Boilermakers, Lodge No. 1509

BOILERMAKERS, LODGE NO. 1509 International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers (AFL-CIO), Lodge No. 1509 and Ladish Co. and International Association of Machinists and Aeros- pace Workers, AFL-CIO, District No. 10, Victory Lodge No. 1862. Case 30-CD-23 December 7, 1970 DECISION AND DETERMINATION OF DISPUTE By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended , following a charge filed by Ladish Co.,' alleging that Interna- tional Brotherhood of Boilermakers, Iron Ship Build- ers, Blacksmiths, Forgers and Helpers (AFL-CIO), Lodge No. 1509, violated Section 8(b)(4)(D) of the Act. A duly scheduled hearing was held before Hearing Officer Alex V. Barbour of the National Labor Relations Board on July 21 and 22 , 1970. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to adduce evidence bearing upon the issues. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Briefs filed by Ladish Co. and International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, District No. 10, Victory Lodge No. 1862, have been duly considered. Upon the entire record in this case , the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer is a Wisconsin corporation engaged at Cudahy, Wisconsin, in the manufacture of forgings and fittings. During the past year, a representative period, the Employer purchased and received from directly outside the State of Wisconsin goods and materials valued in excess of $50,000. The parties stipulated, and we find, that the Employer is engaged in commerce 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. 1 Herein called Ladish s Herein called Blacksmiths II. THE LABOR ORGANIZATION INVOLVED 11 The parties stipulated, and we find, that the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers (AFL-CIO), Lodge No. 1509,2 and the International Association of Machinists and Aerospace Workers, AFL-CIO, District No. 10, Victory Lodge No. 1862,3 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The dispute involves the operation of furnaces in the welding department for the preheating and postheating of dies, toolings, and other materials associated with the welding process. The charge filed by Ladish alleges, inter alia, that the Blacksmiths, acting through its bargaining committee and its International representative, David George, had threatened to "shut down the place" (i.e., strike) if Ladish continued to permit the welding department employees represented by the Machinists to operate the furnaces. The record reveals that Ladish utilizes at least two types of furnaces in its operations. The first type of furnace is used in the "heat treatment" of metals in which the metals are treated at varying degrees of temperature to produce the desired degree of hard- ness or strength in the metals. These furnaces are operated by employees represented by the Black- smiths. The second type of furnace is used to preheat metal dies or forgings so that welding may be done on them and to postheat the welded material to complete the welding process. It is the operation of this latter type furnace which is the subject matter of this case and, as will appear below, it is now, and has historically been, operated by employees represented by the Machinists. The heat treatment and welding furnaces are located in different areas of Ladish's plant and, except as noted below, are not used interchangeably to perform each other's functions. Furnaces to be used in welding operations were installed sometime in the early part of the 1940's. The Blacksmiths was certified for a unit of employees about the same time. Originally, the Machinists had won bargaining rights for the employees in the heat treatment department, but shortly after the certifica- tion was issued jurisdiction over the heat treatment department employees was transferred from the Machinists to the Blacksmiths by agreement of the two unions and Ladish. Since that time the welding furnaces have been 3 Herein called Machinists 187 NLRB No. 1 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operated by employees represented by the Machin- ists. In 1959 Ladish and the Blacksmiths reached an agreement defining the jurisdiction of the Black- smiths, designated as a "Memorandum of Under- standing," which was to be incorporated in the collective-bargaining contracts between Ladish and the Blacksmiths. As incorporated in the current contract the memorandum states in pertinent part: JURISDICTION 108. The purpose of this memo of understanding is to spell out the work presently and historically performed by employees of the departments of the Company designated in our Recognition clause. This memo is to serve the purpose of defining present work and operations which Blacksmiths employees presently perform and is not intended to extend or add to duties which they presently and normally perform. In defining the jurisdiction of the heat treating department the same contract states: 140. The jurisdiction of the Heat Treating Department is over operations listed and defined as follows: a. Heat Treating-The altering of the physical properties of the metals of dies, tools, cutters, machine parts and products of the Company to produce a specified degree of hardness , toughness or strength by the process of controlled heating and cooling. In 1966 the Blacksmiths filed a grievance regarding the use of a furnace by the welding department "to stress dies that are welded." The grievance was settled in 1967 by awarding operations of the furnace to the Machinists . After conceding that "critical deep welding" would continue to be done by the Black- smiths in accordance with historic practice, the Minutes of Agenda settling the grievance stated: By continuing to assign the pre-heating and stress relieving of dies requiring shallow welds to Welding Dept ., Co. is consistent w/historic prac- tice and is not in conflict w/jurisdictional memo in our current labor agreement for fol . reason. Jurisdictional memo preface states memo is intended "to spell out the work presently and historically performed by employees of the depart- ments of the Company . .. ." represented by Blks. Union . Memo also is intended "not to extend or to add to duties which they (Blacksmiths) presently and normally perform." The memo is also intended to differentiate between "the pres- ent, normal job assignment of employees of Blacksmiths Union and those other employees of the Company." Original jurisdictional memo was entered into between Co. and Union 1/ 14/59. The pre- heating and stress relieving of dies by Welding Depart- ment was in existence since at least 1957. There- fore, since the pre-heating and normalizing of dies incidental to welding was not a normal function performed by Blks. as of 1/14/59, under the terms of the above jurisdictional memo of understand- ing, it shall continue to be performed by Welding Department employees represented by the IAM. On March 3, 1970, the Blacksmiths again filed a grievance regarding the operation of the welding furnaces by employees represented by the Machinists. The Blacksmiths demanded that the work of tending the furnaces used for preheating dies of all sizes, shapes, and weights be assigned to the heat treating department whose employees are represented by the Blacksmiths . At a meeting of representatives of Ladish and the Blacksmiths on May 14, 1970, the Blacksmiths stated it would take whatever action was necessary to protect its jurisdiction , including, if necessary, shutting down the plant . On May 25, 1970, Ladish filed the charge adverted to above , alleging a violation of Section 8(b)(4)(D). B. The Work in Dispute This proceeding pertains to the assignment of the work involved in operating the furnaces utilized by the welders in preheating dies and other materials preparatory to making a weld and postheating such dies and other materials after the weld has been made to complete the welding process. C. The Contentions of the Parties The Employer, Ladish, and the Machinists main- tain that the work should continue to be performed by the present group of employees, the welders , who are represented by the Machinists . Ladish and the Machinists contend that the welders have performed their work for many years ; that the work is an integral part of the welding process in which the welders are engaged ; that the memorandum of understanding regarding the Blacksmiths jurisdiction entered into in 1959 and the collective-bargaining contracts subse- quently entered into which incorporated the memo- randum should be interpreted as having assigned the work to the welders; and that the resolution of the grievance in 1967 also shows that the parties intended that the welders should perform the work. Finally, the Employer contends that economy and efficiency of operation require that the work be assigned to the welders. BOILERMAKERS, LODGE NO 1509 13 The Blacksmiths appears to rely primarily upon the provision of the contract set forth above delineating the jurisdiction of the heat treating department. Since the heating of metals always results in the generation and relief of stresses the Blacksmiths contends that the heating of metals in a furnace falls within the limits of its jurisdiction as set forth in the contract.4 D. Applicability of the Statute Before the Board may proceed with a determination 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. At the hearing the parties stipulated that the Blacksmiths had threatened to close down the Employer's plant if its demand for the work here in issue was not met. We therefore find that reasonable cause exists, and that the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving clue consideration to all relevant factors. In International Association of Machinists, Lodge No. 1743 (J. A. Jones Construction Co.),5 the Board set forth the following criteria to be considered in the making of an affirmative award in a 10(k) proceeding: The Board will consider all relevant factors in determining who is entitled to the work in dispute, e.g., the skills and work involved , certifications by the Board , company and industry practice , agree- ments between unions and between employers and unions, awards of arbitrators ,joint boards, and the AFL-CIO in the same or related cases, the assignment made by the employer, and the efficient operation of the employer's business. Among the factors referred to above are some which are of little or no use in resolving the present dispute. Thus it would appear that both the welders and the blacksmiths are capable of operating the welding furnaces. The certifications mentioned above have been modified by agreement of the parties and are no longer of value in determining the dispute . There are no awards of joint boards or arbitrators that would be of assistance and the parties have agreed that there is no industry practice which would have a bearing upon the issue before the Board. We therefore set forth below those other factors which we find relevant in determining this dispute. 4 To the extent that the Blacksmiths contended at the hearing that it was entitled to the work of doing deep critical welds and the shrinking of inserts, there would appear to be no issue since the Employer , Ladish, and 1. Company practice As indicated above it has been the practice of the Employer for at least 20 years to assign the work of operating the furnaces used in connection with the welding process to employees represented by the Machinists. Such a longstanding practice is a factor favorable to the continued performance of the work by these employees. 2. Employer's preference The fact that Ladish clearly prefers an award to its employees represented by the Machinists is a factor which supports the assignment of the work to such employees. 3. Bargaining agreements In asserting that it should represent the employees operating the welding furnaces the Blacksmiths relies primarily on its contract with Ladish. That contract, more fully set forth above, in substance provides that employees of the heat treating department, represent- ed by the Blacksmiths, shall operate furnaces where the objective is the altering of the physical properties of a metal to produce a specified degree of hardness or strength. The Blacksmiths contends that the physical qualities of a metal are altered when placed in a welding furnace and that the operation of the furnace properly falls within its jurisdiction under the con- tract. The contract clause upon which the Blacksmiths relies, however, is preceded by a preamble which, in substance, makes it clear that the jurisdictional clauses were not intended to expand the jurisdiction of the Blacksmiths beyond that which obtained at the time Ladish and the Blacksmiths reached a memoran- dum of understanding regarding jurisdiction in 1959. At that time the Machinists had operated the welding furnaces for a number of years and it is thus clear that the parties intended to confirm the right of the Machinists to represent the employees operating the welding furnaces. The incorporation of the memoran- dum into the contract makes it equally clear that the clause relied on by the Blacksmiths was not intended to assign the performance of the work to employees represented by that union. The settlement of the grievance in involving this work in 1967 confirms our opinion that the contract was not intended to extend the jurisdiction of the Blacksmiths to the operation of the welding furnaces. That settlement, set forth in pertinent part above, recognized that the memorandum of understanding the Machinists both conceded that the Blacksmiths is entitled to perform this work 5 135 NLRB 1401, 1410-11 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was intended to assign the work to employees represented by the Machinists, and that these employ- ees were to continue to perform the work of operating the welding furnaces. It is thus clear that the contract upon which the Blacksmiths relies to support its claim to the disputed work not only does not support the claim but, in fact, shows that the parties to the contract intended that the disputed work be assigned to employees repre- sented by the Machinists. It is therefore a factor supporting the assignment of the disputed work to the Machinists. CONCLUSION On all the evidence, we conclude that employees of Ladish represented by the Machinists, rather than employees represented by the Blacksmiths, are entitled to perform the work of operating the furnaces in the welding department used for the preheating and postheating of dies, toolings, and other materials in association with the welding process at Ladish's plant in Cudahy, Wisconsin. Company practice, the bar- gaining history, and the Employer's preference favor this result. 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 case, the National Labor Relations Board hereby makes the following Determination of Dispute. 1. Employees employed by Ladish Co. and repre- sented by International Association of Mechinists and Aerospace Workers, AFL-CIO, District No. 10, Victory Lodge No. 1862, are entitled to perform the disputed work of operating the furnaces in the welding department used for the preheating and postheating of dies, toolings, and other materials in association with the welding process in the Employ- er's plant at Cudahy, Wisconsin. 2. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths , Forgers and Helpers (AFL-CIO), Lodge No. 1509, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Ladish Co. to assign the disputed work to employees who are represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Brother- hood of Boilermakers, Iron Ship Builders , Black- smiths, Forgers and Helpers (AFL-CIO), Lodge No. 1509, shall notify the Regional Director for Region 30, in writing, whether it will refrain from forcing or requiring Ladish Co., by means proscribed in Section 8(b)(4)(D), to assign the work in dispute to employees represented by International Brotherhood of Boiler- makers, Iron Ship Builders, Blacksmiths, Forgers and Helpers (AFL-CIO), Lodge No. 1509, rather than to employees represented by International Association of Machinists and Aerospace Workers, AFL-CIO, District No. 10, Victory Lodge No. 1862.