Hodcarriers, Local 215

National Labor Relations Board - Board Decisions

May 24, 1971

190 N.L.R.B. 495 (N.L.R.B. 1971)

HODCARRIERS , LOCAL 215
International Hodcarriers , Building & Common La-
borers Union, Local No. 215, AFL-CIO and Cer-
tain-Teed St. Gobain Insulation Corporation and
United Automobile, Aerospace and Agricultural Im-
plement Workers of America (UAW), Local 365.
Case 4-CD-240
May 24, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed by Certain-Teed St. Gobain Insulation
Corporation, hereinafter called Certain-Teed, alleging
that International Hodcarriers, Building & Common
Laborers Union, Local No. 215, AFL-CIO, hereinafter
called Laborers, had violated Section 8(b)(4)(D) of the
Act. A hearing was held pursuant to notice at Wilkes-
Barre, Pennsylvania, on November 30, 1970, before
Hearing Officer Raymond D. Goodman. Certain-Teed
and UAW appeared at the hearing and all parties' were
afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bear-
ing on the issues.'
Pursuant to the provisions of Section 3(b) of the Act,
the National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The rulings of the Hearing Officer made at the hear-
ing are free from prejudicial error and are hereby
affirmed. Upon the entire record in this case, the Board
makes the following findings:
I THE BUSINESS OF THE EMPLOYER
Certain-Teed is a Maryland corporation engaged in
the production of insulating fiberglass used for both
thermal and acoustical purposes. During the past year
both its sales and purchases of goods and services
across state lines separately exceeded $50,000. We find
' United Automobile , Aerospace and Agricultural Implement Workers of
America (UAW), Local 365
' Laborers , the Respondent herein , was duly served in advance of the
hearing with , and acknowledged receipt of, a notice of hearing and a copy
of the charge in which it was specifically designated as the Respondent, but
it neither appeared at the hearing nor filed a brief with the Board We find
that where , as here, all parties to the dispute were served with notice of
hearing and afforded opportunity to participate and to introduce evidence,
the purposes intended in hearings under Section 10(k) are adequately
served . See Teamsters Local Union 'No. 5, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Inc. (Hart-McCown Foundation Co, Inc), 147 NLRB 1216, 1219
Accordingly , we shall proceed to make a determination on the basis of the
uncontradicted evidence on the record before us
495
that Certain-Teed is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act and it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
As noted in footnote 2, Laborers did not appear at
the hearing. Nonetheless, the Board has found Labor-
ers to be a labor organization within the meaning of the
Act in numerous cases. Accordingly, we find that La-
borers is a labor organization within the meaning of
Section 2(5) of the Act.
We also find that UAW is a labor organization
within the meaning of Section 2(5) of the Act.
III THE DISPUTE
The work in dispute concerns the demolition of Cer-
tain-Teed's M-2 furnace, used in the fiberglass produc-
tion process.
A. Background
The dispute arose at Crestwood Industrial Center,
Mountain Top, Pennsylvania, where demolition work
on the Employer's M-2 and M-1 furnaces was under-
taken in November 1970 and January 1971, respec-
tively.
The demolition of the furnaces of the type of the M-2
and M-1 is necessitated periodically by the erosive
effects of the moulten glass upon the contact blocks of
the furnace walls because of the intense temperature of
15,000 or more degrees Fahrenheit generated during
the production process. Sections of the furnace walls
may thus require reconstruction at 2- to 3-year inter-
vals. The entire furnace requires reconstruction at 5- or
6-year intervals. The reconstruction work is essentially
concrete construction in character and, in the case of
the M-2 and M-1 furnaces, the reconstruction work
had been contracted out to a local contractor, who
employed four members of Laborers and members of
various trade crafts.
The demolition of the two furnaces was carried out
by the production and maintenance employees em-
ployed by Certain-Teed pursuant to a demand by
UAW which represents them under a current contract.
Several provisions of this contract deal with furnace
repair and maintenance work generally, and, at a con-
ference prior to the commencement of demolition be-
tween Certain-Teed officials and UAW representatives,
the latter specifically communicated to Certain-Teed
their desire to have unit employees perform the demoli-
tion.
A few days before the commencement of the demoli-
tion of furnace M-2, Laborers business manager, De
Polo, called Employer's construction manager, Gese-
190 NLRB No. 94
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rick, claimed the work of demolishing M-2 for his
local, and threatened to strike the plant if members of
Laborers did not get the work assignment. De Polo
initially refused to meet and discuss the matter with
Certain-Teed officials and, in an ensuing conference
insisted upon by Certain-Teed, he declared that any
agreement could only result in his surrendering juris-
diction for his local over the disputed work.
The demolition of M-2 furnace was undertaken by
Certain-Teed employees on November 30. Working in
the vicinity at the time on an addition to the Em-
ployer's building and the foundation for the new fur-
nace were employees of several building trade contrac-
tors including some members of Laborers. As the
demolition proceeded, picketing commenced at the en-
trance to the Employer's premises about 8 a.m. and
soon thereafter Laborers members appeared with signs
reading "Informational Picketing. Members of Labor-
ers are not performing work on the ovens." All work
in the vicinity by building trade workmen thereupon
ceased, and truck deliveries were interrupted. The
demolition continued until it was completed in 6 or 7
days requiring the use of 12-14 employees per shift
working three shifts per day. The picketing continued
until an injunction issued on December 15, 1970.
Thereafter, the Employer decided to demolish furnace
M-1, again using employees represented by UAW. La-
borers did not interfere with this assignment which was
carried out and completed between January 18 and 22,
1971.
B. Contention of the Parties
Certain-Teed contends that its current contract with
UAW obligates it to assign the disputed work to its
production and maintenance employees represented by
that Union. It contends that its employees are qualified
to do the demolition work and have satisfactorily per-
formed the work assignment. Finally, it is Certain-
Teed's contention that good labor relations with the
Union representing its employees, and sound economic
considerations based on actual cost analysis and elimi-
nation of employee layoffs necessitated by the demoli-
tion work, dictate the desirability and continuation of
its practice of assigning the disputed work to its own
employees. UAW supports Certain-Teed's position as
to the work assignment.
Laborers, although not present at the hearing, appar-
ently contends that the type of work in dispute should
be performed by its members because the furnace
reconstruction needed after demolition is primarily
construction work and demolition is merely incidental
thereto.'
C. Applicability of the Statute
In accordance with the requirements of Section 10(k)
of the Act, the Board must first ascertain whether there
is reasonable cause to believe that a violation of Section
8(b)(4)(D) of the Act has occurred.
As shown above, there is testimony that Laborers
threatened to picket the jobsite at Mountain Top, Penn-
sylvania, for the purpose of forcing or requiring Cer-
tain-Teed to make a work assignment to its members,
and evidence at the hearing established that Laborers
did in fact picket the jobsite with resultant work stop-
pages on and after November 30, 1970. Furthermore,
the work in dispute has never been the subject of past
grievances or arbitration awards and neither Certain-
Teed nor UAW is party to any agreed-upon method for
resolving the dispute. We find, therefore, that there is
reasonable cause to believe Laborers picketed the job-
site with an object of forcing the Employer to reassign
the disputed work within the meaning of Section
8(b)(4)(D). Accordingly, the dispute is properly before
the Board for determination.
D. The Merits of the Dispute
As the Board stated in J. A. Jones Construction Com-
pany,' it will determine the appropriate assignment of
disputed work in each case presented for resolution
under Section 10(k) of the Act only after taking into
account and balancing all relevant factors.
1. Collective -bargaining agreement
UAW has been recognized by Certain-Teed and for
a period of years, since prior to 1962 , has had contrac-
tual agreements with it , the latest of which is a 3-year
contract effective November 19, 1969 . This contract,
Certain-Teed and UAW contend , contemplates that
the employees represented by UAW are to perform the
work in dispute . The parties to the contract point to
provisions covering furnace maintenace work generally
and other provisions covering various job classifica-
tions essential to the performance of that maintenance,
such as machinist specialist and furnace specialist
(schedule A of the contract agreement , pages 28-36).
In addition they point to the language of the contract
(article IX, section 8) which reads:
No person excluded from the coverage of this
Agreement shall perform bargaining unit work ex-
cept in dire emergency , or in case no bargaining
unit employee is qualified to do that work . In such
case , one or more employees shall be given train-
ing immediately in such work by nonbargaining
unit personnel.
' This was the position as stated by Laborers representative when claim-
ing the work in conversation with Certain-Teed's officials
' International Association of Machinists, Lodge No. 1743 (J. A Jones
Construction Company), 135 NLRB 1402
HODCARRIERS , LOCAL 215
Laborers appears to take the position, however, that
despite the above-quoted contract provision and other
contract paragraphs alluded to, there is nothing in the
contract to prevent Certain-Teed from adding mem-
bers of Laborers to its production and maintenance
employees for the purpose of furnace demolition. While
the assumed contention of Laborers with regard to
additional employees may or may not be technically
true, it is conceded that employees represented by La-
borers have no contractual claim whatever to the dis-
puted work. These contract provisions, together with
the absence of a bargaining relationship between Cer-
tain-Teed and Laborers, and the prior practice and
present assignment of the work discussed below, are
strongly persuasive of the right of production and
maintenance workers represented by UAW to perform
the disputed work.
2. Company and industrywide practice
The testimony shows that Certain-Teed's practice
and the practice in the industry in general is to utilize
the inside plant employees to perform demolition work
on furnaces used for processing moulten glass and to
use building trade employees in the rebuilding of such
furnaces. This procedure was followed as to Certain-
Teed's M-1 furnace in 1965. Though the testimony is
in conflict as to the procedure followed for the M-2
furnace in 1968, a Certain-Teed official explained that
it was his recollection that the demolition in that in-
stance was performed by an outside contractor because
the Mountain Top installation had been shut down for
about a year and only 12 of the 120 plant employees
were on payroll status. This skeleton force was not
adequate to perform the demolition work. Construc-
tion Manager Gaserick testified that of the 20 or more
demolition jobs by other manufacturers in the industry,
of which he had personal knowledge, each had been
performed by inside plant employees. Accordingly,
these factors favor the present assignment of work.
3. Skill, training, efficiency, and economy
The work of demolition is carried out with the use
of such ordinary tools as chisels, prying bars, hammers,
and wheelbarrows to remove the debris. Air hammers
are also used, and only this implement and the wheel-
barrows had to be rented by Certain-Teed to supple-
ment its equipment for the demolition of M-2 furnace.
One or more furnace specialists supervise the work and
these were Certain-Teed's regular employees. The
demolition work required no training or experience
other than that already possessed by the production
and maintenance employees of Certain-Teed, and the
Employer has been satisfied with the quality of its em-
ployees' work and their efficiency. The use of its em-
ployees in this work substantially reduces the number
497
of employee layoffs necessitated by the shutdown of the
plant during the demolition work and Certain-Teed
officials testified that a careful computation of cost fac-
tors of the demolition operations was one consideration
that influenced their present work assignment. It was
also Certain-Teed's position that it accrued to their
advantage to maintain continued good labor relations
with the Union with whom it has, for some years past,
had a contractual relationship as representative of its
employees. Clearly these factors favor an award to em-
ployees represented by UAW.
Conclusion
On the basis of the foregoing considerations, it is
clear that none of the relevant factors favors an assign-
ment of work to Laborers. Such factors as Certain-
Teed's past practice, industrywide practice, the skill
and training of Certain-Teed's employees, and the effi-
ciency and economy of the present operation, favor the
present assignment. Accordingly, we shall determine
the dispute by confirming Certain-Teed's assignment to
its own employees. Our determination is limited to the
particular controversy which gave rise to this proceed-
ing, the job at Crestwood Industrial Center, Mountain
Top, Pennsylvania.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor Re-
lations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this proceed-
ing, the National Labor Relations Board makes the
following Determination of Dispute:
1. Employees employed by Certain-Teed St. Gobain
Insulation Corporation, who are currently represented
by United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), Local 365,
are entitled to do the demolition work on the furnaces
used in connection with the fiberglass production pro-
cess at Crestwood Industrial Center, Mountain Top,
Pennsylvania.
2. International Hodcarriers, Building and Common
Laborers Union, Local No. 215, AFL-CIO, is not enti-
tled by means of conduct proscribed by Section
8(b)(4)(D) of the Act to force or require Certain-Teed
St. Gobain Insulation Corporation to assign the afore-
mentioned work to its members.
3. Within 10 days from the date of this Decision and
Determination of Dispute, International Hodcarriers,
Building and Common Laborers Union, Local No. 215,
AFL-CIO, shall notify the Regional Director for Re-
gion 4, in writing, whether or not it will refrain from
forcing or requiring Certain-Teed St. Gobain Insula-
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion Corporation , by means proscribed by Section employees represented by it, rather than to Certain-
8(b)(4)(D) of the Act , to assign the work in dispute to Teed's employees.