Local 130, Aluminum Workers, AFL-CIO

LOCAL 130, ALUMINUM WORKERS, AFL-CIO 809 Local 130, Aluminum Workers International Union, AFL-CIO and The Anaconda Company, Aluminum Division I and International Association of Machin- ists and Aerospace Workers AFL-CIO, District Lodge No. 27. Case 9-CD-318 February 9, 1976 year the Employer received goods valued in excess of $50,000 from points located outside the State of Ken- tucky. The Employer also shipped goods valued in excess of $50,000 to points located outside the State of Kentucky. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by The Anaconda Company, Alu- minum Division, herein called the Employer, alleging that Local 130, Aluminum Workers International Union, AFL-CIO, herein called Respondent, 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 employees represented by Respondent rather than to employees represented by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 27, herein called IAM. Pursuant to notice, a hearing was held before Hearing Officer Daniel J. Roketenetz on October 14 and 22, 1975, at, Louisville, Kentucky. All parties in- cluding the Employer, Respondent, and IAM, ap- peared at the hearing and were afforded full opportu- nity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the is- sues. Thereafter, the Employer, Respondent, and IAM filed briefs. Pursuant to the 'provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings of the Hearing Officer 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 makes the following findings: I. THE BUSINESS OF THE EMPLOYER The Employer is a Montana corporation engaged in the manufacture of aluminum and aluminum products at its three plants in Louisville, Kentucky. Only the container packaged foil plant located at 4451 Robards Lane is here involved. During the past 1 The name of the Charging Party appears as amended at the hearing. H. THE LABOR ORGANIZATIONS The parties stipulated, and we find, that Respon- dent and IAM are labor organizations within the meaning of the Act. III. THE DISPUTE A. Background and Facts The Employer manufactures packaged aluminum foil in the packaged foil department at its Robards Lane plant in Louisville, Kentucky. In this depart- ment, large rolls of aluminum foil are mounted on machines which roll desired lengths and widths of foil onto individual cardboard spools. After the foil is rolled on the individual spools, it is packaged and placed in cartons by other machines for shipment to the Employer's customers. The Employer currently utilizes two types of machines to roll the foil onto the cardboard spools. These machines are the single-roll Schultz Spooler and the multiroll Green Bay Spooler. Although both machines roll foil onto spools, the Schultz Spooler is much less complex than the Green Bay Spooler. Thus, a Schultz Spooler can produce only one finished roll at a time while a Green Bay Spooler can produce several finished rolls simulta- neously. In order to vary the length and width of the rolls produced, both Schultz Spoolers and Green Bay Spoolers must be adjusted. It takes very little skill and only simple tools to make the necessary minor settings and adjustments on the Schultz Spoolers. In contrast, adjustments on the more complex Green Bay Spoolers require skills acquired either through established apprenticeship programs or, through long experience as a journeyman. Additionally, a knowl- edge of precision tools and their proper use is highly desirable in adjusting the Green Bay Spoolers. The Employer has used Schultz Spoolers in its op- eration since 1949. These were the only spooling ma- chines used by the Employer until 1962 when it be- gan to add more sophisticated equipment, including Green Bay Spoolers. Initially, employees represented by IAM performed the adjusting work on the Schultz Spoolers. This occurred during the early years of the Employer's operation when it had only approximate- 222 NLRB No. 120 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly six Schultz Spoolers. During the period from ap- proximately 1950 or 1951 to 1961 employees repre- sented by the Respondent did the adjusting work on the Schultz Spoolers.2 In 1961 the Employer moved its eight Schultz Spoolers into its Robards Lane plant. At this time the Employer had collective-bar- gaining agreements with both the Respondent and IAM. The collective-bargaining agreement with the Respondent covered the classification "machine ad- justor" and the collective-bargaining agreement with IAM covered the classification "machinists." Both classifications claimed the work of adjusting the Schultz Spoolers. In order to resolve the dispute the parties in 1961 entered into a side agreement, known as the machine adjustor's agreement, which became an addendum to the individual collective-bargaining agreements that the Respondent and IAM had with the Employer. The machine adjustor agreement pro- vided, in part, that: It was agreed between the parties that there would be a maximum of one machine adjustor per shift in the plant working in the household department. If for any reason more than one machine ad- justor is assigned on the same shift, only one will perform machine adjustor work; this agreement does not extend to overtime beyond the man's regular shift. Machine adjustors may perform adjustments necessary to production operations and may make adjustments on all machinery necessary to the changing of length or width of rolls. One machine adjustor will be on duty at all times during production operations. Machinists may perform adjustments on machinery, but not in such a way as to replace the machine ad- justor. The machinists will perform all maintenance on equipment; such as, the removal, repair and re- placement of all worn and broken parts, etc.' In 1962 the Employer began to add more modern and sophisticated equipment to its packaged foil de- partment, including Green Bay Spoolers. This equip- ment was installed by machinists who thereafter con- tinued to perform the adjusting work on it. The machine adjustors continued to perform the adjust- ing work on the Schultz Spoolers. In 1969 the machine adjustors began filing griev- ances protesting the training of machinists on the new equipment. On November 21, 1972, an arbitra- tor ruled that machine adjustors should be trained on all equipment in the, packaged foil department. Thereafter, the machine adjustors continued to claim the adjusting work on the new equipment under the arbitration award. In June 1972, IAM notified the Employer that it would take whatever action was necessary, including economic action, to keep the work. As a result of this threat, the Employer filed an 8(b)(4)(D) charge. After a 1.0(k) hearing, the Board awarded the adjusting work on all the new equip- ment to the machinists represented by IAM 4 During the period between 1961 and 1974 the Em- ployer increased its number of Schultz Spoolers to a total of 16. Nevertheless, the Employer adhered to the machine adjustor agreement and only one ma- chine adjustor per shift adjusted the Schultz Spool- ers. Although machinists did perform some adjusting work on the Schultz Spoolers during this period, this was done only infrequently and without the sanction of the Employer. Further, the Respondent took strong exception to these incidents and filed griev- ances over them. In late 1974, the Employer learned that the Aluminum Company of America, herein called Alcoa, was going to discontinue its production of packaged foil. This, presented the Employer with the opportunity to acquire Alcoa's customers and be- come the largest private label producer of packaged foil in the country.5 In November 1974, the Employer entered into negotiations with Alcoa to purchase Alcoa's packaged foil business, including its machin- ery and equipment. Thirty-six Schultz Spoolers were included in this machinery and equipment. Prior to finalizing the purchase, the Employer engaged in sep- arate discussions with both the Respondent and IAM concerning the problems which the additional Schultz Spoolers would raise under the machine ad- justor agreement. The Employer suggested to both the Respondent and IAM that the machine adjustor agreement be voided because ' it would be impossible for one machine adjustor per'shift to handle the ad- justing work on the 52 Schultz Spoolers that the Em- ployer would have after its purchase from Alcoa. The Respondent agreed with the Employer's proposal and signed a letter on January 27, 1975, voiding the machine adjustor provisions contained in its collec- tive-bargaining agreement . However, IAM refused to sign such a letter of agreement or to void the provi- sions of its collective-bargaining agreement limiting 4International Association of Machinists and Aerospace Workers, AFL- 2 The Employer added approximately two Schultz Spoolers during this CIO, District Lodge No 27 (Anaconda Aluminum Company), 207 NLRB 333 period. (1973). 3 A 1966 amendment to this agreement allows more than one machine 5 Reynolds Metals Company, herein called Reynolds, is the only other adjustor to work the same shift on weekends, providing that the work per- large producer of packaged foil in the country However , Reynolds markets formed is work which could be done on his regular shift. its foil under its own name. LOCAL 130, ALUMINUM WORKERS, AFL-CIO 811 the number of machine adjustors to one per shift. In mid-February 1975, the Employer completed the purchase from Alcoa. Shortly thereafter, the Employ- er bid three additional machine adjustor jobs and awarded these jobs to employees represented by Re- spondent.6 Employees represented by IAM then filed a grievance alleging that the Employer had violated the collective-bargaining agreement by exceeding the one machine adjustor per shift limitation contained therein. The grievance went to arbitration and an award was made on August 25, 1975, finding that under the IAM collective-bargaining agreement the Employer could not employ more than one machine adjustor per shift regardless of the number of Schultz Spoolers that it may have acquired.7 The Employer advised the Respondent of the arbitration award. Thereafter, the Respondent sent the Employer a tele- gram on August 25, 1975, stating, "that unless the Company ... maintains aluminum worker machine adjustors doing all machine adjusting on Schultz Spoolers the Aluminum Workers Local 130 will be forced to take economic action." After receiving this telegram, the Employer's director of industrial rela- tions, John Kearns, called Respondent's secretary- treasurer, H. Max Webster, to determine whether Respondent was serious about striking- and, if so, when it was going to strike. According- to Webster's uncontradicted testimony, he told Kearns that Re- spondent definitely intended to strike if the Employ- er put the arbitration award into effect. On Septem- ber 4, 1975, the Employer filed the instant charge against the Respondent. As of the date of the hear- ing, the Employer had not implemented the arbitra- tion award and machine adjustors represented by Respondent were performing all the machine adjust- ing work on the Schultz Spoolers. B. The Work in Dispute The work in dispute is the making of all necessary machine adjustments during nonproduction and pro- duction periods on Schultz Spooler machines, includ- ing all adjustments necessary for size-to-size change- overs on Schultz Spooler machines, in excess of the work that can be done by one machine adjustor, per shift, in the Employer's package foil department lo- cated in its container and packaged foil division at 4451 Robards Lane, Louisville, Kentucky. 6 The Employer has subsequently awarded two additional machine ad- justorlobs to employees represented by Respondent. 7 Although the Respondent had been informed of the arbitration proceed- ing, it declined to participate therein. C. The Contentions of the Parties IAM contends that the Board should quash the 10(k) notice of hearing because there has never been a strike or threat of a strike in the instant case. Alter- natively, IAM contends that the Board should defer to the arbitration award of August 25, 1975. As to the merits of the dispute, IAM contends that it should be awarded the work in dispute based on the machine adjustor provisions contained in its collective-bar- gaining agreement, industry practice, and the arbitra- tion award of August 25, 1975. The Employer and the Respondent contend that the 10(k) notice of hearing should not be quashed because, based on the Respondent's threats, there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. The Employer and the Respon- dent also contend that there is no agreed-upon meth- od for the voluntary settlement of the dispute to which all of the parties are bound. Specifically, the Employer and 'Respondent argue that the Board should not defer to the August 25, 1975, arbitration award because the Respondent did not participate in the arbitration proceeding. With respect to the merits of the dispute, the Employer and the Respondent contend that the Employer's assignment of the work in dispute is consistent with the Employer's past practice, the economy and efficiency of the Employer's business, the relative skills involved, and is further supported by the fact that a reassignment would cause a loss of jobs. Finally, the Employer and Respondent argue that the machine adjustor agree- ment is not controlling because,, when the agreement was entered into in 1961, the parties believed that the Employer would not be increasing the number of Schultz Spoolers in the future and one machine ad- justor per shift would be adequate to perform all of the machine adjusting on the Schultz Spoolers. D. Applicability of the Statute Before the Board may proceed to the Determina- tion of 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 there is no agreed-upon method for the volun- tary settlement of the dispute. The record reveals no evidence that the parties have adjusted or agreed upon any method for the adjustment of the present work dispute. The August 25, 1975, arbitration award in favor of IAM is not dispositive of the dispute since the Respondent was not a party to the arbitration proceeding.8 Local 1184, Southern California District Council of Laborers (H M Rob- Contrnuea' 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As stated above, the Respondent threatened the Employer with "economic action" if the Employer did not maintain aluminum worker machine ad- justors doing all the machine adjusting on the Schultz Spoolers. Additionally, the Employer was verbally informed by the Respondent that Respondent defi- nitely intended to strike if the Employer put the Au- gust 25, 1975, arbitration award into effect. Based on the foregoing and the record as a whole, we find that an object of Respondent's actions was to force the Employer to continue to assign the disputed work to individuals represented by the Respondent. Accord- ingly, we find that reasonable cause exists to believe that Section 8(b)(4)(D) has been violated and that the case is properly before the Board for determina- tion. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work af- ter giving due consideration to various relevant fac- tors. 1. Agreements of the parties As set forth above, in 1961 the Employer executed identical machine adjustor agreements with both the Respondent and IAM. Initially, these agreements were maintained by the parties as side agreements to the individual collective-bargaining agreements. In 1970 the machine adjustor agreements were actually incorporated into the collective-bargaining agree- ments of the Respondent and IAM. In January 1975, after the Employer had begun negotiations with Al- coa, the Respondent and the Employer executed a letter voiding the machine adjustor provisions con- tained in the Respondent's collective-bargaining agreement .9 However, the IAM refused to void the machine adjustor provisions contained in its current collective-bargaining agreement. IAM argues that it is entitled to the work in dispute based on these ma- chine adjustor provisions. Specifically, IAM argues that it is entitled to the work since the machine ad- justor provisions limit the number of machine ad- justors to one per shift. We do not agree. The record reveals that when the parties entered into the machine adjustor agreements in 1961 it was not contemplated that the Employer would acquire additional Schultz Spoolers in the future. On the con- trary, the parties anticipated that future increases in ertson Pipeline Constructors), 192 NLRB 1078, 1079 (1971), see N L R B. v. Plasterers' Local Union No. 79, Operative Plasterers' and Cement Masons' International Association, AFL-CIO, 404 U S. 116 (1971). 9 The current collective-bargaining agreements of the Respondent and IAM are effective from October 1, 1973, to August 1, 1977. production would be accomplished through the addi- tion of newer more sophisticated equipment and ma- chinery, including Green Bay Spoolers. Accordingly, the parties believed that one machine adjustor per shift would be adequate to perform the machine ad- justing work on all of the Employer's Schultz Spool- ers. In fact, one machine adjustor per shift was able to perform the machine adjusting on all of the Schultz Spoolers until the Employer added the addi- tional 36 Schultz Spoolers in 1975. This was so even though the Employer had increased its number of Schultz Spoolers from 8 in 1961 to 16 in 1974. Fur- ther,'nothing in the record or in the machine adjustor agreement itself reveals that the parties intended the machine adjustor agreement to prohibit machine ad- justors from adjusting any additional Schultz Spool- ers that the Employer might acquire in the future. Rather, since the machine adjustor agreement gave machine adjustors the right to adjust "all machinery necessary to the changing of length or width of rolls" it is likely that the limitation of one machine adjustor per shift was intended to limit the adjusting work that the machine adjustors would perform on ma- chines other than Schultz Spoolers. Under these cir- cumstances, we find that the agreements of the par- ties, including the machine adjustor provisions of the current IAM collective-bargaining agreement, are not helpful to a determination of this dispute. We likewise find that the August 25, 1975, arbitra- tion award in favor if IAM is not helpful to the deter- mination of this dispute since it was based on a literal reading of the one machine adjustor per shift provi- sion contained in the current IAM collective-bar- gaining agreement. 2. Industry practice The industry practice is mixed regarding machine adjusting on Schultz Spoolers. As noted above, Alcoa and Reynolds were the only other major producers of packaged foil. Prior to the Employer's acquisition of the 36 Schultz Spoolers from Alcoa in 1975, Alcoa used employees classified as "machine setters" to perform adjusting work on its Schultz Spoolers. These machine setters, like the other Alcoa employ- ees, were represented by the Steelworkers Union. Reynolds has collective-bargaining agreements with both the Aluminum Workers and IAM. Pursuant to the IAM collective-bargaining agreement, machinists represented by IAM perform the adjusting work on the Reynolds Schultz Spoolers. However, it does not appear that Reynolds employs any employees in classifications such as machine adjustor. Since the evidence relating to industry practice is both limited and mixed, we find that this factor is inconclusive. LOCAL 130, ALUMINUM WORKERS, AFL-CIO 813 3. Employer's assignment and practice As set forth above, employees represented by the Respondent have been exclusively assigned the work of adjusting the Employer's Schultz Spoolers since approximately 1950 or 1951.10 The Employer's prac- tice therefore favors the Employer's assignment. 4. Relative skills and work involved It is clear from the record that both groups of em- ployees possess the necessary skills to perform the work in dispute. The Schultz Spoolers are relatively uncomplicated machines which require little skill in order to make the minor settings and adjustments necessary to their production runs. Further, these mi- nor settings and adjustments require the use of sim- ple tools only. Accordingly, the skill factor does not favor an award to either of the competing employee groups. 5. Efficiency and economy of operations No evidence was introduced to establish that ma- chinists represented by IAM could do the work in dispute more economically or efficiently than ma- chine adjustors represented by the Respondent. On the contrary, the Employer's shipping superinten- dent, Sweeney, an employee who had worked for the Employer for 12 years in various production capaci- ties, including packaged foil foreman, testified that machine adjustors would have to be replaced by higher paid machinists on a man-to-man basis. Fur- ther, apart from the increased cost, the higher skills of the machinists would be underutilized if they were assigned the adjusting work on the Schultz Spoolers. Finally, awarding the work in dispute to machinists represented by IAM would create a difficult practical problem for the Employer since the machine ad- justors and the machinists are under separate super- vision. Thus, if such an assignment were made, em- ployees working in different classifications, under different` supervision would be performing the same work at the same time. The factors of economy and efficiency, therefore, favor the Employer's assign- ment. 6. Job impact John Boatmen, the Employer's industrial relations manager for the packaging division, testified without iV The record reveals that machinists represented by TAM may have infre- quently adjusted some Schultz Spoolers during this period. However, the Employer never assigned them to this work and the Respondent filed griev- ances concerning these occurences. contradiction that five employees represented by the Respondent would be laid off if the work in dispute is awarded to employees represented by TAM. In contrast, the Employer's assignment has not resulted in any diminution of work for employees represented by IAM. In fact, the record reveals that at least three additional machinists have been hired to help handle the maintenance and repair work on the 36 Schultz Spoolers acquired from Alcoa. In these circum- stances, we find that the factor of job impact favors the Employer's assignment. Conclusion Upon the record as a whole and after full consider- ation of all the relevant factors involved, we con- clude that the Employer's employees represented by the Respondent are entitled to perform the work in dispute. We reach this conclusion upon the facts that the assignment is consistent with the Employer's preference and past practice; it is not clearly incon- sistent with the limited and mixed industry practice or the agreements of the parties; the work requires little skill and a knowledge of simple tools only; the Employer's assignment will result in greater efficien- cy and economy of operations; and the assignment of the work to employees represented by IAM would result in loss of jobs. Accordingly, we shall determine the dispute before us by awarding the work in dis- pute to the Employer's employees represented by Re- spondent, but not to that Union or its members.-Our present determination is limited to the particular, controversy which gave rise to the proceeding. 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 pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: Employees of the Anaconda Company, Aluminum Division, Louisville, Kentucky, who are currently represented by Local 130, Aluminum Workers Inter- national Union, AFL-CIO, are entitled to perform the work of making all necessary machine adjust- ments during nonproduction and production periods on Schultz Spooler machines, including all adjust- ments necessary for size-to-size changeovers on Schultz Spooler machines, in excess of the workthat can be done by one machine adjustor, per shift, in the Employer's packaged foil department located in its container and packaged foil division at 4451 Ro- bards Lane, Louisville, Kentucky.'