AFG Industries

307 309 NLRB No. 35 AFG INDUSTRIES 1 This ‘‘classification’’ is apparently of the Petitioner’s creation in that no other party uses it or claims such to exist. 2 The Employer subcontracted this work to an outside firm from May 1, 1991, to May 1992. AFG Industries, Inc. and Local Union 934, Inter- national Brotherhood of Electrical Workers, AFL–CIO, Petitioner and Aluminum, Brick and Glass Workers International Union, AFL– CIO, CLC and Greenland Local No. 456, Party in Interest. Case 10–UC–185 October 22, 1992 ORDER BY MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH The Petitioner’s and the Employer’s requests for re- view of the Regional Director’s Order (a pertinent por- tions of which are attached) are granted as they raise substantial issues with respect to whether this case pre- sents a work assignment dispute, as found by the Re- gional Director, or a unit placement issue, as urged by the Petitioner. The Board concludes, however, that this issue can best be resolved after the parties have been given an opportunity to address this matter at a hear- ing. On the basis of the record evidence so presented, the Regional Director and, if necessary, the Board will be better able to assess whether the Petitioner is seek- ing to represent the employee currently performing the work, as the Petitioner specifically contended in its May 11, 1992 submission to the Regional Director, or whether it merely seeks to have the work reassigned to its bargaining unit, as found by the Regional Direc- tor and as would be consistent with some statements in its request for review (‘‘it is implicitly clear and un- disputed that the IBEW unit already has the aforemen- tioned jurisdiction’’). Accordingly, the case is re- manded to the Regional Director for hearing and the issuance of a supplemental decision. APPENDIX On May 7, 1992, the instant petition was filed by the Peti- tioner, seeking clarification of its certified unit of all elec- trical employees employed by the Employer at its Greenland, Tennessee Plant including electricians, electrician trades helpers, instrument mechanics trades helpers and instrument technicians, excluding all other production and maintenance employees, stores attendant, truck drivers, brick masons, oil- ers, laborers, tool room attendant, group leaders, chief opera- tors, lab technicians, lab helpers and all other technical em- ployees, plant fire inspector, office clerical employees, pro- fessional employees, guards, watchmen and acting foreman and all other supervisors as defined in the National Labor Relations Act, as amended, by adding thereto a job classi- fication which it characterizes as a ‘‘Vibration Analysis Elec- tronic Instrument Technician.’’1 Subsequent to the filing of the petition, as part of the investigation, all parties were so- licited to furnish their positions as to whether unit clarifica- tion was warranted or appropriate. All three parties filed re- sponses. The relevant facts are largely undisputed. In February 1992, the Employer purchased electronic testing equipment capable of detecting bearing wear and fatigue prior to actual failure.2 The Employer assigned the work of operating this equipment to the maintenance department, whose employees are represented in a separate unit by the Party in Interest. All parties agree that testing for ‘‘bearing wear’’ has been performed in the past using less sophisticated equipment. The Petitioner claims that, in the past, vibration analysis has al- ways been performed by technicians using ‘‘different types of electronic equipment.’’ The Party in Interest asserts that ‘‘vibration analysis’’ has been performed by its maintenance mechanics ‘‘using various techniques and equipment.’’ For example, prior to the advent of electronic testing, the prob- lem was diagnosed with a mechanic’s stethoscope to deter- mine the source of a vibration. At the suggestion of the Party in Interest, the Employer investigated the cost savings associ- ated with purchasing the currently used testing equipment. Subsequently, the Employer determined that substantial sav- ings could be obtained from performing the testing in-house. The Employer cites McDonnell Co., 173 NLRB 225 (1968), for the proposition that the petition is properly before the Region. The Employer contends that the ‘‘Employer’s production operations have extended and enlarged current production work to new job responsibilities involving diag- nostic testing for machine and motor vibration.’’ In its McDonnell decision, the Board distinguished the holding of the Supreme Court in James B. Carey, as President of Elec- trical Workers IUE v. Westinghouse Electric Corp., 375 U.S. 261 (1964), to find an accretion to a unit represented by one of two competing labor organizations on facts somewhat similar to the facts extant herein. In Carey, the Court had ac- knowledged the existence of two issues in this area of the law. If the controversy was whether certain work should be performed by workers in one bargaining unit or another, the Court said the Board had no function to perform absent a Section 8(b)(4)(D) charge. If the controversy was to deter- mine which labor organization should represent the employee performing the work, the Board could properly entertain a unit clarification petition. Thus, according to the Supreme Court, the Board can clarify its certification where a certain labor organization seeks to represent additional employees, not where the labor organization seeks additional work for employees within its unit. I find that the Employer’s reliance on McDonnell, supra, is misplaced. In McDonnell, the clarification petition sought to exclude certain calibration work ‘‘which had not been per- formed at the time of the certification of the unit.’’ Such is not the case in the instant matter, as some form of vibration testing has been performed for a number of years, prior to the purchase of the new testing equipment. Thus, the instant matter does not present a unit question or ‘‘enlargement or extension’’ of the Employer’s operations. The work remains the same, and is apparently performed by the same employ- ees. The only circumstance which has changed is the method employed in testing for bearing failure. In these cir- cumstances, this case clearly fits a jurisdictional dispute con- 308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Indeed, contrary to counsel’s present assertions on behalf of the Employer, the Employer’s director of labor relations took the posi- tion in a grievance proceeding involving this matter that there was a ‘‘jurisdictional dispute.’’ 4 Carey, supra; Graphic Arts Local 289, 246 NLRB 981 (1979); Cincinnati Gas Co., 235 NLRB 424 (1978); T.I.M.E-D.C., Inc., 225 NLRB 1175 (1978). Compare, Crown Cork & Seal Co., 203 NLRB 171 (1973); Monsanto Research Corp., 195 NLRB 336 (1972); Gas Service Co., 140 NLRB 445 (1963). Cf., McDonnell, supra. 5 E.g., Pix Mfg. Co., 181 NLRB 88 (1970). 6 E.g., Dennison Mfg. Co., 296 NLRB 1034 (1989). troversy, in that it involves a question as to whether certain work is to be performed by the Petitioner or the Party in In- terest.3 The Petitioner’s response is also somewhat evasive. While creating a ‘‘job classification’’ to seek, and stating it desires to represent the ‘‘person performing the work,’’ the Peti- tioner also phrases its request over the ‘‘work in question.’’ It is clear to me that the Petitioner is asking the Board to assign work to its employees rather than seeking to represent employees doing the work despite its pronouncements which I find were made to fit the circumstances. There is no new classification created to perform those duties, and no accre- tion can be found.4 The Board has often stated that accretion is not to be found lightly because it deprives employees of their statutory right to select their own representatives.5 To find accretion under the situation at hand would not only de- prive employees of an opportunity to select their own rep- resentation, but would remove said individuals from rep- resentation they already enjoy. Such rights should be re- stricted or altered only under compelling circumstances not here present.6 Accordingly, I shall dismiss the petition.