Machinists District 28 (United Mcgill Corp)

MACHINISTS DISTRICT 28 (UNITED MCGILL CORP ) 805 District Lodge 28 of the International Association of Machinists and Aerospace Workers, AFL-CIO, CLC and United McGill Corporation AFL-CIO Sheet Metal Workers International Association, Local 24, AFL-CIO and United McGill Corpo- ration. Cases 9-CD-454-1 and 9-CD-454-2 September 25, 1990 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT The charges in this Section 10(k) proceeding were filed on December 27, 1989, by the Employ- er The charge in Case 9-CD-454-1 alleged that the Respondent, Machinists District Lodge 28 (Ma- chinists), violated Section 8(b)(4)(D) of the Nation- al Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign work to employees it represents rather than to employees represented by Sheet Metal Workers Local 24 (Sheet Metal Workers) The charge in Case 9-CD-454-2 similarly alleged that Sheet Metal Workers engaged in proscribed activity with an object of forcing the Employer to assign the work in issue to employees it represents rather than to employees represented by Machinists The hear- ing was held on January 29 and 30, 1990, before Hearing Officer Damon W Harrison Jr The Em- ployer and Sheet Metal Workers filed postheanng briefs The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board affirms the hearing officer's rulings, finding them free from prejudicial error On the entire record, the Board makes the following find- ings I JURISDICTION The Employer, an Ohio corporation, manufac- tures sheet metal and heavy steel products at its Columbus, Ohio, and Westerville, Ohio facilities During the 12-month period immediately before the hearing, the Employer had gross revenues in excess of $500,000 It purchased and received goods and materials valued in excess of $50,000, which were shipped directly to its Columbus and Westerville, Ohio facilities from points outside the State of Ohio The parties stipulate, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act The parties further stipulate, and we find, that Machin- ists and Sheet Metal Workers are labor orgamza- tions withm the meaning of Section 2(5) of the Act II THE DISPUTE A Background and Facts of Dispute The Employer operates a plant in Westerville, Ohio, where its employees are represented by the Sheet Metal Workers It also operates a plant at 2400 Fairwood Avenue in Columbus, Ohio, ap- proximately 10 miles from the Westerville facility Employees at the Fairwood Avenue plant are rep- resented by the Machinists There are collective- bargaining agreements with the Unions that set forth the terms and conditions of employment at each of these facilities Because of its configuration and layout, the Em- ployer's Westerville plant is inefficient and not well suited as a production facility Its Fairwood Avenue plant, on the other hand, is underutilized and is better suited for manufactunng and produc- tion On or about May 1, 1989, 1 the Employer an- nounced a major reorganization that included, among other things, closing the Westerville plant and transferring operations from that facility to Fairwood Avenue The plan called for the Fair- wood Avenue plant to be divided by a chain link fence and curtain into two separate and independ- ent facilities The existing Fairwood Avenue oper- ations would occupy the eastern portion of the di- vided plant and would be assigned a new Refugee Road address The Refugee Road employees would contmue to be represented by the Machinists The western portion of the plant would be occupied by the relocated Westerville operations and would retain the Fairwood Avenue address The work force at the Fairwood Avenue side of the divided plant would continue to be represented by the Sheet Metal Workers The reorganization and transfer of work had not been implemented at the time of the hearing Included in the work at issue is production of units known as Fact-Air, Um-Rmg, and Die- Stamped Elbow These three production jobs are currently being performed at Fiurwood Avenue by employees represented by the Machinists, but his- torically had been performed at the Westerville plant by employees represented by the Sheet Metal Workers The chronology of the original transfer of the disputed work from Westerville to Fairwood Avenue is as follows In November 1986, the Em- ployer reassigned the Um-Ring production job from Westerville to the Fairwood Avenue plant In May 1988, the Fact-Air and Die-Stamped Elbow Unless otherwise indicated, all dates are in 1989 299 NLRB No 125 806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD production jobs similarly were reassigned from Westerville to Fairwood Avenue. Also at issue is distribution of a duct sealing product, which the Employer has for some years obtained from an outside manufacturer, the Frank- lin Glue Co., and distributed as a service to its cus- tomers. Originally the Employer handled the ship- ping and receiving, warehousing, and distribution of duct sealant at its Westerville plant, using em- ployees represented by the Sheet Metal Workers. At some point Franklin Glue undertook the re- sponsibility to supply and distribute duct sealant to Employer's customers from its own facilities. How- ever, approximately 1 to 2 years prior to the hear- ing, Franklin Glue discontinued distribution of duct sealant. The Employer reestablished its own duct sealant distribution service, this time at the Fair- wood Avenue plant where the work has been per- formed by employees represented by the Machin- ists. As part of its reorganization, the Employer in- tends to transfer all equipment used in the Wester- ville plant to produce the Fact-Air, Uni-Ring, and Die-Stamped Elbow to the western side of the Fairwood Avenue plant and to reassign the work to employees represented by the Sheet Metal Workers. It further proposes to transfer duct seal- ant shipping and receiving to the western side of the Fairwood plant. With the possible exception of one duct sealant distribution position, the Employ- er anticipates there will be no reduction in jobs on either side of the plant because of the reorganization.At a meeting held about May 8, fol- lowing the reorganization announcement by Em- ployer-Owner John McGill, representatives of the Machinists protested the Employer's intent to reas- sign the Fact-Air, Uni-Ring, and Die-Stamped Elbow work to employees represented by the Sheet Metal Workers and stated that the Machin- ists would take action to preserve the work for em- ployees it represented. Since then the Machinists have filed several grievances over the planned reas- signment of work, all of which the Employer has denied, asserting that the matter is a jurisdictional dispute between the Sheet Metal Workers and Ma- chinists and is not grievable.2 On November 7, the Employer met with Ma- chinist's business representative Robert Leavey, to negotiate the proposed transfer of the Fact-Air, Uni-Ring, and Die-Stamped Elbow jobs. Leavey asserted that pursuant to its certification as bargain- 2 In addition, the Machinists filed unfair labor practice charges in Cases 9-CA-26650 and 9-CA-27078, alleging that Respondent violated Sec 8(a)(1) and (5) of the Act by refusing to process the gnevances The Regional Director for Region 9 dismissed the unfair labor practice charges. ing representative of the Employer's employees at 2400 Fairwood Avenue, Machinists had representa- tion rights for any expansion of operations at the plant. In addition, the Machinists raised for the first time the issue of the duct sealant shipping and dis- tribution work, which the Employer proposed to reassign to employees represented by the Sheet Metal Workers. The Machinists did not agree to reassignment of any of the four jobs. In response to a remark by Plant Manager Nolan at the end of the meeting that the issue regarding transfer of the dis- puted work had been resolved, Leavey stated that it was "not over" as far as he was concerned, and that as long as he had legal rights, he would not give up. By letter dated December 21, Sheet Metal Work- ers' Business Manager/Financial Secretary-Treasur- er, Gary R. Paxton, advised the Employer's man- ager of operations, Paul Bullock, of the Sheet Metal Workers' position that the disputed work was covered by the terms and conditions of its contract with the Employer and historically had been performed by Sheet Metal Workers-represent- ed employees. Paxton further stated that if the work was not assigned to, and performed by, em- ployees represented by the Sheet Metal Workers, in all likelihood the Union would be forced to picket to assert and protect its rights. B. Work in Dispute The work in dispute involves Fact-Air, Uni- Ring, and Die-Stamped Elbow production jobs and the duct sealant supply and distribution operation at the Employer's Fairwood Avenue plant, Colum- bus, Ohio.3 C. Contentions of the Parties The Employer asserts there is reasonable cause to believe that both Machinists and Sheet Metal Workers violated Section 8(b)(4)(D) of the Act. The Employer and the Sheet Metal Workers con- tend that a means does not exist for voluntary ad- justment of this jurisdictional dispute. In their posthearing briefs, the Employer and the Sheet Metal Workers claim that the work in dispute con- sists of the manufacture of duct and fitting prod- ucts and the distribution of duct sealant, work ex- pressly covered by their collective-bargaining agreement. Further, they assert that duct and fit- tings jobs are building trades work, which is ex- pressly excluded from the collective-bargaining agreement between the Employer and the Machin- According to the Employer's testimony, it planned to transfer the duct sealer distnbution work back to the Franklin Glue Company in March 1990 MACHINISTS DISTRICT 28 (UNITED MCGILL CORP.) 807 ists. The Employer and Sheet Metal Workers assert that, based on the bargaining agreements, employer preference, past practice, area and industry prac- tice, relative skills and training, and economy and efficiency of operations, the work in dispute should be awarded to employees represented by the Sheet Metal Workers. The Machinists did not file a posthearing brief. At the hearing, Machinists' business representative, Leavey, testified he was uncertain whether Ma- chinists were bound by procedures of the National Joint Board for the Settlement of Jurisdictional Disputes. Grand Lodge Representative Forgione, who appeared at the hearing for the Machinists, contended that employees represented by the Ma- chinists have been performing the work in dispute satisfactorily for at least the last 4 years; that the bargaining agreement between Machinists and the Employer covers the Fairwood Avenue plant and contains a job classification for Uni-Ring Fabrica- tor and, thus, contractually employees represented by the Machinists have the right to the disputed work; and that reassignment of the work to em- ployees represented by the Sheet Metal Workers would undermine the collective-bargaining rela- tionship between the Machinists and the Employer. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k), 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 on a method for voluntary adjustment of the dispute. We find, based on the Sheet Metal Workers' De- cember 21 letter to the Employer threatening to engage in picketing if the Employer does not assign the work in dispute to employees represent- ed by the Sheet Metal Workers, that reasonable cause exists to believe that Sheet Metal Workers has violated Section 8(b)(4)(D) of the Act.4 The Employer and Sheet Metal Workers assert that no means exists for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Even assuming that the Machinists are subject to the procedures of the National Joint Board for the Settlement of Jurisdictional Disputes, it is clear from the record that the Employer and the Sheet Metal Workers are not bound. To consti- tute an agreed-on method for settlement, a proce- 4 Because of this finding we do not decide whether Machinists' May 8 oral protest over the Employer's plan to reassign the work and Novem- ber 7 assertions that the dispute was not over and that as long as Machin- ists had legal nghts It would not give up, communicated a threat of un- lawful conduct Nor need we rely on Machinists' filing of gnevances over the Employer's failure to apply its contract to all employees at its consolidated Fairfield Avenue facility dure must bind all parties to the dispute. 5 Accord- ingly, we conclude the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative 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 bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Certifications and collective-bargaining agreements Sheet Metal Workers has not been certified as the exclusive bargaining representative of the Em- ployer's employees currently at Westerville. It is, however, a party to a collective-bargaining agree- ment with the Employer. Article I of that agree- ment specifically covers the "manufacture of duct and fittings products." Article III reserves the work described in article I exclusively to "Journey- men, Apprentice, Pre-apprentice and Industrial Sheet Metal Workers." Machinists was certified as the representative of employees at Fairwood Avenue in 1978, and it also is party with the Em- ployer to a collective-bargaining agreement cover- ing at section 2.1 a unit of production and mainte- nance employees. The unit expressly excludes building tradesmen and apprentices. The agreement further provides at section 1.4.1, Scope, that "[T]his agreement applies only to the Company's Colum- bus Plant located at 2400 Fairwood Avenue, Co- lumbus, Ohio and any expansion of that plant." Neither of the two collective-bargaining agree- ments specifically assigns the production of Fact- Air, Uni-Ring, and Die-Stamped Elbow or the duct sealer distribution work to employees represented by either Union. The collective-bargaining agree- ment with Machinists includes at section 3.26 a job classification "Uni-Ring Fabricator 3." That provi- sion is not a contractual assignment of work; rather, the job classification describes the pay scale and kind of work that would be performed by em- ployees in the classification if Uni-Ring fabrication work were assigned. 5 Teamsters Local 952 (Westside Material), 275 NLRB 1001, 1004 (1985) 808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD There is evidence that the manufacture of Fact- Air, Um-Ring, and Die-Stamped Elbow has at least some attributes of production work and is, thus, ar- guably covered by the Machinists' bargaining agreement The Sheet Metal Workers' agreement expressly covers duct and fitting work, however, and all parties admitted that Fact-Air, Um-Ring, and Die-Stamped Elbow production is duct and fit- ting work Accordingly, based on the clear and un- equivocal contract language in the Sheet Metal Workers' agreement, we conclude that this factor favors award of the work in dispute to employees represented by the Sheet Metal Workers A differ- ent conclusion is not warranted by Machinists' as- sertion that, because section 1 4 1 of their agree- ment extends coverage to expansions of the Fair- wood Avenue plant, the disputed work belongs to employees it represents when the proposed reorga- nization and relocation of Westerville operations to Fairwood Avenue is implemented There is no evi- dence that the physical division of the Fairwood plant and continuation at that location of the two separate, independent, and preexisting operations were within the contemplation of the parties when the Employer and Machinists negotiated and signed their bargaining agreement 2 Company preference and past practice The Employer prefers that the work in dispute be performed by employees represented by the Sheet Metal Workers The disputed work histori- cally had been performed by those employees, most recently at the Westerville plant The evi- dence shows that between 1986 and 1988, while the Employer was examining alternatives to perform- ing the work at its aging and inefficient Westerville plant, it shifted the disputed work to its physically superior Fairwood Avenue plant, where the work is currently being performed by employees repre- sented by the Machinists The evidence shows, however, that the Employer continued to consider the Fact-Air, Urn-Ring, and Die-Stamped Elbow production to be sheet metal work while it was being performed at Fairwood Avenue, and that it did not intend to reassign the work permanently to employees represented by Machinists This factor favors an award to employees represented by the Sheet Metal Workers 3 Area and industry practice Sheet Metal Workers adduced evidence that work similar or identical to the work in dispute is currently being performed by other employers in Ohio and by at least one out-of-state employer, who are signatory to collective-bargaining agree- ments with the Sheet Metal Workers No evidence was adduced to show that the disputed work is regularly performed at other employers' premises by Machinists or to otherwise contradict the area practice described This factor, therefore, favors awarding the disputed work to the Employer's em- ployees represented by the Sheet Metal Workers 4 Relative skills and training The evidence shows that sheet metal workers complete an apprenticeship program that routinely trains individuals in the operation of machinery and fabrication skills required to perform the disputed work Because the necessary skills are common among sheet metal workers, performance of the disputed work would require no additional training or instruction There is, however, also evidence that machinists currently employed by the Employ- er were able to develop, and now possess, the nec- essary skills to perform the work in dispute and, in fact, have been competently performing the work for some time The evidence regarding relative skills and training is inconclusive and does not favor awarding the disputed work to either group of employees 5 Economy and efficiency of operations According to uncontroverted evidence, the Em- ployer proposed to reassign the disputed work to employees represented by the Sheet Metal Workers as part of a comprehensive plan to "improve the health" of the Company The plan called for elimi- nation of the inefficient Westerville plant and con- tinuation of work, which primarily involves sheet metal processing, in one independent and more effi- cient operation in one area of the Fairwood Avenue plant, with production of heavy gauge steel products to continue in an entirely separate operation in another area at the same location Al- though the disputed work has been assigned to em- ployees represented by Machinists, it has been nec- essary to dedicate certain production machinery almost solely to production of the disputed items The use of this dedicated machinery for the disput- ed work and some incidental work associated with heavy steel production averaged no more than 1 hour per day Transfer of the disputed-work and of the associated machinery to the sheet metal—oper- ation would enable its more frequent and intensive use across the spectrum of the Employer's sheet metal production activities We conclude from the foregoing that this factor favors assignment of the work in dispute to employees represented by the Sheet Metal Workers MACHINISTS DISTRICT 28 (UNITED MCGILL CORP ) 809 Conclusions After considenng all the relevant factors, we conclude that employees represented by Local 24, Sheet Metal Workers International Association, are entitled to perform the work in dispute We reach this conclusion relying on the certification and col- lective-bargaining agreements, company preference and past practice, area and industry practice, and economy and efficiency of operations In making this determmation, we are awarding the work to employees represented by Local 24, Sheet Metal Workers International Association, not to that Union or its members The determination is limited to the controversy that gave nse to this proceed- ing DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute Employees of United McGill Corporation, repre- sented by Local 24, Sheet Metal Workers Interna- tional Association, are entitled to perform the Fact- Air, Um-Ring, and Die-Stamped Elbow production jobs and the duct sealer distribution operations at the Fairwood Avenue plant, Columbus, Ohio