McDonnell Co.

McDONNELL CO. 225 McDonnell Company and International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 9 and International Brother- hood of Electrical Workers, AFL-CIO, Local No. 1. Case 14-UC-5 October 21, 1968 DECISION AND ORDER CLARIFYING CERTIFICATION Upon a petition duly filed under Section 9(b) of the National Labor Relations Act, as amended, a hearing was held before Herman W. Glaser, a Hearing Officer of the National Labor Relations Board. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Thereafter, the Employer and the Unions filed briefs. Upon the entire record in this case, the Board finds: The petition herein filed seeks clarification of a craft unit of the Employer's construction and mainte- nance electricians at its principal place of business at Lambert Field, St. Louis, Missouri, which unit the Board in 1948 certified in behalf of International Brotherhood of Electrical Workers, AFL-CIO, Local No. 1, herein called the Electrical Workers, following its severance from a production and maintenance unit represented by International Association of Machin- ists and Aerospace Workers, AFL-CIO, District Lodge No. 9, herein called the Machinists, certified by the Board in 1941.2 The Employer requests a clarification which would find that maintenance and calibration work on items of production testing equipment known as Brooks and Emerson circuit analyzers, used in testing the electrical circuitry of military aircraft and spacecraft is production work and therefore outside the scope of the Electrical Workers' unit. The Machinists agree. The Electrical Workers contends that the Brooks and Emerson circuit analyzers are essentially plant equipment and that the maintenance and calibration work thereon is therefore properly within the scope of its unit. Prior to the filing of the instant petition, the Machinists initiated grievance and arbitration proceed- ings from which the Electrical Workers were excluded by the Machinists. An arbitration award issuei - in favor of the Machinists on May 26, 1965, holding that its contract with the Employer covered the disputed work. Separate arbitration proceedings were also initiated by the Electrical Workers in which the Machinists declined to participate. This proceeding resulted in an award dated August 12, 1966, favoring the Electrical Workers by construing that Union's contract also to encompass the work in issue. In September 1966, the Electrical Workers filed suit in the United States District Court, Eastern District of Missouri, to enforce the arbitration award of arbitra- tor Carlson, which favors it, and to have the award in conflict therewith declared null and void. The Ma- chinists intervened in this proceeding, seeking en- forcement of the award of arbitrator Erbs, and requesting that the Carlson award be declared null and void. An order was issued by the Court on January 19, 1967, abating all action before it until resolution of this proceeding before the Board. Before reaching the merits w^ must dispose of the procedural issue raised by our dissenting brothers and by the parties. The dissenters, in essential agreement with the Machinists, would have the Board dismiss the petition, taking the position that it involves a work assignment dispute rather than a representation matter, quoting from the Supreme Court's decision in Carey v. Westinghouse Electric Corp 3 However, the Supreme Court emphasized in its Carey holding at 268, "the blurred line that often exists between work assignment disputes and controversies over which of two or more unions is the appropriate bargaining unit." It later added, at 269, As the Board's decisions indicate, disputes are often difficult to classify. In the present case the Solicitor General, who appears amicus, believes the controversy is essentially a representational one. So does Westinghouse. IUE on the other hand claims it is a work assignment dispute. Even if it is in form a representation problem, in substance it may involve problems of seniority when lay-offs occur ... [citations omitted] ... or other aspects of work assignment disputes. Moreover, the controversy which gave rise to the decision in Carey v. Westinghouse, which the Court described as "a so-called `jurisdictional' dispute" was finally determined and laid to rest only by a Board decision in the unit clarification proceeding Westing- house Electric Corp, 162 NLRB No. 81. For reasons spelled out below, we conclude that what we are concerned with here is essentially a unit issue, arising from enlargement and extension of the Employer's production operations, and involving an accretion to the Machinist unit of production em- ployees. But in addition we note that in their effort to resolve this dispute the parties have been before 1 The Employer 's name appears as amended at the hearing. The Employer's posthearing brief indicates that its name has since been changed to McDonnell Douglas Corporation 2 At the hearing all parties to the proceeding entered into a stipulation that the Machinists , District 9, "was certified by the Board as the collective bargaining representative for all the Employer's 173 NLRB No. 31 employees at the Robertson , Missouri , plant . . " with the usual statutory exclusions Whether a unit has been formally certified by the Board or exists solely by virtue of contract negotiations , it is subject to a motion for clarification See Brotherhood of Locomotive Firemen, and Engmemen, 145 NLRB 1521. 3 375 U S 261. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two arbitrators, the courts, and now the Board No complaint is before us, from which we believe that we may reasonably infer that during all those attempts to settle and adjust this conflict of interests both unions have laudably refrained from engaging in the type of conduct condemned by the Act's Section 8(b)(4)(D).4 Thus, at best, if we decline to assert our jurisdiction in this matter, the Court will have to select one of two ex parte arbitration awards for enforcement without an independent analysis of the merits. On the other hand, here all of the parties have participated in the proceedings before the Board's Hearing Officer, where some 600 pages of record testimony have been received. All parties have filed very thorough briefs before us. We do not believe that by declining to accept the Employer's petition for unit clarification, and thus subjecting the parties to additional litigation, expense and delay, we will be serving the purposes of the Act Stated affirmatively, we believe the Board's unit clarification and certifica- tion amendment procedures are well adapted to the disposition of the issue posed herein.' The Electrical Workers' Unit In 1948, the Board certified the Electrical Workers as the exclusive bargaining representative of the Employer's employees in the following craft unit, severed from the Machinists' production and mainte- nance unit: All construction and maintenance electricians, their helpers and apprentices, including those included in the classifications electrician-mainte- nance, Grades 1 and 2, but excluding clerical employees, guards, professional employees and all supervisors. At the time of the Electrical Workers' certifica- tion, the Employer had approximately 3950 employ- ees, of which 2300 were in the Machinists' unit. Of this latter number, about 60 employees were in the job classifications of the Electrical Workers' unit. Currently, the Machinists' unit comprises some 21,000 employees, and the Electrical Workers' unit comprises some 300 employees. The employees in the Electrical Workers' unit, attached to the Plant Engineering Department, are responsible for the construction and maintenance of the physical plant electrical systems and equipment. Save for changes in plant size and technology, their functions and responsibilities have remained essential- ly unchanged since the certification of their bargain- 4 That the issue resulting from the Employer's introduction of new, highly sophisticated, specialized production and testing equipment which was never anticipated or specifically covered at the time of the Board's earlier certifications of the competing unions could now be raised for Board consideration by strike action and a charge of a viola- tion of Section 8(b)(4)(D) does not bar us from exercising our parallel authority under Section 9(b) on proper motion to clarify the certification on the basis of the full record now before us mg unit in 1948. Ninety percent of the electrical workers have permanent work stations in the various plant buildings, while the remainder work on call throughout the plant, where they are engaged in plant maintenance, including lighting systems, power distri- bution equipment, refrigeration equipment, machine tool electrical systems, electrical and electronic instru- ments, general-purpose instruments, and kindred equipment. The Employer's Circuit Analyzers At the time of the Electrical Workers' certifica- tion, the Employer had no circuit analyzers.6 In 1955, some 7 years after the certification, the Employer commenced acquiring circuit analyzers known as DIT MCO Models 200 and 250, which it used to check out the electrical circuitry in fighter and photo reconnaissance model aircraft. In 1959, the Employer commenced producing the F-4 fighter aircraft, and from that date until 1963 used DIT MCOs to test it. In 1963, in view of increased demand for the F-4 fighter, the Employer commenced replacing the DIT MCO Model 200 and 250 with the faster, more sophisticated and more effecient Brooks analyzer, for testing the F-4. It still retains some DIT MCOs for testing reconnaissance aircraft on slower production lines. In 1965, the Employer also secured a single Emerson circuit analyzer, more sophisticated than the Brooks, to replace a DIT MCO Model 250. It also acquired a DIT MCO Model 610-A and a DIT MCO Model 610-F, more advanced than the early DIT MCO models, for testing spacecraft, at the time of hearing the former was on loan and the latter was not in use The operation of all circuit analyzers has always been performed by employees represented by the Machinists. Maintenance of the DIT MCOs, however, has always been performed by employees represented by the Electrical Workers. Upon acquiring the Brooks and Emerson circuit analyzers, the Employer assigned the maintenance and calibration thereof to the Machinists. This action led to grievances filed by the Electrical Workers and, eventually, to two arbitration proceedings pursuant to the Electrical Workers' and the Machinists' contracts, which in May 1965 and August 1966 resulted in diametrically opposite awards of this work to the Electrical Workers and the Machinists, respectively.' The DIT MCO 200 and 250 model circuit ana- lyzers, with their model 450 and 800 multipliers, are 5 See generally the discussion in Brotherhood of Locomotive Firemen and Enginemen , supra at 1523-24. 6 Circuit analyzers are in the shape of boxes about 3 feet high which are wheeled up to aircraft and attached to their electrical circuits by means of a harness 7 We accord no weight to the arbitration awards, in view of the ex parte nature of those proceedings , the incomplete evidence adduced, and the conflict in the awards McDONNELL CO 227 described by the Employer's chief manufacturing engineer as relatively simple electrical devices in- tended to take the place of an electrician who uses a light and a probe to determine whether current or circuitry is closed and therefore is free from short circuits or miswiring. They are essentially patchboards composed of batteries of lights, arranged in a matrix of stepping relays which allow a speedier testing of circuitry than can be obtained by hand tools These analyzers, however, lack the ability to test important resistance factors, preclude high-speed checking of one point of the circuitry to be tested against another in order to determine a leakage between the two, and fail to provide the sophisticated check-out required by the Employer for complex electronic-type systems. While the DIT MCO 610-A and 610-F models appear to be as sophisticated as the Brooks, the spacecraft they checked out were far less compli- cated than the F-4 fighters, which require up to 10 times as much wiring. The Employer has found no need for specially training or assigning any given number of employees represented by the Electrical Workers to maintain any of the DIT MCO models which, as noted above, have always been operated by Machinist-represented employees. Calibration of the DIT MCO 200 and 250 models is simply a matter of functional adjustment and does not fall within estab- hshed calibration procedures, described below, for testing the Brooks, Emerson, and other more complex electrical and electronic measuring and testing de- vices. In contrast to the DIT MCO 200 and 250 models, the Brooks is a sophisticated tape-controlled circuit analyzer for determining defects in circuitry by the comparison of a test-run tape with a master tape run through the machine. It can test up to 5,000 circuit points, as against 500 for the DIT MCO's other than the 610-A and 610-F. It is closely integrated into the Employer's continuous production line on the basis of a 38-hour time allowance for checking out the circuits of each F-4 plane. The Employer assigns 15 specially trained Machinists, including 7 full-time and 8 part-time employees, to maintain the Brooks. These employees, known as MERS (mechanical- electrical and radio), work in close contact with the Brooks operators, known as MEES (mechanics- electrical and electronics), whenever a faulty circuit reading is obtained and a question arises as to whether the Brooks or the airplane is at fault. Inasmuch as the specialized maintenance training of the MERS encom- passes the operation of the Brooks, it may occur, in situations where lengthy tests must be run to deter- mine the source of the fault, that a MER, through his ability to operate the Brooks, can thereby relieve a MEE for other production-line functions, thus avoid- ing a slowdown of the production line. This would be impossible were an employee represented by the Electrical Workers to maintain the Brooks, inasmuch as he would be incapable of operating it, thereby needlessly necessitating the presence of a MEE on a standby basis. The MEES are under production supervision while working on the Brooks analyzers. Although the Brooks can be programmed to test a variety of equipment, as a practical matter, it is devoted to the single purpose of producing the F-4 plane due to the time consumed in adapting it to that function. This is evidenced by the fact that it takes 4 to 8 months to program a Brooks to test the F-4 and to prepare the necessary harness and connectors therefor.' The Emerson, currently maintained and calibrated by a single MER, is more sophisticated than the Brooks, and unlike the latter, can check out elec- tronic circuits. It was formerly used by the Employer, but at the time of the hearing was being used by Conductron Corporation at St. Charles for checking out the "black boxes" of electronic gear manufac- tured by the latter for installation in the F-4 fighter during final assembly. Calibration of the Brooks and Emerson, unlike the early DIT MCO's, involves the adjustment thereof to certain parameters which must be traced back to measurements established by the National Bureau of Standards. The MEES calibrate the Brooks and Emerson.9 In these circumstances, and in view of the high degree of integration of the Brooks and Emerson circuit analyzers into the Employer's production processes and schedules, its single-purpose character in that regard, and the sophisticated nature of this equipment, requiring specialized skills and training and a knowledge of airplane circuitry already posses- sed by the employees represented by the Machinists, we find that the Brooks and Emerson circuit ana- lyzers are essentially production equipment, and that the maintenance and calibration of such production equipment are therefore an outgrowth of the work performed by the Employer's production and mainte- nance employees at the time the Machinists were certified to represent them. We therefore conclude that the personnel performing this maintenance and calibration work are an accretion to the Machinists' 8 In this regard , we note that the current contract between the Employer and the IBEW provides (in part) in art XIX , sec. 2 (e) that 11. . Specially designed equipment used to test which can be used for one purpose only shall not be covered [ by this Agreement] ... ' 9 Although the IBEW was furnished a calibration laboratory by the Employer in 1964, the Employer 's March 1965 , attempted assignment of this work to the IBEW was not carried out because of the arbitration proceedings then instituted by the IAM. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit and we shall accordingly clarify its certification to include them.' ° ORDER It is hereby ordered that the certification hereto- fore issued to the International Association of Machinists and Aerospace Workers , AFL-CIO, District Lodge No. 9 be, and it hereby is, clarified by specifically including therein the employees engaged in the maintenance and calibration of the Brooks and Emerson circuit analyzers. MEMBERS BROWN AND J ENKINS , dissenting: The Employer assigned certain maintenance work to employees within a certified unit represented by the Machinists Union. The Electrical Workers Union claims that the disputed work should be transferred to a different group of employees whom it separately represents in another certified unit. In this present Unit Clarification proceeding the Board majority decides that the work properly belongs to the employees represented by the Machinists. Contending that the present proceeding should be dismissed because it involves a work assignment dispute rather than a representation matter, the Machinists Union calls attention to Carey v. Westing- house, 375 U.S. 261, where the Supreme Court stated in part: We have here a so-called "jurisdictional" dispute involving two unions and the employer. But the term "jurisdictional" is not a work of a single meaning. In the setting of the present case this "jurisdictional" dispute could be one of two different, though related, species: either - (1) a 10 We find without merit the Machinists' contention that the instant petition should be dismissed on the ground that no question concerning representation exists, it being well established that clarification does not require the existence of a question concerning representation. The Gas Service Company, 140 NLRB 445 , Mississippi Lime Company, 124 NLRB 884. See also Brotherhood of Locomotive Firemen and Engmemen, supra, where the authority of the Board to clarify a bargaining unit in the absence of a question concerning representation was exercised to determine the unit placement of certain employees, even though the unit had been created by the parties ' long history of bargaining and not by Board certification The appropriateness of this procedure has been controversy as to whether certain work should be performed by workers in one bargaining unit or those in another; or (2) a controversy as to which union should represent the employees doing a particular work. If this controversy is considered to be the former, the National Labor Relations Act (61 Stat. 136, 73 Stat. 519, 29 U.S.C. Sec. 151 et seq.) does not purport to cover all phases and stages of it. While Sec. 8(b)(4)(D) makes it an unfair labor practice for a union to strike to get an employer to assign work to a particular group of employees rather than to another, the Act does not deal with the controversy anterior to a strike nor provide any machinery for resolving such a dispute absent a strike. The Act and its remedies for jurisdictional' controversies of that nature come into play only by a strike or a threat of a strike. Such conduct gives the Board authority under Sec. 10(k) to resolve the dispute (pp. 263-264). ... As noted, the Board clarifies certificates where a certified union seeks to represent additional employees , but it will not entertain a motion to clarify a certificate where the union merely seeks additional work for employees already within its unit. See General Aniline & Film Corp., 89 NLRB 467; American Broadcasting Co, 112 NLRB 605; Employing Plasterers Assn., 118 NLRB 17 [ emphasis supplied ] (pp. 268-269). We would dismiss this unit clarification proceeding because, in our opinion, the subject dispute does not involve a representation matter. given further explicit recognition in the Board 's published Rules and Regulations , Sec 102 60(b) A petition for clarification of an existing bargaining unit or a petition for amendment of certification, in the absence of a question concerning representation , may be filed by a labor organization or by an employer. and in its Statements of Procedure , Sec. 101.17 If there is a certified or currently recognized representative of a bargaining unit and there is no question concerning representation, a party may file a petition for clarification of the bargaining unit. Ingersoll Products Division (Chicago Works) of the Borg-Warner Corporation, 150 NLRB 912 , is hereby overruled to the extent that it implies that a question concerning representation , as distinguished from a representation type issue , is essential to unit clarification.