Construction & General Laborers Local 132

National Labor Relations Board - Board Decisions

May 25, 1976

224 N.L.R.B. 117 (N.L.R.B. 1976)

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