Warehouse Union Local 6, International Longshoremen And Warehousemen'S Union

National Labor Relations Board - Board Decisions

Jul 19, 1985

275 N.L.R.B. 1128 (N.L.R.B. 1985)

1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehouse Union Local 6, International Longshore-
men and Warehousemen 's Union and Golden
Grain Macaroni Company and Local 125,
Bakery, Confectionery and Tobacco Workers'
International Union . Case 32-CD-82
19 July 1985
DECISION AND DETERMINATION OF
-DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The charge in this Section . 10(k) proceeding was
filed 5 October ' 1984 by Golden Grain.Macaroni
Company (the Employer), alleging that the Re-
spondent, Warehouse Union Local 6, International
Longshoremen and Warehousemen's Union (Local
6), violated Section -8(b)(4)(D) ` of the National
Labor Relations Act by engaging in proscribed ac-
tivity with an object of -forcing the- Employer to
assign certain work id -employees" it represents
rather than to,employees represented by Local 125,
Bakery, Confectionery and Tobacco Workers'
International Union (Local -125). The hearing was
held 16 November .1984 before Hearing Officer
Ruby J. Palmer.'
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
1. JURISDICTION
The Employer, a California corporation with a
wholly owned subsidiary, Ghirardelli Chocolate
Company, is engaged in the proceessing and pack-
aging of food products at its separate facilities in
San Leandro, California. During the past calendar
year, its business operations generated gross reve
nues in excess" of $500,000 and, during the same
period, it purchased and received materials valued
in. excess of $50,000 directly from points outside
the State of California.
The parties stipulate, and we find, that the Em-
ployer is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that Local 6
and Local 125 are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is a member of the Industrial Em-
ployers and Distributors Association (IEDA),
which has a current collective-bargaining agree-
ment with Local 6 covering all production, mainte-
nance, and warehousing employees employed at
the Golden Grain plant. The Employer by its
Ghirardelli division is also a member of the Con-
fectioners' Council of East Bay, which has a col-
lective-bargaining agreement with Local 125 recog-
nizirig its exclusive jurisdiction over production
employees at the Ghirardelli plant.
In 1981 the Employer began manufacturing the
Golden Grain stuffing mix. Local 6 workers were
assigned the bread crumb- packaging, and Local
125 workers packaged- the spice pouch and com-
bined the two packets (bread crumbs and spice) in
the stuffing boxes. Plant Manager William Hoffman
testified that in 19841 customer complaints revealed
that an inconsistent percentage of finer as com-
pared to larger pieces of bread crumbs were being
packaged, producing a less appetizing product. Ac-
cording to Hoffman, the bread crumb packaging
work was then transferred to the Ghirardelli plant
because the Triangle machine there has two con-
tainers for dropping materials separately, eliminat-
ing. the problem by sifting out the finer bread
crumbs. -
On 2 October the Employer met with Local 6
representatives to discuss the packaging of the
Golden Grain stuffing mix. According to Personnel
Manager John Sullivan, Local 6 maintained that
the employees it represents-were entitled to the
work of packaging the bread 'crumbs. Local 6 pro-
posed that such employees be allowed to do the
work at the Ghirardelli facility or that the Triangle
and Barteldt machines used to package the bread
crumbs at Ghirardelli be moved to the Golden
Grain facility., The Employer rejected the Union's
proposals. Sullivan also testified that Al Lannon,
president of Local 6, said, "The Union would do
whatever they had to do to retain their work."
On 3 October Sullivan spoke with Virgil Cum-
mings, president of Local 125, who claimed any
work at the Ghirardelli plant for the employees it
represents. On 4 and 5 October, Local 6 workers
and union officials engaged in and caused a work
stoppage at. the Ghirardelli facility. They encircled
the Barteldt, machine, wrapped crepe paper around
it, and placed a sign that said, "Unfair to Local 6."
Sullivan also testified that Lannon said, "They
were going to stay until they got their work back."
No work- stoppages have occurred since then.
B. Work in Dispute
The work in dispute is the packaging of bread
crumbs for Golden Grain stuffing mix at the Ghir-
ardelli Chocolate Company plant.
' All dates refer to 1984 unless otherwise noted
275 NLRB No. 162
- LONGSHOREMEN ILWU LOCAL 6 (GOLDEN GRAIN) • . 1129
C. Contentions of the Parties
In its brief Local 6 contends that no traditional
jurisdictional dispute exists because its object was
to preserve the work of employees it represents, re-
lying on Seattle Building . Trades Council, 204
NLRB 1126, 1127 (1973), and Maritime Union, 227
NLRB 1081 , 1082 (1977). Local 6 further contends
that the Board lacks jurisdiction because there
exists an agreed -upon voluntary method of adjust-
ing the underlying dispute . Local 6 argues that all
three . parties are contractually bound to enter into
tripartite arbitration based on each union 's arbitra-
tion provisions in their collective-bargaining agree-
ments with the Employer.
On the merits, Local 6 maintains that the work
in dispute should be awarded to employees it rep-
resents based on past practice and the Employer's
contractual obligation to have Local 6 bargaining
unit members produce and package Golden Grain
products , notwithstanding agreed-upon limited ex-
ceptions in addenda to the collective -bargaining
agreement.
The Employer contends that the disputed work
should be assigned , to employees represented by
Local 125 because no Local 6 -represented employ-
ee has ever performed production work at the
Ghirardelli facility , and because Local 6's defense
ignores the Employer 's longstanding practice of
having a limited interchange of work between the
two facilities . Finally , the Employer argues that
Local 6' s work assignment demands are not limited
to protecting work of employees within the Em-
ployer's Golden Grain collective -bargaining unit,
but extends to asserting jurisdiction over work
transferred to the Ghirardelli plant . In its brief, the
Employer maintains that the disputed work should
be assigned to employees represented by Local 125
based on efficiency , employer preference , product
quality , economy , present assignment , and its col-
lective -bargaining agreement with Local 125.
D. Applicability of the Statute
Before the Board can determine a dispute pursu-
ant to Section 10(k) of the Act, it must be satisfied
that there is reasonable cause to believe that Sec-
tion 8 (b)(4)(D) has been violated and that the par-
ties have not agreed upon a voluntary adjustment
of the dispute.
In this case , it is undisputed that Local 6 claimed
the disputed work and engaged in and caused work
stoppages at the Ghirardelli plant. Local 6 argues
that no jurisdictional dispute exists because its sole,
object was work, preservation . 2 We find this bon-
2 We reject Local 6's contention that no jurisdictional dispute exists
under Seattle Building and Maritime Union, supra In those cases the
tentioli unsupported by the record. The record es-
tablishes that the Employer's practice is to produce
certain Golden Grain products in either of the two
bargaining units. For example, the 1975 addendum
prohibits the processing of Golden Grain products
containing pasta in the 'Ghirardelll plant, but the
1979 addendum provides that certain types of rice
and new products introduced after 1 June 1979 can
be packaged in the Ghirardelli plant. The record
also shows that Local 6-represented employees
have never. held production jobs in the Employer's
Ghirardelli facility. Therefore, all work at the
Ghirardelli plants, including any that has been
transferred there, has. been performed by employ-
ees represented by Local 125.
. The work in question, though formerly per-
formed at the Golden Grain plant, is now part of
the operation of the Ghirardelli plant. The record
shows that, the packaging of the Golden Grain
bread crumbs. has significantly changed and is now
performed by a new process. Before 1984, the
bread crumbs were packaged on the Triangle ma-
chine at-the Golden Grain plant. They were placed
into a single container hopper that dispensed an in-
consistent percentage of finer as compared to
larger pieces of bread crumbs into the bread crumb
pouch. The bread crumb pouches were then trans-
ferred to the warehouse before being sent to the
Ghirardelli plant where they were, combined with
the spice pouch (containing herbs, dried vegetables,
and rice), into a single box.
The packaging of bread crumbs is now part of a
single integrated operation performed by Local
125-represented employees 'at the Ghirardelli plant.
The new process entails packaging all ingredients
for the Golden Grain stuffing mix on machines at
the Ghirardelli plant. Now the bread crumbs are
fed into the double hopper Triangle machine which
separates the larger and finer pieces of bread
crumbs before final packaging into pouches with an
equalized distribution of finer and large crumbs.
The bread crumb and spice packets' are then com-
bined-on the Clybourne Horizontal packaging ma-
chine at the Ghirardelli plant. Thus, the evidence
shows that the disputed work is now part of an in-
tegrated operation, and' although the objective has
remained the same, i.e., packaging the stuffing mix,
Board found no real competing claims between two groups of employees
because the disputes were with the employer and concerned the recap-
ture of work for displaced employees Here, by contrast, there are no dis-
placed workers Local 6 workers continue to manufacture and process
Golden Grain products on the Triangle machine at the Golden Grain
plant Furthermore, Local 125-represented employees were assigned the
work in dispute , Local 125 has not disclaimed the work, and Virgil Cum-
mings, vice president of Local 125, testified that he wanted to continue to
have Local 125-represented employees perform the work on the Triangle
machine at the Ghirardelli plant
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"the means for accomplishing that objective- have
undergone a significant metamorphosis." Long-
shoremen Local 62 (Chevron, U.S.A.), 237 NLRB
835, 837 fn. 3 (1978). _
This is not a case in which Local 6, is attempting
to protect and preserve work which -has tradition-
ally been. performed by employees it represents.
Rather, Local 6, is: attempting to expand its - tradi-
tional'domain to work performed at the Ghirardelli
plant. Personnel Manager Sullivan's uncontradicted
testimony shows that one of Local 6's proposals
was to have employees it represents -perform the
work in question at the Ghirardelli facility. 'We
find, therefore, reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred.3
We also reject the Respondent's contention that
because the two involved Unions have respective
contract arbitration: provisions with the Employer,
there exists a voluntary means for adjusting the un-
derlying dispute. Although the Employer's respec-
tive contracts with the Unions contain provisions
for the arbitration of disputes-between the contract-
ing parties, neither contract provides for tripartite
arbitration. These circumstances- do not provide" "a
method for binding all parties in a single proceed-
ing." San'Diego Stereotypers Union 82, 201, NLRB
8.93,;'895'(1973). - -
` Furthermore, . Local 6 argues that its action in
district court seeking to compel arbitration consti-
tutes an agreed-upon method for the voluntary ad-
justment of the dispute. The Board has held, how.
ever, that a pending Section 301 suit, does not con-
stitute an agreed-upon method-for voluntary adjust-
ment of the. dispute. International Die Sinkers' Con-
ference, _197 NLRB, 1250,. 1252 (1972)._ 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 af-
firmative 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 bah
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962). - -
The following factors are relevant in m aking "the
determination of the dispute. - - -
3 We deny Local 6's motion to quash the notice of hearing
Chairman Dotson finds it unnecessary to rely on the above rationale
utilized for rejecting Local 6's work preservation claim
1. Collective-bargaining agreements
.The Employer currently has respective collec-
tive-bargaining agreements with Local 6 and Local
125. Both' agreements were submitted into evi-
dence. Neither contract, however, specifically
covers the work in dispute.
The record also demonstrates- that, since 1975,
Local 6 and the Employer have entered into vari-
ous agreements specifying which Golden Grain
products could be manufactured in the Ghirardelli
plant. In 1975 Local 6 and the Employer agreed
that certain Golden Grain products would no
longer be processed in the Ghirardelli' facility.
These products included specified rice products,
cheddar, cheese products, and Golden Grain prod-
ucts containing pasta. In 1979 the agreement was
amended to provide that any new pasta product in-
troduced after 1 June 1979 may be packaged on the
Triangle' machine at the Ghirardelli plant. The
agreement also -contained a general waiver that
"any new product introduced after June 1, 1979"
may be packaged at the Ghirardelli plant. This
agreement was subsequently amended in 1981 and
included' a proviso allowing' pasta products intro=
duced after 1 June 1979 to be packaged at the
Ghirardelli plant, but there was no general waiver
provision. ' .
The Employer argues that, because the bread
crumbs-are not a pasta product, they can be pack-
aged at the Ghirardelli plant under either the 1979
or 1981- agreement. Although -the Golden Grain
stuffing mix was first manufactured in 1981, we
find that neither' agreement covers - the disputed
work or categorically assigns the packaging of
bread crumbs to employees represented by Local
125. Therefore, because the collective-bargaining
agreements and addenda do not clearly show
which group of employees is entitled to perform
the disputed ,work, we find that this factor is not
helpful to a determination.
2. The Employer's preference and past
practice - '
From 1981 until 1984, the Employer used em-
ployees represented by Local 6 -to package the
bread crumbs at the Golden Grain plant. Accord-
ing 'to Plant Manager Hoffman, the Employer de-
parted from this arrangement -because of customer
complaints that the bread crumbs were too finely
ground. The Employer then assigned the disputed
work to Local 125-represented employees because
the Ghirardelli plant had the necessary equipment
to remedy the problem. We find' there is no past
practice with regard to the packaging of bread
crumbs at the Ghirardelli facility.
- LONGSHOREMEN ILWU LOCAL 6 (GOLDEN GRAIN)
The Employer's preference is to have Local 125-
represented employees perform the work in dis-
pute. The Employer's preference , while not deter-
minative , favors an award of the work to employ-
ees represented by Local 125.
3. Relative skills
No particular skill is necessary to perform the
disputed work ; therefore , this factor favors neither
group of employees.
4. Economy and efficiency of operations
It is undisputed that the Golden Grain- plant
lacks the equipment to perform adequately the
work in dispute , but Local 6 argues that the Trian-
gle and the Barteldt machines could be moved to
the Golden Grain plant from the Ghirardelli plant.
Hoffman testified , however,' that there was insuffi-
cient space in the Golden brain facility to operate
the work efficiently and that , because the Triangle
machine is two stories high , construction of a
second floor at Golden Grain would be necessary.
Under the present assignment , employees repre-
sented by Local 125 perform :every function in-
volved in processing and packaging the stuffing
mix. The packaging of the spice pouch and the
bread crumb pouch , and the placement of both
packets in the stuffing mix boxes are handled by a
single unit of employees . This new procedure
eliminates the need for moving and storing the
packaged bread crumbs by Local 6 -represented em-
ployees. Before - integrating the processing and
packaging of the stuffing mix, the bread crumb
bags were placed in large cartons which were pal-
letized onto a pallet and driven by a forklift opera-
tor to the Golden Grain warehouse . The entire op-
eration now is simultaneously performed on. three
machines that are proximately situated, providing
for a more economical use of available floor space
and a more continuous and efficient use of equip-
1131
ment . Thus, the factor of economy and efficiency
of the Employer's operations favors an assignment
of the disputed work to employees represented by
Local 125.
Conclusion
After considering all the relevant factors, we
conclude that the employees represented , by Local
125 are entitled to perform the work in dispute. In
reaching this conclusion, we have relied on the ef-
ficiency and economy resulting from such an as-
signment and the Employer 's preference . In making
this determination , we are awarding the 'work to
employees represented by Local 125, not to that
Union or its members . The determination is limited
to the controversy that gave rise to this proceed-
ing.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of the Employer represented by
Local _125; Bakery , Confectionery and Tobacco
Workers ' International Union are entitled to pack-
age the bread crumbs for Golden Grain stuffing
mix at the Ghirardelli plant.
2. Warehouse Union Local 6, International
Longshoremen and Warehousemen 's Union is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force Golden Grain Macaroni Com-
pany to assign the-disputed work to employees rep-
resented by it.
3. Within 10 days from this date, Warehouse
Union Local 6, International Longshoremen and
Warehousemen 's Union shall notify the Regional
Director for Region 32 in writing whether it will
refrain from forcing the Employer, by means pro-
scribed by Section 8 (b)(4)(D), to assign the disput-
ed work in a manner inconsistent with this determi-
nation.