Ceramic Workers Local 21 (ASG Industries)

CERAMIC WORKERS, LOCAL NO. 21 United Glass and Ceramic Workers of North America, Local No. 21, AFL-CIO-CLC and ASG Indus- tries, Inc. and Glass Bottle Blowers Association of the United States and Canada, Local 108, AFL- CIO. Case 6-CD-627 November 23, 1977 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed on July 7, 1977, and an amended charge filed on July 11, 1977, by ASG Industries, Inc. (herein called the Employer), alleging that United Glass and Ceramic Workers of North America, Local No. 21, AFL-CIO-CLC (herein called the Glass Workers) had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees represented by Glass Bottle Blowers Association of the United States and Canada, Local 108, AFL-CIO (herein called the GBBA). Pursuant to notice, a hearing was held before Hearing Officer Rexford C. Simpson on July 26, 1977. All parties appeared 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 and the Glass Workers 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 Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. 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 Employer, a Delaware corporation with its principal place of business in Kingsport, Tennessee, is engaged in the business of manufacturing window glass at plants located in Greenland and Kingsport, Tennes- see, and Jeannette, Pennsylvania. During the past I Herein employees represented by the Glass Workers will be referred to as "glass workers." 2 Previously, the Glass Workers and the GBBA's predecessor disputed jurisdiction over the work of breaking glass on the drawing machines. In Window Glass Cutters League of America, A FL-CIO (American-Saint Gobain 233 NLRB No. 108 year, the Employer purchased for use at its Jeannette facility raw materials from outside the State of Pennsylvania having a value in excess of $50,000. The parties also stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Glass Workers and the GBBA are labor organizations within the meaning of Section 2(5) of the Act. Ill. THE DISPUTE A. The Work in Dispute The work in dispute involves the operation of a newly fabricated glass cutting machine (the name of which is disputed) which commenced operation on or about July 5, 1977, at the Employer's Jeannette, Pennsylvania, facility. B. Background and Facts of the Dispute The Jeannette plant has a "hot end" where glass is manufactured and a "cold end" where it is cut and inspected. In the "hot end," there is a tank of molten glass and three drawing machines. The drawing machines, operated exclusively by glass workers,' draw the glass from the tank. These machines have cutting wheels which score the glass vertically and horizontally. The glass then proceeds to a point where it is manually broken by the glass workers. 2 The resulting large bucks (panes) of glass are then transported to machines in other portions of the plant by glass workers where they are cut into lites (smaller sizes). Three block cutting machines, operated by glass cutters3 and located in the "cold end" of the plant, score the bucks of glass into predetermined sizes using carborundum wheels which make an X cut vertically and a Y cut horizontally. Two glass cutters are assigned to each machine, one of whom, the feeder, takes a buck of glass from a truck adjacent to the machine. He places the glass on a float table which has holes thereon through which air is forced to facilitate manipulation of the buck. Once the buck is positioned properly, the feeder hits a knee switch which reverses the air flow so that there is a vacuum holding the buck firmly in place. The buck is then Corporation). 146 NLRB 64 (1964), we awarded this work to employees represented by the Glass Workers. 3 Herein employees represented by the GBBA will be referred to as "glass cutters." 757 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mechanically scored and manually broken along the score lines by the glass cutters. The Employer has one multicut machine at its Jeannette facility. Eight people work on this ma- chine; four glass workers (a loader, two unloaders, and a relief) and four glass cutters (a machine cut glass operator, a count off, an inspector, and a relief). At the multicut machine, a buck of glass is placed on an "incline" by a glass worker and the machine mechanically places the glass for scoring. Glass cutters set the heads for scoring the glass. The glass is scored horizontally but not vertically. The machine then mechanically breaks the glass into smaller lites which proceed on a conveyor to a point where they are collected by the glass workers.4 The Employer also has one microcut machine. It is very similar to a multicut machine, but the glass used is thinner and is loaded from a different angle. As on the multicut machine, a glass worker places a buck of glass on the microcut and the machine mechanically places the glass for scoring. The glass is mechanically broken into lites which are then removed by glass workers. 5 Multicut machines and microcut machines differ from block cutting machines in the following respects: the multicut and microcut machines are loaded semiautomatically and the resulting lites are mechanically broken, while the block cutting ma- chines are manually loaded and the resulting lites are hand broken. In 1969, the Employer's predecessor, American Saint Gobain Corporation (hereafter American) installed two block cutting machines, manufactured by the Billco Company, at its then existing Arnold, Pennsylvania, facility and one such machine in its Jeannette facility. American assigned work on the machines to glass cutters, while glass workers were to "service" (take glass to and from) the machines. The glass workers refused to service the machines because they wanted to be part of the on-machine crew. American attempted to compromise by putting one glass worker on each machine, but then the glass cutters refused to work. American then filed a charge against the GBBA's predecessor, two locals of the Window Glass Cutters League of America, alleging a violation of Section 8(b)(4)(D) of the Act. In Window Glass Cutters League of America, Local No. 10, AFL- CIO (American Saint Gobain Corporation), 181 NLRB 821 (1970) (hereafter "the 1970 Board Decision"), we awarded the work in dispute to employees represented by the GBBA. 4 Occasionally the breaking mechanism fails and, at those times only, the glass is then hand broken by glass workers. 5 While the record shows that the microcut machine is operated with a composite crew of glass workers and glass cutters, the record does not reflect From 1972 to 1974, the Employer added two more block cutting machines which it fabricated itself. Only glass cutters worked on these machines and there were no work stoppages or grievances respect- ing such work assignments. On July 5, 1977, the Employer began operating a new glass cutting machine, also self-fabricated,- on which bucks are manually loaded on a flat table and, after being scored, are hand broken. The machine has two terminal wings and consequently there must be two unloaders as well as one feeder on the machine. The Employer assigned such work to glass cutters. The glass workers refused to service all machines (including the machine in question) in the cold end of the plant, and also ceased working in the box shop, the packing room, and the warehouse. Thereafter, the Employer assigned the work to a composite crew with one glass worker loading the machine. Thereafter the two glass cutters (unloaders) refused to break and inspect the glass at the machine after it was scored. There was no work stoppage elsewhere in the plant by glass cutters. On July 25, 1977, the Employer and Glass Workers entered into a stipulation, approved by a United States District Judge, providing that the Glass Workers would not engage in a work stoppage to force the Employer to assign the work in dispute to employees they represented pending disposition of the dispute by the National Labor Relations Board. Thereafter the Employer operated the machine as before, with a crew of three glass cutters. The operation of the machine in issue is similar to the block cutting machines: it must be manually loaded and, after being mechanically scored, the glass must be manually broken. The new machine is different from the block cutting machines only in that it is faster and produces smaller lites and, accordingly, needs two employees to inspect and unload the glass instead of one. At the Employer's Kingsport and Greenland, Tennessee, facilities, glass workers operate all cutting machines, including the block cutting machines. However, the Glass Workers represents all employ- ees who work with glass at these plants-there being no representation by the GBBA. At the Employer's former facilities in Okmulgee, Oklahoma, and Ar- nold, Pennsylvania, the block cutting machines were operated by glass cutters. The present collective-bargaining agreement be- tween the Employer and the GBBA runs from July 15, 1976, to July 15, 1979. The recognition clause provides that the Employer recognizes the GBBA as how many employees work on this machine, their precise jobs. or their individual union affiliation (other than the fact that glass workers load and remove glass from the machine). 758 CERAMIC WORKERS, LOCAL NO. 21 the exclusive representative of "all hand cutters of window glass, inspectors of hand cut window glass, apprentices to the hand cutting of window glass, (cutting machine operator, reject cutter-machine cut glass and the inspector-machine cut glass in accor- dance with the Miami Agreement dated May 15, 1958)" at the Employer's Jeannette facility. The Miami Agreement provides, inter alia, that American Window Glass Company (a predecessor of the Employer) and the Window Glass Cutters League of America, AFL-CIO (the aforementioned predeces- sor of the GBBA), agree to be bound by the award of the National Labor Relations Board in a then pending jurisdictional dispute arising at another employer's plant involving "cutting machine occupa- tions" (the jobs of cutting machine operator, reject cutter-machine cut glass, and inspector-machine cut glass) on all existing cutting machines. In that case, Window Glass Cutters League of America, AFL-CIO (Libbey-Owens-Ford Glass Company), 123 NLRB 1183 (1959), the Board awarded jurisdiction over "cutting machine occupations" to employees repre- sented by the predecessor of the GBBA, rather than to employees represented by the Glass Workers. The current collective-bargaining agreement be- tween the Employer and the Glass Workers, effective from April 9, 1976, to April 1, 1979, provides in its recognition clause that the Employer recognize the Glass Workers as the sole representative for all production and maintenance employees employed by the Employer with the exclusion of all employees under the jurisdiction of the GBBA. C. The Contentions of the Parties The Employer contends that the 1970 Board Decision, which awarded work on Billco block cutting machines to employees represented by the GBBA, supports its initial award of the disputed work to employees represented by the GBBA since the machine at issue operates just like the Billco machines. The Employer also asserts that its practice since the 1970 Board Decision has been to assign the work on newly added block cutting machines solely to employees represented by the GBBA. Moreover, the Employer contends that the recognition clauses in its collective-bargaining agreements with the two Unions herein strongly favor an award of the disputed work to the GBBA-represented employees, and that the new machine performs cutting work which was formerly done by GBBA-represented hand cutters. 6 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 Glass Workers maintains that its unit performs work on the drawing machines, multicut machine, and microcut machine which is identical to the work on the machine in issue. Moreover, it asserts that glass workers are as capable of operating the new machine as are the GBBA employees. Finally, the Glass Workers contends that the foregoing factors coupled with "common sense justice" requires that the work in dispute be awarded to a composite crew which includes one glass worker. 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 dispute. The record shows that on or about July 5, 1977, the Employer assigned the work in dispute to the glass cutters and thereafter the glass workers refused to service all cutting machines in the cold end of the plant and, in addition, ceased working in the box shop, the packing room, and the warehouse. Further- more, based on the record before us, there is at present no agreed-upon method for the voluntary adjustment of this dispute. On the basis of the entire record, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that this 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 disputed work after giving due consideration to various factors. 6 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case.7 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements The Employer contends that the recognition clause in its contract with the GBBA, which includes "cutting machine operator(s)," encompasses work on the machine at issue. The Glass Workers does not T International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company)., 135 NLRB 1402 (1962). 759 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintain that the recognition clause in its contract with the Employer gives rise to any claim for the work in dispute. While, by the terms of its contract, the GBBA clearly represents "cutting machine operators," it is also clear that glass workers perform work on the drawing machines and microcut and multicut ma- chines which can also be classified as "cutting machine operator" work. Therefore, although the respective collective-bargaining agreements cannot be considered conclusive, we find that the more precise language of the GBBA contract tends to favor an award to the employees represented by that Union. 2. Company past practice Since the Board's Decision in 1970, the Employer has assigned all work on both Billco block cutting machines and Employer-manufactured block cutting machines at its Oklahoma, and Jeannette and Arnold, Pennsylvania, facilities to employees repre- sented by the GBBA. Work on the multicut, microcut, and drawing machines has been assigned to composite crews of the GBBA- and Glass Worker- represented employees. The machine in issue is similar to the block cutting machines and very different from the multicut and microcut machines. Like the block cutting machines, it is manually loaded and the glass, after being scored by the machine, is manually broken. The multicut and microcut machines, by contrast, are loaded semiautomatically and the glass is mechanically broken. Accordingly, the Employer's assignment of the work on the new machine to the GBBA employees is consistent with its practice of assignment of the same work on substantially identical machines to GBBA employees.8 Therefore, we find that the Company's past practice favors an award to employees repre- sented by the GBBA. 3. Relative skills and efficiency Edward Good, vice president of labor relations for the Employer, testified that the new machine would run as efficiently with a composite crew as it would with a crew composed of only GBBA employees. This factor does not favor an award to the employees represented by either Union. 8 The fact that glass workers perform all work on block cutting machines at the Employer's Kingsport and Greenland, Tennessee, facilities does not warrant a different result here as all glass working employees at those plants 4. Gain or loss of jobs Prior to the fabrication of the new machine, orders for small lites of glass, e.g., 6 by 6 or 5 by 7, were hand cut by GBBA-represented employees. How- ever, since the new machine can manufacture these smaller lites (which the other machines at Jeannette cannot do) many orders for small lites will be done on the new machines and hand cutting jobs by GBBA-represented employees will be lost. Accord- ingly, this factor favors award of the work to employees represented by the GBBA. Conclusion Upon the record as a whole, and after full consideration of all relevant factors involved, we conclude that employees who are represented by the GBBA are entitled to perform the work in dispute. We reach this conclusion relying on the Employer's practice and assignment of the disputed work to these employees, its contract with GBBA, and the fact that these employees will lose jobs if they are not awarded the work. In making this determination, we are awarding the work in question to employees who are represented by the GBBA, but not to that Union or its members. The present 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: 1. Employees of ASG Industries, Inc., who are represented by Glass Bottle Blowers Association of the United States and Canada, Local 108, AFL-CIO, are entitled to perform all work on the glass cutting machine fabricated by the Employer which com- menced operation on or about July 5, 1977, at the Employer's Jeannette, Pennsylvania, facility. 2. United Glass and Ceramic Workers of North America, Local No. 21, AFL-CIO-CLC, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require ASG Industries, Inc., to assign the disputed work to employees represented by the labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, United Glass and Ceramic Workers of North America, Local No. 21, AFL-CIO-CLC, shall notify the Regional Director are represented by the Glass Workers and there is no GBBA representation. Conversely, at the Okmulgee, Arnold, and Jeannette plants where there is representation by both Unions, the practice has been otherwise. 760 CERAMIC WORKERS, LOCAL NO. 21 for Region 6, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination. 761