IAM, District Lodge 115

National Labor Relations Board - Board Decisions

Sep 16, 1975

220 N.L.R.B. 369 (N.L.R.B. 1975)

IAM, DISTRICT LODGE 115 369
International Association of Machinists and Aero-
space Workers , AFL-CIO, District Lodge 115, Lo-
cal Lodge 824' and Myers Drum Company and
General Truck Drivers , Warehousemen , Helpers
and Automotive Employees of Contra Costa Coun-
ty, Local 315, IBTCWHA . Case 20-CD-456
September 16, 1975
DECISION AND DETERMINATION OF
DISPUTE
Employer's facility located in Richmond, California,
is involved in this proceeding. The Employer is en-
gaged in the manufacture of steel pails and drums
and the reconditioning of steel drums. During the 12
months preceding June 30, 1975, the Employer sold
and shipped goods valued in excess of $50,000 to lo-
cations directly outside the State of California. We
find that the Employer is engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act and
that it will effectuate the purposes of the Act to assert
jurisdiction herein.
BY MEMBERS FANNING, JENKINS, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed on April 16, 1975, by Myers Drum
Company, herein called the Employer, alleging that
International Association of Machinists and Aero-
space Workers, AFL-CIO, District Lodge 115, Local
Lodge 824, herein called the Machinists, violated
Section 8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or re-
quiring the Employer to assign certain work to em-
ployees represented by the Machinists rather than to
employees represented by General Truck Drivers,
Warehousemen, Helpers and Automotive Employees
of Contra Costa County, Local 315, IBTCWHA,
herein called the Teamsters.
Pursuant to notice, a hearing was held before
Hearing Officer Paula J. Paley on June 4 and July 1,
1975. All parties, including the Employer, the Ma-
chinists , and the Teamsters, 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, the Em-
ployer filed a brief.
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 rulings made by the
Hearing Officer at the hearing and finds they are free
from prejudicial error. The rulings are hereby af-
firmed. Upon the entire record in this case, including
the aforementioned brief, the Board makes the fol-
lowing findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that Myers
Drum Company is a wholly owned subsidiary of
Kaiser Steel Corp., a Nevada corporation. Only the
1 The Machinists name appears as amended at the hearing.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Ma-
chinists and the Teamsters are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The work in dispute is the manual loading and
unloading of the Employer 's trucks and other truck
equipment at the Richmond , California , plant.
B. Background and Facts
On April 3, 1975, Teamsters Joint Council 7 La-
bor-Management Committee issued a decision in fa-
vor of the Teamsters on a grievance presented to it
by the Union alleging a violation of its collective-
bargaining agreement with the Employer in that em-
ployees represented by the Machinists were being
utilized to load the Employer's product into its
trucks. The Machinists was not a party to these pro-
ceedings. On April 7, 1975, the Employer informed
Machinists Business Agent Ronald Silva that, pur-
suant to the decision, the disputed work would be
assigned to the employees represented by the Team-
sters. That same day, Silva wrote a letter to Carl
Cundiff, manager of the Richmond facility, claiming
the disputed work for the employees represented by
the Machinists and stating that, should the work be
assigned to the employees represented by the Team-
sters, the Machinists would consider the Employer in
breach of the Machinists collective-bargaining agree-
ment with Employer and would "immediately vacate
and strike your plant until the correction of the as-
signment is made."
C. Contentions of the Parties
The Machinists claims the disputed work should
be assigned to the employees it represents based on
220 NLRB No. 67
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Employer's past practice, economy and efficien-
cy, necessary skills, and its collective-bargaining con-
tract.
The Employer prefers assignment of the disputed
work to the employees represented by the Machinists
based primarily on considerations of economy and
efficiency. The Employer further contends that as-
signment to the employees represented by the Ma-
chinists is consistent with its past practice and its
relevant contractual obligations.
The Teamsters contends that the Employer is obli-
gated to assign the disputed work to the employees it
represents based on its collective-bargaining agree-
ment and on the past practice of the Employer.
D. Applicability of the Statute
Section 10(k) of the Act empowers the Board to
determine a dispute out of which an 8(b)(4)(D)
charge has arisen . However, before the Board pro-
ceeds with a determination of dispute, it must be sat-
isfied 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 voluntary settle-
ment of the dispute.
As previously stated, the Machinists, after being
informed that the Employer intended to assign the
disputed work to the employees represented by the
Teamsters, threatened to strike the plant until the
disputed work was assigned to the employees repre-
sented by the Machinists.
No party contends, and the record discloses no ev-
idence showing, that an agreed-upon method for the
voluntary adjustment of the instant dispute exists to
which all parties are bound.
On the basis of the above-described threat and the
record as a whole, we find there is reasonable cause
to believe that a violation of Section 8(b)(4)(D) has
occurred and that the 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 that the Board
make an affirmative award of the disputed work af-
ter giving due consideration to various relevant fac-
tors.
1. Certification and collective-bargaining
agreements
There is no evidence that either of the contending
Unions has ever been certified by the Board. The
collective-bargaining agreements of both Unions
cover the disputed work. The Teamsters contract
contains article 47, section 2(a), which states that
"loading or unloading by hand of trucks, trailers, or
vans or any other equipment used as a truck, trailer
or van shall continue to be recognized as bargaining
unit work." The aforementioned arbitration decision
based on that section and deciding the dispute be-
tween the Employer and the Teamsters does not con-
stitute an assignment of the disputed work and is not
controlling herein since the Machinists did not par-
ticipate in the arbitration? The Machinists contract
contains the job classification "carloader/truckload-
er." The record reveals that in the mid-1950's the
Employer commenced using trucks, as well as rail,
for its shipping. At that time, employees represented
by the Machinists in the carloader classification
loaded and unloaded trucks, as well as railroad cars.
The truckloader classification was added as an
amendment to the agreement in 1968 at the
Employer's request to more accurately reflect the ex-
isting situation. Since both collective-bargaining
agreements cover the disputed work, we find that this
factor is not helpful to our determination.
2. Area or industry practice
The Employer's facility is patterned after Rheem
Drum Manufacturing Company which is located
within the geographical jurisdiction of the instant
Machinists and Teamsters Unions. When Myers
Drum Company began operations, it adopted the
same job classifications as those existing at Rheem.
The record reveals that a similar work dispute exists
at that company between the instant Unions. There-
fore, this factor favors neither bargaining unit.
3. Employer's practice
The Employer has four other plants in California
and Oregon. The employees at these plants are repre-
sented by unions different from those involved here-
in and each plant has developed its own work prac-
tices with regard to the assignment of loading and
unloading trucks.
The Richmond facility, involved herein, began op-
erations in 1949. Almost immediately the Machinists
was certified as the representative of all production
and maintenance employees. As previously ex-
plained, the parties adopted the job classification
scheme used at the Rheem Drum Company, includ-
ing the carloader classification. Employees in this
classification were responsible for loading the fin-
2 Newspaper & Mail Deliverers' Union of New York City and Vicinity (The
New York Times Company), 152 NLRB 871 (1965).
IAM, DISTRICT LODGE 115
ished product into railcars and unloading raw mate-
rials. In the middle 1950's the Employer began to
acquire its own trucks for delivering its product. Em-
ployees represented by the Machinists in the carload-
er classification were used to load and unload the
trucks.
In 1956 the Employer voluntarily recognized the
Teamsters as the representative of its drivers. The
record reveals that the drivers often participated in
the loading and unloading process over the years, but
less so over the last 4 or 5 years . The decline in their
participation recently is due to the fact that the Em-
ployer has acquired additional truck trailers in order
that continuous loading may take place while the
drivers are away.
Though the Employer 's past practice has been
somewhat mixed, we find upon the evidence present-
ed that the predominant past practice tends to favor
assignment to the employees represented by the Ma-
chinists.
4. Interunion agreement
One Teamsters witness testified that he overheard
the making of an alleged agreement between a Mr.
Swisher of the Machinists and a Mr. Simon of the
Teamsters in 1966 that as Machinists -represented
carloader/truckloader employees either retired or left
the work force they were to be replaced by Team-
sters-represented employees . The witness conceded
that the Employer was never apprised of any such
agreement . In addition , he did not know whether the
agreement was ever recorded by either of the parties.
A former business agent for the Machinists testified
that he would have known of any such agreement.
He further testified that Swisher would not have had
sufficient authority to enter into such an agreement.
There is no other evidence to support the fact that
such an agreement was ever reached , or that either
party attempted to comply with such an agreement.
The testimony regarding the existence of the agree-
ment is clearly hearsay . Furthermore , any such
agreement would not affect an assignment of all the
work . On the basis of all the foregoing , we find that
this factor is not helpful to our determination.
371
6. Employer preference
The record indicates that the Employer' s intention
over the years, based on considerations of economy
and efficiency, has been to use primarily employees
represented by the Machinists. The record further in-
dicates that the Employer maintains a preference for
this assignment. We find that this factor supports an
award of the work to the employees represented by
the Machinists.
7. Economy and efficiency
As previously mentioned, the record reveals that,
over the last 4 or 5 years the Employer has been
acquiring additional vans beyond the number of
truck tractors presently in use. The reason for these
additional acquisitions is so that continuous loading
may proceed while drivers represented by the Team-
sters are away from the yard making deliveries. This
continuous operation would be disrupted by an as-
signment to the employees represented by the Team-
sters . There would be no loading at all during the
periods that the drivers are away unless the Employ-
er were prepared to hire additional employees repre-
sented by the Teamsters and dispose of the two em-
ployees represented by the Machinists in the
truckloader classification. During the Employer's
busy season , and occasionally at other times, vans
are loaded on the swing shift. At present there are no
employees represented by the Teamsters on that
shift. Thus, additional employees represented by the
Teamsters would have to be hired to meet these
swing shift requirements. The record further reveals
that assignment of the disputed work to employees
represented by the Machinists provides the Employer
with much flexibility and economy while utilizing its
present employees. During busy periods of loading
and unloading machinists in the "Extra Man" classi-
fication can be used. During slow periods truckload-
ers can help with railroad cars or be used in some
other labor classification. On the basis of the evi-
dence presented, we find that the factors of economy
and efficiency of operation strongly favor assignment
of the disputed work to the employees represented by
the Machinists.
5. Skill
There are no special skills required in performance
of the disputed work. Thus, we find that the skill
factor does not favor assignment to either of the
competing groups of employees.
Conclusion
Upon the record as a whole, and after full consid-
eration of all relevant factors involved, we conclude
that the Employer's employees who are represented
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Machinists are cntitled to perform the work
here in dispute . In reaching this conclusion , we have
relied on the Employer 's preference , considerations
of economy and efficiency , and the Employer's pre-
dominant past practice . Accordingly, we shall de-
termine the dispute before us by awarding the work
in dispute to the Employer' s employees represented
by the Machinists , but not to that Union or its mem-
bers.
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 pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute:
Employees employed by Myers Drum Company
currently represented by International Association of
Machinists and Aerospace Workers, AFL-CIO, Dis-
trict Lodge 115, Local Lodge 824, are entitled to per-
form the work in dispute.