Local 447 of District 15, Machinists

National Labor Relations Board - Board Decisions

Jul 23, 1974

212 N.L.R.B. 532 (N.L.R.B. 1974)

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 447 of District 15 of the International
Association of Machinists and Aerospace Workers,
AFL-CIO and The Hertz Corporation
Local Union No. 584 , International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
.of America and The Hertz Corporation . Cases 29-
CD-170 and 29-CD-171
July 23, 1974
States, where it is primarily engaged in the rental and
lease of automobiles and trucks. During the past year
it derived gross revenue from its lease and rental serv-
ices in excess of $1 million and has purchased in ex-
cess of $50,00 worth of cars and trucks directly from
firms located outside the State of New York. The
parties stipulated and we find that Hertz is engaged
in commerce within the meaning of the Act; and we
find that it will effectuate the policies of the Act to
assert jurisdiction herein.
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS
FANNINGS AND JENKINS
This is a consolidated proceeding under Section
10(k) of the National Labor Relations Act, as amend-
ed, following charges filed by The Hertz Corporation,
herein called Hertz, that Local Union No. 447 of Dis-
trict 15 of the International Association of Machinists
and Aerospace Workers, AFL-CIO, herein called Lo-
cal 447; and that Local Union No. 584, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called Local 584,
violated Section 8(b)(4)(D) of the Act. Teamsters Lo-
cal Union 584 and Machinists Local Union 447 were
permitted to participate as Parties in Interest in Cases
29-CD-170 and 29-CD-171, respectively.
A hearing was held before Hearing Officer Eliza-
beth K. Johnson on April 3 and April 10, 1974. The
Employer, Local 447, and Local 584 appeared at the
hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and
to adduce evidence bearing upon the issues. Thereaf-
ter, Local 447 and Local 584 filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-menber panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
`makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated that The Hertz Corporation
is a Delaware corporation with its principle place of
business located at 660 Madison Avenue, New York,
New York, and with numerous other places of busi-
ness including garage maintenance facilities located
at 5624 58th Street and 5657 58th Street, Maspeth,
Queens New York, and in all 50 States of the United
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local 447
and Local 584 are labor organizations within the
meaning of Section 2(5) of the 'Act.
III THE DISPUTE
A. Background and Facts of the Dispute
The Employer has had a series of collective-bar-
gaining agreements with Local 447 since it took over
the business of Metropolitan Distributors, Inc., herein
called Metropolitan, in 1955. At that time, it assumed
the then existing contract that Metropolitan had with
Local 447. Prior agreements like the current agree-
ment cover the approximately 300%maintenance me-
chanics at, all of the Employer's locations in New
York metropolitan area. The situs in dispute is located
in the Long Island City district.
Sometime in late 1959 or 1960, negotiations took
place between the Employer and Hegeman Holland
Farms, sometimes referred to as Holland or Holland
Farms, for a leasing arrangement for Holland's milk
trucks. The Employer was made aware by Holland of
an existing collective-bargaining agreement it had
with Local 584 covering the approximately nine main-
tenance mechanics it utilized for service and repair of
its milk trucks.
One of the conditions imposed by Holland in grant-
ing the lease was that Hertz assume the aforemen-
tioned collective-bargaining agreement with Local
584. The Employer sought and received the assent of
Local 447 to assume the Local 584 agreement. When
the Employer assumed the Local 584 agreement, it
also took over the Holland garage for the purpose of
maintaining and servicing the leased milk trucks.
About 6 months later, the Employer also started ser-
vicing and repairing non-milk trucks in Holland's ga-
rage. While the number of trucks serviced and
repaired at this garage has fluctuated over the years,
at present there are approximately 160 milk trucks
and 35 non-milk trucks maintained and serviced at
the Holland garage by about 20 mechanics who are
212 NLRB No. 71
LOCAL 447 OF DISTRICT 15, MACHINISTS 533
members of Local 584. In late 1972, representatives of
Local 447 reportedly first learned that Local 584 me-
chanics were performing work on non-milk trucks at
the Holland garage . At that time, Business Represen-
tative Ronald Touanen of Local 447 complained to
Employer's personnel director, Roger Keehn, about
the utilization of Local 584 mechanics to perform me-
chanical work on the non-milk trucks. Touanen point-
ed out that the Employer's collective-bargaining
agreement with Local 447 covers the maintenance
mechanics at all of the Employer's locations in the
New York Metropolitan area. Keehn promised to dis-
cuss the matter again with Touanen, but never did.
During the spring of 1973, Local 447 requested arbi-
tration but the request failed as the parties did not
reach agreement on the selection of an arbitrator.
Also during the spring of 1973, the Employer and
Holland entered into lease renewal negotiations. Hol-
land insisted that it would not renew the lease unless
the Employer cease maintenance work on non-milk
trucks in its garage before approximately 54 new milk
trucks were delivered. The Employer accepted this
condition and planned to use a lot and garage facili-
ty' located across the street for the repair and mainte-
nance of its non-milk trucks. The new milk trucks
were scheduled to be delivered during the fall of 1973;
however, due to production delays, only 6 of the 54
trucks ordered have been delivered, with the remain-
der scheduled to arrive sometime in July of this year.
On November 7, 1973, Keehn requested that the
parties hold a meeting for the purpose of resolving the
imminent dispute over the assignment of the work in
connection with the maintenance and repair of the
non-milk trucks. Present at the meeting were Keehn,
for the Employer: Touanen, for Local 447; and Busi-
ness Representative Joseph Barone, for Local 584.
According to Keehn, he was threatened with picket-
ing by the business representatives of both Union, if
the work in, dispute was not awarded to employees
who were members of their respective Unions. Both
Touanen and Barone deny making any unlawful
threat to compel the Employer to assign or reassign
the work to employees represented by their respective
labor organizations.
B. The Work in Dispute
The work in dispute is the maintenance and repair
on non-milk trucks leased by the Employer which are
serviced and repaired at its facilities located at 5657
58th Street and at 5624 58th Street, Maspeth, Queens,
New York.
1 This leased lot and garage has been used for storage and minor repairs
C. Contentions of the Parties
The Employer requests that the work in dispute be
assigned to either Union but not to both Unions on
a mixed assignment basis.
Local 584 contends that the disputed work should
be assigned to its members because it has a contract
with the, Employer which covers this work; the Em-
ployer can operate his business more efficiently by
using employees represented by Local 584; and the
Employer's assignment, employee skills, and compa-
ny practice favor the assignment to employees repre-
sented by Local 584.
Local 447 contends that the Board lacks the author-
ity to hear and determine the dispute because, in view
of the facts and conduct of the parties there is no
reasonable cause to believe that Section 8(b)(4)(D)
has been violated. Local 447 next contends that as-
suming, arguendo, that the dispute is properly before
the Board for determination pursuant to Section
10(k), the Board should award the work to it on the
basis of its contract with the Employer's assignment
and preference.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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.
As previously indicated, there is testimony that at
the November 7 meeting between the Employer and
the representatives of each Union, Business Repre-
sentatives Touanen and Barone each threatened the
Employer with picketing, the object of which was to
force or require the Employer to assign the disputed
work to members of their respective labor organiza-
tions. Thus, we find reasonable cause to believe Sec-
tion 8(b)(4)(D) has been violated and that the dispute
is properly before the Board for determination pur-
suant to Section 10(k) of the Act.
E. Merits of the Dispute
1. Certification and bargaining agreements
Neither Union has been certified by the Board to
perform the work in dispute.
The Employer is signatory to an agreement with
Local 447 which provides, in pertinent part, that "The
Company recognizes the Union as the sole bargaining
agent for all of its employees coming under the classi-
fications . . . Machinists, Mechanics. .." 2 The
Employer also assumed an agreement which Holland
2 Local 447 Exh. 1, art I, III
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had with Local 584 and which presently contains the
following relevant clause: "This Agreement shall cov-
er every employee of the Employer employed in or
about a milk distributing branch, pasteurizing plant,
and garage in the Metropolitan area. .. ." "Thus
both agreements contain language which could cover
the work in dispute.' However, at the time that Local
447 assented to the Employer's assumption of the
agreement that Local 584 and Holland were parties
to, it was, at least as disclosed by the record, under-
stood that the work would encompass only the main-
tenance and servicing of the milk trucks at the
Holland garage. Accordingly, we do not interpret the
Local 584 agreement as a concession by Local 447, of
any of the disputed work to Local 584. At the time of
the assumption, it is clear that all maintenance, ser-
vice, and repair work was being performed by em-
ployees who were represented by Local 447.
Inasmuch as the disputed work deals with the mainte-
nance and servicing of non-milk trucks, the
Employer's agreement with Local 447 more precisely
provides for coverage of the disputed work.
2. Past practice
The Employer has been in the rental and leasing
business of automobiles and trucks for at least '16
years and has, during that time, continuously utilized,
to the extent practicable, the services of employees
represented by Local 447 with the exception of this
one dispute. Under these circumstances, we find that
past practice weighs in favor of awarding the work to
employees represented by Local 447.
3. Skills and efficiency
The degree of skill necessary to perform the disput-
ed work is present in the members of both labor orga-
nizations. There is also no indication that the
Employer could operate its business more efficiently
by using employees who are represented by one
Union rather than those by the other.
The record further indicates that (1) the Employer's
employees possess the necessary skills to perform the
disputed work and (2) the Employer is satisfied with
their performance.
We find that these factors favor neither labor orga-
nization.
Conclusions
Having considered all pertinent factors herein, we
conclude that employees represented by Local 447 are
3 Local 584 Exh. 1, par 3
entitled to perform the work in dispute. This award is
consistent with the Employer's contractual obliga-
tions and its overall past practice. In addition, the
Employer is satisfied with the performance of its em-
ployees, who posses the requisite skills for the type of
work involved herein. Accordingly, on the basis of the
entire record, we shall award the work in dispute to
employees of the Hertz Corporation who are repre-
sented by Local Union No. 447 of District 15 'of the
International Association of Machinists and'Aero-
space Workers, AFL-CIO, but not to that'Union or
its members. The present'determination is limited to
the particular controversy which gave rise to this pro-
ceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the foregoing
and the entire record in this case, the National Labor
Relations Board hereby makes the following Determi-
nation of Dispute:
1. Employees of The Hertz Corporation who are
currently represented by Local Union No. 447 of Dis-
trict 15 of the International Association of Machinists
and Aerospace Workers, AFL-CIO, are entitled to
perform the maintenance and repair of non-milk
trucks leased by The Hertz Corporation and serviced
and repaired at The Hertz Corporation's facilities lo-
cated at 5657 58th Street and at 5624 58th Street,
Maspeth, Queens, New York.
2. Local Union No. 584, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is not entitled by means pro-
scribed by Section 8(b)(4)(ii)(D) of the Act to force or
require The Hertz Corporation to assign the above
work to individuals represented by Local Union 584,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local Union 584, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, shall notify
the Regional Director for Region 29, in wirting,
whether or not they will refrain from forcing-or re-
quiring The Hertz Corporation, by means proscribed
by Section 8(b)(4)(D) of the Act, to assign the work
in dispute to employees represented by it rather than
to employees represented by Local Union No. 447 of
District 15 of the International Association of Ma-
chinists and Aerospace Workers, AFL-CIO.