Teamsters Local 636

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1329 (N.L.R.B. 1980)

TEAMSTERS LOCAL 636 1329 International Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers of America, Gener- al Warehousemen and Employees Union, Local 636 and Gimbel Brothers, Inc. and Service Em- ployees International Union, Local 29, AFL- CIO Service Employees International Union, Local 29, AFL-CIO and Gimbel Brothers, Inc. and Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Gener- al Warehousemen and Employees Union, Local 636. Cases 6-CD-690-1 and 6-CD-690-2 August 27, 1980 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, PENELLO, AND TRUESDAL.E This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Gimbel Brothers, Inc., herein called the Employer. The first charge alleges that International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, General Warehousemen and Employees Union, Local 636, herein called Teamsters or Local 636, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by it rather than to employees represented by Service Employees In- ternational Union, Local 29, AFL-CIO, herein called Local 29. The second charge alleges that Local 29 violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by it rather than to employees represented by Local 636.1 Pursuant to notice, a hearing was held before Hearing Officer Raymond R. Jacko on June 16 and 19, 1980. 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. 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-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 af- firmed. I On June 5. 1980. the Acting Regional Director for Region 6 issued an order consolidating cases and notice of hearing. 251 NLRB No. 177 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 Em- ployer, a corporation with a retail store located at Sixth and Smithfield Street, Pittsburgh, Pennsylva- nia, is engaged in the business of the retail sale of dry goods. During the past year, the Employer has received gross revenues in excess of $500,000 at its Sixth and Smithfield Street, Pittsburgh, Pennsylva- nia, location. During the same period, the Employ- er has received goods and materials valued in excess of $50,000 at that location, which goods were shipped directly from points located outside the Commonwealth of Pennsylvania. Accordingly, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 636 and Local 29 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute At issue in the present case is whether employees represented by Local 636 or by Local 29 should operate the Employer's four freight elevators, cars 22, 23, 24, and 25,2 when they are used to haul store merchandise at its facility described above.3 From 1938 until December 30, 1977, elevators 23 and 24 were regularly operated by employees rep- resented by Local 29. On December 30, 1977, Jack Lavender, Local 29-represented operator of car 23, retired. In anticipation of this retirement, Store Manager Vincent Gaughn notified Local 29's shop steward, Frank Haney, that the Employer intended to replace Lavender with an employee represented by Local 636 "to get Local 29 members into the housekeeping function and out of the elevator func- tion." The rationale for this change, according to Gaughn, was that it was inconvenient and ineffi- cient to use Local 29-represented employees to op- erate the elevators, because, when one of the regu- 2 These elevators are located on the Duquesne Club side of the loading dock at the Employer's facility involved herein 3 Of these elevators, car 22 is presently not in use. and car 25 is mostl utilized by restaurant employees for the movement of material essential to its operation The instant decision determines jurisdiction as to car 22 if it returns to service in the future, and as to car 25 for those periods when it is not in use by the restaurant employees There are. in addition, elevators numbered 20 and 21 w hich are operat- ed by employees represented by the Teamsters. which assignment is not in dispute herein TEAMSTERS LOCAL 636 1330 I)ECISIONS OF NATIIONA LABOR REI.A'IONS O()ARD tar elevator men was absent, he had to be replaced by a trained housekeeper, whose position, in turn, had to be filled with an inexperienced substitute. Thereafter, the Employer assigned a Local 636-rep- resented employee to operate car 23. At the same time that Gaughn informed Haney of the change on car 23, he told Haney that, when car 24 operator Al Johnson, a Local 29-represented employee, retired, a Teamsters-represented employ- ee would be assigned the job. Further, since 1977, the Employer has assigned only Teamsters-repre- sented employees as substitutes for the operator on car 23, and has assigned both Teamsters-represent- ed and Local 29-represented employees to man car 24 in Johnson's absence. Between 1977 and 1979, Local 29 filed several grievances with regard to the Employer's occasional manning of car 24 by a Teamsters-represented employee. In December 1979, the business agent for Local 29, Kelly Boyd, contacted Jeffrey Wells, the Em- ployer's vice president of personnel, who at the time was director of labor relations, to protest the assignment of a Teamsters-represented employee as a substitute for Johnson. Boyd indicated he "abso- lutely wouldn't accept" such an assignment and that "he would have to take some action regarding it and that it was a big problem." In March 1980, Haney, Local 29's shop steward, also protested the Employer's assignment of Teamsters-represented employees on car 24 and indicated that the Em- ployer had "better take care of it or there could be some big trouble." In response to Boyd's complaint in December 1979, Wells contacted Robert Baird, secretary-trea- surer of Local 636, concerning the conflict over the operation of the freight elevators. Baird reject- ed Local 29's claim to the work and indicated that "that kind of thing could be solved out in the streets if that's what we [the Employer] wanted." Further, in a conversation in May 1980, Hilary Ma- kowski, president of Local 636, told Wells that "he had told the [union] committee, that if need be, he'd come out and pull them [Local 636-represent- ed employees] out on the street if they wanted to get it [the jurisdictional dispute] resolved." Wells then indicated that he had no alternative but to refer the matter to the Board for resolution, which suggestion satisfied Makowski. B. The Work in Dispute The work in dispute involves the operation of the Employer's four freight elevators to haul store merchandise, excluding the use of these elevators to haul restaurant supplies, store fixtures, and rub- bish, at the Employer's Sixth and Smithfield Street, Pittsburgh, Pennsylvania, store. C. The Contentions of the Parties The position of the Employer, as stated by its counsel at the hearing,4 is that it has no preference whether employees represented by Local 636 or by Local 29 are awarded the work, as long as the dis- pute is resolved by assigning the work to one group of employees or the other. There was, how- ever, a clear preference stated by the Employer's witnesses, Gaughn and Wells, that the Teamsters- represented employees be given the work, and this is supported by the Employer's actual practice in assigning the work. Local 636 asserts that while both unions' con- tracts include the classification of freight elevator operator in the bargaining unit description, only the Teamsters labor agreement states that it has the jurisdiction to handle freight.5 Further, Local 636 states that its current contract includes a memoran- dum of understanding giving it jurisdiction over "all elevator operations," and no such specific lan- guage can be found in Local 29's contract. Finally, Local 636 notes that all of the elevators on the loading dock, with the exception of car 24, are now assigned to employees represented by it, indi- cating the Employer's preference based on econo- my and efficiency. Local 29 takes the position that employees repre- sented by it have operated these elevators since 1938, moving all types of freight. It argues that it has grieved the 1977 assignment to Teamsters-rep- resented employees, and all subsequent adverse work assignments. Local 29 also asserts that it did not participate in the negotiations for the current agreement between Local 636 and the Employer, and therefore could not have concurred with the resulting contract. Further, it claims the work based on: (1) a letter from Local 636 dated October 26, 1964, which purportedly conceded jurisdiction over the disputed elevator operations to Local 29- represented employees; (2) an October 28, 1964, letter from the Employer's bargaining association, assuring it continuing jurisdiction over the Du- quesne Club freight elevator operation; and (3) a March 17, 1971, missive from the Employer associ- ation including, inter alia, an acknowledgement of the Local's position of being "reluctant to waive jurisdiction" over the freight elevator operation. I None of the parties filed briefs They stated their positions at the end of the hearing hefore the Hearing Officer ' The Employer recognized that the Teamsters jurisdiction extended to "all receiving, shipping, checking, unpacking package collecting, transportlig merchandise to. from and between floors, to and from the freight halls to floors, to reserve arid for ard stock areas, from the freight halls, reserve and forward stock areas to the selling areas: [anld (the initial racking arid stocking in the selling area) TEAMSTERS LOCAL, 636 1331 Local 29 also denies having threatened a work stoppage over this issue. 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) of the Act has been violated and that the parties have not agreed upon a method for the voluntary adjust- ment of the dispute. The record is clear and uncontroverted that rep- resentatives of Local 636, on two separate occa- sions, told the Employer that, in order to resolve the jurisdictional dispute herein, employees repre- sented by it would go "out on the streets." Wells' testimony reveals that he interpreted these state- ments as meaning that the Teamsters would strike over the assignment of this work to Local 29. We conclude that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violat- ed by Local 636. The record also discloses, as set out above, that Boyd and Haney of Local 29 protested to Wells about the assignment of the freight elevator posi- tions to the Teamsters. They stated, respectively, that such an assignment was unacceptable and that some action would be taken, characterizing it as a "big problem," and that unless the dispute was re- solved satisfactorily "there could be some big trou- ble." Local 29 denies that its representatives threat- ened to strike herein. In a case involving a jurisdictional dispute, the Board need not find that a violation of the Act did in fact occur, but merely that there is reasonable cause to believe that such a violation took place. 6 Given the longstanding nature of the dispute herein and the tense atmosphere surrounding the assign- ment of the work in question, we are satisfied that the statements made by Boyd and Haney support a finding of reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) of the Act has been com- mitted by Local 29 as well as by Local 636. 7 Fur- ther, on the basis of the entire record, we find that there exists no agreed-upon method for the volun- tary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that this dispute is properly before the Board for determination. Local Union No. 134. International Brotherhood of Electrical Workers, AFL-CIO (International Telephone & Telegraph Corporation), 191 NLRB 828 (1971) 7 See United Brotherhood of Carpenters and Joiners of Amerrca. Local 626 (Cassidy Plastering Company. 198 NLRB 446 (1972) 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 that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case.9 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements As mentioned above, both unions have collec- tive-bargaining agreements with the Employer. Local 636 is presently operating under an agree- ment which expired in 1979, and has not yet ex- ecuted the 1979-82 agreement it has negotiated with the Employer. The 1976-79 agreement in- cludes within the description of the bargaining unit, the job classification "freight elevator operator." It also incorporates a memorandum of understanding which states, in pertinent part, that "The Company recognizes that it is the Union's jurisdiction to per- form all . . . elevator operations."' ° In this same memorandum, the Teamsters are also given juris- diction over handling the Employer's freight. ' On the other hand, Local 29's agreement also contains the classification of freight elevator operator within the bargaining unit description. Notwithstanding the existence of the same classifications in both par- ties' agreements, the positive statement in the Teamsters contract extending its jurisdiction to "all elevator operations" favors the assignment of the work in dispute to employees represented by Local 636, as does the language extending Teamsters jur- isdiciton to the handling of the Employer's freight. 2. Company and industry practice As stated previously, the Employer has since 1977 assigned a Local 636-represented employee to operate car 23. Further, since 1977, it has not as- signed Local 29-represented employees as substi- tutes for the operator on car 23, and has given the job of manning car 24 in the absence of the regular operator, to both Teamsters- and Local 29-repre- sented workers. Moreover, it has expressed the intent to assign Local 636-represented employees to all the operations in dispute as soon as the last Local 29-represented elevator man retires. V N.L.R.B. v Radio & Television Broadcast Engineers Union Local 1212, International Brotherhood of Electrical Workers..4FL-CIO [Colum- bia Broadcasting Systeml, 364 U S 573 1961) 9 International Association of Machinists. Ldge No 1743. AFL. CIO (J A Jones Construction Company). 135 Nl.RB 14)2 (1962) i There is no change in the relevant portions of the 1I79 82 contract I' See fn 5, supra. for the pertinent contract language T E A M ST E R S L O C A L . 6 3 )t ~~~~~~~~~~~~~~~~~~~~~~~~~~ 1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While it is not contradicted that for many years Local 29-represented employees operated the Du- quesne Club side elevators, the Employer has clearly established a pattern of assigning Local 636 represented individuals to the job in recent years. Further, it has indicated by the testimony of its of- ficials preference to continue to so assign the work. There was no evidence introduced regarding indus- try practice. Thus, the Employer's preference and recent past practice favor assignment of the work in dispute to employees represented by Local 636. 3. Relative skills There is no evidence in the record concerning the relative skills of the employees represented by either union to perform the work in dispute. There- fore, this criterion is not helpful in determining which set of employees should be awarded the work. 4. Economy and efficiency of operation According to the Employer's store manager, Gaughn, it is inconvenient and inefficient to use Local 29-represented employees as substitutes for absent elevator operators. This is because a re- placement must be drawn from the ranks of trained housekeepers, thus leaving a vacancy in that classi- fication. For example, the use of the housekeeper responsible for preparing the first floor for the store's opening each day as a relief elevator opera- tor requires the Employer to rely on an inexperi- enced replacement in the housekeeping position. However, Local 29-represented employee Tom Williams disputed this, testifying that the house- keeping positions are essentially unskilled. On the whole, therefore, the record is insufficient to estab- lish that it would promote economy and efficiency to assign the work to either set of employees. 5. Urion agreement As stated in the section setting forth the conten- tions of the parties, Local 29 alleges that, in a 1964 letter, the Teamsters agreed that employees repre- sented by Local 29 had jurisdiction over the dis- puted work. This letter reads, in pertinent part, that "We [Local 636] further assure you [Local 29] that your jurisdiction continues on . . . the Du- quesne Club freight operation." The letter might be viewed as an agreement between the Unions as to the assignment of the work. In light, however, of the 16-year-old date of that correspondence, and the fact that the Board will not assign great weight to such an alleged agreement if one union refuses to be bound by it,12 as is the case herein, this 12 Operative Plasterers' and Cement Masons' International Association. Local Vo. 394 AFL-CIO (Warner Masonry, Inc.). 220 NLRB 1074, 1076 (1975). the instant dispute. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that employees who are represented by Local 636 are entitled to perform the work in dis- pute. We reach this conclusion relying on Local 636's collective-bargaining agreement and memo- randum of understanding, and the Employer's prac- tice and preference in assigning the work. In making this determination, we are awarding the work in question to employees who are represented by Local 636, but not to that Union or its mem- bers. 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 basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Gimbel Brothers, Inc., who are represented by International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, General Warehousemen and Employees Union, Local 636, are entitled to operate the Em- ployer's four freight elevators to haul store mer- chandise, excluding the use of these elevators to haul restaurant supplies, store fixtures, and rubbish, at the Employer's Sixth and Smithfield Street, Pittsburgh, Pennsylvania, store. 2. Service Employees International Union, Local 29, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Gimbel Brothers, Inc., to assign the disputed work to employees represented by the labor organiza- tion. 3. Within 10 days from the date of this Decision and Determination of Dispute, Service Employees International Union, Local 29, AFL-CIO, shall notify the Regional Director for Region 6, in writ- ing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disput- ed work in a manner inconsistent with the above determination. ---