Metal Polishers Union, Local 5

National Labor Relations Board - Board DecisionsJul 26, 1968

172 N.L.R.B. 1314 (N.L.R.B. 1968)

1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metal Polishers , Buffers , Platers and Helpers Inter- national Union , Local 5, AFL-CIO and The Cess- na Aircraft Company McCauley Industrial Cor- portation Division and International Association of Machinists and Aerospace Workers, AFL-CIO, and its Local 225. Case 9-CD-124 July 26, 1968 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS BROWN, JENKINS , AND ZAGORIA This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing a charge filed by The Cessna Aircraft Com- pany, McCauley Industrial Corporation Division, herein called the Employer, alleging a violation of Section 8(b)(4)(D) of the Act by Metal Polishers, Buffers, Platers and Helpers International Union, Local 5, AFL-CIO, herein called Metal Polishers or Respondent. The charge alleges, in substance, that the Metal Polishers threatened and restrained the Employer with an object of forcing or requiring the Employer to assign particular work to employees represented by that particular Union rather than to employees represented by International Association of Machinists and Aerospace Workers, AFL-CIO, and its Local 225, herein called the IAM. Pursuant to notice, a hearing was held before Hearing Of- ficer Eugene M. Rothchild on April 9, 1968. All parties appeared at the hearing 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 powers in connection with this case 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. The Employer and Metal Polishers have filed briefs which have been duly considered. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Cessna Aircraft Company, McCauley Indus- trial Corporation Division , is a Kansas corporation engaged in the manufacture of aircraft propellers at its plant located at Dayton, Ohio. During the past 12 months, the Employer sold goods of a value in excess of $50,000 which were shipped directly from its plant to points located outside the State of Ohio. We find that the Employer is engaged in commerce within the meaning of the Act, and that it will effec- tuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED All parties stipulated, and we find, that the Metal Polishers and the IAM are labor organizations within the meaning of the Act. 111. THE DISPUTE A The Basic Facts The work in dispute involves the operation of a newly installed machine described as Spitfire Micro-Lap 15 Inch Precision Flat Lapping Machine-Bench Type Model which processes a face plate cover to a governor in order to make the sur- face on the face plate cover as flat as possible. The operation does not require any skill as the machine automatically performs the skilled operation of reducing to a specified tolerance the flat surface of the face plate cover. The operator loads the machine, pushes a buttom, and on the machine's cutting off automatically after a 7-minute run re- loads the machine. It is necessary for the operator to keep the lapping plate of the machine and its component parts free of dirt particles. During the evolvement of the Employer's requirement for a flat lapping machine, the Em- ployer at first used an automatic chucker machine, operated by machinists, but this machine did not obtain the required tolerance on the face plate cover. The Employer then resorted to a hand- lapping process of the part, which was also per- formed by machinists. However, due to the length of time involved in hand-lapping, it became imprac- tical and eventually led to the exploration of vari- ous types of lapping machines. In August 1967, the Employer installed the instant lapping machine, which after an experimental and setup period has occasionally been operated by available machinists. In early September 1967, the Metal Polishers first became aware of the Employer's intent to use the flat lapping machine and on September 12, 1967, made a written claim on the Employer for opera- tion of the machine. Thereafter, the Metal Polishers met with the Employer to discuss assignment of the operation of the flat lapping machine. Again in early November, the Metal Polishers met with the Employer and discussed the assignment of the flat lapping machine where the Employer stated that it had not assigned the job and was not interested in 172 NLRB No. 143 METAL POLISHERS UNION, LOCAL 5 who got the job. During this meeting, Emmanuel Wilburn, International vice president of Metal Polishers , told John Finlay, manager of industrial relations for the Employr, that if this job were as- signed to the IAM, the Metal Polishers would strike. Again in early January 1968, the president of the Metal Polishers, Paul Leis, reiterated the strike threat regarding the disputed work to Finlay, in the presence of John Sekunda, shop chairman of the Metal Polishers. In December 1967, the Employer had reached a decision to assign the disputed work to employees represented by the JAM, but had not advised the Unions involved of its decision . The Employer maintains that to this date, no official assignment of the operation of the flat lapping machine has been made due to the strike threat by the Metal Polishers. Testimony indicates that employees represented by the JAM operate other machines designed to reduce component parts to tolerance and finish, such as a precision honing machine , Heald External Grinder, Heald Internal Grinder, and a Norton Ex- ternal Grinder. Employees represented by the Metal Polishers do not perform any operations which involve the reduction of parts to tolerance. B. Contentions of the Parties The Metal Polishers argues that the nature of the disputed work indicates that it is a buffing and polishing job, normally performed by metal polishers , under the Metal Polishers collective-bar- gaining agreement with the Employer . In this re- gard , the Metal Polishers contends that, according to the standard definition of "buff" and "polish," this machine does j ust such work and replaces a skilled "Metal Polisher and Buffer " craftsman. The Metal Polishers also contends that the JAM made no demand for the work until long after the purely arbitrary decision of the Employer to so assign it to the JAM. The Employer and the IAM take the position that machinists are entitled to the disputed work because the operation of the machine involves precision grinding/lapping to tolerances normally performed by machinists at the Employer 's plant. Further , the Employer and the IAM point out that no operations are performed by metal polishers at the Employer 's plant which require reduction of parts to tolerance , and that machinists in the plant perform operations similar to operation of the flat lapping machine. The Employer additionally notes that the work in dispute is neither complicated nor highly skilled and that machinists are presently performing the 1315 work to the Employer 's satisfaction . Also, the Em- ployer claims that an evaluation of various factors was made and that the Employer determined that the efficiency of its operations required an assign- ment to employees represented by the JAM. How- ever , the Employer has been unable to make an as- signment because of the strike threats by the Respondent. C. Applicability of the Statute Section 10 ( k) of the Act empowers the Board to hear and determine a dispute out of which a Sec- tion 8 ( b)(4)(D) charge has arisen, unless the parties to such dispute submit to the Board satisfac- tory evidence that they had adjusted , or agreed upon methods for the voluntary adjustment of, the dispute . Before the Board proceeds with a deter- mination of dispute , however , it is required to find that there is reasonable cause to believe that Sec- tion 8 ( b)(4)(D) has been violated. The record shows that after claiming the work in September , a representative of the Metal Polishers in a meeting with the Employer in early November 1967 threatened a strike if the work in dispute were assigned to the machinists . Again in early January 1968, a representative of the Metal Polishers reiterated the strike threat . It is clear that the ob- ject of this threat was to force the Employer to as- sign work to employees represented by the Respon- dent rather than to employees represented by the JAM, an object prohibited by Section 8(b)(4)(D). We find, therefore, on the entire record, that there is reasonable cause to believe that a violation of Section 8 ( b)(4)(D) has occurred , and that the dispute is properly before the Board for determina- tion under Section 10 ( k) of the Act. D. Merits of the Dispute Section 10 ( k) of the Act requires the Board to make an affirmative award of disputed work after giving consideration to various relevant factors, and the Board has held that its determination in a ju- risdictional dispute case is an act of judgment based upon common sense and experience and a balanc- ing of all relevant factors. Some factors usually considered by the Board in making jurisdictional awards are not present in this proceeding . Thus , the record lacks evidence of in- dustry or area practice and there has been no ju- risdictional award by the AFL-CIO or other joint boards. Also, as the work in dispute is relatively un- skilled , members of the Respondent and the JAM both possess the requisite skills . Although both Unions are certified , neither certification by its 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terms covers employees performing this disputed work and neither contract here involved unequivo- cally or "clearly and unambiguously" supports the claims of the competing Unions. However, there are other factors which we find persuasive in mak- ing a determination in this case. The record is clear that during the historical evolvement of the Employer's need for the flat lapping machine , machinists performed the work now performed with more precision by the flat lapping machine, and the machine does not, as con- tended by the Respondent, perform work which historically has been done by a polisher or buffer. The flat lapping machine is not a polishing or buffing machine, but, as indicated by its name, is a lapping machine which, similar to other machines such as the Heald grinders operated by machinists, reduces parts to tolerance. The record shows that the flat lapping machine performs work previously assigned machinists, and that the work of that machine is similar to the performance of other machines which are operated by machinists. Ac- cordingly, we find these factors favor assignment of the disputed work to machinists represented by the IAM. The Respondent contends that the Employer's claim that efficiency requires assignment to machinists has little merit , claiming that the Em- ployer's decision to assign the work to machinists was arbitrary. In this regard, the Respondent claims the location of the flat lapping machine was equally accessible to either polishers or machinists. How- ever, the record is uncontested that the machine is located in a room, called the governor test area, where machinists, supervised by the foreman of as- sembly who supervises other machinists, are located. No polishers or buffers work in this room. In addition, Employer witnesses testified that they evaluated the operation of the machine, the skills involved, the flow of production, and other ef- ficiency factors, and, after deliberation and con- sultation, reached a conclusion that the operation of the flat lapping machine should be assigned to machinists. Although attacking this decision as ar- bitrary, the Respondent did not produce any evidence that the decision was not objective. Even though no rate of pay has been established for the specific job in dispute, we find that the factor of ef- ficiency also favors the assignment to machinists. There is no showing, and it is expressly dis- claimed, that the work is highly skilled or com- plicated, or that the employees who are occa- sionally assigned to it are also required to exercise any of the specialized skills usually possessed and exercised by journeymen polishers. In fact, the record shows that almost any employee with a few minutes training could operate the machine. It is also undisputed that the machinist employees presently performing the work when the occasion demands are performing it to the Employer's satisfaction. In view of the foregoing, particularly the similari- ty of operations to other machine operations, the Employer's evaluation in reaching a decision for as- signment , and efficiency, we shall determine the ju- risdictional dispute herein by awarding the disputed work to machinists. Our determination is limited to the particular controversy which gave rise to this proceeding. In making this determination, the Board is assigning the disputed work to machinists, who are represented by the IAM, but not to that Union or its members . Accordingly, we find that Respondent Metal Polishers was not and is not enti- tled by means proscribed by Section 8(b)(4)(D) to force or require The Cessna Aircraft Company, McCauley Industrial Corporation Division, to as- sign the disputed work to metal polishers or buffers rather than to machinists. 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 hereby makes the following Determination of Dispute. 1. Machinists employed by The Cessna Aircraft Company , McCauley Industrial Corporation Divi- sion , who are represented by International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, and its Local 225, are entitled to per- form the work of operation of the newly installed flat lapping machine. 2. Metal Polishers , Buffers , Platers and Helpers International Union , Local 5, AFL-CIO, is not enti- tled by means proscribed by Section 8(b)(4)(D) to force or require The Cessna Aircraft Company, McCauley Industrial Corporation Division, to as- sign the aforementioned work to employees en- gaged as polishers or buffers, who are currently represented by Respondent Metal Polishers. 3. Within 10 days from the date of this Decision and Determination of Dispute, Metal Polishers, Buffers, Platers and Helpers International Union, Local 5, AFL-CIO, shall notify the Regional Director for Region 9 , in writing , whether or not it will refrain from forcing or requiring The Cessna Aircraft Company, McCauley Industrial Corpora- tion Division , by means proscribed by Section 8(b)(4)(D), to assign the work in dispute to metal polishers rather than machinists.