United Industrial Workers Local 28 (Seven-Up)

National Labor Relations Board - Board Decisions

Jul 20, 1992

307 N.L.R.B. 1399 (N.L.R.B. 1992)

1399
307 NLRB No. 208
INDUSTRIAL WORKERS UIWS LOCAL 28 (SEVEN-UP)
1 The cases of product referred to consist of 1 dozen 12-ounce
cans.
2 The San Diego facility also has one 38–40 1-foot trailer which
can hold 1600 caseloads. Such a load, however, is beyond the 1300
caseload hauling capacity of the tractors located at this facility.
3 It appears that during these ‘‘buy-ins,’’ the Employer delivers
most of the product directly from the Vernon facility, but due to the
depletion of stock from this location, it must also supply part of the
order from the branch facilities using ‘‘indirect deliveries.’’
United Industrial Workers, Service, Transportation,
Professional and Government of North Amer-
ica, Local 28, AFL–CIO and Seven-Up/Royal
Crown Bottling Company of Southern Cali-
fornia and Salesdrivers, Helpers & Dairy Em-
ployees Union, Local No. 683 of the Inter-
national Brotherhood of Teamsters, AFL–CIO.
Case 21–CD–603
July 20, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed December 31, 1991, by the Employer, Seven-
Up/Royal Crown Bottling Company of Southern Cali-
fornia, alleging that the Respondent, United Industrial
Workers, Service, Transportation, Professional and
Government of North America Local No. 28 (UIWS),
violated Section 8(b)(4)(D) of the National Labor Re-
lations Act by engaging in proscribed activity with an
object of forcing the Employer to assign certain work
to employees it represents rather than to employees
represented by Salesdrivers, Helpers & Dairy Employ-
ees Union, Local No. 683 of the International Brother-
hood of Teamsters, AFL–CIO (Teamsters). The hear-
ing was held February 28, 1992, before Hearing Offi-
cer Glenn R. Caddick.
The National Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
The Employer, a Delaware corporation, manufac-
tures and distributes beverage products at its facility in
Vernon, California, where it annually ships goods val-
ued in excess of $50,000 to customers located outside
the State of California. The parties stipulate, and we
find, that the Employer is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
that the UIWS and the Teamsters are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer has central bottling and warehouse
facilities in Vernon and Buena Park, California. The
Employer has a collective-bargaining agreement with
the UIWS covering employees in its transfer hauling
department at its Vernon production facility. Generally,
these transfer hauling department employees deliver
products from the central warehouse in Vernon to the
Employer’s 10 branch facilities in southern California,
including its San Diego warehouse. The transfer haul-
ing department also makes deliveries directly to cus-
tomers. The truck fleet located at the Vernon facility
consists of 96 trailers, which are each 45 feet long, and
37 tractors with manual 13-speed transmissions capa-
ble of hauling full 45-foot trailer loads. The 45-foot
trailers hold up to 2000 cases1 of product.
At the San Diego warehouse facility, the Employer
has a collective-bargaining agreement with the Team-
sters covering employees, including drivers, who de-
liver product from this facility to customers. Customers
also make separate arrangements to pick up product
from this branch facility. The drivers who work out of
the San Diego facility use two types of vehicles to
make deliveries: a side loading truck (either on a
straight truck chassis or a tractor-trailer type), or a
rear-loading 30-foot trailer hauled by a tractor with an
automatic transmission. The 30-foot trailers hold 1100
cases of product.2
The Employer has delivered product to Price Clubs
since 1986. Orders made on a week-to-week basis for
less than 2000 cases are filled out of the branch facili-
ties using, in the case of the San Diego warehouse,
Teamsters- represented drivers. The Employer since
1987 has also delivered to the San Diego Price Clubs
2000-caseload orders directly out of the Vernon facil-
ity, using UIWS-represented transfer hauling employ-
ees. It appears that up until 1991, all such 2000-case-
load deliveries were made directly from the Vernon
warehouse to the San Diego Price Club stores. How-
ever, in 1991, transfer hauling department employees
began also to make ‘‘indirect deliveries’’ to Price
Clubs whereby they would deliver some product to a
branch facility warehouse and immediately pick up
2000-case truckloads of the needed product for the
Price Clubs. These ‘‘indirect deliveries’’ would occur
three or four times a year during 2-week periods when
the Price Club engages in a ‘‘buy-in’’ of 150,000 to
300,000 cases ordered in 2000-case increments.3
Buy-ins occurred in March, June, and December
1991. In March, transfer hauling trucks were used to
deliver five 2000-case truckloads from the San Diego
warehouse facility to complete a 12-truckload order for
the San Diego facility to complete an 11-truckload
order. The remaining product was shipped directly
from the Vernon facility. UIWS-represented transfer
1400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The description of the work in dispute has been modified from
that set forth in the notice of hearing to exclude any reference to
delivery of product directly from the Employer’s Vernon facility.
The Teamsters has made an effective disclaimer of interest in that
work.
5 We find unpersuasive the Teamsters’ claim that the UIWS’ threat
of economic action is an insufficient basis for this proceeding be-
hauling employees were used to deliver all the 2000-
case truckload deliveries.
This dispute arose on July 29, 1991, when the
Teamsters filed a grievance alleging that the Employer
had violated their collective-bargaining agreement ‘‘by
delivering products to the Price Club directly from
Vernon . . . to the detriment of employees’ job oppor-
tunities.’’ On December 20, 1991, the UIWS, by letter,
threatened to ‘‘take all necessary legal action to protest
such work assignment including picketing, handbilling,
a boycott and/or a work stoppage if the work of deliv-
ering to the superstores is reassigned to the Team-
sters.’’ In response, the Employer filed the instant un-
fair labor practice charge, alleging that the UIWS had
violated Section 8(b)(4)(D) by threatening it with eco-
nomic action if assignment of its deliveries from
Vernon to the San Diego area Price Clubs was
changed.
On January 23, 1992, the Teamsters clarified its
grievance by alleging that the Employer had violated
their collective-bargaining agreement by delivering
product from Vernon to the San Diego warehouse and
then using nonbargaining unit employees to deliver
product to the Price Clubs from the San Diego ware-
house. The UIWS, however, continues to claim for its
members all work assigned to the Employer’s transfer
hauling department and reaffirmed its threat of eco-
nomic action at the hearing.
B. Work in Dispute
The disputed work involves delivery of 2000-case
truckloads of product from the Employer’s San Diego
branch facility warehouse to Price Clubs during Price
Club buy-ins, when there is insufficient inventory to
deliver the entire order directly from the Vernon facil-
ity.4
C. Contentions of the Parties
The Teamsters contends that no jurisdictional dis-
pute exists because it has disclaimed the work origi-
nally in dispute, delivery of a transfer-truck-size quan-
tity of product from Vernon directly to San Diego
Price Clubs, and because the UIWS has not threatened
picketing or other unlawful action if the Teamsters is
engaged in distributing product directly from the San
Diego warehouse to the Price Clubs. The Teamsters
further contends, assuming arguendo that the Board as-
serts jurisdiction, that the scope of the Board’s deci-
sion should be narrowed to indirect deliveries to Price
Clubs by way of the San Diego warehouse during buy-
ins. Finally, the Teamsters contends that the terms of
its collective-bargaining agreement, past practice, and
area practice support award of the disputed work to the
employees it represents.
The UIWS contends that employees it represents
should perform all work that the Employer assigns to
its transfer hauling department. At the hearing, the
UIWS reaffirmed the applicability of its threat if
Teamsters employees are assigned the disputed work
under the amended grievance. The UIWS further con-
tends that award of the disputed work to the employees
it represents is supported by collective-bargaining his-
tory, the Employer’s past practice and preference, area
practice and relative skills, safety, and economy and
efficiency of operations.
The Employer has assigned the disputed work to
employees represented by the UIWS. It contends the
assignment is supported by its preference, economy
and efficiency, past practice, industry practice in the
area, relative skills, safety factors, and its collective-
bargaining agreement with each Union. The terminated
or discharged as a result of its assignment of the work
in question to the UIWS.
D. Applicability of the Statute
At the time the charge in the instant case was filed
on December 31, 1991, the dispute stemmed from a
grievance initiated by the Teamsters on July 29, 1991,
alleging that the Employer had violated the terms and
conditions of its collective-bargaining agreement with
the Teamsters by making deliveries directly to San
Diego area Price Clubs from its Vernon facility. In re-
sponse to that grievance, the UIWS, in a letter to the
Employer of December 20, 1991, threatened picketing,
handbilling, a boycott, or a work stoppage if the work
of delivering to stores like Price Clubs from its UIWS-
represented facility were to be reassigned to the Team-
sters. Subsequently, on January 23, 1992, the Team-
sters amended its grievance to apply to deliveries made
by nonbargaining unit employees from the San Diego
facility to the Price Clubs. At the hearing, the Team-
sters disclaimed interest in direct deliveries by UIWS-
represented employees driving transfer hauling vehicles
from the Vernon facility to the Price Clubs, but re-
affirmed its position that any work that the Employer
assigned to its transfer hauling department that in-
volved delivery from its San Diego warehouse was to
be done by the employees it represents.
The parties stipulated that they are not bound by any
common jurisdictional dispute settlement procedure.
They also stipulated that there is no agreed-on method
for resolution of this dispute. Accordingly, we find rea-
sonable cause to believe that a violation of Section
8(b)(4)(D) has occurred5 and that there exists no
1401INDUSTRIAL WORKERS UIWS LOCAL 28 (SEVEN-UP)
cause the UIWS characterized such threatened activity as ‘‘necessary
legal action.’’
agreed-on method for voluntary adjustment of the dis-
pute within the meaning of Section 10(k) of the Act,
and 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. Certifications and collective-bargaining
agreements
The Employer has a collective-bargaining agreement
with each Union. Under article VIII, section 5(a), of
its agreement with the Teamsters, all distribution origi-
nating from the San Diego warehouse is to be per-
formed by the employees that Union represents, name-
ly, drivers (referred to as branch or delivery drivers)
and other plant and warehouse employees at the Em-
ployer’s San Diego facility. The Employer asserts,
however, that that section, although part of the agree-
ment in effect when the dispute originated, applies to
an employee category, driver-salesperson, that no
longer exists. The Teamsters contests that assertion and
claims that only certain sections of article VIII, not in-
cluding section 5(a), are no longer applicable. The
Teamsters notes that article VIII, although entitled
‘‘Conditions - Sales Department,’’ nevertheless at sec-
tion 6(h) refers specifically to delivery drivers.
The Employer’s collective-bargaining agreement
with the UIWS covers drivers in the transfer hauling
department of the Employer’s Vernon facility who
drive tractor-trailers. The Employer has assigned the
work in dispute to employees in this category.
On the basis of the evidence presented, this factor
does not favor assignment of the disputed work to em-
ployees represented by either the Teamsters or the
UIWS.
2. Company preference and past practice
The Employer prefers to assign the delivery of trans-
fer hauling loads of product, 2000 12-pack cases or 20
grocery pallets, to employees represented by the
UIWS. Those employees have been making 2000-case
truckload direct deliveries to San Diego area Price
Clubs since 1987 and to Price Clubs outside of the San
Diego area since 1986. This factor favors employees in
the transfer hauling department represented by the
UIWS.
3. Area and industry practice
Two of the Employer’s competitors, Coca-Cola and
Pepsi-Cola, have production facilities in San Diego.
Employees represented by the Teamsters deliver prod-
uct directly from those plants to the Price Clubs. Coca-
Cola, however, also uses employees represented by the
UIWS to deliver product from its production facility in
the Los Angeles area to San Diego Price Clubs. Con-
sequently, the evidence pertaining to this factor is in-
conclusive.
4. Relative skills
Employees in the transfer hauling department are
trained to drive 45-foot transfer hauling vehicles with
13-speed manual transmissions. They have class com-
mercial, nonrestricted licenses. Approximately 50 per-
cent of the San Diego-based drivers have the same li-
cense. That percentage, however, is expected to de-
crease over time under revised driver licensing provi-
sions in California, whereby more restrictions are re-
quired on a license. For example, limited to operation
of vehicles with an automatic transmission. Most of
the tractors used in the San Diego facility are auto-
matic, while those used by the transfer hauling depart-
ment have the manual transmissions referred to above.
Branch drivers, who generally drive 30-foot vehicles,
would thus have to receive additional training in order
to operate the larger transfer hauling vehicles. This
factor favors assignment of the disputed work to trans-
fer hauling department employees at the Vernon facil-
ity represented by the UIWS.
5. Economy and efficiency of operations
The Employer asserts that the cost of delivery per
case by the transfer hauling department is 7 cents,
while the delivery cost per case by the San Diego fa-
cility employees represented by the Teamsters is 26
cents. The Teamsters notes that these comparisons are
not pertinent to the work in question because they re-
sult primarily from the difference in volume between
deliveries by the transfer hauling department and by
the San Diego warehouse employees. The Employer
reports, however, that the Price Clubs prefer single-
truck deliveries of 2000-case increments because it
speeds delivery and makes processing the invoices and
scheduling and checking the deliveries easier. Al-
though the Teamsters contends that the distance the
transfer hauling department vehicles travel from
Vernon to San Diego before delivering product from
the San Diego facility offsets any savings obtained by
using fewer vehicles, the Employer notes that because
transfer hauling department vehicles regularly resupply
the San Diego warehouse, they are already in the area.
1402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
These facts indicate that it is more efficient to assign
the work in question to the Employer’s transfer haul-
ing department employees represented by the UIWS.
6. Safety
The Employer reported that the accident rate for its
transfer hauling department drivers was lower than for
its San Diego-based drivers (one per 460,000 miles
compared with one per 18,000 miles). The Teamsters
suggests that these statistics compare long haul with
local deliveries and thus have no significance. The data
pertaining to this factor are inconclusive.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the UIWS are en-
titled to perform the work in the dispute. We reach this
conclusion relying on the factors of employer pref-
erence and past practice, relative skills, and economy
and efficiency of operations. In making this determina-
tion, we are awarding the work to employees rep-
resented by the UIWS, not to that Union or its mem-
bers. The determination is limited to the controversy
that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Seven-Up/Royal Crown Bottling
Company of Southern California represented by United
Industrial Workers, Service, Transportation, Profes-
sional and Government of North America, Local 28,
AFL–CIO are entitled to perform delivery of transfer
hauling department truckloads of 2000 or more 12-bot-
tle cases of product from the Employer’s San Diego
distribution center to San Diego area Price Clubs dur-
ing Price Club buy-ins when there is insufficient in-
ventory to deliver the Price Club’s entire order directly
from the Employer’s Vernon facility.