Hodcarriers, Local 215

HODCARRIERS, LOCAL 215 International Hodcarriers, Building & Common La- borers Union, Local No. 215, AFL-CIO and Cer- tain-Teed St. Gobain Insulation Corporation and United Automobile, Aerospace and Agricultural Im- plement Workers of America (UAW), Local 365. Case 4-CD-240 May 24, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by Certain-Teed St. Gobain Insulation Corporation, hereinafter called Certain-Teed, alleging that International Hodcarriers, Building & Common Laborers Union, Local No. 215, AFL-CIO, hereinafter called Laborers, had violated Section 8(b)(4)(D) of the Act. A hearing was held pursuant to notice at Wilkes- Barre, Pennsylvania, on November 30, 1970, before Hearing Officer Raymond D. Goodman. Certain-Teed and UAW appeared at the hearing and all parties' were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing on the issues.' Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The rulings of the Hearing Officer made at the hear- ing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: I THE BUSINESS OF THE EMPLOYER Certain-Teed is a Maryland corporation engaged in the production of insulating fiberglass used for both thermal and acoustical purposes. During the past year both its sales and purchases of goods and services across state lines separately exceeded $50,000. We find ' United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 365 ' Laborers, the Respondent herein , was duly served in advance of the hearing with , and acknowledged receipt of, a notice of hearing and a copy of the charge in which it was specifically designated as the Respondent, but it neither appeared at the hearing nor filed a brief with the Board We find that where, as here, all parties to the dispute were served with notice of hearing and afforded opportunity to participate and to introduce evidence, the purposes intended in hearings under Section 10(k) are adequately served . See Teamsters Local Union 'No. 5, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Inc. (Hart-McCown Foundation Co, Inc), 147 NLRB 1216, 1219 Accordingly, we shall proceed to make a determination on the basis of the uncontradicted evidence on the record before us 495 that Certain-Teed is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED As noted in footnote 2, Laborers did not appear at the hearing. Nonetheless, the Board has found Labor- ers to be a labor organization within the meaning of the Act in numerous cases. Accordingly, we find that La- borers is a labor organization within the meaning of Section 2(5) of the Act. We also find that UAW is a labor organization within the meaning of Section 2(5) of the Act. III THE DISPUTE The work in dispute concerns the demolition of Cer- tain-Teed's M-2 furnace, used in the fiberglass produc- tion process. A. Background The dispute arose at Crestwood Industrial Center, Mountain Top, Pennsylvania, where demolition work on the Employer's M-2 and M-1 furnaces was under- taken in November 1970 and January 1971, respec- tively. The demolition of the furnaces of the type of the M-2 and M-1 is necessitated periodically by the erosive effects of the moulten glass upon the contact blocks of the furnace walls because of the intense temperature of 15,000 or more degrees Fahrenheit generated during the production process. Sections of the furnace walls may thus require reconstruction at 2- to 3-year inter- vals. The entire furnace requires reconstruction at 5- or 6-year intervals. The reconstruction work is essentially concrete construction in character and, in the case of the M-2 and M-1 furnaces, the reconstruction work had been contracted out to a local contractor, who employed four members of Laborers and members of various trade crafts. The demolition of the two furnaces was carried out by the production and maintenance employees em- ployed by Certain-Teed pursuant to a demand by UAW which represents them under a current contract. Several provisions of this contract deal with furnace repair and maintenance work generally, and, at a con- ference prior to the commencement of demolition be- tween Certain-Teed officials and UAW representatives, the latter specifically communicated to Certain-Teed their desire to have unit employees perform the demoli- tion. A few days before the commencement of the demoli- tion of furnace M-2, Laborers business manager, De Polo, called Employer's construction manager, Gese- 190 NLRB No. 94 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rick, claimed the work of demolishing M-2 for his local, and threatened to strike the plant if members of Laborers did not get the work assignment. De Polo initially refused to meet and discuss the matter with Certain-Teed officials and, in an ensuing conference insisted upon by Certain-Teed, he declared that any agreement could only result in his surrendering juris- diction for his local over the disputed work. The demolition of M-2 furnace was undertaken by Certain-Teed employees on November 30. Working in the vicinity at the time on an addition to the Em- ployer's building and the foundation for the new fur- nace were employees of several building trade contrac- tors including some members of Laborers. As the demolition proceeded, picketing commenced at the en- trance to the Employer's premises about 8 a.m. and soon thereafter Laborers members appeared with signs reading "Informational Picketing. Members of Labor- ers are not performing work on the ovens." All work in the vicinity by building trade workmen thereupon ceased, and truck deliveries were interrupted. The demolition continued until it was completed in 6 or 7 days requiring the use of 12-14 employees per shift working three shifts per day. The picketing continued until an injunction issued on December 15, 1970. Thereafter, the Employer decided to demolish furnace M-1, again using employees represented by UAW. La- borers did not interfere with this assignment which was carried out and completed between January 18 and 22, 1971. B. Contention of the Parties Certain-Teed contends that its current contract with UAW obligates it to assign the disputed work to its production and maintenance employees represented by that Union. It contends that its employees are qualified to do the demolition work and have satisfactorily per- formed the work assignment. Finally, it is Certain- Teed's contention that good labor relations with the Union representing its employees, and sound economic considerations based on actual cost analysis and elimi- nation of employee layoffs necessitated by the demoli- tion work, dictate the desirability and continuation of its practice of assigning the disputed work to its own employees. UAW supports Certain-Teed's position as to the work assignment. Laborers, although not present at the hearing, appar- ently contends that the type of work in dispute should be performed by its members because the furnace reconstruction needed after demolition is primarily construction work and demolition is merely incidental thereto.' C. Applicability of the Statute In accordance with the requirements of Section 10(k) of the Act, the Board must first ascertain whether there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has occurred. As shown above, there is testimony that Laborers threatened to picket the jobsite at Mountain Top, Penn- sylvania, for the purpose of forcing or requiring Cer- tain-Teed to make a work assignment to its members, and evidence at the hearing established that Laborers did in fact picket the jobsite with resultant work stop- pages on and after November 30, 1970. Furthermore, the work in dispute has never been the subject of past grievances or arbitration awards and neither Certain- Teed nor UAW is party to any agreed-upon method for resolving the dispute. We find, therefore, that there is reasonable cause to believe Laborers picketed the job- site with an object of forcing the Employer to reassign the disputed work within the meaning of Section 8(b)(4)(D). Accordingly, the dispute is properly before the Board for determination. D. The Merits of the Dispute As the Board stated in J. A. Jones Construction Com- pany,' it will determine the appropriate assignment of disputed work in each case presented for resolution under Section 10(k) of the Act only after taking into account and balancing all relevant factors. 1. Collective-bargaining agreement UAW has been recognized by Certain-Teed and for a period of years, since prior to 1962 , has had contrac- tual agreements with it, the latest of which is a 3-year contract effective November 19, 1969 . This contract, Certain-Teed and UAW contend, contemplates that the employees represented by UAW are to perform the work in dispute. The parties to the contract point to provisions covering furnace maintenace work generally and other provisions covering various job classifica- tions essential to the performance of that maintenance, such as machinist specialist and furnace specialist (schedule A of the contract agreement , pages 28-36). In addition they point to the language of the contract (article IX, section 8) which reads: No person excluded from the coverage of this Agreement shall perform bargaining unit work ex- cept in dire emergency , or in case no bargaining unit employee is qualified to do that work . In such case, one or more employees shall be given train- ing immediately in such work by nonbargaining unit personnel. ' This was the position as stated by Laborers representative when claim- ing the work in conversation with Certain-Teed's officials ' International Association of Machinists, Lodge No. 1743 (J. A Jones Construction Company), 135 NLRB 1402 HODCARRIERS , LOCAL 215 Laborers appears to take the position, however, that despite the above-quoted contract provision and other contract paragraphs alluded to, there is nothing in the contract to prevent Certain-Teed from adding mem- bers of Laborers to its production and maintenance employees for the purpose of furnace demolition. While the assumed contention of Laborers with regard to additional employees may or may not be technically true, it is conceded that employees represented by La- borers have no contractual claim whatever to the dis- puted work. These contract provisions, together with the absence of a bargaining relationship between Cer- tain-Teed and Laborers, and the prior practice and present assignment of the work discussed below, are strongly persuasive of the right of production and maintenance workers represented by UAW to perform the disputed work. 2. Company and industrywide practice The testimony shows that Certain-Teed's practice and the practice in the industry in general is to utilize the inside plant employees to perform demolition work on furnaces used for processing moulten glass and to use building trade employees in the rebuilding of such furnaces. This procedure was followed as to Certain- Teed's M-1 furnace in 1965. Though the testimony is in conflict as to the procedure followed for the M-2 furnace in 1968, a Certain-Teed official explained that it was his recollection that the demolition in that in- stance was performed by an outside contractor because the Mountain Top installation had been shut down for about a year and only 12 of the 120 plant employees were on payroll status. This skeleton force was not adequate to perform the demolition work. Construc- tion Manager Gaserick testified that of the 20 or more demolition jobs by other manufacturers in the industry, of which he had personal knowledge, each had been performed by inside plant employees. Accordingly, these factors favor the present assignment of work. 3. Skill, training, efficiency, and economy The work of demolition is carried out with the use of such ordinary tools as chisels, prying bars, hammers, and wheelbarrows to remove the debris. Air hammers are also used, and only this implement and the wheel- barrows had to be rented by Certain-Teed to supple- ment its equipment for the demolition of M-2 furnace. One or more furnace specialists supervise the work and these were Certain-Teed's regular employees. The demolition work required no training or experience other than that already possessed by the production and maintenance employees of Certain-Teed, and the Employer has been satisfied with the quality of its em- ployees' work and their efficiency. The use of its em- ployees in this work substantially reduces the number 497 of employee layoffs necessitated by the shutdown of the plant during the demolition work and Certain-Teed officials testified that a careful computation of cost fac- tors of the demolition operations was one consideration that influenced their present work assignment. It was also Certain-Teed's position that it accrued to their advantage to maintain continued good labor relations with the Union with whom it has, for some years past, had a contractual relationship as representative of its employees. Clearly these factors favor an award to em- ployees represented by UAW. Conclusion On the basis of the foregoing considerations, it is clear that none of the relevant factors favors an assign- ment of work to Laborers. Such factors as Certain- Teed's past practice, industrywide practice, the skill and training of Certain-Teed's employees, and the effi- ciency and economy of the present operation, favor the present assignment. Accordingly, we shall determine the dispute by confirming Certain-Teed's assignment to its own employees. Our determination is limited to the particular controversy which gave rise to this proceed- ing, the job at Crestwood Industrial Center, Mountain Top, Pennsylvania. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceed- ing, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees employed by Certain-Teed St. Gobain Insulation Corporation, who are currently represented by United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 365, are entitled to do the demolition work on the furnaces used in connection with the fiberglass production pro- cess at Crestwood Industrial Center, Mountain Top, Pennsylvania. 2. International Hodcarriers, Building and Common Laborers Union, Local No. 215, AFL-CIO, is not enti- tled by means of conduct proscribed by Section 8(b)(4)(D) of the Act to force or require Certain-Teed St. Gobain Insulation Corporation to assign the afore- mentioned work to its members. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Hodcarriers, Building and Common Laborers Union, Local No. 215, AFL-CIO, shall notify the Regional Director for Re- gion 4, in writing, whether or not it will refrain from forcing or requiring Certain-Teed St. Gobain Insula- 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion Corporation, by means proscribed by Section employees represented by it, rather than to Certain- 8(b)(4)(D) of the Act, to assign the work in dispute to Teed's employees.