Local 1363, Machinists

National Labor Relations Board - Board DecisionsApr 27, 1976

223 N.L.R.B. 1074 (N.L.R.B. 1976)

1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 1363, International Association of Machinists I. THE BUSINESS OF THE EMPLOYER and Aerospace Workers , AFL-CIO and Consolidat- ed Freightways Corporation of Delaware and Freight Drivers, Dock Workers and Helpers, Local No. 24, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America.' Case 8-CD-298 April 27, 1976 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing the filing of a charge on January 6, 1975, by Consolidated Freightways Corporation of Delaware (hereafter Consolidated Freightways), alleging that Local 1363, International Association of Machinists and Aerospace Workers, AFL-CIO (hereafter Local 1363), which represents mechanics employed by the Employer, has violated Section 8(b)(4)(D) of the Act, by engaging in certain proscribed activities with the object of forcing or requiring Consolidated Freight- ways to assign disputed work to members of Local 1363 rather than to garagemen employed by the Em- ployer who are represented by Freight Drivers, Dock Workers and Helpers , Local No. 24, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (hereafter Local 24). Pursuant to a notice of hearing and an order re- scheduling hearing, a hearing was conducted before Hearing Officer Paul C. Lund on May 20, 1975. All parties appeared at the hearing and were afforded a full opportunity to be heard and to present 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 rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error . The rulings are hereby affirmed. Upon the basis of the entire record in this case, including the brief of the Employer, the Board makes the following findings: 1 The names of the parties were amended by stipulation at the hearing. Consolidated Freightways, a wholly owned subsid- iary of Consolidated Freightways, Incorporated, is a Delaware corporation engaged in the transportation of goods in interstate commerce through its over-the- road trucking operations. Annually, during the course of conduct of its business, it derives revenues in excess of $1 million from the hauling of goods across state lines. The parties stipulated to these facts and, on the basis thereof, we find that Consoli- dated Freightways is an employer engaged in com- merce 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 All parties stipulated, and we find, that Local 1363 and Local 24 are labor organizations within the meaning of Section 2(5) of the Act. III. EVIDENCE A. Background The dispute involves various separate tasks which are performed by garagemen and mechanics at a large maintenance and repair facility for the Employer's over-the-road trucking enterprise. Origi- nally, this enterprise was owned and operated by Motor Cargo, Inc., which had the repair and mainte- nance work performed at its several locations in Ak- ron, Ohio. There was a separate body shop and ga- rage; tires were changed and trucks were refueled at a nearby filling station. The facilities were separately organized: in 1953, the International Association of Machinists, Lodge No. 762, which later merged with Local 1363, became the certified representative of the mechanics; Local 24 has been recognized as the rep- resentative of the garagemen since 1955. Subsequent- ly, Motor Cargo moved its operations to a single lo- cation. In 1961, Consolidated Freightways acquired the business and it completed a new building some- time in 1972. The standard area and industry practice is for one union to represent both groups of employees. How- ever, at Consolidated Freightways, the garagemen are represented by Local 24 and the mechanics are represented by Local 1363. The collective-bargaining agreements of both Local 1363 and Local 24 contain language which appears to consider the jurisdiction of the work in dispute. An added complication is the fact that the repair and maintenance work, originally performed at three separate locations, is now per- 223 NLRB No. 168 LOCAL 1363, MACHINISTS formed at a single facility. The workflow at the pre- sent facility is now organized in a different fashion from its organization at past facilities. In addition, there have been several technological changes in equipment which have necessitated the implementa- tion of new procedures. Thus, the Employer's past practice is not entirely an adequate guide for assign- ing the contested work. The parties stipulated that their dispute over the various work tasks has existed for quite some time. The longstanding dispute over work assignments cul- minated on December 23, 1974, when Charles Czon- ka, business representative of Local 1363, sent a let- ter to the Employer which indicated that Local 1363 was prepared to resort to economic pressure if the disputed work assignments were not resolved. B. The Work in Dispute The parties stipulated that the work in dispute con- cerns the assignment of the following work tasks by the Employer, at its terminal located at 2615 Brecks- ville Road, Richfield, Ohio: (1) changing of forklift tires; (2) starting of equipment; (3) repair of come- back work; (4) repair and replacement of lights and wiring; (5) brake adjustment; (6) inspection and re- pair of outbound equipment; and (7) setting of the fifth wheel slide lock on the '70-series tractor. C. 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. The parties stipulated that Charles Czonka, busi- ness representative of Local 1363, threatened to re- sort to economic pressure if the disputed. work was not resolved. Additionally, the parties stipulated that no voluntary agreed-upon method for settling the dispute exists. The record clearly indicates that the parties have been embroiled in a longstanding and continuous dispute over the work tasks described above and that the Employer's assignment of the work has engen- dered increasing dissatisfaction among the employ- ees, as evidenced by the repeated filing of grievances. We find that the December 23 letter from Charles Czonka, business representative of Local 1363, to the Employer constitutes a threat of economic action on the part of Local 1363. On this basis we find that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the dispute is properly before the Board for determination under Section 10(k) of the Act. 1075 D. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work af- ter giving due consideration to various relevant fac- tors, such as the collective-bargaining agreements, the employer's assignment of the disputed work, in- dustry practice, skills, and efficiency of operations. As the Board has stated, the determination in a juris- dictional dispute case is an act of judgment based on commonsense and experience in weighing these fac- tors. At the outset we find that the factor of certifica- tion .does not favor either Union. While Local 1363 has been the certified representative of the Employer's mechanics since 1953, it is also true that the Employer has recognized Local 24 as the repre- sentative of its garagemen since 1955. Thus, each lo- cal has a longstanding bargaining history with the Employer for the group of employees which it has traditionally represented. In addition, we also find that the factor of area or industry practice is not par- ticularly relevant to assigning the disputed tasks, since, contrary to the standard industry practice where one union represents both groups of employ- ees, the Employer's facility is organized by two dif- ferent Unions. Therefore, industry practice does not favor either Union. We have considered the various relevant factors, in light of the several work tasks in dispute, and make the following findings: 1. Changing of forklift tires This task assigned to mechanics represented by Local 1363 involves the changing of solid, hard-rub- ber tires on forklifts. These solid tires are distin- guished from pneumatic tires which the Employer has customarily used in the past. Changing these sol- id tires involves procedures different from those used for pneumatic tires which, all parties concede, are changed solely by garagemen represented by Local 24. The record also indicates that solid rubber tires are being used increasingly at the Employer's facility. The solid tires must be pressed onto the wheel hub with the use of a stationary hydraulic pump which is located inside the "unit rebuild area" where mechan- ics work. The front tire on the forklift, or drive tire as it is otherwise called, does not require any special adjustment, but the rear tire, or steering axle, re- quires a bearing and brake adjustment when the tire is changed. On the basis of its collective-bargaining agreement which states that "garagemen shall perform . . . changing of tires and heating lugs when necessary to 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do so," Local 24 asserts jurisdiction over all tire changing regardless of the type of equipment in- volved . Local 1363 claims the Employer 's assignment should be followed because mechanical skills are re- quired to change the forklift tires . In support of as- signing this disputed task to the mechanics , the Em- ployer contends that mechanical skills are required to change the solid , hard-rubber tires on forklifts. The Employer also asserts that its agreement with Local 24 should not influence the assignment of the disputed task because it does not specifically refer to the solid , hard -rubber forklift tires which are at issue. Because of its unspecific language , we find that the collective-bargaining agreement between Local 24 and the Employer does not establish Local 24's juris- diction over the changing of forklift tires . In view of the mechanical skills required to complete this task and the Employer 's assignment to the mechanics on the basis of their skills and efficiency of operations, we shall award the work of changing forklift tires to the mechanics represented by Local 1363. 2. Starting of equipment This disputed work involves starting the various vehicles which are to be repaired or used in the Employer's operations. Equipment is started mainly in the yard area adjoining the facility. Previously, at least two people were needed for this work because the vehicles were electrically started, but now it is feasible for only one person to complete the task since most equipment is started by applying air pres- sure? The process involves injecting air into the en- gine system and starting the ignition inside the cab of the vehicle. In cold weather, both air-started and electrically started equipment require the injection of ether into two small vents on either side of the air cleaner . Mechanical skills are necessary to perform this task because severe engine damage can result from improper application of ether. Local 24, in claiming jurisdiction over the work, relies on a 1965 grievance settlement which holds that where two employees are needed to start equip- ment, the work shall be shared, and if additional help is needed, the Employer shall divide the work be- tween the two locals as evenly as possible. However, Local 24 concedes the Employer should retain the right to designate the appropriate employee if only one piece of equipment needs to be started. On the other hand, Local 1363 claims the disputed work is totally within its jurisdiction because of the mechani- cal skills involved, although it admits that employees 2 Approximately 50 '70-series tractors and some city equipment are still electrically started. represented by Local 24 have performed this work when there have been several pieces of equipment to start. The Employer contends that it should determine at the outset how many employees are needed to start the equipment. If it determines that one person can handle the work, the Employer asserts that the task should be assigned to a mechanic because it may be necessary to apply ether or other mechanical difficul- ties may arise. When two or more employees are needed to start the equipment, the Employer claims the right to assign the work to members of either Union, based on the most efficient use of its employ- ees. The record indicates that employees represented by both Unions have been assigned to start equip- ment , depending upon the number of persons needed at any given time to do the task, and that mechanics are necessary when mechanical skills are required, such as in the application of ether. Although equip- ment was electrically started at the time of the 1965 grievance settlement, the settlement, as an indicator of past practice, demonstrates that members of both locals have performed the task. On the basis of the record we find that the Employer should retain the right to assign the work based on its judgment of the number of employees needed to properly start the equipment and the relative mechanical skills in- volved. Therefore, we shall award the work to em- ployees represented by either Local 1363 or Local 24, in accordance with the Employer's assignment. 3. Repair of comeback work This disputed task involves comeback work which refers to malfunctioning equipment brought to the Employer's facility for repair. Usually the equipment has originated at the Employer's terminal and there- fore the vehicles have been worked on by a mechanic or garageman as they have passed through an out- bound inspection lane. However, frequently, a disa- bled vehicle will be brought to the Employer' s termi- nal for the first time , if it was dispatched from another city but taken over by a new driver in Rich- field, where the Employer's facility is located. Before the Employer's large single facility was built, come- back work was handled in a separate building in which only mechanics worked. Presently the facility has an area reserved for comeback work; currently mechanics primarily staff this area, but some ga- ragemen also work in the area or nearby so they are readily available. The record indicates that proce- dures for handling comeback work have changed fre- quently, so that the Employer's past practice does LOCAL 1363, MACHINISTS 1077 not favor either Union for the purposes of assigning the disputed work. The Employer, with Local 24 in agreement, con- tends that the assignment of comeback work should be made jointly to employees represented by both Unions, with the work awarded to whichever em- ployee category, by contract or custom, routinely performs the work. The Employer testified, for exam- ple, that even when a mechanic is stationed in the comeback area , a garageman is assigned to do the particular task, if it is within the province of Local 24. On the other hand, Local 1363 claims that the work in dispute should be assigned to whichever em- ployee category performed the work originally. How- ever , this solution does not cover equipment which has originated in another city or which has not passed through the Employer 's outbound inspection. In view of the variety of tasks encompassed by comeback work, we find that the work properly be- longs within the jurisdiction of both Unions , depend- ing on the particular task which has to be performed. We also agree that the work should be assigned to whichever employee category routinely or custom- arily performs the task so that comeback work on equipment which did not originate at the Employer's facility is encompassed in this award of work. Con- sidering the variety of tasks encompassed by come- back work, the different skills involved, and efficien- cy of operations, we find that comeback work should be assigned to either mechanics or garagemen, de- pending on the particular task involved. However, any assignment of comeback work by the Employer shall not be inconsistent with any award of work made in this Decision and and Determination of Dis- pute. 4. Repair and replacement of lights and wiring The disputed work involves replacing light fixtures and repairing light fixtures and wiring. The light fix- tures which are used presently and have been used for the past 5 years are sealed , single units combining a bulb and pigtail receptacle. Previously, the light fixtures had been comprised of a separate light bulb and socket with three connecting wires which easily corroded. Replacing the old light required changing the bulb, pigtail, and unit containing the wiring. To- day, with the single unit, replacing the fixture merely requires disconnecting the old unit from a connect- ing wire and attaching the new fixture . The same tools used under the old procedures are used to re- place the new fixtures. The Employer maintains that for the purposes of assigning these disputed tasks , its use of the single- unit light fixture has not changed the way in which the work of repairing and replacing the lights and wiring should be allocated between employees repre- sented by the two Unions. Thus, the Employer as- serts that garagemen should change the light fixtures as part of the inspection process and that mechanics should be assigned the task at all other times. In ad- dition, the Employer claims, with Local 24 in agree- ment , that mechanics should be responsible for all necessary repairs and changes of wiring. Local 1363 claims that mechanics should be assigned to mount- ing light fixtures on tractors and trailers and wiring these on the vehicles, but that garagemen should be assigned to changing light bulbs and inspecting them to see that they function properly. It thus appears that all parties agree that Local 24 has jurisdiction over changing and inspecting light fixtures during the inspection stage. The collective-bargaining agreements establish ju- risdiction in each Union over some of the disputed work. Thus, under its collective-bargaining agree- ment, Local 24 has claimed the work of changing light bulbs and lights, and, under their collective-bar- gaining agreement, the mechanics have claimed the wiring of lights, whether it be during their replace- ment or repair. Examination of past practice reveals that employees represented by both Unions use the same tools and adequately perform the task of changing light bulbs, and that Local 24 has never claimed the work of repairing wiring, even during the inspection stage. In fact, the Employer has consis- tently assigned repairing lights and major wiring to mechanics represented by Local 1363. The record indicates that despite the new technol- ogy, changing the light fixture involves essentially the same skills and tasks that have always been required. The record also indicates that lights are replaced dur- ing inspection as well as in the course of other re- pairs. For efficient operations, the Employer has as- signed this task to garagemen represented by Local 24 during inspection and to mechanics represented by Local 1363 during other repair procedures. We find, on the above facts, that the task of replacing lights should be awarded to employees represented by both Local 24 and Local 1363 in conformance with the Employer's assignment . In view of the me- chanical skills involved, and the fact that Local 24 does not claim the work, repairing lights and major wiring should be assigned to employees represented by Local 1363. 5. Brake adjustment This disputed task involves the adjustment of wedge brakes. Prior to 1962, the Employer used "S- cam brakes" which required different tools and pro- 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cedures for their adjustment. The part needing ad- justment on the wedge brake is difficult to reach and requires the use of a special brake tool. This task can be performed either when the safety inspection is made or when other repair work is done. The Employer, with Local 24 in agreement, con- tends that the disputed task should be performed by garagemen when the equipment is undergoing safety inspection and assigned to mechanics when the equipment is undergoing other repair procedures. On the other hand, Local 1363 asserts jurisdiction over all brake adjustment, whether it is performed at the time of the safety inspection or during other repair procedures. Local 24 cites its collective-bargaining agreement which gives it jurisdiction over "adjusting of brakes when connected with inspections." However, at the time of the agreement, the Employer used a different brake than the wedge brake now in service which requires different tools and skills to adjust. Thus, Lo- cal 24's collective-bargaining agreement is not a per- suasive factor in assigning the present work. In addi- tion, the Employer's past practice is not helpful because in July 1974 all inbound inspection work, including brake adjustment which had been per- formed by garagemen, was transferred to the out- bound inspection stage. The record indicates that despite the new brake design employees represented by both Unions can perform the task. Considering the efficiency of its operations, the Employer has assigned brake adjust- ment to garagemen represented by Local 24 during the safety and operation inspections and to mechan- ics represented by Local 1363 during other repair procedures. On the basis of the skills involved, the Employer's assignment , and efficiency of operations, we shall award the work to employees represented by both Local 1363 and Local 24 in conformance with the Employer's assignment. 6. Inspection and repair of outbound equipment Prior to July 1974, the Employer utilized an in- bound inspection procedure for equipment which originated from other terminals. However, the Em- ployer eliminated the inbound inspection stage so that presently only an outbound inspection is per- formed at which time both safety and operating in- spections are completed and repair work is done. Thus, the disputed task involves both safety and op- erating inspections and repair work performed in the outbound inspection lanes. The Employer and Local 24 contend that inspec- tion of outbound equipment is within the province of Local 24's unit, whereas mechanics represented by Local 1363 should be assigned to do the necessary mechanical repairs. Local 1363 claims the exclusive right of mechanics to perform all outbound inspec- tions and repairs. Prior to July 1974, garagemen were responsible for all incoming inspection work and mechanics were responsible for repairing outbound equipment. In July 1974, inbound inspections were eliminated, so that now completely assembled outbound equipment is inspected and repaired during the outbound in- spection stage. At first, the Employer assigned em- ployees represented by both Unions to the outbound lanes on a one-to-one ratio with garagemen doing all inspection work and mechanics performing all neces- sary repairs. Since then, the Employer has changed its assignment to increase the efficiency of its opera- tions; now, a garageman is assigned to each lane, while mechanics are assigned as they are needed. Therefore, the Employer's past practice is relevant only to the extent that it indicates that garagemen are generally responsible for most, if not all, inspection work and that mechanics are generally responsible for all repairs. We find nothing in the record to indi- cate that this basic division of responsibility should not be changed. In view of the nature of the work involved, efficiency of operations, prior plant prac- tice, and the Employer's assignment, we find that the disputed work should be awarded to employees rep- resented by both Local 1363 and Local 24 in accor- dance with the Employer's assignment of outbound inspection to garagemen and outbound repairs to as many mechanics as the work demands. 7. Setting of the fifth wheel slide lock on the '70-series tractor The work in dispute involves the manual setting of the sliding lock, which is air- or spring-Qperated, on the fifth wheel of the tractor. The fifth wheel enables the truck to acquire an additional axle and increase its hauling capacity. Although the setting process en- tails hammering the lock into place, the lock, because it is a mechanical device, may require additional ma- nipulation before it will set properly. Because of the mechanical skills involved, the Em- ployer and Local 1363 contend that this work should be assigned to mechanics. Local 24 claims that the work has been customarily performed by employees represented by both Unions and that this practice should continue. The Employer's past practice indicates that me- chanics have performed the disputed work, and that while garagemen may have done the work, they did so only when the Employer's procedures were in flux. There is sufficient evidence in the record to indicate LOCAL 1363, MACHINISTS that mechanical skills are required to perform this task and that this requirement is the overriding con- sideration in awarding the disputed work. In view of the Employer's assignment of the work to the me- chanics, and the fact that the mechanics possess the requisite skills, we shall award this disputed task to the mechanics represented by Local 1363. Conclusion Upon the record as a whole , and after final consid- eration of all relevant factors involved , we conclude that the work tasks in dispute shall be assigned to employees of the Employer represented by Local 24, or to employees of the Employer represented by Lo- cal 1363 , or to both groups of employees , depending upon the particular work task involved , but not to either 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 pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Consolidated Freightways Cor- 1079 poration of Delaware, represented by Local 1363, In- ternational Association of Machinists and Aerospace Workers, AFL-CIO, and by Freight Drivers, Dock Workers and Helpers, Local No. 24, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are entitled to perform jointly in accordance with our discussion and determinations found in section III, D, the fol- lowing work: (1) starting of equipment, (2) repair of comeback work, (3) repair and replacement of lights and wiring, (4) brake adjustment, and (5) inspection and repair of outbound equipment. 2. Employees of Consolidated Freightways Cor- poration of Delaware represented by Local 1363, In- ternational Association of Machinists and Aerospace Workers, AFL-CIO, are entitled to perform the fol- lowing work: (1) changing of forklift tires, and (2) setting of the fifth wheel slide lock on the '70-series tractor. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 1363, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, shall notify the Regional Direc- tor for Region 8, in writing, whether or not it will refrain from forcing or requiring, by means pro- scribed by Section 8(b)(4)(D) of the Act, the assign- ment of the disputed work in a manner inconsistent with this determination.