Millwright & Machinery Erectors, Local 1906

National Labor Relations Board - Board Decisions

Feb 14, 1975

216 N.L.R.B. 610 (N.L.R.B. 1975)

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Millwright and Machinery Erectors, Local 1906,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO and C. Schmidt & Sons, Inc.
and District Lodge No. 1, International Association
of Machinists and Aerospace Workers, AFL-CIO.
Case 4-CD-350
February 14, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , follow-
ing charges filed by C. Schmidt & Sons, Inc.
(hereinafter called Schmidt), alleging that Millwright
and Machinery Erectors , Local 1906 , United Broth-
erhood of Carpenters and Joiners of America,
AFL-CIO (hereinafter called the Millwrights), vio-
lated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing
or requiring Schmidt to assign certain work to
employees represented by the Millwrights rather than
to employees represented by District Lodge No. 1,
International Association of Machinists and Aeros-
pace Workers , AFL-CIO (hereinafter called the
Machinists).
Pursuant to notice , a hearing was held before
Hearing Officer Solomon S . Spector on August 12,
15, and 26 and September 19, 1974 . All parties
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 , Millwrights and Machinists
filed briefs.
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 hearing and finds that they are
free from prejudicial error . They are hereby affirmed.
Upon the entire record in this case , the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated that Schmidt, a Pennsylvania
corporation, is engaged in the production and sale of
beer at plants located in Philadelphia and Norris-
town, Pennsylvania, and Cleveland, Ohio. Its annual
sales are in excess of $1 million. It annually ships
goods valued in excess of $1 million to points outside
of Pennsylvania, and annually receives goods valued
216 NLRB No. 117
in excess of $1 million from points outside of
Pennsylvania . Accordingly, we find that Schmidt 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 to assert jurisdiction here.
H. 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 work in dispute, as described in the notice of
hearing, is the erecting , installing , and maintenance
of certain machinery at the C. Schmidt & Sons, Inc.,
facility in Philadelphia, Pennsylvania.
B. Background
In 1954, the United Brotherhood of Carpenters and
Joiners of America and the International Association
of Machinists , the two international unions with
which the Millwrights and the Machinists respective-
ly are affiliated , entered into an agreement in order
to settle jurisdictional disputes between the two
Unions in the brewing and printing industries. To the
extent relevant here, that agreement provided, in
substance, that the work jurisdiction of the Mill-
wrights was:
The handling, erecting and installation of certain
brewery and bottling plant equipment such as
washers, pasteurizers, packaging machines , uncas-
ers, and various types of conveyors, including
machinery, motors, conveyors and equipment in
new construction or additions to or in existing
buildings of the Employer's Philadelphia facility.
Schmidt adhered to the 1954 agreement and, until
1972, assigned the foregoing work to employees
represented by the Millwrights.
The foregoing agreement remained in effect both
on the national level and locally at Schmidt's until
1966, when it was abrogated by the United Brother-
hood of Carpenters and Joiners. However, the terms
of that agreement were continued in effect by
Schmidt pursuant to an oral understanding between
the business representatives of the two locals. In
1969, however, the newly elected business representa-
tive of the Machinists declined to be bound by his
predecessor's oral agreements, and notified the
Millwrights business representative of his position.
At about the same time, Machinists also notified the
MILLWRIGHT & MACHINERY ERECTORS, LOCAL 1906 611
Employer that it was claiming the work in dispute, as
discussed infra.
Although Schmidt had for many years employed
members of both the Millwrights and Machinists,
prior to 1969, Schmidt did not have a written
collective-bargaining agreement with either Union.
Employees of these crafts were employed pursuant to
year-to-year oral agreements that generally reflected
the terms and conditions of employment prevailing
in the area for their respective crafts. In 1969,
however, the first written agreement between
Schmidt and the Machinists was negotiated. The
Machinists, during the negotiations, attempted to
have Schmidt assign to it the work then being done
by employees represented by the Millwrights as one
of the terms of the contract. The attempt failed, and
Schmidt continued to assign the work in dispute to
its four' employees represented by the Millwrights.
In June 1972, a new labor agreement was negotiat-
ed between Schmidt and the Machinists. During the
negotiations for this 2-year contract, the Machinists
renewed its demand for a jurisdictional clause
covering the work then being performed by the
millwrights. The Machinists succeeded in obtaining
such jurisdictional clause . Thus, article 1, section 2,
of the Machinists collective-bargaining agreement
provided that:
The Machinists shall continue to perform the
work previously performed by members of their
bargaining unit. It is agreed that the Machinists
shall perform the work of handling, erecting,
installation and repair of machinery and equip-
ment ; and the handling, erecting and installation
of brewery and bottling plant equipment, for
example: fillers, crowners, seamers, labellers,
conveyors, washers, pasteurizers, palletizers, and
packaging machines . It is also agreed that the
Machinists will perform the work of handling,
erecting and installing machinery, motors and
equipment in new construction work.
The foregoing shall not be construed to
prohibit the Employer from using the services of
outside contractors.
The above provision was clarified by a subsequently
executed supplemental agreement which provided
that:
The Company agrees that work heretofore per-
formed by the millwrights in the Philadelphia
Plant of C. Schmidt & Sons has been assigned to
the machinists bargaining unit in Article I,
I The record reveals that until sometime after 1972 Schmidt employed
four millwrights on a full -time basis . However, at the time of hearing, there
were only three millwrights employed at Schmidt because one of the four
Section 2 of the collective-bargaining agreement,
except that the four millwrights employed by the
Company will continue to perform their usual
duties until each of them dies, retires or quits.
In the event that the millwrights refuse to perform
work, engage in a slowdown, strike, picketing or
any other activity which interferes with the
operation of the plant, the Company may reassign
the work to the millwrights until such time as
relief against such activity may be secured from
the National Labor Relations Board.
The foregoing paragraph shall apply to a continu-
ing dispute or a series of disputes until all
jurisdictional matters are finally decided by the
National Labor Relations Board including any
and all appeals therefrom.
The immediate effect of the contract and its
supplement was to permit the incumbent millwrights
to continue in their jobs, but to assign "outside"
work, which required the hiring of additional
"outside" millwrights, to the Machinists. Thus no
currently employed millwright was displaced.
Millwrights was informed about and given a copy
of the Machinists work jurisdictional clause soon
after the contract was signed. Protests by the
Millwrights followed and resulted in a meeting on
July 19, 1972, between representatives of Schmidt
and the Millwrights. At the meeting, an understand-
ing was reached that the Millwrights would attempt
to settle the matter with the Machinists, and that
Schmidt would endeavor to avoid assigning the
disputed work until the Unions were able to discuss
the matter and hopefully resolve the controversy.
Thereafter, Schmidt withheld undertaking any work
requiring more than the four millwrights then
employed. An attempt was made by Schmidt to use
composite crews of millwrights and machinists on
projects that could not be delayed, but this was
found unsatisfactory even on a temporary basis
because employees represented by the two Unions
refused to work with each other. The Millwrights and
the Machinists were unable to reach agreement
during this time.
In May 1973, the Millwrights invoked the "Internal
Disputes" procedure under the AFL-CIO constitu-
tion. The dispute was heard before an impartial
umpire, whose decision issued in December 1973.
The impartial umpire found that the work in dispute
had customarily been performed by employees
represented by both affiliates and that neither
affiliate had an established work relationship en-
had been ill for a long period of time and was not expected to return to
work.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forceable against the other. The umpire therefore
concluded that each affiliate was free to try to obtain
the disputed work for its members, and that by doing
so neither would be in violation of the AFL-CIO
constitution.
On January 9, 1974, the Millwrights, by letter of its
attorney, requested that Schmidt enter into a written
collective-bargaining agreement. The letter requested
a work preservation clause and a jurisdictional clause
coextensive with the division of work set forth in the
1954 agreement between the Millwrights and the
Machinists. The parties met and exchanged corre-
spondence but failed to reach agreement primarily
because of the Millwrights' insistence on, and the
Employer's resistance to, a jurisdictional clause
covering the work done by members of the Mill-
wrights under the 1954 agreement.
On March 19, 1974, the Millwrights notified
Schmidt that, if meaningful progress towards a
contract was not forthcoming, it would establish a
picket line in support of the overall demands.
Continued correspondence was exchanged between
the parties, but agreement was not reached. Subse-
quently, on May 21, 1974, counsel for the Mill-
wrights advised Schmidt by letter that:
If we do not obtain agreement to a bargaining
unit provision in the contract which all define the
work to which the contract is applicable in a
manner consistent with our proposal, the Mill-
wrights intend to commence a strike against your
client.
The proposal referred to in the above quote was for a
jurisdictional clause coextensive with the 1954
agreement . As a result of this letter, Schmidt filed the
instant 8(b)(4)(D) charge which forms the basis for
this 10(k) proceeding. The Millwrights agreed to
withhold picketing pending resolution of the charge,
and to date no picketing has occurred.
C. Contentions of the Parties
The Machinists contends that the dispute in this
matter is not over the assignment of work within the
meaning of Section 8(b)(4)(D) and is therefore not a
dispute within the meaning of Section 10(k) of the
Act. Rather, it maintains that the Millwrights May 21
threat to strike was made in the context of contract
negotiations and was not in support of a demand for
2 In support of this contention , the Machinists asserts that at the time of
the alleged unlawful activity there was not any work in dispute . We note
from the record , however, that both the erection of a pasteurizer and
associated conveyors and the installation and rerouting of conveyors in
connection with a new labellor installation were jobs assigned to the
machinists , that the machinists were perfornung this work during the time in
question, and that the Millwrights had claimed this work. Although from all
indications in the record this work is now completed , it is established Board
a specific work assignment and that, therefore, the
notice of hearing should be quashed. The Machinists
alternatively contends, on the merits, that the work
in dispute should be assigned to employees represent-
ed by it on the basis of factors normally relied on by
the Board.
The Millwrights and Schmidt, on the other hand,
contend that the present dispute is properly before
the Board for determination under Section 10(k) of
the Act because the Millwrights threat to strike
provided reasonable cause to believe that a violation
of Section 8(b)(4)(D) had occurred, and because no
agreed-upon method binding on all of the parties
exists for the voluntary adjustment of the dispute.
The Millwrights further contends that the work in
dispute should be assigned to the employees repre-
sented by it on the basis of factors normally relied on
by the Board. The Employer took no position with
respect to the assignment of work.
D. Applicability of the Statute
Before the Board may proceed to the determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that (1) reasonable cause exists to
believe that a violation of Section 8(b)(4)(D) has
occurred, and (2) an agreed-upon method binding on
all parties does not exist for the voluntary adjustment
of the dispute.
As to the existence of reasonable cause, the
evidence discloses that by letter of May 21, 1974,
counsel for the Millwrights informed Schmidt that a
picket line would be established on May 29 if
Schmidt did not accede to its demand that the work
in dispute be assigned to employees represented by it.
The Machinists contends that the May 21 letter does
not provide reasonable cause to believe that Section
8(b)(4)(D) had been violated because it was made in
the context of negotiations for a collective-bargain-
ing agreement and was therefore merely a threat to
engage in an economic strike over the terms of the
contract.2 We disagree.
The record reflects that the Millwrights May 21
threat was the culmination of a longstanding jurisdic-
tional dispute concerning which employees would be
assigned the disputed work. Thus, from 1954 to 1972,
employees represented by the Millwrights performed
the disputed work. In 1969, Machinists attempted to
obtain assignment of this work but failed. In 1972,
however, the Employer assigned the work to Machin-
policy nonetheless to make an award of the disputed work to prevent similar
disputes from arising in the future . It is evident both from the continuing
nature of the controversy and from the assertions of the parties at the
hearing that similar disputes will arise in the future if they are not here
determined, Metal Polishers, Buffers, Platers and Helpers International
Union, Local 128, AFL-CIO (Thorsen Manufacturing Company), 193 NLRB
534, 539 ( 1971) at In. 3.
MILLWRIGHT & MACHINERY ERECTORS , LOCAL 1906 613
ists in a written collective-bargaining agreement with
that Union. Since that time, Millwrights made
repeated , albeit unsuccessful , attempts to retrieve the
work by various means , including an action under
the AFL-CIO constitution. The impartial umpire in
that proceeding found that neither Union had an
enforceable claim to the work and that therefore
each was free to attempt to secure the work for
employees represented by it. Thereafter, Millwrights
sought once more to obtain assignment of the work
directly from the Employer-this time by requesting
that such assignment be made in a written collective-
bargaining agreement . On May 21, Millwrights
threatened to strike unless the Employer agreed to a
jurisdictional clause awarding the disputed work to
it. Viewed in this context , we find irrelevant that the
Millwrights claim for the work and threat in support
of such claim were made during contract negotia-
tions . For it is clear from the entire history of the
dispute that Millwrights was seeking assignment of
specific work which its members had performed from
1954 until 1972 and that the threat to strike was
exclusively in support of such demand.3
The record demonstrates and we find that an
agreed-upon method binding on all parties does not
exist for the voluntary adjustment of this dispute.
Accordingly, we find that reasonable cause exists to
believe a violation of Section 8(b)(4)(D) has oc-
curred ; the dispute is properly before the Board for
determination pursuant to Section 10(k) of the Act:
and we deny the Machinists motion to quash the
notice of hearing.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the work in dispute after
giving due consideration to various relevant factors,
including the following: 4
1. Certification and collective-bargaining
contracts
Neither the Millwrights nor the Machinists has
been certified by the Board as the bargaining
representative of Schmidt 's employees for the work
in dispute.
The Millwrights does not have a written collective-
bargaining agreement with Schmidt. The Machinists
does have a current contract with Schmidt , contain-
ing a jurisdictional clause which specifically covers
the work in dispute. The Millwrights contends,
3 Local 1.10, Sheet Metal Workers International Association, AFL-CIO
(Brown and Williamson Tobacco CotporationA 143 NLRB 947, 950-951
(1963).
4 International Association of Machinists, Lodge No. 1744 AFL-CIO (J.
A. Jones Construction Company). 135 NLRB 1402,1410-11 (1962).
however, that the Machinists obtained the jurisdic-
tional clause in 1972 by threat of a strike , and that
this contract should therefore not be considered a
factor favoring an award of the work to the
Machinists. However, the testimony regarding the
Machinists alleged threat to strike was disputed at
the hearing, the matter was not fully litigated, and, in
any event , the alleged threat, if indeed it occurred,
was made more than 2 years ago and our reliance on
it is therefore barred by Section 10(b) of the Act.
Local Union No. 134, International Brotherhood of
Electrical Workers, AFL-CIO (International Tele-
phone & Telegraph Corporation, Communications
Equipment and Systems Division ), 191 NLRB 828, fn.
1 (1971). Accordingly , we find that the collective-
bargaining agreement assigning the work to the
Machinists favors awarding the work in dispute to
employees represented by the Machinists.
2. The Employer's assignment and past
practice
Prior to 1972, Schmidt assigned the work in dispute
to the Millwrights pursuant to the 1954 agreement
between the two international unions. That agree-
ment was abrogated by the Millwrights parent
organization on the national level in 1966, and by the
Machinists business representative at the local level
in 1969. In 1972, the work was contractually assigned
to the Machinists. However, Schmidt and Machinists
subsequently executed a supplemental agreement
which provided that the millwrights then employed
by Schmidt would continue in their jobs and perform
the work until they died, quit, or retired. Since that
time, Schmidt has assigned the disputed work, i.e.,
the "outside work," to employees represented by the
Machinists.5 Moreover, the record indicates that
Schmidt and the Machinists have entered into a new
collective-bargaining agreement that contains the
same jurisdictional clause as the 1972 contract.
Although Schmidt's pre-1972 practice would tend to
favor the Millwrights, we find that on balance the
current assignment of disputed work favors awarding
the work in dispute to the employees represented by
the Machinists.
3. Area and industry practice
The record indicates that there is no well-defined
area practice with respect to the work in dispute. At
the two breweries in the immediate Philadelphia
area, neither the Machinists nor the Millwrights
5 The record reveals that, because of the dispute , Schmidt attempted to
assign the disputed work to a composite crew of both millwrights and
machinists. This arrangement was unsatisfactory because the members of
the crafts refused to work with each other . Since that time the disputed work
has been assigned to the employees represented by the Machinists.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claims to represent the employees who perform
analogous work to that here in dispute . We find,
therefore , that the factor of area practice is too
inconclusive to support an award of the disputed
work to the employees represented by either Union.
With respect to industry practice, the Machinists
introduced into evidence a list of the collective-
bargaining agreements which other locals of the
Machinists have with breweries throughout the
United States , and copies of relevant portions of
these agreements . Some of these agreements clearly
show that the employees represented by other
Machinists locals perform the work identical to that
here in dispute . The Millwrights introduced no
evidence of industry practice to support its claim for
the work . On the basis of the evidence before us, we
find that the industry practice favors awarding the
work in dispute to the employees represented by the
Machinists.
4. Efficiency and economy of operation
Schmidt did not present evidence with respect to
which local would be more efficient and economical
in performing the work in dispute . The Machinists
contends that it would be more efficient and
economical for Schmidt to assign the work to
machinists because the 28 machinists regularly
employed by Schmidt work on all 3 shifts and are
thus readily available to perform the work whenever
it arises . The three millwrights , by contrast, all work
on the first shift only. We note, however, that the
millwrights have performed the work in this manner
from 1954 to 1972, apparently to the Employer's
satisfaction . Under these circumstances, we are
unable to conclude that this factor favors awarding
the work in dispute to either the Millwrights or the
Machinists.
5. Award of the umpire
As a reiult of the dispute between the Machinists
and the Millwrights, the Millwrights invoked the
"Internal Disputes" procedure pursuant to the
AFL-CIO constitution . The impartial umpire found
that the dispute was essentially over which group of
employees would perform certain kinds of work, and
concluded that each of the Unions was free to try to
obtain the disputed work for its members as neither
Union had an established work relationship enforce-
able against the other. However, Schmidt did not
participate in the proceeding , and the award is
therefore not binding on all the parties . Moreover,
umpire's award on its face was inconclusive and
favored neither Union. Accordingly, we find that this
factor also does not favor awarding the work in
dispute to the employees represented by either
Union.
6. Job impact
The supplement to the 1972 collective-bargaining
agreement between Schmidt and the Machinists
expressly provides that "the four millwrights employ-
ed by the Company will continue to perform their
usual duties until each of them dies, retires, or quits."
Thus, although the permanent employees whom the
Millwrights presently represents would not be affect-
ed adversely by an award of the work in dispute to
the Machinists , the Millwrights would ultimately lose
all the positions in its bargaining unit as each of the
present millwrights dies, retires, or quits . In addition,
the Employer's award of the work to the Machinists
has resulted in the possibility of the loss of additional
"outside" jobs to employees represented by the
Millwrights. On the whole, the factor of job impact is
not conclusive.
Conclusion
Based upon the entire record in this proceeding
and after full consideration of all relevant factors, we
conclude that Schmidt 's employees who are repre-
sented by the Machinists are entitled to perform the
work in dispute. Although we have found that the
Employer's pre-1972 practices tend to favor the
Millwrights claim , we do not find these factors
sufficient to outweigh the specific language of the
Machinists collective-bargaining agreement, the in-
dustry practice, and Schmidt's current assignment of
disputed work , all of which favor the Machinists
claim. Accordingly, we shall award the work in
dispute to Schmidt's employees represented by the
Machinists but not to that Union. In consequence,
we find that the Millwrights is not entitled by means
proscribed by Section 8(b)(4XD) of the Act to force
or require Schmidt to assign the disputed work to
employees represented by it.
DETERMINATION OF DISPUTE
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 case,
the National Labor Relations Board hereby makes
the following Determination of Dispute:
1. Employees of C. Schmidt & Sons , Inc., who are
represented by District Lodge No. 1, International
Association of Machinists and Aerospace Workers,
AFL-CIO, are entitled to perform the work of
erecting, installing, and maintaining certain machin-
ery at the C. Schmidt & Sons , Inc., facility in
Philadelphia, Pennsylvania.
MILLWRIGHT & MACHINERY ERECTORS, LOCAL 1906 615
2. Millwright and Machinery Erectors, Local
1906, United Brotherhood of Carpenters and Joiners
of America , AFL-CIO, is not entitled , by means
proscribed by Section 8(b)(4)(D) of the National
Labor Relations Act, as amended , to force or require
C. Schmidt & Sons, Inc., to assign the above work to
individuals represented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Millwright and
Machinery Erectors, Local 1906, United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO, shall notify the Regional Director for
Region 4, in writing, whether or not it will refrain
from forcing or requiring C. Schmidt & Sons, Inc., by
means proscribed by Section 8(b)(4)(D) of the Act, to
assign the work in dispute in a manner inconsistent
with the above determination.