Metal Polishers Union, Local 5

National Labor Relations Board - Board Decisions

Jul 26, 1968

172 N.L.R.B. 1314 (N.L.R.B. 1968)

1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metal Polishers , Buffers , Platers and Helpers Inter-
national Union , Local 5, AFL-CIO and The Cess-
na Aircraft Company McCauley Industrial Cor-
portation Division and International Association of
Machinists and Aerospace Workers, AFL-CIO,
and its Local 225. Case 9-CD-124
July 26, 1968
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS BROWN, JENKINS , AND ZAGORIA
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing a charge filed by The Cessna Aircraft Com-
pany, McCauley Industrial Corporation Division,
herein called the Employer, alleging a violation of
Section 8(b)(4)(D) of the Act by Metal Polishers,
Buffers, Platers and Helpers International Union,
Local 5, AFL-CIO, herein called Metal Polishers or
Respondent. The charge alleges, in substance, that
the Metal Polishers threatened and restrained the
Employer with an object of forcing or requiring the
Employer to assign particular work to employees
represented by that particular Union rather than to
employees represented by International Association
of Machinists and Aerospace Workers, AFL-CIO,
and its Local 225, herein called the IAM. Pursuant
to notice, a hearing was held before Hearing Of-
ficer Eugene M. Rothchild on April 9, 1968. 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.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case 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 af-
firmed. The Employer and Metal Polishers have
filed briefs which have been duly considered.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Cessna Aircraft Company, McCauley Indus-
trial Corporation Division , is a Kansas corporation
engaged in the manufacture of aircraft propellers at
its plant located at Dayton, Ohio. During the past
12 months, the Employer sold goods of a value in
excess of $50,000 which were shipped directly from
its plant to points located outside the State of Ohio.
We find that the Employer is engaged in commerce
within the meaning of the Act, and that it will effec-
tuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
All parties stipulated, and we find, that the Metal
Polishers and the IAM are labor organizations
within the meaning of the Act.
111. THE DISPUTE
A The Basic Facts
The work in dispute involves the operation of a
newly installed machine described as Spitfire
Micro-Lap 15 Inch Precision Flat Lapping
Machine-Bench Type Model which processes a face
plate cover to a governor in order to make the sur-
face on the face plate cover as flat as possible. The
operation does not require any skill as the machine
automatically performs the skilled operation of
reducing to a specified tolerance the flat surface of
the face plate cover. The operator loads the
machine, pushes a buttom, and on the machine's
cutting off automatically after a 7-minute run re-
loads the machine. It is necessary for the operator
to keep the lapping plate of the machine and its
component parts free of dirt particles.
During the evolvement of the Employer's
requirement for a flat lapping machine, the Em-
ployer at first used an automatic chucker machine,
operated by machinists, but this machine did not
obtain the required tolerance on the face plate
cover. The Employer then resorted to a hand-
lapping process of the part, which was also per-
formed by machinists. However, due to the length
of time involved in hand-lapping, it became imprac-
tical and eventually led to the exploration of vari-
ous types of lapping machines. In August 1967, the
Employer installed the instant lapping machine,
which after an experimental and setup period has
occasionally been operated by available machinists.
In early September 1967, the Metal Polishers first
became aware of the Employer's intent to use the
flat lapping machine and on September 12, 1967,
made a written claim on the Employer for opera-
tion of the machine. Thereafter, the Metal Polishers
met with the Employer to discuss assignment of the
operation of the flat lapping machine. Again in
early November, the Metal Polishers met with the
Employer and discussed the assignment of the flat
lapping machine where the Employer stated that it
had not assigned the job and was not interested in
172 NLRB No. 143
METAL POLISHERS UNION, LOCAL 5
who got the job. During this meeting, Emmanuel
Wilburn, International vice president of Metal
Polishers , told John Finlay, manager of industrial
relations for the Employr, that if this job were as-
signed to the IAM, the Metal Polishers would
strike. Again in early January 1968, the president of
the Metal Polishers, Paul Leis, reiterated the strike
threat regarding the disputed work to Finlay, in the
presence of John Sekunda, shop chairman of the
Metal Polishers.
In December 1967, the Employer had reached a
decision to assign the disputed work to employees
represented by the JAM, but had not advised the
Unions involved of its decision . The Employer
maintains that to this date, no official assignment of
the operation of the flat lapping machine has been
made due to the strike threat by the Metal
Polishers.
Testimony indicates that employees represented
by the JAM operate other machines designed to
reduce component parts to tolerance and finish,
such as a precision honing machine , Heald External
Grinder, Heald Internal Grinder, and a Norton Ex-
ternal Grinder. Employees represented by the
Metal Polishers do not perform any operations
which involve the reduction of parts to tolerance.
B. Contentions of the Parties
The Metal Polishers argues that the nature of the
disputed work indicates that it is a buffing and
polishing job, normally performed by metal
polishers , under the Metal Polishers collective-bar-
gaining agreement with the Employer . In this re-
gard , the Metal Polishers contends that, according
to the standard definition of "buff" and "polish,"
this machine does j ust such work and replaces a
skilled "Metal Polisher and Buffer " craftsman. The
Metal Polishers also contends that the JAM made
no demand for the work until long after the purely
arbitrary decision of the Employer to so assign it to
the JAM.
The Employer and the IAM take the position that
machinists are entitled to the disputed work
because the operation of the machine involves
precision grinding/lapping to tolerances normally
performed by machinists at the Employer 's plant.
Further , the Employer and the IAM point out that
no operations are performed by metal polishers at
the Employer 's plant which require reduction of
parts to tolerance , and that machinists in the plant
perform operations similar to operation of the flat
lapping machine.
The Employer additionally notes that the work in
dispute is neither complicated nor highly skilled
and that machinists are presently performing the
1315
work to the Employer 's satisfaction . Also, the Em-
ployer claims that an evaluation of various factors
was made and that the Employer determined that
the efficiency of its operations required an assign-
ment to employees represented by the JAM. How-
ever , the Employer has been unable to make an as-
signment because of the strike threats by the
Respondent.
C. Applicability of the Statute
Section 10 ( k) of the Act empowers the Board to
hear and determine a dispute out of which a Sec-
tion 8 ( b)(4)(D) charge has arisen, unless the
parties to such dispute submit to the Board satisfac-
tory evidence that they had adjusted , or agreed
upon methods for the voluntary adjustment of, the
dispute . Before the Board proceeds with a deter-
mination of dispute , however , it is required to find
that there is reasonable cause to believe that Sec-
tion 8 ( b)(4)(D) has been violated.
The record shows that after claiming the work in
September , a representative of the Metal Polishers
in a meeting with the Employer in early November
1967 threatened a strike if the work in dispute were
assigned to the machinists . Again in early January
1968, a representative of the Metal Polishers
reiterated the strike threat . It is clear that the ob-
ject of this threat was to force the Employer to as-
sign work to employees represented by the Respon-
dent rather than to employees represented by the
JAM, an object prohibited by Section 8(b)(4)(D).
We find, therefore, on the entire record, that there
is reasonable cause to believe that a violation of
Section 8 ( b)(4)(D) has occurred , and that the
dispute is properly before the Board for determina-
tion under Section 10 ( k) of the Act.
D. Merits of the Dispute
Section 10 ( k) of the Act requires the Board to
make an affirmative award of disputed work after
giving consideration to various relevant factors, and
the Board has held that its determination in a ju-
risdictional dispute case is an act of judgment based
upon common sense and experience and a balanc-
ing of all relevant factors.
Some factors usually considered by the Board in
making jurisdictional awards are not present in this
proceeding . Thus , the record lacks evidence of in-
dustry or area practice and there has been no ju-
risdictional award by the AFL-CIO or other joint
boards. Also, as the work in dispute is relatively un-
skilled , members of the Respondent and the JAM
both possess the requisite skills . Although both
Unions are certified , neither certification by its
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms covers employees performing this disputed
work and neither contract here involved unequivo-
cally or "clearly and unambiguously" supports the
claims of the competing Unions. However, there
are other factors which we find persuasive in mak-
ing a determination in this case.
The record is clear that during the historical
evolvement of the Employer's need for the flat
lapping machine , machinists performed the work
now performed with more precision by the flat
lapping machine, and the machine does not, as con-
tended by the Respondent, perform work which
historically has been done by a polisher or buffer.
The flat lapping machine is not a polishing or
buffing machine, but, as indicated by its name, is a
lapping machine which, similar to other machines
such as the Heald grinders operated by machinists,
reduces parts to tolerance. The record shows that
the flat lapping machine performs work previously
assigned machinists, and that the work of that
machine is similar to the performance of other
machines which are operated by machinists. Ac-
cordingly, we find these factors favor assignment of
the disputed work to machinists represented by the
IAM.
The Respondent contends that the Employer's
claim that efficiency requires assignment to
machinists has little merit , claiming that the Em-
ployer's decision to assign the work to machinists
was arbitrary. In this regard, the Respondent claims
the location of the flat lapping machine was equally
accessible to either polishers or machinists. How-
ever, the record is uncontested that the machine is
located in a room, called the governor test area,
where machinists, supervised by the foreman of as-
sembly who supervises other machinists, are
located. No polishers or buffers work in this room.
In addition, Employer witnesses testified that
they evaluated the operation of the machine, the
skills involved, the flow of production, and other ef-
ficiency factors, and, after deliberation and con-
sultation, reached a conclusion that the operation
of the flat lapping machine should be assigned to
machinists. Although attacking this decision as ar-
bitrary, the Respondent did not produce any
evidence that the decision was not objective. Even
though no rate of pay has been established for the
specific job in dispute, we find that the factor of ef-
ficiency also favors the assignment to machinists.
There is no showing, and it is expressly dis-
claimed, that the work is highly skilled or com-
plicated, or that the employees who are occa-
sionally assigned to it are also required to exercise
any of the specialized skills usually possessed and
exercised by journeymen polishers. In fact, the
record shows that almost any employee with a few
minutes training could operate the machine. It is
also undisputed that the machinist employees
presently performing the work when the occasion
demands are performing it to the Employer's
satisfaction.
In view of the foregoing, particularly the similari-
ty of operations to other machine operations, the
Employer's evaluation in reaching a decision for as-
signment , and efficiency, we shall determine the ju-
risdictional dispute herein by awarding the disputed
work to machinists. Our determination is limited to
the particular controversy which gave rise to this
proceeding. In making this determination, the
Board is assigning the disputed work to machinists,
who are represented by the IAM, but not to that
Union or its members . Accordingly, we find that
Respondent Metal Polishers was not and is not enti-
tled by means proscribed by Section 8(b)(4)(D) to
force or require The Cessna Aircraft Company,
McCauley Industrial Corporation Division, to as-
sign the disputed work to metal polishers or buffers
rather than to machinists.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon 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. Machinists employed by The Cessna Aircraft
Company , McCauley Industrial Corporation Divi-
sion , who are represented by International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, and its Local 225, are entitled to per-
form the work of operation of the newly installed
flat lapping machine.
2. Metal Polishers , Buffers , Platers and Helpers
International Union , Local 5, AFL-CIO, is not enti-
tled by means proscribed by Section 8(b)(4)(D) to
force or require The Cessna Aircraft Company,
McCauley Industrial Corporation Division, to as-
sign the aforementioned work to employees en-
gaged as polishers or buffers, who are currently
represented by Respondent Metal Polishers.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Metal Polishers,
Buffers, Platers and Helpers International Union,
Local 5, AFL-CIO, shall notify the Regional
Director for Region 9 , in writing , whether or not it
will refrain from forcing or requiring The Cessna
Aircraft Company, McCauley Industrial Corpora-
tion Division , by means proscribed by Section
8(b)(4)(D), to assign the work in dispute to metal
polishers rather than machinists.