Boilermakers, Lodge No. 1509

National Labor Relations Board - Board Decisions

Dec 7, 1970

187 N.L.R.B. 11 (N.L.R.B. 1970)

BOILERMAKERS, LODGE NO. 1509
International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths , Forgers and Helpers
(AFL-CIO), Lodge No. 1509 and Ladish Co. and
International Association of Machinists and Aeros-
pace Workers, AFL-CIO, District No. 10, Victory
Lodge No. 1862 . Case 30-CD-23
December 7, 1970
DECISION AND DETERMINATION OF
DISPUTE
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , following
a charge filed by Ladish Co.,' alleging that Interna-
tional Brotherhood of Boilermakers , Iron Ship Build-
ers, Blacksmiths , Forgers and Helpers (AFL-CIO),
Lodge No . 1509, violated Section 8(b)(4)(D) of the
Act. A duly scheduled hearing was held before
Hearing Officer Alex V. Barbour of the National
Labor Relations Board on July 21 and 22 , 1970. All
parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to adduce
evidence bearing upon the issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings made by the
Hearing Officer at the hearing and finds that they are
free from prejudicial error . They are hereby affirmed.
Briefs filed by Ladish Co. and International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, District No. 10, Victory Lodge No. 1862,
have been duly considered.
Upon the entire record in this case , the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer is a Wisconsin corporation engaged
at Cudahy, Wisconsin, in the manufacture of forgings
and fittings. During the past year, a representative
period, the Employer purchased and received from
directly outside the State of Wisconsin goods and
materials valued in excess of $50,000. The parties
stipulated, and 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 policies of
the Act to assert jurisdiction herein.
1 Herein called Ladish
s Herein called Blacksmiths
II. THE LABOR ORGANIZATION INVOLVED
11
The parties stipulated , and we find , that the
International Brotherhood of Boilermakers , Iron Ship
Builders , Blacksmiths , Forgers and Helpers
(AFL-CIO), Lodge No. 1509,2 and the International
Association of Machinists and Aerospace Workers,
AFL-CIO, District No. 10, Victory Lodge No. 1862,3
are labor organizations within the meaning of Section
2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The dispute involves the operation of furnaces in
the welding department for the preheating and
postheating of dies, toolings, and other materials
associated with the welding process. The charge filed
by Ladish alleges, inter alia, that the Blacksmiths,
acting through its bargaining committee and its
International representative, David George, had
threatened to "shut down the place" (i.e., strike) if
Ladish continued to permit the welding department
employees represented by the Machinists to operate
the furnaces.
The record reveals that Ladish utilizes at least two
types of furnaces in its operations. The first type of
furnace is used in the "heat treatment" of metals in
which the metals are treated at varying degrees of
temperature to produce the desired degree of hard-
ness or strength in the metals. These furnaces are
operated by employees represented by the Black-
smiths. The second type of furnace is used to preheat
metal dies or forgings so that welding may be done on
them and to postheat the welded material to complete
the welding process. It is the operation of this latter
type furnace which is the subject matter of this case
and, as will appear below, it is now, and has
historically been, operated by employees represented
by the Machinists. The heat treatment and welding
furnaces are located in different areas of Ladish's
plant and, except as noted below, are not used
interchangeably to perform each other's functions.
Furnaces to be used in welding operations were
installed sometime in the early part of the 1940's. The
Blacksmiths was certified for a unit of employees
about the same time. Originally, the Machinists had
won bargaining rights for the employees in the heat
treatment department, but shortly after the certifica-
tion was issued jurisdiction over the heat treatment
department employees was transferred from the
Machinists to the Blacksmiths by agreement of the
two unions and Ladish.
Since that time the welding furnaces have been
3 Herein called Machinists
187 NLRB No. 1
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operated by employees represented by the Machin-
ists. In 1959 Ladish and the Blacksmiths reached an
agreement defining the jurisdiction of the Black-
smiths, designated as a "Memorandum of Under-
standing ," which was to be incorporated in the
collective -bargaining contracts between Ladish and
the Blacksmiths . As incorporated in the current
contract the memorandum states in pertinent part:
JURISDICTION
108. The purpose of this memo of understanding
is to spell out the work presently and historically
performed by employees of the departments of the
Company designated in our Recognition clause.
This memo is to serve the purpose of defining
present work and operations which Blacksmiths
employees presently perform and is not intended
to extend or add to duties which they presently
and normally perform.
In defining the jurisdiction of the heat treating
department the same contract states:
140. The jurisdiction of the Heat Treating
Department is over operations listed and defined
as follows:
a. Heat Treating-The altering of the physical
properties of the metals of dies, tools, cutters,
machine parts and products of the Company to
produce a specified degree of hardness , toughness
or strength by the process of controlled heating
and cooling.
In 1966 the Blacksmiths filed a grievance regarding
the use of a furnace by the welding department "to
stress dies that are welded ." The grievance was settled
in 1967 by awarding operations of the furnace to the
Machinists . After conceding that "critical deep
welding" would continue to be done by the Black-
smiths in accordance with historic practice, the
Minutes of Agenda settling the grievance stated:
By continuing to assign the pre -heating and
stress relieving of dies requiring shallow welds to
Welding Dept ., Co. is consistent w/historic prac-
tice and is not in conflict w/jurisdictional memo in
our current labor agreement for fol . reason.
Jurisdictional memo preface states memo is
intended "to spell out the work presently and
historically performed by employees of the depart-
ments of the Company . .. ." represented by
Blks. Union . Memo also is intended "not to extend
or to add to duties which they (Blacksmiths)
presently and normally perform." The memo is
also intended to differentiate between "the pres-
ent, normal job assignment of employees of
Blacksmiths Union and those other employees of
the Company."
Original jurisdictional memo was entered into
between Co. and Union 1/ 14/59. The pre- heating
and stress relieving of dies by Welding Depart-
ment was in existence since at least 1957. There-
fore , since the pre-heating and normalizing of dies
incidental to welding was not a normal function
performed by Blks. as of 1/14/59, under the terms
of the above jurisdictional memo of understand-
ing, it shall continue to be performed by Welding
Department employees represented by the IAM.
On March 3, 1970, the Blacksmiths again filed a
grievance regarding the operation of the welding
furnaces by employees represented by the Machinists.
The Blacksmiths demanded that the work of tending
the furnaces used for preheating dies of all sizes,
shapes, and weights be assigned to the heat treating
department whose employees are represented by the
Blacksmiths . At a meeting of representatives of
Ladish and the Blacksmiths on May 14, 1970, the
Blacksmiths stated it would take whatever action was
necessary to protect its jurisdiction , including, if
necessary , shutting down the plant . On May 25, 1970,
Ladish filed the charge adverted to above , alleging a
violation of Section 8(b)(4)(D).
B. The Work in Dispute
This proceeding pertains to the assignment of the
work involved in operating the furnaces utilized by
the welders in preheating dies and other materials
preparatory to making a weld and postheating such
dies and other materials after the weld has been made
to complete the welding process.
C. The Contentions of the Parties
The Employer , Ladish , and the Machinists main-
tain that the work should continue to be performed by
the present group of employees, the welders , who are
represented by the Machinists . Ladish and the
Machinists contend that the welders have performed
their work for many years ; that the work is an integral
part of the welding process in which the welders are
engaged ; that the memorandum of understanding
regarding the Blacksmiths jurisdiction entered into in
1959 and the collective -bargaining contracts subse-
quently entered into which incorporated the memo-
randum should be interpreted as having assigned the
work to the welders; and that the resolution of the
grievance in 1967 also shows that the parties intended
that the welders should perform the work. Finally, the
Employer contends that economy and efficiency of
operation require that the work be assigned to the
welders.
BOILERMAKERS , LODGE NO 1509 13
The Blacksmiths appears to rely primarily upon the
provision of the contract set forth above delineating
the jurisdiction of the heat treating department. Since
the heating of metals always results in the generation
and relief of stresses the Blacksmiths contends that
the heating of metals in a furnace falls within the
limits of its jurisdiction as set forth in the contract.4
D. Applicability of the Statute
Before the Board may proceed with a determination
of the 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.
At the hearing the parties stipulated that the
Blacksmiths had threatened to close down the
Employer's plant if its demand for the work here in
issue was not met. We therefore find that reasonable
cause exists, and that the dispute 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 clue consideration to all relevant factors. In
International Association of Machinists, Lodge No.
1743 (J. A. Jones Construction Co.),5 the Board set
forth the following criteria to be considered in the
making of an affirmative award in a 10(k) proceeding:
The Board will consider all relevant factors in
determining who is entitled to the work in dispute,
e.g., the skills and work involved , certifications by
the Board , company and industry practice , agree-
ments between unions and between employers and
unions, awards of arbitrators , joint boards , and the
AFL-CIO in the same or related cases, the
assignment made by the employer, and the
efficient operation of the employer's business.
Among the factors referred to above are some which
are of little or no use in resolving the present dispute.
Thus it would appear that both the welders and the
blacksmiths are capable of operating the welding
furnaces . The certifications mentioned above have
been modified by agreement of the parties and are no
longer of value in determining the dispute . There are
no awards of joint boards or arbitrators that would be
of assistance and the parties have agreed that there is
no industry practice which would have a bearing upon
the issue before the Board. We therefore set forth
below those other factors which we find relevant in
determining this dispute.
4 To the extent that the Blacksmiths contended at the hearing that it
was entitled to the work of doing deep critical welds and the shrinking of
inserts , there would appear to be no issue since the Employer , Ladish, and
1. Company practice
As indicated above it has been the practice of the
Employer for at least 20 years to assign the work of
operating the furnaces used in connection with the
welding process to employees represented by the
Machinists. Such a longstanding practice is a factor
favorable to the continued performance of the work
by these employees.
2. Employer's preference
The fact that Ladish clearly prefers an award to its
employees represented by the Machinists is a factor
which supports the assignment of the work to such
employees.
3. Bargaining agreements
In asserting that it should represent the employees
operating the welding furnaces the Blacksmiths relies
primarily on its contract with Ladish. That contract,
more fully set forth above, in substance provides that
employees of the heat treating department, represent-
ed by the Blacksmiths, shall operate furnaces where
the objective is the altering of the physical properties
of a metal to produce a specified degree of hardness or
strength. The Blacksmiths contends that the physical
qualities of a metal are altered when placed in a
welding furnace and that the operation of the furnace
properly falls within its jurisdiction under the con-
tract.
The contract clause upon which the Blacksmiths
relies, however, is preceded by a preamble which, in
substance, makes it clear that the jurisdictional
clauses were not intended to expand the jurisdiction
of the Blacksmiths beyond that which obtained at the
time Ladish and the Blacksmiths reached a memoran-
dum of understanding regarding jurisdiction in 1959.
At that time the Machinists had operated the welding
furnaces for a number of years and it is thus clear that
the parties intended to confirm the right of the
Machinists to represent the employees operating the
welding furnaces. The incorporation of the memoran-
dum into the contract makes it equally clear that the
clause relied on by the Blacksmiths was not intended
to assign the performance of the work to employees
represented by that union.
The settlement of the grievance in involving this
work in 1967 confirms our opinion that the contract
was not intended to extend the jurisdiction of the
Blacksmiths to the operation of the welding furnaces.
That settlement, set forth in pertinent part above,
recognized that the memorandum of understanding
the Machinists both conceded that the Blacksmiths is entitled to perform
this work
5 135 NLRB 1401, 1410-11
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was intended to assign the work to employees
represented by the Machinists, and that these employ-
ees were to continue to perform the work of operating
the welding furnaces.
It is thus clear that the contract upon which the
Blacksmiths relies to support its claim to the disputed
work not only does not support the claim but, in fact,
shows that the parties to the contract intended that
the disputed work be assigned to employees repre-
sented by the Machinists. It is therefore a factor
supporting the assignment of the disputed work to the
Machinists.
CONCLUSION
On all the evidence, we conclude that employees of
Ladish represented by the Machinists, rather than
employees represented by the Blacksmiths, are
entitled to perform the work of operating the furnaces
in the welding department used for the preheating and
postheating of dies, toolings, and other materials in
association with the welding process at Ladish's plant
in Cudahy, Wisconsin. Company practice, the bar-
gaining history, and the Employer's preference favor
this result.
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 case,
the National Labor Relations Board hereby makes
the following Determination of Dispute.
1. Employees employed by Ladish Co. and repre-
sented by International Association of Mechinists
and Aerospace Workers , AFL-CIO, District No. 10,
Victory Lodge No. 1862, are entitled to perform the
disputed work of operating the furnaces in the
welding department used for the preheating and
postheating of dies , toolings , and other materials in
association with the welding process in the Employ-
er's plant at Cudahy, Wisconsin.
2. International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths , Forgers and Helpers
(AFL-CIO), Lodge No. 1509, is not entitled, by
means proscribed by Section 8(b)(4)(D) of the Act, to
force or require Ladish Co. to assign the disputed
work to employees who are represented by that labor
organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute , International Brother-
hood of Boilermakers , Iron Ship Builders , Black-
smiths , Forgers and Helpers (AFL-CIO), Lodge No.
1509, shall notify the Regional Director for Region
30, in writing , whether it will refrain from forcing or
requiring Ladish Co ., by means proscribed in Section
8(b)(4)(D), to assign the work in dispute to employees
represented by International Brotherhood of Boiler-
makers , Iron Ship Builders , Blacksmiths , Forgers and
Helpers (AFL-CIO), Lodge No. 1509, rather than to
employees represented by International Association
of Machinists and Aerospace Workers, AFL-CIO,
District No. 10, Victory Lodge No. 1862.