Metal Polishers, Buffers, Platers, Etc., Local 39

National Labor Relations Board - Board Decisions

Dec 18, 1964

150 N.L.R.B. 536 (N.L.R.B. 1964)

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its employees , as set forth in paragraph 11 of the complaint ; (c) promulgated and
enforced an unlawful no-solicitation rule; and (d) engaged in any unfair labor prac-
tices other than as above found.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their union membership,
activities, or sympathies in a manner constituting interference ,- restraint, or
coercion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT threaten our employees with discharge if they join or retain
membership in, or engage in activities on behalf of , the Union.
WE WILL NOT maintain a broad no-solicitation rule prohibiting our employees
from soliciting for any purposes whatsoever on company premises.
WE WILL NOT discourage membership in Local Union 934, International
Brotherhood of Electrical Workers, or in any other labor organization , by' dis-
charging , laying off, or refusing to reinstate any of our employees, or in any
other manner discriminate in regard to hire or tenure of employment, or any
term or condition of employment , in violation of Section 8(a) (3) of the Act.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of the right to self-organization , to form, join, or assist
Local Union 934, International Brotherhood of Electrical Workers, or any other
labor organization , to bargain collectively through representatives of their own
choosing , to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection , and to refrain from any and all such activities.
WE WILL offer Paul Carroll immediate and full reinstatement to his former
or substantially equivalent position , without prejudice to his seniority and other
rights and privileges , and will make him whole for any loss of pay he may have
suffered by reason of our discrimination against him.
All of our employees are free to become, remain , or to refrain from becoming or
remaining , members of Local Union 934, International Brotherhood of Electrical
Workers, or any other labor organization.
TENNESSEE PLASTICS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NoTE.-We will notify the above -named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 528
Peachtree-Seventh Building , 50 Seventh Street, NE., Atlanta , Georgia, Telephone No.
Trinity 6-3311 , Extension 5357, if they have any questions concerning this notice or
compliance with its provisions.
Metal Polishers, Buffers, Platers and Platers' Helpers Inter-
national Union, Local 39 and Lodge 1405 of the International
Association of Machinists, AFL-CIO, Charging Party and
Dominion Electric Corporation . Case No. 8-CD-36. Decem-
ber 18, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, following a charge filed on November 19, 1963,
150 NLRB No. 7.
METAL POLISHERS, BUFFERS, PLATERS, ETC., LOCAL 3 9 537
by Lodge.1405 of the International Association of Machinists, AFL-
CIO, herein called Machinists, alleging that Metal Polishers, Buffers,
Platers and Platers' Helpers International Union, Local 39, herein
called Polishers, had violated Section 8(b) (4) (D) of the Act. A
duly scheduled hearing was held before Hearing Officer Nora Friel
on January 21 and 22, 1964. All parties appearing were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to adduce evidence bearing on the issues. The rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Briefs were filed by the Employer and by the Polishers who appeared
at the hearing as a party to the dispute.
Upon the entire record in the case, the Board 1 makes the following
findings :
1. THE BUSINESS OF THE EMPLOYER
Dominion Electric Corporation is an Ohio Corporation engaged in
the manufacture of small electrical household appliances at its plant
in Mansfield, Ohio. Annually it ships from its Mansfield, Ohio,
plant, directly to points located outside the State of Ohio, finished
products valued in an amount in excess of $50,000. We find that the
Employer is engaged in commerce within the meaning of. the Act,
and that it will effectuate the policies of the Act to assert jurisdiction
herein.
H. THE LABOR ORGANIZATIONS INVOLVED
The Polishers and Machinists are labor organizations within the
meaning of Section 2 (5) of the Act.
III. THE DISPUTE
A. The work at issue
The work which gave rise to this proceeding consists of work per-
formed by "dingmen" in the salvage department and employees in
the drill/punch press department represented by the Machinists. On
August 29, 1963, the Polishers' representative protested the practice
of using more than one grinding wheel at a time in the salvage de-
partment contending that work utilizing in excess of one grinding
wheel was within the jurisdiction of the Polishers. The Polishers
also claimed jurisdiction over the grinding work in the drill press
department to the extent that it involves using a power-operated file
mounted in the brace of a jigsaw.
In 1941, the Machinists Union was certified as representative of the
employees of the Employer in the following unit :
'Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three-member panel [ Members Fanning, Brown,
and Jenkins].
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All employees of the Company, excluding polishers, buffers, platers
and platers' helpers, supervisors, foremen, watchmen, timekeepers,
office and clerical help, tool-and-die makers, machinists and appren-
tices, and inspectors under the supervision of the engineering depart-
ment, but including shippers and receivers....
In 1947, an employee represented by the Machinists requested and
was given permission to try and repair certain material destined for
the scrap heap. The work involved "dinging" or hammering out
dents, deep scratches, mars, or other defects in the surface of the
articles marked for scrap. The employee was successful in saving
much of this material, and was thereafter assigned to the salvage
department where he is presently employed. His work consists of
the dinging operation, followed by the use of either one or both of
two portable grinders used to grind out the hammer or ding marks.
In the drill press department, the Employer recently adapted a drill
press and jigsaw to take and hold a rotary file and a straight file,
respectively. These two power files have been used to remove burrs
on the inside and outside of tubing cut on the cutoff saw located in
the drill press department.
The Polishers have been recognized by the Employer for all em-
ployees in the polishing and plating departments since 1935 and,
since that time, its members have performed polishing, buffing, and
plating work pursuant to a series of contracts with the Employer. In
1959, the Polishers and the Employer entered into a 2-year agree-
ment containing the following recognition clause :
The Company agrees to recognize the Union as the sole bar-
gaining agent for all employees of the polishing and plating
department and all other employees engaged in the trade in any
department through any committee....
However, in 1961, the Polishers' contract contained the following
clause:
It is mutually agreed that Local 39 has jurisdiction over all
polishing, buffing, plating or grinding jobs at Dominion. How-
ever, it is also mutually agreed that grinding jurisdiction shall
not include grinding performed by employees of the Tool Room
and Maintenance Department and grinding performed by one
grinding wheel in the Salvage Department. [Emphasis supplied.]
In May 1963, the Polishers and the Employer reached agreement on
a new contract modifying the recognition clause so that the final
sentence read :
... and grinding performed by one grinding wheel in the
Salvage Department when used in casual salvage.
METAL POLISHERS, BUFFERS, PLATERS, ETC., LOCAL 39 539
On August 29, 1963, the Polishers, at a meeting with the Employer,
protested the practice of using more than one grinding wheel in the
salvage department, claiming that this work as well as the grinding
in the drill press department belonged to their members. At 1 p.m.
the members of the Polishers punched out, held a brief meeting across
the street, and then appeared in front of the premises carrying picket
signs. As a result of the strike, the Polishers and the Employer
agreed to a further modification of the previously noted clause on
grinding by adding the following :
What constitutes casual salvage shall be mutually agreed to
by Local 39 and the Company prior to performing such work.
However, it is agreed that casual salvage includes -the grinding
of such materials that has been dinged by "dingmen" in the
Salvage Department.
B. Contention of the parties
The Employer contends that the Board should find a jurisdictional
dispute and assign all work performed with grinding wheels, emery
wheels, sanding disks, or other types of abrasive wheels to the Ma-
chinists where the wheels have a diameter of 8 inches or less.
The Machinists contends that the Polishers engaged in a strike or
threatened to strike to force the Employer to assign the disputed
work to members of the Polishers. It further contends that the
grinders used in salvage and the power files in the drill press depart-
ment are machine tools rather than polishing equipment.
The Polishers claims all work involving the use of abrasives or
emery. It states it does not claim salvage work but takes the posi-
tion that when the work in salvage requires the use of more than
one grinder, under its contract, it is entitled to this work. It also
claims the jig-file work but at the hearing disclaimed any interest in
the work done with the rotary file.
C. Applicability of the statute
Section 10(k) of the Act empowers the Board to determine the dis-
pute out of which a Section 8(b) (4) (D) charge has arisen. How-
ever, before the Board proceeds with a determination of dispute, it
must be satisfied that there is reasonable cause to believe that Section
8(b) (4) (D) has been violated.
As previously set forth, the record clearly shows that the Polishers
picketed the Employer' s premises and caused a work stoppage among
the employees for the purpose of forcing the Employer to assign
certain work to members of the Polishers Union rather than to mem-
bers of the Machinists Union. Accordingly, we find, on the entire
record, that there is reasonable cause to believe that a violation of
00
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a
Section 8(b) (4) (D) has occurred and that the work dispute is prop-
erly before the Board for determination under Section 10(k) of
the Act.
D. Merits of the dispute
Section 10 (k) of the Act requires the Board to make an affirma-
tive award of disputed work after giving due consideration to vari-
ous relevant factors.2 The record shows that although both unions
have contractual relations with the Employer, the Machinists were
certified by the Board in 1941 for a unit that is essentially a pro-
duction and maintenance unit specifically excluding "polishers, buff-
ers, platers and platers' helper." At the same time, this unit descrip-
tion did not in any way refer to "grinders" as a separate job classi-
fication nor was it specifically excluded from the Machinists' bar-
gaining unit. The classification of grinder did not appear, insofar
as the unions are concerned, until 1959, when the Polishers first
secured the inclusion of this job in the recognition clause of its
contract. But it should be noted that the Polishers' claim to the
work is primarily based on its contention that the work is in fact
polishing within the meaning of the term. We further note that
the contract clause was extended to include grinding in the fact of
the Machinists' certification and without any notice to or showing
of acquiescence by the Machinists. At the same time, if grinding is
in fact polishing, then there is no encroachment on the Machinists'
certification. Although the Polishers claim grinding as another
aspect of polishing and thus within its jurisdiction, the record does
not support such a contention. On the contrary, the record estab-
lishes that "grinding" as a work function with the Employer herein
is more applicable to the worn task of production cutting or remov-
ing of excess material rather than to the limited function of polish-
ing or surface finishing. Thus, although the Polishers would claim
all "grinding" without more, the record shows that production em-
ployees represented by the Machinists have for years operated scis-
sors grinders, belt sanders, spindle sanders, disc sanders, and bench
disc grinders, all of which are used to remove burrs from various
pieces made in the production process.
The record shows that the skills and experience necessary to be a
dingman in the salvage department are in many respects dissimilar
to the work normally done by polishers or buffers. Unlike the pol-
isher, dingman have to work with hammers, screwdrivers, jigs, files,
side cutters, and wrenches in addition to the power grinders. Also,
there is no showing that the grinding done by the dingman is con-
sidered either complicated or highly skilled work. As to the work
2 N.L.R B. v. Radio & Television Broadcast Engineers Union, Local 1212, International
Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System), 364
U.S. 573.
METAL POLISHERS, BUFFERS, PLATERS, ETC., LOCAL 39 541
of operating the rotary file and the jig file, it is clear that prior to
the adaptation of these machines to filing work, they were operated
by employees represented by the Machinists assigned to the drill
press department. In addition, much of the work now being per-
formed on the power files had heretofore been performed by em-
ployees represented by the Machinists using hand files.
An affirmative award in favor of the employees represented by the
Machinists would be supported by the fact that they are apparently
capable of satisfactorily performing that portion of their work in-
volving grinding. The record in no way indicates that in perform-
ing this work they also are required to perform the specialized
skills usually possessed and exercised by journeymen polishers. As
the dingmen and employees in the drill press department enjoy sub-
stantially the same terms and conditions of employment, and work
in the same area under the same supervision of the other production
employees, we find that the dingmen and drill press employees are
in fact production employees.
As to efficiency and economy of operation, it is clear that the work
of grinding out ding marks can best be performed in the salvage
department. Otherwise, it would be necessary to find that it is more
efficient to have the dingman hammer out the dents, carry the'piece
to the polishing department where the hammer marks would be
ground out, and thereafter send the piece back to the production
area where it would be again placed in the production line. The
strained result becomes even more apparent when considered in con-
text with the Polishers' claim to the power file work. The alterna-
tive to moving the product around, i.e., the stationing of members
of the Polishers in the salvage department and drill press room is
also unsatisfactory, as the two classes of employees are subject to
different terms and conditions of employment as well as separate
supervision. Thus the evidence demonstrates that it is substantially
more practicable to assign the work of grinding in the salvage de-
partment to the dingman rather than to require the Employer to
transfer the work back and forth between departments or to assign
a polisher to the salvage department for the sole purpose of oper-
ating a grinding wheel. It is also clear that this same rationale
applies to the power files in the drill press department, particularly
since the power files are located next to the cutoff saw, the machine
that creates the burrs that the power files are used to remove.
On the basis of the record as a whole, and on appraisal of the
relevant considerations, including the Employer's assignment of the
work, the nature of the work, the skills of the employees represented
by the Machinists and their experience to perform the work, and
the fact of operational feasibility, we shall determine the existing
jurisdictional dispute by awarding the work of operating the grind-
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers in the salvage department and the power files in the drill press
department to the employees of the Employer represented by the
Machinists, rather than to employees represented by the Polishers.
Our present determination is limited to the controversy which gave
rise to this proceeding. In making this determination, we are as-
signing the disputed work to the employees in the bargaining unit
presently represented by the Machinists, and not to the Machinists
or its members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings of fact and upon the
entire record in this case, the Board makes the following Determina-
tion of Dispute pursuant to Section 10(k) of the Act:
1. Employees performing grinding work in the Employer's sal-
vage department and employees performing grinding in the drill
press department are appropriately included in the bargaining unit
presently represented by Lodge 1405 of the International Associa-
tion of Machinists, AFL-CIO, and not in the bargaining unit now
represented by Metal Polishers, Buffers, Platers and Platers' Helpers
International Union, Local 39, and are entitled to do the work of
grinding in the above-named departments.
2. Metal Polishers, Buffers, Platers and Platers' Helpers Interna-
tional Union, Local 39, is not and has not been entitled to force or re-
quire Dominion Electric Corporation to assign to Polishers' members,
the work of grinding in the salvage and drill press departments.
3. Within 10 days from the date of the Decision and Determina-
tion of Dispute, Metal Polishers, Buffers, Platers and Platers'
Helpers International Union, Local 39, shall notify the Regional
Director for Region 8, in writing, whether or not it will refrain
from forcing or requiring Dominion Electric Corporation, by means
proscribed by Section 8(b) (4) (D), to assign the work in dispute to
its members rather than to the employees of the Employer repre-
sented by Lodge 1405 of the International Association of Machinists,
AFL-CIO.
Trojan Freight Lines, Inc. and Nick Vitantonio . Case No. 8-CA-
3439. December 22, 1964
DECISION AND ORDER
On October 1, 1964, Trial Examiner Ramey Donovan issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
150 NLRB No. 39.