United Steelworkers of America and its Local Union No. 5724, AFL-CIO (Ormet Corporation)

National Labor Relations Board - Board Decisions

Mar 1, 1982

260 N.L.R.B. 566 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Steelworkers of America and its Local Union
No. 5724, AFL-CIO and Ormet Corporation
and International Union, United Plant Guard
Workers (UPGWA) and its Amalgamated Local
No. 65.1 Case 9-CD-399
March 1, 1982
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Ormet Corporation, herein
called Employer or Ormet, alleging that United
Steelworkers of America and its Local Union No.
5724, AFL-CIO, herein called Steelworkers, vio-
lated Section 8(b)(4)(D) of the Act by engaging in
certain proscribed activity with an object of forc-
ing or requiring the Employer to assign certain
work to employees represented by Steelworkers
rather than to employees represented by Interna-
tional Union, United Plant Guard Workers
(UPGWA) and its Amalgamated Local No. 65,
herein called UPGWA.
Pursuant to notice, a hearing was held before
Hearing Officer James E. Horner on October 30,
1981. The Employer, Steelworkers, and UPGWA
appeared at the hearing and were afforded full op-
portunity to be heard, to examine and cross-exam-
ine witnessess, and to adduce evidence bearing on
the issues. Thereafter, the Employer, Steelworkers,
and UPGWA filed briefs.
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 au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hear-
ing Officer made at the hearing and finds that they
are free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Delaware corporation, is engaged in the
processing of aluminum ore at its plant in Hannibal,
Ohio. The parties further stipulated that, during the
12 months preceding the hearing, a representative
period, the Employer received material and goods
valued in excess of $50,000, which were shipped
directly to its Hannibal, Ohio, facility from points
located outside the State of Ohio. The parties also
The name of the Union appears as amended at the hearing
260 NLRB No. 72
stipulated, and we find, that the Employer is en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act, and that it will effectuate
the purposes of the Act to assert jurisdiction
herein.
I1. THE LABOR ORGANIZATION INVOI.VED
The parties stipulated, and we find, that Steel-
workers and UPGWA are labor organizations
within the meaning of Section 2(5) of the Act.
A. Background and Facts of the Dispute
There are two Board-certified unions at Ormet's
Hannibal, Ohio, plant. The production and mainte-
nance employees, who include "receiving clerks,"
"weigher-checkers," and "scalemen," are represent-
ed by Steelworkers. Ormet's security personnel are
represented by UPGWA.
The Employer operates an aluminum reduction
plant in Hannibal, Ohio. As part of its operations it
employs security personnel who work on a 24-
hour, 7-day-a-week schedule and are stationed at
the guardhouse near the main gate. These employ-
ees, who are represented by UPGWA, are general-
ly responsible for plant security, including control-
ling access to the plant by logging in all vehicles
entering the facility through the main gate. Ap-
proximately 40 trucks make daily deliveries; about
30 of these trucks carry coke or pitch and each of
these trucks makes 6 to 7 trips. The remaining
trucks deliver miscellaneous materials used
throughout the plant. Ormet also employs produc-
tion and maintenance employees, including receiv-
ing clerks, weigher-checkers, and scalemen, who
are represented by Steelworkers. The receiving
clerks, who are located in the warehouse about 100
feet from the main gate, process the paperwork
pertaining to deliveries. About 5 to 10 times a day,
a guard will call a receiving clerk to "greet" cer-
tain trucks and do the necessary paperwork. Re-
ceiving clerks do not "greet" the coke and pitch
trucks individually, but process the related paper-
work cumulatively at the end of the day.
The weigher-checkers and scalemen operate var-
ious scales throughout the facility. The largest
scale is 15 tons and does not accommodate trucks.
The evidence shows that both weigher-checkers
and scalemen perform general weighing tasks, in-
cluding "in-process" weighing as part of manage-
ment's internal controls and "out-going" weighing
to determine the amounts of materials, usually alu-
minum, being shipped out of the plant. In addition,
some outgoing shipments are sent to the adjacent
Consolidated Aluminum Corporation (Conalco)
plant where trucks carrying shipments of materials
from Ormet are weighed by Conalco guards.
566
STEELWORKERS LOCAL UNION NO. 5724
In January 1980, the Employer, in an effort to
reduce losses attributable to weight discrepancies,
decided to install a 60-ton Thurman Load Cell
truck scale at the plant's main entrance. The instal-
lation of the scale was begun in February 1981, and
completed in April 1981. Located 70 feet away
from and directly in front of the guardhouse, the
scale registers weight on a large outside "score-
board" and on a computer terminal inside the
guardhouse. The computer performs numerous
functions, including recording entry of the truck's
empty and full weights and its identification
number and calculating the net weight of the load.
A printout provides three copies of the recorded
data; one is kept by the driver, one is delivered by
the driver to the receiving clerks, and one is for-
warded to Ormet's accounting office.
In May 1981, following completion of the scale,
Donald Grimes, a representative of Steelworkers
Local No. 5724, met with Douglas Windeler,
Ormet's manager of industrial relations, and
claimed the operation of the truck scale for em-
ployees represented by Steelworkers, stating, inter
alia, that the assignment was in violation of the
contracting-out clause of Steelworkers collective-
bargaining agreement with the Employer. Windeler
testified that, in response to his explanation for as-
signing the work to employees represented by
UPGWA and his statement that Ormet intended to
go forward with the assignment, Grimes said that
he "could not guarantee what might happen," but
if Ormet assigned the work to UPGWA "our
guys" could or would "end up on the road." Since
that time, the Employer has not operated the new
truck scale and has continued its practice of using
the Conalco scale when needed.
B. The Work in Dispute
The disputed work involves the operation of the
60-ton Thurman Load Cell truck scale for the
weighing of incoming and outgoing trucks located
at the main entrance to Employer's plant in Hanni-
bal, Ohio.
C. Contentions of the Parties
The Employer contends that the dispute is prop-
erly before the Board. It further contends that the
work in dispute involves plant security and that the
Board should award the disputed work to its em-
ployees represented by UPGWA on the basis of its
collective-bargaining agreement with UPGWA,
area and industry practice, Employer's preference,
and economy and efficiency of operations.
UPGWA has taken a position consistent with that
of the Employer.
Steelworkers contends that there is no reasonable
cause to believe that it has violated Section
8(b)(4)(D) of the Act. It further asserts that the
production and maintenance employees historically
have performed all weighing functions at the plant,
and that the factors of the Employer's practice, rel-
ative skills, and economy and efficiency of oper-
ations favor an award of the work in dispute to
employees represented by Steelworkers.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated, and that there is no agreed-upon method
for the voluntary adjustment of the dispute.
As noted above, in a conversation with Ormet's
manager of industrial relations, a Steelworkers rep-
resentative claimed the disputed work for produc-
tion and maintenance employees and stated that if
Ormet went forward with the assignment "our
guys" could or would be "out on the road." 2
Based on the foregoing, and on the record as a
whole, we find that an object of this statement was
to force or require the Employer to reassign the
work in dispute to employees represented by Steel-
workers. Therefore, we conclude that reasonable
cause exists to believe that a violation of Section
8(b)(4)(D) of the Act has occurred.
No party contends, and the record discloses no
evidence showing, that there exists an agreed-upon
method for the voluntary adjustment of the present
dispute to which all parties are bound. According-
ly, we find that the dispute is properly before the
Board for determination under Section 10(k) of the
Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Baord to
make an affirmative award of the disputed work
after giving due consideration to relevant factors.3
The Board has held that its determination in a ju-
risdictional dispute is an act of judgment based on
commonsense and experience reached by balancing
those factors involved in a particular case.4
2 As noted above, the union representative also asserted that the as-
signment was in violation of the contracting-out clause of Steelworkers
collective-bargaining agreement with the Employer. We note that art.
XXX (entitled "Contracting-Out") of the Steelworkers contract refers to
"work which could otherwise be performed by the Company with its
own employees." This provision on its face is inapplicable to Ormet's as-
signment of work to its own security personnel
IN L.R.B v Radio & Television Broadcast Engineers Union. Local
1212. International Brotherhaood of Electrical Workers. AFL-CIO [Colum-
bia Broadcasting System], 364 U.S. 573 (1961)
4 International Associonion of Machinists Lodge so. 1743. AFL-CIO (J
A. Jones Construction Company). 135 NLRB 1402 (1962).
567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Certifications and collective-bargaining
agreements
In 1956, Steelworkers was certified as the bar-
gaining representative of a unit comprised of the
Employer's production and maintenance employ-
ees. UPGWA was certified in 1966 as bargaining
representative of Ormet's security personnel. The
respective certifications preceded the installation of
the truck scale and neither certification has been
amended or clarified by the Board to cover the dis-
puted work. This factor therefore is not helpful to
our determination.
The Employer currently has collective-bargain-
ing agreements with both Steelworkers and
UPGWA. There is no mention of the truckscale
operation in the Steelworkers contract. However,
incorporated in the Employer's agreement with
UPGWA is a letter of understanding, which pro-
vides that "if and when the new truck scale is in-
stalled at the Ormet plant responsibility for oper-
ation will be the duty of the Guards." This provi-
sion clearly refers to the disputed work. Accord-
ingly, we find that the factor of collective-bargain-
ing agreements favors an award of the disputed
work to employees represented by UPGWA.
2. Employer's preference and past practice
The Employer assigned the work to and, at the
hearing and in its brief, has expressed its preference
that the disputed work be performed by employees
represented by UPGWA. While we do not afford
controlling weight to this factor, we find that it
tends to favor an award of the disputed work to
employees represented by UPGWA.
The record discloses no past practice by the Em-
ployer with respect to the assignment of work
identical to that in dispute herein. This factor,
therefore, is not helpful to our determination.
3. Area and industry practice
UPGWA presented undisputed testimony that at
each of three plants within a 10-mile radius of the
Employer's plant, including two metals plants
where production and maintenance employees are
represented by Steelworkers, employees represent-
ed by UPGWA conduct truckscale operations. It
further presented uncontradicted evidence that
such practice conforms to that of numerous alumi-
num and other industrial plants in the State of
Ohio. Additionally, UPGWA's regional director of
region 3 testified without contradiction that at
plants where truckscale operations are conducted
by unionized employees in region 3 (comprising
Ohio, Virginia, West Virginia, Maryland, North
Carolina, South Carolina, and Florida) such work
is performed by employees represented by
UPGWA and that the assignments of truck scale
weighing work in all 50 States, Puerto Rico, and
Canada are similar to those in region 3. We there-
fore find the factors of area and industry practice
favor an award of the disputed work to employees
represented by UPGWA.
4. Relative skills
The record establishes that no special skills are
required to perform the work in dispute and that
employees represented by either Union possess the
requisite skills to perform such work. We therefore
find that this factor is inconclusive and does not
favor an award to employees represented by either
Union.
5. Economy and efficiency of operations
The record shows that all trucks entering the fa-
cility through the main gate are required to stop at
the guardhouse and register with the security per-
sonnel who are on duty 24 hours a day. With the
addition of a truck scale operation, the driver
would park a truck on the scale before entering the
guardhouse where he would be presented with a
weight ticket. He would then continue with his de-
liveries and repeat the weighing process upon leav-
ing the premises. Each weighing operation, if inte-
grated into the duties currently performed by secu-
rity guards, would take no longer than a minute to
complete.
In contrast, assignment of the disputed work to
employees represented by Steelworkers would in-
volve the performance of duties in addition to their
regular work, including 40 to 50 daily trips, taking
an estimated 10 minutes each, to the guardhouse to
weigh the incoming or outgoing trucks. Further-
more, the Employer presented uncontradicted evi-
dence that, if the disputed work were awarded to
employees represented by Steelworkers, it would
have to hire one or more receiving clerks to handle
the extra work or spend an estimated $50,000 to in-
stall a computer terminal inside the warehouse
where the receiving clerks presently work. Based
on the foregoing, we find that the factors of econo-
my and efficiency of operations favor an award of
the work in dispute to employees represented by
UPGWA.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that the Employer's employees who are rep-
resented by UPGWA are entitled to perform the
work in dispute. We reach this conclusion based on
the facts that such assignment is consistent with the
Employer's collective-bargaining agreement with
568
STEELWORKERS LOCAL UNION NO. 5724
UPGWA and not inconsistent with its contract
with Steelworkers; such assignment is consistent
with the Employer's preference and area and in-
dustry practice; these employees possess the requi-
site skill to perform the work in dispute; and such
assignment results in greater efficiency and econo-
my.
In making this determination we are awarding
the work in dispute to the Employer's employees
who are represented by UPGWA but not to that
Union or its members. Our present determination is
limited to the particular dispute which gave rise to
this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing factors and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of Ormet Corporation, who are
currently represented by International Union,
United Plant Guard Workers (UPGWA) and its
Amalgamated Local No. 65, are entitled to per-
form the operation of the 60-ton Thurman Load
Cell truck scale for the weighing of incoming and
outgoing trucks located at the main gate of the
Employer's plant in Hannibal, Ohio.
2. United Steelworkers of America and its Local
Union No. 5724, AFL-CIO, is not entitled by
means proscribed by Section 8(b)(4)(D) of the Act
to force or require Ormet Corporation to assign the
disputed work to employees represented by that
labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, United Steelworkers
of America and its Local Union No. 5724, AFL-
CIO, shall notify the Regional Director for Region
9, in writing, whether or not it will refrain from
forcing or requiring the Employer, by means pro-
scribed by Section 8(b)(4)(D) of the Act, to assign
the disputed work in a manner inconsistent with
the above determination.
569