Machinists District No. 15

National Labor Relations Board - Board Decisions

Aug 26, 1981

257 N.L.R.B. 993 (N.L.R.B. 1981)

MACHINISTS DISTRICT NO. 15
International Association of Machinists and Aero-
space Workers, District No. 15, AFLCIO and
The New York Times Newspaper, Division of
The New York Times Company and Internation-
al Brotherhood of Electrical Workers, Local
Union No. 164. Case 22-CD-363
August 26, 1981
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by The New York Times News-
paper, Division of The New York Times Compa-
ny, herein called the Employer, alleging that Inter-
national Association of Machinists and Aerospace
Workers, District No. 15, AFL-CIO, herein called
the Machinists, had violated Section 8(b)(4)(D) of
the Act.
A hearing was held pursuant to notice at
Newark, New Jersey, on March 10, 1981, before
Hearing Officer Frederick A. Infante. The Em-
ployer, the Machinists, the International Brother-
hood of Electrical Workers, Local Union No. 164,
herein called IBEW, and Eastern States Electrical
Corporation, herein called Eastern, 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.
Thereafter, the Employer, the Machinists, and the
IBEW filed briefs with respect to the merits of the
dispute.
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 basis of the entire record in this case,
the Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The New York Times is a New York corpora-
tion engaged in the publication of a daily newspa-
per. In the course and conduct of its business, the
Employer annually receives gross revenues in
excess of $200,000, which operations include sub-
scriptions to national news services and the adver-
Eastern, an independent contractor, is signatory to an agreement with
the Employer under which it provides individuals to perform all work of
an electrical nature at the Employer's Carlstadt. New Jersey. plant.
257 NLRB No. 133
tising of nationally sold brands and materials
valued in excess of $50,000 which are transported
in interstate commerce. Accordingly, we find that
the Employer is engaged in a business affecting
commerce within the meaning of Section 2(6) and
(7) of the Act, and that it will effectuate the poli-
cies of the Act to assert jurisdiction in this pro-
ceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
The Machinists and IBEW are labor organiza-
tions within the meaning of Section 2(5) of the
Act.
III. THE DISPUTE
A. The Work in Dispute
The work in issue involves the removal and rein-
stallation of unit drive motors which power the
printing presses at the Employer's Carlstadt, New
Jersey, printing plant.
B. Background and Facts of the Dispute
In 1975, the Employer relocated some of its op-
erations from the west side of New York City to a
newly constructed plant in Carlstadt, New Jersey.
The new plant was furnished with 35 unit drive
motors for 30 presses and 5 folding machines.
These unit drive motors weigh 1,100 pounds each
and measure 3-1/2 feet in length, 21 inches in
width, and 2 feet in height. They are suspended
from the ceiling at a height of more than 10 feet
from the floor, and access to them is restricted by
waterlines, air ducts, and electric conduits.
At the time of the instant dispute the Employer
was a party to a bargaining agreement with the
Machinists. The Employer also had a manpower
supply agreement with Eastern which, in turn, had
a collective-bargaining agreement with IBEW. The
instant dispute arose in March 1980, when the first
malfunction of a unit drive motor occurred. Assist-
ant Plant Manager Cox assigned the work of dis-
connecting the malfunctioning motor from the
electrical source and the subsequent reconnection
to electricians supplied by Eastern,2 and the work
of removing, reinstalling, and realigning the motor
to machinists. Thereafter, by letter dated August 6,
1980, IBEW and Eastern proposed to the Employ-
er that it submit the work assignment of removal
and reinstallation to a four-way arbitration pro-
ceeding. On October 28, 1980, the Employer ad-
vised the Machinists of the proposal for arbitration
and inquired whether the Machinists wished to par-
2 The electricians provided by Eastern work under the direction and
control of, and are given work assignments by. the Employer herein.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticipate in the proposed arbitration. On October 31,
the Machinists informed the Employer that it
would not go to arbitration, and also stated that it
"reserves to itself such course of action including
appropriate job action and if necessary, strike ac-
tivity, as it may deem advisable to protect its juris-
diction under the terms of the contract between
us." In response to the Machinists strike threat, the
Employer filed the instant charge on December 16,
1980.
C. Contentions of the Parties
The Employer and the Machinists contend that
the employees presently assigned to perform the
work in dispute are entitled to it based on their su-
perior skills and training; employer preference and
employer, area, and industry practice; and econo-
my and efficiency of the Employer's operation.
The claim of IBEW to the work is based on the
industry practice in New Jersey, and the contrac-
tual relationships between it and Eastern, and be-
tween Eastern and the Employer.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the 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 the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute.
Based on the Machinists threat to strike and the
parties' testimony that they have no agreed-upon
method of adjustment of the dispute, we conclude
that there is reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred,3 and that
there exists no agreed-upon method for the volun-
tary adjustment of the dispute within the meaning
of Section 10(k) of the Act. Accordingly, we find
that the instant dispute is properly before the
Board for determination.
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 various factors.4
A violation of Sec. 8(b)4XD) occurs when a labor organization
which represents employees who have been assigned work exerts unlaw-
ful pressure upon an employer to continue such assignment. New York
Typographical Union Na 6 (New York News Inc.), 252 NLRB 553 (1980).
It is immaterial that the electricians are not employees of the Employer
inasmuch as jurisdictional disputes are not limited to competing groups of
employees working for the same employer. See Local Union No. 3, Inter-
national Brotherhood of Electrical Workers, AFL-CIO (Western Electric
Company. Incorporated), 141 NLRB 888, 894 (1963), enfd. 339 F.2d 145
(2d Cir. 1964).
'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 (1961).
The Board has held that its determination is an act
of judgment based on commonsense and experience
reached by balancing those factors involved in
each case.5
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
There is no specific reference to unit drive
motors in either of the collective-bargaining agree-
ments in evidence. The Machinists work jurisdic-
tion contract clause states merely that "[t]he juris-
diction of work being performed by machinists
shall not be altered during the life of this agree-
ment." The contract between Eastern and the Em-
ployer provides that they are joint employers of
the electricians represented by IBEW, and further
states that the contract between Eastern and IBEW
shall apply to all employees and that Eastern's re-
sponsibility shall include any and all work of an
electrical nature that may be needed. Inasmuch as
neither agreement is dispositive of the work in dis-
pute, we find that the factor of collective-bargain-
ing agreements does not favor an assignment to the
employees in either group.
2. Employer preference and employer, area,
and industry practice
The record evidence shows that, for approxi-
mately 20 years prior to the Employer's relocation
to New Jersey, the work in dispute was performed
by machinists. Testimony does reveal, however,
that electricians employed by a construction sub-
contractor did perform the work of initial installa-
tion of three of the unit drive motors in the Carl-
stadt facility. The area and/or industry practice is
shown by the testimony of the Machinists business
representative, Armao, who services the New York
Daily News and New York Post, to the effect that
removal and reinstallation of unit drive motors at
those companies are performed by employees rep-
resented by the Machinists. Although IBEW con-
tends that an industry practice exists in New
Jersey, its evidence in this regard consists of testi-
mony by an electrical foreman of a New Jersey
printing concern who stated that the disputed work
in his shop was performed by electricians prior to
1975, that presses containing unit drive motors
have not operated in his shop since 1975, and that
his employer is not in the newspaper business.
From the foregoing, we conclude that the factors
of employer preference and employer, area, and in-
s International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135 NLRB 1402 (1962).
994
MACHINISTS DISTRICT NO. 15
dustry practice favor an award of the work in dis-
pute to employees represented by the Machinists.
3. Skills and training
The unrebutted testimony of the Employer's di-
rector of operations, Petzko, and Assistant Plant
Manager Cox shows that the work in issue was as-
signed to the employees represented by the Ma-
chinists because only they have the skills, training,
and experience necessary to perform the work. Cox
further testified that said employees received train-
ing in the removal and reinstallation of unit drive
motors both as apprentices with the company
which makes the presses and as employees of the
Employer, and that 24 of the 27 machinists at Carl-
stadt have performed the disputed work at the Em-
ployer's New York City location prior to the Em-
ployer's relocation. The disputed work involves,
inter alia, the use of special tools, "special motor
cradles" and other riggings designed by machinists
to fit the specifications of the unit drive motors in
issue, and which aid in their removal and reinstalla-
tion. By contrast, electricians are experienced in re-
moving only straight drive motors which are light-
er and smaller than unit drive motors and are not
suspended from the ceiling, and, therefore, do not
pose the special problems associated with the unit
drive motors. Accordingly, we find the factor of
skills and training favors an award consistent with
the Employer's assignment.
4. Economy and efficiency of operation
Assistant Plant Manager Cox testified without
contradiction that the Employer replaces unit drive
motors on the Sunday shift by utilizing two ma-
chinists who have been held over from the previ-
ous shift on overtime, and two who are on regular
shift time, and thereby minimizes costs with availa-
ble skilled personnel. The record shows that, if the
work were to be awarded to IBEW, the Employer
would have to hire four additional electricians, at
time-and-a-half pay rates, and also pay a 15-percent
fee to Eastern in accordance with the latter's
agreement with the Employer. In addition, because
machinists use their specialized tools in the ordi-
nary course of their duties, the Employer would
have to purchase special tools and equipment for
the electricians to use, and also would have to pro-
vide to electricians the same training program
which machinists already have completed. Thus, an
assignment of the disputed work to electricians
would be inefficient and uneconomical because of
duplicative and unnecessary substantial expendi-
tures. Accordingly, we find that the factors of
economy and efficiency favor the Employer's as-
signment to employees in the Machinists unit.
Conclusion
Upon the record as a whole, and after full con-
sideration of all the relevant factors involved, we
conclude that the Employer's employees represent-
ed by the Machinists are entitled to the disputed
work based on their superior skills and training;
employer preference and employer, area, and in-
dustry practice; and economy and efficiency of the
Employer's operations. In making this determina-
tion, we are awarding the work in dispute to em-
ployees who are represented by International Asso-
ciation of Machinists and Aerospace Workers, Dis-
trict No. 15, AFL-CIO, but not to that particular
organization or its members. This determination is
limited to the particular controversy 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 findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
Employees of The New York Times Newspaper,
Division of The New York Times Company, cur-
rently represented by International Association of
Machinists and Aerospace Workers, District No.
15, AFL-CIO, are entitled to perform the work of
removal and reinstallation of unit drive motors at
the Employer's Carlstadt, New Jersey, newspaper
plant.
995