Glass & Pottery Workers Local 421 (A-CMI Michigan Casting Center)

National Labor Relations Board - Board Decisions

Oct 10, 1997

324 N.L.R.B. 670 (N.L.R.B. 1997)

670
324 NLRB No. 117
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Employer appears as reflected in the transcript.
2 The parties’ stipulation to correct the record is granted.
3 The Fruitport facility was formerly known as CMI-Noren, Inc.,
a subsidiary of CMI-International, Inc. As a result of the joint ven-
ture, the name of the Fruitport facility was changed to A-CMI
Michigan Casting Center.
4 This division produces experimental components.
5 This division produces tooling for the plant and other customers.
6 Roger Bonga, the Employer’s human resource manager, testified
that the Employer’s facility consists of one large building segmented
into separate facilities. The divisions have separate work forces, and
there is no interchange of hourly employees or supervisors and man-
agement among the facilities (except for very short durations). The
divisions have separate equipment and assets, and if another division
uses a division’s machines and material, it is charged for those serv-
ices. The divisions have their own financial documents such as profit
and loss. Bonga testified that the divisions are ‘‘run as separate com-
panies.’’
7 For the production of certain products, the foundry division also
utilizes an ‘‘Isecure Core process’’ which does not involve the use
of reusable sand.
8 The prototype, airset division also produced low-volume proto-
type aluminum casting parts for the purpose of obtaining work. In
addition, since about 1993, the prototype, airset division has pro-
duced the Viper Engine block for Chrysler.
Local 421, Glass, Molders, Pottery, Plastics & Al-
lied Workers International Union, AFL–CIO
and A-CMI Michigan Casting Center, a Joint
Venture of Alcoa and CMI-International, Inc.1
and Employees of A-CMI Michigan Casting
Center, Metal Mold Division. Case 7–CD–534
October 10, 1997
DECISION AND ORDER QUASHING NOTICE
OF HEARING
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
The charge that resulted in this Section 10(k) pro-
ceeding was filed April 1, 1997, alleging that the Re-
spondent, Local 421, Glass, Molders, Pottery, Plastics
& Allied Workers International Union, AFL–CIO
(GMP), violated Section 8(b)(4)(D) of the National
Labor Relations Act by engaging in proscribed activity
with an object of forcing A-CMI Michigan Casting
Center, a Joint Venture of Alcoa and CMI-Inter-
national, Inc. (the Employer), to assign certain work to
employees it represents rather than to unrepresented
employees of A-CMI Michigan Casting Center, Metal
Mold Division (Metal Mold employees). The hearing
was held on May 7, 1997, before Hearing Officer Chet
H. Byerly Jr.
The National Labor Relations Board affirms the
hearing officer’s rulings, finding them free from preju-
dicial error. On the entire record,2 the Board makes the
following findings.
I. JURISDICTION
A-CMI Michigan Casting Center, a Joint Venture of
Alcoa and CMI-International, Inc. is engaged in the
manufacture and nonretail sale of metal castings at its
facility located at 14638 Apple Drive, Fruitport, Michi-
gan. During the calendar year ending December 31,
1996, it sold and shipped goods and materials from its
Fruitport, Michigan facility valued in excess of
$50,000 directly to customers located outside the State
of Michigan. We find that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act. The parties stipulated, and we find, that the
GMP is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
The Employer and its predecessor (CMI-Inter-
national Inc. (CMI)) have operated the facility in
Fruitport, Michigan, for over 30 years. Before April 1,
1995, the Fruitport plant was owned and operated by
CMI. Since April 1, 1995, the Fruitport plant has been
owned and operated by A-CMI (the Employer) as a
joint venture.3
The Employer is currently composed of four divi-
sions: the foundry division; the prototype, airset divi-
sion;4 the tool and mold division;5 and the metal mold
division. The Employer testified that each division is
run independently of the others.6
The foundry division produces aluminum castings
for the automotive industry primarily using a molding
process called the ‘‘green sand’’ process.7 Prior to
1995, all of the manufacture of aluminum castings was
done in the foundry division.8
The metal mold division was established in April
1995, following the creation of the joint venture be-
tween Alcoa and CMI. The joint venture was the result
of an agreement to combine CMI’s expertise in manu-
facturing castings for the automotive industry with the
proprietary aluminum casting technology developed by
Alcoa. As a result of the joint venture, the Employer
received patented new production technology from
Alcoa known as Vacuum Riserless Casting-Pressure
Riserless Casting (VRC-PRC). The Employer estab-
lished the metal mold division to utilize the new tech-
nology in the production of aluminum castings.
Bonga testified that the Employer decided to create
the metal mold division rather than place the new tech-
nology in an existing division because it is ‘‘a different
process totally, different technology totally. It’s a
cleaner process, much cleaner. The properties of cast-
ing are totally different than the castings in the green
sand area.’’ Because the green sand process is a dirty
process and the VRC-PRC process requires a clean en-
vironment, Robert Fors, the Employer’s plant manager,
testified that the VRC-PRC and green sand processes
are incompatible. Because of the sensitive and con-
fidential nature of the VRC-PRC proprietary tech-
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671GLASS & POTTERY WORKERS LOCAL 421 (A-CMI MICHIGAN CASTING CENTER)
9 There has not been another union at the plant since 1982.
10 Until 1995, the Union’s contracts were with CMI-Noren, Inc. A-
CMI, the Employer here, assumed the 1992–1997 collective-bargain-
ing agreement when it took over operation of the Fruitport facility
in 1995.
11 The adjustment sought by the GMP was to ‘‘[m]ake the bargain-
ing unit whole for any & all losses including wages and benefits,
& make the Local whole for any & all lost union dues.’’
nology, all employees of the metal mold division who
have access to the VRC-PRC process, are required to
sign a confidentiality agreement as a condition of their
employment.
The metal mold division utilizes the VRC-PRC tech-
nology to produce high-integrity structural components
such as steering knuckles, brackets, rear axle assembly,
and front shock mounts for the automotive industry.
The foundry division primarily produces automotive
engine in-take manifolds and water pumps. The Em-
ployer testified that these parts use lower quality alu-
minum and can tolerate greater imperfections than
parts produced in the metal mold division. None of the
specific parts produced by the metal mold division
were previously produced in the foundry division.
The GMP has represented employees in the foundry
division of the Employer’s Fruitport facility since the
late 1960s. Only the foundry division employees are
represented by a union.9
Since the metal mold division was established, em-
ployment in the foundry division has decreased and
employment in the metal mold division has increased.
In April 1996, there were 60 to 70 production and
maintenance employees employed in the foundry divi-
sion bargaining unit. However, following a layoff be-
cause of lack of work in the foundry division in June
1996, the number of bargaining unit employees in the
foundry division was reduced to approximately 35.
Over the same period, the number of metal mold divi-
sion employees has increased from 25–35 production
workers in June 1996 to approximately 53 production
workers. Of the 34 bargaining unit employees who
were laid off or resigned from the foundry division be-
tween April and November 1996, 12 were rehired by
the Employer as new employees in the metal mold di-
vision, 13 were rehired in the prototype, airset divi-
sion, and 2 were rehired in the tool and mold division.
Approximately 25 percent of the employees in the
metal mold division at the time of hearing were former
bargaining unit employees from the foundry division.
The most recent collective-bargaining agreement be-
tween the parties was effective from July 1, 1992,
through June 30, 1997.10 Under the terms of the col-
lective-bargaining agreement, the unit represented by
the GMP is:
All full-time, regular part-time, and irregular pro-
duction and maintenance employees employed by
the Company in the Foundry Division at its
Fruitport, Michigan Plant . . . but excluding all
patternmakers, apprentices, office and plant cleri-
cal employees, and guards and supervisors as de-
fined in the National Labor Relations Act as
amended.
The agreement includes provisions that prohibit
‘‘[s]upervisors and other non-bargaining unit employ-
ees’’ from performing ‘‘production or maintenance
work included in the classifications covered by [the]
Agreement’’ and govern subcontracting of bargaining
unit work. The contract also includes a grievance
clause, provisions for final and binding arbitration, and
a no-strike clause.
On March 19, 1996, the GMP filed a grievance al-
leging that a bargaining unit employee was required to
unload metal to be used in a nonbargaining unit divi-
sion of A-CMI. On March 29, 1996, that grievance
was resolved, with the Employer agreeing that
‘‘[b]argaining Unit employees responsibilities will be
limited to work performed for the Foundry Division.’’
In June 1996, Bruce Smith, an executive officer of
the GMP, was informed that aluminum casting produc-
tion work was being performed by employees not rep-
resented by the GMP. Smith toured the plant in order
to determine whether the collective-bargaining agree-
ment was being violated. Bonga testified that Smith
expressed surprise to company officials that production
of aluminum castings for the automotive industry was
being done by employees in the metal mold division.
Smith indicated that he believed that production of alu-
minum castings was bargaining unit work, and he re-
quested that the discussion be treated as a step-1 meet-
ing under the contract’s grievance procedure. Smith
testified that he explained to company officials that he
was not seeking to remove any employees from the
metal mold division, but that he was making the point
that the work was under the jurisdiction of the con-
tract. On June 5, 1996, the GMP filed a written griev-
ance over the issue, claiming that nonbargaining unit
personnel were performing bargaining unit production
and maintenance work in the metal mold area in viola-
tion of the collective-bargaining agreement.11
The parties were unable to resolve the grievance and
Smith attempted to schedule a step-4 meeting with
Human Resource Manager Bonga. Bonga failed to re-
turn Smith’s calls. As a result, Smith wrote to the Em-
ployer stating that he planned to refer the matter to ar-
bitration. The Employer did not respond, and in Octo-
ber 1996, the Union requested a panel of arbitrators
from the Federal Mediation and Conciliation Service
(FMCS). On November 6, 1996, FMCS furnished the
Union with a panel of arbitrators. The Employer re-
fused to select an arbitrator and on January 15, 1997,
the Employer wrote to FMCS requesting that it not
proceed further with the case. In order to determine
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672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Bonga’s notes of the meeting erroneously contain the date
March 10, 1996.
13 The GMP relies, inter alia, on Teamsters Local 578 (USCP-
Wesco), 280 NLRB 818 (1986), affd. 827 F.2d 581 (9th Cir. 1987).
whether a Section 301 suit to compel arbitration would
be necessary, the Union, on January 30, 1997, wrote
to the Employer requesting clarification of its position
concerning the arbitrability of the grievance. There is
no evidence that the Employer responded to this letter.
While the Union’s grievance was pending, the Em-
ployer requested that the parties begin early contract
negotiations. The first session was held on March 10,
1997.12 The Employer’s representatives wanted to deal
with the outstanding metal mold grievance as a matter
to be bargained over as part of the negotiations for a
new contract, but Smith stated that the appropriate
mechanism for resolving the grievance was the con-
tractual grievance procedure, and that the Union did
not want to discuss the grievance during contract nego-
tiations. Bonga testified that Smith became agitated
when the metal mold grievance was brought up. Ac-
cording to Bonga, Smith stated that ‘‘[m]etal Mold is
our work’’ and it was ‘‘not negotiable. If you don’t
agree, there will be a strike.’’ Smith testified that in
discussing why the Union did not want to resolve the
grievance in negotiations, he stated that ‘‘it would not
be fair to the parties to throw a grievance in to where
the final resolution process is a strike,’’ as opposed to
resolving it through the contractual grievance proce-
dure where ‘‘the final resolution process . . . is arbi-
tration.’’
The parties agreed to meet again on March 26,
1997. On March 17, 1997, Smith wrote to the Em-
ployer, requesting certain information and reiterating
the Union’s position that the ‘‘settlement and/or with-
draw [sic] of a grievance for which th[e] Union is
seeking arbitration,’’ was not a mandatory subject of
bargaining and that the Company could not force the
Union to bargain over it or insist that it be included
as part of any contract settlement. Smith did not re-
ceive a written reply to this letter, but he did receive
the requested information on May 6. The March 26
meeting was canceled, and the instant unfair labor
practice charge was filed by the Employer on April 1,
1997.
B. Work in Dispute
The notice of hearing describes the work in dispute
as ‘‘[t]he manufacture of castings, which work has
been assigned by A-CMI to the unrepresented employ-
ees of its Metal Mold Division, rather than to employ-
ees in the collective bargaining unit who are rep-
resented by, and who are members of Local 421,
Glass, Molders, Pottery, Plastics and Allied Workers
International Union, AFL-CIO.’’
C. Contentions of the Parties
The GMP filed a motion to quash the notice of hear-
ing, and offered several alternative arguments in sup-
port of its motion. First, the GMP maintains that this
case does not involve a jurisdictional dispute between
two competing groups of employees, but is a contrac-
tual dispute between the GMP and the Employer con-
cerning the diversion of bargaining unit work.13 The
GMP argues that this dispute should be resolved
through the parties’ agreed upon arbitration procedure,
and that the Employer should not be permitted to ma-
nipulate Board processes in order to bypass the con-
tractual arbitration mechanism agreed to by the parties.
Second, the GMP asserts that this dispute is actually
a representational dispute concerning the scope of the
unit it represents for collective-bargaining purposes,
and whether or not the employees in the metal mold
division are part of that unit and should be covered by
the collective-bargaining agreement with the Employer.
The GMP states that it is not seeking to displace any
of the unrepresented employees, but is simply seeking
to obtain representational rights for those employees
performing the work.
Third, the GMP contends that this is a work preser-
vation dispute because the GMP is merely seeking
work which it has traditionally performed. The GMP
notes that the work in dispute is the manufacture of
castings, work which has always been performed by
the bargaining unit at the Employer’s Fruitport facility.
The GMP also notes that almost one-fourth of the em-
ployees in the metal mold division are former bargain-
ing unit employees who were laid off or resigned from
the foundry division for lack of work and then were
rehired by the Company as new employees in the
metal mold division.
Fourth, if the Board finds that the case does involve
a jurisdictional dispute, the GMP claims that it did not
engage in any conduct proscribed by the Act. It never
struck, picketed, or otherwise refused to perform any
services in response to the Employer’s decision to
award bargaining unit work to a group of unrepre-
sented employees. With regard to GMP Representative
Smith’s alleged statement at the March 10 negotiations
session concerning a strike, the GMP argues that it
was simply a prediction of the logical consequences of
the Employer’s proposal to treat the GMP’s grievance
as a part of the negotiation process, i.e., if the parties
could not agree, a strike could result.
Alternatively, the GMP argues that if the notice of
hearing is not quashed, the disputed work should be
awarded to employees it represents based on the fac-
tors traditionally considered by the Board in resolving
jurisdictional disputes. Specifically, the GMP argues
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673GLASS & POTTERY WORKERS LOCAL 421 (A-CMI MICHIGAN CASTING CENTER)
14 See, e.g., Teamsters Local 282 (Mount Hope Trucking Co.), 316
NLRB 305 (1995).
that the Employer’s past practice supports awarding
the work to GMP-represented employees because all
production of aluminum castings for the automotive in-
dustry previously has been performed by bargaining
unit employees, and that although the metal mold divi-
sion uses a different technology, the basic work is
identical to work previously performed in the foundry
division. Both utilize molding machines, both manu-
facture castings through the use of molten metal
molds, and both involve the use of employees to fin-
ish, inspect, and transport these castings once pro-
duced. The GMP further maintains that area and indus-
try practice supports an award of the disputed work to
employees represented by the GMP because the GMP
has represented employees at foundries where multiple
production processes are utilized.
The GMP claims that the employees it represents are
skilled and experienced in foundry work, and that it
was because of their skills and experience that the Em-
ployer hired so many of the laid-off foundry division
employees to work in the metal mold division. In con-
trast, the newly hired metal mold employees are inex-
perienced in foundry work. Thus, it is more efficient
to assign the work to bargaining unit employees. The
GMP argues that the Employer’s assignment of the
work to unrepresented Metal Mold employees was not
made to promote efficiency but was done in order to
undermine the GMP.
The Employer contends that there is reasonable
cause to believe that Section 8(b)(4)(D) has been vio-
lated and that the work in dispute should be awarded
to the unrepresented employees in the metal mold divi-
sion. The Employer argues that GMP Executive Offi-
cer Smith’s threat at the March 10, 1997 negotiating
session that there would be a strike if the Employer re-
fused to assign metal mold division work to GMP-rep-
resented employees, constitutes reasonable cause to be-
lieve Section 8(b)(4)(D) has been violated. The Em-
ployer maintains that Smith’s equivocal denial of the
threat is inconsequential because the Board must only
find that reasonable cause exists to believe that the
GMP violated Section 8(b)(4)(D).
The Employer further argues that there are two
groups of employees claiming the disputed work, and
that no method exists to resolve this dispute volun-
tarily. In this connection, the Employer asserts that be-
cause the unrepresented employees are not a party to
the Employer’s collective-bargaining agreement with
the GMP, they are not subject to its grievance and ar-
bitration procedure. Thus, the Employer argues that
any decision reached by an arbitrator would not be
controlling on the unrepresented employees.
The Employer contends that the notice of hearing
should not be quashed because this is not a work pres-
ervation dispute. Because employees represented by
the GMP have never performed the disputed work, the
GMP is not attempting to preserve unit work but in-
stead is attempting to extend its jurisdiction and ac-
quire new work. The Employer argues that because the
VRC-PRC technology is a patented new process and
no one else in the world uses it, the GMP is not at-
tempting to ‘‘recapture’’ work which it used to per-
form. In support, the Employer notes that in cases
where unit employees have never performed the dis-
puted work, the Board has found no work preservation
objective and has found that a jurisdictional dispute ex-
ists.14 The Employer further maintains that given the
significant differences between foundry division work
and metal mold division work, the Employer legiti-
mately exercised its management rights to create a new
division for the new work.
The Employer also asserts that the collective-bar-
gaining agreement does not cover the disputed work
because that contract only covers the foundry division
employees. The Employer notes that the GMP, in its
March 1996 grievance, contended that GMP bargaining
unit employees should not be required to perform work
for other divisions.
The Employer further argues that the dispute is
properly before the Board for determination and that
the work in dispute should be awarded to the unrepre-
sented employees in the metal mold division. The Em-
ployer relies on its preference and past practice. Since
the inception of the work in dispute it has always been
performed by the unrepresented Metal Mold employ-
ees. Because no one else in the world uses the VRC-
PRC process, there is no contrary area and industry
practice. The Employer also argues that it has invested
significant time, effort, and resources to train and de-
velop the skills of the unrepresented Metal Mold em-
ployees who are currently performing the work, and
that to require the Employer to assign the disputed
work to employees represented by the GMP would
cause substantial hardship for the Employer.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be established that reasonable cause exists to be-
lieve that Section 8(b)(4)(D) has been violated. This
requires a finding that there are competing claims to
disputed work between rival groups of employees and
that there is reasonable cause to believe that a party
has used proscribed means to enforce its claim. We
cannot find reasonable cause to believe that any viola-
tion of Section 8(b)(4)(D) has occurred in this case.
We conclude that the evidence fails to establish a ju-
risdictional dispute between two groups of employees
within the meaning of Section 10(k) of the Act. In-
stead, we find that this dispute is representational in
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674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 See also Retail Clerks Local 1689 (Market Basket Stores), 256
NLRB 548, 549 (1981).
16 Laborers Local 1 (Del Construction), 285 NLRB 593, 595
(1987).
17 Teamsters Local 222 (Jelco, Inc.), 206 NLRB 809, 811 (1973),
citing Communications Workers (Mountain States Telephone), 118
NLRB 1104, 1107–1108 (1957).
18 In light of our finding that the notice of hearing should be
quashed because the dispute is representational in nature, rather than
jurisdictional, we find it unnecessary to pass on the validity of the
other arguments proferred by the GMP in support of its motion to
quash.
nature, and is not the type of dispute Section 10(k)
was designed to address.
The Supreme Court noted in Carey v. Westinghouse
Corp., 375 U.S. 261, 268, 269 (1964), that a ‘‘blurred
line’’ often exists between work assignment disputes
and representational ones and that ‘‘disputes are often
difficult to classify.’’15 Nevertheless, Board precedent
sets forth certain guiding principles. In this connection,
it is well established that a dispute within the meaning
of Section 8(b)(4)(D) requires a choice between two
competing groups.16 The Board has stated:
There must, in short, be either an attempt to take
a work assignment away from another group, or
to obtain the assignment rather than have it given
to the other group. . . . A demand for recognition
as bargaining representative for employees doing
a particular job, or in a particular department,
does not to the slightest degree connote a demand
for the assignment of work to particular employ-
ees rather than to others.17
We find no attempt by the GMP to take a work as-
signment away from the unrepresented employees or to
obtain the assignment rather than have it given to the
unrepresented employees. The GMP is not seeking to
displace the unrepresented employees, but is merely
seeking to represent those employees who are doing
the metal mold work and to apply the collective-bar-
gaining agreement to those employees. The GMP’s
posthearing brief states that
it is the Union’s position that the present dispute
really constitutes a representation question con-
cerning the scope of the unit of employees it rep-
resents for collective bargaining purposes and
whether or not employees in the Metal Mold Di-
vision are part of that unit. In effect, the Union
seeks clarification of its existing unit by a finding
that employees performing production work in the
Metal Mold Division are really covered by the
present collective bargaining agreement between
the Union and A-CMI.
The GMP’s grievance supports the GMP’s charac-
terization of the dispute. As noted above, the grievance
does not seek as a remedy the displacement of the em-
ployees currently performing the work. Rather, it seeks
a make-whole remedy for unit employees, as well as
lost union dues for the GMP. This is consistent with
the GMP’s position that those employees performing
the work should be considered to be unit employees
covered by the collective-bargaining agreement, and
reflects a desire to represent those employees who are
performing the metal mold work.
Although the GMP has not formally requested rec-
ognition as the collective-bargaining representative of
the employees in the metal mold division, and has not
filed a unit clarification or other representation peti-
tion, we find that the real dispute here is not between
the employees represented by the GMP and the unrep-
resented employees, but instead is between the GMP
and the Employer concerning whether the employees
who perform the metal mold work should be rep-
resented by the GMP and/or covered under the collec-
tive-bargaining agreement between the Employer and
the GMP.
Sections 8(b)(4)(D) and 10(k) were not intended to
cover situations such as this one where the dispute is
essentially between the union and the employer rather
than between rival groups of employees, and where the
essence of the dispute is representational rather than
jurisdictional. For these reasons, we conclude that the
GMP’s alleged conduct does not give rise to a ‘‘juris-
dictional dispute’’ within the meaning of Sections
10(k) and 8(b)(4)(D). We shall, therefore, quash the
notice of hearing.18
ORDER
It is ordered that the notice of hearing issued in this
case is quashed.
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