International Die Sinkers' ConferenceDownload PDFNational Labor Relations Board - Board DecisionsFeb 27, 1975216 N.L.R.B. 794 (N.L.R.B. 1975) Copy Citation 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Die Sinkers' Conference and Lehigh Valley Die Sinkers' Lodge No . 150 and Phoenix Forging Company, Division-Union Tank Car Company and International Brotherhood of Boiler- makers, Iron Ship Builders , Blacksmiths, Forgers, Helpers, Lodge No . 1506, AFL-CIO. Cases 4- CD-365 and 4-CD-366 February 27, 1975 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Phoenix Forging Company, Division-Union Tank Car Company, herein called the Employer, alleging that International Die Sink- ers' Conference and Lehigh Valley Die Sinkers' Lodge No. 150, herein collectively called the Die Sinkers, had violated Section 8(b)(4)(i) and (ii)(D) of the Act by engaging in certain conduct with an object of forcing or requiring the Employer to assign particular work to employees represented by the Die Sinkers rather than to employees represented by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, Helpers, Lodge No. 1506, AFL-CIO, herein called the Boilermakers. Pursuant to notice, a hearing was held before Hearing Officer James H. Stephens on October 9, 10, 29, 30, and 31, 1974. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence bearing on the issues . Thereafter, the Employer and the Die Sinkers filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three -member panel. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. The Board has considered the briefs and the entire record in this case and hereby makes the following findings: I. THE BUSINESS OF THE EMPLOYER The Phoenix Forging Company is a division of Union Tank Car Company, a Delaware corporation engaged in the manufacture of railway tank cars with its headquarters located in Chicago, Illinois. Phoenix Forging Company is located at Catasauqua, Pennsyl- 216 NLRB No. 139 vania, and is engaged in the manufacture of forged products. During the past 12 months, which is a representative period, Union Tank Car Company, by and through its Phoenix Forging Company Division, purchased goods valued in excess of $50,000 from persons located outside the Commonwealth of Pennsylvania, which goods were shipped directly in interstate commerce to Phoenix Forging Company. During this same period, the gross volume of sales by Union Tank Car Company, by and through its Phoenix Forging Company Division, was valued in excess of $1 million. Accordingly, we find that the Employer is an employer within the meaning of Section 2(2) of the Act and, in accordance with the stipulation of the parties, that it 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. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Interna- tional Die Sinkers' Conference, Lehigh Valley Die Sinkers' Lodge No. 150, and International Brother- hood of Boilermakers, Iron Ship Builders, Black- smiths, Forgers, Helpers, Lodge No. 1506, AFL- CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of. the Dispute The Employer manufactures its products primarily by means of a hot-forging operation . Of the employ- ees currently working at the Employer's facility, 135 are represented by the Boilermakers and perform production and maintenance work . The boilermakers perform all work on the hot -forging machines used to make forged products, excluding the dies. Other members of the unit perform repair and maintenance functions throughout the plant, including making parts for plant machinery , maintaining tooling, and sharpening tools . Most of the repair and mainte- nance work involves the use of grinders and polishers. In order to make a forged product (forging), a die must be made to conform to the specifications submitted by a customer . Hot-forging dies range in size from 10 inches by 12 inches to 22 inches by 18 inches and in weight from 200 to 500 pounds. A die consists of two parts, each of which forms one -half of the forging . Each die block contains a cavity which has the shape of the product sunk into the metal. The Employer obtains the necessary dies from either of two sources. Some dies are made in the Employer's die shop by employees represented by the Die INTERNATIONAL DIE SINKERS ' CONFERENCE Sinkers . However, approximately 80 to 90 percent of the hot-forging dies used by the Employer are manufactured outside the plant , because the Em- ployer lacks the capacity to make all the dies needed for its business. Once the die is made it is sent to the forge shop. The equipment into which the die is inserted is drop- forging equipment. Drop-forging is defined as hammering metal in a drophammer between dies. The hammer consists of a ram , which is the moving part of the hammer to which a die is attached, and a sowbed or sow block in the base of the hammer, which protects the entire structure of the hammer from shock and wear and also holds a die. The top die is inserted into the ram and the bottom die is placed in the sowbed. The metal to be forged is heated to forging temperature and placed on the bottom die. The ram drops down from the top of the hammer and repeatedly strikes the hot metal in the bottom die cavity. As the hammer strikes, the metal is gradually forged to conform to the configuration of the dies. Three employees in the Boilermakers unit are involved in • the manufacture of each hot forging. The heater is responsible for inserting the metal into the forging furnance , taking it out, and presenting it to the hammerman or forger, who then forges the parts. Each forging die has several impressions or stations, up to a maximum of four. The hammerman moves the hot material from one impression to another until the part is completed. From 5 to 25 blows of the hammer are necessary to form the finished product at each station. After the forging is formed, the trimmer man removes the excess material or "flash" from around the forging. The forging is then cooled, cleaned, and inspected before shipping. The repair and maintenance of hot-forging dies has traditionally been assigned to employees represented by Die Sinkers , numbering at present approximately 16. Repair and maintenance is generally done either at the beginning or end of a production shift, and entails bringing the die from the forge floor to the die shop. If a die is worn or needs repair, the hammer- man removes it from the hammer and takes it to the die shop. If the die must be reworked or resunk, the impression diesinkers will do the work . Most repairs are performed by die dressers, who spend all of their time on maintenance and repair . Most of the work involves grinding and polishing. If a die is broken, it may involve welding, which is performed by an employee represented by the Boilermakers. For several years, the Employer has been consider- ing the adoption of a method of producing forgings by cold forming or cold forging, which involves the shaping of parts at temperatures much lower than those required for hot forging. Upon the introduction 795 of this process into the plant in June 1974, the Employer assigned the work of operating and maintaining the cold-forming machine, known as a cold header, as well as the maintenance, repair, and modification of the cold-forming dies, to employees in the Boilermakers unit. The first step in the operation of the cold header is to set up the tooling and insert it into the machine, which is done by the operator of the machine. A coil of steel rod is placed on a supporting machine by a fork truck operator with the aid of the operator of the cold header. The operator straightens the end of the rod so that it can be inserted in feed rolls which draw the material through a second machine, the cold draw, which reduces the diameter of the rod. The rod enters the header in the first station and a certain length of wire is sheared off. The handling mecha- nism in the machine picks up the sheared section of rod and moves it automatically from station to station in the machine. There are six stations and five sets of dies. After the first, or cutting station, each station contains a set of dies. At each of these succeeding stations, various forming operations take place. Each stroke of the header produces a part which is completed for that station, unlike a hot-forging hammer, which requires many blows to form a finished part. Also unlike a hammer, which forges heated material by means of a vertical drop, the cold header is a press which operates horizontally under pressure; each station contains a fixed and a moving die which come together against the rod to form the part. The cold header operation also differs from hot forging in that: ( 1) it is automatic, whereas the hot forger is not; and (2) the cold header requires one operator, rather than the three workers required for the hot-forging operation. When the part comes out of the cold header, it must be threaded, which is done by the threader operator. The part is then cleaned, inspected, and shipped. Dies which are used in the cold-forming operation are purchased by the Employer from an outside manufacturer. A die for a cold header is approxi- mately 2 inches in diameter and 8 inches long and weighs 2 or 3 pounds. When fitted into its die case, the whole assembly weighs 40 pounds. The maintenance and repair of both the machine and the dies used in the cold-forming process are done by the operator and, temporarily, an assistant operator, both of whom are members of the Boilermakers unit. Repair and maintenance of the dies are usually of a minor nature and include grinding and polishing with tools and equipment located in the cold-forming department. Major repairs are done by the die manufacturer. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The repair and maintenance of the dies are closely related to the making of adjustments on the cold header. Adjustments to the machine are necessary to compensate for any repairs made on the dies and are made so that the dies will retain both their proper dimensions and their proper positions in the various stations of the cold header. In order to check the dies , the die case is removed and the components are inspected. If repair is needed, the operator performs the necessary grinding or polishing in the cold- forming department . After reinsertion in the ma- chine , the operator makes the necessary adjustments. Repairs can also be made while the die is still in the machine. Most repairs take very little time to perform. As the operator gains familiarity with the machine he is expected to be able to reduce to a minimum the number and extent of necessary adjustments. Prior to the time when plans were completed for the purchase of the cold-forming equipment, the cold-forming department was known as the experi- mental manufacturing department. Once the depart- ment was manned and equipped, it became known as the cold-forming department. The machinery con- sists of the cold header, a threader, and a cleaning machine. Also located in the department are the grinders and polishers used to repair the dies. The employees in the department are the operator, assistant operator, threading operator, and fork truck operator. Currently, the cold-forming department is in a preproduction stage , with only one type of forging being produced. The Employer is still in the process of developing tooling and dies to manufacture the part. Changes and modifications in the tooling are made during this stage by the operator and assistant operator. When the department is in full production, the Employer anticipates working two shifts, with the present assistant operator working the second shift. B. Work in Dispute The parties stipulated that the work in dispute is the repair, maintenance , and modification of cold- forging dies and other tooling used in both prepro- duction and full production of the Employer's cold header equipment. The work of operating the cold header and the various auxiliary machines other than repair machinery in the cold-forming department and of repair and maintenance of those machines is not in dispute. C. Contentions of the Parties The Employer has assigned the work in dispute to employees represented by the Boilermakers, claiming that the factors of economy, efficiency, and relative skills of the respective employees, and industry practice support the assignment. In addition, the Employer contends that a memorandum of agree- ment between it and the Boilermakers, which was executed in contemplation of the introduction of the cold-forming department, and which extends the provisions of the Boilermakers ' Basic Agreement with the Employer to the new department, clearly contemplates that the disputed work shall be per- formed by members of the Boilermakers unit. In addition, the Employer is satisfied with the results of the assignment. The Boilermakers agrees with the assignment, citing its skills in performing maintenance and repair work on other machines in the plant, and the fact that there is a close relationship between the repair and maintenance of cold-forming dies and the balance of the work performed by the cold-former operator while operating the cold header. The Die Sinkers claims that the work should be assigned to its members . It claims that the repair and maintenance of dies is covered by a certification of the Board issued in 1946 and by its present collective-bargaining agreement with the Employer. The Die Sinkers further claims that the practice of the Employer of assigning the repair and mainte- nance of hot-forging dies to members of the Die Sinkers unit supports its position and that, despite the fact that no one in its unit has ever performed work on a cold-forming die, its members are entitled to the work on the basis of their skills and training. The Die Sinkers further contends that most of the work now being performed by its members on hot- forging dies could be converted by the Employer to the cold-forging process, thereby eliminating most of the unit work now performed by its members, if the work in dispute is assigned to members of the Boilermakers unit. D. Applicability of the Statute Section 10(k) of the Act empowers the Board to determine a dispute out of which an 8(b)(4)(D) charge has arisen. However, before the Board proceeds with a determination of the dispute, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that there is no agreed-upon method, binding on all parties, for the voluntary adjustment of the dispute. On October 1, 1973, the Employer and the Boilermakers entered into a memorandum of agree- ment which contemplated that the work in dispute would be assigned to members of the Boilermakers unit. The memorandum did not contain any specific reference to the cold-forming process because the Employer wanted to keep this new development from INTERNATIONAL DIE SINKERS' CONFERENCE its competitors . Knowledge of the purchase of the new equipment was made public in a company newsletter published in December 1973. Informal discussions relating to the work assignment were subsequently held with the Die Sinkers. A meeting was held in February 1974 at which the Die Sinkers asserted jurisdiction over the disputed work. Shortly thereafter, the Die Sinkers filed a grievance with the Employer reiterating its claim to the work. At a meeting in April, the Die Sinkers representative informed the Employer that the Union would authorize a strike vote unless the Employer changed its position with respect to the disputed work. Subsequently, the Employer learned that a strike vote had indeed been taken, and that the local had voted in favor of a strike. In view of the conduct described above, we find that there is reasonable cause to believe that a violation of Section 8(b)(4)(i) and (ii)(D) has oc- curred. As there is no contention that an agreed- upon method for its voluntary adjustment exists, we find that the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute 1. Collective-bargaining contracts and certifications Under the terms of its collective-bargaining con- tract with the Boilermakers, the Employer recognizes the Boilermakers as the representative of the pro- duction and maintenance employees. The boilermak- ers perform all production work on the machines used to make hot forgings. In addition, the boiler- makers perform repair and maintenance work on various machines used throughout the plant. In anticipation of the purchase of the cold-forming equipment, the parties executed an amendment to the Boilermakers' Basic Agreement which covered the proposed experimental manufacturing depart- ment. By its terms, the memorandum of agreement extended the provisions of the Basic Agreement to the new department. While the* work of the new department was not specifically discussed during the negotiations or specifically mentioned in the agree- ment, it was understood by both parties that a new process was being introduced and that all phases of it would be under the jurisdiction of the Boilermakers. The Employer contends that, since the experimen- tal manufacturing department was set up according to the agreement between it and the Boilermakers, and since the cold-forming department is the successor to the experimental manufacturing depart- ment, there is a contractual foundation for the assignment of the disputed work to the boilermakers. The Employer also contends that the assignment has i 797 contractual support because the Boilermakers con- tract covers the production and maintenance work in the plant. Since the cold-forming process produces forged products, and since the employees represented by the Boilermakers have traditionally produced forging on the hot-forging machine, as well as performing maintenance functions, the Employer claims that the Boilermakers has jurisdiction of the work. The Die Sinkers bases its contractual claim to the disputed work on the union recognition clause of its agreement with the Employer. Under this provision, the Die Sinkers is recognized as representing employ- ees "performing work directly involved in the manufacture and maintenance of all necessary models, dies or parts of dies used in and for the production and completion of forgings." The Die Sinkers argues that the term "forgings" refers to cold forgings as well as hot forgings, and that, since members of its unit perform maintenance on dies used in the hot-forging process, its contract clearly covers the maintenance of cold-fornung dies. Die Sinkers further contends that cold forging is not a new process but has been in existence for approximately 30 years, and therefore the Employer must have been aware of this process when it originally negotiated the contract with the Die Sinkers. The Die Sinkers further bases its claim to the work on the certification of the Die Sinkers as the exclusive agent for "all employees working on dies and parts of dies in the manufacture and completion of forgings." The certification was issued by the Board in 1946. The Die Sinkers claims that, although the cold-forging machine differs slightly in operation from the hot-forging machine, the finished product is nonetheless a forging. It claims that the phrase "working on dies" includes repair and maintenance of dies used to manufacture a forging. Since the cold header does indeed produce a forging, the Die Sinkers argues that it should have jurisdiction over cold-forming dies. The Employer argues that the term "forgings" refers to hot forgings or the products of the Employer's drop-forging process. It does not include the products of the cold-forming process, which the Employer contends is an entirely different operation from that in which it has been traditionally engaged. The Employer bases this last contention on the fact that, in the 1946 Board certification, the Employer was referred to as a manufacturer of "drop forgings." Therefore, claims the Employer, all references to forgings are limited to hot forgings, and, since the work in dispute clearly contemplates equipment and an operation which were not in existence at the 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer's plant at the time of the certification, the certification does not cover the disputed work. We find that both Unions have legitimate contrac- tual claims to the work in dispute, and that the factors of contract and certification do not unequivo- cably favor an assignment to the employees in either unit over those in the other. 2. Area, craft, and industry practice Prior to investing in the cold-forming equipment, the Employer conducted a feasibility study to determine how the process was operated in the industry. The Employer investigated five plants at which the operator of the machine performs the maintenance work on the tooling. On the basis of the feasibility study and advice from the manufacturer of the cold header, the Employer determined that the work of maintaining the dies should be assigned to the cold-former operator. Since the Employer had also determined that the operator would be a production and maintenance employee, the work was assigned to a member of the Boilermakers unit. The Die Sinkers produced examples of forgings made from cold-forging dies. The dies were made by employees represented by the Die Sinkers at a plant visited by a Die Sinkers representative. There was no evidence that the die sinkers at this plant repaired, maintained, or modified the cold-forming dies. However, the manufacture of the dies is not in dispute. The evidence of industry practice favors an award of the disputed work to the operators of the machine, who are represented by the Boilermakers in the instant case. 3. Job impact The Die Sinkers contends that, if the disputed work is given to members of the Boilermakers unit, the job opportunities for its members will be diminished. It bases this contention on the possibility that perhaps 60 percent of the work now being done by the hot- forging method could be produced on the cold header. However, the Employer has no immediate plans for obtaining additional cold-forming equipment. In fact, the Employer is still in the "trial and error" stage of its cold-forming operations, and estimates that a period of 1 year will be required to gain familiarity with the machine and to produce cold forgings without interruption for repair and modifi- cation of the tooling. The plant is now operating at capacity in the hot- forging method. The Employer, at the time of the hearing, had the highest backlog of orders in its history and was turning business away because of lack of capacity. Diesinkers have been working much more overtime than boilermakers to complete their work. In addition, the Employer must subcontract the majority of its die manufacturing work because it lacks the personnel to make all the dies it needs inside the plant. The operation of the cold header has no effect on the diesinkers. At present, only one forging is being produced by cold forming, and the die for this product is manufactured by an outside company. The diesinkers have sufficient work to do on the manufacture, maintenance, and repair of hot-forging dies. To award them the disputed work would increase the backlog of orders and increase the amount of overtime they would be required to work. Should the Employer increase the number of cold forgings and convert them from hot-forging process to cold, the work opportunities for diesinkers would not diminish. More of the die manufacture, which is presently being subcontracted, could be performed at the Employer's plant. Indeed, this is a result which is virtually required by the agreement between the Employer and the Die Sinkers, as the Employer may not continue to subcontract work to the extent that diesinkers are working less than 40 hours per week. 4. Economy and efficiency The record contains much evidence as to the economy and efficiency gained by awarding the work in dispute to the members of the Boilermakers unit. The entire cold-forming process is a highly integrated procedure requiring the constant attention of the operator. The feasibility study conducted by the Employer revealed that the operator should perform all functions relating to the machine, including repair and maintenance of the dies, because of the high degree of integration of the process. The operator is responsible for the quality of the finished product, and thus must monitor the functioning of the machine. The operator is expected to detect malfunctions or breakages of the tooling and to take the appropriate corrective action. If repair or replacement is required, the machine must then be adjusted upon reinsertion of the die assembly to compensate for any repairs. If the diesinkers were to perform the repair and maintenance, the operator would disassemble the die assembly, a task not claimed by the diesinkers. The operator would then have to explain the malfunction to the diesinker. The diesinker would make the repairs and would then be required to explain to the operator what had been done to the die so that the operator could adjust the machine accordingly. The diesinker would wait for the reinsertion of the die and perform whatever grinding and polishing may be INTERNATIONAL DIE SINKERS' CONFERENCE required while the die is in the machine , allowing the operator to make further adjustments in accordance with any additional changes in the dies. There are several alternatives available to the Employer if the disputed work were awarded to the diesinkers. The Employer could station a diesinker at the cold header full time to do whatever repair work arose. According to the record, this proposal would result in 75 percent idle time for the diesinker and 25 percent idle time for the operator, because neither person would have any work to do while the other was performing his work. The Employer could arrange to have the diesinker notified at his work station in the die shop that repair work is needed in the cold-forming department. However , it is uncertain whether a diesinker would be immediately available because of his current workload. While the die can be removed from the machine during the time it takes for the diesinker to arrive at the cold-forming department, the operator must still take the time to instruct the diesinker as to the required repairs, and it might take longer to give these instructions to the diesinker than it would take for the operator to do the repairs himself. Further- more, the operator and the machine would be idle while the repairs are being made, and the diesinker's work in the die shop would remain undone. All the equipment needed to perform repairs on the cold-forming dies is located in the cold-forming department, which the Employer contends is the most convenient location. The Die Sinkers contends that its members could perform the repair work there, as discussed above, or the repair machinery could be moved to the die shop. In the latter situation, the operator would separate the dies from the full assembly, which takes 10 to 15 minutes, and transport the die to the die shop, instruct the diesinker as to what repairs are needed, and wait while the repairs are made. The diesinker might then have to accompany the operator back to the cold- forming department, so he could perform any further repair work required after the die was reinserted in the machine. 5. Skills The record disclosed that the basic skills of the members of both units are relatively equal. Both use similar machines in the repair and maintenance of dies or production machines , respectively. Among these skills are grinding and polishing , which are practically the only methods of repair used on the cold-forming dies, since major repairs are done by the manufacturer of the dies. However, the employees chosen to work in the cold-forming department received 3 weeks' training 799 on the machine and its related functions. Thus, the operator knows how the machine functions and has learned what may be wrong with a malfunctioning die and how to correct it. The operator continues to receive instruction from the manufacturers of the machine and the dies and has progressed to the point where he aids in the modification of the tooling. The testimony revealed, in comparing the diesink- ers and the operator, that the operator has more skill and ability to determine what part has deteriorated and exactly what needs to be done, while a diesinker has no knowledge of this aspect of the process, but would require instructions from the operator. 6. Employer preference On the basis of its agreement with the Boilermak- ers, the Employer assigned the disputed work to its members. The record indicates that the Employer is satisfied with the results of the assignment and maintains a preference for an assignment of the work to employees represented by the Boilermakers. CONCLUSION Upon the record as a whole, and after full consideration of all the relevant factors involved, we conclude that the employees represented by the Boilermakers are entitled to the disputed work and we shall determine the dispute in their favor. Where boilermakers have traditionally performed mainte- nance work similar to the disputed work; where skills, economy, and efficiency favor an assignment of work to boilermakers; where industry practice, though not conclusive, favors such an assignment; and where the Employer has been satisfied with and continues to prefer the assignment, we must conclude that an assignment of the work to employees represented by the Boilermakers is warranted. In making this determination, we are assigning the disputed work to boilermakers employed by the Employer, and represented by Lodge No. 1506, but not to the Boilermakers or its members. Our present determination is limited to the particular dispute which gave rise to this proceeding. 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 proceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: Boilermakers employed by the Employer who are currently represented by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Forgers, Helpers, Lodge No. 1506 , AFL-CIO , are and modification of cold-forging dies and other entitled to perform the work of repair , maintenance, tooling used in the Employer's cold-forming process. Copy with citationCopy as parenthetical citation