Local 4, Int'l Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Apr 29, 1965

152 N.L.R.B. 265 (N.L.R.B. 1965)

LOCAL 4, INT'L BROTHERHOOD OF TEAMSTERS, ETC 265
Board would place a discriminatee on the horns of such a dilemma and thereby
defeat the public purpose of remedying discriminatory discharges. Such an interpre-
tation or limitation upon the Board's ability to grant backpay would be incongruous
and would fall far short of effectuating the policies of the Act.35 Then, too, the
Board has held that the quitting of an interim job for a good personal reason does
not mitigate against the eligibility of a discriminatee for backpay.36 For Villasenor,
a skilled Linotype operator, to be tied down to a menial job at the Forum Cafeteria
at $1 an hour and thus greatly impinge on his efforts and the time available to him
to find employment at his trade would appear to be a good personal reason to quit
in order to devote all of his time to obtaining a job as a Linotype operator.37 Con-
sequently, in leaving the Forum job, Villasenor did not incur a willful loss of earn-
ings. It is not believed that a discriminatee is required to continue working at such
a job under the conditions heie delineated in order to avoid a finding of willful loss
of earnings.38 Then, too, there has been no evidence offered to show that Villasenor
ever refused a specific offer of new employment.
It is not believed that wholly apart from the fact that Villasenor acted reasonably
and with due diligence in mitigating the financial impact of Respondent's unfair labor
practices, he was, under penalty of willful loss, obligated, as a matter of law, to
assume the onerous duties that Respondent would have thrust upon him. Villasenor
is not a culprit and it is he, not Respondent, whose rights the Board and the court
of appeals have found to be violated; and while Villasenor has an obligation to
exercise due diligence in mitigating Respondent's backpay liability, the Act cannot
be administered so as to permit a lawbreaker, himself, to assure the benefits of his
unlawfulness, and this would be the effect were some of Respondent's contentions
in that respect to be accepted. The law does not require this.
Accordingly, it is concluded and found that Respondent's obligation to make whole
Villasenor in the manner prescribed in the Board's decision will be satisfied by pay-
ment to him of the sum of $11,980.90.36 The payment of interest on the net backpay
will not be recommended as it was not required by the Board's original Order which
was enforced by the court.40
It is recommended that the Board adopt the foregoing findings and conclusions.
as Cf. N L.R B. v. Cashman Auto Company, et al., 223 F 2d 83 (C A. 1), enfg 109
NLRB 720. See also Efco Manufacturing Inc, 111 NLRB 1032, Brotherhood of Painters,
Decorators & Paperhangers, etc (Lauren Burt, Inc.), etc, 114 NLRB 295; Southern Silk
Mills, Inc., supra; East Texas Steel Castings Co., 116 NLRB 1336, 1347-1348, enfd 255
F 2d 284 (C.A. 5) (welder's acceptance of lower paying job as cabdriver)
See East Texas Steel Castings Company, Inc., supra, at 1347-1348.
87 See Harvest Queen Mill and Elevator Co , supra, with respect to a backpay claimant
giving up desirable new employment which Villasenor's janitor's job at the Forum
Cafeteria was not.
11 Ozark Hardwood Company, 119 NLRB 1130, enfd. 282 F. 2d 1 (CA 8).
39 The specification alleges $12,04090, this does not include the claimant's uncon-
tradicted interim earnings of $60 while employed by the Del Moral Printery in the third
quarter of 1961 It is understood, of course, that the obligation to make Villasenor whole
shall accrue until the date of a proper order of reinstatement A P.W. Products Co ,
Inc., 137 NLRB 25.
40 Mooney Aircraft, Inc, 148 NLRB 1057, Ellis and Watts Products, Inc., 143 NLRB
1269, and cases cited therein , General Engineering, Inc., and Harvey Aluminivn, 147
NLRB 936.
Local 4, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and P. Ballantine &
Sons . Case No. 22-CD-105. April 09, 1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10 (k) of the National Labor
Relations Act, as amended, following charges filed by P. Ballantine
& Sons, herein called the Employer, alleging that Local 4, Interna-
152 NLRB No. 28.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called Brewers, threatened, coerced, and
restrained the Employer with an object of forcing or requiring the
Employer to assign certain work to members of the Brewers, rather
than to employees represented by Lodge No. 340 and Lodge No. 1697,
International Association of Machinists, herein called IAM. A hear-
ing was held before Hearing Officer John P. Cooleen on February 3
and 11, 1965, at which. 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. The rulings of the Hearing
Officer made at the hearing are free from prejudicial error and are
hereby affirmed. The parties waived their right to file briefs in the
interest of obtaining an early resolution of the dispute.
Upon the entire record in this proceeding, the National Labor Rela-
tions Board makes the following findings:
1. The business of the Employer
P. Ballantine & Sons is a New Jersey corporation engaged in the
business of manufacturing beer and other malt beverages. During
the past year, gross annual revenue from the sale of its products de-
livered directly to points outside the State of New Jersey exceeded
$50,000. We find that P. Ballantine & Sons is engaged in commerce
within the meaning of the Act, and that it will effectuate the purposes
of the Act to assert jurisdiction in this proceeding.
2. The labor organizations involved
The parties stipulated, and we find, that Brewers and IAM are labor
organizations within the meaning of Section 2(5) of the Act.
3. The dispute
The Work at Issue
The work in dispute is the installation of a newly invented device
known as the "Ballantine Easy Tap" in the heads of aluminum or
stainless steel beer barrels. The installation involves the manual place-
ment of a metal valve with an attached plastic tube in the barrel and
securing it in place by tightening a nut and two small screws, a process
which consumes approximately 3 minutes.
The Basic Facts
The Employer's beer barrels have a tap hole in the head from which
beer is drawn at the retail establishment and another hole in the side
or belly, known as the bung, through which it is cleaned and filled.
When an empty barrel is returned to the brewery, it is cleaned by an
employee in the Brewers' unit and a member of this unit inserts a cork
LOCAL 4, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 267
in the tap hole. Since the cork is removed when the barrel is tapped,
this operation is repeated each time an empty barrel is returned to the
brewery. Subsequently, the barrel is filled and the bung hole sealed
with a wood bung or plug by a brewer and sent to the shipping
department.
The Employer decided to modify the tap hole by substituting a
permanently installed metal valve known as the Ballantine Easy Tap,
which eliminated the need for a new cork each time the barrel was
refilled. In January 1965, the Employer began installation of the
new taps on a 10,000 barrel lot and assigned the work to the Brewers'
unit. It is estimated that it will take two men 2 months to complete
the lot. Conversion of the Employer's remaining 180,000 barrels will
depend upon customer acceptance of the new tap.
Applicability of the Statute
Charges herein allege a violation of Section 8 (b) (4) (D) of the Act.
Testimony established that the Employer commenced the disputed
work in January 1965 and assigned it to employees who are represented
'by the Brewers. At the time of the assignment, the IAM demanded
that the Employer assign the disputed work to the employees it repre-
sents and instituted a grievance proceeding to accomplish that result.
The Employer notified the Brewers of the IAM grievance and the
Brewers reasserted its claim to the disputed work. On December 18,
1964, the Brewers' secretary-treasurer notified the Employer that
-should the Employer assign the disputed work to any employee not
represented by the Brewers, the Brewers "shall consider this sufficient
cause to strike your plant." Since the Employer has not changed its
original work assignment, no strike took place. We find that there is
reasonable cause to believe that a violation of Section 8 (b) (4) (D) has
occurred and that the dispute is properly before the Board for deter-
mination under Section 10(k) of the Act.
Contentions of the Parties
Brewers contends it has historically exercised jurisdiction over all
work involved in the sealing of beer barrel holes, that the area practice
is to use brewers exclusively for such work, that the work does not
demand any craft skills, and that such skills as are required in the
operation are imparted in the Brewers' apprentice program.
The IAM's chief contention is that it is entitled to the disputed work
because the work is essentially an assembling operation and its collec-
tive-bargaining agreement with the Employer recognizes it as bargain-
ing representative for employees engaged in assembling and dis-
mantling.
The Employer asserts that the work in dispute eliminates work
formerly performed by brewers, and its assignment to them is com-
pensatory for the job losses they -would otherwise suffer; that it is
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more economical to use brewers on this simple manual operation rather
than highly skilled machinists who command higher pay rates; and
that the nature of the work and location in the plant make it more
efficient to use brewers.
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
relevant factors. The following factors are asserted in support of the
claims of the parties herein :
1. Contracts and certifications: The IAM claims the disputed work
on the ground that the Employer has contractually recognized it as
bargaining agent for employees engaged in certain work which in-
cludes "assembling." Brewers likewise claims the disputed work on
the ground that its contract embraces brewing operations of which the
work in question is included. Although both unions contend that the
contracts generally apply to the disputed work, neither contends that.
its contract has specific application to the work in question since their
contracts antedate the initiation of the disputed work. Both Unions
have been certified by the Board as bargaining agents for certain em-
ployees, but neither certification relates specifically to the work lit
dispute.
2. Industry and area practice : The record indicates that other
brewers in the Newark area who use tapping devices similar to the
Ballantine Easy Tap have for many years employed brewers rather
than machinists to install such devices. It further appears from the
record that many New England breweries and some large breweries
with plants located in various parts of the country use brewery workers
exclusively in performance of the disputed work. No evidence that
machinists installed tapping devices in the area or elsewhere was
offered at the hearing.
3. Efficiency of operation: It is not considered that either brewers
or machinists lack the skills or ability to equip barrels with the Bal-
lantine Easy Tap. Employer witnesses testified, however, without
contradiction, that the nature of the work and its location in the plant
made it more efficient to use brewers for this particular installation.
CONCLUSIONS AS TO THE MERITS OF THE DISPUTE
Upon consideration of all pertinent factors appearing in the entire
record, we shall not disturb the assignment of the work in dispute to
the brewers. They are as skilled in the performance of the work as
the machinists who compete for it and have performed it to the satis-
faction of the Employer, who desires to retain them on the job. The
present assignment of the work to brewers is not inconsistent with
their collective-bargaining agreement, it conforms to the practice in
LOCAL UNION NO. 272, INT'L ASSN. OF BRIDGE , ETC. 269
the area and to the general practice in the industry, and it appears that
brewers may perform the disputed work more efficiently for the
Employer than may the machinists. We shall, accordingly, determine
the existing jurisdictional dispute by deciding that brewers, rather
than machinists , are entitled to the work in dispute. In making this
determination , we are assigning the disputed work to the employees
of the Employer who are represented by the Brewers 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 proceeding, the National Labor Relations Board makes
the following Determination of Dispute.
Brewers employed by P. Ballantine & Sons, who are represented by
Local 4, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, are entitled to perform the work
of installing the Ballantine Easy Tap in the heads of metal beer bar-
rels in the Employer's plant in Newark, New Jersey.
CHAIRMAN MCCULLOCH took no part in the consideration of the
above Decision and Determination of Dispute.
Local Union No . 272, International Association of Bridge , Struc-
tural and Ornamental Iron Workers , AFL-CIO and Prestress
Erectors, Inc. and Carpenters ' District Council of Miami,
Florida and Vicinity, AFL-CIO. Case No. 12-CD-52. April 29,
1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10 (k) of the National Labor
Relations Act, as amended, following a charge filed on July 31, 1964,
and an amended charge filed on August 31,1964, by Prestress Erectors,
Inc., herein called Prestress or the Employer. The charges alleged
that Local Union No. 272, International Association of Bridge, Struc-
tural and Ornamental Iron Workers, AFL-CIO, herein called the
Iron Workers, violated Section 8(b) (4) (i) and (ii) (D) of the Act.
On August 14, 1964, the Acting Regional Director for Region 12
issued a notice of hearing, which was later amended on September 1
and 3. The hearing held in Miami, Florida, before Hearing Officer
Obediah R. Miller, began on September 14 and ended on October 22.
152 NLRB No. 21.