Construction & General Laborers Local 132

CONSTRUCTION & GENERAL LABORERS LOCAL 132 117 Construction and General Laborers Local No. 132, AFL-CIO and Brockway Glass Company, Inc. and Glass Bottle Blowers Association of the United States and Canada, Local 61 . Case 18-CD-201 tuate the purposes of the Act to assert jurisdiction herein IT THE LABOR ORGANIZATIONS INVOLVED May 25, 1976 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing a charge filed by the Employer, Brockway Glass Company, Inc, alleging that Construction and General Laborers Local No 132, AFL-CIO (herein- after Laborers), had violated Section 8(b)(4)(D) of the Act by engaging in conduct with an object of forcing or requiring the Employer to assign certain work to employees represented by it rather than to employees represented by Glass Bottle Association of the United States and Canada, Local 61 (hereinaf- ter Glass Bottle Blowers) A hearing was held on March 3, 1976, before Hearing Officer Craig D Lef- fler All parties 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 and Laborers 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 rulings of the Hearing Officer made at the hearing are free from prejudicial error They are hereby affirmed Upon the entire record in this proceeding, the Board makes the following findings I THE BUSINESS OF THE EMPLOYER The Employer, Brockway Glass Company, Inc, a New York corporation with facilities located in Rosemount, Minnesota, is engaged in the manufac- ture of glass bottles During the past calendar year, it purchased and received supplies and materials val- ued in excess of $50,000 from suppliers located out- side the State of Minnesota, and sold goods and serv- ices valued in excess of $50,000 directly to points outside the State The parties stipulated, and we find, that the Employer is engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effec- The parties have stipulated, and we find, that the labor organizations involved are labor organizations within the meaning of Section 2(5) of the Act III THE DISPUTE A The Work in Dispute The work in dispute is the tending of bricklayers during rebuilding of a glass furnace at Employer's Rosemount plant t B Background and Facts of the Dispute The Employer at its Rosemount plant is engaged in the manufacture of glass bottles It employs ap- proximately 340 production and maintenance em- ployees, all of whom are represented by Glass Bottle Blowers The disputed work is part of the work to be performed in connection with the rebuilding of one of Employer's two furnaces 2 The rebuilding process takes about 6 weeks The furnace under repair is the largest of the two and supplies glass to five of the Employer's eight bottlemaking machines Approxi- mately 62 to 63 percent of the employees in the bar- gaining unit have no production work while this fur- nace is being refurbished From this group the Employer has retained 55 employees on a seniority basis and assigned them to various general labor classifications 3 Of those retained approximately 30 are performing the disputed bricklayer tending work As more fully described, infra, the Laborers laid claim to the work on several occasions prior to and including February 4, 1976 On or about February 8, 1976, the actual reconstruction and rebuilding of the furnace began On February 9, 1976, Laborers set up a picket line and various crafts engaged at the site stopped work The picketing lasted 1 day At the March 3, 1976, hearing, the Employer estimated the furnace rebuilding would be completed and the fur- nace in operation by March 9, 1976 C Contentions of the Parties Employer and Glass Bottle Blowers contend there is reasonable cause to believe that Laborers violated 'Originally the Laborers also claimed the teardown and cleanup work However during the hearing it disclaimed this aspect of the work ' The furnace in question was last rebuilt in 1967 3 The remainder were laid off 224 NLRB No 22 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(b)(4)(D) and that the proceeding is proper- ly before the Board for determination of the dispute They contend that on the basis of the Employer's assignment and preference, as well as economy and efficiency of operations and the collective-bargaining agreement the Employer has with Glass Bottle Blow- ers, the work in dispute should be awarded to the employees represented by that Union Laborers contends that the work should be as- signed to employees it represents based on the agree- ment between the two International Unions, and be- cause the skills involved make it more economical and efficient to assign the work to the laborers 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 (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) that the parties have not agreed upon a meth- od for the voluntary adjustment of the dispute As to the first, the testimony of Employer's plant manager, Arnold Cameron, corroborated by that of John Mc- Ginn, a Laborers representative, established that Mc- Ginn and a fellow Laborers representative, Bonnie Mercardo, visited Cameron on January 10, 1976, and several times thereafter, and on each occasion asked that the work in dispute be assigned to Laborers Cameron rejected all of these request At the conclu- sion of each of these conversations, one of the Labor- ers representatives would state "I guess we know what we will have to do now " Following a telephone call by McGinn to Cameron on February 4, 1976, in which the Laborers demand and the above comment were repeated, Laborers on February 9, 1976, com- menced picketing the plant As noted previously, picketing continued for 1 day We conclude, there- fore, that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and that the dispute is properly before us for determina- tion The parties have no agreed-upon method for the voluntary adjustment of the dispute 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 4 The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- mon sense and experience reached by balancing those factors involved in a particular case 5 The following factors are relevant in making the determination of the dispute before us 1 The collective-bargaining agreement Employer has a collective-bargaining agreement with Glass Bottle Blowers covering the production and maintenance unit, i e, the glass bottle blower employees Laborers does not represent any of Employer's employees The Glass Bottle Blowers agreement has a clause which states inter alia When it is necessary to make major tank repairs or to rebuild tanks, the company will use avail- able and qualified employees whenever possible to do this work 6 Thus, Employer is obligated by the terms of its agree- ment with Glass Bottle Blowers to use employees in the bargaining unit during these shutdowns if they are qualified to tend the bricklayers during the re- building of the glass furnaces Laborers contends, however, that these employees are not so "qualified " To support this contention it presented testimony by bricklayers who worked on the job to the effect that the production employees were not able to tend to their needs as well as laborers who have performed this work for them However, these bricklayers also testified that they nevertheless were able to perform their duties while being tended by the glass bottle blowers, and that they had not complained to Em- ployer that the latter employees were inadequate to the task The Employer is satisfied with their qualifi- cations and in the past has been able to complete the rebuilding of its glass furnaces well within the plan- ned timetables using them to do the work in dispute We conclude from all this that the glass bottle blow- ers in the above contract unit are qualified to tend bricklayers and thus, we find that the contract calls for the assignment of the disputed work to them Ac- cordingly, this factor favors an award of the work to employees represented by Glass Bottle Blowers 2 Employer assignment and preference Employer has assigned the work, and prefers an assignment, to employees represented by Glass Bot- tle Blowers These factors therefore favor employees represented by that Union 3 Employer, area, and industry practice Employer presented evidence that it has been its 4 N L R B v Radio and Television Broadcast Engineers Union Local 1212 'International Association of Machinists Lodge No 1743 AFL-CIO (J A International Brotherhood of Electrical Workers AFL-CIO [Columbia Broad Jones Construction Company) 135 NLRB 1402 (1962) casting System] 364 U S 573 (1961) 6 The furnaces are sometimes referred to as tanks CONSTRUCTION & GENERAL LABORERS LOCAL 132 119 practice and the practice of other employers in the glass industry to assign bricklayer tending to their glass bottle blower employees Laborers presented evidence that at least on two other occasions at glass bottle plants, one involving this plant in 1967,7 labor- ers were assigned to tending bricklayers who were rebuilding furnaces Laborers also presented evi- dence indicating that it was the practice elsewhere in the area to use laborers with experience in fire brick installation for such work Thus, it would appear that the area and industry practice is at least mixed We conclude this factor does not favor either competing group of employees 4 Relative skills As noted above, Laborers contends that regular production employees do not possess the skill neces- sary to do this work We have already rejected this contention But Laborers further contends that the employees it represents are better qualified to do the work than glass bottle blowers It points in particular to the requirement that the employees tending the bricklayers be able to cut the brick in accordance with the bricklayer's markings, and that laborers are more qualified to do such work The bricklayers who testified also stated that the laborers who had experi- ence working with them in the past were better able to anticipate their needs and that this made them more efficient Employer, on the other hand, con- tends that the disputed work is largely a question of having necessary material at the site, and using pro- duction employees familiar with the plant and its warehouse facilities made them equally capable of performing it The record indicates that the work does not require a high level of skill and that it can be performed equally well by either group of employ- ees We conclude, therefore, that this factor favors neither claim for the work er, that the respective levels of skill do not favor either group But the record does show that in other respects it is more economical to assign the work to glass bottle blowers They can be switched to various jobs within the bargaining unit when vacancies or emergencies arise, and they are acquainted with the plant layout and rules, and thus have less difficulty in adjusting to changes in employment In addition, by using its production workers, Employer is able to avoid laying off many of its regular employees there- by keeping at hand a ready supply of experienced glass bottle blowers who might otherwise be forced to seek other employment, obtain it, and hence be lost to Employer as future employees Conversely, the employees who are so retained are benefited in that there is no break in their fringe benefits and they are saved from loss of income and other problems usually arising from layoffs Laborers argues, on the other hand, that because of a general economic de- cline in the area, its members are available for and need the work, now face the same economic hardship that the glass bottle blowers would if they were laid off and replaced by Laborers, and hence, these facts balance the problems attendant to laying off the Employer's employees However, in considering the factor of economy and efficiency, we do not look to the state of the economy as a whole, but rather to the economic effect on an employer's present work force, expecially where, as here, the employer hires his em- ployees on a long term basis 8 In view of the fore- going, it clearly is more efficient and economical for Employer to use his regular work force than it would be to provide short term employment to a group of employees with whom it would have only a brief ca- sual relationship Therefore, we conclude that this factor favors the glass bottle blowers employed by the Employer 6 The International agreement 5 Economy, efficiency of operation, and economic impact Employer and Glass Bottle Blowers urged that it is more efficient and economical to use glass bottle blowers than laborers to do the work in question Laborers claims that by using laborers Employer can achieve greater efficiency and economy because they possess more varied skills in relation to the job of rebuilding glass furnaces and are more skillful at the work in dispute We have already concluded, howev- 7 Employer witnesses had no recollection of this and testified that glass bottle blowers had been used to tend bricklayers every time the glass fur- naces at this plant were repaired and rebuilt Employer asserts however that even if laborers were on the job in 1967, glass bottle blowers were too The Laborers and Glass Bottle Blowers have an International agreement which states as follows Tending brick masons on all new construction including the rebuilding of tanks or furnaces is the work jurisdiction of the Laborers Interna- tional Union of North America Where plant owners elect to contract out work involved in tearing down and rebuilding tanks or furnaces the work should be performed by members of the Laborers International Union of North America While the two unions are signatories to this agree- s The situation herein is to be distinguished from the usual type of work dispute in the construction industry where either group of employees seek- ing the work would be employed on a relatively short term basis 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, the Employer is not and thus is not bound by it I Nevertheless, since the terms of this agreement call for the work to be assigned to laborers, this fac- tor favors the award of the work to employees repre- sented by Laborers However, it is outweighed by the efficiency and economy in operation achieved by Employer by using its own employees, the fact that the award of the disputed work to laborers would require layoff of additional numbers of those em- ployees, and the collective-bargaining agreement be- tween the Employer and Glass Bottle Blowers giving employees represesented by the latter jurisdiction over such work 7 Prior cases Conclusions Based on the entire record, and after full consider- ation of all relevant factors, we shall assign the work in dispute to the glass bottle blowers We reach this conclusion particularly in view of the Glass Bottle Blowers contract with the Employer, the Employer's assignment and preference, the relative economy, ef- ficiency of operation and economic impact, and precedent as represented by the Board's determina- tion in Midland Glass, supra In making this determi- nation we are assigning the disputed work to employ- ees who are represented by Glass Bottle Blowers Association of the United States and Canada, Local 61, but not to that Union or its members The Employer relies on Laborers' International Union of North America, AFL-CIO, Local 712 (Mid- land Glass Company, Inc), 197 NLRB 155 (1972), in support of its contentions regarding the determina- tion of this dispute That case involved another em- ployer in the glass industry, and the Board, under substantially similar circumstances and in the face of the identical agreement between the Laborers and Glass Blowers International, awarded the work to employees represented by a local of the latter Union Laborers contends that the International agreement in the circumstances of this case , however, should be accorded a greater weight here than in Midland and that decision ignored 10 We disagree Indeed, while this prior case is not accorded controlling weight in our determination of the dispute in this case, it is a factor that we have considered since the factual situ- ation in the two cases are similar Accordingly, prec- edent favors the employees represented by Glass Bottle Blowers 9 See N L R B v Plasterers Local Union No 79, Operative Plasterers' and Cement Masons International Assn AFL-CIO [Texas State Tile & Terrazzo Co Inc] 401 U S 973 (1971) 10 Citing Local Union No 68, Wood, Wire and Lathers International Union AFL-CIO (Acoustics & Specialties, Inc) 142 NLRB 1073 (1963) 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 pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute 1 Employees employed by Brockway Glass Com- pany, Inc, Rosemount, Minnesota, who are current- ly represented by Glass Bottle Blowers Association of the United States and Canada, Local 61, are enti- tled to perform the work of tending bricklayers re- building glass furnaces at the Employer's plant 2 Construction and General Laborers Local No 132, AFL-CIO is not entitled and has not been enti- tled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to award the above work to its members or to employees it repre- sents 3 Within 10 days of the date of this Decision and Determination of Dispute, Construction and General Laborers Local No 132, AFL-CIO shall notify the Regional Director for Region 18, in writing, whether or not it will refrain from forcing or requiring the Employer by means proscribed by Section 8(b)(4)(D) to award the work in dispute to its members or to employees it represents rather than to employees rep- resented by Glass Bottle Blowers Association of the United States and Canada, Local 61