Warehouse Union Local 6

National Labor Relations Board - Board Decisions

Jan 15, 1980

247 N.L.R.B. 250 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehouse Union Local 6, International Longshore-
men's and Warehousemen's Union and Napko
Corporation and Paint Makers and Allied Trades
Union Local 1975, AFL-CIO. Case 32-CD-33
January 15, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by Napko Corporation, herein called the
Employer, alleging that Warehouse Union Local 6,
International Longshoremen's and Warehousemen's
Union, herein called Local 6, had violated Section
8(b)(4)(D) of the Act by engaging in certain proscrib-
ed activity with an object of forcing or requiring the
Employer to assign certain work to its members rather
than to employees represented by Paint Makers and
Allied Trades Union Local 1975, AFL-CIO, herein
called Paint Makers.
Pursuant to notice, a hearing was held before
Hearing Officer Paul Supton on August 7, 1979. 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. Thereafter,
the Employer and Local 6 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 Hearing Officer's
rulings 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. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer, a California corporation with its principal
place of business in Fremont, California, is engaged in
the business of manufacturing paint. During the past
year, the Employer purchased from outside the State
goods and supplies having a value in excess of
$50,000.' The parties also stipulated, and we find, that
the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act to assert jurisdiction
herein.
' The Employer's unopposed motion to correct the record by inserting the
phrase "in excess of $50,000 a year" at the conclusion of each of the sentences
which end on 1.19 and on 1.22 of p. 9 of the transcript is hereby granted.
247 NLRB No. 35
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local 6 and
Paint Makers are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
Napko Corporation is engaged in the business of
manufacturing and selling paint and paint-related
products at its facility in Fremont, California. Until
January 1979, the paint and paint-related products,
after being manufactured, were stored in indoor
storage tanks from which they were transferred to
small containers for shipment to customers. This
transfer from the indoor storage tanks to shipping
containers has in the past been performed by the
Employer's employees who are represented by Paint
Makers. Once the materials were in the shipping
containers, the transfer of the containers to shipping
conveyances has been performed by employees of the
Employer who are represented by Local 6.
In December 1978, the Employer entered into an
agreement with a customer to supply paint and paint-
related materials in bulk rather than in containers. To
accommodate this new operation, the Employer began
using an outdoor area where large holding tanks are
located.
The new procedure adopted by the Employer
involves transferring paint and paint-related materials
directly from the holding tanks to tank trucks fur-
nished by its customer. The materials involved are
therefore not first packaged in cans or drums.
During January 1979, the Employer assigned the
work in question to employees represented by Paint
Makers and commenced the transfer and sale of the
bulk material from the outside storage tanks to the
tank trucks provided by the customer. The parties
stipulated that, on or about June 21, 1979, and
continuing thereafter, an agent of Local 6 informed
the Employer that it claimed the work in dispute for
its members. On or about August 2, 1979, an agent of
Local 6 threatened the Employer that if the disputed
work were not assigned to its members the Employer
would be "in trouble" and that Local 6 would "pull its
men."
B. The Work in Dispute
The work in dispute involves the transfer of bulk
supplies of paint and paint-related materials to and
250
from an outdoor storage tank at the Employer's
facility in Fremont, California.
C. The Contentions of the Parties
The Employer and Paint Makers contend that
because of the change in the Employer's operation-
which added supplying a customer with materials in
bulk rather than in containers-the transfer of the
bulk materials from a holding tank in an outdoor area
directly to the customer's tank trucks can best be
performed by Paint Makers-represented employees
now doing the work. The Employer specifically alleges
that the collective-bargaining agreements, area prac-
tice, employee skills, efficiency of operations, and
employer assignment favor the work being performed
by employees represented by Paint Makers.
Local 6 contends that the disputed work should
have been assigned to its members based on its work
jurisdiction as defined in its collective-bargaining
agreement with the Employer.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a 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 adjustment of the dispute.
As to the former, it is clear that both Unions are
claiming the assignment of the work of transferring
bulk supplies of paint and paint-related materials to
and from an outdoor storage tank.
The parties stipulated that in the past 6 months, and
more particularly on or about August 2, 1979, an
agent of Local 6 threatened the Employer that if the
disputed work were not assigned to its members the
Employer would be "in trouble" and that Local 6
would "pull its men." Accordingly, we are satisfied
that there is reasonable cause to believe that an
8(b)(4)(D) violation has occurred in this case.
As to the latter, the parties have stipulated, and
there is no evidence to the contrary, that there is no
agreed-upon method for the voluntary settlement of
the dispute. Accordingly, we find that this dispute is
properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving due
consideration to various factors.' The Board has held
: N.L.R.B. v. Radio A Television Broadcast Engineers Union. Local 1212.
International Brotherhood of Electrical Workers. AFL-CIO [Columbia Broad-
castingSysteml 364 U.S. 573 (1961)
WAREHOUSE UNION LOCAL 6
that its determination in a jurisdictional dispute is an
act of judgment based on commonsense and experi-
ence reached by balancing those factors involved in a
particular case.'
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
The Employer has current collective-bargaining
agreements with both local 6 and Paint Makers. These
contracts are in evidence, but we find that they are not
useful in making our determination. Though both
Local 6 and Paint Makers can cite contract language
that arguably supports their respective positions, it is
clear that neither contract specifically mentions the
work in dispute. Thus, the collective-bargaining agree-
ments favor neither Local 6 nor Paint Makers in this
dispute.
2. Employer assignment and practice
Howard Metzner, manufacturing manager of Nap-
ko Corporation, testified that the Employer's practice
has been to have employees represented by Paint
Makers transfer the bulk materials from the outside
tanks to the customer's tank trucks since the Employ-
er began utilizing this process in January 1979. The
Employer is satisfied with the results of its assignment.
Thus, the factor of employer assignment and practice
clearly weighs in favor of awarding the work in
dispute to employees represented by Paint Makers.
3. Area practice
Kenneth Reeves, president and business manager of
Paint Makers, testified that, within his Local's juris-
diction, 40 paint manufacturing facilities have current
contracts with Paint Makers. In all 40 of these
situations, the transfer of paint into bulk-carrying
facilities such as trains or trucks is done by the
paintmakers. However, at none of these facilities were
any of the employees represented by any union other
than Paint Makers.
Avelineo Ramos, business agent for Local 6, testi-
fied that in other industries Local 6 bargaining unit
members perform the pumping and loading of bulk
materials onto tank trucks. No evidence was presented
of Local 6 members performing this function in
connection with paint and paint-related materials.
In light of this evidence the area practice favors
awarding the work in dispute to employees represent-
ed by Paint Makers.
International Association of Machinists. Lodge No. 1743. AFL-CIO (J. A.
Jones Construction Company). 135 NLRB 1402 (1962).
251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Employee skills and efficiency of operation
The record indicates that both groups of employees
possess the necessary skills to perform the actual
transfer of paint and paint-related materials from the
outdoor storage tanks to the customer's tank trucks.
However, it appears that, at some point during this
transfer operation, there is spillage of a certain amount
of paint. The record indicates that employees repre-
sented by Local 6 do not possess the requisite skills to
clean up the spillage while employees represented by
Paint Makers do have the necessary skills to handle
this part of the operation. Since the cleanup operation
appears to be one aspect of the process of transferring
the materials from the storage tanks to the tank trucks
and not a separate process, the operation is more
efficient and economical with paintmakers performing
the disputed work.
Accordingly, the factors of skills and efficiency of
operation favor having the work performed by em-
ployees represented by Paint Makers.
Conclusion
Upon the record as a whole, and after full consider-
ation of all relevant factors involved, we conclude that
employees who are represented by Paint Makers are
entitled to perform the work in dispute. We reach this
conclusion relying on employer assignment and prac-
tice, area practice, and employee skills and efficiency
of operation. In making this determination, we are
awarding the work in question to employees who are
represented by Paint Makers but not to that Union or
its members. The 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:
I. Employees of Napko Corporation, who are
represented by Paint Makers and Allied Trades Union
Local 1975, AFL-CIO, are entitled to perform the
transfer of bulk supplies of paint and paint-related
materials to and from an outdoor storage tank at the
Employer's facility in Fremont, California.
2. Warehouse Union Local 6, International Long-
shoremen's and Warehousemen's Union, is not enti-
tled by means proscribed by Section 8(b)(4)(D) of the
Act to force or require Napko Corporation to assign
the disputed work to employees represented by that
labor organization.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Warehouse Union Local 6,
International Longshoremen's and Warehousemen's
Union, shall notify the Regional Director for Region
32, in writing, whether or not it will refrain from
forcing or requiring the Employer, by means proscrib-
ed by Section 8(b)(4)(D) of the Act, to assign the
disputed work in a manner inconsistent with the above
determination.
252