Pabst Brewing Co.

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 1302 (N.L.R.B. 1978)

DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
International Union of Operating Engineers, Local 8
and/or 399, AFL-CIO,' and Pabst Brewing Com-
pany and Brewery Workers' Local Union No. 770,
International Brotherhood of Teamsters and Inter-
national Brotherhood of Firemen & Oilers Union,
Local No. 8, AFL-CIO. Cases 38 CD 162, 38-
CD 163, and 38-CD 171
September 29, 1978
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
ANI) MURPHY
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following
the filing of charges by Pabst Brewing Company,
herein called the Employer, alleging that Interna-
tional Union of Operating Engineers, Local 8 and/or
399, AFL-CIO, herein called the Engineers, had vio-
lated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forcing
or requiring the Employer to assign certain work to
its members rather than either to employees repre-
sented by Brewery Workers' Local Union No. 770,
International Brotherhood of Teamsters, herein
called the Brewery Workers, or to employees repre-
sented by International Brotherhood of Firemen &
Oilers Union, Local No. 8, AFL-CIO, herein called
the Oilers.
Pursuant to notice, a hearing was held before Hear-
ing Officer Joy S. Kessler on May 9 and 22, 1978. 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 Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THEL BUSINESS O()F IIE MPI.()YI;R
The parties stipulated, and we find, that the Em-
ployer, a Delaware corporation, is engaged in the
manufacture and sale of beer at its Peoria Heights,
Illinois, facility. During the past year, the Employer
sold and shipped goods valued in excess of $50,000
l Name appears as amended at the hearing.
directly to customers outside the State of Illinois, and
during the same period of time the Employer pur-
chased and received goods valued in excess of $50,000
directly from vendors located outside the State of Illi-
nois. The parties also stipulated, and we find, that the
Employer is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, and it will
effectuate the purposes of the Act to assert jurisdic-
tion herein.
11. ITIEM I.ABOR ORGANIZATIONS INVO\I. VE)
The parties stipulated, and we find, that the Engi-
neers, Brewery Workers, and Oilers are labor organi-
zations within the meaning of Section 2(5) of the Act.
111. TlE DI)SPUrIE
A. Background and Facts of the Dispute
The Employer is engaged in manufacturing, bot-
tling, and distributing beer at its Peoria Heights, Illi-
nois, facility. A very substantial amount of water is
used in the process of manufacturing and bottling
beer. Water used in the Pabst facility is supplied from
two outside sources, the Peoria Heights Water Com-
pany and the City of Peoria Water Company. When
it arrives at the Pabst facility, the raw water has a
hardness content of roughly 300 to 400 parts per mil-
lion. Before the raw water is suitable for use, it must
be treated to reduce its hardness count to 80 parts per
million or less.
Prior to the introduction of the new water treat-
ment plant in early 1978, untreated water flowed di-
rectly into the Pabst facility through entry values,
which were operated by employees who were repre-
sented by the Engineers. Upon entering the facility,
the raw water was directed to various points of usage
located throughout the facility. Once it arrived at one
of these usage points, the water was treated to reduce
its hardness content to the required level. Under the
previous system, virtually all of the water treatment
was done either by employees represented by the Oil-
ers or by employees represented by the Brewery
Workers. In the boilerroom, manned by employees
represented by the Oilers, the water was softened all
the way down to O hardness, the desired level for
optimum operating efficiency of the boilers. Employ-
ees represented by the Brewery Workers had the re-
sponsibility of treating the water utilized in the actual
production of beer and other brewing department op-
erations. For the most part, this required treating the
water to reduce its hardness to the 80 level. All of the
former treatment operations involved similar steps,
adding chemicals to the water, running the water
238 NLRB No. 183
1302
OPERATING EN(iINEERS, LOCAI 8 AND/OR 399
through filtration systems, performing certain ana-
lytic tests on the water to insure that it met the requi-
site standards, and noting the results of these periodic
tests on charts.
The installation of the new water treatment plant
has substantially altered the water treatment process
at the Pabst facility. All water entering the facility is
now initially directed through the new water treat-
ment plant prior to being distributed throughout the
facility. While within the new treatment plant, the
water is treated and softened to the level of 80 parts
per million. The effect of the new water treatment
plant has been to substantially reduce, and in some
instances to eliminate, the amount of treatment neces-
sary at various points of usage.
The new water treatment plant is almost a totally
automated operation. Control of the flow of water,
addition of chemicals, and reading of water content is
all done by machine. Operating the new water treat-
ment plant does not require the full-time assignment
of an employee to the operation. Its operation essen-
tially involves the observation of equipment, the han-
dling of recordation charts, the starting and stopping
of the automatic equipment (when necessary), and
the handling of any emergency or other problem that
might arise. The system has a warning light which is
designed to provide a warning of a malfunction. Al-
though no full-time assignment of an employee is re-
quired to operate the new water treatment plant, it is
necessary that an employee be available to monitor
the system and handle the limited tasks necessary to
keep it running on a 7-day, 24-hour. around-the-clock
basis.
The Employer has collective-bargaining agree-
ments with the Oilers, which represents employees in
the boilerroom, with the Brewery Workers. which
represents several different units of employees in the
brewing department, and with the Engineers, which
represents field operating engineers at the Pabst facil-
ity. Both the Engineers and the Oilers contracts ex-
pire on July 31, 1979, while the Brewery Workers
agreement runs until June 30, 1980.
The manning of the new water treatment system
was a matter of great interest to the three labor or-
ganizations claiming the disputed work, and the sub-
ject was raised in discussions with the Employer on a
number of occasions. The Employer maintains that it
informed all the competing unions that their claims
would be given due consideration at the appropriate
time, a position challenged by the Oilers and Brewery
Workers, which maintain that their representatives
were given certain assurances. However, it is undis-
puted that by November 1977 no definitive assign-
ment of the work had been made. On November 16,
1977, the Company held an inquiry at its facilities
and invited all the labor organizations to participate.
The purpose of the meeting was to discuss the juris-
diction of the water treatment facility. Each of the
three labor organizations involved herein participated
in the November 16 proceeding and presented their
claim to the disputed work. In addition, the Em-
ployer, through its Peoria Heights general manager,
Robert Tiemann, undertook an independent review
of the complete situation. On December 13, 1977. the
Employer issued its award of the work to the Engi-
neers. On December 16, 1977. the Oilers filed a griev-
ance over the assignment of the disputed work to the
Engineers, and the Brewery Workers filed a similar
grievance on January 4, 1978. By letters dated Janu-
ary 3. 1978. and April 7, 1978, the Engineers threat-
ened a work stoppage if the Employer modified its
assignment of the disputed work.
B. The f'%or] in Disputte
The disputed work involves the operation of the
Employer's new water treatment plant.
C. The Contentions of the Parties
The Employer contends that the work in dispute
should be awarded to employees represented by the
Engineers on the basis of the Employer's assignment,
the economy and efficiency of assigning the work to
employees who are regularly available to perform it,
and the skill and training possessed by the Engineers.
The Oilers argues that the disputed work should be
awarded to employees it represents because of past
practice, the provisions of its collective-bargaining
agreement with the Employer, skill, experience, and
industry practice, and on the basis of an agreement
between the Oilers and the Employer.
The Brewery Workers maintains that employees it
represents are entitled to receive the work in dispute,
relying on the factors of past practice, skill, area prac-
tice. contractual rights, and guarantees given by the
Employer.
The Engineers takes the position that employees it
represents should be awarded the disputed work on
the basis of area practice, economy and efficiency, a
provision contained in the constitution of the Interna-
tional Union of Operating Engineers, skills, and em-
ployer practice and preference.
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 the parties have not agreed upon a method
for the voluntary settlement of the dispute.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows that the Employer awarded the
work to the Engineers on December 13, 1977. Shortly
thereafter, the Brewery Workers and Oilers each filed
a grievance challenging the Employer's assignment.
By letters dated January 31, 1978, and April 7, 1978,
the Engineers threatened to cause a work stoppage at
the Employer's Peoria Heights facility in the event
the assignment of the disputed work was changed.
We therefore conclude that there is reasonable cause
to believe that a violation of Section 8(b)(4)(D) has
occurred. The record contains no evidence that there
exists an agreed-upon method for the voluntary ad-
justment of the dispute within the meaning of Section
10(k) of the Act. Accordingly, we find that the dis-
pute is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires thh Board to
make an affirmative award of the disputed work after
giving due consideration to various factors.2 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
mon sense and experience reached by balancing those
factors involved in a particular case.3
The following factors are relevant in making the
determination of the dispute before us:
1. Certifications and collective-bargaining
agreements
Since the water treatment plant is a new operation,
neither the 1951 certifications of either the Oilers or
the Engineers nor the 1976 certification of the Brew-
ery Workers covers the disputed work. Contrary to
separate arguments forwarded by the Oilers and the
Brewery Workers that the disputed work is covered
by various provisions contained in their respective
current collective-bargaining agreements, we find that
the water treatment plant is a new operation which is
beyond the scope of the provisions contained in the
collective-bargaining agreements presently in effect
between those Unions and the Employer. Accord-
ingly, we conclude that the certifications and the
agreements are not helpful to a determination of this
dispute.
2. Employer and area practice
Prior to the installation of the new water treatment
plant, the Employer's practice was to disperse its as-
2 N.L.R.B. v. Radio and Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL CIO [Columbia Broad-
casting System], 364 U.S. 573 (1961).
International Association of Machinists, Lodge No. 1743, AFL-CIO J. A.
Jones Construction Company), 135 NLRB 1402 (1962).
signment of the work functions involved in the dis-
puted work among each of the three competing labor
organizations. Although the Engineers and Oilers at-
tempted to demonstrate that area practice favored an
assignment of the disputed work to employees it rep-
resents, neither was able to demonstrate the practice
within other area breweries. Moreover, the evidence
submitted tends to indicate that the area practice
within other industries is not uniform. Accordingly,
we conclude that area and employer practice are not
helpful to a determination of this dispute.
3. Skills
After having completed an investigation, General
Manager Robert Tiemann found no difference in the
relative skills possessed by the employees represented
by the Engineers and those represented by the Oilers.
However, Tiemann's research determined that when
brewery workers had to undertake sophisticated wa-
ter treatment tasks it was often necessary to obtain a
supervisor's advice on how to treat the water to the
proper hardness level. The factor of relative skills fa-
vors an assignment to either the Engineers or the Oil-
ers.
4. Efficiency and economy
Use of employees represented by either the Oilers
or the Brewery Workers would require the Employer
either to hire additional employees or to require a
substantially increased amount of overtime work.
Moreover, the requirement of' 24-hour-a-day, 7-day-
a-week service can most efficiently be supplied by em-
ployees represented by the Engineers. Efficiency and
economy favors an assignment of the disputed work
to employees represented by the Engineers.
5. Employer preference
The Employer assigned the disputed work to em-
ployees represented by the Engineers. The record
shows that Pabst is satisfied with the results of its
assignment and maintains a preference for an assign-
ment of the work to employees represented by the
Engineers. Employer preference favors an assignment
of the disputed work to employees represented by the
Engineers.
CONCLUSION
Upon the record as a whole, and after full consider-
ation of all the relevant factors involved, we conclude
that employees represented by the Engineers are enti-
1304
OPERATING ENGINEERS, LOCAL 8 AND/OR 399
tied to perform the disputed work. In reaching this
conclusion, we have relied upon efficiency and econ-
omy, employer preference, and, with respect to the
Brewery Workers, skills. Accordingly, we shall deter-
mine the existing jurisdictional dispute by deciding
that employees represented by the Engineers, rather
than those represented by either the Oilers or the
Brewery Workers, are entitled to the work in dispute.
In making this determination, we are assigning the
disputed work to the employees of Pabst who are rep-
resented by the Engineers. but not to that Union or
its members.
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 makes
the following Determination of Dispute:
Employees of Pabst Brewing Company represented
by the International Union of Operating Engineers,
Local 8 and/or 399, AFL CIO, are entitled to per-
form the work of operating the Employer's new water
treatment plant.
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