Marlon Power Shovel Co., Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1977

230 N.L.R.B. 576 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marion Power Shovel Company, Inc., Employer-
Petitioner and United Steelworkers of America,
Local 1949, AFL-CIO 1 and International Associa-
tion of Machinists and Aerospace Workers, Local
Lodge 1281, AFL-CIO.2 Cases 8-UC-103 and 8-
RM-719
June 28, 1977
DECISION AND CLARIFICATION OF
UNIT
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer William M.
Kohner of the National Labor Relations Board.
Following the hearing, and pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations and Statements of Procedure, Series
8, as amended, by direction of the Regional Director
for Region 8, this proceeding was transferred to the
Board for decision. Thereafter, the Employer and the
Machinists 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 finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
I. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Unions are labor organizations within the
meaning of the Act and claim to represent certain
employees of the Employer.
3. This proceeding presents issues concerning (1)
the existence of a question concerning representa-
tion, (2) appropriate bargaining units, and (3)
deferral to arbitration.3
The UC and RM petitions were filed by the
Employer as a result of competing claims for
representation by the Steelworkers and Machinists
arising out of the reorganization and expansion of
the Employer's plant facilities at Marion, Ohio,
commencing in 1974. At the conclusion of hearings
in August 1975 the Employer employed about 1,250
I Herein called Steelworkers.
2 Herein called Machinists.
3 The Machinists filed a motion to dismiss the proceedings as barred by
collective-bargaining agreements entered into with both Unions after the
petitions were filed. The Machinists does not discuss this question in its
230 NLRB No. 85
employees in its two plants. Approximately 880 were
members of the Steelworkers (765 at Plant I and 1 15
at Plant 2), approximately 155 were members of the
Machinists at Plant 2, and the remaining approxi-
mately 215, who worked in the Employer's expanded
facilities at Plant 2, were claimed by both Unions.
The Employer's UC petition requested that the
Steelworkers unit be clarified to add the employees in
the expanded facilities in the Plant 2 area to its
existing unit. The RM petition requested the Board
to find a single unit of production and maintenance
employees in both plants to be the only appropriate
unit and to direct an election in that overall unit.4
The presence of two unions representing employees
engaged in similar functions at the Employer's two
plants is the outgrowth of its historical development.
Prior to 1955, the Employer's only facility was the
West Center Street Plant in Marion, herein referred
to as Plant 1, where it manufactured and produced
both large and small earthmoving machines. Its
employees at Plant I were and still are represented
by the Steelworkers. In 1955, the Employer pur-
chased the Marion, Ohio, facilities of the Osgood
Company, herein referred to either as the Osgood
Plant or Plant 2. This facility is located approximate-
ly 1-1/2 miles from Plant 1. Osgood's primary
products were small earthmoving machines, and at
the time of the acquisition its employees were
represented by the Machinists. Following the acqui-
sition of the Osgood Plant, the Employer discontin-
ued the production of Osgood machines and pro-
duced its own line of small earthmoving machines at
the Osgood Plant using the former Osgood employ-
ees who continued to be represented by the Machin-
ists. During the early years, employee interchange
between the two plants was infrequent because of the
separate representation and the requirement that
employees change their union affiliation with inter-
plant transfers.
Between 1959 and 1963, the Employer discontin-
ued its line of small shovels and made several
transfers of production facilities and employees from
Plant I to the Osgood Plant with resulting disputes as
to the union representation of these employees. The
Machinists claimed all employees at the Osgood
plant, and the Steelworkers claimed employees at the
Osgood plant doing work transferred from Plant 1.
In 1963, an agreement was reached between the
Employer and the Unions which departed from the
prior practice of representation based exclusively on
geographical considerations and gave some effect to
lengthy brief filed with the Board. The motion is hereby dismissed as lacking
in merit.
4 In its brief to the Board, the Employer argues that a single unit is the
only appropriate unit.
576
MARION POWER SHOVEL COMPANY, INC.
the transfer of functions from Plant I to the Osgood
Plant. Under the agreement, the Steelworkers contin-
ued to represent employees at Plant I but also was
granted jurisdiction over employees working at the
Osgood Plant in buildings I and X. The Machinists
continued to represent the remaining employees in
the Osgood Plant including those employees in
buildings I and X who worked on a plantwide basis.
This arrangement remained in effect without dispute
until 1974.
In 1973, in the light of a substantial increase in the
demand for large power shovels, the Employer
formulated plans for a major expansion of its
facilities. Because Plant I was surrounded by streets
and railroad tracks, the Employer concentrated its
expansion program at the Osgood plant location.
Pursuant to this program, the Employer purchased
approximately 90 acres surrounding the Osgood
plant and thereafter commenced construction of
additions of existing facilities and new buildings,
building Y, building Z (Ironton Building), the Weld
Pad area, the outside storage area, employee parking
lots, and a new substation were completed in 1974
and 1975. Construction of building W was com-
menced. The Employer also leased the Sycon
Building as part of its expansion program. Following
the availability of these new structures in 1974 and
1975 the Employer moved production equipment
from Plant I into the new facilities in the Osgood
Plant area, hired new employees, and transferred
other employees from Plant I. With each transfer of
work or the manning of an additional facility
representation disputes arose.5
After Building Y was completed, the Employer
recognized the Steelworkers to represent its employ-
ees. On October 9, 1974, the Machinists filed a
grievance demanding that it be recognized. When the
Employer recognized the Steelworkers to represent
storekeepers in the Sycon Building, the Machinists
demanded their representation. When the Employer
recognized the Machinists for maintenance employ-
ees servicing the Sycon Building, the Steelworkers
filed a grievance claiming representation. When the
Employer recognized the Steelworkers for employees
at the new Weld Pad, the Machinists demanded
recognition. When the Employer recognized the
Steelworkers for employees in the new Z Building,
the Machinists lodged a grievance for recognition. In
1974 both Unions struck over demands for recogni-
tion.
Faced with these conflicting demands of both
Unions seeking representation of the newly hired and
transferred employees working in the expansion
, The status of foundry workers represented by the International
Molders Union is not in dispute.
6 On January 30. 1975, the Employer had filed a petition in Case 8-RM-
facilities, the Employer on January 30, 1975, filed the
instant UC petition and on March 4, 1975, after both
the Steelworkers and Machinists contracts had
expired, filed the instant petition in Case 8-RM-
719.6 The Machinists contends that the UC petition
for clarification should be dismissed, that the Board
should defer to arbitration under the respective
collective-bargaining agreements, that the expanded
facilities in the Osgood plant area are within the
Machinists unit, that there is no question concerning
representation, that in light of the bargaining history
a single unit is not appropriate, and that even if it is
appropriate, it is not the only appropriate unit
because the existing units of Steelworkers and
Machinists are also appropriate. The Steelworkers
initially took the position that all production and
maintenance employees would comprise the appro-
priate collective-bargaining unit within the scope of
either the UC or RM petition. After the hearing
closed, the Steelworkers, by letter, in lieu of a brief,
stated that its position "in this case is neutral," that it
would comply with its contractual obligations with
the Machinists "not to raid," that it would "partici-
pate in the pending arbitration with respect to the
jurisdiction of the Unions," and that it did not waive
the right "to representation of persons or a unit to
which the Steelworkers Union is otherwise entitled."
The appropriateness of deferring to arbitration
obviously depends on the nature of the dispute
involved. In early 1975 during negotiations for new
contracts both Unions demanded recognition as
representative for all employees in Plant 2, including
the employees previously represented by the other
Union. At the present time, however, the Steelwork-
ers has abandoned any claim to represent employees
in the pre-1974 Machinists unit and the Machinists
has abandoned any claim to employees in the
comparable Steelworkers unit. But each Union
continues to claim representation of employees in the
facilities in the Plant 2 area, not a part of the original
Osgood Plant, that were constructed or acquired in
1974 or later.
This dispute thus presents issues of whether a
question of representation is present and what is the
appropriate unit or units for the Employer's produc-
tion and maintenance employees. We do not believe
the Board should defer consideration of these issues
to the parties' contract arbitration procedure. The
determination of questions of representation, accre-
tion, and appropriate unit do not depend upon
contract interpretation but involve the application of
statutory policy, standards, and criteria. These are
718. Because of then existing contracts which did not expire until March 1.
1975, and fearing a possible assertion of the contract-bar rule, the Employer
withdrew the petition in Case 8-RM-718.
- -
577
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matters for decision of the Board rather than an
arbitrator.s See Combustion Engineering, Inc., 195
NLRB 909 (1972); Hershey Foods Corporation, 208
NLRB 452 (1974); The Pulitzer Publishing Company
(Owner and Operator of Stations KSD and KSD-TV),
203 NLRB 639, 641 (1973); Westinghouse Electric
Corporation, 162 NLRB 768 (1967). We therefore
proceed to the merits of the case.
The conflicting claims to representation of the
employees in the expanded Plant 2 area facilities at
first blush suggest the existence of a question of
representation. It is clear, however, that the added
facilities are merely an extension of the Employer's
existing plants. The same character of work is
performed in the enlarged complex as was previously
carried on in Plants I and 2. The amount of work has
been increased and the manner of accomplishing it
has been reorganized and relocated. The employees
in the expanded facilities utilize the same skills and
work under the same job classifications that obtained
in Plants I and 2. These employees, therefore, do not
constitute a separate appropriate unit in which a
question of representation is present.
A question of representation would be present,
nevertheless, if their inclusion in either the Steel-
workers or Machinists unit were equally appropriate
and a self-determination election were necessary to
determine their placement. An examination of this
problem is therefore in order.
The Employer's expanded and reorganized facili-
ties have been and are now operating on an
integrated basis with production flowing from Plant
I to Plant 2, the expanded Osgood plant, and vice
versa. Much of the work at Plant 2 was originally
performed at Plant 1, and was transferred to Plant 2
between 1959 and 1963, as previously noted. Trans-
fers on a much larger scale occurred as a result of the
Employer's major expansion which commenced in
1974 and the concomitant reorganization of its
production flow. The Employer also transferred from
Plant I to the expanded facilities in Plant 2
machinery and equipment, supervisory personnel,
and some employees. The expansion resulted in the
further integration of the Employer's operations by
shifting the emphasis of production from Plant I to
the Plant 2 area. The manufacturing capacity of the
Plant 2 area more than doubled as a result of the
expansion. The concentration of the Employer's
material flow was located at Plant 2 rather than Plant
I after the expansion.
7 On December 11, 1975, an arbitrator issued an award finding that
Marion Power Shovel Company, Inc., did not violate its contracts with
either the Machinists or the Steelworkers by recognizing the Steelworkers as
the bargaining representative for employees of its new weld building and
annex (building 'Y'). He further found that the matter of representation of
employees at the Ironton Building (building 'Z') was not arbitrable. Though
As a result of the integration of operations between
Plant I and Plant 2 there has been an interchange of
Steelworkers unit employees between the plants and
among the buildings, there is common supervision,
similar job classifications and skills are involved, all
employees share a community of interest, and the
expanded facilities are in close geographic proximity
to buildings I and X in Plant 2 where employees are
members of the Steelworkers. The employees in the
added Plant 2 area structures would constitute less
than 20 percent of the unit if deemed an accretion to
the existing Steelworkers unit. If the Steelworkers
were the exclusive representative of production and
maintenance employees at both plants, there is little
doubt that their accretion to the Steelworkers would
be considered appropriate.
The Machinists, however, claims the expansion
employees under the terms of their contract which
defines its jurisdiction as including "all production
and maintenance employees employed at the Osgood
plant" excluding employees in building I or building
X. The Machinists contends that the expansion
employees, not being in buildings I or X, are literally
within the scope of their contract jurisdiction. Even if
we were to agree, which we do not, that the phrase
"Osgood plant" encompasses all structures, new and
old, in the Plant 2 area rather than just those
acquired from the Osgood Company in 1955, we
would have difficulty in finding the expansion
employees an accretion to the Machinists unit.
The employees in the new facilities number
approximately 215 compared to the present Machin-
ists unit of approximately 155 employees. Because of
the different union jurisdictions, there is virtually no
interchange of employees between the two groups of
employees. The work in the expanded plant area is
principally an extension of the work done in Plant 1
and buildings I and X in Plant 2. When work was
previously transferred from Plant I to buildings I
and X, the Machinists agreed in 1963 to the
Steelworkers taking jurisdiction of the employees
performing that work. Moreover, the Machinists has
acknowledged that the work performed by its
members differs somewhat from that of the Steel-
workers members.
When the parties agreed in 1963 to exclude
buildings I and X from its jurisdiction, the Machin-
ists was left with the Cab Shop, a few smaller
buildings used for storage and similar support
services, and the indirect employees (plantwides) at
Plant 2. The Machinists asserts that the cab construc-
the award does not deal with the representation of employees at all of the
Employer's expansion facilities, its result-as to building 'Y-is consistent
with our Decision herein. However, as stated above, the issues arising in this
case are matters for resolution by the Board, and we therefore do not rely on
the arbitrator's award in rendering our Decision.
578
MARION POWER SHOVEL COMPANY, INC.
tions, which its members perform, is a distinct
function in manufacturing moving or earthmoving
machines. The cab is constructed basically of sheet
metal and is the only portion of the shovel machinery
that is so constructed. The light welding involved in
sheet metal work differs from the heavy welding
performed by the Steelworkers members and the cab
shop has its own supervision. The cab is a distinct
element of the final product. Accordingly, relying on
the bargaining history and the foregoing factors, the
Machinists argues in its brief to the Board that Cab
Shop and plantwide employees constitute an appro-
priate separate unit. In the circumstances, we find
that the expansion employees cannot constitute an
accretion to the Machinists unit.
Notwithstanding the various factors relied upon by
the Machinists to justify a separate unit for the Cab
Shop and plantwides, we would find all the produc-
tion and maintenance employees in Plants I and 2 to
constitute a single appropriate unit were it not for the
long bargaining history of a separate Machinists unit.
The Machinists unit dates back to a period prior to
1955 when the Employer acquired the Osgood plant.
The modified unit recognized in 1963 has remained
unchanged to the present time.
Thus the Machinists unit has a history of collective
bargaining in the Osgood plant covering more than
two decades. For the past 12 years it has represented
Cab Shop, support service, and plantwide employees
at Plant 2. The Board has long held that it will not
disturb an established bargaining relationship unless
required to do so by the dictates of the Act or other
compelling circumstances. 8 We find no justification
in the requirements of the Act or the present
situation for disrupting the pattern of collective
bargaining that has continued at Plant 2 for nearly 20
years. In the light of this long-established bargaining
history, we find that the Machinists unit at Plant 2
continues to constitute an appropriate unit for
purposes of collective bargaining. We also find,
however, that a unit composed of the Machinists unit
and the expansion employees would not be appropri-
ate.
I The Great Allantic & Paciic Tea Company, Inc., 153 NLRB 1549 (1965).
9 In view of these findings, the self-determination election which our
dissenting colleague would direct would be inappropnate.
Since we find the expansion employees constitute a
proper accretion to the Steelworkers unit, do not
constitute a proper accretion to the Machinists unit,
and would not be an appropriate unit if added to the
Machinists unit, there is no question of representa-
tion with respect to this group of employees.9
Accordingly, we shall dismiss the RM petition and
clarify the unit represented by the Steelworkers. We
find that the following constitutes a unit appropriate
for purposes of collective bargaining within the
meaning of 9(b) of the Act:
Plant production and maintenance employees in
the Company's West Center Street Plant and
production and maintenance employees whose
work is performed in and is specifically directed
to the work being performed in building "I" and
"X," the new weld building and annex (building
"X"), the Ironton building (building "Z") of the
Company's Osgood plant, the Barks road com-
plex and the Sycon Building, all in the County of
Marion, Ohio, but excluding employees who
perform work in any of the buildings in the
Osgood plant area as a part of work performed on
a plantwide basis common to other parts of the
Osgood plant area and all other employees
heretofore excluded from the Steelworkers collec-
tive-bargaining unit, including office clerical
employees, guards, and supervisors as defined in
the Act.
MEMBER MURPHY, dissenting:
I disagree with my colleagues' action in dismissing
the RM petition and clarifying the unit by including
the disputed employees in the unit represented by the
Steelworkers. In my view, those employees may be
part of either unit and are entitled to an opportunity
to indicate whether they desire to be represented by
the Machinists or the Steelworkers. Accordingly, I
would direct a self-determination election with both
Unions on the ballot.
579