Metal Polishers, Buffers, Platers, Etc., Local 39

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its employees, as set forth in paragraph 11 of the complaint ; (c) promulgated and enforced an unlawful no-solicitation rule; and (d) engaged in any unfair labor prac- tices other than as above found. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their union membership, activities, or sympathies in a manner constituting interference ,- restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT threaten our employees with discharge if they join or retain membership in, or engage in activities on behalf of , the Union. WE WILL NOT maintain a broad no-solicitation rule prohibiting our employees from soliciting for any purposes whatsoever on company premises. WE WILL NOT discourage membership in Local Union 934, International Brotherhood of Electrical Workers, or in any other labor organization , by' dis- charging, laying off, or refusing to reinstate any of our employees, or in any other manner discriminate in regard to hire or tenure of employment, or any term or condition of employment , in violation of Section 8(a) (3) of the Act. WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of the right to self-organization , to form, join, or assist Local Union 934, International Brotherhood of Electrical Workers, or any other labor organization , to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any and all such activities. WE WILL offer Paul Carroll immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and will make him whole for any loss of pay he may have suffered by reason of our discrimination against him. All of our employees are free to become, remain , or to refrain from becoming or remaining, members of Local Union 934, International Brotherhood of Electrical Workers, or any other labor organization. TENNESSEE PLASTICS, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) NoTE.-We will notify the above -named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended , after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 528 Peachtree-Seventh Building , 50 Seventh Street, NE., Atlanta , Georgia, Telephone No. Trinity 6-3311 , Extension 5357, if they have any questions concerning this notice or compliance with its provisions. Metal Polishers, Buffers, Platers and Platers' Helpers Inter- national Union, Local 39 and Lodge 1405 of the International Association of Machinists, AFL-CIO, Charging Party and Dominion Electric Corporation. Case No. 8-CD-36. Decem- ber 18, 1964 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, following a charge filed on November 19, 1963, 150 NLRB No. 7. METAL POLISHERS, BUFFERS, PLATERS, ETC., LOCAL 3 9 537 by Lodge.1405 of the International Association of Machinists, AFL- CIO, herein called Machinists, alleging that Metal Polishers, Buffers, Platers and Platers' Helpers International Union, Local 39, herein called Polishers, had violated Section 8(b) (4) (D) of the Act. A duly scheduled hearing was held before Hearing Officer Nora Friel on January 21 and 22, 1964. All parties appearing were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by the Employer and by the Polishers who appeared at the hearing as a party to the dispute. Upon the entire record in the case, the Board 1 makes the following findings : 1. THE BUSINESS OF THE EMPLOYER Dominion Electric Corporation is an Ohio Corporation engaged in the manufacture of small electrical household appliances at its plant in Mansfield, Ohio. Annually it ships from its Mansfield, Ohio, plant, directly to points located outside the State of Ohio, finished products valued in an amount in excess of $50,000. We find that the Employer is engaged in commerce within the meaning of. the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATIONS INVOLVED The Polishers and Machinists are labor organizations within the meaning of Section 2 (5) of the Act. III. THE DISPUTE A. The work at issue The work which gave rise to this proceeding consists of work per- formed by "dingmen" in the salvage department and employees in the drill/punch press department represented by the Machinists. On August 29, 1963, the Polishers' representative protested the practice of using more than one grinding wheel at a time in the salvage de- partment contending that work utilizing in excess of one grinding wheel was within the jurisdiction of the Polishers. The Polishers also claimed jurisdiction over the grinding work in the drill press department to the extent that it involves using a power-operated file mounted in the brace of a jigsaw. In 1941, the Machinists Union was certified as representative of the employees of the Employer in the following unit : 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Members Fanning, Brown, and Jenkins]. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All employees of the Company, excluding polishers, buffers, platers and platers' helpers, supervisors, foremen, watchmen, timekeepers, office and clerical help, tool-and-die makers, machinists and appren- tices, and inspectors under the supervision of the engineering depart- ment, but including shippers and receivers.... In 1947, an employee represented by the Machinists requested and was given permission to try and repair certain material destined for the scrap heap. The work involved "dinging" or hammering out dents, deep scratches, mars, or other defects in the surface of the articles marked for scrap. The employee was successful in saving much of this material, and was thereafter assigned to the salvage department where he is presently employed. His work consists of the dinging operation, followed by the use of either one or both of two portable grinders used to grind out the hammer or ding marks. In the drill press department, the Employer recently adapted a drill press and jigsaw to take and hold a rotary file and a straight file, respectively. These two power files have been used to remove burrs on the inside and outside of tubing cut on the cutoff saw located in the drill press department. The Polishers have been recognized by the Employer for all em- ployees in the polishing and plating departments since 1935 and, since that time, its members have performed polishing, buffing, and plating work pursuant to a series of contracts with the Employer. In 1959, the Polishers and the Employer entered into a 2-year agree- ment containing the following recognition clause : The Company agrees to recognize the Union as the sole bar- gaining agent for all employees of the polishing and plating department and all other employees engaged in the trade in any department through any committee.... However, in 1961, the Polishers' contract contained the following clause: It is mutually agreed that Local 39 has jurisdiction over all polishing, buffing, plating or grinding jobs at Dominion. How- ever, it is also mutually agreed that grinding jurisdiction shall not include grinding performed by employees of the Tool Room and Maintenance Department and grinding performed by one grinding wheel in the Salvage Department. [Emphasis supplied.] In May 1963, the Polishers and the Employer reached agreement on a new contract modifying the recognition clause so that the final sentence read : ... and grinding performed by one grinding wheel in the Salvage Department when used in casual salvage. METAL POLISHERS, BUFFERS, PLATERS, ETC., LOCAL 39 539 On August 29, 1963, the Polishers, at a meeting with the Employer, protested the practice of using more than one grinding wheel in the salvage department, claiming that this work as well as the grinding in the drill press department belonged to their members. At 1 p.m. the members of the Polishers punched out, held a brief meeting across the street, and then appeared in front of the premises carrying picket signs. As a result of the strike, the Polishers and the Employer agreed to a further modification of the previously noted clause on grinding by adding the following : What constitutes casual salvage shall be mutually agreed to by Local 39 and the Company prior to performing such work. However, it is agreed that casual salvage includes -the grinding of such materials that has been dinged by "dingmen" in the Salvage Department. B. Contention of the parties The Employer contends that the Board should find a jurisdictional dispute and assign all work performed with grinding wheels, emery wheels, sanding disks, or other types of abrasive wheels to the Ma- chinists where the wheels have a diameter of 8 inches or less. The Machinists contends that the Polishers engaged in a strike or threatened to strike to force the Employer to assign the disputed work to members of the Polishers. It further contends that the grinders used in salvage and the power files in the drill press depart- ment are machine tools rather than polishing equipment. The Polishers claims all work involving the use of abrasives or emery. It states it does not claim salvage work but takes the posi- tion that when the work in salvage requires the use of more than one grinder, under its contract, it is entitled to this work. It also claims the jig-file work but at the hearing disclaimed any interest in the work done with the rotary file. C. Applicability of the statute Section 10(k) of the Act empowers the Board to determine the dis- pute out of which a Section 8(b) (4) (D) charge has arisen. How- ever, before the Board proceeds with a determination of dispute, it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated. As previously set forth, the record clearly shows that the Polishers picketed the Employer's premises and caused a work stoppage among the employees for the purpose of forcing the Employer to assign certain work to members of the Polishers Union rather than to mem- bers of the Machinists Union. Accordingly, we find, on the entire record, that there is reasonable cause to believe that a violation of 00 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a Section 8(b) (4) (D) has occurred and that the work dispute is prop- erly before the Board for determination under Section 10(k) of the Act. D. Merits of the dispute Section 10 (k) of the Act requires the Board to make an affirma- tive award of disputed work after giving due consideration to vari- ous relevant factors.2 The record shows that although both unions have contractual relations with the Employer, the Machinists were certified by the Board in 1941 for a unit that is essentially a pro- duction and maintenance unit specifically excluding "polishers, buff- ers, platers and platers' helper." At the same time, this unit descrip- tion did not in any way refer to "grinders" as a separate job classi- fication nor was it specifically excluded from the Machinists' bar- gaining unit. The classification of grinder did not appear, insofar as the unions are concerned, until 1959, when the Polishers first secured the inclusion of this job in the recognition clause of its contract. But it should be noted that the Polishers' claim to the work is primarily based on its contention that the work is in fact polishing within the meaning of the term. We further note that the contract clause was extended to include grinding in the fact of the Machinists' certification and without any notice to or showing of acquiescence by the Machinists. At the same time, if grinding is in fact polishing, then there is no encroachment on the Machinists' certification. Although the Polishers claim grinding as another aspect of polishing and thus within its jurisdiction, the record does not support such a contention. On the contrary, the record estab- lishes that "grinding" as a work function with the Employer herein is more applicable to the worn task of production cutting or remov- ing of excess material rather than to the limited function of polish- ing or surface finishing. Thus, although the Polishers would claim all "grinding" without more, the record shows that production em- ployees represented by the Machinists have for years operated scis- sors grinders, belt sanders, spindle sanders, disc sanders, and bench disc grinders, all of which are used to remove burrs from various pieces made in the production process. The record shows that the skills and experience necessary to be a dingman in the salvage department are in many respects dissimilar to the work normally done by polishers or buffers. Unlike the pol- isher, dingman have to work with hammers, screwdrivers, jigs, files, side cutters, and wrenches in addition to the power grinders. Also, there is no showing that the grinding done by the dingman is con- sidered either complicated or highly skilled work. As to the work 2 N.L.R B. v. Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System), 364 U.S. 573. METAL POLISHERS, BUFFERS, PLATERS, ETC., LOCAL 39 541 of operating the rotary file and the jig file, it is clear that prior to the adaptation of these machines to filing work, they were operated by employees represented by the Machinists assigned to the drill press department. In addition, much of the work now being per- formed on the power files had heretofore been performed by em- ployees represented by the Machinists using hand files. An affirmative award in favor of the employees represented by the Machinists would be supported by the fact that they are apparently capable of satisfactorily performing that portion of their work in- volving grinding. The record in no way indicates that in perform- ing this work they also are required to perform the specialized skills usually possessed and exercised by journeymen polishers. As the dingmen and employees in the drill press department enjoy sub- stantially the same terms and conditions of employment, and work in the same area under the same supervision of the other production employees, we find that the dingmen and drill press employees are in fact production employees. As to efficiency and economy of operation, it is clear that the work of grinding out ding marks can best be performed in the salvage department. Otherwise, it would be necessary to find that it is more efficient to have the dingman hammer out the dents, carry the'piece to the polishing department where the hammer marks would be ground out, and thereafter send the piece back to the production area where it would be again placed in the production line. The strained result becomes even more apparent when considered in con- text with the Polishers' claim to the power file work. The alterna- tive to moving the product around, i.e., the stationing of members of the Polishers in the salvage department and drill press room is also unsatisfactory, as the two classes of employees are subject to different terms and conditions of employment as well as separate supervision. Thus the evidence demonstrates that it is substantially more practicable to assign the work of grinding in the salvage de- partment to the dingman rather than to require the Employer to transfer the work back and forth between departments or to assign a polisher to the salvage department for the sole purpose of oper- ating a grinding wheel. It is also clear that this same rationale applies to the power files in the drill press department, particularly since the power files are located next to the cutoff saw, the machine that creates the burrs that the power files are used to remove. On the basis of the record as a whole, and on appraisal of the relevant considerations, including the Employer's assignment of the work, the nature of the work, the skills of the employees represented by the Machinists and their experience to perform the work, and the fact of operational feasibility, we shall determine the existing jurisdictional dispute by awarding the work of operating the grind- 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ers in the salvage department and the power files in the drill press department to the employees of the Employer represented by the Machinists, rather than to employees represented by the Polishers. Our present determination is limited to the controversy which gave rise to this proceeding. In making this determination, we are as- signing the disputed work to the employees in the bargaining unit presently represented by the Machinists, and not to the Machinists or its members. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings of fact and upon the entire record in this case, the Board makes the following Determina- tion of Dispute pursuant to Section 10(k) of the Act: 1. Employees performing grinding work in the Employer's sal- vage department and employees performing grinding in the drill press department are appropriately included in the bargaining unit presently represented by Lodge 1405 of the International Associa- tion of Machinists, AFL-CIO, and not in the bargaining unit now represented by Metal Polishers, Buffers, Platers and Platers' Helpers International Union, Local 39, and are entitled to do the work of grinding in the above-named departments. 2. Metal Polishers, Buffers, Platers and Platers' Helpers Interna- tional Union, Local 39, is not and has not been entitled to force or re- quire Dominion Electric Corporation to assign to Polishers' members, the work of grinding in the salvage and drill press departments. 3. Within 10 days from the date of the Decision and Determina- tion of Dispute, Metal Polishers, Buffers, Platers and Platers' Helpers International Union, Local 39, shall notify the Regional Director for Region 8, in writing, whether or not it will refrain from forcing or requiring Dominion Electric Corporation, by means proscribed by Section 8(b) (4) (D), to assign the work in dispute to its members rather than to the employees of the Employer repre- sented by Lodge 1405 of the International Association of Machinists, AFL-CIO. Trojan Freight Lines, Inc. and Nick Vitantonio. Case No. 8-CA- 3439. December 22, 1964 DECISION AND ORDER On October 1, 1964, Trial Examiner Ramey Donovan issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take 150 NLRB No. 39.