McDonnell Co.

National Labor Relations Board - Board Decisions

Oct 21, 1968

173 N.L.R.B. 225 (N.L.R.B. 1968)

McDONNELL CO. 225
McDonnell Company and International Association of
Machinists and Aerospace Workers, AFL-CIO,
District Lodge No. 9 and International Brother-
hood of Electrical Workers, AFL-CIO, Local No.
1. Case 14-UC-5
October 21, 1968
DECISION AND ORDER
CLARIFYING CERTIFICATION
Upon a petition duly filed under Section 9(b) of
the National Labor Relations Act, as amended, a
hearing was held before Herman W. Glaser, a Hearing
Officer of the National Labor Relations Board. The
Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
Thereafter, the Employer and the Unions filed briefs.
Upon the entire record in this case, the Board
finds:
The petition herein filed seeks clarification of a
craft unit of the Employer's construction and mainte-
nance electricians at its principal place of business at
Lambert Field, St. Louis, Missouri, which unit the
Board in 1948 certified in behalf of International
Brotherhood of Electrical Workers, AFL-CIO, Local
No. 1, herein called the Electrical Workers, following
its severance from a production and maintenance unit
represented by International Association of Machin-
ists and Aerospace Workers, AFL-CIO, District
Lodge No. 9, herein called the Machinists, certified by
the Board in 1941.2 The Employer requests a
clarification which would find that maintenance and
calibration work on items of production testing
equipment known as Brooks and Emerson circuit
analyzers, used in testing the electrical circuitry of
military aircraft and spacecraft is production work
and therefore outside the scope of the Electrical
Workers' unit. The Machinists agree. The Electrical
Workers contends that the Brooks and Emerson
circuit analyzers are essentially plant equipment and
that the maintenance and calibration work thereon is
therefore properly within the scope of its unit.
Prior to the filing of the instant petition, the
Machinists initiated grievance and arbitration proceed-
ings from which the Electrical Workers were excluded
by the Machinists. An arbitration award issuei - in
favor of the Machinists on May 26, 1965, holding that
its contract with the Employer covered the disputed
work. Separate arbitration proceedings were also
initiated by the Electrical Workers in which the
Machinists declined to participate. This proceeding
resulted in an award dated August 12, 1966, favoring
the Electrical Workers by construing that Union's
contract also to encompass the work in issue. In
September 1966, the Electrical Workers filed suit in
the United States District Court, Eastern District of
Missouri, to enforce the arbitration award of arbitra-
tor Carlson, which favors it, and to have the award in
conflict therewith declared null and void. The Ma-
chinists intervened in this proceeding, seeking en-
forcement of the award of arbitrator Erbs, and
requesting that the Carlson award be declared null
and void. An order was issued by the Court on
January 19, 1967, abating all action before it until
resolution of this proceeding before the Board.
Before reaching the merits w^ must dispose of the
procedural issue raised by our dissenting brothers and
by the parties. The dissenters, in essential agreement
with the Machinists, would have the Board dismiss the
petition, taking the position that it involves a work
assignment dispute rather than a representation
matter, quoting from the Supreme Court's decision in
Carey v. Westinghouse Electric Corp 3 However, the
Supreme Court emphasized in its Carey holding at
268, "the blurred line that often exists between work
assignment disputes and controversies over which of
two or more unions is the appropriate bargaining
unit." It later added, at 269,
As the Board's decisions indicate, disputes are
often difficult to classify. In the present case the
Solicitor General, who appears amicus, believes the
controversy is essentially a representational one. So
does Westinghouse. IUE on the other hand claims it
is a work assignment dispute. Even if it is in form a
representation problem, in substance it may involve
problems of seniority when lay-offs occur ...
[citations omitted] ... or other aspects of work
assignment disputes.
Moreover, the controversy which gave rise to the
decision in Carey v. Westinghouse, which the Court
described as "a so-called `jurisdictional' dispute" was
finally determined and laid to rest only by a Board
decision in the unit clarification proceeding Westing-
house Electric Corp, 162 NLRB No. 81.
For reasons spelled out below, we conclude that
what we are concerned with here is essentially a unit
issue, arising from enlargement and extension of the
Employer's production operations, and involving an
accretion to the Machinist unit of production em-
ployees. But in addition we note that in their effort
to resolve this dispute the parties have been before
1 The Employer 's name appears as amended at the hearing. The
Employer's posthearing brief indicates that its name has since been
changed to McDonnell Douglas Corporation
2 At the hearing all parties to the proceeding entered into a
stipulation that the Machinists , District 9, "was certified by the Board
as the collective bargaining representative for all the Employer's
173 NLRB No. 31
employees at the Robertson , Missouri , plant . . " with the usual
statutory exclusions Whether a unit has been formally certified by the
Board or exists solely by virtue of contract negotiations , it is subject to
a motion for clarification See Brotherhood of Locomotive Firemen,
and Engmemen , 145 NLRB 1521.
3 375 U S 261.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two arbitrators, the courts, and now the Board No
complaint is before us, from which we believe that we
may reasonably infer that during all those attempts to
settle and adjust this conflict of interests both unions
have laudably refrained from engaging in the type of
conduct condemned by the Act's Section
8(b)(4)(D).4 Thus, at best, if we decline to assert our
jurisdiction in this matter, the Court will have to
select one of two ex parte arbitration awards for
enforcement without an independent analysis of the
merits. On the other hand, here all of the parties have
participated in the proceedings before the Board's
Hearing Officer, where some 600 pages of record
testimony have been received. All parties have filed
very thorough briefs before us. We do not believe that
by declining to accept the Employer's petition for
unit clarification, and thus subjecting the parties to
additional litigation, expense and delay, we will be
serving the purposes of the Act Stated affirmatively,
we believe the Board's unit clarification and certifica-
tion amendment procedures are well adapted to the
disposition of the issue posed herein.'
The Electrical Workers' Unit
In 1948, the Board certified the Electrical Workers
as the exclusive bargaining representative of the
Employer's employees in the following craft unit,
severed from the Machinists' production and mainte-
nance unit:
All construction and maintenance electricians,
their helpers and apprentices, including those
included in the classifications electrician-mainte-
nance, Grades 1 and 2, but excluding clerical
employees, guards, professional employees and all
supervisors.
At the time of the Electrical Workers' certifica-
tion, the Employer had approximately 3950 employ-
ees, of which 2300 were in the Machinists' unit. Of
this latter number, about 60 employees were in the
job classifications of the Electrical Workers' unit.
Currently, the Machinists' unit comprises some
21,000 employees, and the Electrical Workers' unit
comprises some 300 employees.
The employees in the Electrical Workers' unit,
attached to the Plant Engineering Department, are
responsible for the construction and maintenance of
the physical plant electrical systems and equipment.
Save for changes in plant size and technology, their
functions and responsibilities have remained essential-
ly unchanged since the certification of their bargain-
4 That the issue resulting from the Employer's introduction of new,
highly sophisticated, specialized production and testing equipment
which was never anticipated or specifically covered at the time of the
Board's earlier certifications of the competing unions could now be
raised for Board consideration by strike action and a charge of a viola-
tion of Section 8(b)(4)(D) does not bar us from exercising our parallel
authority under Section 9(b) on proper motion to clarify the
certification on the basis of the full record now before us
mg unit in 1948. Ninety percent of the electrical
workers have permanent work stations in the various
plant buildings, while the remainder work on call
throughout the plant, where they are engaged in plant
maintenance, including lighting systems, power distri-
bution equipment, refrigeration equipment, machine
tool electrical systems, electrical and electronic instru-
ments, general-purpose instruments, and kindred
equipment.
The Employer's Circuit Analyzers
At the time of the Electrical Workers' certifica-
tion, the Employer had no circuit analyzers.6 In
1955, some 7 years after the certification, the
Employer commenced acquiring circuit analyzers
known as DIT MCO Models 200 and 250, which it
used to check out the electrical circuitry in fighter
and photo reconnaissance model aircraft. In 1959, the
Employer commenced producing the F-4 fighter
aircraft, and from that date until 1963 used DIT
MCOs to test it. In 1963, in view of increased demand
for the F-4 fighter, the Employer commenced
replacing the DIT MCO Model 200 and 250 with the
faster, more sophisticated and more effecient Brooks
analyzer, for testing the F-4. It still retains some DIT
MCOs for testing reconnaissance aircraft on slower
production lines. In 1965, the Employer also secured
a single Emerson circuit analyzer, more sophisticated
than the Brooks, to replace a DIT MCO Model 250. It
also acquired a DIT MCO Model 610-A and a DIT
MCO Model 610-F, more advanced than the early
DIT MCO models, for testing spacecraft, at the time
of hearing the former was on loan and the latter was
not in use
The operation of all circuit analyzers has always
been performed by employees represented by the
Machinists. Maintenance of the DIT MCOs, however,
has always been performed by employees represented
by the Electrical Workers. Upon acquiring the Brooks
and Emerson circuit analyzers, the Employer assigned
the maintenance and calibration thereof to the
Machinists. This action led to grievances filed by the
Electrical Workers and, eventually, to two arbitration
proceedings pursuant to the Electrical Workers' and
the Machinists' contracts, which in May 1965 and
August 1966 resulted in diametrically opposite
awards of this work to the Electrical Workers and the
Machinists, respectively.'
The DIT MCO 200 and 250 model circuit ana-
lyzers, with their model 450 and 800 multipliers, are
5 See generally the discussion in Brotherhood of Locomotive
Firemen and Enginemen , supra at 1523-24.
6 Circuit analyzers are in the shape of boxes about 3 feet high which
are wheeled up to aircraft and attached to their electrical circuits by
means of a harness
7 We accord no weight to the arbitration awards, in view of the ex
parte nature of those proceedings , the incomplete evidence adduced,
and the conflict in the awards
McDONNELL CO 227
described by the Employer's chief manufacturing
engineer as relatively simple electrical devices in-
tended to take the place of an electrician who uses a
light and a probe to determine whether current or
circuitry is closed and therefore is free from short
circuits or miswiring. They are essentially patchboards
composed of batteries of lights, arranged in a matrix
of stepping relays which allow a speedier testing of
circuitry than can be obtained by hand tools These
analyzers, however, lack the ability to test important
resistance factors, preclude high-speed checking of
one point of the circuitry to be tested against another
in order to determine a leakage between the two, and
fail to provide the sophisticated check-out required
by the Employer for complex electronic-type
systems. While the DIT MCO 610-A and 610-F
models appear to be as sophisticated as the Brooks,
the spacecraft they checked out were far less compli-
cated than the F-4 fighters, which require up to 10
times as much wiring. The Employer has found no
need for specially training or assigning any given
number of employees represented by the Electrical
Workers to maintain any of the DIT MCO models
which, as noted above, have always been operated by
Machinist-represented employees. Calibration of the
DIT MCO 200 and 250 models is simply a matter of
functional adjustment and does not fall within estab-
hshed calibration procedures, described below, for
testing the Brooks, Emerson, and other more complex
electrical and electronic measuring and testing de-
vices.
In contrast to the DIT MCO 200 and 250 models,
the Brooks is a sophisticated tape-controlled circuit
analyzer for determining defects in circuitry by the
comparison of a test-run tape with a master tape run
through the machine. It can test up to 5,000 circuit
points, as against 500 for the DIT MCO's other than
the 610-A and 610-F. It is closely integrated into
the Employer's continuous production line on the
basis of a 38-hour time allowance for checking out
the circuits of each F-4 plane. The Employer assigns
15 specially trained Machinists, including 7 full-time
and 8 part-time employees, to maintain the Brooks.
These employees, known as MERS (mechanical-
electrical and radio), work in close contact with the
Brooks operators, known as MEES (mechanics-
electrical and electronics), whenever a faulty circuit
reading is obtained and a question arises as to whether
the Brooks or the airplane is at fault. Inasmuch as the
specialized maintenance training of the MERS encom-
passes the operation of the Brooks, it may occur, in
situations where lengthy tests must be run to deter-
mine the source of the fault, that a MER, through his
ability to operate the Brooks, can thereby relieve a
MEE for other production-line functions, thus avoid-
ing a slowdown of the production line. This would be
impossible were an employee represented by the
Electrical Workers to maintain the Brooks, inasmuch
as he would be incapable of operating it, thereby
needlessly necessitating the presence of a MEE on a
standby basis. The MEES are under production
supervision while working on the Brooks analyzers.
Although the Brooks can be programmed to test a
variety of equipment, as a practical matter, it is
devoted to the single purpose of producing the F-4
plane due to the time consumed in adapting it to that
function. This is evidenced by the fact that it takes 4
to 8 months to program a Brooks to test the F-4 and
to prepare the necessary harness and connectors
therefor.'
The Emerson, currently maintained and calibrated
by a single MER, is more sophisticated than the
Brooks, and unlike the latter, can check out elec-
tronic circuits. It was formerly used by the Employer,
but at the time of the hearing was being used by
Conductron Corporation at St. Charles for checking
out the "black boxes" of electronic gear manufac-
tured by the latter for installation in the F-4 fighter
during final assembly. Calibration of the Brooks and
Emerson, unlike the early DIT MCO's, involves the
adjustment thereof to certain parameters which must
be traced back to measurements established by the
National Bureau of Standards. The MEES calibrate
the Brooks and Emerson.9
In these circumstances, and in view of the high
degree of integration of the Brooks and Emerson
circuit analyzers into the Employer's production
processes and schedules, its single-purpose character
in that regard, and the sophisticated nature of this
equipment, requiring specialized skills and training
and a knowledge of airplane circuitry already posses-
sed by the employees represented by the Machinists,
we find that the Brooks and Emerson circuit ana-
lyzers are essentially production equipment, and that
the maintenance and calibration of such production
equipment are therefore an outgrowth of the work
performed by the Employer's production and mainte-
nance employees at the time the Machinists were
certified to represent them. We therefore conclude
that the personnel performing this maintenance and
calibration work are an accretion to the Machinists'
8 In this regard , we note that the current contract between the
Employer and the IBEW provides ( in part) in art XIX , sec. 2 (e) that
11 . . Specially designed equipment used to test which can be used for
one purpose only shall not be covered [ by this Agreement] ... '
9 Although the IBEW was furnished a calibration laboratory by the
Employer in 1964, the Employer 's March 1965 , attempted assignment
of this work to the IBEW was not carried out because of the arbitration
proceedings then instituted by the IAM.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit and we shall accordingly clarify its certification
to include them.' °
ORDER
It is hereby ordered that the certification hereto-
fore issued to the International Association of
Machinists and Aerospace Workers , AFL-CIO,
District Lodge No. 9 be, and it hereby is, clarified by
specifically including therein the employees engaged
in the maintenance and calibration of the Brooks and
Emerson circuit analyzers.
MEMBERS BROWN AND J ENKINS , dissenting:
The Employer assigned certain maintenance work
to employees within a certified unit represented by
the Machinists Union. The Electrical Workers Union
claims that the disputed work should be transferred
to a different group of employees whom it separately
represents in another certified unit. In this present
Unit Clarification proceeding the Board majority
decides that the work properly belongs to the
employees represented by the Machinists.
Contending that the present proceeding should be
dismissed because it involves a work assignment
dispute rather than a representation matter, the
Machinists Union calls attention to Carey v. Westing-
house, 375 U.S. 261, where the Supreme Court stated
in part:
We have here a so-called "jurisdictional" dispute
involving two unions and the employer. But the
term "jurisdictional" is not a work of a single
meaning. In the setting of the present case this
"jurisdictional" dispute could be one of two
different, though related, species: either - (1) a
10 We find without merit the Machinists' contention that the instant
petition should be dismissed on the ground that no question concerning
representation exists, it being well established that clarification does not
require the existence of a question concerning representation. The Gas
Service Company , 140 NLRB 445 , Mississippi Lime Company, 124
NLRB 884.
See also Brotherhood of Locomotive Firemen and Engmemen,
supra , where the authority of the Board to clarify a bargaining unit in
the absence of a question concerning representation was exercised to
determine the unit placement of certain employees, even though the
unit had been created by the parties ' long history of bargaining and not
by Board certification The appropriateness of this procedure has been
controversy as to whether certain work should be
performed by workers in one bargaining unit or
those in another; or (2) a controversy as to which
union should represent the employees doing a
particular work. If this controversy is considered to
be the former, the National Labor Relations Act
(61 Stat. 136, 73 Stat. 519, 29 U.S.C. Sec. 151 et
seq.) does not purport to cover all phases and
stages of it. While Sec. 8(b)(4)(D) makes it an
unfair labor practice for a union to strike to get an
employer to assign work to a particular group of
employees rather than to another, the Act does not
deal with the controversy anterior to a strike nor
provide any machinery for resolving such a dispute
absent a strike. The Act and its remedies for
jurisdictional' controversies of that nature come
into play only by a strike or a threat of a strike.
Such conduct gives the Board authority under Sec.
10(k) to resolve the dispute (pp. 263-264).
... As noted, the Board clarifies certificates where
a certified union seeks to represent additional
employees , but it will not entertain a motion to
clarify a certificate where the union merely seeks
additional work for employees already within its
unit. See General Aniline & Film Corp., 89 NLRB
467; American Broadcasting Co, 112 NLRB 605;
Employing Plasterers Assn., 118 NLRB 17
[ emphasis supplied ] (pp. 268-269).
We would dismiss this unit clarification proceeding
because, in our opinion, the subject dispute does not
involve a representation matter.
given further explicit recognition in the Board 's published Rules and
Regulations , Sec 102 60(b)
A petition for clarification of an existing bargaining unit or a petition
for amendment of certification, in the absence of a question
concerning representation , may be filed by a labor organization or by
an employer. and in its Statements of Procedure , Sec. 101.17
If there is a certified or currently recognized representative of a
bargaining unit and there is no question concerning representation, a
party may file a petition for clarification of the bargaining unit.
Ingersoll Products Division (Chicago Works) of the Borg-Warner
Corporation, 150 NLRB 912 , is hereby overruled to the extent that it
implies that a question concerning representation , as distinguished from
a representation type issue , is essential to unit clarification.