -CIO (Williarnm P(. . Inc.), 166 N lRB13 693,
Continued
CARPENTERS DISTRICT COUNCIL OF MILWAUKEE COUNTY 415
ly, 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
Carpenters' conduct in furtherance of its claim to
the disputed work.
With respect to (2), above, the record shows that
the Carpenters is not a party to the bipartite arbi-
tration proceeding initiated by the Machinists with
the Employer; nor is there evidence that the dispu-
tants in this case are parties to any tripartite proce-
dure which could result in a binding determination
of the instant controversy. 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 the disputed work
after giving due consideration to various factors. 5
The Board has held that its determination in a ju-
risdictional dispute is an act of judgment based on
commonsense and experience reached by balancing
those factors involved in a particular case.6
The following factors are relevant in making a
determination of the dispute before us:
1. Employer's past practice
The Hytrol unit performs the same function,
opening flaps, as the earlier unit it replaced. These
earlier units were assigned to the machinists for
maintenance. However, as discussed above, the
Hytrol unit performs this function by a much dif-
ferent method. Thus the old units used suction cups
attached to movable manifolds that followed the
cartons and opened the flaps. The Hytrol uses a
blower or fan to create a suction which opens the
flaps. Millwrights, with some limited deviation 7
and one exception, have performed all of the main-
tenance work on fans and blowers located in the
Employer's bottle house. The exception involves
the work performed in connection with the mainte-
nance on positive displacement blowers which are
pumps used to move materials rather than air. That
695 (1967): N'ew YorA Typographical Union No 6 International 7po-
graphical Union, AFL-CIO (New York Times Compony), 225 NLRB 1311.
1313 (1976); Local 210, Laborers Intrernational Union of Vorth America.
AFL-CIO (The Edward J. Debartolo Corporation), 194 NLRB 655, 657
(1971).
s N.L.R.B. v. Radio & Television Broadcast Engineers Uion, Local
1212. International Brotherhood of Electrical Workers, AIL-CIO [Column-
bia Broadcasting Syvtemn] 364 US. 573 (1961).
6 International Association of Machinists Lodge .No. I 743. -AFL-CIO (J
A. Jones Construction Company). 135 NLRB 1402. 1410-11 (1962)
? These deviations apparently do not involve the machinists to any sig-
nificant extent. if at all
work is assigned to machinists apparently in ac-
cordance with the 1960 agreement.
Weighing in favor of an award of the disputed
work to machinists is that they maintained the flap
opening units replaced by the Hytrol unit. On the
other hand, weighing in favor of an award of such
work to millwrights is that the Hytrol unit radical-
ly differs from the units it replaces in the method it
uses to perform the same function and, more sig-
nificantly, in its mechanical components consisting
of a fan and ducts, a conveyor belt and drive, roll-
ers, and flap guides. Of these components, only the
flap guides are common to both flap opener units
that the Employer has utilized. The Employer
claims that, in assigning the disputed work to mill-
wrights, it relied heavily on the fact that the work
of maintaining conveyor belts, rollers, fans, and
ducts traditionally has fallen within their jurisdic-
tion in accordance with the terms of the parties'
1960 agreement. These reasons for the assignment,
the difference in operation and components of the
former flap opener unit and the Hytrol unit, plus
the fact that the evidence here tends to indicate
that the Employer's practice has been to assign
maintenance work based on the kind of machinery
used rather than its function lead us to find that
this factor favors an assignment of the work to
millwrights represented by the Carpenters.
2. The Employer's preference
The Employer, in early 1978, made an assign-
ment of the work in dispute to the millwrights rep-
resented by the Carpenters, and states that it pre-
fers such an assignment. We find that the Employ-
er's assignment of the disputed work to the mill-
wrights, consistent with its preference, is a factor
favoring an award to millwrights represented by
the Carpenters.
3. Agreements
The 1960 Job Assignment Agreement 8 does not
deal with flap opener units specifically, since they
were not in use at the time. However, the parties
did mutually agree, inter alia, that: (1) the mill-
wrights would maintain all fans, blowers, and con-
veyors, except table top chains; and (2) the em-
ployees represented by the Machinists would main-
6 The Machinists asserts that the uncontradicled evidence indicaltes
that the 1960 agreement has not been followed over the years by the Em-
ployer. A business representative for the Machinists did testify that Gary
Lcsitzke, Employer's industrial relalions manager, had toild him that
there had been desiations from the agreement Lwitike heard that teli-
mony and in his subsequent lestimony as riot asked about the ubjectl
The mere fact that there may have been deviations from the 1960 agree-
ment is inlufficiet to swarrant a finding that the agreement is not binding
oil the parties
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tain all vacuum pumps and positive displacement
blowers.
The maintenance of the replaced flap openers
was assigned to the employees represented by the
Machinists because those units were operated by
means of suction cups that attached to and opened
the flaps. However, the Hytrol unit, as noted
above, consists of fans or blowers, conveyor belts,
and rollers which, under the 1960 agreement, are
the jurisdiction of the millwrights. Therefore, we
find that the 1960 Job Assignment Agreement
favors giving the disputed work to millwrights rep-
resented by the Carpenters because, with the instal-
lation of the Hytrol units, the operational method
of the Employer's machinery functioning as flap
openers has substantially changed.
As to the current collective-bargaining agree-
ments, while the Employer's respective contracts
with the Carpenters and the Machinists both in-
clude some references to jurisdiction, neither agree-
ment contains anything specific enough to be useful
in resolving the instant work dispute. We find this
factor, therefore, favors neither group.
4. Employee skills
The record shows that both groups of employees
possess the necessary skills to perform the work in
dispute and both groups could perform it with
equal efficiency.
5. Economy and efficiency of operations
The Employer asserts that by assigning the dis-
puted work to the millwrights it avoided a split in
craft jurisdiction. While it does not state exactly
how the jurisdiction would be split if the work
were assigned to the machinists, we know that the
Hytrol unit consists, inter alia, of a conveyor belt
and fan system and that under the 1960 Job Assign-
ment Agreement the maintenance of conveyors and
fans has been assigned to the millwrights. Argu-
ably, the basis for the Employer's assertion is that
an assignment of the disputed work to the machin-
ists would entail a splitting of the work jurisdiction
over that equipment. However, the record is not
sufficiently developed in this regard to enable us to
determine if this is what the Employer means by its
assertion. In any event, it is not evident from the
record that an assignment of the work in dispute to
one group of employees rather than the other
would be more economical or efficient. Therefore,
we find this factor favors neither group of employ-
ees. 9
9 Empl. Exh. 9 indicates that the specific hourly wages of employees
to be assigned the work in dispute was a factor for its consideration in
the determination of its assignment. However, it is the Board's practice
not to rely on the differing rates of pay of employees in determining a
jurisdictional dispute and. therefore, we have not based our decision
6. Job impact
The Employer states that the assignment of the
work in dispute will not affect the manpower re-
quirements of either craft. Therefore, we find that
this factor favors neither group of employees.
7. Industry practice
The Machinists business representative, Thomas
N. Leach, testified that both the Miller and Schlitz
breweries in the Milwaukee area use Hytrol units
and that those units are maintained by employees
represented by the Machinists. He also testified that
no millwrights are employed at Miller, while
Schlitz employs approximately two or three. He
agreed that all three breweries are unique in their
policies as to jurisdiction assignment. Consequently,
we find this evidence insufficient to establish a
practice in the industry. Therefore, this factor
favors neither group of employees.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors, we conclude that
the millwrights represented by the Carpenters are
entitled to perform the work in dispute. We reach
this conclusion based primarily on the Employer's
preference which is consistent with its assignment
practices and the 1960 Job Assignment Agreement
between the Employer, the Carpenters, and the
Machinists. In making this determination, we are
awarding the work in dispute to those millwrights
represented by the Carpenters, but not to that
Union or its members. The present determination is
limited 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
hereby makes the following Determination of Dis-
pute.
Employees of Pabst Brewing Company who are
represented by Carpenters District Council of Mil-
waukee County and Vicinity of the United Broth-
erhood of Carpenters and Joiners of America,
AFL-CIO, are entitled to perform the installation
and maintenance of the Hytrol Automatic Flap
Opener units, at the Milwaukee, Wisconsin, facility
of the Pabst Brewing Company.
herein on the relative wage rates of either millwright or machinist per-
sonnel. United Brotherhood of Carpenters and Joiners of America, Local o0.
171. AIFL-CIO (Knowlton Construction Corporation), 207 NLRB 406. 409
(1973).