District 9, International Association of Machinists and Aerospace Workers, AFL-CIO (Anheuser-Busch, Inc.)

National Labor Relations Board - Board Decisions

Mar 8, 1982

260 N.L.R.B. 758 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District 9, International Association of Machinists
and Aerospace Workers, AFL-CIO and An-
heuser-Busch, Inc. and Sheet Metal Workers'
International Union No. 36, AFL-CIO. Case
14-CD-638
March 8, 1982
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBI RS JENKINS, ZIMMERMAN, AND
HUNTER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Anheuser-Busch, Inc., herein
called the Employer, alleging that District 9, Inter-
national Association of Machinists and Aerospace
Workers, AFL-CIO, herein called Machinists
Union, 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 its members rather than to
employees represented by Sheet Metal Workers'
International Union No. 36, AFL-CIO, herein
called Sheet Metal Workers.
Pursuant to notice a hearing was held before
Hearing Officer John S. Cotter on September 15,
1981. All parties appeared and were afforded full
opportunity to be heard, to examine and cross-ex-
amine 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.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPI.OYER
The record shows that the parties stipulated that
the Employer, a Missouri corporation with its prin-
cipal offices and a production facility located in St.
Louis, Missouri, is engaged in the brewing, packag-
ing, and nonretail sale of malt beverages. During
the past 12 months, the Employer purchased goods
and supplies valued in excess of $50,000 directly
from sources outside the State of Missouri. Ac-
cordingly, 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 pur-
poses of the Act to assert jurisdiction herein.
260 NLRB No. 100
II. Til- IlABOR ORGANIZATIONS INVOI.VED
The record shows that District 9, International
Association of Machinists and Aerospace Workers,
AFL-CIO, and Sheet Metal Workers' International
Union No. 36, AFL-CIO, exist for the purpose of
dealing with various employers with respect to
wages, hours, and other terms and conditions of
employment. We find, therefore, that District 9, In-
ternational Association of Machinists and Aero-
space Workers, AFL-CIO, and Sheet Metal Work-
ers' International Union No. 36, AFL-CIO, 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 operates four J-N-J packers at its
Missouri production facility, which pack cartons of
bottled beer into cardboard trays. In January 1981,
the Employer, to facilitate the packaging process,
installed brackets or "hold-downs" on three of its
J-N-J packers. The purpose was to ensure that the
cartons would not buckle or jam as they entered
the "drop zone" of the packer. The fabrication of
these parts was performed by employees represent-
ed by the Sheet Metal Workers, with their installa-
tion and maintenance being assigned to employees
represented by the Machinists Union.
On February 2, 1981, a steward for the Sheet
Metal Workers filed a grievance over the assign-
ment of the work to members of the Machinists,
contending that it should have been assigned to
sheet metal workers. By letter, dated June 9, 1981,
the Employer denied the grievance. On June 25,
1981, the Sheet Metal Workers advised the Em-
ployer by letter of its desire to take the matter to
arbitration, and of its willingness to have the Ma-
chinists participate in such proceeding. The Ma-
chinists, by letter dated July 13, 1981, informed the
Employer that it refused to participate in, or to be
bound by, any arbitration of the Sheet Metal
Workers' grievance. The Machinists Union also
stated that it would take whatever economic action
was necessary, including strike action by its mem-
bers, in the event that the Employer assigned the
work to members of any other labor organization.
The Employer thereafter filed the charge in this
proceeding.
B. The Work in Dispute
The specific work in dispute involves the instal-
lation, adjustment, and maintenance of the hold-
down parts on the J-N-J packers utilized by the
Employer at its bottling facility in St. Louis, Mis-
souri.
758
M1ACHINISTS, DISTRICT 9'
C. The Positions of the Parties
The Employer contends that the work in dispute
should be awarded to its employees who are repre-
sented by the Machinists Union based on its collec-
tive-bargaining agreements with the Machinists
Union and with the Sheet Metal Workers, past
practice, company preference, relative skills, and
economy and efficiency of operation.
The Sheet Metal Workers contends that the
work in dispute should be awarded to employees
represented by it on the basis of Board certifica-
tion, the collective-bargaining agreements, past
practice, relative skills, and economy and efficiency
of operation.
The Machinists Union contends that the work in
dispute should be awarded to employees represent-
ed by it based on the collective-bargaining agree-
ments, past practice, company preference, relative
skills, economy and efficiency of operation, and the
lack of any job displacement as a result of the as-
signment of the disputed work.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion 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 dis-
pute.
The parties stipulated that there was a probable
violation of Section 8(b)(4)(D); that the matter was
properly before the Board; and that there was no
voluntary method of adjustment of the dispute.
It is clear that the Machinists threatened eco-
nomic action, including a strike, to protect its claim
to the disputed work, and refused to participate in
any arbitration of the dispute.
Based on the foregoing, and the record as a
whole, we find that the parties have not agreed
upon a method for the voluntary adjustment of the
dispute, and that there is reasonable cause to be-
lieve that an object of the action of the Machinists
Union was to force the Employer to continue to
assign the disputed work to employees represented
by the Machinists Union, and that a violation of
Section 8(b)(4)(D) has occurred.
Accordingly, we find that the dispute is properly
before the Board for determination under Section
10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work
after giving due consideration to relevant factors.'
The Board has held that its determination in a ju-
risdictional dispute is an act of judgment based on
commonsense and experience reached by balancing
those factors involved in a particular case. 2
The following factors are relevant in making the
determination of the dispute before us:
1. Skills and training
The record reveals that the employees represent-
ed by the Machinists Union have performed this
work since it was determined in January 1981 that
such devices were required on the J-N-J machine,
packing six-packs of bottled beer. The hold-downs
were designed by members of the Machinists
Union, fabricated by members of the Sheet Metal
Workers, and installed and maintained by members
of the Machinists Union. Members of the Sheet
Metal Workers have never performed work on the
J-N-J packer, and admit that the machinists know
more about the machine itself and the manner in
which it operates. We find that the factor of rela-
tive skills favors an award of the work in dispute
to employees represented by the Machinists Union.
2. Collective-bargaining agreements
Article I of the labor agreement between District
No. 9, IAM, and the Employer, recognizes the ju-
risdiction of the Union over the "assembling, erect-
ing . . . and repairing of all machinery of all de-
scriptions and parts thereof . . . excluding . . .
sheet metal work, 10 gauge or lighter plant-wide."
Article III(B) of the labor agreement between
Local Union No. 36, Sheet Metal Workers Interna-
tional Association and the Employer states that the
Sheet Metal Workers has jurisdiction over the
"fabrication . . . erection . . . adjusting . . . re-
pairing . . . and maintenance of all sheet metal
work made of #10 U.S ... . or lighter gauge
metals."
Neither contract specifically mentions the J-N-J
packers or any parts thereof, although the Machin-
ists argues that the hold-downs are a structural part
of the machinery, thus giving it jurisdiction; while
the Sheet Metal Workers contends that the fact
that the metal used for the parts is 10-gauge or
lighter supports its jurisdictional claims. The
record shows, however, that members of both the
Machinists and Sheet Metal Workers have installed
and maintained metal parts of 10-gauge, lighter and
heavier on various equipment. It further shows that
i ,NL.R.B v. Radio d lelevision Broadcast Engineers Union. Local
1212, International Brotherhood of Electrical Workers. 41FL-CIO [Colum-
bia Broadcasting Systemj. 364 U.S. 573 (1961)
2 International .4ssciation of .Machinists. Lodxge NVo 1743, .4F.-C(10 (J
1 Jones Construction Company). 135 Nl RB 1402 (1962)
759
DECISIONS OF NATIONAL I ABOR RELATIONS BOARD
the center divider on the J-N-J packer is made of
10-gauge or lighter metal and that it was installed
by members of the Machinists. In sum, neither con-
tract clearly covers the work in dispute, and the
practice of all three parties to the dispute does not
present a clearly legitimate claim by either Union.
Accordingly, we find that the factor of the collec-
tive-bargaining contracts does not favor an assign-
ment to the employees represented by either
Union.
3. Economy and efficiency of operation and
job impact
The record shows that employees represented by
the Machinists have operated and maintained the
equipment since it was installed. When adjustments
are necessary, such adjustments are also made by
the same employees. The Employer testified with-
out contradiction that it would not make economic
sense to have the parts fabricated by employees of
one Union, installed by another, and then have the
first make needed adjustments and maintenance.
The record further shows that the assignment of
work to the employees represented by the Machin-
ists would not result in any job displacement of
employees represented by the Sheet Metal Work-
ers.
Accordingly, we find that the factors of econo-
my, efficiency of operation, and job impact favor
an award of the work in dispute to employees rep-
resented by the Machinists Union.
4. Employer assignment and preference
The Employer has assigned the work in dispute
to its employees represented by the Machinists
Union and has stated its desire for a continuation of
such assignment. This factor favors an award of
the work to those employees.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors, we conclude that
employees who are represented by District 9, In-
ternational Association of Machinists and Aero-
space Workers, AFL-CIO, are entitled to perform
the work in dispute based on their skills and train-
ing, economy and efficiency of operation, job
impact, and employer preference and assignment.
In making this determination, we are awarding the
work in dispute to employees who are represented
by District 9, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, but not to
that Union or its members. This determination is
limited to the particular controversy which gave
rise to this dispute.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing facts and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
Employees of Anheuser-Busch, Inc., who are
currently represented by District 9, International
Association of Machinists and Aerospace Workers,
AFL-CIO, are entitled to perform the installation,
adjusting, and maintenance of the hold-down de-
vices located on the J-N-J packers at the Employ-
er's facility located in St. Louis, Missouri.
760