Guards Union Local 79 (Ici Americas)

National Labor Relations Board - Board Decisions

Mar 23, 1990

297 N.L.R.B. 1021 (N.L.R.B. 1990)

GUARDS UNION LOCAL 79 (ICI AMERICAS) 1021
International Guards Union of America, Local 79
and ICI Americas, Inc. and International Chem-
ical Workers Union, Local 761, AFL-CIO,
Party in Interest. Case 9-CD-452
March 23, 1990
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
The charge in this Section 10(k) proceeding was
filed September 7, 1989, by the Employer, ICI
Americas, Inc , alleging that the Respondent, Inter-
national Guards Union of America, Local 79, vio-
lated Section 8(b)(4)(D) of the National Labor Re-
lations Act by engaging in proscribed activity with
an object of forcing the Employer to assign certain
work to employees it represents rather than to em-
ployees represented by International Chemical
Workers Union, Local 761, AFL-CIO The hear-
ing was held September 29, 1989, before Heanng
Officer Eric A Taylor
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, a Delaware corporation author-
ized and admitted to do business in the State of In-
diana, is engaged in the assembling and packing of
ammunition charges at the facility it operates locat-
ed at the Indiana Army Ammunition Plant in
Charlestown, Indiana During the 12-month period
ending September 29, 1989, the Employer provided
services and materials in excess of $50,000, which
were shipped from the facility operated by the Em-
ployer directly to enterprises located outside the
State of Indiana 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 Guards Local 79, and Chemical
Workers Local 761 are labor organizations within
the meaning of Section 2(5) of the Act
II THE DISPUTE
A Background and Facts of the Dispute
The Employer operates the Indiana Army Am-
munition Plant in Charlestown, Indiana The plant
is a 10,000-acre Government reservation, which
contains approximately 1500 buildings, surrounded
by approximately 35 miles of perimeter fence The
Employer is under contract with the United States
Army to manufacture bags for ammunition
charges, assemble and pack the charges, store the
charges, and ship the charges to customers, primar-
ily the United States Army Office clerical employ-
ees employed by the Employer are represented for
the purposes of collective bargaining by Chemical
Workers Local 761 Guards employed by the Em-
ployer are represented by Guards Local 79
Prior to September 1989, the position of recep-
tionist at building 703 (the main administration
building) was a nonbargaming unit position The
receptionist was located in the lobby of building
703 and reported to supervisors in the Employer's
industrial relations department The receptionist's
duties consisted of the following receiving and
greeting visitors and directing them to their desti-
nations, issuing temporary passes to visitors, sub-
contractors, and others, monitoring employee iden-
tification badges, "opening and closing" the lobby
each day, issuing temporary vehicle passes, supply-
ing information to the public regarding the Compa-
ny, products, plant, and personnel, and performing
general typing and clerical duties
Prior to September 1989, the switchboard opera-
tor position (which was also called the telephone
operator position) was held by an employee repre-
sented by Chemical Workers Local 761 The
switchboard operator's duties consisted of the fol-
lowing answering all incoming and outgoing calls,
monitoring and printing out lists of telephone calls,
using the personal computer, printer, and "micro-
buffer" to perform related tasks, receiving and re-
porting weather reports to appropriate officials,
and performing related and miscellaneous duties
In November 1987 the employee filling the re-
ceptionist position voluntarily terminated her em-
ployment The Employer elected not to permanent-
ly fill the position because it anticipated a reduc-
tion in personnel Between November 1987 and
March 1989, the receptionist position was tempo-
rarily filled by a nonumt clerical employee from
the industrial relations department
As part of an overall reduction of employees
about March 1989, the Employer eliminated seven
or eight positions in the industrial relations depart-
ment One of the employees laid off was the indi-
vidual who had been assigned to temporarily fill
the receptionist position Thereafter, between
March and September 1989, the receptionist posi-
tion was filled by using off-duty guards, who were
paid substantial overtime
As a result of the personnel reduction, effective
about September 1989 the Employer combined the
receptionist position with the switchboard operator
297 NLRB No 161
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
position The "new receptionist/switchboard op
erator position was physically located in the lobby
of building 703, in the same area previously occu
pied by the receptionist The receptionist!-
switchboard operator's duties included all the
duties previously performed by both the switch
board operator and the receptionist, with the ex-
ception of certain duties that were transferred to
guards'
The Employer treated the newly created
receptionist/switchboard operator position as being
included in the unit represented by Chemical
Workers Local 761 Representatives of Guards
Local 79 opposed the Employer's decision to
assign an employee represented by Chemical
Workers Local 761 to the position During an
August 25, 1989 meeting between representatives
of the Employer and the Unions, the business rep-
resentative of Guards Local 79, Goodale, stated
that Guards Local 79 "would do everything within
their power and go through the process to have
this changed and that [it] would strike over this
issue "
In September 1989 the Employer posted a notice
of job vacancy for the "receptionist" position, pur-
suant to its collective bargaining agreement with
Chemical Workers Local 761 On September 12,
1989, the position was awarded to the former
switchboard operator, an employee represented by
Chemical Workers Local 761
B Work in Dispute
The work in dispute consists of the receptionist
and switchboard operator duties performed at
building 703, Indiana Army Ammunition Plant,
Charlestown, Indiana
C Contentions of the Parties
Guards Local 79 contends that this is a junsdic
tional dispute within the meaning of Section 10(k)
of the Act Guards Local 79 submits that the work
in dispute is, by virtue of the responsibilities associ
ated with that position, a "guard" position under
the Act and that the work should therefore be
awarded to employees it represents based on the
factors of certifications and collective bargaining
agreements, relative skills, and economy and effi
ciency of operations
The Employer also asserts that this is a junsdic
tional dispute within the meaning of the Act The
Employer contends that the work in dispute—work
it characterizes as office clerical work—should be
'After September 1989 in addition to the duties they performed prey,
ously guards were also responsible for opening and closing the lobby in
the morning and at night issuing and controlling subcontractor passes
and issuing and controlling temporary vehicle passes
awarded to employees represented by Chemical
Workers Local 761 based on the factors of certifi
cations and collective bargaining agreements, com-
pany preference and past practice, and economy
and efficiency of operations 2
Chemical Workers Local 761 participated at the
hearing in this case, but did not file a brief or state
ment of position with the Board
D Applicability of the Statute
Before the Board may proceed with a determina-
tion 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 and that the parties have not agreed on a
method for the voluntary adjustment of the dis-
pute
It is undisputed that on August 25, 1989, repre-
sentatives of Guards Local 79 threatened to strike
against the Employer if the newly created
receptionist/switchboard operator position was not
assigned to employees it represents, rather than to
employees represented by Chemical Workers Local
761 There is no contention or evidence that the
parties are bound by a dispute resolution procedure
applicable to this dispute
We therefore find reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred
and that there exists no agreed method for the vol-
untary adjustment of the dispute within the mean-
ing of Section 10(k) of the Act Accordingly, we
find that the dispute is properly before the Board
for determination
E Ments of the Dispute
Section 10(k) requires the Board to make an af-
firmative award of disputed work after considering
vanous factors NLRB v Electrical Workers IBEW
Local 1212 (Columbia Broadcasting), 364 U S 573
(1961) The Board has held that its determination in
a junsdictional dispute is an act of judgment based
on common sense and expenence, 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 the dispute
2 In light of our disposition here we find It unnecessary to consider
whether as the Employer contends the factor of community of Inter
eat favors an award of the work in dispute to employees represented by
Chemical Workers Local 761
GUARDS UNION LOCAL 79 (ICI AMERICAS) 1023
1 Certifications and collective-bargaining
agreements
The evidence reveals that about February 18,
1966, in Case 9-RC-6626, Chemical Workers Local
761 was certified as the collective-bargaining repre-
sentative of the employees in the following unit
All office clerical employees, including all
telephone and teletype operators and account-
ants, but excluding purchasing buyers, clerk
expediter, draftsmen, all industrial relations
personnel, safety inspectors, secretary to Resi-
dent Manager and secretaries to all directors,
confidential employees, and all guards, profes-
sional employees and supervisors as defined in
the Act
The collective-bargaining agreement between the
Employer and . Chemical Workers Local 761,
which is effective for the period November 10,
1988, through November 9, 1990, incorporates by
reference the certification in Case 9-RC-6626
The evidence further reveals that about October
29, 1964, in Case 9-RC-6064, International Guards
Union of America was certified as the collective-
bargaining representative of the employees in the
following unit
All Firefighter-Guards and all Fire Guard Ma-
trons employed by the employer, at the Indi-
ana Army Ammunition Plant, a government
owned contractor operated plant located at
Charlestown, Indiana, and excluding all office
clencal employees, professional employees and
all lieutenants, and all other supervisors as de-
fined in the [A]ct and all other employees
The collective-bargaining agreement between the
Employer and Guards Local 79, which is effective
for the period January 4, 1987, through January 3,
1990, incorporates by reference the certification in
Case 9-RC-6064 3
Guards Local 79 contends that the work per-
formed by the receptionist/switchboard operator is
"guard work" and that Board precedent indicates
that "guard work" should be awarded to a unit
represented by a guard union 4 The Employer con-
tends that the switchboard operator functions are
within the scope of the office clerical unit repre-
sented by Chemical Workers Local 761 and the re-
maining duties are not within the scope of either
unit
'The evidence indicates that the employee classifications of Firefight-
er-Guards and Fire Guard Matrons are now collectively referred to as
"guards
4 See Guards Local 1 (Stevedoring Services), 279 NLRB 1295 (1986), and
Longshoremen ILA Local 1332 (Philadelphia Marine), 215 NLRB 801, 804
(1974)
We find that the factor of certifications and col-
lective-bargaining agreements tends to favor an
award of the work in dispute to employees repre-
sented by Chemical Workers Local 761 Contrary
to Guards Local 79's contention, we find that the
receptionist/switchboard operator does not per-
form significant guard duties or functions Thus,
unlike guards, the receptionist/switchboard opera-
tor does not wear a uniform, carry a gun, or re-
ceive any specialized training Although the
receptionist/switchboard operator is responsible for
admitting visitors and employees to the facility
during the normal course of the day, these func-
tions are merely incidental to the remaining duties
performed by the receptionist/switchboard opera-
tor A uniformed guard is stationed in the lobby of
building 703 during the normal employee starting
and quitting times in order to check employee
badges Furthermore, if a package must be inspect-
ed or a problem arises in the lobby, the reception-
ist/switchboard operator contacts a guard Finally,
between 65 and 80 percent of the work performed
by the receptionist/switchboard operator is work
previously performed by the switchboard operator,
a position encompassed within the office clerical
unit represented by Chemical Workers Local 761
We therefore find that the factor of certifications
and collective-bargaining agreements tends to favor
an award of the disputed work to employees repre-
sented by Chemical Workers Local 761
2 Employer preference and past practice
The Employer prefers to use employees repre-
sented by Chemical Workers Local 761 to perform
the work in dispute Prior to March 1989 the work
in dispute was performed either by employees rep-
resented by Chemical Workers Local 761, which
represented the employees in the unit that encom-
passed the switchboard operator position, or by
employees who were not represented by any labor
organization Between March and September 1989
the work in dispute was temporanly performed by
employees represented by Guards Local 79 We
therefore find that, on balance, the factors of em-
ployer preference and predominant past practice
favor an award of the disputed work to employees
represented by Chemical Workers Local 761
3 Gain or loss of work
The evidence reveals that if the disputed work
were awarded to employees represented by Guards
Local 79, an employee represented by Chemical
Workers Local 761 would be laid off and either
employees in the guard unit would have to perform
the disputed work or a new guard would have to
be hired by the Employer The evidence further re-
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
veals that if the work in dispute were awarded to
employees represented by Chemical Workers Local
761, no new clerical employees would be hired and
no guards would be laid off We therefore fmd that
the factor of gain or loss of work favors an award
of the disputed work to employees represented by
Chemical Workers Local 761 5
4 Relative skills and economy and efficiency
of operations
The evidence reveals that employees represented
by Guards Local 79 are responsible for answering
the telephone after 3 45 p m on weekdays and all
day on weekends, dunng which time the number
of telephone calls received at the Employer's facili-
ty is significantly less than during the normal busi-
ness day Additionally, between March and Sep-
tember 1989, employees represented by Guards
Local 79 were actually assigned to temporarily fill
the former receptionist position However, al-
though guards have access to a typewriter and are
allowed to type secunty reports, there is no evi-
dence that guards possess significant typing skills
or that they are called on to perform clerical duties
similar to those performed by the receptiomst/-
switchboard operator Finally, there is no evidence
that guards have had any experience or training in
operating the personal computer, printer, or micro-
buffer, operations that the receptionist/switchboard
operator represented by Chemical Workers Local
761 performs
We therefore conclude that the factors of rela
tive skills and economy and efficiency of oper-
ations tend to favor an award of the disputed work
5 Member Cracraft does not rely on this factor in determining the
merits of the dispute See Carpenters (Tom Matick dl Sons) 293 NLRB
1224 1226 fn 6 (1989)
to employees represented by Chemical Workers
Local 761
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Chemical
Workers Local 761 are entitled to perform the
work in the dispute We reach this conclusion rely
mg on the factors of certifications and collective-
bargaining agreements, employer preference and
past practice, gam or loss of work, and relative
skills and economy and efficiency of operations
In makmg this determination, we are awarding
the work to employees represented by Chemical
Workers Local 761 not to that Umon or its mem
bers The determination is limited to the controver-
sy that gave nse to this proceedmg
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute
1 Employees of ICI Americas, Inc represented
by International Chemical Workers, Local 761,
AFL-CIO are entitled to perform the reception-
ist/switchboard operator work at building 703, In-
diana Army Ammunition Plant, Charlestown, Indi-
ana
2 International Guards Union of America, Local
79 is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force ICI Americas, Inc
to assign the disputed work to employees repre
sented by it
3 Within 10 days from this date, International
Guards Union of America, Local 79 shall notify
the Regional Director for Region 9 in writing
whether it will refrain from forcing the Employer,
by means proscribed by Section 8(b)(4)(D), to
assign the disputed work in a manner inconsistent
with this determination