Metal Polishers, Buffers, Platers, Etc., Local 3

374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metal Polishers, Buffers, Platers, and Helpers International Union, Local No. 3, AFL-CIO and Cleveland Pneumatic Tool Company, Division of Cleveland Pneumatic Industries, Inc. Case No. 8-CD-27. April 09, 1963 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act, following a charge filed by Cleveland Pneumatic Tool Company, Division of Cleveland Pneumatic Industries, Inc., herein called the Company, al- leging that Metal Polishers, Buffers, Platers and Helpers International Union, Local No. 3, AFL-CIO, herein called the Metal Polishers, had violated Section 8 (b) (4) (ii) (D) of the Act, by threatening, coercing, or restraining the Company for the purpose of compelling it to assign certain work to employees represented by the Metal Polishers, rather than to employees represented by Aerol Aircraft Employees' Associa- tion, herein called the Association. A hearing was held before John Kollar, hearing officer, between May 15 and June 18, 1962, at which all parties were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the hear- ing officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by the Company, the Metal Polish- ers, and the Association. Upon the entire record in this proceeding,' the Board makes the following findings : 1. The business of the Company The Company is an Ohio corporation and is engaged in Cleveland, Ohio, in the manufacture of military and civilian aircraft landing gear. It annually transmits goods valued in excess of $50,000 from its Cleve- land plant to its out-of-State customers. We find that the Company is engaged in commerce within the mean- ing of the Act and that' it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organizations involved Metal Polishers, Buffers, Platers and Helpers International Union, Local No. 3, AFL-CIO, and Aerol Aircraft.Employees' Association, formerly known as United Social Club and Employees Association, are labor organizations within the meaning of the Act. IAt the hearing, the parties stipulated that the transcript of hearing and exhibits in a prior representation hearing in Case No. 8-RM-271 be incorporated and made a part of the record in the instant proceeding. 142 NLRB No. 48. METAL POLISHERS, BUFFERS, PLATERS, ETC., LOCAL 3 375 3. The dispute (a) The work in dispute; background facts The disputed work which gave rise to this proceeding consists of work performed by snaggers represented by the Association. On March 22, 1962, the Metal Polishers notified the Company that it would strike if this work were not assigned to employees in the unit it represented. In 1944 the Metal Polishers was certified by the Board as the ex- clusive bargaining representative of the Company's metal polishers, buffers, platers, and helpers. At the same time, the Association was certified for a unit consisting of all remaining production and mainte- nance employees.' Successive contracts between the Company and the Association included a job classification called "snaggers" in the pro- duction and maintenance unit, whereas the contracts between the Com- pany and the Metal Polishers have been confined to the classifications for which it was certified. At the time of the 1944 certifications, snaggers were engaged in the rough grinding of forgings used in the manufacture of aircraft land- ing gear. This work, which was then considered semiskilled, involved the use of burring and chafing tools and grinding wheels. The metal polishers, on the other hand, were skilled craftsmen who worked to precision tolerances in accordance with blueprint specifications re- moving small quantities of stock to obtain the required finish. In the performance of their duties, the metal polishers used a wider variety of tools, including high precision machine tools. Since 1948 the snaggers rand the metal polishers have been employed in department 23 under the same supervision.' Their respective work areas are separated by a safety wall. For the past 10 years, due to changes in specifications for landing gear and technological develop- ments, including new machinery for manufacture, both snaggers and metal polishers have been required to work to higher tolerances to meet the more exacting specifications in the finishing of metals. Snaggers now use the same machine tools as those used by the metal polishers and both groups work from blueprints. The foremen of department 23 assign work indiscriminately to either snaggers or metal polishers, except for larger pieces of equipment which are normally assigned to the snaggers. However, such latter work is also assigned to metal polishers when the flow of work so requires. Until the past few years, sufficient work was available for both snaggers and metal polishers, and neither the Association nor the 2 55 NLRB 746. 8 Other employees who work in department 23 are classified as reamers , tappers, and washers. These employees are represented by the Association and their work is not in dispute. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metal Polishers complained about work assignments in department 23. Recently, however, due to lack of work, a number of employees in both groups have been laid off and no new employees have been hired. The Company has attempted to maintain a ratio of 2 snaggers to 1 polisher, which has been the customary complement in the de- partment. The reductions in force have resulted in the filing of grievances by both labor organizations and also resulted in the Metal Polishers' threat of a strike on March 22, 1962, unless assigned the snaggers' work. In April 1961, following a consent election in Case No. 8-RC-4204 (not published in NLRB volumes), the Association was again cer- tified for all production and maintenance employees, excluding the employees represented by the Metal Polishers. During that election, the Company challenged the ballots cast by snaggers, contending that they belonged in the Metal Polishers' unit. The challenges were not resolved as they did not affect the result of the election. Thereafter, in May 1961, the Company and the Association entered into a 3-year contract which included snaggers. The most recent Metal Polishers' contract with the Company, which expired on May 4, 1961, has not been renewed because of the claim made by the Metal Polishers for the work presently being performed by snaggers. The Company, however, continues to recognize and deal with the Metal Polishers and does not question its representative status for the craft unit classi- fications it has historically represented. On June 5, 1961, the Company, in an attempt to clarify the situa- tion, filed a petition in Case No. 8-RM-271 (not published in NLRB volumes) seeking an election in an overall unit of metal polishers and snaggers. The Company also filed a motion for clarification of the Board's prior certifications to exclude snaggers from the Association's unit and have them included in the Metal Polishers' unit. The Board dismissed the petition and also denied the motion.' The instant charge was filed on March 23, 1962, and alleged that the Metal Polishers had violated Section 8(b) (4) (ii) (D) of the Act. After reviewing the present record, a more complete record than was before us in the prior "RM" proceeding, the Board was of the opinion that the issue presented might be viewed as merely involving the unit placement of snaggers. Whereupon, the Board issued a notice to show cause on January 15, 1963, which contemplated, inter alia, the reopening of Case No. 8-RM-271. Thereafter, the parties filed re- sponses to the notice to show cause, in which each of the parties re- quested the Board to decide the issue on the basis of the charge filed in the proceeding herein alleging a violation of Section 8(b) (4) (ii) (D) of the Act. 4 135 NLRB 815. METAL POLISHERS, BUFFERS, PLATERS, ETC., LOCAL 3 377 (b) Contentions of the parties The Company has no preference as to which of the two competing unions should be assigned the work in dispute.5 It now maintains that all of this work should be assigned to either the Metal Polishers or the Association as both groups are qualified to perform any of the metal finishing functions. The Company further contends that a continued division of the work; between the two groups would be inefficient, uneconomical, and conducive to continuance of the present dispute. The Metal Polishers takes the position that the snaggers are per- forming metal polishing work and that since such work is encom- passed in its certification, it is entitled to have all the disputed work assigned to employees within the bargaining unit of metal polishers. The Association contends that very little work in department 23 is metal polishing work and characterizes the disputed work as metal finishing. The Association maintains that the Board should deter- mine which work is metal polishing and assign such work to the Metal Polishers; and that the remainder of the work, regardless of its characterization, should be assigned to employees in the produc- tion and maintenance unit, which it represents. (c) Applicability of the statute The charges, which were duly investigated by the Regional Di- rector, allege a violation of Section 8(b) (4) (ii) (D) of the Act. The Regional Director was satisfied upon the basis of such investigation that there was reasonable cause to believe that a violation had been committed and directed that a hearing be held in accordance with Section 10(k) of the Act. Although we find that there is reasonable cause to believe that the Metal Polishers violated Section 8(b) (4) (ii) (D), by threatening the Company with a strike for the purpose of forcing it to assign snagging work to employees represented by the Metal Polishers, rather than to employees represented by the Association, we reiterate our view that the dispute here involves a disagreement between the parties as to which of the two existing bargaining units appropriately includes the snaggers who perform the disputed work. We find on all the evi- dence that only a single unit, consisting of the job classifications within the Metal Polishers' unit together with snaggers, is appropri- ate and that an election in such unit would resolve the issue. How- ever, the Board is presently precluded from directing such an election because of the absence of a petition directed to that end and the un- 6 We note, however, that the Company took the position in its petition in 8-RM-271 and in 8-RC-4204 that snaggers were doing metal polishers work and should be included in the same unit with metal polishers 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD willingness of the parties to agree to such procedure. Accordingly, the Board advises the parties that it will entertain a petition for the above appropriate unit whenever one is appropriately filed. Never- theless, under the unusual circumstances presently existing in this case, the Board is contrained to consider and determine the instant dispute under this Section 10(k) proceeding. (d) Merits of the dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant factors 6 The dominant factors presented in this case are the work performance of the snaggers and metal polishers, the prior certi- fications issued by the Board to the Metal Polishers for the craft unit of polishers, and to the Association for the remaining production and maintenance employees; and the collective-bargaining contracts be- tween the parties. Neither the certifications nor the contracts shed any conclusive light on the dispute, as the former do not specifically refer to snaggers and the latter do not describe their duties. On the other hand, the record clearly manifests that there is now no meaning- ful demarcation between the work of the snaggers and the metal pol- ishers. It is evident that the snaggers, in view of their on-the-job training and experience, have developed from unskilled or semiskilled workmen to highly skilled craftsmen, whose duties at the Company's plant are virtually identical with those of the metal polishers covered by the Metal Polishers' certificate. As the snaggers possess the same skills, enjoy substantially the same terms and conditions of employ- ment, and work in the same area under the same supervision as the metal polishers, we find that the snaggers are in reality metal polishers. Accordingly, we shall determine the dispute by assigning the work of the snaggers to the metal polishing bargaining unit certified to be represented by the Metal Polishers 7 In making this assignment we take cognizance of and rely on the Metal Polishers to adhere to its statement at the hearing that it will not attempt to cause the Company to replace snaggers presently on the job and that it will give these snaggers an opportunity to become members of the Metal Polishers in conformity with any valid union-security agreement that may be reached between the Company and the Metal Polishers. Our present determination is limited to the controversy which gave rise to this proceeding. In making this determination, we are assigning the dis- puted work to the employees in the bargaining unit presently repre- e N L R B. v. Radio d Television Broadcast Engineers Union Local 1212, International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System), 364 U.S. 573. 7 This assignment is made without prejudice to the rights of the parties to file a peti- tion in the metal polishing unit, as outlined above. UTAH PLUMBING AND HEATING CONTRACTORS ASSN. 379 sented by the Metal Polishers, and not to the Metal Polishers or its members. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings of fact and upon the en- tire record in this case, the Board makes the following determination of dispute pursuant to Section 10(k) of the Act : Employees performing the work of snaggers in the Company's de- partment 23 are appropriately included in the bargaining unit pres- ently represented by Metal Polishers, Buffers, Platers, and Helpers International Union, Local No. 3, AFL-CIO, and not in the bargain- ing unit now represented by Aerol Aircraft Employees' Association, and are entitled to do the work of snagging. MEMBER FANNING took no part in the consideration of the above Decision and Determination of Dispute. Utah Plumbing and Heating Contractors Association and Its Members and Local Unions Nos. 19, 57, 348 and 466 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO. Case No. 27-CA-961 (formerly Case No. 20-CA-1670). April 2.9, 1963 SUPPLEMENTAL DECISION AND ORDER On March 7, 1960, the Board issued a Decision and Order in the above-entitled case 1 finding that the Respondents had locked out cer- tain employees for 3 days in violation of Section 8(a) (1) and (3) of the Act and directing that the Respondents make these 13 employees whole for any loss of pay suffered by reason of Respondents' discrimi- nation against them. Thereafter, the Board's Order was enforced in full by the United States Court of Appeals for the Tenth Circuit and a decree was entered on September 27,1961.2 On November 9, 1962, the Board's Regional Director for the Twenty-seventh Region issued a backpay specification and, on Decem- ber 3, 1962, Respondent Association filed an answer thereto. Upon appropriate notice issued by the Regional Director, a hearing was held before Trial Examiner Howard Myers for the purpose of determin- ing the amount of backpay due the 13 claimants. On February 7, 1963, the Trial Examiner issued his Supplemental Intermediate Re- port, attached hereto, in which he found that the 13 claimants were 1126 NLRB 973. 2 294 F. 2d 165. 142 NLRB No. 16.