Painters Union Local No. 786 (Pittsburgh Corning Corporation)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Painters Union Local No. 786 and Pittsburgh Cor- ning Corporation and American Flint Glass Workers Union, Local No. 1004, AFL-CIO. Case 17-CD-287 June 22, 1982 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Pittsburgh Corning Corpora- tion, herein called the Employer, alleging that Painters Union Local No. 786, herein called the Painters, 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 employees it represents rather than to employees represented by American Flint Glass Workers Union, Local No. 1004, AFL- CIO, herein called the Glass Workers. Pursuant to notice, a hearing was held before Hearing Officer Deborah A. Ford on March 5, 1982. Neither the Painters nor the Glass Workers appeared at the hearing. The Employer appeared and was afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer 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 Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free of 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 admits, and we find, that the Em- ployer is a Pennsylvania corporation, and that at its Sedalia, Missouri, facility, the only facility involved herein, the Employer is engaged in the manufac- ture of cellular glass. During 1981, the Employer shipped from that facility goods valued in excess of $1 million to customers located outside the State of Missouri. The Employer admits, and we find, that the Employer is engaged in 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. 262 NLRB No. 52 II. THE LABOR ORGANIZATIONS INVOLVED The Employer concedes, and we find, that the Glass Workers1 and the Painters2 are labor organi- zations within the meaning of Section 2(5) of the Act. IIl. THE DISPUTE A. Background and Facts of the Dispute In January 1982,3 the Employer was engaged in a renovation project which included the modern- ization of its cellular glass manufacturing furnaces at its Sedalia plant. The project involved convert- ing seven furnaces into five longer furnaces. As a result of the modifications, some metal surfaces were newly exposed and some new metal was in- corporated into the units. This metal requires paint- ing for protection and appearance. The construction work on the furnaces and lehrs4 was subcontracted to Bigelow Liptack, a Michigan firm. The painting necessitated by the construction was not subcontracted; it was assigned to the Employer's employees who are represented by the Glass Workers. The employees represented by the Glass Work- ers began painting the modified furnaces and lehrs on or about January 19. On January 27, Harley Davis, business agent for the Painters, contacted the Employer's works manager, Wayne Carrol. Davis protested that his members were not getting their fair share of painting work from the furnace modernization project, and that he believed the Employer should either hire a contractor who hired union painters or hire union painters directly to paint the furnaces and lehrs. Carrol told Davis that the painting work had not been subcontracted but rather had been assigned to the Employer's em- ployees represented by the Glass Workers. Carrol declined to change the assignment. On or about the first of February, Davis again met with Carrol and made the same claim for the work for his members. Carrol repeated the Em- ployer's position. On or about February 3, Carrol asked Davis to come to the Employer's plant to discuss the issue. Carrol, Davis, and the Employer's personnel man- ager, Bob Moore, inspected the painting work in progress and the future work to be done. Davis re- ' This finding is based on, in addition to the Employer's concession, the collective-bargaining agreement between the American Flint Glass Workers Union and the Employer, admitted into evidence at the hearing, and the terms and provisions of that agreement. 2 We base this finding on the testimony of the Employer's witness, the record as a whole including the Employer's concession, and the absence of any evidence to the contrary. 3 All dates refer to 1982 unless otherwise indicated A lehr is a type of furnace. 388 PAINTERS UNION LOCAL NO. 786 peated that this work should be assigned to his people, and according to Carrol, stated that "he (Davis] had to do what he had to do." Although Carrol asked for clarification of this remark, Davis declined to be more specific. On February 5, Davis was again in Carrol's office. The prior conversa- tions were essentially repeated. On the morning of February 9, the Painters set up a picket line at the Employer's plant. Carrol tes- tified that the picket signs proclaimed that Pitts- burgh Corning employees received substandard wages and fringe benefits and that the dispute was with Pittsburgh Corning only. The pickets contin- ued on February 10 and 11. On February 11, Carrol called Davis and asked him to discontinue the picketing. Davis stated that he still wanted the work of painting the furnaces and lehrs. He asked Carrol if the work was being done that day. When Carrol replied that it was not, Davis asked that Carrol inform him when it began again and Carrol agreed to do so. This was the final day of picket- ing. B. The Work in Dispute In accordance with the description of the disput- ed work as set forth in the notice of hearing, we find that the dispute before us is confined to the painting of modified lehrs and furnaces within the cellular glass manufacturing area of the Pittsburgh Corning Corporation's Sedalia, Missouri, plant. The Employer contends that the work in dispute is all maintenance painting work normally and cus- tomarily assigned by it to its employees who are represented by the Glass Workers, and that the Board's award should encompass all such mainte- nance painting work. While admitting that the work described in the notice of hearing gave rise to the present dispute, the Employer asserts that this work is merely one type of maintenance paint- ing customarily done by its employees. The Em- ployer points to testimony by its works manager which, it contends, suggests that the Painters has an interest in securing all types of maintenance painting. To support its request for a broad award, the Employer also relies on the fact that the Paint- ers has not made a disclaimer of any kind. We are not persuaded by the Employer's argu- ment. Although Carrol testified that, in his conver- sations with Davis, Davis ". . . seemed to be talk- ing about painting work relating to modernization of the facility," which includes work other than the furnaces and lehrs, Carrol also stated that Davis was "clearly most concerned" with the fur- naces and lehrs. Significantly, Carrol testified that when other maintenance painting work was done in the past, to Carrol's knowledge, the Painters never questioned the right of employees represent- ed by the Glass Workers to do that work. For these reasons, we find that the work in dispute is properly described in the notice of hearing. 5 C. The Contentions of the Parties The Employer contends that a jurisdictional dis- pute exists and that the Painters violated Section 8(b)(4)(D) of the Act by demanding that painting work be assigned to its members rather than to members of the Glass Workers, and by picketing the Employer's facility to force the Employer to assign the work to its members. The Employer fur- ther contends that the work in dispute should be assigned to its own employees who are represented by the Glass Workers, that the dispute is properly before the Board, and that such an assignment is consistent with its collective-bargaining agreement with the Glass Workers. the Employer's past prac- tice and continued preference, the industry prac- tice, job impact, and relative skills. The Employer also contends that the award requires a broad order awarding all maintenance painting work done at the Sedalia plant to its employees represented by the Glass Workers. Neither the Painters nor the Glass Workers has taken any position on any issue. 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 dis- pute. It is uncontested that, on four occasions, the Painters business agent, Harley Davis, protested to the Employer about the assignment of the furnace and lehr painting to employees represented by the Glass Workers, and sought to have the work as- signed to his members. When the Employer refused to change the assignment, Davis, according to Carrol, stated that ". . . he [Davis] had to do what he had to do." A short time later, on February 9, the Painters picketed the Employer's facility. The picket signs indicated that the Painters was merely protesting allegedly substandard wages and benefits received by the Employer's employees. However, the timing of the picketing and the content of Davis' conversations with the Employer's works I There is no proof that all parties had notice of, and full opportunity to litigate, the broader work dispute claim made by the Employer. See Truckdnrivers Local Union No. 807. International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America (American Bank Note Company), 241 NLRB 811 (1970). 389 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager demonstrates that the true intent of the picketing was to coerce the Employer into assign- ing the painting to members of the Painters. On the basis of the foregoing and the entire record, we conclude that there is reasonable cause to believe that a violation of Section 8(b)(4XD) 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 relevant fac- tors. 6 The Board has held that its determination in a jurisdictional dispute is an iact of judgment based on commonsense and experience reached by bal- ancing 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 has a current collective-bargain- ing agreement with the Glass Workers. Although the agreement does not specifically define the work it covers, it does recognize the Glass Workers as the sole representative of the Employer's produc- tion and maintenance employees at the Sedalia plant. On the other hand, the Employer has no agreement with the Painters. Accordingly, this factor favors awarding the disputed work to em- ployees represented by the Glass Workers. 2. Employer assignment and preference The Employer has assigned the work in dispute to its employees who are represented by the Glass Workers and has manifested a decided preference to continue that assignment. This factor, while not determinative, favors an award of the disputed work to employees represented by the Glass Work- ers. 3. Employer and industry practice Wayne Carrol, works manager for the Employer at its Sedalia plant, testified that the disputed work is the type of work the Employer has historically assigned to its own employees represented by the Glass Workers. Carrol also testified, based on his career experience, that it was industry practice to 6 N.LR.B. v. Radio & Teletviion Broadcast Engineers Union. Local 121Z. International Brotherhood of Electrical Workers AFL-CIO [Colum- bia Broadcasting System], 364 U.S. 573 (1961). International Association of Machinists, Lodge No. 1743. AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1962). assign this type of work to employees of the com- pany, who are normally production and mainte- nance unit employees. These factors favor an award of the disputed work to employees repre- sented by the Glass Workers. 4. Job impact Should the disputed work be assigned to employ- ees represented by the Painters, the Employer would be required to lay off part of its existing work force which presently performs the disputed work. This is a factor favoring assignment of the disputed work to employees represented by the Glass Workers. 5. Relative skills The Employer's works manager testified that the employees of the Employer who are represented by the Glass Workers have the requisite skills to perform the work in dispute. There was no direct evidence of the skills possessed by members of the Painters. There also was no indication that sophisti- cated skills or training are required to perform the task. Since there is insufficient evidence to indicate that the assignment of the work to either group would result in greater safety or that the work would be performed in anything less than a satis- factory manner, we find that this factor favors nei- ther group. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that the employees who are represented by the Glass Workers are entitled to perform the work in dispute. We reach this conclusion relying on the Employer's assignment and preference, the Em- ployer's and the industry's practice, the collective- bargaining agreement, and job impact. In making this determination, we are awarding the work in question to employees who are represented by the Glass Workers, but not to that Union or its mem- bers. 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 Pittsburgh Corning Corporation who are represented by American Flint Glass Workers Union, Local No. 1004, AFL-CIO, are entitled to perform the work of painting the modi- fied lehrs and furnaces within the cellular glass 390 PAINTERS UNION LOCAL NO. 786 manufacturing area of the Pittsburgh Coming Cor- poration's Sedalia, Missouri, plant. 2. Painters Union Local No. 786 is not entitled by means proscribed by Section 8(bX4)D) of the Act to force or require Pittsburgh Coming Corpo- ration to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Painters Union Local No. 786 shall notify the Regional Director for Region 17, in writing, whether or not it will re- frain 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 inconsist- ent with the above determination. 391