Paperworkers Local 224 (James River Corp.)

National Labor Relations Board - Board Decisions

Mar 14, 1995

316 N.L.R.B. 717 (N.L.R.B. 1995)

717
316 NLRB No. 122
PAPERWORKERS LOCAL 224 (JAMES RIVER CORP.)
1 The UPIU and Local 224 are named as charged parties in the
charge and notice of hearing. However, no party contends that either
the UPIU or Local 224 engaged in any activity in violation of Sec.
8(b)(4)(D). Therefore, we find that the only unions which are alleged
to have engaged in proscribed activity are the GCIU and its Local
370-C.
2 The UPIU asserts, for the first time in its brief to the Board, that
the Regional Director improperly assigned the same person to inves-
tigate the charge and to conduct the hearing. The UPIU cites sec.
10210.5 of the Board’s Casehandling Manual for Unfair Labor Prac-
tice Proceedings which states, in relevant part, that ‘‘[t]he hearing
officer [in a 10(k) proceeding] should not be the same person who
investigated the charge.’’ We reject the UPIU’s argument. First, the
proper time for raising that contention was prior to the start of hear-
ing. Second, it is well established that the provisions of the Board’s
Casehandling Manual are guidelines and not binding rules. See, e.g.,
Embassy Suites Hotel, 313 NLRB 302 (1993). Finally, the UPIU has
presented no evidence indicating that the assignment was prejudicial.
United Paperworkers International Union, AFL–
CIO and Local 224, United Paperworkers
International Union, AFL–CIO and Graphic
Communications International Union, AFL–
CIO and Local 370-C, Graphic Communica-
tions International Union, AFL–CIO and
James River Corporation. Case 30–CD–157
March 14, 1995
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The charge in this Section 10(k) proceeding was
filed on October 28, 1994, by the Employer, James
River Corporation (the Employer or James River), al-
leging that the Respondents, Graphic Communications
International Union, AFL–CIO (GCIU) and Local 370-
C, Graphic Communications International Union,
AFL–CIO (Local 370-C), violated Section 8(b)(4)(D)
of the National Labor Relations Act by engaging in
proscribed activity with an object of forcing the Em-
ployer to assign certain work to employees they rep-
resent rather than to employees represented by United
Paperworkers International Union, AFL–CIO (UPIU)
and Local 224, United Paperworkers International
Union, AFL–CIO (Local 224).1 The hearing was held
on November 22 and 23, 1994, before Hearing Officer
Robert L. Blackowicz.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error.2 On the entire
record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Employer, a Virginia corporation, is engaged in
the business of producing paper products. The Em-
ployer annually ships goods valued in excess of
$50,000 from its facility located at 200 West Bridge
Road, Wausau, Wisconsin, directly to customers lo-
cated outside the State of Wisconsin. The parties stipu-
late, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act and that GCIU, Local 370-C, UPIU, and
Local 224 are labor organizations within the meaning
of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In fall 1993, the Employer purchased five narrow
web in-line flexographic press systems (Flexos) for its
Wausau, Wisconsin facility. Installation was to take
place in December 1994. Until the Flexos became
operational, the Employer utilized a multistep, sheet-
fed process for producing printed cartons, which in-
cluded cutting rolls of paperboard into sheets, stacking
the sheets on pallets, transporting the sheets to the lith-
ographic printing press, printing the sheets, stacking
the printed sheets on pallets, and transporting the
sheets to a different area of the facility for cutting,
stripping, and gluing. Prior to operating the Flexo-
press system, UPIU-represented employees were re-
sponsible for cutting, stacking, and transporting litho-
graphic sheets to GCIU-represented employees for
printing. After the sheets were printed, UPIU-rep-
resented employees moved the sheets to another area
for cutting, stripping, and gluing.
The Flexo is a state-of-the-art printing system that
combines high quality graphic printing with a continu-
ous on-line drying, cutting, and stripping process. The
Flexo has eight color printing decks, permitting the
Employer to produce eight-color printing. The Flexo
allows the Employer to produce cartons using process
printing so that the four process colors, cyan, magenta,
yellow, and black, are printed one on top of the other
to produce a multitude of colors on the same carton.
The Employer has local and multilocation collective-
bargaining agreements with both the GCIU and the
UPIU. On November 18, 1993, Dennis Hadley, the
Employer’s director of human resources for packaging,
met with Local 224 and Local 370-C representatives.
He informed them that James River planned to pur-
chase five Flexos. Hadley stated that although no deci-
sions had yet been made as to staffing, the Employer
envisioned starting the operation with four persons per
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In late December 1993, the UPIU’s new president indicated that
his union might be agreeable to a two/two split, but not to total
flexibility in assignments proposed by the Employer.
4 All subsequent dates are in 1994 unless otherwise stated.
press per shift. He suggested that each Flexo be oper-
ated by two from Local 370-C and two by Local 224.
Hadley stressed the need for total flexibility of skills
and responsibility. He indicated that it was necessary
that employees working on the Flexo possess the skills
needed to operate all aspects of the system. James
River would provide the requisite training.
The GCIU was open to Hadley’s two/two proposal;
however, the UPIU stated that the proposal was unac-
ceptable. It asserted that the Flexo should be assigned
to three Local 224 members and one Local 370-C
member and that the work assignments should remain
separate.
The Employer met with Local 224 and Local 370-
C representatives at various times in December 1993.
During these meetings Local 224 maintained that juris-
diction for operating the Flexo should be split between
three Local 224 members and one Local 370-C mem-
ber, with Local 224 performing all the cutting work.3
At first Local 370-C remained amenable to the
two/two split; however, at the last meeting in Decem-
ber, Local 370-C, relying on its collective-bargaining
agreement, stated that it had sole jurisdiction over the
work and that a two/two split was no longer accept-
able.
On March 11, l994,4 James River awarded all the
work on the Flexo to employees represented by Local
370-C. On March 14, James River received a griev-
ance filed by Local 224 requesting that in light of its
contract with the Employer, ‘‘members of Local 224
be considered for jobs on the new flexo presses.’’ On
May 13, James River denied the grievance. On June
27, Local 224 informed the Employer that the griev-
ance had been submitted to arbitration. On September
12, James River contacted Local 370-C and asked
what its position would be if James River acceded to
Local 224’s request for arbitration and/or adhered to an
award of an arbitrator that granted total or partial juris-
diction of the Flexo to Local 224. On October 14,
Local 370-C responded by letter which states in part
that:
the GCIU will take all economic action necessary,
including a strike to protect its jurisdiction . . .
[and that] such action will not be limited solely
to the Wassau [sic] Plant, but will involve some
or all of the other James River [sic] Plants where
the GCIU has representation.’’
B. Work in Dispute
The disputed work involves the operation of the Em-
ployer’s narrow web in-line flexographic press systems
at its Wausau, Wisconsin plant.
C. Contentions of the Parties
The Employer and Local 370-C contend that the dis-
puted work should be awarded to the employees rep-
resented by Local 370-C on the basis of the collective-
bargaining agreements, relative skills, area practice,
and economy and efficiency of operation. James River
additionally relies on the factor of employer preference
in arguing that Local 370-C-represented employees
should be assigned the disputed work.
Local 224 contends that the instant dispute is not ju-
risdictional but representational, and concerns new
technology and classifications which should be re-
solved through arbitration or the Board’s unit clarifica-
tion procedure. Local 224 also contends that there is
not reasonable cause to believe Section 8(b)(4)(D) has
been violated because the statements made by the
GCIU were not genuine threats. Local 224 asserts that
in the event the Board decides this jurisdictional dis-
pute, the work should be awarded to a composite crew
of employees represented by both Local 224 and Local
370-C on the basis of employer’s practice, job loss,
and traditional job division.
D. Applicability of the Statute
As noted above, the GCIU threatened to strike if the
Employer submitted the assignment to arbitration or
entered into any settlement or adhered to an award
granting Local 224 jurisdiction over work on the
Flexo. Local 224 contends that the GCIU’s threat to
strike was not a threat within the meaning of Section
8(b)(4)(D), because the threat resulted from collusion
between the Employer and Local 370-C, and because
Local 370-C had no intention of carrying out its threat.
We find no merit in Local 224’s contention. The Em-
ployer assigned the Flexo work jurisdiction to employ-
ees represented by Local 370-C before Local 224 filed
its grievance and announced its intention to seek arbi-
tration. In these circumstances, the Employer’s call to
Local 370-C to discern its intentions if the Employer
proceeded to arbitration was in the Employer’s eco-
nomic interest and was not indicative of collusion. The
GCIU’s threat to ‘‘take all economic action necessary,
including a strike to protect its jurisdiction,’’ provides
reasonable cause to believe Section 8(b)(4)(D) has
been violated. See, e.g., Mine Workers (Energy West),
304 NLRB 107, 108–109 (1991). Further, contrary to
Local 224’s claim, there is no evidence that the GCIU
was not serious when making this threat. Graphic
Communications (Bowne of Boston), 295 NLRB 32, 33
fn. 4 (1989). Further, the parties stipulated that they
have not agreed on voluntary method to adjust this dis-
pute.
The UPIU contends that the dispute is not one of
competing claims for the work, but is rather a dispute
over which union will represent these employees. We
cannot agree. The dispute here involves who will be
719PAPERWORKERS LOCAL 224 (JAMES RIVER CORP.)
assigned the work, not just who will represent these
employees.
Accordingly, we find reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred and
that there exists no agreed-upon method for voluntary
adjustment of the dispute within the meaning of Sec-
tion 10(k) of the Act. Accordingly, we find that the
dispute is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative award of disputed work after considering various
factors. NLRB v. Electrical Workers IBEW Local 1212
(Columbia Broadcasting), 364 U.S. 573 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment, based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Certification(s) and collective-bargaining
agreements
No party claims that there are certifications applica-
ble to the work in dispute.
The Employer has collective-bargaining agreements
with both the GCIU and the UPIU as well as local
agreements with Local 370-C and Local 224. The
UPIU agreements state that Local 224 is the sole bar-
gaining agent for the Employer’s production and main-
tenance employees. The GCIU contract specifically
states that the GCIU has jurisdiction over ‘‘all . . .
flexographic . . . printing presses.’’ Because the GCIU
has a collective-bargaining agreement specifically cov-
ering the disputed work, we find this factor favors
awarding the work to the employees represented by it.
2. Relative skills
The GCIU-represented employees, with 3 to 4
weeks’ training, will have the skills to operate the en-
tire flexographic press system. Although UPIU-rep-
resented employees may be able to perform certain
work on the press, they would require at least 2 to 3
years’ training before they could operate the Flexo ef-
fectively. We find, therefore, that this factor favors
awarding the work to the employees represented by the
GCIU. Graphic Communications (Bowne of Boston),
supra.
3. Area practice
The evidence is too limited to determine with cer-
tainty whether an area practice exists for assigning the
work in dispute to a particular group of employees.
4. Employer preference
The Employer has assigned the work to employees
represented by the GCIU and prefers that assignment.
Accordingly, we find this factor favors awarding the
disputed work to the employees represented by the
GCIU.
5. Economy and efficiency
As noted above, GCIU-represented employees will
have the skills necessary to operate the entire system
after 3 to 4 weeks of training. UPIU-represented em-
ployees would require 2 to 3 years’ training before
they could operate the press effectively. Although
UPIU-represented employees could perform certain
jobs with less training, since they could not perform
the remaining jobs, the Employer would have less
flexibility. The factor of economy and efficiency fa-
vors awarding the work to GCIU-represented employ-
ees.
6. Job loss
The UPIU asserts that its bargaining unit will lose
at least 50 positions if the Flexo-press work is assigned
to employees represented by the GCIU. The Employer
acknowledges that the Flexo press will reduce man-
hours and result in the loss of approximately 21 posi-
tions by December 1995. However, the Employer con-
tends that this loss is less than its customary attrition,
so that no current jobs should be lost. Because the evi-
dence does not clearly establish that awarding the work
to GCIU-represented employees will result in job loss
to employees represented by the UPIU, we find that
this factor does not favor either group of employees.
7. Employer practice
The Employer does use composite crews on its other
presses. The operation of those presses significantly
differs from the operation of the Flexo. Thus, the Em-
ployer’s other presses are not as complex as the Flexo,
nor do they integrate into a single process all aspects
of the printing and production process. Therefore, we
find the assignments are not relevant to the resolution
of the dispute here.
There is some evidence that the Employer has a nar-
row web press at another plant and that it uses a three-
man composite crew to operate this press. The record
contains no further description of this press, however,
and no evidence that it is the same as the presses in-
volved in the dispute here. Assuming arguendo that the
Employer’s assignment at the other plant would tend
to favor the composite crew urged by the UPIU, this
factor would not be sufficient to outweigh the factors
which favor assignment to the employees represented
by the GCIU.
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Conclusion
After considering all the relevant factors, we con-
clude that employees represented by the GCIU are en-
titled to perform the work in dispute. We reach this
conclusion relying on collective-bargaining agreements,
relative skills, employer preference, and economy and
efficiency of operation.
In making this determination, we are awarding the
work to employees represented by the GCIU, not to
that Union or its members. The determination is lim-
ited to the controversy that gave rise to this proceed-
ing.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees represented by Graphic Communications
International Union, AFL–CIO and Local 370-C,
Graphic Communications International Union, AFL–
CIO are entitled to perform the work required with re-
spect to operating the narrow web in-line flexographic
press system at James River Corporation’s facility in
Wausau, Wisconsin.