Machinists Lodge 70 (General Electric Co.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Machinists and Aerospace Workers, AFL-CIO, Lodge No. 70 and General Electric Company and Local 901, International Union of Electrical, Radio and Machine Workers, AFL-CIO. Case 25-CD-173 November 9, 1977 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, PENELLO, AND MURPHY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by the General Electric Company, herein called the Employer, alleging that the Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, Lodge No. 70, herein called Respondent or the IAM, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees represented by Local 901, International Union of Electrical, Radio and Machine Workers, AFL-CIO, herein called the IUE. Pursuant to notice, a hearing was held before Hearing Officer Engrid Emerson Vaughn on June 23, 1977. All parties appeared and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on 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 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 proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Employer is engaged in the manufacture and sale of electrical motors at its Fort Wayne, Indiana, facilities which include the Taylor Street powerhouse, the location of the present dispute. During the past year, the Employer purchased goods and materials from outside the State having a value in excess of $50,000. The parties also stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. 233 NLRB No. 51 II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the International Association of Machinists and Aero- space Workers, AFL-CIO, Lodge No. 70, and Local 901, International Union of Electrical, Radio and Machine Workers, AFL-CIO, are labor organiza- tions within the meaning of Section 2(5) of the Act. Ill. THE DISPUTE A. The Work in Dispute The parties stipulated that the work in dispute involves the disassembly and reassembly of the retorts in the stoker units, including the pins, links, rams, and liners, for the boilers in the Taylor Street powerhouse in Fort Wayne, Indiana. B. Background and Facts of the Dispute The facility in Fort Wayne in which the current jurisdictional dispute arose is the Employer's Taylor Street powerhouse. The powerhouse is equipped with three boilers which generate steam used in the Employer's manufacturing processes. The steam is also sold to the Essex Corp. Each of these boilers is equipped with a stoker unit, designed to feed coal into the firebox of the boiler. Employed at this facility, at the time of the hearing, are 16 employees represented by the IUE and 1 employee represented by the IAM. The IUE employees operate the machinery in the powerhouse 7 days a week, 24 hours a day. According to the Employer's job descriptions, these employees are classified as power- house operators and their responsibilities include the maintenance and repair of stokers and other equip- ment pertaining to the boilers. The IAM employee works during the daytime shift and the Employer's job description classifies him as a machinist-mainte- nance whose responsibilities include the dismantling, repair, and reassembly of equipment including the reworking and/or replacement of defective mechani- cal components. There is no evidence that the two Unions were consulted prior to the Employer's promulgation of these job descriptions. Intermittently, the stoker units in the boilers must be overhauled, either due to a mechanical break- down resulting in an emergency situation or pursuant to periodic scheduled maintenance. In either in- stance, the work is essentially the same, consisting of the replacement of parts in some or all of the 10 retorts comprising the stoker unit in each boiler. During September and October 1976, the Employ- er overhauled all of the retorts in one of its boilers at the Taylor Street powerhouse. This work was performed as scheduled maintenance and the Em- 356 AEROSPACE WORKERS, LODGE NO. 70 ployer initially assigned two employees to perform the work; one represented by the IUE and one represented by the IAM. On September 28, 1976, a grievance was filed on behalf of the IAM, claiming that the work involved is within the exclusive jurisdiction of the machinists represented by the IAM. On February 16, 1977,1 the Employer and the IAM completed a meeting at the highest level of the grievance procedure and on February 18 the Em- ployer informed the IAM that, since the work assignment involved had been completed, it consid- ered the matter moot. On March 8, the lAM, in conformity with the terms of its collective-bargaining agreement, informed the Employer that it intended to strike over the work assignment. However, no work stoppage occurred at that time. In June the Employer overhauled the stoker unit in a second boiler at the Taylor Street powerhouse. Again the Employer assigned the work to two employees, one represented by each Union. On June 13, 14, and 15 certain members of the IAM struck the Employer in protest of the work assignment made by the Employer. On May 19, in accordance with the AFL-CIO Internal Disputes Procedure, the IUE and the IAM met with a mediator, but were unable to reach an agreement. The mediator recommended that the Unions meet at the local level and try to reach an accord, preferably on a one-to-one basis. No such agreement has been reached. There is no evidence that the Employer was a party to this disputes procedure. C. Contentions of the Parties The Employer contends that it should remain free to assign the disputed work to whichever employees it has available at the time the work is to be performed. The Employer bases its position on the facts that the work involved is unskilled in nature, seldom performed, and can be adequately performed by employees represented by either Union. Conse- quently, it submits that, where possible, a mixed crew, composed of one employee represented by each Union, is appropriate, but that it should be free to assign the work, should an emergency arise, to employees represented by either Union. In the alternative the Employer contends that, if the work is to be awarded to employees represented by one of the two Unions involved, it favors the award of the work to the employees represented by the IUE, due to their presence at the powerhouse at all times. i All dates hereinafter. unless otherwise specified, occurred in 1977. 2 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 (1961). The IAM asserts that the Board's certification gives it jurisdiction over the disputed work and that it was the only Union which filed a grievance claiming exclusive jurisdiction over the work involved. The IAM also emphasized that in previous instances, when only IAM employees had been assigned to do the type of work here involved, the IUE did not file grievances. The IUE claims that it should be given exclusive jurisdiction over the work in dispute. It contends that such an award would be appropriate in view of the Employer's job description for IUE powerhouse operators, which states that it is their duty to "maintain and repair stokers and other equipment . . .pertaining to boilers" and the IAM's failure to have previously grieved this job description. In addition, the continuous presence of IUE employees at the powerhouse would enable them to perform the work more efficiently and economically. Finally, the IUE notes that, where only one Union has been assigned this work, it has typically been the Union selected. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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 and that the parties have not agreed upon a method for the voluntary adjustment of the dispute. On the basis of the entire record, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that this dispute is properly before the Board for determination. E. 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 factors.2 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case.3 The following factors are relevant in making the determination of the dispute before us: International Association of Machinists, Lodge No. 1743. AFL-CIO (J. A. Jones Construction Company). 135 NLRB 1402 (1962). 357 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Board certification and relevant collective- bargaining agreements On October 24, 1940, each of the two Unions here involved was certified as the bargaining representa- tive of separate units of employees at the Employer's Fort Wayne facilities. According to the certifications, the IUE became the representative of all hourly rated employees and the IAM became the representative, inter alia, of all maintenance machinists who are engaged in the production or repair of machinery for use in the Employer's manufacturing process. There- after, the Employer entered into a series of collective- bargaining agreements with the IUE and with the IAM, the current agreements being for 3-year terms expiring June 30, 1979, and July 29, 1979, respective- ly. Both of these agreements were negotiated nation- ally with the Employer and do not contain specific descriptions of the Unions' jurisdictions at the Fort Wayne facilities. Our review of the certifications and the agreements reveal that these documents are not helpful to a determination of this dispute. 2. Company and industry practice No evidence was introduced regarding the industry practice regarding work of this nature, and the evidence with respect to company practice is some- what mixed. Similar work has been previously performed at the Taylor Street powerhouse as well as at another powerhouse operated by the Employer from 1940 to 1972 which was located approximately I mile from Taylor Street. The assignment of this work at the latter powerhouse, hereinafter referred to as the Broadway powerhouse, is of little aid in determining the present dispute, inasmuch as the conditions existent there were substantially different from those prevailing at the Taylor Street power- house. Specifically, no employees represented by the IAM were assigned to work at that location, the nearest IAM-represented employee being located in a shop in an adjoining building. Consequently, the fact that IUE-represented employees performed the work on each of the five occasions during which such work had to be performed at the Broadway power- house, having to share this work with an IAM- represented employee only once in 1955, appears to be more a consequence of the IUE's exclusive presence at this facility, than as a result of a conscious decision to exclude the IAM from this work. At the Taylor Street location, the record indicates that in the period 1967 to 1977 such repair work was performed on seven occasions. In two instances IAM-represented employees were assigned the work; in two instances the assignment was given exclusively to IUE employees; and on the remaining three occasions mixed crews were used, composed equally of employees represented by the two Unions. As the Employer's past practice at the Taylor Street power- house reveals that employees represented by neither Union have a consistent history of being assigned this work on an exclusive basis, this factor is inconclusive as between the two groups of employ- ees. However, it does establish a well-defined practice of assignment at the Employer's discretion. 3. Training and skills The evidence indicates that the only tools used to perform this work, torch, wrench, sledge, drift pin, and chain fall, require no special skills and the work can be performed by employees represented by either Union. We therefore find that this factor is inconclu- sive and does not favor an award to employees represented by either Union. 4. Economy and efficiency of operation The record shows that employees represented by the IUE are present at the powerhouse at all times, while the single IAM employee works only during the daytime and is typically not replaced while he is on vacation. However, the Employer, in addition, employs many other individuals represented by these two Unions. Overall, 3,300 employees represented by the IUE and 360 employees represented by the IAM are assigned to the Employer's Fort Wayne facilities, where the powerhouse is located. While there is only a single employee represented by the IAM stationed at the Taylor Street powerhouse, additional employ- ees represented by this Union are located in a machine shop one block away from the powerhouse, and the record indicates that in times past the Employer has called in additional IAM employees to perform the work. As it appears that employees represented by either Union are able to perform the work, since no special skills are required, it is apparent that the economy and efficiency of operation would be best promoted by allowing the Employer to assign the work to whichever of those employees are available when the need arises. The mere numerical predominance of employees represented by the IUE at the Taylor Street location is an insufficient predicate, in these circumstances, upon which to base a finding that efficiency and economy of operation favors the award to the IUE-represented employees to the exclusion of the 1AM-represented employees. Conse- quently, we find that this factor is not helpful in resolving the instant dispute. 358 AEROSPACE WORKERS, LODGE NO. 70 Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that none of the factors traditionally considered by the Board in resolving disputes of this nature favors an exclusive award to members of either of the two Unions involved in the present proceeding. Under these unusual circumstances, to award this work to employees represented by either of the two competing Unions, to the exclusion of the other, would entail an unwarranted exercise of the power granted to the Board under Section 10(k) to resolve such jurisdictional disputes, as such an award would be at best an arbitrary resolution of the dispute. We are mindful of the fact that the Supreme Court has held that Section 10(k) of the Act mandates that we make an affirmative award in such cases, and not merely determine that the employees represented by one labor organization do not have jurisdiction over the work in question. Columbia Broadcasting System, supra. However, we believe that in the instant situation it is within the Board's power to award this work to employees represented by either of these two Unions to the exclusion of all other possible claimants, but to preserve in the Employer the right to assign the work to members of either or both Unions, depending on the circum- stances confronting the Employer when this work must be done. In so holding we note that the Supreme Court in Columbia Broadcasting System stated, "To determine or settle the dispute [between two groups of employees] would normally require a decision that one or the other is entitled to do the work in dispute."4 It is therefore apparent that the Supreme Court was aware that in some selective situations an affirmative award of the work need not necessarily have to be made on an exclusive basis between the two disputants, and that the main thrust of the Court in that decision was only against the Board's past practice of refusing to make any affirmative award whatsoever. Here, an affirmative award is made to employees represented by either of the Unions involved but to neither group of employees exclusively. We also note that the work here involved is of such nature that the need for it arises only infrequently and in many instances unexpectedly, and that where such emergencies do I Id at 579 (emphasis supplied). occur, it is imperative that the Employer be able to assign whoever is available. This has been the practice in the past, the Employer desires to continue it, and the only evidence probative of the formula- tion of an award indicates that the award should be based on this practice. In making this determination, we are awarding the work in question to employees who are represented by Local 901, International Union of Electrical, Radio and Machine Workers, AFL-CIO, and to employees who are represented by International Association of Machinists and Aero- space Workers, AFL-CIO, Lodge No. 70, but not to either Union or its members. 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 proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of the General Electric Company who are represented by Local 901, International Union of Electrical, Radio and Machine Workers, AFL-CIO, and employees who are represented by International Association of Machinists and Aero- space Workers, AFL-CIO, Lodge No. 70, are entitled to perform the work involved in the disassembly and reassembly of the retorts in the stoker units, including the pins, links, rams, and liners, for the boilers in the Taylor Street powerhouse in Fort Wayne, Indiana. 2. International Association of Machinists and Aerospace Workers, AFL-CIO, Lodge No. 70, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the General Electric Company to assign the disputed work exclusively to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Associ- ation of Machinists and Aerospace Workers, AFL- CIO, Lodge No. 70, shall notify the Regional Director for Region 25, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination. 359