International Union, Automobile Workers, Local No. 292

National Labor Relations Board - Board Decisions

Mar 14, 1977

228 N.L.R.B. 635 (N.L.R.B. 1977)

INTERNATIONAL UNION, AUTOMOBILE WORKERS , LOCAL NO. 292 635
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
and its Local Union No. 2921 and Delco Electron-
ics Division of General Motors Corporation. Case
25-CD-168
directly to points outside the State of Indiana.
Accordingly, 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 purposes of
the Act to assert jurisdiction herein.
March 14, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Delco Electronics Division of
General Motors Corporation, herein referred to as
the Employer, alleging that the UAW violated
Section 8(b)(4)(D) by engaging in certain proscribed
activity with an object of forcing or requiring the
Employer to assign certain work to employees
represented by the UAW rather than to employees
represented by Local 24, Metal Polishers, Buffers,
Platers and Allied Workers International Union.2
Pursuant to notice, a hearing was held before
Hearing Officer Engrid Vaughan, on August 26 and
September 21 and 22, 1976. The Employer, UAW,
and Metal Polishers appeared at the hearing and
were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to adduce
evidence bearing on the issues. Thereafter, the
Employer, UAW, and Metal Polishers 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 Hearing Officer's
rulings made at the hearing and fords that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer, a Delaware corporation with a facility in
Kokomo, Indiana, is engaged in the manufacturing
of radios and electronic components, primarily for
the automobile industry. During the past year, the
Employer purchased goods valued in excess of
$50,000 which were received at its Kokomo, Indiana,
facility directly from points outside the State of
Indiana. During the same period, the Employer sold
and shipped goods valued in excess of $50,000
II. THE LABOR ORGANIZATIONS INVOLVED
We find, as stipulated to by the parties , that the
UAW and the Metal Polishers are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of Dispute
In September 1968, the Employer commenced
production of microscopic electrical connectors,
known as bumps, at its Kokomo, Indiana, facility. At
that time it assigned the work to employees repre-
sented by the UAW. The bumps are attached to
solid-state integrated circuits, or "chips," which the
Employer uses in manufacturing voltage regulators
and electronic ignitions . The microscopic bumps
replace conventional wiring and contribute to the
miniaturization of the chips which, as semiconduc-
tors, replace builder and more fragile electronic
components such as vacuum tubes and resistors.
The manufacturing of chips and bumps is a
multistep process. Silicon, in the form of a cylinder,
approximately 14 inches in length and 2 inches in
diameter, is sliced into thin wafers, .016 to .018 inch
in width. After the wafers undergo 65 separate
processes, producing a number of electrical circuit
patterns on the wafers' surfaces, the wafers are taken
to the "bumproom," where another 30 separate
processes are applied to produce the bumps.
The first step in the forming of bumps is the
depositing onto the wafers of a thin layer of quartz
through which holes are made to expose the desired
portion of circuitry. A thin layer of chrome is added,
with a portion of the chrome entering the holes. This
is followed by a layer of gold, a portion of which also
flows into the holes. The gold in the respective holes
will form the base for the bumps. Thereafter, a layer
of riston is added, which serves as a mold for the
bumps, and holes are made in the riston to expose
the gold pads.
The wafers are then immersed in a silver cyanide
solution from which silver is deposited, by electroly-
sis, into each of the holes. The parties refer to this
part of the operation as "process 7338." Once the
silver bump is formed, the wafers are immersed in a
gold bath which by electrolysis imposes a layer of
gold on the silver bump. The parties refer to this
I Herein referred to as the UAW
2 Herein referred to as the Metal Polishers , was permitted to intervene at
the hearing.
228 NLRB No. 72
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operation as "process 7341." After the immersions,
the riston and chrome layers are removed and the
bumps are inspected . Each bump is between .005 and
.006 inch in diameter and .003 inch in height. The
wafers , to which the bumps are attached , are cut into
hundreds of individual chips , which are installed in
voltage regulators or electronic ignitions.
On July 15, 1974, pursuant to an arbitration award,
the Employer reassigned the silver-form and gold-
cap processes to employees represented by Metal
Polishers . Employees represented by the UAW,
however , continued to perform the remaining 28
bumproom processes . Thereafter , on September 22,
1975, pursuant to a second arbitration award, the
Employer reassigned the two processes to employees
represented by the UAW, who have since continued
to perform the work . On April 8, 1976, Metal
Polishers filed an action in Federal district court
seeking enforcement of the arbitration award in
favor of employees represented by it, or in the
alternative , seeking tripartite arbitration.
Thereafter , on May 24, 1976, the UAW advised the
Employer by letter that , if it complied with the
arbitration award in favor of the employees repre-
sented by the Metal Polishers , the UAW would strike
the Employer.
B. The Work in Dispute
The work in dispute consists of silver-electroform
process #7338 and gold -cap process #7341, in-
volved in the production of microscopic electrical
connectors , performed at the Employer 's Kokomo,
Indiana, facility.
C. The Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that the UAW violated Section
8(b)(4)(D) by threatening to strike if the Employer
complied with the arbitrator 's award of the disputed
work in favor of employees represented by Metal
Polishers , and that there is no agreed-upon method
for the voluntary adjustment of the dispute. The
Employer further contends , with respect to the
merits , that the employees represented by the UAW
are entitled to perform the disputed work based on
the factors of: Employer past practice and prefer-
ence , area and industry practice , relative skills, and
economy and efficiency of operations . The UAW has
taken a position basically consistent with that of the
Employer.
Metal Polishers moves to quash the notice of
hearing contending that there is no reasonable cause
to believe that Section 8(b)(4)(D) of the Act has been
violated . In this regard , it argues , inter alia, that the
UAW's strike threat was not authorized and was not
bona fide . It also argues that in any event the object
of the UAW threat was to "retain" the work for
employees whom it represents rather than to force
the Employer to assign the work to such employees
and that therefore the threat did not fall within the
literal language of Section 8(b)(4)(D), which pros-
cribes certain conduct where an object thereof is to
force an employer to "assign" work to one group of
employees rather than to another . Metal Polishers
also contends that its action in Federal district court
seeking enforcement of the arbitration award, or the
alternative tripartite arbitration , constitutes an
agreed-upon method for the voluntary adjustment of
the dispute . Finally, Metal Polishers contends that,
should the Board find the dispute properly before it,
employees represented by Metal Polishers are enti-
tled to an award of the disputed work on the basis of
its Board certification , its collective-bargaining
agreement with the Employer , the arbitration award
in favor of employees represented by it, employer
practice , and efficiency.
D. Applicability of the Statute
Before the Board proceeds with a determination 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. As
noted above, the UAW advised the Employer that, if
it complied with the arbitrator's award in favor of
employees represented by Metal Polishers , the UAW
would strike the Employer's Kokomo, Indiana,
facility to retain the work . There is no evidence in the
record that the strike threat was anything but
genuine, and uncontradicted evidence shows that
UAW Vice President Bluestone , who wrote the letter
threatening to strike the Employer's facility, was duly
authorized to issue the strike threat . Further, we
reject Metal Polishers contention that improper
pressure by a union rivaling that which has been
assigned the work is a prerequisite to a 10(k) dispute.
Under settled Board policy, there is reasonable cause
to believe that a violation of Section 8(b)(4)(D) has
occurred if a labor organization , whose members are
assigned disputed work, puts improper pressure upon
an employer to continue such assignment .3 Since the
record shows that the UAW threatened to strike the
Employer if it assigned the disputed work to
employees represented by Metal Polishers, we find
that there is reasonable cause to believe that an
object of the UAW's action was to force the
Employer to continue to assign the disputed work to
Local 1184, Southern California District Counsel of Laborers (H. M pliers and Photoengravers International Union , AFL-CIO (National Press,
Robertson Pipeline Constructors ), 192 NLRB 1078 , 1079 (1971 ), Lithogra- Incorporated), 186 NLRB 143, 145 (1970).
INTERNATIONAL UNION, AUTOMOBILE WORKERS, LOCAL NO. 292 637
employees represented by the UAW, in violation of
Section 8(b)(4)(D).
We further find that there is no agreed-upon
method for the voluntary adjustment of the dispute
to which all parties are bound. The Employer's
respective contracts with the UAW and Metal
Polishers contain provisions for the arbitration of
disputes between the contracting parties, but neither
contract provides for tripartite arbitration. Under
these circumstances, the arbitration provisions of the
respective contracts do not provide an agreed-upon
method for the voluntary adjustment of the dispute
which would culminate in a single proceeding
binding on all parties .4
As noted above, Metal Polishers argues that its
action in Federal district court seeking enforcement
of the arbitrator's award in favor of employees whom
it represents, or, in the alternative, seeking tripartite
arbitration constitutes an agreed-upon method for
the voluntary adjustment of the dispute and that the
Board, therefore, should not proceed with a determi-
nation under Section 10(k). The UAW, however,
never agreed to be bound by the arbitrator's award
which Metal Polishers seeks to enforce. Further the
Board has held in similar cases that court-ordered
tripartite arbitration * does not constitute an agreed-
upon method for the voluntary adjustment of the
dispute within the meaning of Section 10(k).5
Accordingly, the matter 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 due consideration to various relevant factors.
1. Certifications, collective-bargaining
agreements, and arbitration awards
Metal Polishers contends that its Board certifica-
tion, its collective-bargaining agreement with the
Employer, and the earlier arbitration award favor
assignment of the disputed work to employees
represented by it. The Board, in 1940, certified Metal
Polishers as the exclusive bargaining representative
of all "metal polishers, buffers, platers, and their
helpers" at the Employer's Kokomo, Indiana, facili-
ty.6 Thereafter, in 1942, the UAW was certified by
the Board as the exclusive bargaining representative
4 San Diego Sterotypers' Union No. 82, affiliated with the International
Stereotypers and Electrotypers Union of North America (Union-Tribune
Publishing Company), 201 NLRB 893, 895 (1973)
, International Die Sinkers' Conference and Detroit Die Sinkers' Lodge No
110 (General Motors Corporation), 197 NLRB 1250, 1252 (1972) We further
note that on July 20, 1976, the district court stayed further proceedings in
Metal Polishers action pending issuance of the Board's Decision herein.
of the Employer's production and maintenance
employees, excluding, inter alia, "metal polishers,
buffers, platers, and their helpers." 7
Metal Polishers urges, and the Employer concedes,
that the disputed work may be described as "plating"
since it involves the depositing of metal onto a
substance by the flow of an electric current through a
metallic solution. While the respective certifications
arguably support Metal Polishers claim to the
disputed work, these certifications predate the
Employer's introduction of the disputed work into its
manufacturing process. We find, on the basis of the
record herein, that the, certifications do not support
an award of the work to either group of employees.8
As for the collective-bargaining agreements, the
record" shows that the respective recognition clauses
contained therein reflect, for the most part, each
labor organization's Board certification. These col-
lective-bargaining agreements, as noted above, were
the subject of separate arbitration proceedings which
resulted in conflicting awards of the disputed work.
As demonstrated by the conflicting arbitration
awards, each Union's collective-bargaining agree-
ment with the Employer arguably favors an award to
employees represented by that Union. Accordingly,
we find that the collective-bargaining agreements
and arbitration awards do not support an award of
the work to either group of employees.
2. Employer's past practice and preference
The record shows that employees represented by
the UAW have performed the disputed work from
September 1968 until the present, except for a 14-
month period when employees represented by Metal
Polishers were assigned the work pursuant to an
arbitration award. Although Metal Polishers claims
that employer practice, apart from the above 14-
month period, favors an award of the work to
employees represented by it, the evidence on which it
relies pertains, not to the work in dispute here, but
rather to other examples of electroplating performed
by such employees at the Employer's facility. We
find, therefore, that the predominant past practice of
the Employer favors an award to employees repre-
sented by the UAW.
As noted above, the Employer initially assigned the
disputed work to employees represented by the
UAW and subsequently reassigned the work to
employees represented by Metal Polishers only
6 Delco Radio Division of General Motors Corporation, 27 NLRB 628
(1940).
7 Delco Radio Division of General Motors Corporation, 44 NLRB 1381
(1942).
8 Cf. Brotherhood of Teamsters & Auto Truck Drivers Local No 85,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America (Pacific Maritime Association), 208 NLRB 1011 , 1014 (1974)
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because an arbitrator so ordered . The Employer's
later reassignment of the work to employees repre-
sented by the UAW, pursuant to a second arbitration
award , was in accord with its stated preference and
past practice predating the Metal Polishers arbitra-
tion award . Accordingly , we find that this factor
favors assignment of the disputed work to employees
represented by the UAW.
3. Area and industry practice
It is undisputed that the UAW does not represent
any other employees within the Kokomo, Indiana,
area who perform the same work as that in dispute.
Although Metal Polishers presented evidence that it
represents employees who perform electroplating
work for other employers in the Kokomo area, this
electroplating work does not involve the particular
processes in dispute here. We therefore fmd the
factor of area practice is ambiguous.
With respect to industry practice, the evidence
reveals that Metal Polishers does not represent other
employees performing this work for employers in any
area of the country. No evidence was presented to
show that the UAW represents any other employees
in the industry who perform this work. Inasmuch as
the record fails to show any affirmative industry
practice, with respect to the disputed work, this
factor does not favor an award to either group of
employees.
4. Relative skills, economy, and efficiency of
operations
Employees represented by each of the respective
labor organizations involved herein possess the skills
necessary to perform the work in dispute. Record
evidence shows that when assigned the disputed
work the respective groups of employees have
performed such work in a manner satisfactory to the
Employer. Therefore, the factor of relative skills does
not support an award of the work to either group of
employees.
With respect to economy and efficiency of opera-
tions, the record reveals that the utilization of
employees represented by the UAW offers greater
flexibility and versatility in the performance of the
work in the bumproom. The production of bumps is
a multistep integrated procedure of which the work
in dispute comprises only 2 of some 30 different
processes. Employees represented by the UAW,
unlike those represented by the Metal Polishers, are
capable of performing and have been assigned the
remaining work in the bumproom. The record
further shows that there are periods of time in
performing the disputed work during which the
attention of the employees is not required. When
employees represented by the Metal Polishers were
assigned the disputed work, they incurred "down
time" during such periods because they did not
perform any of the remaining bumproom processes.
In contrast, when employees represented by the
UAW have been assigned the disputed work, they
incur no "down time," but rather perform other
bumproom processes during such periods. We
therefore find that the factors of economy and
efficiency of operation favor an award of the
disputed work to employees represented by the
UAW.
Conclusion
Upon the record as a whole, and after full
consideration of all relevant factors involved, we
conclude that employees represented by the UAW
are entitled to perform the work in dispute. We reach
this conclusion relying on the following facts: the
Employer's present assignment is consistent with its
predominant past practice and its preference and is
not inconsistent with area or industry practice; the
employees represented by the UAW possess the
requisite skills to perform the work; and such
assignment results in greater economy and efficiency
of operations.
In making this determination, we are awarding the
disputed work to employees currently represented by
the UAW, but not to the UAW 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
makes the following Determination of Dispute:
Employees of Delco Electronics Division of Gener-
al Motors Corporation at its Kokomo, Indiana,
facility, who are currently represented by Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America and its
Local Union No. 292, are entitled to perform the
work of silver-electroform process #7338 and gold-
cap process #7341.