Local Lodge 2040, IAM

National Labor Relations Board - Board Decisions

Sep 16, 1968

172 N.L.R.B. 2046 (N.L.R.B. 1968)

2046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Lodge 2040 of the International Association of
Machinists and Aerospace Workers, AFL-CIO
and its Agent , Paul E . Morris and Millwrights
Local Union 1080 , United Brotherhood of Car-
penters and Joiners of America , AFL-CIO and
Sterling Brewers, Inc. and Associated Millwrights,
Inc. Case 25-CD-68
Party, and Sterling Brewers, Inc., have filed briefs
which have been duly considered.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYERS
September 16, 1968
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing a charge filed by Millwrights Local Union
1080, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, hereinafter called
Millwrights or Local 1080, alleging that Local
Lodge 2040 of the International Association of
Machinists and Aerospace Workers, AFL-CIO,
hereinafter called Machinists or Lodge 2040, and
its agent, Paul E. Morris, had violated Section
8(b)(4)(i) and (ii)(D) of the Act The charge al-
leges, in substance, that Lodge 2040, through Mor-
ris, threatened to strike Sterling Brewers, Inc.,
hereinafter referred to as Sterling, and the As-
sociated Millwrights, Inc., hereinafter referred to as
Associated, with an object of forcing or requiring
Sterling and Associated to assign certain work to
members of the Machinists, which work Associated
was performing, pursuant to a contract with
Sterling, on the latter's premises, rather than to the
Millwrights employed by Associated. A hearing was
held on May 15, 16, and 17, 1968,' before Hearing
Officer Milford R. Limesand. All parties par-
ticipated in the hearing and were afforded full op-
portunity to be heard, to examine and cross-ex-
amine witnesses, and to adduce evidence bearing
on the issues.
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
powers in connection with this case to a three-
member panel.
The rulings of the Hearing Officer made at the
hearing are free from prejudicial error and are
hereby affirmed. The Respondents, the Charging
All dates herein are 1968 unless otherwise indicated
The work covered by the contract consisted of the installation of a con-
veyor (overhead) system of approximately 260 feet of conveyor and a
Sterling Brewers, Inc., an Indiana corporation
located in Evansville, Indiana, is engaged in the
manufacture and sale of malt beverage products. It
was stipulated at the hearing that during the past
year, which is a representative period, Sterling
manufactured, sold, and shipped goods valued in
excess of $50,000 directly to its Evansville plant
from points outside the State of Indiana.
Associated Millwrights, Inc., an Ohio corpora-
tion, is engaged in the general construction busi-
ness, and operates a plant located in Cincinnati,
Ohio, where it manufactures conveyors. It was
stipulated at the hearing that Associated during the
last year, which is a representative period, per-
formed services valued in excess of $50,000 for
customers located outside the State of Ohio.
We find, accordingly, that the above-named Em-
ployers are engaged in commerce within the mean-
ing of the Act, and it will effectuate the purposes of
the Act to assert jurisdiction herein.
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the
Machinists and the Millwrights are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The dispute involves work performed by em-
ployees represented by the Millwrights in the instal-
lation of a conveyor system to a new pallet loader
on the premises of Sterling Brewers, Inc., by As-
sociated Millwrights, Inc., pursuant to a contract
with Sterling, dated February 13, 1968.22
Associated has performed other conveyor work,
which work for the most part was performed on
overhead conveyors, at Sterling from 1961 to
March 1968. Associated at all times while perform-
hinged belt Also included was a moderate amount of rework of old equip-
ment and related work, including relocation of existing conveyor systems,
welding burring, and cutting
172 NLRB No. 230
LOCAL LODGE 2040 , IAM 2047
ing the above-described work used employees
represented by the Millwrights.'
Associated began the installation of the con-
veyor, which is in dispute herein, at Sterling on
February 27, having assigned two millwrights from
Local 1080 to perform the work pursuant to its
memorandum agreement with the Millwrights.
The record shows that two other companies, dur-
ing the aforementioned 10-year period, had in-
stalled or performed installations, repair, or realign-
ment work on overhead conveyor systems at
Sterling's plant, using employees represented by the
Millwrights.
B. Evidence of Conduct Violative of Section
8(b)(4)(D)
The record shows that Local 1080 assigned two
men to the Associated job at Sterling on February
27, but they were informed by the Machinists plant
steward, Barron, that the Lodge 2040 members at
Sterling would walk out and picket the job unless
the millwrights obtained Machinists books. When,
however, they attempted to secure two such books
at the office of Machinists Business Agent Morris,
he informed them that only one book would be is-
sued.' Moreover, Machinists, without being
requested to do so, referred one of its members to
the job but Associated discharged him almost im-
mediately because it considered him unqualified for
overhead conveyor work.
The record also shows that on March 7, Morris
and two Machinist job stewards informed Sterling
officials that unless Associated's millwrights on the
disputed job secured Machinist books and paid
Machinists dues, the employees represented by
Lodge 2040 at Sterling would walk off the job.
However, Morris in his affidavit, affirmed at the
hearing, stated that Machinists was of the view that
Machinists was entitled to the disputed work under
its collective-bargaining agreement with Sterling,
and that if Associated was permitted to do the
` Associated entered into a memorandum agreement with the United
Brotherhood of Carpenters and Joiners of America , AFL-CIO , on August
20, 1958 , which provided that Associated would employ millwrights in any
locality Associated performed the type of work over which the millwright
had jurisdiction The jurisdiction , as applicable here , is defined in an agree-
ment between the Associated General Contractors , Evansville Chapter and
Lower Ohio Valley District Council of Carpenters for and on behalf of
Millwrights Local Union 1080 , dated April I. 1967
4 Thereafter , Keown, business representative for the Millwrights, con-
sulted with his International about the problem and was instructed by the
International that under no circumstances should the millwrights secure
Machinists books or pay Machinists dues
' Lodge 2040 ( and its predecessor ) has had collective - bargaining agree-
ments covering maintenance machinists with Sterling since 1948 The sub-
sections of article Ill of the Machinists - Sterling agreement- upon which
the Machinists base their contentions - read in their material part
(a) It is mutually agreed that , consistent with past practice
proceedings , in the assembling , erecting , installing , dismantling, and
repairing of all machinery and parts thereof , oichidmy bottle and can
job, it should use Machinists members or mill-
wrights with Machinists cards.
Three weeks later the two millwrights completed
the job for Associated without interference. No
picket line was ever established, nor was there any
actual work stoppage by Sterling's employees who
were members of Lodge 2040.
C. Contentions of the Parties
The Respondents contend (1) that the conveyor
work in dispute belongs to members of Machinists
by virtue of the terms of its collective-bargaining
agreement with Sterling covering maintenance
machinists at Sterling's plant;5 and (2) that the
Board should quash the notice of hearing herein
and dismiss the case because the work which gave
rise to the alleged dispute has been completed and,
consequently, no dispute exists.
Local 1080 contends that the assignment of in-
stallation and erection of conveyors at Sterling
should be to its members. In support of its conten-
tion, Local 1080 argues that: (I) the area practice
at large comparable plants in the Evansville, Indi-
ana, area is indicative that employees represented
by Millwrights have engaged in the major share of
conveyor construction in the Evansville area; (2)
the Employer, Associated, has a contractual obliga-
tion to employ millwrights and has had a bargaining
agreement with Millwrights for many years; (3) the
majority of the disputed conveyor erection work at
Sterling for the past 10 years has been performed
by outside contracting firms employing millwrights
represented by Millwrights; (4) the nature of the
work requires the use of skilled welders, and that
none of the machinists employed at Sterling are
welders and are in fact prohibited from welding at
Sterling, while the millwrights employed by As-
sociated and other firms performing conveyor
erection construction at Sterling possess these
skills;6 and (5) the Machinists do not have a collec-
tive-bargaining agreement with, nor do they
nun ,n' c oni epoi s, shall be the work of the Machinists Union
(Emphasis supplied )
(e) Except in cases of extreme emergency, the Company agrees
that, during the life of this Agreement, no work customarily performed
by the employees covered by this Agreement shall be subcontracted
out It is further provided that such work may be subcontracted out
where the Company does not have the equipment to perform nor the
employees the ability to perform, consistent with past practices All
things being equal in quality and price, the Company agrees that it will
subcontract out such work to contractors and firms who employ men
who are members of the Machinists Union
The underlined clause in subsection (a) and all of (e) were inserted, for
the first time, in the agreement executed by the parties on July 12, 1965
Both of the above-quoted clauses are contained in the current agreement
executed on July 12, 1967, effectively to July 11, 1969
All welding at Sterling is allocated to the members of the Brewery
Workers Union employed at Sterling pursuant to their agreement with
Sterling
2048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represent any employees for the purpose of collec-
tive bargaining employed by , Associated or the
other conveyor erection companies who had previ-
ously performed conveyor work at Sterling.
Sterling and Associated agree , in substance, with
the Millwrights . Sterling further asserts that it has
had a long history and practice of contracting out
such conveyor erection work over a period of years
without objection on the part of the Machinists;
that the Machinists has never filed any grievances
or requested arbitration pursuant to their contract
over the subcontracting of such work ; and that, in
fact , this is the first and only demand the Machin-
ists has ever made over the years that millwrights
who perform such work for outside contractors
must obtain "permits" from the Machinists.
D. Applicability of the Statute
Before the Board may proceed to a determina-
tion of dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is a reasonable
cause to believe that Section 8(b)(4)(D ) has been
violated
As indicated above, the record contains evidence
that during the period February 27 through March
7, 1968, the Respondent threatened Sterling with a
strike with an avowed object of forcing or requiring
the two millwrights, members of Local 1080, em-
ployed by Associated, to secure Machinists books
and pay Machinists union dues However , Machin-
ists informed the two millwrights that only one
book was available , and sent one of its own mem-
bers to the job . Moreover , Machinists Business
Agent Morris admitted that one of the Union's ob-
jectives was to obtain the disputed work for its
members. Accordingly, we conclude on the basis of
the entire record that 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 The Merits of the Dispute
As stated in the J A. Jones case ,' we shall, pur-
suant to the Supreme Court's CBS decision ," deter-
mine in each case presented for resolution under
Section 10 (k) of the Act the appropriate assign-
ment of the disputed work only after taking into ac-
count the evidence supporting the claims of all the
parties and balancing all relevant factors.
1. Certification and bargaining agreements
The evidence indicates there is no Board certifi-
cation relative to the disputed work. There are,
however, existing collective-bargaining agreements,
as noted above, relating to conveyor work per-
formed by millwrights employed by Associated and
machinists employed by Sterling.
In Associated's agreement with the Millwrights
the disputed work is clearly covered.
It does not appear , however, as Respondents con-
tend , that its agreement with Sterling clearly gives
Respondents jurisdiction over the disputed work.
The agreement between Lodge 2040 and Sterling
concedely includes within the jurisdiction of the
maintenance machinists work on bottle and can
conveyors, which work Sterling had almost con-
sistently assigned to its machinists. However , the ju-
risdictional clause of the agreement does not ap-
pear clearly to include work on overhead conveyors
which are primarily case conveyors , and Sterling's
practice under the agreement and the apparent
acquiesence of Lodge 2040 thereto does not sup-
port any such jurisdictional claim by Lodge 2040.
We have consistently held that in order to assert a
contractual right as a defense to a 8 (b) (4) (D )
charge the contract must clearly and unam-
biguously award the work to the claiming union.
We find that Lodge 2040's agreement does not
meet this requirement."
2. Company and industry practice
Sterling , for a period of approximately 10 years,
has engaged in a practice of contracting out about
85 percent of the work in connection with over-
head (case ) conveyors to firms engaged in the
fabrication and installation of this type of conveyor.
It is also evident from the record that during the
same period Sterling has almost exclusively , except
where an emergency developed that affected the
production line, used its machinist employees to
perform work on floor conveyors ( bottle and can)
and in day -to-day maintenance and repair of over-
head conveyors.
Associated , since 1958 , has used millwrights on
the installation of conveyors it manufactures, as
well as the repair, extension, or realignment of ex-
isting conveyors in customers ' plants. All of this
type of work by Associated for Sterling has been
performed under contract.
The evidence shows that Associated and two
' lnrernanotml Asstxtatton of Maclunee , Lodie No 1743, AFL-CIO (J
A Joins C o,:stru, 1,0,1 Co ). 135 NLRB 1402
" N L ii B v Radio and Teleseton Broadcasatn ,11 Lngtneen Union, Legal
1212, 1BLW , AFL-( /O (Cohunbta Broadcastutg S s vem ), 364 US 573
" Northern Metal Co , 137 NLRB 1451, 1456-57 , Behoprn Produce (o ,
140 NLRB 1304, 1311, Teamsters . Chaujjeun , Helpers & Tavtab Upsets
Local Union No 327 ( George U Lelliards Electric Co ). 142 NLRB 170,
173
LOCAL LODGE 2040, IAM
other firms who manufacture and install conveyors
have had several contracts in the Evansville area
and employed Local 1080 members to perform the
work. However, the record does not clearly
establish that the type of conveyor installed in these
other plants are comparable to the specialized type
of overhead conveyor used by Sterling for
processing its product for shipment.
In the absence of a relevant area or industry
practice, the practice of Sterling of contracting with
outside contractors, specializing in the type of work
in dispute, for approximately 10 years, as well as
Sterling's practice of confining the utilizing of its
own machinists to work chiefly in connection with
floor conveyors, are factors favoring the assignment
of the disputed work to employees represented by
the Millwrights.
3. Efficiency of operation, skills involved
In the 10 years that Sterling has contracted out
the overhead conveyor work at its plant, mill-
wrights employed by the contractors have demon-
strated to the satisfaction of Sterling and its con-
tractors that they possess the knowledge and skill
necessary to install and work on overhead con-
veyors. While for the most part the tools used by
both trades are similar, in the instant case mill-
wrights performed welding, burring, and cutting
which Sterling's machinists do not. While itappears
that Lodge 2040's members at Sterling also possess
the skill necessary to install conveyors and can use
the tools necessary for that installation, their work
has been limited almost exclusively to floor con-
veyors, and their skill in regard to installation of
overhead conveyors remains a question.
On balance, it appears that the members of both
Lodge 2040 and the millwrights are familiar with
the use of tools required in conveyors installation,
except as to welding, in the instant case, but the
millwrights have demonstrated to their employer
and Sterling that they possess the requisite skills to
install overhead conveyors. Hence, we find this fac-
tor favors assignment to employees represented by
the Millwrights.
CONCLUSION
On the basis of the foregoing considerations, we
conclude that the relevant factors favor an assign-
ment of the work in dispute to employees of As-
sociated Millwrights, Inc., represented by the Mill-
wrights, and we shall determine the dispute in their
"'In view of our Decision herein Respondents' motion to quash the
notice of hearing is hereby denied Further, we have held that a jurisdic-
tional dispute is not moot despite the completion of the work involved
where there is nothing to indicate that such disputes will not arise in the fu-
2049
favor. Sterling for a period of approximately 10
years has consistently contracted out this type of
work to contractors who employed millwrights who
have demonstrated requisite skills to perform the
overhead conveyor work at Sterling's plant, both to
the satisfaction of Sterling and its contractors. In
addition, while Sterling used its own machinists
chiefly on other type of conveyor work, millwrights
performed mostly the overhead conveyor work, ap-
parently with the acquiesence of the Machinists.
Our present determination to award the work to
employees of Associated who are represented by
the Millwrights, but not to that Union or its mem-
bers, 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
case, the National Labor Relations Board makes
the following determination of dispute.
1. Millwrights, who are represented by Local
Union 1080, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, and employed
by Associated Millwrights, Inc., are entitled to per-
form the work on the overhead conveyor at the
plant of Sterling Brewers, Inc., Evansville, Indiana,
under the contract dated February 13, 1968,
between Sterling and Associated.
2. Machinists, who are represented by Local
Lodge 2040, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, or its
agent, Paul E. Morris, or other representative, are
not entitled, by means proscribed by Section
8(b)(4)(D) of the Act, to force or require Sterling
Brewers, Inc., or Associated Millwrights, Inc., to as-
sign the work described above to members of Local
Lodge 2040, International Association of Machin-
ists and Aerospace Workers, AFL-CIO.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local Lodge 2040,
International Association of Machinists and
Aerospace Workers, AFL-CIO and its agent, Paul
E. Morris, shall notify the Regional Director for Re-
gion 25, in writing, whether or not it will refrain
from forcing or requiring Sterling Brewers, Inc.,
and Associated Millwrights, Inc., by means
proscribed by Section 8(b)(4)(D), to assign the
work in dispute in a manner inconsistent with the
above determination. 10
ture Sheet Metal Workers' International Association, AFL-CIO, Local No
541 (Kingery Construction Co), 172 NLRB 1046, fn 9, and text per-
tinent thereto, Cereo Copper and Brass Co , 164 NLRB 945