Local 423, United Rubber, Cork, Linoleum, Etc.

LOCAL 423, UNITED RUBBER, CORK, LINOLEUM, ETC. 47 the Employer's plant will take place due to the introduction of new photocomposition processes, and what effect such reorganization will have on job opportunities for employees. In any event, there is no precedent supporting a consideration of socioeconomic data of this type in determining Section 10(k) disputes. I do not disagree that the Employer's assignment of disputed work to members of a particular union is a factor militating in favor of awarding the work to these employees and I have heretofore given substantial weight to this factor. However, all the other relevant fac- tors dictate, as I have indicated, that photographers should be as- signed the disputed work. Consequently, the majority has, in effect, given to the Employer's assignment controlling weight in deciding the outcome of this jurisdictional dispute. This is a result which the Board has repeatedly stated it would-not permit,", and which is con- trary to the decision in CBS, supra. For the foregoing reasons, I would find that photographers in the editorial department represented by the Guild are entitled to perform the disputed work and that the Respondent Typographers was not and is not entitled, by means proscribed in Section 8 (b) (4) (i) (D), to force or require the Employer to assign the disputed work to its members rather than to the photographers. MEMBER BROWN, dissenting : While not endorsing the entirety of Member Leedom's dissenting opinion, I do agree with his conclusion that the disputed work be assigned to the employees represented by the Guild. '()See, for example, Local Union No. 38, International Brotherhood of Electrical Work- ers, AFL-CIO ( Cleveland Electric Illuminating Company ), 137 NLRB 1719. Local 423, United Rubber, Cork , Linoleum and Plastic Workers of America, AFL-CIO and Pipe Fitters' Local No. 522, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry . of the United States and Canada, AFL-CIO and American Synthetic Rubber Corporation; American Rubber and Chemical Company. Cases Nos. 9-CD- 61-1 and 9-CD-61-2. April 16, 1963 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10 (k) of the National Labor Relations. Act, following the filing of charges under Section 8(b) (4) (D) of. the Act. A hearing was held before Donald G. Logsdon, hearing officer, on November 7 to 9, 1962. All parties who appeared at the hearing were afforded full opportunity to be heard, 142 NLRB No. 7. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs filed by the Employers and by the United Rubber Workers have been duly considered. Upon the entire record in this case, the Board i makes the following findings : I. THE COMPANIES INVOLVED American Synthetic Rubber Corporation and American Rubber and Chemical Company, two Delaware corporations, operate as a single integrated entity manufacturing synthetic rubber products and byproducts at one location on Camp Ground Road, Louisville, Ken- tucky. The two corporations are a single employer within the mean- ing of the Act and are referred to hereinafter as the Employer or American. During 1961, a representative period, American shipped goods from its Louisville plant valued in excess of $50,000 directly to customers located in States other than the State of Kentucky. We find that American Synthetic Rubber Corporation and Ameri- can Rubber and Chemical Company are engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. H. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 423, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO (here- inafter referred to as URW), and Pipe Fitters' Local No. 522, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL- CIO (hereinafter referred to as the Pipefitters), are labor organiza- tions within the meaning of Section 2 (5) of the Act. III. APPLICABILITY OF THE STATUTE Before the Board may proceed to a determination of dispute pur- suant 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 URW is the certified bargaining representative of American's production and maintenance employees, excluding pipefitters. The Pipefitters is the certified bargaining representative of American's pipefitters. Each Union is party to a collective-bargaining agree- ment with the Employer covering employees in the certified unit. 'Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated Its powers in connection with these cases to a three-member panel [ Chairman McCulloch and Members Rodgers and Leedom]. LOCAL 423, UNITED RUBBER, CORK , LINOLEUM, ETC. 49 In certain areas the possible work jurisdictions of members of the two Unions overlap, and there has been friction in regard to the assignment of eight different types of jobs , which are discussed in detail below. As a result of these disputes and especially a dispute as to whether members of the URW should be employed to operate com- pressors in the refrigeration building ( members of the Pipefitters having been assigned to operate and maintain the equipment), the Employer filed charges against both Unions alleging violations of 8(b) (4) (D). The charges were based upon threats made during negotiations for a new contract by a representative of the URW w, ho stated that there was going to be a strike unless the URW received the refrigeration work and by a representative of the Pipefitters who, when he heard of the URW demands, informed the Employer that the Pipefitters would do whatever was necessary to keep the work it had, including picketing the plant. On the basis of the entire record, we find 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 determination under Section 10 (k) of the Act. IV. THE DISPUTE The dispute involves the assignment of eight different work tasks as follows : (1) Service and operation in refrigeration building : A refrigera- tion building was added to American's plant in 1953 when the plant was converted from hot to cold rubber. It contained four ammonia compressors which are supposed to be automatic in operation. In order to maintain and service these machines, which run continuously, American assigned one employee , a member of the Pipefitters , to main- tain the machines, and a new classification "refrigeration man" was added to the American-Pipefitter collective -bargaining agreement. In addition to maintaining the equipment , this pipefitter read charts, kept logs, inked styli, and adjusted controls. In September 1961, American added three more compressors and assigned three additional employees, members of the Pipefitters, to man the compressors on a full-time basis. The URW objected to this assignment and filed a grievance claiming that the work involved was production work and should have been assigned to its members . The URW conceded that the maintenance, service, and repair of the equipment belonged to pipefitters . After negotiation, American signed a supplemental agreement with the URW extending the latter's existing collective- bargaining agreement to include refrigeration operators . American thereupon assigned four production workers, members of the URW, to the operation of the compressors. As a result of this assignment, the Pipefitters filed a grievance which was taken to arbitration. The 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arbitrator awarded the work to the Pipefitters. The URW did not participate in the arbitration. American thereafter removed the URW men from the refrigeration building, but not from its payroll, although they perform no work. Until the URW objected, pipefitters performed, all the functions in- volved in operation of the compressors, including reading charts, keep- ing logs, inking styli, and adjusting controls. The work in question is physically separated from any production facility and the skills in- volved are clearly within the competency of the pipefitters who have been satisfactorily performing the work. In view of the foregoing, we find that the work at the refrigeration plant was properly assigned by American to pipefitters, who are repre- sented by the Pipefitters. (2) Burning or cleaning of condensers : Condensers are cleaned by brushes attached to an air motor, by rod and hammer or by a drill with rod attached, and by washing them in chemicals. At one time the con- densers were burned to remove residue and the URW members did some of this work; however, the burning method is no longer used and pipefitter employees have always done the other types of cleaning. The URW claims that all cleaning work is covered in its collective- bargaining contract and the work is not skilled. It appears, however, that pipefitters have always done the work and use the tools of their trade to do it. Accordingly the work of cleaning condensers was properly assigned by American to its pipefitter employees. (3) Connection or disconnection of tank cars when a tool of the trade is not required: In connection with production, railroad tank cars must be loaded and unloaded. When a tank car arrives, a pipe- fitter attaches a pipe fitting to the car by means of a pipe wrench. This work is not in dispute, since it requires the use of a tool of the trade and the URW concedes it is properly the function of a pipefitter. Thereafter, during the production process, flexible hose is attached to, and detached from, the car for various reasons by the use of a quick coupling which requires no tools to use and requires no skill to attach. The Pipefitters contend that its members have always done the quick coupling work and should continue to do so. However, the record indicates that, although the Pipefitters have always claimed the work, members of the URW regularly do the work instead of calling for a pipefitter. It is only when a pipefitter is standing in the vicinity that URW members fail to make the' quick coupling themselves. Further- more, the work in dispute is an integral part of the production process, the use of a quick coupling requires no skill, and the efficiency and safety of the operation will be increased if done expeditiously. Ac- cordingly, we find that the connection and disconnection of quick couplings should be assigned to production employees, who are repre- LOCAL 423, UNITED RUBBER, CORK, LINOLEUM, ETC. 51 sented by the URW, but whenever a coupling requires the use of a tool of the trade it should be done by pipefitters. (4) Attachment, use, and operation of automatic couplings in, pro- duction: In addition to using quick couplings on tank cars, American uses such couplings at various places in the production process. As indicated in the record, -the determination of when a coupling is to be changed is a production decision and where a nonproduction em- ployee is used, he must be specially called upon. As we noted above, the use of quick couplings requires no special skill or training, and the production employees make these couplings as part of their normal production work. Accordingly, as in the case of railroad tank cars, we find that the use of automatic couplings not requiring a tool of the trade is properly assigned to production employees by American. (5) Working in salvage: American has a pipefitter as its only permanent employee in the salvage yard. Included in the yard oper- ation is the cleaning of pipe fittings, valves, and strainers. This is done with a burning torch designed by a pipefitter. The salvage man must have a knowledge of the melting point of various metals and must determine what is worth salvaging and what is to be scrapped. The URW claims the work because it represents American's "yard- men and cleaners." In view of the skilled mature of the work involved and the fact that it has regularly been performed by pipefitters, we find American properly assigned this work to pipefitters. (6) Cleaning of all pipe including glass pipe : Pipe is cleaned with solutions, high pressure steam or water, augers, or burning. Pipe- fitters have always done the cleaning although occasionally produc- tion employees may have done a little. In March 1962 the URW filed a grievance claiming the work of cleaning glass pipe. The grievance went to arbitration, and the arbitrator awarded the work to the. pipe- fitters. We see no reason to disturb the arbitrator's award and find that American properly assigned this work to its pipefitter employees. (7) Burning gratings: Gratings are cleaned in the salvage yard by burning off accumulated rubber with a torch. This work is claimed by URW as "yard work" ; however, since the work clearly involves the use of a tool of the trade, and pipefitters have regularly performed the work, American properly assigned it to pipefitters. (8) Operation of the crane : For a number of years American had a crane which was used sporadically around the plant to lift heavy objects. The operation of this crane was assigned to a pipefitter. Early.in 1962 this crane was sold and no new crane was obtained to replace it. Recently, American has been experimenting with a new method of cleaning open fines recovery pits, because the old method of doing it by hand was inefficient. This cleaning job had been per- formed by employees represented by the URW. The new cleaning 712-648-64-voL 142--a 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD process decided upon involves the use of a crane. This crane has been leased,and is presently operated by an employee of the lessor, while a URW member is being trained to replace him. The Pipefitters has objected to this assignment and claims that the work of operating the crane should be assigned to an employee represented by the Pipe- fitters because a pipefitter operated the old crane. The URW con- tends that the Employer's assignment of one of its members was proper because the work being done is that formerly done by pro- duction employees. Because a new employee must be trained to operate the leased crane, the work replaces production work done by URW members, land mem- bers of neither the Pipefitters nor the URW 'are otherwise specially trained in the operation of a crane for this type of work, we believe that the Employer's assignment of the work to a production employee was proper. DETERMINATION OF DISPUTE On the basis of the foregoing findings, and the entire record in this case, the Board makes the following Determination of Dispute pursuant to Section 10(k) of the Act: 1. Production and maintenance employees employed by American, who are represented by Local 423, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, are entitled to perform the work of attaching automatic couplings, which do not require use of tools both on railroad tank cars and during the production process, and to operate the crane used to clean open fines recovery pits. Ac- cordingly, Pipe Fitters' Local No. 522, United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, is not entitled to force or require American Synthetic Rubber Corporation or American Rubber and Chemical Company to assign the above-mentioned disputed work to pipefitters currently represented by it. Pipefitter employees of American Synthetic Rubber Corporation and American Rubber and Chemical Company, who are represented by Pipe Fitters' Local No. 522, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, are entitled to perform the following work: service and operation work on the compressors in the refrigera- tion building; burning and cleaning of condensers; working in salvage; cleaning of all pipe, including glass pipe; and burning gratings. Accordingly, Local 423, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is not entitled to force or require American Synthetic Rubber Corporation or American Rub- ber and Chemical Company to assign the above-mentioned disputed INSPIRATION CONSOLIDATED COPPER COMPANY 53 work to production and maintenance employees currently represented by it. 2. Within 10 days from the date of this Decision and Determination of Dispute, both Local 423, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, and Pipe Fitters' Local No. 522, United Association of Journeymen and Apprentices of the Plumb- ing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, shall each notify the Regional Director for the Ninth Re- gion, in writing, whether or not they will refrain from forcing or requiring American Synthetic Rubber Corporation or American Rub- ber and Chemical Company, by means proscribed by Section 8(b) (4) (D), to assign the disputed work in a manner other than determined above. Inspiration Consolidated Copper Company 1 and International Guards Union of America, Ind., Petitioner. Case No. 28-RC- 1056. April 16, 1963 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before a hearing offi- cer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated, its powers herein to a three- member panel [Chairman McCulloch and Members Leedom and Fanning]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner seeks a unit of guards and watchmen at the Em- ployer's mining and ore processing operations in Inspiration, Gila County, Arizona. The Employer contends that the Petitioner is not qualified under Section 9(b) (3) of the Act to represent a unit of guards because it is indirectly affiliated with the International Union of Mine, Mill and Smelter Workers, Independent,2 a Union which admits nonguard employees to its membership. The record shows that on December 17, 1962, Leo Terrill, interna- tional representative of the Smelter Workers, a collective-bargaining representative for nonguard employees of the Employer, filed a peti- tion on behalf of his Union for the same unit of employees requested 1 The name of the Employer appears as amended at the hearing. 2 The International Union of Mine, Mill and Smelter Workers, Independent , is herein- after referred to as the Smelter Workers. 142 NLRB No. 8.