Laborers, Local 712

LABORERS , LOCAL 712 155 Laborers' International Union of North America, AFL-CIO, Local 7121 and Midland Glass Compa- ny, Inc.2 and Local 119, Glass Bottle Blowers Association of the United States and Canada, AFL-CIO. Case 22-CD-206 New Jersey. We find, accordingly, that Midland 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 policies of the Act to assert jurisdiction in this proceeding. May 26, 1972 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Midland Glass Company, Inc., hereinafter referred to as Midland, alleging a violation of Section 8(b)(4)(i) and (ii)(D) by Labor- ers' International Union of North America, AFL-CIO, Local 712, hereinafter referred to as Laborers. Pursuant to notice, a hearing was held on February 2, 1972, in Newark, New Jersey, before Hearing Officer Gerald Kobell. Midland, Laborers, and Local 119, Glass Bottle Blowers Association of the United States and tanada,i AFL-CIO, ,hereinaf- ter referred to as GBBA, 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. None of the parties filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Upon the basis of the entire record in this case, the Board hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that Midland Glass Compa- ny, Inc., a Delaware corporation licensed to do business in New Jersey, is engaged in the business of manufacturing glass containers, with a place of business located at Cliffwood, New Jersey, its only facility involved herein. During the last 12 months, Midland purchased soda ash and other materials valued in excess of $50,000, directly from concerns located outside the State of New Jersey, and during the same period of time derived revenue from the sale and shipment of its products in excess of $50,000 directly to customers located outside the State of 1 The name of the Laborers' Union appears as amended at the heanng 2 The name of the Charging Party appears as amended at the heanng II. THE LABOR ORGANIZATIONS The parties stipulated, and we find, that Laborers and GBBA are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The business of the Employer is the production of glass containers. Raw materials are received, deliv- ered, and mixed or dropped into a furnace, and the proper mixture comes out as molten glass. This mixture then goes through a machine in which the bottles are made. These bottles are then packed and distributed. Currently, 17 production lines are served by 4 furnaces at Midland's Cliffwood operation. The glass furnaces have to undergo extensive cold repairs approximately every 3 years. Before any repair work is started, Midland determines what work its own employees can undertake and then contracts out any specialized work that is necessary. When Midland does not have the available manpower, it informs the contractor who in turn hires additional crafts which Midland could not supply. In December 1971, Midland determined that one of its glass furnaces was in need of repair. Part of the work was to be performed by its own employees, and part was to be contracted out. Midland entered into a contract for the repair of the furnace with Henry F. Teichmann of Pittsburgh, Pennsylvania. The work contracted out involved engineering and technical employees and the brick masons. All the other work in and around the furnace was to be performed by its own employees, including the tending to brick masons. Midland employees tore down the parts of the furnace that were worn out. The dismantling process involved the removal of brick, block, steel work, and burner installations. After the dismantling, Teichmann came in with the brick masons and started the repairs. GBBA had a collective-bargaining agreement with Midland effective April 1, 1971, through March 31, 1974, currently in effect.3 B. The Work in Dispute The disputed work concerns the work of helping 3 A prior collective-bargaining agreement for a period of 3 years from 1968 through 1971 was substantially the same as the current agreement. 197 NLRB No. 13 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and tending brick masons, dismantling, demolishing, and removing masonry, and removing debris in the course of repairing4 glass furnaces at a time when Midland employees are available for such work. C. The Contentions of the Parties Midland and GBBA assert that their present collective-bargaining agreement requires Midland's employees to do any, work of which they are capable in order to maintain the work force and avoid layoffs. Midland's employees were available to perform the work in dispute, and the contract with Teichmann provided that the tending of the brick masons employed by Teichmann was to be per- formed by Midland's employees. Laborers assert that the work in dispute is traditionally awarded to employees represented by it, and that they had performed these tasks at Midland's Cliffwood plant on prior occasions. Laborers relies on a memoran- dum of understanding dated January 31, 1967, between the respective International presidents of Laborers and GBBA stating that the tending of brick masons on new construction, including the rebuild- ing of tanks and furnaces, is the work jurisdiction of Laborers. The memorandum further provides that, when plant owners elect to contract out the work involved in tearing down and rebuilding the fur- naces, the work should also be performed by members of Laborers. Midland contends that it was not a party to the memorandum of understanding and is not bound by it in awarding the work to employees whom it considers to be qualified and available for it. D. Applicability of the Statute Before the Board may proceed with the 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. The record shows that on or about January 6, 1972, a meeting was conducted at Midland's premises during which several labor unions claimed segments of work associated with the repair of the glass furnace. The representatives of the crafts who attended, including Laborers, asserted that various parts of the work were within their jurisdiction. Before the meeting ended, threats that Midland would be faced with a picket line were made. The next morning, January 6, 1972, and continuing through the following day, pickets representing Laborers and the Operating Engineers 5 appeared at Midland's premises, patrolling the main entrance to the plant with signs containing the legend: "Midland Glass Co. Bars Contract Between Teichmann and Laborers Local 712." On the basis of the entire record, we conclude that there is reasonable cause to believe a violation of Section 8(b)(4)(D) has occurred and 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 Board to make an affirmative award of disputed work after giving due consideration to various relevant factors. The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular cases _ The following factors are relevant to making the determination of the dispute before us. 1. The collective-bargaining agreements Neither of the labor organizations involved herein has been certified by the Board as the collective- bargaining representative for a unit of Midland's employees. Midland's contract with GBBA spells out GBBA's jurisdiction in section 3: Section 3-The Company agrees that it will not sublet contracts for maintenance, repair, and other 'work in and around the plants under this contract if such work can be as satisfactory and more economically performed by bargaining unit employees, provided the Company has the facili- ties for doing the work, and available trained personnel who can perform the work within the required time. It would appear from the record that this provision covers the work involved herein and favors the assignment of the disputed work to employees represented by GBBA. Midland has no contracts with Laborers. Laborers seeks the work tending brick masons under the memorandum of understanding signed by the respec- tive International presidents of Laborers and GBBA on January 31, 1967. Midland contends that it was not a party to this memorandum of understanding and is not bound by it in awarding work. We agree with Midland that, since it was not a party to this 4 At the hearing, the parties could not agree as to whether the disputed Operating Engineers, the charges against the Operating Engineers were work should be characterized as "rebuilding" or "repairing " Upon the subsequently withdrawn by Midland upon termination of the picketing entire record before us in regard to the nature of the work , we make the 6 International Association of Machinists, Lodge No 1743, AFL-CIO determination that the work in dispute is correctly characterized as "repair." (J A Jones Construction Company), 133 NLRB 1402. 5 Although Midland filed charges against both Laborers and the LABORERS, LOCAL 712 memorandum , it is not bound by it in awarding work.? 2. Company and industry practices As to previous furnace repair , the record indicates that Midland's practice at Cliffwood and at its other plants located in Terre Haute, Indiana, and Shako- pee, Minnesota, is to follow section 3 of its collective- bargaining agreement with GBBA, assigning as much work as possible to its production and maintenance employees , and contracting out the remainder of the work . Previous work has reflected the above practice. The record reveals that certain work contracted out and work done by Midland's employees varied from repair job to repairjob. The determining factor is the manpower and the skills Midland has available at the time the repair work is necessary. Repair work on the furnaces was performed in January, April, and October, 1971. On two of these occasions, Midland's employees were otherwise occupied in the plant. The contractor performing the work employed additional individuals represented by Laborers to do some of the dismantling of the furnace and the tending of the brick masons who worked on the furnace. On these occasions Midland's employees represented by GBBA also performed preliminary work prior to the commencement of the bricklaying work , including some dismantling and demolition . In the third and most recent instance, October 1971 , Midland had employees available to do all of the disputed work and no Laborers or other individuals were employed on the job to do that work. The practice in the industry varies from plant to plant and is usually determined by the size of the work force, production, and availability of skilled manpower. Large concerns employ individuals skilled in all the construction crafts and perform the entire task of repairing a furnace. On the other hand, small firms , usually are unable to spare any pro- duction and maintenance employees for repair work and all the tasks associated therewith are subcon- tracted out. 3. Relative skills, economy, and efficiency of operation The record reveals that Midland's employees represented by GBBA in performing the dismantling work utilize pneumatic jackhammers, electric ham- mers, sledge hammers, crowbars, wheelbarrows, and an hydraulic payloader. All of the above equipment is owned by Midland and is stored in its maintenance toolshed and utilized from time to time by mainte- 157 nance employees in the course of their regular duties in the plant . The work of tending and helping the brick masons usually consists of mixing mortar and physically handing bricks and other materials to the bricklayers or raising them to the various levels in the furnace by forklifts, which are owned by Midland and operated by its employees. Midland claims that the stability of its work force was maintained by assigning the work in dispute to its employees who are members of GBBA, and that a layoff of approximately 60 employees for a period of 30 days was therefore avoided . In addition, the employees of Midland are in the plant and are available when the work of a furnace progresses between stages. Conclusions Having considered all pertinent factors, we con- clude that the factors including the collective-bar- gaining agreement in existence between Midland and GBBA, company practice, and efficiency of opera- tions favor awarding the work to the employees represented by GBBA, when available, and we shall determine that they are entitled to perform the work in dispute. Accordingly, on the basis of the entire record, we shall determine the existing jurisdictional controversy by awarding to the employees represent- ed by GBBA, rather than to individuals represented by Laborers, the work of helping and tending brick masons, dismantling, demolishing, and removing masonry, and removing debris created in the course of the repair of glass furnaces at Midland's plant in Chffwood, New Jersey . In making this determina- tion, we are assigning the work to employees who are represented by Local 119, GBBA, and 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 findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: 1. Employees of Midland Glass Company, Inc., when available , who are currently represented by Local 119, Glass Bottle Blowers Association of the United States and Canada , AFL-CIO, are entitled to perform the work of helping and tending brick masons, dismantling, demolishing, and removing - masonry, and removing debris created in the course 7 See N L R B v Plasterers ' Local Union No 79, 401 U S 973 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the repair of glass furnaces at Midland's plant located in the city of Cliffwood , New Jersey. 2. Laborers' International Union of North Amer- ica, AFL-CIO, Local 712, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Midland Glass Company, Inc., to assign such disputed work to individuals represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Laborers' Interna- tional Union of North America, AFL-CIO, Local 712, shall notify the Regional Director for Region 22, in writing, whether or not it will refrain from forcing or requiring Midland Glass Company, Inc., by means proscribed in Section 8(b)(4)(D), to assign the disputed work to its members rather than to employees represented by GBBA.