Int'l Association of Machinists, Lodge 681, etc.

National Labor Relations Board - Board Decisions

Jul 20, 1962

137 N.L.R.B. 1524 (N.L.R.B. 1962)

1524 DECISIOIVS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent , Cook Chocolate Company, is, and during the times material
herein has been, engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
3. The complaint herein should be dismissed in its entirety.
RECOMMENDED ORDER
It is recommended that an order be entered herein dismissing the complaint in its
entirety.
International Association of Machinists, Local Lodge 681, Dis-
trict Lodge No. 27, AFL-CIO and American Radiator &
Standard Sanitary Corporation and Patternmakers League
of North America, Louisville Association , AFL-CIO and The
Standard Allied Trades Council . Case No. 9-CD-54-2. July
20, 1962
DECISION AND DETERMINATION OF DISPUTE
STATEMENT OF CASE
This proceeding arises under Section 10(k) of the Act, which pro-
vides that, "whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4) (D) of
section 8(b), the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair labor practices have
arisen, .. .."
In May 1961, American Radiator & Standard Sanitary Corpora-
tion, hereinafter called American or the Employer, filed with the
Regional Director for the Ninth Region a charge alleging that Inter-
national Association of Machinists, Local Lodge 681, District Lodge
No. 27, AFL-CIO, hereinafter called the Machinists, and Pattern-
makers League of North America, Louisville Association, AFL-CIO,
hereinafter called the Patternmakers, have, in substance, threatened to
engage in and have induced and encouraged their members who are
employed by American to engage in a strike with the object of forc-
ing American to assign the operation of the Keller machine and cer-
tain maintenance functions on the Osborne molding machines to one
of these unions rather than the other and that by such conduct the
Machinists and the Patternmakers have violated Section 8(b) (4) (i)
and (ii) (D) of the Act.
Thereafter, pursuant to Section 10(k) of the Act and Sections
102.89 and 102.90 of the Board's Rules and Regulations, Series 8, the
Regional Director investigated the charges and, after dismissing the
charge as to the Patternmakers, provided for an appropriate hearing
upon due notice to all parties on the issue of the disputes over the
137 NLRB No. 155.
INT'L ASSOCIATION OF MACHINISTS, LODGE 681, ETC. 1525
straight and contour pattern planing operations of the Keller ma-
chine and the installation of bushings, lift pins, bedplates, and related
adjustments and maintenance on the Osborne molding machines. The
hearing was held before Alvin Lieberman, hearing officer, on July 11,
12, and 13, 1961. All parties appeared at the hearing and were af-
forded full opportunity to be heard, to examine and cross-examine wit-
nesses, and to adduce evidence bearing on the issues. The rulings of
the hearing officer made at the hearing are free from prejudicial error
and are hereby affirmed.
Thereafter, the Employer, the Machinists, and the Patternmakers.
filed briefs which have been duly considered by the Board.
Pursuant to Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chair-
man McCulloch and Members Rodgers and Leedom].
I. JURISDICTIONAL FACTS
The Employer, a Delaware corporation engaged in the manufacture
and sale of plumbing fixtures, operates a plant in Louisville, Ken-
tucky, from which, in 1960, it shipped goods valued in excess of
$50,000 to out-of-State customers. We find that the Employer is en-
gaged in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
On or about November 27, 1940, the Machinists was certified,' pur-
suant to the results of a Board-conducted election, in a unit composed
of :
All employees in the Iron Department Machine Shop of the
Company at the Louisville Plant ... .
At the time of the hearing there was no collective-bargaining agree-
ment in effect between American and the Machinists, the last written
contract having expired on January 23, 1961, and agreement on a new
contract having not yet been reached. However, the Machinists,
through its membership in The Standard Allied Trades Council, here-
in called the Council,' was party to a master agreement between the
Council and American.
I Case No. 9-R-432 (not published in NLRB volumes).
2 On July 29, 1941, the Council , following a Board-conducted election , was certified as
the exclusive bargaining representative of "all employees " of the Employer at his
Louisville works. Case No. 9-R-470 (not published in NLRB volumes) Since that time
successive master agreements have been executed between American and the Council,
covering all production and maintenance employees except the patternmakers (who have
been represented by the Patternmakers , from 1947 until 1949, as a part of the Council,
but since 1949, as a completely independent unit ). The master agreement , also, con-
tains a "historical practice" clause as does the Patternmakers ' separate contract. The
current master agreement contains clauses , as did the predecessor agreements , recogniz-
ing individual craft agreements for wages , hours, and working conditions peculiar to the
particular craft.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 9,1957, the Regional Director for the Ninth Region issued a
report on cross check,' finding the Patternmakers the exclusive rep-
resentative of a unit composed of :
All metal and wood pattern makers, apprentice wood and metal
pattern makers, pattern grinders, metal layer operators, and
apprentice pattern grinders, metal layer operators employed at
the Company's Louisville, Kentucky, works ... .
By agreement of June 24, 1947, the Patternmakers agreed to be
substituted for the Machinists as the representative of the employees
covered by the above-described unit. At the time of the hearing the
Patternmakers and American were subject to a current collective-
bargaining agreement.
We find that the Machinists, the Patternmakers, and the Council
are labor organizations within the meaning of the Act.
III. THE DISPUTE
A. The processes and machines involved in the dispute
The Keller: Prior to September 1959, machinists operated two
flatbed planers in the iron pattern department of the machine shop
building. These planers were used in the patternmaking process for
the reduction of oversized iron pattern castings to the dimension of
the original model. Patternmakers participated in this process to the
extent of making the original wooden model (which was duplicated
in iron by an outside foundry), inscribing guide or "template" lines
for the contour portions on the iron casting part way through the
planing process, hand chiseling for nameplates, and grinding for
reduction to final, exact dimensions after the final planing. Ma-
chinists, as admitted by all parties, always operated the planer, both
before and after the guidelines were inscribed. The testimony indi-
cates that the planer did straight and some contour work, the latter
by a step-cut method.
In September 1959 American acquired a Keller machine which
both operatively and physically replaced one of the flatbed planers.
The initial process of fabricating the pattern remains the same; i.e.,
patternmakers make the model, machinists do the initial planing on
the iron casting, patternmakers then inscribe locating lines on the
casting block. However, the block (or iron casting) is then mounted
on the Keller rather than returned to the planer. The Keller, which
can move in several more directions than the planer, and is thereby
a more efficient machine, reduces the iron pattern casting to far more
exact dimensions than the planer economically could do, but final
grinding to finished dimensions is still required and is performed, as
8 Case No. 9-R-2670 ( not published in NLRB volumes).
INT'L ASSOCIATION OF MACHINISTS, LODGE 681, ETC. 1527
previously, by patternmakers. However, much of the contour work
previously done by grinding can now be done on the Keller. In con-
text of the dispute involved herein, the work (in terms of hours spent)
of both machinists and patternmakers has been reduced 75 percent
for this one process by the replacement of the second planing opera-
tion by the Keller operation.
The Osborne molding machines: Some of the patterns which are
fabricated by the process described, supra, are thereafter fitted into
bedplates (or cradles) which themselves are fitted into the Osborne
molding machines. All parties agree that the operation of the Os-
borne machines, which produce sand molds for the production of
plumbing fixtures, is within the jurisdiction of molders. However,
the Machinists and the Patternmakers both claim jurisdiction over
the maintenance, installation, and servicing of certain devices on
these machines.
From 1922 until 1959 American utilized for the production of some
of these sand molds a machine known as the "Smallware Rollover."
The Smallware Rollover consisted of two mechanisms, one for pro-
ducing the cope, or top half of the mold, and the other for producing
the drag, or bottom half of the mold. The cradles containing pre-
fabricated patterns were placed on the respective cope or drag mech-
anism; to these cradles were fastened flasks into which sand was
introduced at a high velocity in order to obtain hardened sand molds.
Ultimately the flask containing the sand mold was separated from
the pattern and cradle by means of a stripping device, which in the
cope was located in the cradle, and in the drag was located in the
cylinder arms which held the cradle. Maintenance, installation, and
servicing were required at the Smallware Rollover on the bushings
in the drag cradle, on the locating pins in the drag flask, on the
stripping device in the drag cylinder, on the locating pins in the
cope cradle, on the bushings in the cope flask, and on the stripping
device in the cope cradle.
In 1956, American purchased an Osborne Jolt-Squeeze molding
machine which it ran on an experimental basis until 1959 in order
to determine which casting molds the machine was capable of pro-
ducing. There is some ambiguity as to when the Osborne Rockover
molding machine was purchased; however, it appears that it was
not brought into the iron foundry until April 1960 when both Os-
borne machines were put into full line production of molds. Both
machines were purchased to replace the Smallware Rollover, the
Rockover producing the drag portion of the mold and the Jolt-
Squeeze producing the cope. Both machines have devices which
require maintenance and are similar to those on the Smallware Roll-
over, i.e., flasks, bedplates (termed "cradles" on the Smallware Roll-
over), stripping devices, locating pins, bushings, and rollover
cylinders.
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Historical assignment of disputed work
The flatbed planer and the Keller: There is no dispute that the
planers have always been operated by machinists. In 1947, when the
Patternmakers unit was carved from the Machinists unit, the two men
operating the planers did not participate in the voting, nor have they
or their work since been claimed by the Patternmakers as properly
belonging to that unit. However, the wage rate for the planer op-
erator has always been left open during the Machinist negotiations
until the Patternmakers have concluded their negotiations; the wage
rate then was adjusted according to the wage scale obtained by the
Patternmakers, which scale appears to be the highest at the foundry.
When the Employer installed the Keller, the operation of that ma-
chine was assigned to machinists. One of the two machinists who op-
erated the planer was sent to Indianapolis by American for special
training. Shortly after the work was assigned the Patternmakers be-
gan filing a series of grievances' relating to the operation of the Keller
by machinists; by the most recent of these grievances they claim all
pattern work done on the Keller.' The Employer denied all these
Patternmaker grievances as to the operation of the Keller ; however,
because of the instant proceeding, these grievances are still considered
open or pending by the Employer and the Patternmakers.
The Smallware Rollover and the Osborne molding machines: Al-
though there appears some contradiction in the testimony as to which
unit, Machinists or Patternmakers, was assigned the maintenance, at
the machine, of the various devices on the Smallware Rollover, it ap-
pears that as a general rule the maintenance of those parts which were
not considered an integral part of the machine itself was assigned to
patternmakers. (The dispute herein apparently involves only these
"nonintegral" parts.) Machinists did perform some of the same work;
however, it appears that usually an assignment to a machinist was con-
fined to those times when a patternmaker was not available. (Before
1959, patternmakers worked only during the first shift; maintenance
which was required during the second and third shifts therefore would
be assigned to a machinist through necessity.)
During the experimental run on the Osborne Jolt-Squeeze machine,
and indeed up to March 1961, all maintenance work performed at the
machine, including the disputed work, was performed by machinists.
It also appears that the maintenance of these devices on the Osborne
4 The first grievance proceeded through the grievance machinery to arbitration which
resulted in an award of the Keller work to the Patternmakers . However, the Machinists
obtained an injunction against an assignment in accordance with the award on the basis
that they were not present at the arbitration. The grievance was reinstituted by the
Patternmakers and is now pending
5 The original grievance related only to the contour planing by the Keller ; however,
as testified to by the Employer , it would be extremely unworkable to assign the straight
planing to one unit and the contour planing to the other.
INT'L ASSOCIATION OF MACHINISTS, LODGE 681, ETC. 1529
Rockover, which was not run on an experimental basis, was performed
by machinists until March 1961. After that date, the work was re-
assigned to patternmakers, following the institution of a grievance by
the Patternmakers, claiming the work. The Machinists thereupon on
April 21, 1961, filed a grievance protesting the Employer's award pur-
suant to the reassignment. This grievance has been denied by the Em-
ployer and is now pending as is another grievance, filed December 12,
1960, as to another aspect of the same issue, i.e., maintenance and
installation of certain devices on the Osborne machines.
C. Practice elsewhere
The president of the Patternmakers testified that at International
Harvester, Louisville, Kentucky, the patternmakers operate a Keller-
type machine. As for the Osborne molding machines, a machinist
testified that he does the maintenance and installation on Osbornes in
the Employer's own brass foundry.
D. The Machinists strike threat
By letter dated April 18, 1961, the Machinists, through its business
representative, Joseph Logsdon, threatened American with a work
stoppage over the award of the maintenance work on the Osborne ma-
chines to patternmakers. At grievance meetings between the parties
on May 1 and 4, 1961, the Machinists repeated the threat. Similar
threats, by letter dated April 19, 1961, and at the May 4 meeting, were
made by the Machinists if the Employer reassigned the Keller to
patternmakers. At that meeting of May 4, 1961, the Machinists re-
fused to participate in a joint meeting with the Patternmakers, taking
the position that their contracts and grievance and arbitration pro-
cedures were different.
IV. CONTENTIONS OF TIIE PARTIES
American contends that its assignments of the Keller operations to
machinists and of the maintenance of the devices on the Osbornes to
patternmakers are correct on the same basis, i.e., the historical assign-
ments of the functions on predecessor machines.
The Patternmakers claim the work on the Keller on the basis that
it is patternmaking work. It takes the position that the fact the
planer has been historically operated by a machinist is a "mystery"
connected with a rumor that there was personal animosity between
one of the planer operators and the Patternmakers. It also takes the
position that this individual was a supervisor within the meaning of
the Act. With respect to the Osbornes, it supports the contention
of American that the maintenance of the devices belongs to pattern-
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
makers. Although it notes that at the hearing testimony indicated
that both patternmakers and machinists performed these operations
on the Smallware Rollover and now on the Osbornes, it takes the posi-
tion that the Employer's assignment comports "as nearly within the
jurisdiction of the two unions as it can determine the jurisdiction of
the respective unions."
The Machinists supports American's assignment of the Keller to
its unit on a basis of historical assignment of the flatbed planer. It
also contends that the maintenance of the devices on the Osbornes be-
longs to its unit on a basis of historical assignment on the Smallware
Rollover and, especially on the Osbornes through the experimental
run and during the full year of full-line operation before the Pattern-
makers' grievance and the reassignment.
The Standard Allied Trades Council took no position at the hearing
nor filed a brief indicating a position.
V. APPLICABILITY OF THE STATUTE
The charges, which were duly investigated by the Regional Direc-
tor, allege a violation of Section 8(b) (4) (i) and (ii) (D) of the Act,
and the Regional Director was satisfied upon the basis of such investi-
gation that there was reasonable cause to believe that a violation had
been committed.
On the basis of the entire record, we find that there is reasonable
cause to believe that a violation of Section 8(b) (4) (D) has occurred,
and that the disputes are properly before the Board for determination
under Section 10(k) of the Act.6
VI. THE MERITS OF THE DISPUTES
The Keller: Weighing the factors relied upon by the Pattern-
makers, on the one hand, against those cited by the Machinists (the
Respondent herein) and the Employer, on the other hand, we con-
clude that the latter outweigh the former. In 1947, when the Pattern-
makers' unit was carved from the Machinists' unit, the two flatbed
planer operators did not participate in the voting, and their work has
not been claimed by the Patternmakers, thereby indicating that this
operation, which existed somewhere in the "penumbra" between both
units, more properly belonged in the Machinists' unit.' The Pattern-
6 The Respondent , the Machinists , is presently assigned the operation of the Keller
However, the pendency of the Patternmakers ' reinstated grievance , and the Employer's
prior willingness to abide by the arbitrator 's award , substantiate the Machinists ' appre-
hension that if this reinstated grievance would go to an arbitration proceeding to which
the Machinists would be "invited ," the reassignment might very well occur Accord-
ingly, although the Respondent is currently assigned the operation of the Keller, we find
that there is a dispute over the machine properly before the Board under Section 10(k)
7 A "rumor" that the Patternmakers did not claim the work because they had a per-
sonal animosity toward one of the operators of the planer is not probative evidence bear-
INT'L ASSOCIATION OF MACHINISTS, LODGE 681, ETC. 1531
makers has never claimed the planer operation as properly belonging
to its unit, nor is it making such a claim at this time. Indeed, its
grievance with respect to the Keller originally only related to the
contour planing performed on the Keller; it only claimed all pattern
planing on the Keller after it became apparent that a split assign-
ment would be unworkable from the Employer's standpoint. When
the Employer purchased the Keller and physically and operatively
replaced one of the planers with it, he assigned the operation of it to
one of the planer operators whose job was eliminated by the discard-
ing of one planer. The fact that the Keller is a more efficient machine
and can do much finer milling which leaves less metal for the grinders
to eliminate does not outweigh the historical operation of the predeces-
sor machine by machinists, acquiesced in by the Patternmakers, and
acknowledged as proper by the Employer.
Accordingly, insofar as the dispute involves the operation of the
Keller in the Employer's iron foundry, we shall determine the dispute
by assigning this work at Employer's Louisville, Kentucky, plant to
planer operators in the unit represented by the Machinists. Our pres-
ent determination is limited to the controversy which gave rise to this
proceeding. In making this determination, we are assigning the dis-
puted work to planer operators represented by the Machinists, and not
to the Machinists or its members.
The Osborne molding machines: Similar considerations which re-
sulted in our award of the Keller operations to the Machinists' unit
convince us that the specific maintenance work under dispute on the
Osbornes belong to patternmakers. Although there appears some
ambiguity on the subject, we construe the dispute over the maintenance
and installation of parts on the Osbornes to relate to maintenance,
at the machines themselves, of parts described by the Employer as
"nonintegral" to the machines. The Employer appears to have at-
tempted to assign maintenance of the machines themselves to ma-
chinists but maintenance of those parts, not integral to the machines
and directly related to the holding or movement of the patterns, to
patternmakers. Neither unit has a direct claim to the work as
strictly machinist or patternmaking work; nor do the molders, who
admittedly operate the machines, claim it. Historically it appears
that the greatest part of the disputed work was performed by pat-
ternmakers on the Smallware Rollover when patternmakers were
available. When the Patternmakers complained, by filing a griev-
ance, about the assignment of one of the disputed tasks on the
Osbornes to machinists, the Employer, in accordance with his inter-
ing on the propriety of the assignment . Moreover , even if the individual was a supervisor
within the meaning of the Act, as the Patternmakers suggest, this does not explain the
exclusion of the other planer operator.
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pretation of the historical assignment of the work, reassigned it to
patternmakers.
Accordingly, insofar as the dispute involves the installation, main-
tenance, and related adjustments of these particular devices on the
Osborne molding machines, at the machine itself, in the Employer's
iron foundry, we shall determine the dispute by assigning this work
at Employer's Louisville, Kentucky, plant to patternmakers in the
unit represented by the Patternmakers. Our present determination
is limited to the controversy which gave rise to this proceeding. In
making this determination, we are assigning the disputed work to pat-
ternmakers represented by the Patternmakers, and not to the Pattern-
makers or its members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings of fact, and upon the en-
tire record in the case, the Board makes the following Determina-
tion of Dispute pursuant to Section 10(k) of the Act:
1. Machinists in the unit represented by the International Associa-
tion of Machinists, Local Lodge 681, District Lodge No. 27, AFL-
CIO, are entitled to perform all planing operations on the Keller
machine used by the American Radiator & Standard Sanitary
Corporation, in the iron foundry of its Louisville, Kentucky, plant.
2. Patternmakers in the unit represented by the Patternmakers
League of North America, Louisville Association, AFL-CIO, are en-
titled to perform installation of bushings, lift pins, and bedplates, and
related adjustments and maintenance on the Osborne molding ma-
chines used by American Radiator & Standard Sanitary Corporation
in the iron foundry of its Louisville, Kentucky, plant.
3. International Association of Machinists, Local Lodge 681, District
Lodge No. 27, AFL-CIO, is not and has not been lawfully entitled
to force or require American Radiator & Standard Sanitary Corpora-
tion to assign installation of bushings, lift pins, and bedplates, and
related adjustments and maintenance on the Osborne molding ma-
chines to employees engaged as machinists, who are currently rep-
resented by the Machinists.
4. Within 10 days from the date of this Decision and Determina-
tion of Dispute, International Association of Machinists, Local Lodge
681, District Lodge No. 27, AFL-CIO, shall notify the Regional Di-
rector for the Ninth Region, in writing, whether or not it will refrain
from forcing or requiring American Radiator & Standard Sanitary
Corporation, by means proscribed by Section 8(b) (4) (D), to assign
the work in dispute on the Osborne molding machines to machinists
rather than to patternmakers in the Patternmakers' unit.