Southern California Professional Engineering Assn. (McDonnell Douglas Corp.)

80 316 NLRB No. 11 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 All dates are in 1994, unless stated otherwise. 2 Strain gages are small electrical devices that are used to measure the relative stress and pressure levels exerted on an aircraft or sub- assembly and determine the reaction of the tested component to the forces exerted on it. 3 The parties agree that J5Bs have exclusive jurisdiction to perform strain gage location inspections where they are required by the FAA or DPRO. 4 The evidence shows that J5B employees have filed grievances with the Employer claiming that quality engineers have performed J5B work for the past 5 years. At least one of the grievances is scheduled for arbitration in November 1994. The parties did not present evidence concerning the status of the other grievances. 5 The record shows that in general the duties of the quality engi- neers consist of investigating, analyzing, and resolving production, engineering, and procurement quality problems, and analyzing and monitoring inspection functions on actual test runs. 6 The record shows that J5Bs generally perform structural inspec- tions of dynamic and static specimens, and the inspection of me- chanical, electrical, and electronic test equipment during fabrication of a product. Southern California Professional Engineering Asso- ciation and McDonnell Douglas Corporation and United Automobile, Aerospace and Agri- cultural Implement Workers of America– UAW, Local 148. Case 21–CD–615 January 23, 1995 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND BROWNING The charge in this Section 10(k) proceeding was filed on May 23, 1994,1 by the Employer, McDonnell Douglas Corporation, alleging that the Respondent, Southern California Professional Engineering Associa- tion (SCPEA), violated Section 8(b)(4)(D) of the Na- tional Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to as- sign certain work to employees it represents rather than to employees represented by United Automobile, Aero- space and Agricultural Implement Workers of Amer- ica–UAW, Local 148 (Local 148). The hearing was held June 21 and 22 and August 3, 9, and 10 before Hearing Officer Hector Martinez. Thereafter, the Em- ployer, SCPEA, and Local 148 filed briefs in support of their positions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board affirms the hearing officer’s rulings, find- ing them free from prejudicial error. On the entire record, the Board makes the following findings. I. JURISDICTION The Employer is a Delaware corporation engaged in the manufacture and sale of aircraft at its facilities at 3855 Lakewood Boulevard, Long Beach, California. The parties stipulated that the Employer purchases and receives goods and services valued in excess of $50,000 directly from suppliers located in States other than the State of California. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The parties also stipulated, and we find, that Local 148 and SCPEA are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer produces and sells aircraft to both the U.S. Government and privately owned airline compa- nies. Prior to and during the production of the aircraft, the Employer conducts extensive laboratory and flight operations testing to ensure the viability of the aircraft and their related systems. When it is required, the Em- ployer also conducts testing to obtain product certifi- cations from either the Federal Aviation Administra- tion (FAA) or the U.S. Defense Procurement Rep- resentative Office (DPRO). The Employer has had collective-bargaining agree- ments with both Unions for many years. Local 148 currently represents approximately 10,000 hourly pro- duction employees in various classifications, and SCPEA represents approximately 3100 salaried em- ployees in different classifications. The work in dispute involves the precision dimensional inspection of strain gage locations,2 where such inspections are not re- quired by FAA or DPRO. Since about the 1970s, the Employer has assigned the disputed work to quality engineer employees represented by SCPEA rather than to inspector engineer test employees (J5Bs) represented by Local 148.3 Sometime in March, SCPEA President Pete Ham- montre met with McDonnell Douglas Corporation Labor Relations Manager Bill Appleby to discuss grievances filed by J5Bs concerning quality engineers performing J5B work.4 During the meeting, Ham- montre informed Appleby that the Employer was pro- hibited from reassigning work that the quality engi- neers5 had traditionally performed, and that SCPEA would strike if the Employer considered assigning the work in dispute to J5Bs.6 On May 10, Appleby phoned Hammontre to verify the March conversation. Hammontre confirmed that SCPEA would take strike action against the Employer if the work was reassigned to J5Bs. On May 23, the Employer filed the instant 8(b)(4)(D) charge. 81 SOUTHERN CALIFORNIA PROFESSIONAL ENGINEERING ASSN. (MCDONNELL DOUGLAS CORP.) 7 Prior to the hearing, the parties could not agree concerning what work precisely was in dispute other than all the quality control func- tions performed by employees represented by SCPEA. However, during the August 3, 1994 hearing date, the parties stipulated that certain work was not in dispute. Thus, the only work remaining in dispute is the precision dimensional inspection of strain gage loca- tions where there is no FAA or DPRO conformity requirement. B. Work in Dispute7 The disputed work involves the precision dimen- sional inspections of strain gage locations where such inspections are not directed by FAA or DPRO con- formity requirements. C. Contentions of the Parties The Employer contends that the work in dispute should be awarded to the quality engineers on the basis of its preference and its 20-year practice of assigning the work to the quality engineers, the economy and ef- ficiency of operations, and the relative skills of the quality engineers. The Employer and SCPEA assert that Local 148 acquiesced in the assignment of the dis- puted work by not filing grievances until about 1990, and by not intervening in the 1991 Board election that certified the employees represented by SCPEA. Like the Employer, SCPEA contends that the quality engineers have a history of performing nonconformity inspections. SCPEA also contends that the Employer will violate its collective-bargaining agreement if the Employer reassigns the work in dispute. Local 148 contends that the work in dispute should be assigned to J5Bs on the basis of its Board certifications, collec- tive-bargaining agreement, and the skills of J5Bs who have performed the disputed work. Local 148 also con- tends that the Employer will not suffer any loss of effi- ciency or money by reassigning the work in dispute to J5Bs. D. Applicability of the Statute Before the Board may proceed with a determination of dispute pursuant to Section 10(k) of the Act, it must be established that reasonable cause exists to believe that Section 8(b)(4)(D) has been violated, and that the parties have not agreed on a method for voluntary ad- justment of the dispute. As noted above, sometime in March and again on May 10, Hammontre threatened the Employer with strike action if the Employer reas- signed the disputed work to employees represented by Local 148. Further, the parties stipulated that they have been unable to agree on a voluntary method of adjust- ment of the dispute. Based on the foregoing, we find reasonable cause to believe that SCPEA violated Section 8(b)(4)(D) of the Act, and that there exists no agreed-upon method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determina- tion. E. Merits of the Dispute Section 10(k) requires the Board to make an affirm- ative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by balancing the factors in- volved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the de- termination of this dispute. 1. Certifications and collective-bargaining agreements SCPEA was certified as the exclusive collective-bar- gaining representative of the quality engineers and other salaried employees in 1991. Since 1944 Local 148 has received certifications from the Board for var- ious classifications of hourly production employees. Although the J5B classification did not exist at that time of such certifications, they do reference hourly ‘‘inspector’’ job classifications. As previously noted, the Employer currently has col- lective-bargaining agreements with both Unions. The SCPEA agreement is effective from March 1, 1993, to March 3, 1996, and Local 148’s agreement is effective from March 18, 1991, to April 16, 1995. Neither agreement shows that J5Bs or quality engineers have exclusive jurisdiction to perform the work in dispute. However, pursuant to the respective agreements, both Quality Engineers and J5Bs have performed the work in dispute. Because both Unions are certified by the Board, and the respective collective-bargaining agreements of both Unions appear to cover the work in dispute, we find that this factor does not favor awarding the work in dispute to employees represented by either Local 148 or SCPEA. 2. Employer preference and past practice The evidence shows that the work in dispute has been historically performed by quality engineers for the past 20 years, although the Employer has occasion- ally assigned the work in dispute to J5Bs. The Em- ployer presented testimony that it prefers to continue assigning the disputed work to quality engineers be- cause it is more efficient and economical. Local 148 asserts that a December 14, 1990 memo- randum from human resource employee, Frank Lee, concerning Lee’s recommendation that all test related inspection work be assigned to J5Bs supports its con- tention that the disputed work should be assigned to 82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD J5Bs. The memorandum was written in response to grievances filed by Local 148 at that time. However, the Employer presented testimony that it disregarded Lee’s recommendation because the affected department managers disagreed with the memorandum’s conclu- sions and the facts on which it was based. Moreover, the memorandum contained no reference to strain gage location inspections and it is unclear whether such work was included in Lee’s analysis. Accordingly, based on the 20-year history of quality engineers’ per- forming this work, we find that this factor favors an award of the disputed work to employees represented by SCPEA. 3. Area and industry practice No party presented witnesses or evidence concerning industry or area practice. Accordingly, we find this factor inconclusive. 4. Relative skills Both quality engineers and J5Bs possess the nec- essary skills to perform the work in dispute because both groups have the basic knowledge of using meas- uring devices that are required to verify strain gage lo- cations. Witnesses presented by Local 148 testified that J5Bs are trained to use various precision measuring de- vices, and that they have performed both government- required and nonconformity strain gage inspections. The Employer presented testimony that although it is the J5Bs’ area of expertise to verify precise measure- ments, the quality engineers can perform the work in dispute because it does not require the high degree of precision measurement that is needed for Government conformity requirements. Because both groups of employees are qualified to perform the work in dispute, we find that this factor does not favor awarding the work in dispute to em- ployees represented by either Union. 5. Economy and efficiency of operations The Employer presented testimony that it is more ef- ficient to use the quality engineers because they have historically performed the work in dispute. The Em- ployer asserts that the quality engineers are more ver- satile because they are cross trained to perform the work in dispute, as well as functions incidental to the work in dispute. Further, the Employer asserts that the quality engineers are already present at the test site performing other inspections that J5Bs are not quali- fied to perform. In addition, the Employer claims that it is not cost effective to use J5Bs because the Employer would incur both the cost of hiring additional J5Bs, and over- time costs, because Local 148’s contract does not con- tain a salary cap as does the SCPEA contract. Further, the Employer claims that the assignment of the dis- puted work to J5Bs would cause the layoff of one quality engineer. Although Local 148 claims that J5Bs can perform the work in dispute economically and effi- ciently, the record clearly shows that it is more effi- cient to use the quality engineers who are already present at the test site performing other inspections and who are capable of performing nonconformity inspec- tions. Accordingly, we find that this factor favors an award of the disputed work to quality engineers rep- resented by SCPEA. Conclusion After considering all the relevant factors, we con- clude that the quality engineer employees represented by Southern California Professional Engineering Asso- ciation are entitled to perform the work in dispute. We reach this conclusion relying on employer preference and past practice and the economy and efficiency of operations. In making this determination, we are awarding the work in dispute to the SCPEA-represented quality en- gineers at the Employer’s Long Beach facility, and not to that Union or its members. The determination is limited to the controversy that gave rise to this pro- ceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the fol- lowing Determination of Dispute. Quality engineer em- ployees of McDonnell Douglas Corporation, rep- resented by Southern California Professional Engineer- ing Association, are entitled to perform the precision dimensional inspections of strain gage locations where such inspections are not required by the Federal Avia- tion Administration or the U.S. Defense Procurement Representative Office.