Local 470, Teamsters

National Labor Relations Board - Board Decisions

Dec 6, 1971

194 N.L.R.B. 434 (N.L.R.B. 1971)

434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 470, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America
and H . Perilstein Glass Company and Local 1166,
Glassworkers of Philadelphia and Vicinity , Interna-
tional Brotherhood of Painters and Allied Trades .'
Case 4-CD-254
December 6, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by H. Perilstein Glass Company, herein
called the Employer, under Section 8(b)(4)(D) of the
Act. The charge alleges, in substance, that Local 470,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, herein called
Teamsters, coerced and restrained the Employer by
threatening to engage in and thereafter engaging in a
work stoppage in order to force or require the
Employer to assign particular work to members of
Teamsters rather than to members of Local 1166,,
Glassworkers of Philadelphia and Vicinity, Interna-
tional Brotherhood of Painters and Allied Trades,
herein called Glassworkers. Duly scheduled hearings
were held on July 14, July 28, and August 4, 1971, at
Philadelphia, Pennsylvania, before Hearing Officer
Alfred Vitarelli. All parties appeared at the hearing
and were afforded a full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence on the issues. Thereafter, briefs were filed by
the Employer, Teamsters, and Glassworkers.
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 hearings and finds that they are
free from prejudicial error. The rulings are hereby
affirmed. The Board has considered the entire record
in this proceeding, including the briefs, and hereby
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer is engaged in the fabrication, warehousing,
and distribution of glass at its Philadelphia, Pennsyl-
vania, facility, as well as at other of its facilities which
it operates in various cities of the United States, that
1 The name of this party, which intervened on the basis of its collective-
bargaining relationship with H Penistein Glass Company, appears as
during the past year its total sales exceeded $500,000,
and that during this same period, it has shipped goods
valued in excess of $500,000 from its Philadelphia,
Pennsylvania, plant to points located outside the
Commonwealth of Pennsylvania. The parties further
stipulated, and we find, that the Employer is engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act. We further find 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 Teamsters
and Glassworkers are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Background Facts
The Employer has 20 locations throughout the
country where it is engaged in the business of
fabricating, warehousing, distributing, and installing
flat-glass products. Its Philadelphia, Pennsylvania,
plant only is involved in the instant dispute which
concerns the operation of a forklift utilized in loading
and unloading raw and finished materials and
products onto and from trucks, and transporting such
materials and products on, to, from, and inside the
Employer's dock, warehouse, and plant. At the time
of the dispute, and for 33 years prior thereto, the
Employer was bound by collective-bargaining agree-
ments with both Teamsters, which represents the
Employer's drivers, and Glassworkers, which repre-
sents all of the Employer's inside glassworkers except
glaziers.
With respect to the instant dispute, the record shows
that from 1937 to 1968, the Employer had no loading
platform at its plant, which was divided by a public
thoroughfare, and that the work of loading and
unloading trucks was performed in and about the city
streets, first manually and, since the mid-1940's, by
forklift. Glassworkers, who theretofore had per-
formed this work manually, were then assigned the
forklift to perform not only this particular work, but
also all forklift work within the Employer's plant.
Undesignated members of Glassworkers continued to
perform the foregoing work until August 1958, when
the Employer specifically assigned the outside forklift
work to Glassworkers member Davis in order to
provide him with -a job. At or about this same time,
Teamsters demanded the forklift work involved in
loading and unloading trucks, arguing that, since the
forklift carried a state license tag and was operated on
city streets, such constituted transportation and
amended at the hearing.
194 NLRB No. 64
LOCAL 470, TEAMSTERS 435
required a Teamsters driver. The Employer then
reassigned this facet of forklift work to Teamsters,
and Davis, who then became a Teamsters member,
continued to operate the forklift until his departure in
1964. The Employer, however, also allowed Davis to
perform forklift work inside the plant because it
became "annoying" to change from a Teamsters to a
Glassworkers operator at the plant door, thereby
enlarging its assignment to Teamsters.
During the 3 to 4 years after Davis' departure, no
specific individual was assigned to the forklift which
Teamsters continued to operate, both outside and
inside the plant, almost exclusively, or at least a
majority of the time.
By or in January 1968, the Employer had consoli-
dated its entire Philadelphia operation under one
roof, thereby eliminating both the necessity of using
the forklift on city streets and the grounds utilized by
Teamsters in claiming the work. The Employer
thereupon reassigned all forklift operations to mem-
bers of Glassworkers. The record shows that such
work consumes approximately 3 hours daily, half of
which time is devoted to loading and unloading trucks
at the Employer's platform, or dock, and the remain-
der to the movement of merchandise inside the
warehouse, the movement of raw material from
storage areas into cutting or fabricating areas, and the
movement of finished products to the washing or
packing departments or storage areas.
Shortly thereafter, the parties to the dispute attend-
ed a meeting, where, according to Teamsters presi-
dent, the dispute was settled through a verbal
agreement proposed by the Employer's plant manager
providing that "as long as there was 12 Teamsters on
the payroll, they [Glassworkers ] could operate the
forklift. When and if it went down below 12, a
Teamster would drive it." This testimony was contest-
ed by the Employer's plant manager who stated that
he had presented the foregoing plan at the meeting as
an offer only, and that although "there was an
acquiescence on the part of all the parties involved,
without signing anything, that there would be no
further course of action. . . . We did not come up
with a resolution in the meetings." Glassworkers vice
president , who also was at the meeting, stated that, to
his knowledge, the forklift operation was not dis-
cussed at the meeting. In any event , on January 25,
1968, the Employer reduced its foregoing proposal to
writing and submitted it to both Unions in the form of
an undated agreement signed by the Employer.
Neither Union executed the tendered agreement
which, Teamsters claim, nevertheless is binding as an
oral "gentlemen 's agreement," and which Glasswork-
ers characterize as being "very irregular."
Glassworkers continued to perform all forklift work
without controversy until a teamster was laid off,
thereby reducing below 12 the number of Teamsters
employed. Shortly thereafter, on either May 15.or 17,
1971, all Teamsters employed by the Employer
engaged in a 1-day work stoppage . According to the
uncontradicted testimony of the Employer 's presi-
dent, Teamsters Business Agent McCaffrey told him
that the work stoppage was occasioned by the
Employer 's failure to "Keep our word about some-
thing," that Teamsters "wanted the forklift work .. .
the platform loading, unloading . . . [and] everything
in sight," and that he, McCaffrey , was going to make
sure that "he got the forklift and other [undisclosed]
things which were in contention ." The Employer then
filed the charges which gave rise to this proceeding.
Prior to the commencement of the hearing, howev-
er, Teamsters and Glassworkers had submitted their
controversy to their respective International Unions
for a joint determination which , these parties agreed,
would be binding on them . Because of certain
apparently unavoidable delays at the International
level, the dispute still was unresolved as of the time of
the hearing when Teamsters moved for a continuance
until such time as the Internationals rendered a
determination which, thereby, would "voluntarily
settle this matter ." Glassworkers agreed to a continu-
ance and iterated its agreement to be bound by the
Internationals' determination . The Employer, howev-
er, while not objecting to a continuance , refused to be
bound if the Internationals rendered a determination
which "purports to split up the operation of the fork-
lift between the competing Unions." The Hearing
Officer thereupon denied the motion for continuance.
B. The Work in Dispute
The record shows that the work in dispute concerns
the operation of a forklift utilized in loading and
unloading raw and finished materials and products
onto and from trucks, and transporting such materials
and products on, to, from, and inside the Employer's
dock, warehouse, and plant. Teamsters specifically
disclaim the assignment of all loading, unloading, and
other work unrelated to the forklift.
C. Contentions of the Parties
The Employer contends that the disputed work
should be awarded to members of Glassworkers on
the basis of the Employer's assignment of such work
to members of this Union, its past practice , its practice
at its 19 other locations throughout the United States,
industry practice within the Philadelphia area, and
considerations of skill, economy, and efficiency. The
Employer also contends , in substance and effect, that
its 10-year assignment of the disputed work to
Teamsters was occasioned by special circumstances
which were negated when it consolidated its operation
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that, even during this period, Teamsters did not
operate the forklift exclusively. The Employer further
contends that its proposal to award the disputed work
to Teamsters whenever it employed less than 12
drivers is legally irrelevant since it was not executed
by any of the parties. The Employer also contends
that, while its bargaining agreements with each
disputant favors neither, Teamsters reliance on the
foregoing proposal as an "unexecuted modification"
of its bargaining agreement amounts to an admission
that its contract, without such modification, does not
award the work to it.
Glassworkers urges the Board to assign the disputed
work to its members for substantially the same
reasons as set forth by the Employer. Glassworkers
also contends, in substance, that Teamsters reliance
on the Employer's oral "offer" to assign the disputed
work to Teamsters whenever less than 12 Teamsters
members are employed by the Employer indicates
that Teamsters is not claiming the work on an
exclusive basis, or even seriously contending that the
work was improperly assigned to Glassworkers, and
urgues that this relied-upon ground is an unprece-
dented basis on which to predicate an award.
Teamsters contends that all of the parties to the
dispute have agreed to a "continuance [of this
proceeding] so that the respective International
Unions involved could work to arrange a settlement
of the matter." Teamsters further contends that all
parties also agreed on the foregoing method of
settlement, and that these agreements constitute a
method for the voluntary adjustment of the dispute
within the meaning of Section 10(k) of the Act. Based
thereon, Teamsters argues that both the Act and
Board decisions preclude the Board from determining
the dispute, and that the Board must grant the
requested continuance which its Hearing Officer
erroneously rejected so that the dispute may be
adjusted by "the two International Unions involved
[which ] are still negotiating toward a settlement...."
In like vein, Teamsters argues, in effect, that the
parties orally agreed to utilize a teamster on the
forklift whenever less than 12 Teamsters were
employed, and that such constitutes "an oral, if not
formal, understanding for a settlement of the prob-
lem."
Alternatively, Teamsters contends that the disputed
work should be assigned to its members on the basis
2 L & K Contracting Company, Inc., 186 NLRB No. 152, Sicihano
Brothers Inc, 185 NLRB No. 115; Lathers Union Local 104, The Wood,
Wire and Metal Lathers International Union, AFL-CIO. (The Blaine Petty
Company), 186 NLRB No 70; Plasterers Local Union No. 79 (Southwestern
Construction Company), 172 NLRB No 77, enforcement denied 440 F 2d
174, cert granted U.S
3 We find no meat in Teamsters contentions that the parties orally
agreed that the disputed work would be reassigned from Glassworkers to
Teamsters whenever less than 12 teamsters were on the payroll, and that
such agreement constitutes an "oral . understanding for settlement of
of its bargaining agreement and past practice; i.e., the
10 years during which its members performed the
work.
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 there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated.
As previously set forth, following the layoff of one
of its members, Teamsters, through its business agent,
McCaffrey, accused the Employer of failing "to keep
[its] word about something," further stated that
Teamsters wanted the forklift work as well as "other
things which were in contention," and engaged in a
work stoppage for the declared purpose of compelling
the Employer to reassign the disputed work to its
members.
As to Teamsters arguments concerning the authori-
ty of the Board to determine this dispute, we have
consistently held in our 10(k) determinations that the
employer controlling the work assignment as well as
the rival unions involved comprise the parties to such
dispute, and that all of the parties must approve and
enter into a voluntary adjustment procedure in order
to preclude a hearing and determination pursuant to
that section of the Act.2
The record affirmatively shows, however, that the
Employer did not either approve or enter into an
adjustment procedure since its acquiescence in both
Teamsters motion for a continuance and the proposed
settlement procedure was preconditioned on the
Employer's specific refusal to be bound by any joint-
union determination unless it agreed with that determi-
nation . We find, therefore, that all of the parties failed
to approve and enter into a voluntary adjustment
procedure, as required by Section 10(k) of the Act. We
further find that the Hearing Officer properly denied
Teamsters motion for continuance. Accordingly, we
find that the Board is not precluded from making its
determination in this proceeding.3
E. Merits of the Dispute
We shall, in conformity with the J. A. Jones caue4
the problem " Inasmuch as the record clearly shows that Glassworkers vice
president attended the meeting at which the foregoing "agreement"
allegedly was made but was completely unaware of any discussion
whatsoever concerning the forklift, it is apparent that the parties did not
enter into the claimed "agreement" for settlement , or an "oral . .
understanding for settlement," or that , as is implied in these contentions,
the dispute was thusly settled, thereby precluding the necessity of a hearing
and a Board determination of the dispute.
4 International Association of Machinists, Lodge No. 1743, AFL-CIO (J
A Jones Construction Company), 135 NLRB 1402.
LOCAL 470, TEAMSTERS 437
and pursuant to the Supreme Court's C.B.S.
decision,5 determine in this case presented for
resolution under Section 10(k) of the Act the
appropriate assignment of the disputed work after
taking into account and balancing all relevant factors.
1. Collective-bargaining agreements
As previously indicated, the Employer and Team-
sters are parties to national and local cartage
bargaining agreements which cover, inter alia,
"employees used in . . . forklift . . . work," and
which also set forth the pay rates for such classifica-
tion. The Employer's bargaining agreement with
Glassworkers covers employees engaged in
"fabricating, jobbing and handling of glass." While it
is arguable that the specific language of Teamsters
agreement is a factor favoring an award to Teamsters,
the actualities show that Teamsters neither performed
the disputed work subsequent to the effective date of
its agreements, nor relied on those agreements when,
over a year later, it claimed the work on the basis of a
nonbinding "oral . . . understanding" which it later
refused to execute when reduced to writing. Converse-
ly, the absence of specific language in Glassworkers
agreement indicating that a forklift was to be utilized
by its members in their "handling of glass" does not
negate the fact that they, in fact, performed that work
with that machine, despite Teamsters agreements. In
view of the foregoing, it appears that the respective
agreements merely corroborate the claims of the
disputants and do not clearly and uniformly favor or
disfavor either labor organization.
2. Skill, efficiency, and economy
There is nothing in the record to indicate that
members of the competing labor organizations cannot
perform the disputed work with equal skill. That
work, however, consumes only 3 hours daily and is
included within the tasks performed by Glassworkers.
In addition, Teamsters agreement provides that
employees who either are called in or start to work
shall be paid for 8 hours. In view of the foregoing, an
award of the work to Teamsters not only could
require the Employer to utilize or hire additional
unnecessary employees, but also would impair the
efficient use of its manpower (particularly if the
employee assigned this work was restricted to this
operation), increase its operating costs, and affect the
flexibility and economy of its operation.
5 N L R B v Radio & Television Broadcast Engineers Union, Local 1212,
Electrical Workers (Columbia Broadcasting System), 364 U S. 573
6 We note further in this regard that the Employer's assignment of the
work to Teamsters members was predicated on Teamsters claim that the
3. The Employer' s preference and company
and area practice
The Employer strongly favors an award to its
employees who are members of Glassworkers. The
industrial practice within the Employer's Philadelphia
area of operation as well as its practice at its 19 other
locations throughout the United States also favors an
award to those members.
The record shows in this regard that, in the
Philadelphia area, members of Teamsters employed
by glass companies perform forklift operations for a
few concerns which utilize forklifts on the waterfront,
and for a company whose forklift operations are
conducted on city streets, as the Employer's once was.
Beyond the foregoing, Teamsters introduced virtually
no evidence of area practice. The Employer and
Glassworkers, on the other hand, offered evidence
showing that, except as noted above, only members of
Glassworkers perform the disputed work at six area
glass companies which are comparable to, or larger in
size than, the Employer, and that historically, only
those members have performed this work at some of
those concerns. In addition, undisputed testimony in
the Employer's behalf indicates that only Glasswork-
ers members perform the work at the Employer's 19
other locations.
In view of the foregoing, and considering further the
fact that members of Glassworkers performed the
disputed work for 12 years prior and 3 years
subsequent to the 10-year period during which
Teamsters members performed it, it would appear
that the period of Teamsters performance does not
constitute an established Employer practice favorable
to Teamsters and is an exception to established
industry practice within the areas It appears, there-
fore, that within the context of the proffered evidence,
the foregoing factors favor an award to members of
Glassworkers.
Conclusion
Having considered all pertinent factors present
herein, we conclude that employees represented by
Glassworkers are entitled to perform the work in
dispute. In making this determination, we are assign-
ing the disputed work to the employees of the
Employer who are represented by Glassworkers, but
not to that Union or its members. Our present
determination is limited to the particular controversy
which gave rise to this proceeding.
operation of the forklift on city streets involved transportation , and that its
assignment of the work terminated when its reasons for claiming the work
terminated
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF DISPUTE to employees employed by H. Perilstein Glass
Company who are represented by Local 470, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 470, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, shall notify the
Regional Director for Region 4, in writing, whether or
not it will refrain from forcing or requiring H.
Perilstein Glass Company, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the work in
dispute to employees employed by H. Perilstein Glass
Company who are represented by Local 470, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, rather than to
employees employed by H. Perilstein Glass Company
who are represented by Local 1166, Glassworkers of
Philadelphia and Vicinity, International Brotherhood
of Painters and Allied Trades.
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and on 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:
1. Employees employed by H. Perilstein Glass
Company who are represented by Local 1166,
Glassworkers of Philadelphia and Vicinity, Interna-
tional Brotherhood of Painters and Allied Trades, are
entitled to perform the work of operating the forklift
utilized in loading and unloading raw and finished
materials and products onto and from trucks, and
transporting such products on, to, from, and inside
the Employer's dock, warehouse, and plant.
2. Local 470, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require H.
Perilstein Glass Company to assign such forklift work