International Union, Automobile Workers, Local No. 292

INTERNATIONAL UNION, AUTOMOBILE WORKERS , LOCAL NO. 292 635 International Union, United Automobile, Aerospace and Agricultural Implement Workers of America and its Local Union No. 2921 and Delco Electron- ics Division of General Motors Corporation. Case 25-CD-168 directly to points outside the State of Indiana. Accordingly, 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 purposes of the Act to assert jurisdiction herein. March 14, 1977 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Delco Electronics Division of General Motors Corporation, herein referred to as the Employer, alleging that the UAW violated Section 8(b)(4)(D) by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by the UAW rather than to employees represented by Local 24, Metal Polishers, Buffers, Platers and Allied Workers International Union.2 Pursuant to notice, a hearing was held before Hearing Officer Engrid Vaughan, on August 26 and September 21 and 22, 1976. The Employer, UAW, and Metal Polishers appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer, UAW, and Metal Polishers filed briefs. 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 fords that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Employer, a Delaware corporation with a facility in Kokomo, Indiana, is engaged in the manufacturing of radios and electronic components, primarily for the automobile industry. During the past year, the Employer purchased goods valued in excess of $50,000 which were received at its Kokomo, Indiana, facility directly from points outside the State of Indiana. During the same period, the Employer sold and shipped goods valued in excess of $50,000 II. THE LABOR ORGANIZATIONS INVOLVED We find, as stipulated to by the parties, that the UAW and the Metal Polishers are labor organiza- tions within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of Dispute In September 1968, the Employer commenced production of microscopic electrical connectors, known as bumps, at its Kokomo, Indiana, facility. At that time it assigned the work to employees repre- sented by the UAW. The bumps are attached to solid-state integrated circuits, or "chips," which the Employer uses in manufacturing voltage regulators and electronic ignitions. The microscopic bumps replace conventional wiring and contribute to the miniaturization of the chips which, as semiconduc- tors, replace builder and more fragile electronic components such as vacuum tubes and resistors. The manufacturing of chips and bumps is a multistep process. Silicon, in the form of a cylinder, approximately 14 inches in length and 2 inches in diameter, is sliced into thin wafers, .016 to .018 inch in width. After the wafers undergo 65 separate processes, producing a number of electrical circuit patterns on the wafers' surfaces, the wafers are taken to the "bumproom," where another 30 separate processes are applied to produce the bumps. The first step in the forming of bumps is the depositing onto the wafers of a thin layer of quartz through which holes are made to expose the desired portion of circuitry. A thin layer of chrome is added, with a portion of the chrome entering the holes. This is followed by a layer of gold, a portion of which also flows into the holes. The gold in the respective holes will form the base for the bumps. Thereafter, a layer of riston is added, which serves as a mold for the bumps, and holes are made in the riston to expose the gold pads. The wafers are then immersed in a silver cyanide solution from which silver is deposited, by electroly- sis, into each of the holes. The parties refer to this part of the operation as "process 7338." Once the silver bump is formed, the wafers are immersed in a gold bath which by electrolysis imposes a layer of gold on the silver bump. The parties refer to this I Herein referred to as the UAW 2 Herein referred to as the Metal Polishers, was permitted to intervene at the hearing. 228 NLRB No. 72 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operation as "process 7341." After the immersions, the riston and chrome layers are removed and the bumps are inspected. Each bump is between .005 and .006 inch in diameter and .003 inch in height. The wafers, to which the bumps are attached, are cut into hundreds of individual chips, which are installed in voltage regulators or electronic ignitions. On July 15, 1974, pursuant to an arbitration award, the Employer reassigned the silver-form and gold- cap processes to employees represented by Metal Polishers . Employees represented by the UAW, however, continued to perform the remaining 28 bumproom processes . Thereafter, on September 22, 1975, pursuant to a second arbitration award, the Employer reassigned the two processes to employees represented by the UAW, who have since continued to perform the work. On April 8, 1976, Metal Polishers filed an action in Federal district court seeking enforcement of the arbitration award in favor of employees represented by it, or in the alternative , seeking tripartite arbitration. Thereafter, on May 24, 1976, the UAW advised the Employer by letter that, if it complied with the arbitration award in favor of the employees repre- sented by the Metal Polishers, the UAW would strike the Employer. B. The Work in Dispute The work in dispute consists of silver-electroform process #7338 and gold-cap process #7341, in- volved in the production of microscopic electrical connectors, performed at the Employer's Kokomo, Indiana, facility. C. The Contentions of the Parties The Employer contends that there is reasonable cause to believe that the UAW violated Section 8(b)(4)(D) by threatening to strike if the Employer complied with the arbitrator's award of the disputed work in favor of employees represented by Metal Polishers, and that there is no agreed-upon method for the voluntary adjustment of the dispute. The Employer further contends, with respect to the merits, that the employees represented by the UAW are entitled to perform the disputed work based on the factors of: Employer past practice and prefer- ence, area and industry practice , relative skills, and economy and efficiency of operations . The UAW has taken a position basically consistent with that of the Employer. Metal Polishers moves to quash the notice of hearing contending that there is no reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. In this regard, it argues, inter alia, that the UAW's strike threat was not authorized and was not bona fide. It also argues that in any event the object of the UAW threat was to "retain" the work for employees whom it represents rather than to force the Employer to assign the work to such employees and that therefore the threat did not fall within the literal language of Section 8(b)(4)(D), which pros- cribes certain conduct where an object thereof is to force an employer to "assign" work to one group of employees rather than to another. Metal Polishers also contends that its action in Federal district court seeking enforcement of the arbitration award, or the alternative tripartite arbitration, constitutes an agreed-upon method for the voluntary adjustment of the dispute. Finally, Metal Polishers contends that, should the Board find the dispute properly before it, employees represented by Metal Polishers are enti- tled to an award of the disputed work on the basis of its Board certification, its collective-bargaining agreement with the Employer, the arbitration award in favor of employees represented by it, employer practice, and efficiency. D. Applicability of the Statute Before the Board proceeds with a determination of a 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. As noted above, the UAW advised the Employer that, if it complied with the arbitrator's award in favor of employees represented by Metal Polishers , the UAW would strike the Employer's Kokomo, Indiana, facility to retain the work . There is no evidence in the record that the strike threat was anything but genuine, and uncontradicted evidence shows that UAW Vice President Bluestone, who wrote the letter threatening to strike the Employer's facility, was duly authorized to issue the strike threat . Further, we reject Metal Polishers contention that improper pressure by a union rivaling that which has been assigned the work is a prerequisite to a 10(k) dispute. Under settled Board policy, there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred if a labor organization , whose members are assigned disputed work, puts improper pressure upon an employer to continue such assignment .3 Since the record shows that the UAW threatened to strike the Employer if it assigned the disputed work to employees represented by Metal Polishers, we find that there is reasonable cause to believe that an object of the UAW's action was to force the Employer to continue to assign the disputed work to Local 1184, Southern California District Counsel of Laborers (H. M pliers and Photoengravers International Union, AFL-CIO (National Press, Robertson Pipeline Constructors), 192 NLRB 1078, 1079 (1971 ), Lithogra- Incorporated), 186 NLRB 143, 145 (1970). INTERNATIONAL UNION, AUTOMOBILE WORKERS, LOCAL NO. 292 637 employees represented by the UAW, in violation of Section 8(b)(4)(D). We further find that there is no agreed-upon method for the voluntary adjustment of the dispute to which all parties are bound. The Employer's respective contracts with the UAW and Metal Polishers contain provisions for the arbitration of disputes between the contracting parties, but neither contract provides for tripartite arbitration. Under these circumstances, the arbitration provisions of the respective contracts do not provide an agreed-upon method for the voluntary adjustment of the dispute which would culminate in a single proceeding binding on all parties .4 As noted above, Metal Polishers argues that its action in Federal district court seeking enforcement of the arbitrator's award in favor of employees whom it represents, or, in the alternative, seeking tripartite arbitration constitutes an agreed-upon method for the voluntary adjustment of the dispute and that the Board, therefore, should not proceed with a determi- nation under Section 10(k). The UAW, however, never agreed to be bound by the arbitrator's award which Metal Polishers seeks to enforce. Further the Board has held in similar cases that court-ordered tripartite arbitration * does not constitute an agreed- upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k).5 Accordingly, the matter 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 due consideration to various relevant factors. 1. Certifications, collective-bargaining agreements, and arbitration awards Metal Polishers contends that its Board certifica- tion, its collective-bargaining agreement with the Employer, and the earlier arbitration award favor assignment of the disputed work to employees represented by it. The Board, in 1940, certified Metal Polishers as the exclusive bargaining representative of all "metal polishers, buffers, platers, and their helpers" at the Employer's Kokomo, Indiana, facili- ty.6 Thereafter, in 1942, the UAW was certified by the Board as the exclusive bargaining representative 4 San Diego Sterotypers' Union No. 82, affiliated with the International Stereotypers and Electrotypers Union of North America (Union-Tribune Publishing Company), 201 NLRB 893, 895 (1973) , International Die Sinkers' Conference and Detroit Die Sinkers' Lodge No 110 (General Motors Corporation), 197 NLRB 1250, 1252 (1972) We further note that on July 20, 1976, the district court stayed further proceedings in Metal Polishers action pending issuance of the Board's Decision herein. of the Employer's production and maintenance employees, excluding, inter alia, "metal polishers, buffers, platers, and their helpers." 7 Metal Polishers urges, and the Employer concedes, that the disputed work may be described as "plating" since it involves the depositing of metal onto a substance by the flow of an electric current through a metallic solution. While the respective certifications arguably support Metal Polishers claim to the disputed work, these certifications predate the Employer's introduction of the disputed work into its manufacturing process. We find, on the basis of the record herein, that the, certifications do not support an award of the work to either group of employees.8 As for the collective-bargaining agreements, the record" shows that the respective recognition clauses contained therein reflect, for the most part, each labor organization's Board certification. These col- lective-bargaining agreements, as noted above, were the subject of separate arbitration proceedings which resulted in conflicting awards of the disputed work. As demonstrated by the conflicting arbitration awards, each Union's collective-bargaining agree- ment with the Employer arguably favors an award to employees represented by that Union. Accordingly, we find that the collective-bargaining agreements and arbitration awards do not support an award of the work to either group of employees. 2. Employer's past practice and preference The record shows that employees represented by the UAW have performed the disputed work from September 1968 until the present, except for a 14- month period when employees represented by Metal Polishers were assigned the work pursuant to an arbitration award. Although Metal Polishers claims that employer practice, apart from the above 14- month period, favors an award of the work to employees represented by it, the evidence on which it relies pertains, not to the work in dispute here, but rather to other examples of electroplating performed by such employees at the Employer's facility. We find, therefore, that the predominant past practice of the Employer favors an award to employees repre- sented by the UAW. As noted above, the Employer initially assigned the disputed work to employees represented by the UAW and subsequently reassigned the work to employees represented by Metal Polishers only 6 Delco Radio Division of General Motors Corporation, 27 NLRB 628 (1940). 7 Delco Radio Division of General Motors Corporation, 44 NLRB 1381 (1942). 8 Cf. Brotherhood of Teamsters & Auto Truck Drivers Local No 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Pacific Maritime Association), 208 NLRB 1011 , 1014 (1974) 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because an arbitrator so ordered . The Employer's later reassignment of the work to employees repre- sented by the UAW, pursuant to a second arbitration award, was in accord with its stated preference and past practice predating the Metal Polishers arbitra- tion award. Accordingly, we find that this factor favors assignment of the disputed work to employees represented by the UAW. 3. Area and industry practice It is undisputed that the UAW does not represent any other employees within the Kokomo, Indiana, area who perform the same work as that in dispute. Although Metal Polishers presented evidence that it represents employees who perform electroplating work for other employers in the Kokomo area, this electroplating work does not involve the particular processes in dispute here. We therefore fmd the factor of area practice is ambiguous. With respect to industry practice, the evidence reveals that Metal Polishers does not represent other employees performing this work for employers in any area of the country. No evidence was presented to show that the UAW represents any other employees in the industry who perform this work. Inasmuch as the record fails to show any affirmative industry practice, with respect to the disputed work, this factor does not favor an award to either group of employees. 4. Relative skills, economy, and efficiency of operations Employees represented by each of the respective labor organizations involved herein possess the skills necessary to perform the work in dispute. Record evidence shows that when assigned the disputed work the respective groups of employees have performed such work in a manner satisfactory to the Employer. Therefore, the factor of relative skills does not support an award of the work to either group of employees. With respect to economy and efficiency of opera- tions, the record reveals that the utilization of employees represented by the UAW offers greater flexibility and versatility in the performance of the work in the bumproom. The production of bumps is a multistep integrated procedure of which the work in dispute comprises only 2 of some 30 different processes. Employees represented by the UAW, unlike those represented by the Metal Polishers, are capable of performing and have been assigned the remaining work in the bumproom. The record further shows that there are periods of time in performing the disputed work during which the attention of the employees is not required. When employees represented by the Metal Polishers were assigned the disputed work, they incurred "down time" during such periods because they did not perform any of the remaining bumproom processes. In contrast, when employees represented by the UAW have been assigned the disputed work, they incur no "down time," but rather perform other bumproom processes during such periods. We therefore find that the factors of economy and efficiency of operation favor an award of the disputed work to employees represented by the UAW. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that employees represented by the UAW are entitled to perform the work in dispute. We reach this conclusion relying on the following facts: the Employer's present assignment is consistent with its predominant past practice and its preference and is not inconsistent with area or industry practice; the employees represented by the UAW possess the requisite skills to perform the work; and such assignment results in greater economy and efficiency of operations. In making this determination, we are awarding the disputed work to employees currently represented by the UAW, but not to the UAW or its members. Our present determination is limited to the particular dispute which gave rise to this 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 proceeding, the National Labor Relations Board makes the following Determination of Dispute: Employees of Delco Electronics Division of Gener- al Motors Corporation at its Kokomo, Indiana, facility, who are currently represented by Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America and its Local Union No. 292, are entitled to perform the work of silver-electroform process #7338 and gold- cap process #7341.