Local Lodge 225, IAM

National Labor Relations Board - Board Decisions

Feb 11, 1976

222 N.L.R.B. 835 (N.L.R.B. 1976)

LOCAL LODGE 225, IAM 835
Local Lodge 225, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO and
Kuhns Brothers Company and International Union
of Electrical, -Radio and Machine Workers, AFL-
CIO-CLC, and its Local 768.' Case 9-CD-319
February 11, 1976
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Kuhns Brothers Company, here-
in called the Employer, alleging that Local Lodge
225, International Association of Machinists and
Aerospace Workers, AFL-CIO, herein called IAM,
has violated Section 8(b)(4)(D) of the Act, by engag-
ing in certain proscribed activity with the object of
forcing or requiring the Employer to assign certain
work described below to employees represented by
the IAM rather than to employees who are repre-
sented by International Union of Electrical, Radio
and Machine Workers, AFL-CIO-CLC, and its Lo-
cal 768, herein called IUE.
Pursuant to a notice of hearing, a hearing was con-
ducted before Hearing Officer James R. Schwartz on
October 31, 1975. All parties appeared at the hearing
and were afforded a full opportunity to be heard, to
examine and cross-examine witnesses, and to present
evidence bearing on the issues. Thereafter, Employer,
IAM, and IUE filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. The rulings are hereby af-
firmed.
Upon the entire record in this case, the Board
makes the following findings.
1. THE BUSINESS OF THE EMPLOYER
Kuhns Brothers Company, an Indiana corpora-
tion, is engaged in the operation of a foundry at its
location at Dayton, Ohio. During the past 12
months, the Employer sold goods valued in excess of
$50,000 to firms located outside the State of Ohio
1 The name appears as amended at the hearing
and caused such goods to be shipped directly in in-
terstate commerce from its location in the State of
Ohio to points located outside the State of Ohio. The
parties stipulated, and we find, that Kuhns Brothers
Company is an employer engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
All parties stipulated, and we find, that Local 225,
IAM, and IUE and its Local 768 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Work in Dispute
The work in dispute is the repair and preventive
maintenance of mobile equipment used within the
Employer's Dayton, Ohio, foundry.
B. Background and Facts of Dispute
The Employer operates a foundry at Dayton,
Ohio, where it manufactures pipe fittings for the
plumbing industry. The Employer employs approxi-
mately 350 employees at this location. The IUE rep-
resents a unit of approximately 320 production and
maintenance employees. The IAM represents a unit
of approximately 30 toolmakers, machinists, and
millwrights.
Employer's mobile equipment consists of 10 bat-
tery-powered handtrucks, 10 electric forklift trucks, 3
forklift trucks powered by internal combustion en-
gines, 1 lawnmower, 1 electric floor cleaner, 2 trucks,
and an automobile. For at least 5 to 6 years prior to
September 1975, repair and -maintenance work on
these vehicles was divided three ways. Major repairs
and preventive maintenance were subcontracted to
an outside concern. Those mechanical repairs per-
formed by Employer were normally assigned to em-
ployees represented by the IAM, although occasion-
ally such repairs were performed by employees
represented by the IUE. Those electrical repairs per-
formed by Employer were assigned exclusively to
employees represented by the IUE.
In September 1975, the Employer decided to con-
solidate all repair and maintenance work under one
job classification and to use its own employees to
perform the necessary work on its mobile equipment.
It has created the job classification of "mobile equip-
ment repairman" for this purpose. The duties of the
mobile equipment repairmen will include all preven-
tive and other maintenance on the mobile equip-
ment, including recharging of batteries, cleaning of
222 NLRB No. 130
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
electrical contacts, painting, and other miscellaneous
repairs. Although the position had been posted, at
the time of the hearing no one had been chosen to fill
it and performance of the duties had not yet begun.
However, three employees have bid on the job, all of
whom are employees represented by the IUE, and
the Employer has indicated its desire that an employ-
ee represented by that Union fill the position. The
IAM filed a grievance over the matter and sent a
letter dated October 3, 1975, to the Employer, stating
that "unless same [the assignment] is corrected by
placing this repairman within the jurisdiction of the
International Association of Machinists and Aero-
space Workers who currently hold bargaining rights
at Kuhns Brothers, the Union takes the position that
strike action against the Company is in order and it is
our intention to implement such action."
C. Contentions of the Parties
The Employer contends that the disputed work is
properly assigned to employees represented by the
IUE on the basis of relative skills, efficiency and
economy of operations, and area practice. The IUE
agrees with this position.
The IAM contends that its certification, its collec-
tive-bargaining agreement, past practice, and area
practice dictate an assignment of the disputed work
to the employees it represents.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must be satisfied that (1) there is reasonable
cause to believe that Section 8(b)(4)(D) has been vio-
lated, and (2) that the parties have not agreed upon
methods for the voluntary adjustment of the dispute.
The record establishes that, after the Employer ex-
pressed its desire to assign the disputed work to a
member of the IUE, the IAM, in a letter dated Octo-
ber 3, 1975, threatened strike action against the Em-
ployer with an object of forcing or requiring the Em-
ployer to assign the disputed work to employees
represented by the IAM rather than to employees
represented by the IUE. Accordingly, we conclude
that reasonable cause exists to believe Section
8(b)(4)(D) of the Act has been violated and that the
dispute is properly before the Board for determina-
tion pursuant to Section 10(k) of the Act.
The parties have no agreed-upon method for the
voluntary adjustment of the dispute.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work af-
ter giving due consideration to various relevant fac-
tors. As the Board has stated, the determination in a
jurisdictional dispute case is an act of judgment
based on commonsense and experience in weighing
those factors? We find the following factors are rele-
vant in making a determination of the dispute before
us.
1. Certification
On August 6, 1953, the National Labor Relations
Board in Case 9-RC-1949 certified the IAM as the
exclusive representative of all employees in the ap-
propriate unit described therein. However, the unit
description is not specific enough to support the
IAM claim.' There is no certification for the unit rep-
resented by the IUE. This factor therefore supports
neither claim.
2. Collective-bargaining contracts, Employer's past
practice, and area practice
The IUE and IAM are signatories to collective-
bargaining agreements with the Employer. It had
been the Employer's practice pursuant to these con-
tracts to assign electrical maintenance work, and oc-
casional mechanical repairs, to employees repre-
sented by the IUE, and to assign mechanical repairs
to IAM-represented employees. Each Union's con-
tract covers the work traditionally performed by the
employees it represents at the Employer's Dayton,
Ohio, location. Thus, each contract, and the
Employer's past practice thereunder, supports a
claim for a part of the work. Neither the contracts
nor Employer's past practice supports a claim for
that part of the work formerly subcontracted. Since
the disputed work is a consolidation of all mainte-
nance and repair work, and since the collective-bar-
gaining contracts and Employer's past practice give
each Union a claim to only that part of the work
formerly performed by the employees each repre-
sents, we find that this factor does not favor employ-
2 N.L R B v. Radio and Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad-
casting System], 364 U.S 573 (1961); International Association of Machinists,
Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB
1402 (1962).
3 The unit is described as All toolmakers , toolmaker-inspectors , machin-
ists, maintenance machinists , and maintenance helpers at the Employer's
Dayton, Ohio, plant , excluding all other employees , toolcrib attendants,
welders , guards, and supervisors as defined in the Act . Clearly, nothing in
that unit specifically places the repair and preventive maintenance of mo-
bile equipment within the IAM's occupational jurisdiction.
LOCAL LODGE 225, 1AM 837
ees represented by either the IAM or the IUE. Simi-
larly, the area practice is mixed and does not appear
to favor either employee group.
assigned to employees represented by the IUE. This
factor favors an assignment of the work to employees
represented by the IUE.
3. Skills
Electrical maintenance work accounts for 70 to 80
percent of the duties required to be performed by the
mobile equipment repairman and is of the type tradi-
tionally performed at . Employer's foundry by em-
ployees represented by the IUE. The remainder of
the work is mechanical work which, although of the
type usually performed by employees represented by
the IAM, has also on occasion been performed by
employees represented by the IUE. Employees repre-
sented by the IAM have never performed electrical
maintenance work. Thus, the IUE-represented em-
ployees are presently capable of performing 70 to 80
percent of the duties required to fill Employer's pro-
posed position and have some experience in perform-
ing the remaining duties. In contrast, employees rep-
resented by the JAM are currently capable of
performing repairs which represent only 20 to 30 per-
cent of the necessary job skills. Each group would
require additional training to perform that aspect of
the work formerly performed by the other. There is
nothing to indicate that either aspect of the job is
easier to learn.
Since the IUE-represented employees already pos-
sess the skills necessary to perform the bulk of the
work, and the machinists do not, we conclude that
the factor of skills favors an assignment of the dis-
puted work to the IUE-represented employees.
4. Efficiency and economy of-operations
The mobile equipment repairman will be required
to work in the- paint and storage building since the
equipment necessary to handle heavy batteries and
other truck parts is located there. The other employ-
ees in this area are represented by the IUE. Since the
work is to be performed in an area where other IUE-
represented employees presently work, we find that
this factor tends -to favor an award to the employees
represented by, the IUE.
5. Employer preference
The Employer prefers that the disputed work be
Conclusion
Upon the record as a whole, and after full consid-
eration of all relevant factors involved, we conclude
that the Employer's employees who are represented
by the IUE are entitled to the work in dispute. In
reaching this conclusion, we rely on the following
factors: relative skill level, efficiency and economy of
operations, and the Employer's preference.
We shall, therefore, determine the existing contro-
versy by awarding the work involved herein to those
employees represented by the IUE, but not to that
Union or its members.
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 pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
1. Employees of Kuhns Brothers Company repre-
sented by International Union of Electrical, Radio
and Machine Workers, AFL-CIO-CLC, and its Lo-
cal 768, are entitled to perform the repair and pre-
ventive maintenance work on mobile equipment at
the Employer's Dayton, Ohio, foundry.
2. Local Lodge 225, International Association of
Machinists and Aerospace Workers, AFL-CIO, is
not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require the assign-
ment of the above work to its members or to employ-
ees it represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local Lodge 225,
IAM, shall notify the Regional Director for Region
9, in writing, whether it will refrain from forcing or
requiring, by means proscribed by Section 8(b)(4)(D)
of the Act, the assignment of the work in dispute to
employees represented by Local Lodge 225, IAM,
rather than to employees represented by Internation-
al Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC, and its Local 768.