Metal Polishers Local 128

National Labor Relations Board - Board Decisions

Oct 6, 1971

193 N.L.R.B. 534 (N.L.R.B. 1971)

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metal Polishers , Buffers, Platers and Helpers Interna-
tional Union, Local 128, AFL-CIO and Thorsen
Manufacturing Company and International Associ-
ation of Machinists and Aerospace Workers, Local
Lodge 1566, AFL-CIO. Case 20-CD-313
October 6, 1971
DECISION, DETERMINATION OF
DISPUTE, AND ORDER QUASHING
NOTICE OF HEARING IN PART
By CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
charges filed on October 12, 1970, by Thorsen
Manufacturing Company, herein called the Employ-
er, alleging that Metal Polishers , Buffers, Platers and
Helpers International Union , Local 128, AFL-CIO,
herein called the Metal Polishers , had violated Section
8(b)(4)(D) of the Act by engaging in certain pros-
cribed activity with an object of forcing or requiring
the Employer to assign certain work in dispute to
employees represented by the Metal Polishers , rather
than to employees represented by International
Association of Machinists and Aerospace Workers,
Local Lodge 1566, AFL-CIO, herein called the
Machinists. Pursuant to notice , a hearing was held
before Hearing Officer Dean Francis on various dates
from December 15, 1970, until May 17, 1971. All
parties appeared at the hearing and were afforded full
opportunity to be heard , to examine and cross-
examine witnesses , and to adduce evidence bearing
on the issues. The rulings of the Hearing Officer made
at the hearing are free from prejudicial error and are
hereby affirmed . The Employer, the Metal Polishers,
and the Machinists have filed briefs which have been
duly considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three -member
panel.
Upon the entire record in this case , the Board makes
the following findings:
1. THE BUSINESS OF THE EMPLOYER
Thorsen Manufacturing Company is engaged in the
manufacture of mechanics' handtools at its Emery-
ville, California, facility. During the past year, it
shipped goods valued in excess of $50,000 directly to
points outside the State of California and received
and purchased goods valued in excess of $50,000
directly from points outside the State of California.
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.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that the
Machinists and the Metal Polishers are labor organi-
zations within the meaning of Section 2 (5) of the Act.
III. THE DISPUTE
The notice of hearing in this case referred to the
assignment of the operation of four machines at the
Employer's Emeryville facilities: the Harper polishing
machine; the Clair polishing machine; the vibrating
machine; and the Acme belt sanding machine. At the
hearing, the parties stipulated that the dispute
encompassed the operation of five additional ma-
chines: the Chick production centerless machine; the
Engelberg centerless polishing machine; the Porter-
McLeod polishing machine; the Acme circumference
polisher and grinder; and the Ryman edge grinder.
The parties further stipulated that the Metal Polishers
engaged in a strike on October 12, 1970, to compel the
Employer to assign the operation of these machines to
employees represented by the Metal Polishers. How-
ever, the Metal Polishers took the position that the
operation of the Ryman edge grinder was not a
subject of the strike.
A. Background
The Employer has had collective-bargaining agree-
ments with the Machinists since about 1941. Early in
World War II, the Employer was unable to obtain
enough journeymen machinists who could do its
polishing work, which was then done by hand.
Accordingly, at the suggestion of the Machinists, the
Employer hired members of the Metal Polishers to do
this work. Since then, the Employer has been a party
to successive collective-bargaining agreements with
the Metal Polishers, either as an individual employer
or as a member of the California Metal Trades
Association. The Employer now has approximately 20
to 30 employees represented by the Metal Polishers
and approximately 150 employees represented by the
Machinists.
The work done by the Metal Polishers consisted of
the hand polishing of small tools on polishing lathes
containing moving belts or wheels. The quality of the
work depended on the skill of the individual polisher
in rotating the tool and holding it properly against the
face of the wheel. The Employer still has about 10 to
12 polishing lathes, which are operated by metal
polishers. However, the Employer has also acquired a
193 NLRB No. 60
METAL POLISHERS LOCAL 128 535
number of machines which perform, in an automatic
or semiautomatic fashion, some of the functions
formerly performed by hand on the polishing lathes.
The Employer assigned the operation of these
machines to employees represented by the Machin-
ists, on the ground that the machine, rather than the
skill of the operator, determined the quality of the
finished product. In 1959, the Metal Polishers filed a
grievance over the assignment of the operation of one
such machine to a member of the Machinists,
contending that it violated a clause in the Metal
Polishers' contract providing that "the Employer will
not reassign any work presently done by members of
[the Metal Polishers] . . . to members of any other
Union in his shop."' A compromise was proposed
whereby the operation of the Engelberg centerless
machine would be assigned to employees represented
by the Metal Polishers, while employees in the
Machinists' unit continued to operate the Cincinnati
platen machine. This settlement broke down when the
Cincinnati platen machine was removed from the
Employer's plant, and the Machinists' unit employees
have continued to operate the Engelberg centerless
machine.
In 1964, when the Employer assigned the operation
of the Ryman edge grinder to employees represented
by the Machinists, the Metal Polishers filed a
grievance. In a subsequent arbitration proceeding in
which the Machinists did not participate, the arbitra-
tor awarded this work to members of the Metal
Polishers' unit. The Employer, upon putting the
Porter-McLeod polishing machine into operation
shortly after this award, assigned its operation to the
metal polishers because it seemed indistinguishable in
principle from the Ryman edge grinder. The Machin-
ists filed a grievance, and an arbitration proceeding
was held. The Metal Polishers did not participate in
this arbitration, and the arbitrator was not informed
of the arbitration award concerning the Ryman edge
grinder. He ruled that the machinists were entitled to
operate the Porter-McLeod. When the Employer, in
compliance with the arbitrator's award, reassigned
this work to the machinists, the Metal Polishers filed
unfair labor practice charges with the Board, alleging
violations of Sections 8(a)(1), (3), and (5) of the Act.
These charges were dismissed by the Regional
Director for Region 20, whose action was sustained
by the General Counsel on appeal. Thereafter, the
Metal Polishers filed suit in the United States District
Court for the Northern District of California, alleging
that the Employer had breached its contract by
i This provision has not appeared in the Employer's contracts with the
Metal Polishers since 1959
2 The Employer was notified of the unions ' plan in a letter from the
Metal Polishers' business agent to the Employer's president which has been
made part of the record in this proceeding The letter stated that the parties
would also submit the dispute over the operation of the "burnish finish
refusing to assign the operation of the Porter-McLeod
to members of the Metal Polishers' unit. The
Employer and the Metal Polishers later stipulated that
this suit would be dismissed upon the submission of
the dispute to a new arbitrator for a final and binding
decision. The arbitration proceeding, in which the
Machinists did not participate, did not result in any
final decision because the Metal Polishers' attorney
died before the arbitration hearing was concluded.
Meanwhile, disputes had arisen concerning the
operation of the other machines involved in this
proceeding. The Employer urged both unions to
arrive at a negotiated settlement of the dispute. At one
point, it proposed that future assignments of ma-
chines alternate between the two unions, but this
proposal was rejected. In 1968, the Employer negoti-
ated separately with the Metal Polishers for a new
contract, rather than negotiating through the Califor-
nia Metal Trades Association as it had done in the
past. It proposed a contract term providing that the
operation of machines would be assigned to employ-
ees represented by the Metal Polishers when the
manual skill of the operator was the major factor in
controlling the work operations but that such work
would be assigned to employees represented by the
Machinists when the machine was the major factor in
controlling the work operations. This proposal was
not accepted, and the Employer ultimately put into
effect all of the terms of the master collective-
bargaining agreement between the Metal Polishers
and the California Metal Trades Association.
In June 1970, the two unions notified the Employer
that they had agreed to submit the dispute over the
operation of the Harper and Clair polishing machines
and the Acme circumference polisher and grinder to
the AFL-CIO Jurisdictional Dispute Board for a
binding decision.2 However, the AFL-CIO Jurisdic-
tional Disputes Board concluded that it did not have
jurisdiction to determine the dispute. Thereafter, the
metal polishers walked off the job, and the unfair
labor practice charges in the instant case were filed. In
view of the pendency of this proceeding before the
Board, the Employer and the Metal Polishers have
agreed that the pending arbitration proceeding
concerning the Porter-McLeod polishing machine
will not be resumed.
B. The Work in Dispute
As indicated above, the dispute concerns the
operation of the following machines:
machine" to the AFL-CIO Jurisdictional Disputes Board It is not clear
what machine this refers to The work now performed on the vibrating
machine was formerly done on a machine called the burnishing barrel,
which was operated by a member of the Machinists, but the Employer no
longer has this machine in its plant
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Chick production centerless machine has been in
operation at the Employer's plant for more than 15
years. The Employer now has five such machines,
which are operated by employees represented by the
Machinists. These machines grind and polish round
bar parts with variable cylindrical diameters. They
have two wheels: a rubber regulating wheel which
determines the speed at which the part turns and the
rate of speed at which it oscillates back and forth
across the face of the wheel, and a larger pushing
wheel which has belts and a grinding abrasive which
removes metal while the work is rotating slowly. This
work was formerly done on the polishing lathe, where
the operator had a skate strapped to his waist, and the
pressure of the operator's body behind the skate
pushed the part up against the polishing wheel as it
spun at a fairly high rate. On the Chick production
centerless machine, the operator uses a foot pedal to
apply and remove pressure from the regulating wheel.
After the work on this machine is done, the wrench
goes to the plater or the Harper polishing machine to
have the circumference of the head polished. The
operator of the Chick production centerless machine
makes minor adjustments such as changing the belts
(which last 4 to 6 hours) and adjusting the height of
the work rest between the two wheels, the distance
between the rubber regulating wheel and the polishing
belt, the angle of the regulating wheel, and the tension
on the belt. Major repairs are made by the machinist
leadman about once a week; the metal polisher
leadman would have to be trained to make them.
The Employer has had Engelberg centerless polishing
machines in its plant for more than 10 years and now
has three or four such machines, which are operated
by members of the Machinists' unit. This machine
grinds and polishes the outside of cylindrical surfaces,
such as artillery shells, which have a constant
diameter; it also polishes most kinds of socket
wrenches. The machine consists of two pairs of
opposing wheels. In the first pair, one wheel does the
grinding while the other turns the work. The parts are
then automatically fed into position for the second
pair of wheels, one of which is a polishing wheel, while
the other turns the work and then ejects it. This work
was once done by hand on a polishing lathe, with the
operator manually holding the work on a spinning
belt; the operator's skill determined the speed with
which the part was rotated, the length of time the part
was held against the wheel, and the pressure which
was applied to the wheel. On the Engelberg centerless
polishing machine, all of these functions are per-
formed by the machine itself . The operator simply
puts the belts on the machine; starts the machine;
feeds the parts in by dropping them into a chute, after
which the machine carries them through the entire
grinding and polishing cycle and automatically ejects
them ; and shuts off the machine at the end of a shift.
He also makes minor adjustments , such as changing
the belts , the tension on the belts , the method of
retracting the belts , the height of the work rest as it
passes between the two opposing wheels , the pressure
exerted on the parts , and the speed and angles of the
regulating wheels . To determine the need for these
adjustments , the operator inspects the socket wrench-
es after they have come through the machine on a spot
basis every 15 to 30 minutes . Any major adjustments
are made by the machinist leadman : it is unlikely that
the metal polisher leadman would have the skill to
make them.
The Employer has had the Ryman edge grinder in its
plant for approximately 8 years and now has four
such machines . They were originally assigned to
members of the Machinists ' unit , but were reassigned
to employees represented by the Metal Polishers in
1965 as a result of the arbitrator 's award discussed
supra, and are still being operated by the metal
polishers . This machine removes rough edges from
flat wrenches or end wrenches which are drop-forged.
This work was formerly done by hand on the
polishing lathe , where the operator held one side of
the wrench against the polishing wheel , oscillated it up
and down , and moved it transversely across the wheel
to remove the sharp burrs . On the Ryman edge
grinder , the machine brings the parts into contact with
the grinding belt, and the operator does not hold the
parts in his hand . The operator simply places the
wrench in a cradle , which is part of a device similar to
a ferris wheel and which carries the work in a circular
motion up one side of the machine and down the
other side in contact with a grinding or polishing belt
while the operator is placing other wrenches in other
cradles on the wheel . When one side of the wrench is
done, it drops into a chute, goes up a conveyor belt to
a tote tray , and is carried to another Ryman edge
grinder , where the process is repeated on the opposite
side of the wrench . The wrench is then carried to
another machine for vibrating or plating. The Ryman
edge grinder is turned off by the operator only during
rest periods or at the end of a shift . The operator
makes minor adjustments , such as replacing the belt
when the operation of the ferns wheel at a predeter-
mined speed fails to remove the rough edges of the
tool, dressing the edge of the belt with a carborundum
stone , cutting or whipping the belt to the proper size,
and adjusting the cradle to accomodate to the length
of a part which is being run through the machine. The
metal polisher leadman has been trained to make
major adjustments.
The Employer introduced the Porter -McLeod polish-
ing machine into its operations in 1965 and now has
four such machines which have been operated by
members of the Machinists' unit since the arbitration
METAL POLISHERS LOCAL 128 537
proceeding discussed supra. This machine grinds and
polishes both faces of a flat tool, such as an open end
wrench, simultaneously. It consists of two opposing
wheels, both of which have grinding grit or emery on
them. The operator loads the wrenches onto a rack,
which is placed in a cradle in the machine; a button is
pressed, and the machine lowers the rack between the
two wheels, oscillates them for a predetermined length
of time-approximately 45 seconds-and then lifts
the rack out of contact with the wheel. The grinding
and polishing are done on separate machines; when
the grinding is finished, the operator removes the rack
from the grinding machine and inserts it in the
polishing machine. When the polishing is also
finished, the operator removes the rack and unloads
it. This function was previously performed on a
polishing lathe, where the operator held the flat face
of the wrench against the circumference of the wheel
and oscillated it vertically and from side to side to
achieve a parallel face. Only one side of one wrench
could be done at a time on the polishing lathe,
whereas the rack on the Porter-McLeod polishing
machine holds 10 to 20 wrenches at once and grinds
or polishes both faces of each wrench simultaneously.
The operator makes minor adjustments, such as
changing the wheel pressure, the rate and amount of
oscillation, and the distance between the wheels. He
also places new rollers in the machines once a day,
putting glue and grit on the grinding rollers at that
time and spraying a buffing compound on the
polishing rollers several times an hour while the
machine is in operation. The machinist working
foreman makes major adjustments such as replacing
the racks; the metal polisher leadman generally lacks
the skill to do this.
The vibrating machines were acquired by the
Employer within the past 5 years, although similar
work has been done on burnishing machines since
before World War II. The Employer has six of these
machines, which are operated as three units of two
machines apiece. They are operated by members of
the Machinists' unit. The machine vibrates a cutting
compound against the surface of wrenches to remove
sharp cutting edges and burrs and to give the surface
of the wrench a smooth effect, to remove forging scale
from wrenches which have been forged, and to blend
in with the natural, unground part of the tool grinding
marks on a wrench which has been through the
Ryman edge grinder. This function was not done
before the installation of the vibrating machine; the
machine's other functions were performed primarily
by a subcontractor or in grit blasting machines in the
Employer's plant rather than by hand on the polishing
lathes. The operator inserts wrenches in vibrating
hoppers, loads the hoppers with a grinding medium
(usually some kind of stone), puts water into the
hopper, adds a little grinding pumice, then pushes a
button to start the machine. The industrial engineer
determines what kind of grinding compound is to be
used and how much of that compound and pumice
should be used. The machine runs from 2 to 12 hours,
depending on the type of work being ground, and then
automatically shuts itself off, whereupon the operator
uses a chute to unload it. Thereafter, further polishing
is done on the Porter-McLeod or Harper machine or
by hand on the polishing lathe. Apart from changing
the grinding compound, the operator does not make
adjustments on the vibrating machine; if the machine
fails to operate properly, a maintenance machinist
repairs it.
The Employer has one Harper polishing machine,
introduced in 1967 and operated by a member of the
Machinists' unit. This machine grinds and polishes
the circumference of round heads on the ends of box
wrenches and ratchet wrenches and, to some extent,
shapes the heads of the wrenches. This work was
formerly done on a polishing lathe, where the
operator held the wrench by hand against the
circumference of a moving wheel, moving the wrench
up and down the face of the wheel and rotating it on
its axis. On the Harper polishing machine, the
operator does not hold the tool; after putting the belt
on the machine, lubricating the belt, and adjusting the
tensions of the work parts to the belts, he simply
places the wrench on a spindle, which moves
continuously through about 40 stages. When the cycle
is completed, the operator removes the wrench from
the spindle and inspects the wrench to see whether it
has been properly cleaned; if it is not, he puts it
through the cycle again. The machine is sometimes
operated by two men; one puts wrenches on the
spindle at one end of the machine, while the other
removes the wrenches at the other end and puts fresh
wrenches on. When the wrenches are not coming out
properly cleaned, the operator changes the belts; this
occurs approximately every 4 hours. The operator
also makes other minor adjustments, such as changing
the spindles when this is necessary because of a new
job involving wrenches of a different size , adjusting
the tracking and tension of the belts, and adjusting the
rheostat which governs the speed with which the
spindle carries the tools across the face of the wheel.
Major adjustments are made by the machinist
working foreman, who is a journeyman machinist; it
takes about 6 to 12 months to train a man to be able to
make major adjustments on this machine.
The Employer first obtained the Clair polishing
machine in 1968 and now has two such machines but
has not placed them into operation on a production
basis or assigned employees to operate them. The
machine is designed to perform substantially the same
functions on flat tools, such as pliers or end wrenches,
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the Harper polishing machine performs on wrench-
es with round heads; it transports the tool under a
grinding belt, grinding wheel, polishing belt, or
polishing wheel, oscillates the tool back and forth for
a predetermined number of passes, and then returns
to its original position. It is anticipated that one of the
machines will be used for grinding, which requires a
fairly coarse grit which would be placed on a stone
wheel, an emery wheel, or a belt; and the other
machine will be used for polishing, for which a finer
emery is sprayed or painted onto a make-up wheel.
The machine will grind or polish one face of the tool
at a time. Similar work has been done on the polishing
lathe, where the operator holds the tool in his hand
and moves it up and down on the polishing face of the
wheel. On the Clair polishing machine, the operator
will simply load tools onto a template which will
automatically move under the wheel or belt for
grinding or polishing; when the predetermined
number of passes has been made, the template will
automatically return to its original position, where the
operator will unload it. The operator will also make
minor adjustments on this machine, such as changing
the spring tension on the polishing roll against the
tool, adjusting the fixture holding the tools if they are
loose in it, regulating the air cylinders which govern
the speed with which the fixture oscillates, and
changing the size of the oscillation pattern of the
fixture. Major adjustments will be made by the
machinist leadman; it would take 2 to 6 months to
train a man to make these adjustments.
The Employer obtained the Acme belt sanding
machine about 2 years ago. It formerly had two of
these machines, but now has only one at the
Emeryville plant, and that one is not being used in
production. It was operated on an experimental basis
by an employee represented by the Machinists. The
machine has two adjustable rolls which move in
opposite directions, thereby grinding or polishing
both faces of a flat wrench simultaneously. The
operator places the wrench on a fixture and then
pushes the fixture under the grinding or polishing
wheel for a number of passes, which is predetermined
but may be varied by the operator if necessary. After
holding the fixture under the wheel for about 5
seconds, the operator pulls it out by hand. Similar
work has been done on a polishing lathe, where the
operator determines the amount of pressure and
moves the work up and down the wheel by hand. On
the Acme belt sanding machine, however, the tool can
only go on the machine and under the grinding or
polishing belt, whereas on the polishing lathe it can be
moved in many directions and is thus easily spoiled.
The operator makes minor adjustments on this
machine, such as changing the tension on the wheel,
the belt, or the polishing roll, which determines how
much pressure is exerted on the grinding or polishing
process. Major adjustments have been made by the
machinist leadman, but apparently could be made by
the metal polisher leadman.
The Employer obtained an Acme circumference
polisher and grinder shortly before the hearing in this
case and assigned it to a machinist. This machine, like
the Harper polishing machine, grinds and polishes the
circumference or periphery of a round ring on the end
of a handle (e.g., a box wrench or ratchet wrench).
The machine has two spindles and can thus do two
jobs simultaneously. On a polishing lathe, the opera-
tor would do this work by making contact between the
machine and the piece in his hand and moving the
piece on a radius with the pivot in the center of the
ring, which would polish around the radius. On the
Acme circumference polisher and grinder, the opera-
tor simply puts the belts on the machine, loads the
spindles, and starts the machine by pushing a button;
it stops automatically at the end of a cycle. While the
machine is in operation, the operator loads the next
rack. The operator also adjusts gauges and dials which
regulate the amount of oscillation and the amount of
pressure exerted on a tool and adjusts the spindle to fit
the size of the wrench which is being worked on. The
machinist leadman or working foreman will make
major adjustments; in fact, the leadman has been
operating the machine on an experimental basis.
C. Contentions of the Parties
The Employer contends that the operation of the
disputed machines should be awarded to employees
represented by the Machinists, since this award would
be consistent with the Employer's established practice
of assigning members of the Machinists' unit to
operate automatic or semiautomatic machines the
operation of which requires little or no skill. In
addition, it contends that the factors of efficiency and
economy favor awarding the disputed work to the
machinists, since most of the machines in question
perform both grinding and polishing operations, both
of which should be done by one individual, and the
metal polishers admittedly do not do precision
grinding. Moreover, the Employer contends, the
metal polisher leadman or working foreman would
have to undergo extensive training to be able to
perform major adjustments on these machines,
whereas the machinist leadman and working foreman
already have the necessary experience, skill, and
training. Finally, the Employer argues, assignment of
the disputed work to the metal polishers would result
in a substantial dislocation of the existing work force,
whereas awarding the work to the machinists would
have little effect on the members of either union.
The Machinists is in substantial agreement with the
METAL POLISHERS LOCAL 128
Employer's contentions, but also contends that its
contract with the Employer covers the work done in
dispute, which, according to the Machinists' constitu-
tion, is work traditionally within the Machinists'
jurisdiction.
The Metal Polishers contends that the disputed
work should be awarded to employees represented by
the Metal Polishers, since the machines in question
perform work previously performed by the metal
polishers. In addition, the Metal Polishers contends
that this work requires the superior skills of its craft,
that the assignment of the work to the machinists is
contrary to industry practice, and that the arbitration
award with respect to the Ryman edge grinder
supports the Metal Polishers' position, whereas the
adverse arbitration award concerning the Porter-
McLeod machine should be given no weight, since the
arbitrator in that proceeding was not informed of the
prior decision concerning the Ryman edge grinder.
Finally, the Metal Polishers denies that efficiency,
economy, or the Employer's past practice favors the
Machinists and points out that these arguments and
the others raised by the Employer were considered
and rejected by the arbitrator who awarded the
operation of the Ryman edge grinder to the metal
polishers.
D. Applicability of the Statute
The charge filed herein alleges a violation of Section
8(b)(4)(D) of the Act. The parties stipulated that the
filing of the charge resulted from a strike of approxi-
mately 3 hours' duration by members of the Metal
Polishers on October 12, 1970, and that the dispute
involves the operation of the machines described
above. However, counsel for the Metal Polishers
stated that the Ryman edge grinder-the only one of
the disputed machines currently operated by the
Metal Polishers-was not a subject of the strike and
that its operation has not been the subject of a
continuing dispute. The record indicates that the
Machinists never filed a grievance concerning the
operation of this machine after the Employer, in
compliance with the arbitration award described
supra, reassigned it to the metal polishers. There is no
evidence that the Machinists have engaged in conduct
proscribed by Section 8(b)(4)(D) of the Act to compel
3 The parties agree that the Board should determine the dispute with
respect to the machines not currently in operation Our doing so is
consistent with past Board decisions applying determinations of disputes to
work to be done in the future where it was likely that such disputes would
occur on any such work E g, Local 167, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO (Rebel Erectors, Inc),
171 NLRB No 81, International Association of Bridge, Structural and
Ornamental Iron Workers, Local 3, AFL-CIO (Brayman Construction
Company), 151 NLRB 1233, 1238
4 The arbitration proceeding commenced by the Employer and the
Metal Polishers with respect to the Porter-McLeod machine, but now
abandoned , does not preclude a Board determination of the dispute with
539
a reassignment of this machine to the machinists, or
that the Metal Polishers have engaged in proscribed
conduct to prevent such a reassignment. We therefore
find that no dispute cognizable under Section 10(k) of
the Act exists with respect to the operation of the
Ryman edge grinder. Accordingly, we shall quash the
notice of hearing with respect to this machine.
On the basis of the facts stipulated by the parties, we
find that there is reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred with
respect to the remaining machines and that the
dispute concerning these machines, including the
Clair polishing machine and the Acme belt sanding
machine, which are not presently in operation,3 is
properly before the Board for determination.4
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of the disputed work after giving
due consideration to all relevant factors. The Board
has held that its determination in jurisdictional
dispute cases is an act of judgment based on common
sense and experience in balancing various factors.5
A number of the factors often relied on by the
Board are of little assistance in determining the
dispute herein. Thus, while it is undisputed that both
unions have been certified by the Board for many
years, the certifications have not been made part of
the record. Although either union's contract could
conceivably be read as covering the work in dispute,
neither contract clearly does so. The evidence
concerning area practice is of limited significance,
since it pertains to companies producing very differ-
ent products; the Employer has no direct competitors
in its area. The Employer's plant appears to be more
automated than those of its competitors; some of the
disputed machines are not utilized by any other firms
in this industry, and hence there is no industry
practice as to these machines. Finally, since the Metal
Polishers did not participate in the arbitration
proceeding which culminated in an award of the
operation of the Porter-McLeod machine to the
Machinists, and since the arbitrator in that proceed-
ing did not consider all relevant factors, we can give
little weight to the awards
There are, however, other factors present in this case
respect to this machine , since there is no evidence that the Machinists ever
agreed to be bound by the results of that arbitration
5 International Association of Machinists, Lodge No 1743, AFL-CIO (J
A Jones Construction Co.), 135 NLRB 1402, 1411
6 Cf Bakery Wagon Drivers & Salesmen Local No 432, IBTCWHA
(Lucky Stores, Inc), 171 NLRB No. 141, fn 12, International
Longshoremen 's and Warehousemen 's Union, Local 13 (Princess Cruises Co),
161 NLRB 451, 456 Here the arbitrator relied solely on the Employer's
past practice and his construction of the Machinists' contract He did not
consider the Metal Polishers ' contract, was not informed of the prior
arbitration award holding that the metal polishers were entitled to operate
the Ryman edge grinder, and expressly rejected as relevant factors
(Continued)
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which lead us to award the operation of the Chick
production centerless machine, the Engelberg center-
less polishing machine, the vibrating machine, and the
Porter-McLeod polishing machine to employees
represented by the Machinists. Each of these ma-
chines has been operated by members of the Machin-
ists for more than 5 years, and two of them (the Chick
and Engelberg machines) have been so operated for
more than 10 years. It is clear that the Employer is
fully satisfied with the manner in which the machines
have been operated and wishes to continue its
assignment of this work to the machinists who have
long performed it. It is also apparent that very little
skill is needed to operate these machines; on all of
them except the Chick machine, the operator has to
do little more than load and unload the machine, start
it (apparently by pressing a button), and stop it at the
end of a shift. On the Chick machine, the operator
simply uses a foot pedal to apply and remove pressure
from the regulating wheel. In addition, we note, with
respect to the vibrating machine, that the operator
does not have to make any significant adjustments.
Furthermore, the work done by this machine is not
work formerly done by the metal polishers; it has
been done by the machinists for approximately 30
years. It appears that this machine performs only a
grinding function; after the tools have been through
it, they must be polished on another machine or by
hand.? In view of the foregoing facts, we conclude
that the longstanding assignment of the operation of
these four machines to employees represented by the
Machinists should not be disturbed.
In our view, however, a different result is required
with respect to the Harper polishing machine, the
Clair polishing machine, the Acme belt sanding
machine, and the Acme circumference polisher and
grinder. We note, in the first place, that, with the
exception of the Harper polishing machine, these
machines are not now being operated by members of
the Machinists. The Clair polishing machine and the
Acme belt sanding machine are not in operation,
while the Acme circumference polisher and grinder, at
the time of the hearing, was being operated by a
leadman who was learning about the machine, rather
than by a production employee, and hence the
operation of these three machines could be assigned
to metal polishers without causing any loss of work
for machinists. On the other hand, assignment of
these machines to the machinists would plainly result
in a significant loss of work for the metal polishers,
since the work done on these machines has heretofore
economy of operation and the fact that the Porter-McLeod machine
performed work formerly done by the metal polishers
7 On the other machines, the performance of the grinding and polishing
functions appears to be one continuous operation Accordingly,
considerations of efficiency and economy require that the operation of
each machine be assigned to one or the other of the competing unions,
been performed by metal polishers on polishing
lathes.
In addition, it appears that the operation of all four
of these machines requires the exercise of judgment
by the operator in determining what steps are
necessary to insure that the work on the tools is
properly done. Thus, on the Harper polishing ma-
chine the operator must inspect the wrenches when
they come out of the machine to see whether they
have been polished properly. On the Clair polishing
machine, which has the same purpose as the Harper,
the operator must apply the proper polishing com-
pound to the make-up wheels used in the machine.
The operator also performs the same functions on the
Acme circumference polisher and grinder as on the
Harper. On the Acme belt sanding machine the
operator holds the fixture containing the tools
manually while the machine is polishing the tools, and
he must make a judgment as to how many times the
fixture should pass under the grinding or polishing
wheel. In addition, on all four of these machines the
operator must make adjustments on such factors as
the tension of the belts or polishing rolls and the
number or speed of oscillations of the device holding
the tools. Such adjustments would appear to require
knowledge of what pressures, speeds, or number of
oscillations are required to produce a proper finish. It
is thus apparent that the superior skills possessed by
the metal polishers can be effectively utilized in
operating these four machines.
Further, we note that one of the Employer's
competitors in Los Angeles8 has an Acme belt
sanding machine which is operated by the metal
polishers and that when that Company had a Harper
polishing machines and an Acme circumference
polisher and grinder in operation, they were also
operated by the metal polishers. Thus, on this record,
it appears that assignment of these machines to the
metal polishers is consistent with such industry
practice as exists.
Accordingly, we shall award the operation of the
Chick production centerless machine, the Engelberg
centerless polishing machine, the vibrating machine,
and the Porter-McLeod polishing machine to employ-
ees represented by the Machinists and the operation
of the Harper polishing machine, the Clair polishing
machine, the Acme belt sanding machine, and the
Acme circumference polisher and grinder to employ-
ees represented by the Metal Polishers. Our present
determination is limited to the particular controversy
which gave rise to this proceeding. In making this
rather than allowing the machinists to perform the grinding function and
the metal polishers to perform the polishing function on the same machine.
8 As indicated supra, there are no direct competitors of the Employer in
the same metropolitan area.
9 At the time of the hearing , this company still had a Harper polishing
machine, but it was not in operation
METAL POLISHERS LOCAL 128 541
determination , we are assigning the disputed work to
employees represented by the respective labor organi-
zations but not to the labor organizations or their
members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and on the basis of the
foregoing findings and the entire record in this
proceeding , the National Labor Relations Board
hereby makes the following determination of dispute:
1. Employees represented by Metal Polishers,
Buffers , Platers and Helpers International Union,
Local 128, AFL-CIO, are entitled to perform the
work of operating the Harper polishing machine, the
Clair polishing machine , the Acme belt sanding
machine , and the Acme circumference polisher and
grinder.
2. Employees represented by International Asso-
ciation of Machinists and Aerospace Workers, Local
Lodge 1566, AFL-CIO, are entitled to perform the
work of operating the Chick production centerless
machine , the Engelberg centerless polishing machine,
the vibrating machine, and the Porter-McLeod
polishing machine.
3. Metal Polishers , Buffers , Platers and Helpers
International Union, Local 128, AFL-CIO, is not
entitled, by means proscribed by Section 8(b)(4)(D) of
the Act, to force or require Thorsen Manufacturing
Company to assign the work awarded in paragraph 2
to employees represented by the Metal Polishers.
4. Within 10 days from the date of this Decision
and Determination of Dispute , Metal Polishers,
Buffers, Platers and Helpers International Union,
Local 128, AFL-CIO, shall notify the Regional
Director for Region 20, in writing , whether or not it
will refrain from forcing or requiring Thorsen
Manufacturing Company, by means proscribed by
Section 8(b)(4)(D) of the Act, to assign the work
awarded in paragraph 2 in a manner inconsistent with
the Board 's determination herein.
ORDER
It is hereby ordered that the notice of hearing issued
in this proceeding be, and it hereby is, quashed insofar
as it concerns the operation of the Ryman edge
grinder.