Local No. 494

National Labor Relations Board - Board Decisions

May 10, 1978

235 N.L.R.B. 1550 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 494, International Brotherhood of Electrical
Workers, AFLCIO and Miller Brewing Company
and District No. 10 of the International Association
of Machinists and Aerospace Workers, AFLCIO.
Case 30-CD-77
May 10, 1978
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended,
following the filing of a charge on November 17,
1977, by Miller Brewing Company, herein called the
Employer, against Local No. 494, International
Brotherhood of Electrical Workers, AFL-CIO, here-
in called IBEW, alleging that it had violated Section
8(b)(4)(ii)(D) of the Act by engaging in certain
proscribed activity with the object of forcing the
Employer to assign work in dispute to it rather than
to District No. 10 of the International Association of
Machinists and Aerospace Workers, AFL-CIO,
herein called Machinists.
Pursuant to notice, a hearing was held before
Hearing Officer Irving E. Gottschalk on December 2,
1977.'1 All parties appeared and were afforded full
opportunity to be heard, to examine and cross-
examine 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
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free of prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
Miller Brewing Company is a Wisconsin corpora-
tion engaged in the business of 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 sold and shipped goods and services valued in
excess of $50,000 directly to points located outside
the State of Wisconsin.
Pursuant to an order of the Hearing Officer, the hearing was closed on
December 21, 1977.
235 NLRB No. 213
11. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that IBEW and
Machinists are labor organizations within the mean-
ing of Section 2(5) of the Act.
I1I. THE DISPUTE
A. The Work in Dispute
The work in dispute is the installation of the
inspection head of the filtec system at the Employer's
facility in Milwaukee, Wisconsin.
B. Background
Miller Brewing Company is engaged in the busi-
ness of brewing beer and other malt beverages at its
facilities located in Milwaukee, Wisconsin. For many
years, the Employer has recognized and bargained
with the Machinists as the representative of its
machinists, machinist apprentices, auto mechanics,
and working leadmen, and has entered into a series
of collective-bargaining agreements with Machinists,
the most recent of which has the effective date of
August 1, 1976, to August 1, 1978. Since about 1930,
the Employer has recognized and bargained with the
IBEW as the representative of its electricians and has
entered into a series of collective-bargaining agree-
ments with IBEW, the most recent of which has the
effective date of October 1, 1977, to October 1, 1980.
As part of its operations, the Employer utilizes a
filtec system which is basically an inspection reject
system that inspects bottles and cans for proper fill
height. There are two basic types of these systems
used by the Employer. The old style, which has been
used mainly on the bottle lines, uses an optical
system, whereby a beam of light is passed through a
bottle and senses the difference in light refraction to
determine the level. The newer system is the radia-
tion filtec system, which uses a beam of radiation
passed through either a can or a bottle to sense the
liquid level by differentiation of the density.
On November 1, 1977, a meeting was held between
the Employer and representatives of IBEW and
Machinists. The Employer provided the union repre-
sentatives with a memo stating that, in the upcoming
installation of filtec systems, the totalizer was to be
installed by the employees represented by IBEW; the
inspection head was to be leveled and bolted to the
floor by employees represented by Machinists; and
employees represented by IBEW would be responsi-
ble for wiring and adjustments. The memo further
provided that the reject conveyor would be installed
by employees represented by Machinists and that all
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I.B.E.W., LOCAL NO. 494
wiring would continue to be the job of employees
represented by IBEW. The meeting in question
lasted approximately half an hour.
After lunch, the Employer learned that some
electricians were gathered in a lunchroom and were
refusing to come out of the lunchroom to do any
work. Further, other electricians had left the plant
and refused to return to work that day. By letter
dated November 4, 1977, the Employer was advised
by Henry J. Carrera, a business representative of
IBEW, that IBEW was challenging assignment of the
work of installing the inspection head and that if the
assignment was not returned to the electricians
IBEW would go out on strike.
C. Contentions of the Parties
Machinists contends that the work in dispute has
traditionally been assigned by the Employer to
employees it represents and that company practice
thus favors its claim to work. Machinists argues that
its contract with the Employer also supports its claim
to the work.
The Employer contends that the assignment of the
work in dispute was based upon its past practice. It
states that its assignment of the work was made after
a review of its historical practice in assigning such
work.
IBEW contends that the disputed work should
have been assigned to its members based on employ-
er practice, industry practice, and its work jurisdic-
tion as set out in its contract and as defined by the
AFL-CIO.
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
voluntary settlement of the dispute.
As to the former, it is clear that IBEW and
Machinists are disputing the assignment of the work
of the installation of the inspection head of the filtec
system. Further, IBEW does not dispute that certain
of its members refused to work on November 1, 1977,
because of the Employer's assignment of the work in
dispute nor does it deny that it threatened to strike if
the work in dispute was not assigned to employees it
represents. Accordingly, we are satisfied that there is
2 IBEW cites language in its contract with the Employer which states,
inter alia, that employees it represents shall be employed "on all work
coming under the jurisdiction of the Union, as recognized by the American
Federation of Labor .... " IBEW relies on a "green book" of the
construction industry as setting out that the work in dispute would be
reasonable cause to believe that Section 8(b)(4)(D)
has been violated.
As to the latter, there is no evidence that all the
parties herein have an agreed-upon method for the
voluntary settlement of the dispute.
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 relevant factors.
1. Collective-bargaining agreements
Although the contracts between the Employer and
IBEW and the Employer and Machinists are in
evidence, we find that they are not useful in making
our determination. Though both IBEW and Machin-
ists can cite contract language that arguably supports
their respective positions, it is clear that neither
contract specifically mentions the work in dispute.2
Thus, the collective-bargaining agreements favor
neither IBEW nor Machinists in this dispute.
2. Employer practice
According to the Employer and Machinists, the
assignment of the disputed work fully comported
with past practice. Package Maintenance Manager
Paul Jablonowski testified that he made the work
assignment after researching the Employer's history
as to this work assignment. Jablonowski stated that
this was the only factor which provided a basis for
awarding the work assignment. Jablonowski further
testified that he relied primarily on information
received from Raymond Bayer, the unit manager for
maintenance.
Bayer testified as to employer practice as follows.
In the early 1960's, the filtec systems were quite
different from those currently utilized. However, all
installations of those older filtec systems were per-
formed by employees represented by Machinists.
Around 1973, when more electronically oriented
filtecs came into use, disputes arose among Machin-
ists, IBEW, and a third union over the installation of
the inspection heads. When filtec systems were
installed on certain C lines (can lines) the installation
of inspection heads was assigned by the Employer to
employees represented by Machinists. Bayer ac-
knowledged that certain B lines (bottle lines) had
been recently installed by an outside contractor-
McGraw Company-that used its own employees
represented by IBEW for the installation of the
recognized as its work by the AFL. However, as there is no copy of the
"green book" in the record before us and as it is clear that Machinists and
its claims to work are not covered by the "green book," the contract
language cited by IBEW is not helpful in resolving this dispute.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inspection heads. According to Bayer, when the
Employer has installed the inspection heads itself, its
practice has been to use employees represented by
Machinists. 3
IBEW contends that employer practice favors its
claim to the work. It notes that McGaw Company-
an outside contractor utilized by the Employer-has
used electricians for installation of the inspection
heads. IBEW also cites Bayer's testimony that one or
more of the inspection heads on the C line installa-
tions were-after their initial installation by employ-
ees represented by Machinists-taken down and
reinstalled by employees represented by IBEW. It
notes further that Bayer admitted that the newer
filtec systems are much more electronically oriented
than those used in the 1960's. Therefore, according to
IBEW, employer practice-particularly as to the
newer filtec systems-favors awarding the work in
dispute to employees which it represents.
Based on the evidence before us, we find that
employer practice favors awarding the work in
dispute to employees represented by Machinists.
Although the practice with respect to work of this
nature performed at the Employer's plant has been
somewhat mixed, it is clear that when the work in
dispute has been performed by the Employer's own
employees-rather those of an outside contractor-
employees represented by Machinists have been
initially assigned the work and performed the work
in dispute. This finding is not negated because, on
occasion, IBEW successfully pressured the Employer
to have the inspection heads taken down and
thereafter reinstalled by other employees. The em-
ployer practice has been consistently to assign
initially the installation of inspection heads to em-
ployees represented by Machinists. Thus, the factor
of employer practice weighs in favor of awarding the
work in dispute to employees represented by Ma-
chinists.
3. Industry practice
IBEW Business Representative Carrera testified as
to what he had been told by an unidentified union
steward of IBEW concerning the practice of other
breweries as to the installation of inspection heads.
Such hearsay evidence is too tenuous to be relied on,
and we are thus unable to make any finding as to
industry practice.
3 In regard to the installation of the C lines, we rely on Bayer's testimony,
which was based on personal knowledge. Carrera testified that he had
"gleaned" from certain third parties that McGaw Compan) rather than
4. Employee skills and efficiency of
operation
The record indicates that both groups of employees
possess the necessary skills to perform the work in
dispute and both groups could perform it with equal
efficiency. Accordingly, the factors of employee skills
and efficiency of operation favor neither group and
are neutral in resolving the dispute before us.
Conclusion
Having considered all pertinent factors present
herein, we conclude that the employees who are
represented by Machinists are entitled to perform the
work in dispute. This award is consistent with the
Employer's initial assignment and its past practice.
In making this determination, we are awarding the
work in question to employees represented by Ma-
chinists, 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 findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees employed by Miller Brewing Com-
pany who are represented by District No. 10 of the
International Association of Machinists and Aero-
space Workers, AFL-CIO, are entitled to perform
the work of installing the inspection heads of the
filtec systems at the Employer's facility in Milwau-
kee, Wisconsin.
2. Local No. 494, International Brotherhood of
Electrical Workers, AFL-CIO, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act to
force or require Miller Brewing Company to assign
the aforementioned work to employees represented
by that labor organization.
3. Within 10 days of the date of this Decision and
Determination of Dispute, Local No. 494, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO,
shall notify the Regional Director for Region 30, in
writing, whether or not it will refrain from forcing or
requiring Miller Brewing Company, by means pro-
scribed by Section 8(b)(4)(D) of the Act, to assign the
the Employer-had installed these C lines. This hearsay evidence from
Carrera's testimony is too unreliable to constitute evidence on which we can
rely, and we do not rely on it in making our finding as to employer practice.
1552
I.B.E.W., LOCAL NO. 494
work in dispute to employees represented by Local
No. 494, International Brotherhood of Electrical
Workers, AFL-CIO, rather than employees repre-
sented by District No. 10 of the International
Association of Machinists and Aerospace Workers,
AFL-CIO.
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