Machinists Lodge 776 (Lockheed Martin)

National Labor Relations Board - Board Decisions

Apr 30, 2008

352 N.L.R.B. 402 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
352 NLRB No. 57
402
International Association of Machinists and Aero-
space Workers, District Lodge 776 and Lock-
heed Martin Aeronautics Company and Interna-
tional Brotherhood of Electrical Workers, Local
20. Case 16–CD–153
April 30, 2008
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act. Lock-
heed Martin Aeronautics Company (the Employer) filed
a charge on October 24, 2007,1 alleging that the Respon-
dent, International Association of Machinists and Aero-
space Workers, District Lodge 776 (IAM), violated Sec-
tion 8(b)(4)(D) of the Act by threatening to engage in
picketing activity with an object of forcing the Employer
to assign certain work to employees represented by the
IAM rather than to employees represented by Interna-
tional Brotherhood of Electrical Workers, Local 20
(IBEW). The hearing was held on November 6 before
Hearing Officer Lisa C. House. Thereafter, the Em-
ployer, the IAM, and the IBEW filed posthearing briefs.
The National Labor Relations Board affirms the hear-
ing officer’s rulings, finding them free from prejudicial
error.2 On the entire record, the Board makes the follow-
ing findings.
I. JURISDICTION
The parties stipulated that the Employer is a corpora-
tion with an office and place of business in Fort Worth,
Texas, where it is engaged in the manufacture of aircraft.
During the 12 months preceding the hearing, a represen-
tative period, the Employer sold and shipped goods from
its Fort Worth, Texas facility valued in excess of $50,000
directly to points located outside the State of Texas. The
parties stipulated, and we find, that the Employer is en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that the IAM and the IBEW are
labor organizations within the meaning of Section 2(5) of
the Act.

1 Unless otherwise indicated, all dates refer to 2007.
2 Effective midnight December 28, Members Liebman, Schaumber,
Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and
Kirsanow, as a three-member group, all of the Board’s powers in an-
ticipation of the expiration of the terms of Members Kirsanow and
Walsh on December 31, 2007. Pursuant to this delegation, Chairman
Schaumber and Member Liebman constitute a quorum of the three-
member group. As a quorum, they have the authority to issue decisions
and orders in unfair labor practice and representation cases. See Sec.
3(b) of the Act.
II.THE DISPUTE
A. Background and Facts of Dispute
The Employer operates a military aircraft manufactur-
ing facility in Fort Worth, Texas. Five unions represent
various of its employees at this facility, including the
IAM and the IBEW, both of which represent Board-
certified units. The Employer’s collective-bargaining
agreement with the IAM, which became effective in
April 2006, covers approximately 3000 production and
maintenance employees, including Stationary Engineers,
who perform air-conditioning unit maintenance. The
Employer’s collective-bargaining agreement with the
IBEW, effective May 2006, covers approximately 60
electrician maintenance employees, who perform electri-
cal maintenance, refrigeration unit maintenance, and air-
conditioning maintenance.
Prior to 1989, the Employer followed a practice of us-
ing a “20-ton rule” when assigning air-conditioning
work. Under this rule, the Employer assigned the main-
tenance work for all air-conditioning units 20 tons or
greater to the IAM and all units less than 20 tons to the
IBEW. In 1989, the Employer, the IBEW, and the IAM
entered into an agreement with respect to work assign-
ments for air-conditioning work (1989 Agreement) to
resolve an increasing number of jurisdictional disputes
between the IAM and the IBEW over air-conditioning
unit installation and maintenance work. The 1989
Agreement provides in pertinent part:
1. Present work assignments will continue as they exist
as of the date of this Agreement. If there is a replace-
ment of an existing unit, the classification presently as-
signed will continue to be assigned, regardless of the
size of the replacement unit or units. Attached to this
agreement is a listing of units and work assignments as
they currently exist. Exceptions to this general rule will
be made for the following:
• Chilled water units, which will be assigned to
Stationary Equipment Mechanics3
• Units for equipment cooling, which will be
assigned to Electricians-Maintenance A—
R&A
Although the 1989 Agreement does not address the 20-ton
rule, the Employer followed this rule prior to 1989 and con-
tinues to use the 20-ton rule in making air-conditioning
maintenance work assignments.
The IBEW filed grievances over the Employer’s appli-
cation of the 20-ton rule in 1995 and 1999. The Em-

3 The classification “Stationary Equipment Mechanics” was subse-
quently changed to “Stationary Engineers,” still represented by the
IAM.
MACHINISTS LODGE 776 (LOCKHEED MARTIN) 403
ployer did not alter its use of this practice in response to
these grievances. As a result of the 1995 grievance, the
Employer agreed to furnish the IBEW with information
regarding the future assignment of air-conditioning unit
work and developed a recordkeeping system to track air-
conditioning unit work assignments.
The dispute that led to this case arose in 2005, when
the Employer installed four air-conditioning units—two
15-ton units and two 20-ton units. The Employer ini-
tially assigned the four units to employees represented by
the IBEW. The IAM subsequently objected to the as-
signment with respect to the two 20-ton units. Thereaf-
ter, the Employer reexamined its decision and reassigned
the two 20-ton units to the IAM-represented employees.
The IBEW subsequently filed a grievance, arguing that
the units in question should be assigned to the IBEW
pursuant to the 1989 Agreement. On August 13, the
IAM threatened to picket the Employer if the Employer
assigned the disputed work to members of the IBEW.
The Employer thereafter filed the instant charge, assert-
ing that the IAM violated Section 8(b)(4)(D) of the Act.
B. Work in Dispute
The parties stipulated that the work in dispute is the
maintenance on two, 20-ton air-conditioning units in
building 8, bay 2 data center at the Employer’s Fort
Worth, Texas facility.
C. Contentions of the Parties
The Employer contends that there is reasonable cause
to believe that the IAM has violated Section 8(b)(4)(D)
because there are competing claims to the work, the IAM
threatened to picket if the Employer assigned the work to
the IBEW-represented employees, and there is no
agreed-upon voluntary method of adjustment of the dis-
pute. On the merits of the dispute, the Employer asserts
that employer preference, past practice, economy and
efficiency of operations, and job loss favor awarding the
disputed work to IAM-represented employees. Specifi-
cally, the Employer maintains, among other things, that it
relied on its past practice of using the 20-ton rule in as-
signing the disputed work to IAM-represented employ-
ees. It also contends that its assignment of the disputed
work was consistent with the terms of the 1989 Agree-
ment.
The IAM agrees with the Employer that the work is
properly assigned to its employees based on past prac-
tice; however, it does not rely on the 20-ton rule but
rather contends that it is entitled to the disputed work
under the “replacement” clause of the 1989 Agreement.
The IAM also contends that the IBEW misinterprets the
equipment cooling provision in the 1989 Agreement.4
The IBEW contends that because the two, 20-ton air-
conditioning units are used to cool rooms containing
computers, the maintenance work for those units should
be assigned to the IBEW under the 1989 Agreement’s
“units for equipment cooling” exception.
D. Applicability of the Statute
Before the Board may proceed with determining a dis-
pute pursuant to Section 10(k) of the Act, there must be
reasonable cause to believe that Section 8(b)(4)(D) of the
Act has been violated. This standard requires finding that
there is reasonable cause to believe that there are compet-
ing claims to the disputed work among rival groups of
employees and that a party has used proscribed means to
enforce its claim to the work in dispute. See Electrical
Workers Local 3 (Slattery Skanska), 342 NLRB 173, 174
(2004). Additionally, the Board will not proceed under
Section 10(k) if there is an agreed-upon method for vol-
untary adjustment of the dispute. Id. For the reasons
stated below, we find reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred, and that the
dispute is properly before the Board for determination.
1. Competing claims for the work
All three parties have stipulated that the IAM and the
IBEW have made competing claims for the air-
conditioning maintenance work on the two units at issue
here. Accordingly, we find that competing claims to the
disputed work exist.
2. Use of proscribed means
The parties do not dispute that there is reasonable
cause to believe that a party used proscribed means to
enforce its claim to the work. All parties have stipulated
that IAM President Tim Smith threatened to picket the
facility with an object of forcing the Employer to assign
the disputed work to the IAM rather than the IBEW.
This establishes reasonable cause to believe that the IAM
has used proscribed means to enforce its claim to the
work in violation of Section 8(b)(4)(D). See Bricklayers
Local 1 (Cretex Construction Services), 343 NLRB
1030, 1032 (2004).

4 Notwithstanding the parties’ initial stipulation, the IAM now fur-
ther contends that the cooling unit work on the two 15-ton units as-
signed to the IBEW also belongs to the IAM-represented employees
pursuant to the replacement clause of the 1989 Agreement. We need
not address that issue. The stipulated work in dispute and the IAM’s
threat involved the maintenance of the 20-ton air-conditioning units
only, and that is the sole issue that we decide in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD404
3. No voluntary method for adjustment of dispute
The parties stipulated, and we find, that there was no
agreed-upon method for the voluntary resolution of this
dispute that would bind all the parties.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work after considering various
factors. NLRB v. Electrical Workers Local 1212 (Co-
lumbia Broadcasting), 364 U.S. 573, 577 (1961). The
Board has held that its determination in a jurisdictional
dispute is an act of judgment based on common sense
and experience, reached by balancing the factors in-
volved in a particular case. Machinists Lodge 1743 (J. A.
Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certification and collective-bargaining agreements
The parties stipulated that the work in dispute is not
specifically covered by any Board certification or order.
The Employer is currently a party to separate collective-
bargaining agreements with both the IAM and the IBEW.
Neither agreement specifically covers the work in dis-
pute. Therefore, the factor of certification and collective-
bargaining agreements does not favor an award to em-
ployees represented by either Union.
2. Employer preference and current assignment
The Employer prefers to assign, and has assigned, the
disputed work to employees represented by the IAM. We
therefore find that these factors favor an award of the
disputed work to the IAM-represented employees.
3. Employer past practice
The Employer has a long-established practice of using
a 20-ton rule when assigning air-conditioning work. As
explained above, under this rule, the Employer assigns
the maintenance work for all air-conditioning units 20
tons or greater to employees represented by the IAM and
all units less than 20 tons to the IBEW-represented em-
ployees. The Employer currently uses this 20-ton rule.
The Employer also applies the 1989 Agreement in mak-
ing air-conditioning maintenance work assignments. The
Employer’s assignment of the disputed work on the two
units to the IAM-represented employees is consistent
with both the 1989 Agreement and the 20-ton rule.5

5 The Employer and the IAM interpret the 1989 Agreement differ-
ently with respect to the 20-ton rule. While the Employer interprets the
agreement to incorporate the 20-ton rule, the IAM contends that the
agreement supersedes the rule. Although we find that the assignment
of the disputed work to the IAM is consistent with the 1989 Agreement,
we do not pass on the issue of whether the 1989 Agreement incorpo-
rates or supersedes the 20-ton rule.
Therefore, under either the Employer’s practice of apply-
ing the 1989 Agreement or the 20-ton rule, the factor of
past practice supports awarding the disputed work to
IAM-represented employees.6
4. Area and industry practice
The parties presented no evidence with respect to area
or industry practice. Thus, we find that this factor does
not support an award of the disputed work to either group
of employees.
5. Economy and efficiency of operations
The Employer argues that economy and efficiency of
operations favors assigning the work to employees repre-
sented by the IAM. The Employer reasons that its well-
established practice of applying both the 1989 Agree-
ment and the 20-ton rule have made its operations more
efficient by preventing jurisdictional disputes. There-
fore, it reasons that because its assignment of the work to
the IAM is consistent with its past practice, this will have
a positive impact on its operational efficiency. The re-
cord, however, contains no evidence that employees rep-
resented by either Union can perform the disputed work
more efficiently. Because the Employer has not adduced
any relevant evidence regarding this factor, we find that
this factor does not favor awarding the work in dispute to
the IAM-represented employees.
6. Job loss
The Board will sometimes consider job loss when
making an award of the work in dispute. See, e.g., Iron
Workers Local 40 ( Unique Rigging), 317 NLRB 231,
233 (1995). The Employer argues that if the work is
awarded to the employees represented by the IBEW, the
loss of six to eight IAM jobs is likely, but provides no
evidentiary support for this claim. The evidence here is
thus insufficient to establish that awarding the work to
the IBEW employees would result in the loss of IAM
jobs. Accordingly, we find that this factor does not favor
awarding the work to the IAM-represented employees.

6 There is no support for the IBEW’s claim that the disputed work
should be assigned to the IBEW under the 1989 Agreement’s “units for
equipment cooling” exception. Witnesses for the Employer testified
that the parties to the 1989 Agreement did not intend the “units for
equipment cooling” exception to apply to units that cooled rooms con-
taining computers. The Employer’s senior facilities engineer, who
participated in the negotiations for the 1989 Agreement, explained that
the language in the second exception was intended to cover work the
IBEW had been performing on certain cooling units that were attached
to pieces of equipment. Further, the evidence shows that since 1995,
several units, newly installed for the purpose of cooling rooms with
computers, have been assigned to employees represented by the IAM.
MACHINISTS LODGE 776 (LOCKHEED MARTIN) 405
Conclusions
After considering all the relevant factors, we conclude
that employees represented by the IAM are entitled to
continue performing the work in dispute. We reach this
conclusion relying on the factors of employer preference,
current assignment, and past practice. In making this
determination, we award the work to employees repre-
sented by the IAM, not to that labor organization or to its
members. The determination is limited to the controversy
that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees of Lockheed Martin Aeronautics Com-
pany, represented by the International Association of
Machinists and Aerospace Workers, District Lodge 776,
are entitled to perform the maintenance on two, 20-ton
air-conditioning units in building 8, bay 2 data center at
the Employer’s Fort Worth, Texas facility.