Northern Motor Rebuilders, Inc.

NORTHERN MOTOR REBUILDERS, INC. 473 Northern Motor Rebuilders, Inc., Employer-Petitioner and Local Union No. 328, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,' and International Union, United Automobile, Aeros- pace and Agricultural Implement Workers of America and Its Local 328.2 Case 30-UC-86 May 1, 1974 DECISION AND ORDER CLARIFYING UNIT BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a petition duly filed under Section 9(b) of the National Labor Relations Act, as amended, a hearing was held on January 30, 1974, before Hearing Officer Francis A. Molenda and on Febru- ary 5, 1974, the Regional Director for Region 30 transferred this case to the National Labor Relations Board for decision.3 Thereafter counsel for Teamsters filed a brief .4 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act .5 2. The labor organizations involved claim to represent certain employees of the Employer. 3. The Employer is engaged in the remanufacture of automotive engines and parts at its Escanaba, Michigan, plant. The Employer has filed the petition herein, requesting that the Board issue a clarification of the unit of either the UAW or Teamsters with regard to the position held by its former employee Willard Riegel. The Employer has stated it is neutral i Name as amended at the hearing. s Name as amended at the hearing. 3 The petition herein had been filed by Northern Motor Rebuilders, Inc., hereinafter called the Employer, on September 12, 1973. On October 26, 1973, the Regional Director for Region 30 issued a Decision and Order Denying Petition for Unit Clarification and thereafter, Local Union No. 328 affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, hereinafter called Teamsters, filed a timely Request for Review of the Regional Dire tor's Decision. Thereafter on December 6, 1973, the Board granted the Teamsters request for review, reinstated the petition, and directed that a hearing be held on the petition and that thereafter the case be remanded to the Board for decision. 4 At the end of the hearing herein, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America and its Local 328, hereinafter called the UAW, opted to present oral argument rather than to file a brief. with respect to which of the two Unions' positions should be sustained. The UAW states that Riegel's block repair work was closely akin to the work performed by employees it represents and that there was an oral agreement between it and the Employer that when Riegel retired this block repair work would be encompassed by the UAW contract 6 Teamsters states that Riegel was a Teamsters member since 1967 and that he was covered by three successive contracts negotiated by it and that therefore this block repair work which he performed while a Teamster appropriately belongs in the Teamsters unit. The facts leading up to the present controversy are as follows: The UAW was voluntarily recognized by the Employer in 1946 as the collective-bargaining repre- sentative for a unit of all employees, including, among others, employees engaged in welding and pegging, now referred to as block repair, but specifically excluding, among others, maintenance men. In September 1950, the UAW was certified in this unit following an NLRB election 7 and since 1946 and to date the Employer and the UAW have successfully bargained and entered into collective- bargaining agreements, with the most recent agree- ment effective October 1, 1972, to October 1, 1975. Teamsters was voluntarily recognized by the Em- ployer in 1967 for a unit including dockmen, relief drivers, employees engaged in quality control, and maintenance and repair men. The current Teamsters contract will expire June 30, 1976, and it is the parties' third successive contract. Willard Riegel began his employment with the Employer in 1946. At that time he worked as a foreman. In 1949, he left the Employer and became an employee of Sure-Way Casting Co. Sure-Way Casting performed block repair work for the Em- ployer and Riegel did this work. After Sure-Way Casting left Escanaba, Riegel was reemployed by the Employer in 1954. When he returned to the Employ- er, Riegel continued to perform the block repair work he had done previously for Sure-Way Casting, S On February 11, 1974, the Regional Director for Region 30 filed a correction to the transcript, which the parties had previously approved, with regard to the amount of the Employer's indirect inflow. The correction is noted and made a part of the record herein. 6 As is described infra, Riegel did both block repair work and maintenance work on the equipment used in production. After the Regional Director's decision herein (in which he found Riegel's position was that of a "dual function" employee who should be represented by each of the Unions to the extent he worked in their particular unit ), but before the Board granted review of the Regional Director's decision, the Employer decided to assign the block repair work to a UAW-represented employee and the maintenance work to a Teamsters-represented employee. The UAW wishes the Board to clarify its unit to include the block repair work formerly done by Riegel. r Case 18-RC-773. 210 NLRB No. 61 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and, except for changes in technology, Riegel did the same or similar work from 1954 until December 1972 when he suffered a heart attack. Riegel retired in March 1973 without ever having returned to work after his heart attack. In 1954 when Riegel returned to the Employer he had no supervisory duties but he did not join the UAW, although the UAW had in its contract at that time a union-shop clause compelling membership in the UAW as a condition of employment. Robert Calouette, who is presently a supervisor at the Employer but who was a UAW official at the time Riegel was rehired at the Employer, testified that although the UAW did not then press to have Riegel included in the unit, there was an oral agreement between the UAW and the Employer that Riegel would continue in his job as a nonunion employee but that when he left his job that the job would become one encompassed by the UAW contract.8 Earl Myrvall, the plant superintendent at the Employer, testified that he also remembered engag- ing in at least three or four discussions with the UAW concerning the placement of Riegel's job when he left the Employer. Myrvall, who put these discussions between 1957 and 1960, thought the result of these discussions was that Riegel's job would come under the UAW contract when Riegel left. He based this observation on the fact that the UAW was quite upset at the situation at the time and yet it took no negative action, leading him to surmise that the UAW had gotten the commitment from the Employer that it wanted. Roy Burroughs, who became the Employer's president in 1957, however, testified that he never participated in a discussion where Riegel's position was assigned to the UAW. The first time Burroughs heard of the claim of the UAW was during the Employer's contract negotia- tions with the UAW in October 1972, some 2 months before Riegel's heart attack. Burroughs acknowl- edged that the UAW stated at that time that its claim was pursuant to an agreement it had made previously with the Employer. Riegel, at least from 1959 until 1967 when he joined Teamsters, was considered to be and was treated the same as other nonunion personnel. Thus, he received wage increases at the same time as the other nonunion personnel and there was no direct 9 Calouette testified that he spoke with Employer Representatives Earl Myrvall and either Jack Burroughs or Ray Newman on this subject and that there were three or four meetings on the subject up to 1960 Calouette testified that the UAW was reluctant to have Riegeljoin it since it thought, in light of his prior supervisory work, that his interests might be more allied with management interests than those of the Union Additionally, it appears that, had Riegel joined the UAW when he was rehired, he would have gained no seniority for his work at Sure-Way Casting and thus would have come into the UAW as the least senior man and, in possible layoff situations, would not have had the seniority to continue to perform the skilled job that the Employer needed him for In fact, Riegel was considered relationship between raises provided by the UAW's agreement and those given Riegel. Since 1967, when he joined Teamsters, Riegel was covered by the terms of the successively negotiated Teamsters contracts. Teamsters notes too that from the time Riegel joined Teamsters in 1967 until October 1972 the UAW made no protest concerning Riegel's having joined Teamsters. Riegel's work consisted of repairing cracked or broken engine blocks either by a "cold repair" or an "oven repair" process. Earl Myrvall testified that as a block comes into the plant, it is dismantled, cleaned, and inspected and then moved into the repair department where, depending on the type of cracks involved, one of the above processes would be used to repair it. Except for certain changes due to changes in technology,9 the method of Riegel's work remained the same between 1954 and 1973. Addi- tionally, Riegel was also involved in maintenance work with this type of work including the maintain- ing of the plant and equipment, including the tanks used in the cleaning operation.10 According to records introduced at the hearing, during the period 1970-72, Riegel spent 74.4 percent of his time in block repair and cylinder head repair work (the two categories comprise the motor rebuild- ing specifically covered under the UAW contract) and 10.7 percent of his time in the maintenance work described above.ii The Employer's secretary-treasur- er, Don Wertz, thought that Riegel's time percent- ages for the preceding, l l years were not a great deal different than for the years listed in the records. When Riegel was involved in the motor rebuilding work noted above, he worked with employees represented by the UAW. The Teamsters-represent- ed employees worked in a separate area. Myrvall described Riegel's motor rebuilding work as an integral part of the motor line repair work that the UAW contract covered. Riegel's supervisor also supervised the UAW members. The other employees represented by the Teamsters had separate supervi- sion. Myrvall testified that a UAW-represented employee would do Riegel's work when he was away.12 Riegel's hours were the same as the UAW- represented production employees and the pro- duction employees,, including Riegel, all took their breaks at the same time. a highly skilled employee and, as he himself testified , he was the only employee doing block repair work while he was at the Employer. 9 In later years the Employer switched almost exclusively to the oven repair process 10 Burroughs testified that in essence block repair was considered repair as part of the production process while maintenance and repair referred to the upkeep of machinery. The term "maintenance" as applied to Riegel's work did not include janitorial duties. i i The balance of the time was miscellaneous and vacation time. 12 His absence does not appear to have been a regular occurrence though NORTHERN MOTOR REBUILDERS, INC. While there was no disagreement at the hearing that the category of "maintenance and repair" in the Teamsters contract covered Riegel, there was some disagreement as to what the term "maintenance and repair" meant. Myrvall did not think that the term included block repair work, while Teamsters Repre- sentative Gangstad thought it did. The Employer's president, Burroughs, while at one point acknowledg- ing that he thought the term "maintenance and repair" in the Teamsters contract included block repair, also acknowledged that the UAW classifica- tion "crankshaft and block repair, cylinder block boring . . . ." (emphasis supplied) also included work that Riegel was performing. It is clear that the work of block and cylinder head repairing that Riegel performed was an integral part of the Employer's production process and that this work was most closely akin to the work performed by employees represented by UAW. Further, Riegel's supervision and hours were the same as those of the employees represented by UAW and he worked in close proximity to them. Teamsters argues, however, that by allowing it to fully represent Riegel for some 13 In Solar, 187 NLRB 739, a panel majority of the Board found that where a a union had not protested for 15 years while another union represented employees doing certain work, the Board would clarify the unit of the union which had represented the employees through the years since the Board found this decision consistent with the parties' own solution of the issue. 475 5 years before protesting his inclusion in Teamsters unit, the UAW should not now be able to include Riegel's block repair work in its unit and Teamsters cites Solar, Division of International Harvester Compa- ny,13 for support. Here, however, unlike the union in Solar, the UAW thought it had an agreement with the Employer that, when Riegel left, his block repair job would become part of the UAW unit and so it is not inconceivable that it would not have felt compelled to object when Riegel became a Teamsters member.14 In these circumstances, we shall clarify the certification of the UAW to include the employee presently performing the block repair work. ORDER It is hereby ordered that the certification in Case 18-RC-773 heretofore issued to International Union, United Automobile, Aerospace and Agricultural Implement Workers of America and its Local 328, be, and it hereby is, clarified by specifically including therein the work of block and cylinder head repairing. 14 That the UAW believed it had such an agreement is demonstrated by its expressing this thought to Burroughs during the October 1972 negotiations some 2 months before Riegel's heart attack, the event which caused him to leave the Employer and, in time, precipitated this controversy.