Laborers' Intl. Union, Local 910

142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laborers' International Union of North America, La- borers' District Council of Western Pennsylvania and Local 910, AFL-CIO and Brockway Glass Company, Inc. and Glass Bottle Blowers Associa- tion of the United States and Canada, Local 110 and Local 28, AFL-CIO.' Case 6-CD-585 September 27, 1976 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Brockway, Pennsylvania, where it is engaged in the manufacture and sale of glass containers. The Brock- way plant is the only facility involved in this pro- ceeding. During the past calendar year, the Employer purchased and received goods and materials valued in excess of $50,000 from suppliers located outside the Commonwealth of Pennsylvania, and sold goods and services valued in excess of $50,000 directly to points outside the Commonwealth. The parties stipu- lated, 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 effectuate the purposes of the Act to assert jurisdiction herein. This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended , follow- ing charges filed by Brockway Glass Company, Inc., herein referred to as Employer , alleging that Labor- ers' International Union of North America, Labor- ers' District Council of Western Pennsylvania and Local 910, AFL-CIO, herein referred to as Laborers, violated Section 8(b)(4)(D) of the Act by engaging in conduct with an object of forcing or requiring the Employer to assign the work in dispute to employees represented by it rather than to employees repre- sented by Glass Bottle Blowers Association of the United States and Canada , Local 110 and Local 28, AFL-CIO, herein referred to as GBBA . A hearing was held on April 29 , 1976, before Hearing Officer John L . Johnson . 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 Em- ployer filed a brief. 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: 1. THE BUSINESS OF THE EMPLOYER The Employer, Brockway Glass Company, Inc., is a New York corporation with its principal office in 1 On April 12, 1976, before the hearing in this proceeding, the Regional Director for Region 6 issued an order severing Cases 6-CD-585-2 and 6- CD-585-3 from Case 6-CD-585 and approving the withdrawal of charges in the severed cases The caption above reflects these changes 2 At the hearing, Laborers disclaimed its demand for the disputed work and declined to participate in the proceedings beyond the disclaimer II. THE LABOR ORGANIZATION INVOLVED 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 dispute herein involves the assignment of the work of mortar mixing and brick tending at the Employer's Brockway, Pennsylvania, glass furnace enlargement project. B. Background and Facts of Dispute The work in dispute involves the assignment of the mortar mixing and brick tending in connection with the enlargement of a furnace known as tank #2' at the Brockway Glass plant # 1.1 As part of the en- largement of tank #2, the capacity of the furnace was to be increased from approximately 100 tons to 200 tons of glass per day. In October 1975, Employer commenced this furnace rebuild project by enlarging the building structure of tank #2 to provide space for a larger furnace. The actual rebuild work on the furnace began on approximately March 1, 1976. The disputed work of brick tending and mortar mixing is involved in the construction of the furnace. The bricks are brought to the furnace area by a fork- lift from the watershed. Skids of brick, which contain about 300 bricks, are set as close to the job as possi- ble. Brick tenders move the bricks from the pallet to the jobsite where the bricklayers lay them. Some- times, the brick tenders carry the bricks, and other 3 A tank is another name for a glass furnace which is a unit utilized for the melting of raw materials to produce glass 4The Employer has two plants in the Brockway area 226 NLRB No. 21 LABORERS' INTL. UNION, LOCAL 910 - 143 times, they put them on a roller conveyor and convey them down to an area, where another tender takes them off and stacks them right beside the bricklayer. The bricklayer picks up the brick, applies mortar, and lays the brick in place. This type of bricklaying requires that the brick be "buttered" with a thin coat of mortar. About half of the mortar used in the re- build project comes in airtight drums. The airtight lid is removed and the mortar is taken out, put in steel plate boxes, and taken to the bricklayer who is work- ing on the wall. The other half of the mortar comes dry. This mortar is moved to a convenient location near the furnace, where it is mixed with water and then taken to the bricklayer. As more fully described, infra, Laborers laid claim to the work of brick tending and mortar mixing on two occasions. On March 15, 1976, the day the first bricklayers were scheduled to begin work, Laborers set up a picket line and the various crafts working at the jobsite refused to cross, the picket line, until after the picketing ended on March 17, 1976. By the date of the hearing, the rebuild project was virtually com- pleted. C. Contentions of the Parties Employer and GBBA contend that Laborers vio- lated Section 8(b)(4)(D) of the Act by seeking to compel the assignment of the disputed work to mem- bers of the Laborers . Employer also submits that the award of the disputed work to employees represented by GBBA is appropriate in view of their possession of the, requisite skills, efficiency, safety, and economy of operation, the collective-bargaining agreement be- tween Employer and GBBA , past company practice, industry practice, and the Board's award in Laborers' International Union of North America, AFL-CIO, Lo- cal 712 (Midland Glass Company, Inc.), 197 NLRB 155 (1972), D. Applicability of the Statute Before the Board may proceed to a determination of a dispute under 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 there is no agreed-upon method which is binding on all parties for the voluntary adjustment of the dis- pute. The record indicates that meetings were held on March 1 and March 10, 1976, between Employer of- ficials and representatives of several craft unions. At both meetings, Laborers claimed the work pursuant to an alleged 1967 agreement between the respective international presidents of Laborers and GBBA.5 The local representative of GBBA disavowed this agreement, and asserted a claim -of the disputed work pursuant to its contract with Employer.6 Thereafter, Laborers picketed Employer from March 15 to 17, 1976, with signs containing the legend, "Brockway Glass Unfair-Laborers District Council of Western Pa." The various crafts working at the jobsite refused to cross the picket line until after the picketing ended on March 17, 1976. This evidence clearly demon- strates that, Laborers picketed Employer in an at- tempt to acquire the disputed work. However, on April 28, 1976, the day before the hearing opened, Laborers' counsel telephoned Employer's counsel and disclaimed the disputed work. At the hearing, Laborers' counsel reiterated its 'disclaimer of the dis- puted work and declined to participate in -the pro- ceedings beyond the disclaimer. In the circumstance herein, we shall not give effect to the disclaimer. In General Building Laborers' Local Union No., 66 of the Laborers' International Union of North America (Georgia-Pacific Corporation), 209 NLRB 611(1974), and Local Union No. 55, Sheet Metal. Workers Inter- national Association, AFL-CIO- (Gilbert L. Phillips, Inc.), 213 NLRB 479 (1974), the Board stated that an effective renunciation of the work in dispute dis- solves the jurisdictional dispute. In Gilbert L. Phillips, however, the Board noted that another case would be presented if it appeared that Respondent was engaging in the practice of a hollow disclaimer for the purpose of avoiding an au- thoritative decision on the merits. That is precisely the case presented here. As, noted above, Laborers did not disclaim the work until the hearing was about to begin. Furthermore, the actual rebuild work on the furnace was virtually completed, and the disput- ed work of mortar mixing and brick tending had been finished. In reality, there was,simply nothing left for. Laborers to disclaim. Thus, it appears that Laborers was attempting to avoid any definitive reso- lution of the issues and was seeking to escape the consequences of its unlawful actions. Under these circumstances, such an empty disclaimer cannot be given effect. Laborers did not take a position as to whether it would claim such work at future jobsites, nor wheth- er any claim would be accompanied by unlawful 5 Although this agreement was not presented in evidence at the hearing, its terms apparently provided that the disputed work was within the junsdic- tion of the Laborers Employer is not a signatory to this agreement 6 In Laborers' Local 712 (Midland Glass Company), supra, and Construction and Genera! Laborers Local No 132, AFL-CIO (Brockway Glass Company, Inc), 224 NLRB 117 (1976), Laborers claimed similar work, based-on the same 1967 agreement However , when confronted with the agreement, both GBBA locals in those cases claimed the disputed work pursuant to their respective contracts with their employers. Here, the local representative's conduct in repudiating the agreement follows a similar course of action taken by its brother locals 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct. However, it seems reasonable to conclude that this same dispute will recur since the Employer plans work of a similar nature at its eleven other plants, and has consistently assigned the work of mortar mixing and brick tending to employees repre- sented by GBBA: The Board has already considcred the same dispute between the parties at Employer's Rosemont, Minnesota, plant. In Construction and General Laborers Local No. 132, AFL-CIO (Brock- way Glass Company, Inc.), supra, the Board awarded the work of tending brick during the rebuilding of a glass furnace to employees represented by GBBA. In that case, as here, Laborers claimed the disputed work pursuant to the 1967 agreement heretofore mentioned. Although the Board found that the agree- ment provided that the disputed work was within the jurisdiction of Laborers, it found that other factors outweighed the awarding of the work to the Labor- ers. Based on the foregoing, we believe that Laborers have simply presented a hollow disclaimer in order to escape the responsibility for its unlawful actions. Moreover, since we have already considered a similar work dispute between these parties, and the Employ- er regularly rebuilds its furnaces at its other glass container plants, there is a reasonable likelihood that the dispute will recur. Under these circumstances, we find that it will effectuate the policies underlying Sec- tions 10(k) and 8(b)(4)(D) of the Act for us to de- termine the merits of the dispute. Accordingly, we find that this dispute is appropriate for resolution un- der 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 taking into account the evidence supporting the claims of the parties and balancing all relevant fac- tors? We set forth below those factors which we find relevant in determining the dispute herein. 1. The collective-bargaining agreement and prior Board decisions a. The collective-bargaining agreement The Employer has a collective-bargaining agree- ment with the GBBA covering its production and 7 N.L.R.B. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad- casting System], 364 U.S 573 ( 1961). International Association of Machinists, Lodge No. 1743, AFL-CIO (J A. Jones Construction Company), 135 NLRB 1402, 1410-11 (1962) maintenance unit. The Laborers does not represent any of the Employer's employees. The GBBA agree- ment with the Employer contains a clause which states inter alia: The company agrees that it will not sublet con- tracts for maintenance, repair and other work in and around the plants under this contract if such work can be satisfactorily and as economi- cally performed by bargaining unit employees . .. When it is necessary to make major tank repairs or to rebuild tanks, the company will use available and qualified employees whenever possible to do this work.' - Thus, the Employer is obligated by the terms of its agreement with GBBA to use employees in the bar- gaining unit during these shutdowns if they are quali- fied to do the work of mortar mixing and brick tend- ing. The Employer testified at the hearing that in the past it has been satisfied with the qualifications of glass bottle blowers for performing this work. We conclude that the glass bottle blowers in the above contract unit are qualified to do mortar mixing and brick tending and, thus, we find that the contract calls for the assignment of the disputed work to them. Accordingly, this factor favors an award of work to employees represented by GBBA. b. Prior cases The Employer relies upon Midland Glass Company, Inc., supra, in support of its contentions regarding the determination of this dispute. That case involved an- other employer in the glass industry, and the Board, under substantially similar circumstances and in face of the agreement referred to by the Laborers in this case, awarded the work to employees represented by a GBBA local. A second case, Construction & General Laborers Local No. 132, AFL-CIO (Brockway Glass Company, Inc.), 224 NLRB 117 (1976), gives further support to the contentions of the Employer. In that case, as here, the work in dispute was the assignment of tending brick during the rebuilding of a glass fur- nace at the Employer's Rosemont, Minnesota, plant. In the dispute between the GBBA and the Laborers there, the Laborers claimed jurisdiction based on the same 1967 international agreement, and the Board awarded the work to employees represented by the GBBA in light of the same factors discussed herein. While these cases are not accorded controlling weight in our determination of the dispute in this case, they -are factors that we have considered since the factual situations in all three cases are similar. 8 Art XXXIV, secs. I and 3 LABORERS' INTL. UNION, LOCAL 910 Accordingly, precedent favors an award of the work to the employees represented by the GBBA. 2. Employer practice Employer presented evidence that it has been its practice to assign the disputed work to glass bottle blowers at its plants throughout the country. Em- ployer and GBBA have had a series of collective- bargaining agreements for 30 years, and pursuant to the contracts the work of brick tending and mortar mixing has been consistently assigned to employees represented by GBBA. Accordingly, this factor fa- vors an award of the work to employees represented by GBBA. 3. Economy, safety, and efficiency of operation Employer contends that it is more efficient and economical to use glass bottle blowers than laborers to do the work in question. The glass bottle blowers are part of Employer's present work force, and would have to be laid off if laborers were utilized to per- form the disputed work. The Employer has never had a collective-bargaining agreement with Laborers. In addition, glass bottle blowers are familiar with the plant and jobsite areas. Knowledge of these sur- roundings provides a safety advantage in the utiliza- tion of their skills. Accordingly, this factor favors an award of the work to employees represented by GBBA. 4. Relative skills Employer contends that the skill for the perfor- mance of the disputed work is largely a question of using production employees familiar with the jobsite who possess a knowledge of the materials utilized. In addition, the glass bottle blowers have been assigned the disputed work for a period of 30 years and pos- sess a superior knowledge of the work. Furthermore, Employer has been satisfied in the past that glass bottle blowers have been able to complete the re- building of its glass furnaces well within the planned timetables. Accordingly, this factor favors an award of work to employees represented by GBBA. Conclusion 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 GBBA con- tract with Employer, precedent as represented by the Board determinations in Midland Glass and Brock- 145 way Glass, supra, skills of the employees represented by GBBA, economy, safety, and efficiency of opera- tions, and Employer's past practice. In making this determination, we are assigning the disputed work to employees who are represented by Glass Bottle Blowers Association of the United States and Cana- da, Local 110 and Local 28, AFL-CIO, but not to that Union. or its members. 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., Brockway, Pennsylvania, who are cur- rently represented by Glass Bottle Blowers Associa- tion of the United States and Canada, Local 110 and Local 28, AFL-CIO, are entitled to perform the work of mortar mixing and brick tending in the course of enlarging the glass furnace at the Brockway facility. 2. Laborers' International Union of North Ameri- ca, Laborers' District Council of Western Pennsylva- nia and Local 910, AFL-CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Employer to award the above work to its members or to employees it represents. 3. Within 10 days of the date of this Decision and Determination of Dispute, Laborers' International Union of North America, Laborers' District Council of Western Pennsylvania and Local 910, AFL-CIO, shall notify the Regional Director for Region 6, in writing, whether or not it will refrain from forcing or requiring the Employer by means proscribed by Sec- tion 8(b)(4)(D) to award the work in dispute to its members or to employees it represents rather than to employees represented by Glass Bottle Blowers Asso- ciation of the United States and Canada, Local 110 and Local 28, AFL-CIO. MEMBER FANNING, dissenting: Under the circumtances herein, I would honor the disclaimer of the work by the Laborers and would quash the notice of hearing. The Laborers renuncia- tion of the work was clear, unequivocal, and unquali- fied. As the Supreme Court stated in N.L.R.B. v. Plasterers' Local Union No. 79, Operative Plasterers' and Cement Masons' International Association, AFL- CIO [Texas State Tile & Terrazzo Co.], 404 U.S. 116, 135 (1971), "a § 10(k) hearing is a comparative pro- ceeding aimed at determining which union is entitled to perform certain tasks. Its function evaporates when one of the unions renounces and refuses the work." 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD My colleagues rely upon Local Union No. 55, Sheet Metal Workers International Association, AFL-CIO (Gilbert L. Phillips, Inc.), 213 NLRB 479 (1974), where the Board found effective the disclaimer but stated that "another case would be presented if it appeared that Respondent was engaging in the prac- tice, of. a hollow disclaimer for the purpose of avoid- ing an authoritative decision on the merits." In as- serting that the case presented here is that "other case," the majority notes that herein (1) Laborers did not disclaim the work until the hearing was about to begin; (2) the actual rebuild work on the furnace was virtually completed; and (3) Laborers did not take a position as to whether it would claim such work at future jobsites. In my opinion, however, the above factors, cited in the majority to distinguish the case herein from Gilbert L. Phillips, were also present therein. (1) The Respondent, in Gilbert L. Phillips, orally "in January or February" informed the employer that it would pursue no further claim to the disputed work. That hearing was held on dates beginning on January 14 and ending on April 5. Accordingly, that disclaimer was contemporaneous with the hearing. In Laborers' International Union of North America, Local 935, AFL-CIO (C & S Construction Co., Inc.), 206 NLRB 807 (1973), in a substantially similar factual setting, the Board found a jurisdictional dispute no longer existed where one of the parties disclaimed the work 4 days before the hearing. In General Building Laborers' Local Union No. 66 of the Laborers' Interna- tional Union of North America, (Georgia-Pacific Cor- poration), 209 NLRB 611 (1974), the disclaimer was made 3 days after the unfair labor practice charge had been filed. Clearly, the timing of the disclaimer does not vitiate its effectiveness. (2) As in the instant case, the work in Gilbert L. Phillips was virtually completed with "only the minor punch list work remaining" 9 when the respondent disclaimed the work. Accordingly, the small amount of work remaining is not a distinguishing factor. (3) Since Laborers appeared at the hearing only to disclaim the work, of course it did not take a position 9 Although the employer stated there was possibly (emphasis mine) 3-4 weeks of work remaining, the dissent characterized the minor punch list work remaining as "simply . not worth the trouble of litigating further." regarding future claims to similar work. However, in Gilbert L. Phillips, the respondent not only did not state that it would not seek such work in the future, it specifically stated that it intended to pursue such work in the future. Nevertheless, the disclaimer was honored. Accordingly, based upon the above similarities to Gilbert L. -Phillips, I am unable to understand how my colleagues can find herein that Respondent en- gaged in the "hollow disclaimer" that the Board in Gilbert L. Phillips considered to be "another case." The, facts surrounding the unequivocal disclaimer herein appear to be indistinguishable from the factu- al situations in Georgia-Pacific, Gilbert L. Phillips, and C & S Construction Co. (all supra). Moreover, I note that the record in this case indi- cates the existence of an agreement between the par- ent International Unions giving the work to the La- borers.'? The Glass Blower's Local, in disregard of that, agreement, has accepted the work in question. The Laborers has now disclaimed the work and it seems to me needlessly harsh and not necessarily an aid to resolution of this jurisdictional dispute, to award the work to an apparently recalcitrant Local. Since Section 10(k) of the Act, which directs the Board to hear and determine disputes on the basis of which 8(b)(4)(D) charges have been filed, limits the Board's authority to situations in which an em- ployer's assignment of work is in dispute, a juris- dictional dispute no longer exists where, as here, one of the competing unions or parties effectively re- nounces its claim to the work." If Laborers disclaim- er is not in good faith, and the dispute flares up again with the use of the same tactic by Laborers, we need not then accept the disclaimer.12 Based upon the above, I would find that the assignment of work de- scribed herein is not in dispute within the meaning of the Act. Accordingly, I would quash the notice of hearing. 10 As stated by the majority, the agreement was not entered into evidence at the hearing. The fact that the Laborers, which would benefit by introduc- ing such agreement, appeared at the hearing only to disclaim the work is further evidence of the unqualified and bona fide nature of the disclaimer. 11 C & S Construction Co, supra 12 I note that in neither of the two cases cited by my colleagues, in which Laborers sought similar work, did the Laborers at any time disclaim the work Accordingly, past history does not present evidence that the Laborers disclaimer is not in good faith