District No. 10, Aerospace Workers

National Labor Relations Board - Board Decisions

May 17, 1979

242 N.L.R.B. 318 (N.L.R.B. 1979)

I)EC(ISIONS O()F NATIONAL L.ABOR RELATIONS BOARD
District No. 10 of the International Association of Ma-
chinists and Aerospace Workers, AFL-CIO and
Pabst Brewing Company and Carpenters District
Council of Milwaukee County and Vicinity of the
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Case 30- CD 82
May 17. 1979
DECISION AND DETERMINATION OF
[)ISPUTE
BY ChAIRMAN FANNING ANI) MI MBERS PENEI.I.()
ANI) TRUSI)DAIT.
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed by Pabst Brewing Company, herein
called the Employer, alleging that District No. 10 of
the International Association of Machinists and
Aerospace Workers, AFIL ('IO, herein called Ma-
chinists. had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing or requiring the Employer to assign certain
work to its members rather than to employees repre-
sented by Carpenters District Council of Milwaukee
County and Vicinity of the United Brotherhood of
Carpenters and Joiners of' America, AFL (IO,
herein called Carpenters.
Pursuant to notice, a hearing was held before Hear-
ing Officer James H. Warmoth on February 15. 1979.
All parties appeared and were afforded full opportu-
nity to be heard, to examine and cross-examine wit-
nesses, and to adduce evidence hearing on the issues.
Thereafter, Carpenters. Machinists, and the Em-
ployer filed briefs.
Pursuant to the provisions of Section 3(b) of the
National abor 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 Iearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. 'They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. I1F BLISINlSS 01 1111 IMPlO.()YIER
Pabst Brewing Company is a Delaware corporation
engaged in brewing beer and other malt beverages at
its facilities located in Milwaukee. Wisconsin. During
the past calendar year, 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 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 Sec-
tion 2(6) and (7) of the Act and that it will effectuate
the purposes of the Act to assert jurisdiction herein.
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 purposes of'
the Act and that it will effectuate the purposes of the
Act to assert jurisdiction herein.
II. le I.ABOR ORGANIZATIONS INVO()IVEI)
The parties stipulated, and we find, that Machinists
and Carpenters are labor organizations within the
meaning of Section 2(5) of the Act.
ill. I'H1l' I)ISl'PUlE
A. The Work in Dispute
The work in dispute is the installation and mainte-
nance of the Shuttleworth conveyor system on line
number four at the Employer's Milwaukee. Wiscon-
sin, operation.
B. Background and Fac'ts
For at least the past 20 years the Employer has
recognized and bargained with the Machinists and
has entered into a series of collective-bargaining
agreements with the Machinists, the most recent of
which is, by its terms, effective from August 5. 1978,
to August , 1981.
Also, for at least the past 20 years, the Employer
has recognized and bargained with the Carpenters
and has entered into a series of collective-bargaining
agreements with the Carpenters, the most recent of
which is, by its terms, effective from October 1. 1978,
to September 30. 1981.
The Employer utilizes several different types of
conveyors at its Milwaukee operation. In 1960 the
Employer, the Machinists, and the Carpenters en-
tered into an agreement which provided for the as-
signment of certain work to employees represented by
the Machinists and the assignment of certain other
work to millwrights represented by the Carpenters.
The terms of the agreement became effective on Octo-
ber 3. 1960, and there is no showing in the record that
there have been any agreements, written or oral, since
that date which modify or alter the terms of the
agreement.
Item 23 of the 1960 jurisdictional agreement pro-
vides that "all conveyors. except table top chain"
conveyors shall be assigned to millwrights represent-
ed by the Carpenters, and item 24 of the agreement
242 NI.RB No. 49
318
DISTRICT 10 AEROSPACE WORKERS
provides that "table top chain" conveyors shall be
assigned to employees represented by Machinists.'
In accordance with the terms of the 1960 agree-
ment, the maintenance of tabletop chain conveyors
was assigned to employees represented by the Ma-
chinists,2 and the maintenance of pallet conveyors
was assigned to millwrights represented by the Car-
penters. Sometime after the 1960 agreement became
effective the Employer began utilizing a mesh-top
conveyor and it assigned the maintenance of this con-
veyor system to millwrights represented by the Car-
penters. The tabletop chain conveyor and the mesh-
top conveyor are both used to convey bottles and
cans.
In April 1978 the Employer decided to replace a
portion of its tabletop conveyor system with a new
type of conveyor known as the Shuttleworth con-
veyor. On or about April 28, 1978, the Employer as-
signed to employees represented by Machinists the
work of installing the Shuttleworth conveyor on line
number four of its Milwaukee operation. The Em-
ployer did not discuss the assignment of this work
with the Carpenters prior to making the assignment.
The work of installing the Shuttleworth conveyor on
line number four was completed during the period
between April 28 and May 1, 1978. The Shuttleworth
conveyor replaced a section of tabletop chain con-
veyor.
On May 2, 1978, the Carpenters filed a grievance in
protest of the Employer's failure to award the instal-
lation and maintenance of the Shuttleworth conveyor
to employees represented by the Carpenters. The
grievance referred specifically to item 23 of the 1960
jurisdictional agreement. On May 26, 1978, the Em-
ployer gave the following answer to the Carpenters'
grievance:
The shuttle-worth [sic] conveyor installed on line
#4 will be assigned to the Millwrights effective
5/29/78, in accordance with the October 3, 1960
agreement signed by the Millwrights and Ma-
chinists.
Thereafter, maintenance of the Shuttleworth con-
veyor was assigned to millwrights represented by the
I Item 15 of the agreement awards work on "Elevators-Hydraulic Equip-
ment" to machinists. and item 73 awards work on hydraulic dnves and
elevators on pallet conveyors to machinists. Item 72 awards all other work
on pallet conveyors to millwrights. There are no additional references to
conveyors in the agreement.
2 Prior to the effective date of the 1960 agreement, the Employer utitlized
a belt-type conveyor and assigned the work of maintaining this conveyor to
the millwrights. A few years before the parties entered into the 1960 agree-
ment, the Employer replaced the belt-type system with a table-top chain
system and assigned the maintenance of the table-top chain system to the
machinists.
Carpenters, and this assignment was still in effect at
the time of the hearing.3
On June 5, 1978, the Machinists filed a grievance in
protest of the Employer's reassignment of the dis-
puted work. The Machinists' grievance referred to ar-
ticle I, section 2, of the collective-bargaining agree-
ment between the Employer and the Machinists and
to "past practice." Article I, section 2, of the contract
in effect at that time does not refer specifically to
work on conveyors. On June 6, 1978, the Employer
answered the Machinists' grievance as follows:
The Shuttle-worth [sic] conveyor installed on line
#4 was assigned to the Millwrights in accord-
ance with the October 3, 1960, agreement signed
by the Millwrights and Machinists. Grievance
denied.
The record shows that the Shuttleworth conveyor
operates on a principle different from all other con-
veyors in operation at the Employer's Milwaukee fa-
cility, including the tabletop chain conveyor and the
mesh-top conveyor. Furthermore, the Employer's
plant engineer, Arnold J. Luedtke, gave uncontra-
dicted testimony that the Shuttleworth conveyor is a
new type of conveyor which had not been previously
used by the Employer at its Milwaukee operation.
C. Contentions of the Parties
Although the Employer reassigned the disputed
work on the basis of the 1960jurisdictional agreement
and adhered to that reassignment when presented a
grievance by the Machinists, it took the position at
the hearing that the work in dispute should be as-
signed to employees represented by the Machinists
rather than to employees represented by the Carpen-
ters. The Employer states that its preference is based
upon (a) past practice; (b) the avoidance of "split ju-
risdictional problems" which may arise in instances
where the Shuttleworth and the table top chain con-
veyors are connected; and (c) the fact that machinists
are "more familiar" with conveyors used for the pur-
pose of conveying "individual bottles and cans." The
Machinists contends that the work should be assigned
to its members on the basis of past practice, efficiency
of operation, and economy. Futhermore, the Machin-
ists contends that the 1960 agreement should be inter-
preted as referring only to work that was in existence
at the time the parties entered into the agreement.
The Carpenters contends that the work in dispute
should be assigned to millwrights on the basis of (a)
the 1960 agreement and the interpretation given to
the 1960 agreement by the Employer at the time it
The record reflects that the reassignment of the disputed work to the
rmllwrights represented a settlement of the Carpenters' grievance by and
between the Employer and the Carpenters
319
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reassigned the work from the machinists to the mill-
wrights: (b) the fact that the Employer assigned work
on mesh-top conveyors to the millwrights: and (c) the
fact that the millwrights possess the skills necessary to
perform the disputed work.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act. it must be satisfied that there is reasonable cause
to believe that Section 8(b)(4)(D) has been violated
and that there is no agreed-upon method for the vol-
untary settlement of the dispute.4 The Machinists'
grand lodge representative. Kenneth W. Black. stipu-
lated at the hearing that on or about January 8. 1979.
the Machinists made a threat to the Employer that it
would engage in a strike in furtherance of its claim
that the work in dispute should be assigned to em-
ployees represented by the Machinists.
Furthermore. the parties stipulated, and we find.
that there exists no agreed-upon method for the vol-
untary settlement of the dispute. Accordingly, we find
that this dispute is properly before the Board fior de-
termination 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 jurisdictional dispute
is an act of judgment based on commonsense and
experience reached by balancing those factors in-
volved in a particular case.5
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements and present
assignment
Initially, we have considered the collective-bar-
gaining agreements between the Employer and the
Carpenters and between the Employer and the Ma-
chinists outside the context of the 1960 jurisdictional
agreement. Upon consideration of these contracts in
that light, we find that they are not useful in making
our determination.
In addition, we have considered the 1960 jurisdic-
tional agreement and the awards made since the
agreement became effective on October 3. 1960. In
this regard, we have carefully considered the testi-
'N.L.R.B. v. Radio & Tele iso,, Broadcast Eniginlcrs L U'/vi. b, Lol 1212,.
International Brotherho d of Elertrical W,r err. .4 Fl. (10 (0dolilha Bro/ld-
casting System]. 364 U.S. 573 (1961).
lnrernaicinal A.sscxiation ofMoachinits. L.odge N. 1 74. AF1. ( /0 (J. .
Jones Constructiown (Conimpay). 135 NLRB 1402 (1962).
mony of the Employer's director of engineering.
Frederick J. Hicks. Hicks, who was employed by the
Employer at its Milwaukee operation at the time that
the parties entered into the 1960 agreement. testified
that it was his "thought" that the agreement covered
only the work in existence at the time the agreement
was consummated. In addition. Hicks testified that 't
"was not the intent on my part" to assign future
work. However, there is no evidence to show what, if
anything, an)' of the parties said or did during the
course of bargaining to indicate that it was the mu-
tual intent of the parties to restrict work assignments
to existing jobs and functions. Thus. there is no sup-
port in the record for Hicks' belief that the 1960
agreement did not cover jobs and functions created
after 1960 or fbr his conclusion that the Employer
erred in reassigning work on the Shuttleworth con-
veyor.
As noted herein, there appear to have been two
occasions since the 1960 agreement became effective
on which the Employer introduced new or different
conveyors. once when it began using the mesh-top
conveyor and later when it introduced the Shuttle-
worth conveyor. After the mesh-top conveyor was in-
stalled, the work of maintaining that conveyor was
assigned to the millwrights. It appears that this as-
signment was consistent with the 1960 agreement.
Furthermore. the record fails to show that there has
been any dispute over the assignment of work on the
mesh-top conveyor. After the Shuttleworth conveyor
was installed, the F[-mploer initially assigned the
work on it to machinists and then decided, in light of
the 1960 jurisdictional agreement, to award the work
to millwrights. Thus, the Employer not only changed
its initial assignment on the Shuttleworth conveyor.
but did so in specific reliance upon the 1960 agree-
ment.
Upon consideration. we find that the 1960jurisdic-
tional agreement and the Employer's present assign-
ment favor awarding the work in dispute to employ-
ees represented by the Carpenters.
2. Employee skills and efficiency of operation
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
efficienc.' Accordingly. the factors of emploN ee skill
b In this regard. we hase conisidered the tesrimon, ot Plalnl Engineer Ar-
nold Luedtke that assignment of1 Ihe Aork to mach inists would a;olod the
posslhilit otf lsigniig work on one continulous con\eor ioperation Ior to
sepa:rate Crail. I.uedtke testified. howeer. that assignmenl o the work to
the millw rights has not resulted in ans more downfliime han when the work
was assigned It) the machinists. In according preference to the machinists.
l.uedtke said he elt that machinists had more experience thant IlliYghtls in
preforming work on consesors thalt carrs IndilidIual hboltles a id canll,
lw Ce'.er there is no showing tha eperience in ihe the alhletp cliai i colllstl
prosided the ilaichinist ls tihll speci./led kill tr perlorming ork in
320
DISTRICT =10 AEROSPACE WORKERS
and efficiency of operation favor neither group and
are neutral in resolving the dispute before us.
3. Industry practice
The Employer's plant engineer. Arnold J. Luedtke.
testified that prior to the installation of the Shuttle-
worth conveyor at the Employer's Milwaukee opera-
tion, a "similar" type of Shuttleworth conveyor was
placed in operation at a Schlitz plant in Syracuse.
New York. He testified that installation and mainte-
nance of the conveyor system at the Syracuse location
was assigned by Schlitz to employees represented b5
Machinists. There is no additional evidence regarding
industry practice. We find that the assignment of
work at the Schlitz plant in Syracuse is insufficient to
establish a practice in the industry.
4. The Employer's preference
In view of the facts of this case, we are unwilling to
give substantial weight to the factors relied upon b
the Employer in according preference to its employ-
ees who are represented by Machinists. Moreover. we
conclude that, in the circumstances of this case, the
Employer's current preference is contrary to the
weight of other relevant factors. Accordingly. we find
that even though the Employer's present preference is
a factor which favors awarding the disputed work to
employees represented by Machinists, it is not enti-
tled to controlling weight.
Conclusion
Having considered all pertinent factors present
herein, we conclude that employees represented b)
the Shuttleworth conveyor. In addition. Luedtke said that he wsas of the
opinion that the experience of machinists on conveyors carrying Individual
bottles and cans amounted to "past practice" which favored machinists liver
millwrights. As noted herein, however, the Shuttleworth *was a tpe of con-
veyor not previously used at the Emplo)er's Milwaukee operation. Further-
more, the millwrights, as well as the machinists, had performed work on
conveyors used for carrying bottles and cans for some sears prior to 1978
Carpenters are entitled to perform the work in dis-
pute. In making this determination, we are awarding
the work in question to employees represented by
Carpenters. but not to that Union or its members.
Our 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 and the entire record in this proceeding, the
National Labor Relations Board makes the following
Determination of Dispute:
I. Employees employed by Pabst Brewing Com-
pany who are represented by Carpenters District
Council of Milwaukee County and Vicinity of the
United Brotherhood of Carpenters and Joiners of
America. AFI. CIO, are entitled to perform the work
of installation and maintenance of the Shuttleworth
conveyor on line number four at the Employer's op-
eration in Milwaukee. Wisconsin.
2. District No. 10 of the International Association
of Machinists and Aerospace Workers. AFL -CIO. is
not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require Pabst Brew-
ing Company to assign the aforementioned work to
employees represented b,, that labor organization.
3. Within 10 dads of the date of this Decision and
Determination of Dispute. District No. 10 of the In-
ternational Association of Machinists and Aerospace
Workers. AFL ('10. shall notify the Regional Direc-
tor for Region 30. in writing. whether or not it will
refrain from forcing or requiring Pabst Brewing Com-
pany. bh means proscribed by Section 8(b)(4(D) of'
the Act. to assign the work in dispute to employees
represented b District No. 10 of the International
Association of Machinists and Aerospace Workers.
AFL-CIO. rather than employees represented by
Carpenters District Council of Milwaukee County
and Vicinity of the United Brotherhood of Carpen-
ters and Joiners of America. AFL-CIO.
321