Intl. Chemical Wrks Union

National Labor Relations Board - Board Decisions

Oct 16, 1969

179 N.L.R.B. 168 (N.L.R.B. 1969)

168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Chemical Workers Union , AFL-CIO
and Local No. 557, International Chemical
Workers Union , AFL-CIO and Crest , Inc. Case
23-CC-309
October 16, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
General Counsel ( issued January 19 on a charge filed
January 8, 1969) The issue is whether Respondents, in
picketing a "reserved gate" on the premises of the
primary (the struck) employer thereby violated Section
8(b)(4)(i) and (u)(B) of the Act
The General Counsel, the Union and the Charging
Party presented evidence and oral argument and have filed
briefs, all of which have been duly considered. On the
entire record (as corrected on notice to the parties) and by
observation of the witnesses, I hereby make the following.
FINDINGS OF FACT
On June 13, 1969, Trial Examiner A. Norman
Somers issued his Decision in the above-entitled
proceeding, finding that the Respondents had not
engaged in unfair labor practices as alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision Thereafter, the General
Counsel and Charging Party filed exceptions to the
Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
in view of our adoption of the Trial Examiner ' s finding that the work
performed by Crest on items other than the newly installed string 7
production line was related to Sinclair - Koppers ' normal operations, we
find it unnecessary to pass on the Trial Examiner ' s additional finding that
string 7 work is also related work Also, in adopting the Trial Examiner's
finding that the Moore Dry Dock standards are inapplicable to the
situation herein, we do not adopt or pass on the Trial Examiner's
interpretation and comments concerning Member Fanning ' s opinion in the
General Electric decision
in the absence of exceptions , we adopt pro forma, the Trial Examiner's
conclusion that "the General Counsel has met condition [1] of the reserved
gate principle "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A. NORMAN SOMERS, Trial Examiner: This case, with
all parties represented, was heard before me in Beaumont,
Texas, on February 18 and 19, 1969, on complaint of the
I. THE EMPLOYERS
The primary employer is Sinclair-Koppers Company It
is a partnership composed of Sinclair Petrochemicals,
Inc., and Koppers Company and does business as "S-K."
S-K, at its plant in Port Arthur, Texas, makes and sells
plastic products from byproducts of the petrochemical
industry. Its receipt of supplies from, and its sales and
shipment of products to, points outside Texas exceed
$50,000 a year in each category
Crest, Inc , is a Texas corporation, with its main office
and place of business in Nederland, Texas, and is engaged
in construction of petrochemical refineries. One of its
customers is S-K, and in that connection Crest is engaged
also in maintenance and repair work of S-K units and
facilities. Crest receives at least $50,000 worth of
materials a year from outside the State.
It is not disputed and I hereby find that both
companies are engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Respondents, International Chemical Workers
Union, AFL-CIO, and its Local No 557, are labor
organizations within the meaning of the Act'
11I. THE UNFAIR LABOR PRACTICES
A. Issue
The issue is whether Respondent, by picketing a
"reserved gate" of S-K (in an otherwise valid strike)
engaged in primary and therefore legal activity (as
Respondent claims), or in "secondary" activity, in
violation of Section 8(b)(4)(i)(ii)(B) of the Act (as the
General Counsel claims). Involved is the principle
enunciated by the Supreme Court in the General Electric
case,' that picketing at a "reserved gate" at the primary
(or struck) employer's premises is primary (and therefore
lawful) activity unless all of the following three conditions
exist (id at 681) (each condition numbered for
convenience of reference).
[1] There must be a separate gate marked and set apart
from other gates; [2] the work done by the men who use
the gate must be unrelated to the normal operations of
the employer; and [3] the work must be of a kind that
'Unless specifically differentiated, the International Chemical Workers
Union and its Local No 557 will be collectively referred to as the
Respondent or ICWU, or the Chemical Workers
'Local 761, International Union of Electrical, Radio and Machine
Workers, AFL-CIO v N L R B (General Electric Company). 366 U S
667, remanding 123 NLRB 1547, supplemental decision by Board on
remand 138 NLRB 342
179 NLRB No. 26
INTL.CHEMICAL WRKS UNION 169
would not, if done when the employer were engaged in
its regular operations, necessitate curtailing these
operations.
As later appears, the defense (the Respondent) on the
one hand, and the prosecution (the General Counsel with
the Charging Party in all instances concurring) on the
other, are at cross purposes, on what these words mean.
This is particularly so in respect to condition [2], the
"related work" element Much of the work of the
contractors at S-K's premises is maintenance and repair
work of S-K's units and facilities S-K itself has a
maintenance department doing that kind of work or
capable of doing it, and in any event, since these repairs,
as Respondent contends, are needed in S-K's normal
operations, they are "related work" within the principle of
General Electric, and the Board's application of it in its
Supplemental Decision on remand (supra, fn 2) and in its
later decision in Firestone Synthetic,3 (a case arising from
the same Regional Office as the instant case) The
General Counsel, on the other hand, claims "related
work" and "normal operations" have a narrower legal
meaning than their literal words, - at least narrower
than Respondent's conception of them A like dispute
exists in respect to the meaning of the first and third
elements of the reserved gate principle. Finally, the
General Counsel claims that Respondent was additionally
remiss in not naming the primary employer in its "on
strike" sign, thereby, as is claimed, running afoul of the
requirements of Moore Dry Dock,' albeit the picketing
here was on the primary employer's premises and not in
stranger premises in a "common situs" situation.
B The Strike and the Meeting Concerning the
Picketing of the Reserved Gate
S-K for years has had separate contracts with five
unions but with a common expiration date Respondent
represents the largest numbers of S-K's working force It
represents S-K's operating employees and also the
employees of two of the six crafts comprising S-K's
maintenance department. Respondent represents the
boilermakers and painters The other four crafts in S-K's
maintenance department are pipefitters, mechanics,
electricians and maintenance men, and they are
represented by the unions of their respective crafts The
separate contracts expired on December 31, with no new
agreements having been reached All five unions thereupon
struck on January 4, 1969, and as of the date of the
hearing are still on strike S-K's main entrance has been
picketed since January 4, and there is no issue over the
legality of the strike or of the picketing at S-K's main
gate (That is the gate the employees use when they are at
work )
On January 5, S-K erected a sign at its East Gate,
some distance away from its main entrance, reading
On January 5 or 6, Respondent picketed that gate with
the sign
ICWU LOCAL 557
ON STRIKE'
Respondent continued thus to picket the East Gate until
January 16, when it suspended doing so pursuant to a
stipulation for a "standby" injunction entered into in the
Section 10(1) proceeding in the District Court.6
Crest is S-K's most largely used contractor The nature
of the relationship between Crest and S-K will be later
detailed
On the afternoon of January 6, at the behest of Jack
Schrimscher, general superintendent of Crest and George
Weller, Crest's general counsel, a meeting was held at the
Pipefitters Hall in Nederland, Texas, between Crest's
representatives and the representatives of the striking
crafts The 30 to 35 persons attending included Don
Jones, plant engineer of S-K, and representatives of the
Respondent Local (supra, fn. 1). The purpose was to have
the picket sign at the East Gate removed. The discussion
concerned a list of 20 projects or items on which
contractors had already started work or were going to do
so, and which S-K had contracted out before the strike.
The list, General Counsel's Exhibit 4 (hereafter "the list,"
a duplicate of which is appended hereto as Appendix A)
had been prepared by S-K's Don Jones on December 30,
1968. Though some of the items involved projects to be
performed by contractors other than Crest, the bulk of
them were those in which Crest was the contractor In
substance, Crest's representatives asked that the picket
sign be removed. Louis Distefano, president of
Respondent Local, said he had no authority to remove it
Crest's representatives assured the strikers Crest is not a
"strikebreaker" and had no intention to "take away" any
work from the strikers.' Crest asked if the strikers had
any "quarrel" with Crest They responded their quarrel
was not with Crest but with S-K. While at least one craft
other than those represented by Respondent spoke up, the
spokesmen most vocal were from the ranks of Respondent
Local. The spokesmen of Respondent Local variously
commented that some of the items on the list was "their
work" and that they were tired of S-K taking work away
from them There was talk about whether Crest was
willing to have the business agents of the various crafts
"police" Crest's work at S-K to see if it was "taking
away" work from the strikers. Schrimscher said this
would be agreeable He again asked Local President
SINCLAIR KOPPERS
CONSTRUCTION GATE
ALL CONSTRUCTION AND
DELIVERIES ENTER HERE
'Oil. Chemical and Atomic Workers International Union, AFL-CIO.
and its Local Union No 4-23 (Firestone Synthetic Rubber etc ). 173
NLRB No 195
'Sailors' Union of the Pacific (Moore Dry Dock Company), 92 NLRB
547
'Respondent later added the words "against Sinclair-Koppers
Company " Whether this was in replacement of or a supplement to the
original sign, the earlier sign was around long enough to have offended the
Moore Dry Dock requirement (of specifically naming the primary
employer) if such requirement here existed
'Potter v I C W U (D C E D Tex Civ Ac 6187)
'The last contract of S-K with Respondent has a "contracting of work"
clause (of which the contractors with the other unions are presumably
typical) stating that any contracting by S-K of maintenance and repair jobs
"shall not be for the purpose of laying off employees in the job
classifications involved during the period that the work is being
performed" and S-K "shall make every reasonable effort to use its
available force and equipment in order to avoid contracting of maintenance
and repair jobs "
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Distefano about removing the picket sign and Distefano
said this was up to the International representative of
Respondent. Schrimscher, the following morning, asked
Distefano (who, as it happens, is,himself an operating, not
a maintenance employee) if he had: spoken to his
International representative, and Distefano said he had
called the International representative but could not reach
him. There was no further contact between Crest and
Respondent Respondent continued to picket that gate
until it entered into the previously mentioned stipulation
of January 16, for the standby injunction (supra, fn. 6)
pending the determination by the Board in the instant
proceeding
C The Projects on "the list" Considered
"Related work"
1. Scope of items presenting the issue
The issue over whether the work on the premises is
related to S-K's normal operations concerns those projects
involving maintenance and repairs of existing units or
facilities (as distinguished from "new production").
Respondent concedes that Item 13, which involves the
construction of a new office building with its
appurtenances consisting of the laboratory, sewer pump
and landscaping, is new production Respondent claims
that all the rest involve maintenance and repair of existing
facilities, which S-K's maintenance department can do and
in respect to numbers of them have done The General
Counsel's response differentiates between those projects on
the list that concern a newly constructed production unit,
termed string 7 (to be later explained), and the remaining
items on the list. As to those items which concern string 7
(Items 1, 2, 3, 4, 7, 15, 16, 17, 18, and 19), the claim is
that however much they might be classed as conventional
maintenance if performed on a pre-existing production
unit , they are part of "new construction" as applied to the
recently completed string 7 As to the remaining items,
i.e., those that do not concern string 7 (or Item 13), the
General Counsel does not dispute that they are
maintenance or repair items or that S-K's maintenance
employees are competent to do the work involved The
contention, however, is that this is not the full answer to
whether these items are related to S-K's normal
operations. What makes these products, according to the
General Counsel's contention "unrelated" to S-K's normal
operations is that they involve more manpower than S-K's
maintenance force can handle consistently with their other
commitments, and from this the argument runs, it follows
that maintenance and repair work contracted out to others
in order to overcome that insufficiency is not related to
S-K's normal operations.
2 Preliminary statement of Crest's relationship with
S-K
As stated, Crest is the contractor for all but a few of
the items on the list. For the 8 years of S-K's operations,
Crest has had a "blanket contract" under which S-K can
call on Crest for a particular operation (on which Crest
bills it on a cost-plus-fixed percentage basis). Since
September 8, 1967, Crest has had also a "construction
contract," and under it has constructed the string 7
production unit, and is also performing under Item 13, the
appurtenances to the office building (the building as such
being contracted to a building construction company)
S-K calls on Crest so consistently that during more
than the last 3 years (which goes back to before the time
the "construction contract" of September 1967 was
entered into) Crest's general superintendent Schrimscher
has been permanently assigned to S-K's headquarters.
There, along with Crest's timekeeper, Schrimscher has an
office at S-K and supervises some 30-odd Crest employees
performing under him at S-K.° As to when a particular
job is allotted to S-K or to Crest, Engineer Jones testified
that the decision is made by the chiefs of S-K's
maintenance department. These are Joe Cassidy,
superintendent, and Bill Nida, assistant superintendent of
S-K's maintenance department, and they never testified.
Engineer Jones testified that his role is limited to making
recommendations, and only when the maintenance heads
consult him. His testimony indicates that it is merely a
matter of the manpower needed in relation to a job to be
done. The General Counsel puts it in his brief as follows.
(1) total manhours involved, (2) are their sufficient
maintenance employees to do the work in question, and
(3) how much is it going to cost.
Jones testified that his usual recommendation is that a
particular job not be contracted out unless it involves a
minimum cost of $1,000, and Crest superintendent
Schrimscher testified he did not recall a job involving less
than $1,000.' Jones testified, moreover, that he had at
times waived the $1,000 minimum, and that the
maintenance heads who make the decision do not always
follow his recommendation. What it comes down to, then,
is that each job involves an evaluation by the maintenance
heads concerning where the particular job is to be allotted.
It could be to S-K's maintenance department, or to Crest,
or it could be a combination of both. This indeed has
occurred, as appears in the ensuing discussion involving
the various (non-string 7-concerned) items.
When the strike began, there were approximately the following
employees at S-K 's maintenance department and Crest employees working
at S-K
S-K Crest
Boilermakers 16 6
Painters 6 1
Pipefitters 39 8
Machinists 25
Electricians 7 or 8
Instrument men 6 or 5
Operating Engineers 6
Ironworkers 10
Laborers 5
Cement Finishers 1
Carpenters 6
Total 95 or 97 33
'Schrimscher testified he has indeed billed S-K for less than $1,000 in
situations where he has "loaned" Crest employees to S-K on jobs where
S-K has run short of help on jobs being performed by S-K's own
maintenance crew In that situation , the Crest man performs under S-K
supervision , and Crest bills S-K for the "loaned" employee' s wages plus
Crest's "markup " This has occurred about 6 times in Schrimscher's
3-year tenure at the S-K premises The 20 projects on "the list" do not
include any such loan arrangement
INTL.CHEMICAL WRKS.UNION 171
3 The projects (other than those involving string 7) In
which Crest is the contractor
The bulk of the items that do not involve string 7 are
primarily Crest-contracted items, and in addition, the
work involved is boilermakers work Since the record
includes specific evidence concerning the comparability of
the jobs they have performed with the projects involving
boilermakers work, we shall treat these items (5, 6, 9, 10,
and 11) in the text Preliminarily, however, we treat in a
footnote the remaining items not concerned with string 7
or with Item 13 (the new office building) They are items
8, 12, 14, and 20 10
Items 5 and 6 Each item involved wall repair damage
caused by the "decomp" (an explosion) occurring in
October (before the strike) in the reactor to string 4 Item
5 involves repairing the Crude (extruder) room wall, and
item 6 involves replacing "transite" (corrugated asbestos
sidings) on the wall of the compressor building Engineer
Jones and Jim Baker, an S-K boilermaker, testified
decomps are "fairly common" occurrences Baker,
corroborated by fellow boilermaker Roger Castilow,
testified, without denial by anyone in the maintenance
department, that in most prior occasions, S-K
boilermakers have made decomp repairs by themselves,
and in one instance, the repairs were done by a mixed
crew of S-K and Crest boilermakers " Engineer Jones
drew a distinction between a "minor" and "major"
decomp, explaining that if "I was not asked [by the
maintenance heads] for construction assistance," it must
have been a "minor" decomp He later defined a "major"
decomp as one where "we actually blow material out of
the concrete confinement or destroy equipment in the
basic stall." However, Jones later disclaimed that "major"
decomps have been performed only by outside contractors
instead of by S-K's crew, and Schrimscher admitted that
Crest has not done all of S-K's repairs on decomp work.
Item 5 is indeed the most extensive and expensive of the
maintenance items But the job itself is boilermakers
work, and as Baker and Castilow testified, the repairs
S-K's boilermakers had done to damage caused by
decomps were hardly tiddlediwinks either Baker testified
to an occurrence last November where 10 or 1 I tubes had
blown.' 2 The job took 4 or 5 days around the clock, and
the repairs were done by "our boilermakers along with
Crest. . We didn't have sufficient personnel to do the
job, but we did work with them man for man around the
clock ""
Castilow testified to an occurrence some 2 years ago,
where the No 2 reactor "blew up and it knocked the roof
off of the building." The S-K pipefitters changed the
valves and three other boilermakers besides himself
repaired the roof He described another occurrence calling
for the replacement of transite at the walls (as in item 6
and later described item 10) He described a later decomp
where a couple of boilers blew up, and when they were
removed, "it left a pretty big opening" in the structure
He and an apprentice boilermaker put up 18 sheets of
transite to cover the holes and also did the metal frame
work on which the transite was hung
Item 9 involves putting platforms at the pelletizer of an
S D. unit (S.D units produce the S-K product called
"Syper Dylan," while so far as appears, the units
producing the other polythelene product, "Dylan" are
termed "strings." Both are in pellet form See the later
discussed item 1, concerned with string 7 ) Jones explained
the jurisdictional area of the work is that of either
boilermakers or machinists
Item 10 involves repair work on the E B (ethyl
benzene) building, which is the oldest of S-K's buildings
(circa 1952) It calls for removing " transite" (supra, item
6) from the building, installing new iron work (to replace
the rusted old iron work), and replacing the transite.
Engineer Jones testified the work is in the jurisdiction of
S-K boilermakers and painters Baker and Castilow
described prior occasions in which they had done the kind
of work involved in the Item 10 project on the EB
building. Assistant Maintenance Superintendent Nida
asked Baker (who was then alternate steward) and his
two-man partner on that particular shift to survey the EB
project and indicate whether they wanted the S-K crew or
Crest to do the job ' ° The upshot as to Item 10 (the
present repair job on the EB building, as distinguished
from the earlier job, which is treated in fn 14, supra) was
that in deference to Nida's "primary concern [for] speed,"
Crest was allotted the job on Item 10, with the
understanding that Crest would do the job, but if overtime
was involved, the S-K crew was to do the overtime.' S
Item II ("Install guard rails at S D [Super
Dylan-producing unit] powder bins and test bins") Jones
agreed this is boilermaker work Further, as indicated by
Baker's undenied testimony, shortly prior to the strike,
Baker and another boilermaker had already unloaded and
stacked the guard rails at the S.D. unit preparatory to
installing them, and that this was pursuant to
Maintenance Superintendent Cassidy's statement that the
S-K boilermakers would install them after they were
"Item 8 ("Guard for bulk car wash station nozzle ") is for the
installation by Crest of a safety device on an already existing Dylan unit
(other than string 7 ) and involves pipefitters work, supra. fn 8
Item 12 , explained by Jones as correcting the discharge of "condensate"
of the pipes of strings I to 6, calls for piping by Crest ( pipefitters work)
and for electrical work by an outside electrical concern, Eldridge Electrical
Co
Item 14 is roof repair work in which the contractor is a roofing
company Crest , however, has helped out to the extent that the roofing
company is short of manpower There is no explicit evidence of the craft
involved However, S-K boilermaker Baker's undenied description of
boilermakers ' work (infra, fn 11) apparently fits the kind of work involved
in this repair operation
Item 20 ( Relocate wall on Cambre's office ) is totally unexplained
regarding either the office or the occupant or the craft The contractor is a
building company (the same company constructing the new office building
in Item 13).
"Baker described boilermakers work as involving sheet metal, structural
steel , repair and general maintenance He explained that if a part of a
building has deteriorated to the point of being a hazard to employees, the
boilermakers repair and even rebuild it
"Baker testified that in the maintenance department "minor" or
"major" decomps are identified on the basis of the number of tubes blown
The blowing of one or two is "minor" and from 5 on (and involving at
least 24 hours' work) it is major
"Baker explained that the reason Crest was then used was that "we
didn't have a dragline in the plant," but now S-K does
"Castilow testified that it is "sort of common practice" for Nida or one
having like authority to consult the craft involved on whether the S-K crew
wants to do the work or they are agreeable to having Crest do it Castilow
described a specific example of this in a prior instance involving repairs
calling for transite replacement on the EB building This was on the fifth
level of the building and it called for rebuilding the frame and putting it
back on before replacing the transite After discussion , the S-K crew was
in that instance given the whole job
"Baker testified that "we have never objected to working along with
Crest, as long as all of our men were working If the job was large enough
that we felt that we would be hindering the Company from production, we
agreed amongst the boilermakers that we would work with Crest as long as
no one was displaced, and it is common knowledge, about the plant that if
the job was a small job, that we did the work "
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received from an outside concern that was fabricating
them
4. The projects concerned with string 7
As earlier stated, all of the projects that concern string
7 (at least those on which Crest is the contractor in whole
or in part) are maintenance type items except for the
General Counsel' s contention that they are still part of
"new construction " Construction of string 7 began on
September 8, 1967, when Crest (apart from its long and
still standing "blanket contract") made the "construction
contract" with S-K Of the pre-existing strings (1 to 6),
the most powerful is string 4 It has a pressure of 45,000
pounds per square inch, and string 7 was designed to be
the peer of string 4 in that respect Jones testified that by
August or September 1968, he and his engineering
department began "checking" the unit out, i e
determining whether it is "to be considered a production
unit " (Jones explained that his department represented
"construction" in S-K, as distinguished from production
or maintenance.) By October 1968, as Jones testified, his
engineering department "checked out" the unit and then
proceeded with the responsibility of "selling" it to the
heads of S-K's production and maintenance departments
Jones testified
Q Did you sell string 7 to Sinclair-Koppers9
A The unit as a whole was sold, but there were
certain exceptions which were incomplete.
The "exceptions" are presumably the 11 projects on "the
list," which concern string 7 Of these, Crest is the sole
contractor of items 1, 2, 3, 4, 7, and 17, and with the
exceptions of 3 (which involves painters' work) all involve
the work of boilermakers (except that 7 could also be
done by pipefitters, another of the crafts in S-K's
maintenance crew (Supra, fn. 8)." Jones testified that
while these corrections are pending, string 7 has operated
at a pressure of 35 to 40,000 instead of the hoped for
45,000 He testified, however, that it is "limited
production," in that the unit's operation has not exceeded
2 or 3 consecutive days at a time. While the reason for
this intermittence is not specified, it does appear that
some of the items on the list, as Crest superintendent
Schrimscher testified, cannot (or could not) be done while
the unit is in full operation (items 1, 4, and 17) Whether
that accounts for the intermittence is not clear, since there
is no indication that these "exceptions" play any role in
the hoped-for increase in the pressure of the unit, as
distinguished from merely adding to the facility, safety or
convenience in its operation, whatever the pressure
(Exemplifying the latter purpose, would appear to be all
of the Crest-contracted items, later discussed, i.e item 17,
treated in the text and items 1, 2, 3, 4, and 7, treated on
fn 18, infra ) What is clear, however, is that though the
unit is in limited production, it is in actual production
The General Counsel's brief states that all operations on
string 7 consist merely of "testing." The record makes no
such suggestion and the fair intendment of Jones'
testimony is that the unit is actually producing products,
that is to say, commercially, whatever the interruptions to
its continuity Jones further testified that the operating
employees on string 7 have the same classification as the
employees operating the other strings (classification A and
B) Further, the corrective items worked on are
conventional post-completion items of the kind that
according to Baker's undenied testimony, he and his
fellow-boilermakers regularly do at the postcompletion
stage As Jones admitted, and as previously stated, the
bulk of the work in the items in which Crest is the
contractor is boilermakers work (items 1, 2, 4, 7, and 17)
Jones also admitted that S-K's own maintenance
employees had in fact been working on corrections of
string 7 itself The testimony concerning item 17
("Improvements to 7 string jet zone") previously alluded
to (supra, fn 16) so indicates Jones explained that the
specific jet zone improvement in item 17 happens to
involve the dryer Baker and Castilow testified to another
improvement they made on the jet zone This was done
under specific orders of Tom Turner, chief engineer of
S-K's maintenance department When Turner made this
assignment, Baker, according to his undenied testimony,
asked Turner whether the jet zone improvements had been
assigned to S-K's boilermakers, and Turner responded
that "had it not been that he (Turner) wouldn't be
assigning us to do the job ""
As appears from Jones' testimony, the string 7 items
that are under the "construction contract" are 1, 2, 3 and
4, and 7 Item 17 involving the jet zone improvement,
which is not under the construction contract and by that
token is under the "blanket contract," has already been
described. Of the items under the construction contract,
all involve boilermakers work except item 3, which
involves painters The particulars of 1, 2, 3, 4, and 7 are
described in the footnote below 18 However, items 3 and 7
Of the remaining 5 items, the contractor on items 12, 15 and 19 is
Eldridge Electrical Company , previously mentioned These involve
electrical work, but item 12 also involves pipefitting , for which Crest is the
contractor As to item 16, after Jones ' engineers work out the deficiencies
in the design of the silo level indicators with the vendor (whose name Jones
at the moment did not recall ), Crest is to install them
Item 18 is noted for its relevancy to a soon to be mentioned aspect of
the "new construction" contention advanced by the General Counsel Jones
testified that item 18 (removal of a wire to step up the power of the motor
in the purge air blower ) calls for the alignment of the motor after removal
of the wire Jones testified that the alignment job on that very project is
the work of S-K's own machinists Before the strike , Jones told the
machinists ' representative that the wire removal would be done by Eldridge
Electric and S-K's supervisors would do the alignment The machinists said
that if S-K did any part of that job, they would picket the reserved gate
Jones testified that since there was no crying need to increase the power of
that purge air blower, S-K "didn't press the issue ," but it has nevertheless
retained item 18 on the list, "since there was no agreement made that we
would not do the complete job "
A counterpart to this is item 17, improvement of the jet zone As the
evidence later indicates , S-K's boilermakers had before the strike already
made one such improvement to the jet zone of string 7 under an
assignment to S-K ' s crew , to do all the improvements on that jet zone
"A like situation appears in the previously discussed item 11 (not
involving string 7), where Maintenance Superintendent Cassidy said the job
there ( installing guard rails at an S D unit ) would be done by the
boilermakers when they were received from the fabricating company, and
where Baker and another boilermaker after the rails arrived, had unloaded
and stacked the rails at the S D unit as the preparatory step for making
the installation
"Item I involved a correction of the "bin sample probes" (tubes ), which
would enable the sample probes to open and close properly so as to catch
the sample pellets Baker testified that about a year before this, the S D
unit had a similar problem "and we took the sample probes out and
revised them , and put them back in so that they would operate properly "
(Jones testified that the mechanisms of Dylan and S D producing units are
the same after they have reached the stage of producing the pellets )
Item 2 (" Install platforms at silos 7 string") These are safety platforms
to provide a safe place for the operating personnel in the silo area to stand
on Baker testified the boilermakers did the identical thing in the S D unit
Jones testified that the job here was the same as item I I (which does not
involve string 7) In both instances "we are going back and putting safety
platforms in the bins and test bins as well as guard rails "
Item 3 Jones explained that this was "a concrete pad that was poured to
house mix additives " Baker testified that 2 weeks before the strike S-K's
INTL CHEMICAL WRKS, UNION
involve still another feature peculiar to themselves. The
General Counsel's brief includes items 3 and 7 as part of
the "new construction" claimed for string 7 (until that
unit hits a pressure of 45,000 as distinguished from its
present 35 to 40,000 pounds) But Jones testified that item
3 applies to all 7 strings, and as to item 7, Schrimscher
testified that the project concerns two other units, in
addition to string 7 - strings 5 and 6. So whatever might
be said for the "new construction" characterization of the
jobs as applied to string 7 (and whatever role these items
can conceivably play in the hope of having string '7
achieve an increase in its pressure) they are at least
conventional maintenance items as applied to the other
production units that these items involve
The essential feature, here, is not the terminology used
but its realities. They are corrections of a unit that has
been checked out as completed by S-K's engineering
department, and is actually in production though on a
limited basis The work involves post-completion
corrections of the kind made in respect to preexisting
units
5. The relation of some of the projects to S-K's
normal operations for consideration apart from S-K's
employees prior performance or competence in
respect to them
Various items involved corrections that were needed by
S-K in connection with its existing day-to-day operations
Specific examples appear in respect to the repairs (Items 5
and 6) needed in the building damaged by the explosion o
the 4 reactor, and also in respect to the repairs needed on
the EB building (Item 10). Regarding the repairs in the
"crude room" (extruder) building (Item 5), Jones had
testified that if that structure experienced another decomp
(which, as both engineer Jones and boilermaker Baker
agreed, is not an infrequent occurrence) "the whole
extruder room roof could fall, so we are going in and
picking up the roof beams with new steel support
columns." Crest Superintendent Schrimscher elaborated
upon it and added, "It (the crude room) is unsafe the way,
it is ." This was on direct On cross, Schrimscher was
asked whether until the large holes in the compressor
room (Item 6) and the EB building (Item 10) were
covered by the transite or its equivalent type of covering,
they too were not safe Schrimscher testified that if he had
not made the repairs (presumably after Respondent ceased
picketing the East Gate) "it is possible that some of the
people could have gotten wet or cold." At any rate,
regarding the compressor building (Item 6), Schrimscher
acknowledged that "those compressors are necessary to'
,the company's normal operations," the implication being
the same in respect to the Crude room and the EB!
building (Items 5 and 10)
painters had poured a similar slab at an S D unit
Item 4 ("Additional bracing on string 7") This was to correct vibrations)
in the pipings which had been detected at string 7 Baker 's testimony,
undemed, is that it had been the prior practice to assign that work to S-K's'
boilermakers Baker explained that " if something has a vibration, running
at a tendency to where it won't stay on the foundation , well, we are there
every day, and we are assigned to this particular area, and naturally we
brace it down That is our job "
Item 7 (the item which is prorated as between the construction contract
and, presumably , the blanket contract ) involves erecting a cover for the
V A (vinal acetate ) pump and drum storage The cover would consist of
four columns and a roof Jones testified that S-K has "people available
that could do it" and that if S-K did it "it would be done probably by the
boilermakers , since we have no iron workers at Sinclair - Koppers "
173
Jones testified in respect to other items that are needed
as safety devices. These are items 2, 8, and II Jones
testified that Item 11 (installation of the guard rails at the
S D powder and test bins) were safety platforms, which
the engineering department thought of for the first time
after that unit was completed (As earlier noted,
Maintenance Superintendent Cassidy has specifically
stated that S-K's boilermakers were to install these rails
after they were received from the fabricators ) Jones
further explained that this work on the S.D. area is
similar to Item 2, the platform project on string 7, in that
after completion of the unit in each instance, the engineers
for the first time, thought of having safety platforms
installed on the bins of each unit Item 8 calling for a
guard for the bulk wash station nozzle on a Dylan
producing unit, other than string 7 (and by that token an
unquestionably pre-existing unit) was characterized by
Jones as a "safety device " It involves pipefitters' work.
D Items whose performance call for curtailment of
regular operations
Schrimscher testified that the following items could not
be done on string 7 unless it is in full operation - item 1
(the correction of the hold bin sample probes); item 4 (the
additional bracing to correct vibrations), and item 17 (the
improvements to 7 string jet zone).
E Conclusionary discussion
1. Related work
If anyone of the three conditions of the reserved gate
principle has not been met by the General Counsel, the
picketing of the reserved gate on the primary employer's
premises is primary and therefore lawful activity."
Though Respondent urges that the General Counsel has
not met anyone of the three conditions, we discuss at this
stage the second, the "related work" condition (around
which most of the hearing was centered, as are also the
briefs of the parties and the preceding factual discussion)
The more accurate short cut expression for the condition
is "unrelated work," since, as stated, the General Counsel
has the burden of establishing that the work of the
employees of the independent contractors using the
reserved gate is "unrelated to the normal operations of the
[primary] employer " Item 13 of "the list," which involves
the construction of the new office building and its
appurtenances, has indeed met that condition. The other
items, on the face of it and as appears from engineer
Jones' explanation, are maintenance and repairs of
existing units and facilities used in S-K's regular business
operations
The Crest-contracted items, far from being
demonstrated to be unrelated to S-K's normal operations,
are shown by the evidence to be most related to them The
fact that the competence of S-K's maintenance repair
crew to perform these tasks is not disputed would in itself
be sufficient to defeat the assertion that they are unrelated
to S-K's normal operations. See Firestone Synthetic,
supra, fn. 2, and Mallinckrodt Chemical, supra, fn 19
The affirmative evidence, in the Crest-contracted items,
and more particularly those involving boilermakers work
"See General Electric case , supra. fn 2 , Firestone Synthetic case , supra,
fn 3 See also Local No 1. International Brotherhood of Electrical
Workers , AFL-CIO (Mallinckrodt Chemical Works), 148 NLRB 340,
348-349
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(as the bulk of them do) show that the S-K maintenance
crew have done identical or similar work and have met
similar problems to those stated on the Crest-contracted
projects. See Items 1, 2, 4, 5, 6, 9, 10, 11, 17
(boilermakers), and 3 (painters) Crest is shown to be
simply an extension of the manpower needs of S-K in
connection with its maintenance and repair work, and as
stated, the work is not merely "related" to S-K's normal
operations It is an integral part of S-K's operations
however much S-K uses Crest for those repairs in addition
to its own maintenance crew.
The General Counsel, in urging a contrary result,
conceives the terms "related work" and "normal
operations" to have a different meaning in law from their
ordinary meaning His thesis, basically, is that work is
unrelated to the employer's normal operations unless the
strikers would actually have been doing that work but for
the strike.20 That premise would preclude picketing the
reserved gate even when used by truckers delivering
supplies for the primary employer's own operations, since
this is hardly work the strikers would have been doing had
there been no strike The General Counsel acknowledges,
however, that the Union may lawfully picket the reserved
gate when used to make deliveries intended for the
primary employer. See General Electric, supra, fn. 2 at p.
680, and Carrier Corporation 21 In an effort to reconcile
the contradiction between his premise and the broad
conclusion it invites, the General Counsel states the
following two propositions as "plainly obvious" from the
rationale of General Electric, thus "(I) an employer
under the guise of a separate gate may not allow someone
else to keep his plant running during a strike, and (2) the
broad term `related work' is narrowly construed to mean
that the work is of a usual day to day maintenance
classification, that is the work that those on strike would
have been expected to be doing but for the strike (usually
general maintenance work)." (Emphasis added ) This is in
effect saying that the test of the right to picket a reserved
gate is whether the contractor is an outright strikebreaker
or ally of the primary employer. (That indeed was the
basis on which Crest, at its meeting on January 6, with
the strikers' representatives, advanced its claim that the
picketing of the reserved gate should be abandoned.)
As it happens, even under the General Counsel's
conception of "related work," there are at least four
specific items on which S-K's maintenance crew would
have been working had there been no strike Three involve
the boilermakers These are items 11 (the guard rails,
which Maintenance Superintendent Cassidy said the
boilermakers were to install when the rails were received
from the fabricators); 17 (the jet zone improvements on
string 7, which Maintenance Engineer Turner said had
been assigned to the S-K boilermakers when he assigned,
-and the boilermakers performed, another improvement
called for on string 7, and item 10, where Assistant
Superintendent Nida, after consultation with S-K's
boilermakers, stated that the work was to be a combined
operation of Crest employees during regular hours and
S-K's boilermakers on overtime (These include also item
18, involving the machinists work on the purge air blower
1OAt the hearing, the General Counsel had carried this thesis to the point
of insisting that the work is "unrelated" unless it is work that but for the
strike only the employees represented by the picketing union would have
been doing regardless of whether employees in the other crafts would have
been doing it The General Counsel, in his brief, apparently no longer
carries his restriction of the term that far
"United Steelworkers of America. AFL-CIO v NLRB (Carrier
Corporation). 376 U S 492
motor Supra, fn. 16.)
However, the matter of whether the work of an
independent contractor is "unrelated work" hardly turns
on the narrow question concerning whether the strikers
would not have been doing that specific job in the absence
of a strike. The question is whether the work is of a
character which is necessary to the employer's own
regular operations, however neutral the user of the
reserved gate may himself be in the conflict.22 In urging
that such maintenance work is not related to the
employer's normal operations, the General Counsel relies
on these two factors. (a) that the jobs contracted for call
for more manpower than the primary employer has in his
maintenance crew, and (b) that the jobs had all been
contracted for prior to the strike As to (b), in General
Electric, the work of the independent contractors, too had
been contracted for prior to the strike. As to (a), the
General Counsel, as previously mentioned, relies on that
factor only in respect to the items not concerned with
string 7 The string 7 items, though they would be
ordinary maintenance even under the General Counsel's
conception of the term, are, in the General Counsel's
view, taken out of that category on the premise (rejected
in the preceding portion of this Decision) that the work on
string 7 is and ever will be "new construction" until it
achieves the vaunted 45, instead of the existing 35 to
40,000 pounds of pressure. And under that view, every job
on string 7 continues as "new construction" even if it has
already been constructed and is already producing, and
even if the projects on it are not shown to have any
relation to the wished for increase in its power
As to the items other than string 7, the contention that
the size of the maintenance job takes it out of the related
work character involves a number of anomalies. The
theory is that the size of the work contracted for so
exceeds the size of the day-to-day jobs of S-K's
maintenance crew as in fact, to render these jobs
"unrelated to [S-K's] normal operations " The minor
premise happens not to be so in any event, as the size of
some of the prior jobs done by S-K's boilermakers attests.
Further, a job where the Crest bill, under the
cost-plus-fixed percentage basis, totals $1,000 is not so
disproportionate to some of the jobs regularly done by the
S-K crew as to take the Crest jobs out of the related work
category even under the General Counsel's theory But
taking the jobs that were more costly and calling for more
manpower than those available by S-K (of which item 5 is
the most prominent example), the proposition that this
takes it out of the "related work" category seems to be
based on a reverse application of the de minimis doctrine
as used by the Supreme Court in the reserved gate
principle. The brief states (Br 9)
The jobs performed by Respondent's boilermakers,
when compared to the scope of the 20 items on G C.
Ex. 4 [here Appendix A] (omitted from publication),
"New construction is not part of the employer's regular operations,
which is what distinguishes the result in the Phelps Dodge case (United
Steelworkers of America v N L R B, 289 F 2d 591, 595) from that in
General Electric in General Electric, the Supreme Court adopted the
reserved gate principle for purposes of remand, which the Second Circuit
in Phelps Dodge expressed by way of dictum, since Phelps Dodge involved
new construction The other cases relied on by the General Counsel (Allied
Industrial Workers of America. Local 681, AFL-CIO (Smith Engineering
Works), 174 NLRB No 61, and Janesville Typographical Union (Gazette
Printing Company), 173 NLRB No 137) involve the same distinction
They involved new construction as distinguished from the employer's
maintenance operations See also Firestone Synthetic (supra, fn 3, and
infra, fn 23)
INTL CHEMICAL WRKS UNION
constituted jobs which may be classified as de minimis
The Court, in remanding the Genera! Electric case for
consideration of the extent to which the independent
contractor used the reserved gate in connection with work
that was related to GE's normal operations, qualified itlas
follows (id. at 682).
It may well turn out to be that the instances of these
maintenance tasks were so insubstantial as to be treated
by the Board as de minimis . It calls for Board
determination
On remand, the Board determined that the work of the
independent contractor using the reserved gate included
work "identical or substantially similar" to those
performed by GE's employees was not de minimis, and
thus (138 NLRB at 346). i
Since this work, which we find constitutes more than a
de minimus amount had previously been performed by
GE employees, we find that such work was part of GE's
normal operations. We accordingly find that the
Supreme Court's "related work" condition was not met
and hence the Union's picketing at gate 3-A was
primary.
Under the General Counsel' s position , the contractors'
maintenance work that is comparable to S-k's
maintenance work can be so far in excess of de minimis as
to become de maximis, and by that token produce the
same legal effect as if that work were de minimis in the
first place. While surfeit may be the counterpart of
undernourishment as a physiological proposition, it would
seem less than such as a legally logical one. The result
here under the theory propounded would be this A
smaller job, such as work which the General Counsel
attributes to S-K's employees as a "day-to-day" matter
(and by that token presumably less needed to S-K's
continued operation) is related to S-K 's normal operation.
On the other hand, a larger job and presumably the result
of a condition where there is an even greater need for
repairs to enable the employer to engage in his regular
operations is by that token unrelated to the employer's
normal operations
The conclusion is that of the items other than Item 13
(construction of the new office and appurtenances), those
in which Crest is the contractor and in which boilermakers
work is involved are in the various instances previously
described affirmatively demonstrated to be related to
S-K's normal operations, and as to the remainder, the
General Counsel has not met his burden of showing that
they are unrelated. See specifically, the Mallinckrodt case,
supra, fn. 19 at 349. It follows that the General Counsel
has not met the "related work" condition of the reserved
gate principle and that the picketing of the East Gate was
primary
2. The sufficiency of S-K's reserved gate sign
As stated, Respondent claims that the other two
elements of the reserved gate principle have not been met
As to the first element, Respondent claims that the word
"deliveries" on the reserved gate sign, which appears after
"all contractors," is unqualified, and hence that one
reading the sign would thus understand that it could be
also used for deliveries intended for S-K's own normal
use. Whatever its literal meaning, the entire context
indicates the deliveries contemplated were for the
contractors' use only, and it seems rather clear that no
one understood it otherwise by either word or actual
occurrences I therefore conclude that with the reserved
175
gate sign, the General Counsel has met condition [1] of
the reserved gate principle
3. The need for curtailing some of S-K's regular
operations to perform some of the projects
As to the third test, Crest superintendent Schrimscher,
as earlier indicated, testified that items 1, 4, and 17 could
not be performed unless that unit (string 7), is not in full
operation The Respondent claims that it follows from this
that the performance of these tasks would necessitate
curtailing S-K's regular operations and thus the third test
necessary to disprove primary activity is not met." The
General Counsel's only claim to the contrary is that these
items involve string 7, which he insists is still "new
construction " I have heretofore overruled that contention
and found these to be post-completion maintenance
projects of a kind that S-K's maintenance people can do,
and have indeed done in the past with similar units. At all
events, since the General Counsel has not proved that the
suspension of that unit would not pro tanto curtail S-K's
regular operations, the third test to disprove primary
activity has also not been met
4 The claimed applicability of Moore Dry Dock
Finally, the General Counsel claims Respondent was
additionally remiss in that the picket sign at the East Gate
stated it was "on strike" instead of "on strike against
[S-K] " The claim is that the failure of the sign to identify
whom Respondent was striking against was "a blatant
violation of the Board's Moore Dry Dock [supra, fn 4]
standards." The claim that such requirement exists when
picketing occurs on a reserved gate on the primary
employer's premises (as distinguished from an area away
from it and in "common situs" situation) is stated by the
General Counsel, as an original proposition. No mention
is made of how that proposition fared in the General
Electric case itself. In the original decision, in which the
Board found the Union's picketing of the reserved gate
was a violation, Member Fanning in his concurring
opinion relied on the Moore Dry Dock criteria (123
NLRB at 1552, 1553, fn. 9). He expressed the view that
Moore Dry Dock applied to picketing of a reserved gate
on primary premises as it does to picketing on stranger
premises in a "common situs" situation. Concerning
General Electric itself, he indicated that two of the four
criteria of Moore Dry Dock had not been met, first in
that reserved gate was not "reasonably close to the situs
of the dispute" with the primary employer (GE), and
secondly in that the picketing "did not clearly distinguish
that the dispute was only with [GE]." In the Supplemental
Decision, the Board, on the basis of the reserved gate
principle enunciated by the Supreme Court, found that the
"Compare Firestone Synthetic (supra , fn 2) There the Board found the
construction by the independent contractor of an effluent ditch to improve
Firestone 's existing water treatment system, was maintenance work, and
since Firestone's own crew had the ability to make the ditch (though they
had never theretofore done such a job ), this was work related to
Firestone ' s normal operations within the meaning of the second test of the
reserved gate principle As to the third test , though the ditch was
completed , it still had to be tied to the existing water treatment system,
and this in turn would necessitate shutting off the existing water treatment
system which serves a good part of the plant The Board noted that since
the General Counsel did not prove that the shutdown would not affect a
substantial portion of Firestone 's operations , the Board ( if it reached that
issue ) would find the third test necessary to disprove primary activity was
also not met
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's picketing was primary and therefore lawful, and
though the Board specifically noted Member Fanning's
concurring opinion in the earlier decision (where he relied
on the fact that the picketing "failed to comport with two
of the [Moore Dry Dock] criteria") the Board made no
further mention of Moore Dry Dock The Board's
Supplemental Decision dismissing the complaint thus
indicates it thought Moore Dry Dock not applicable
Member Fanning in going along with the decision
dismissing the complaint, gave no indication that on the
facts (and assuming the Moore Dry Dock doctrine applied
to a reserved gate situation), he abandoned the view that
the picketing did not conform with two of the criteria
Thus Member Fanning could not have concurred in the
dismissal unless he concluded, along with the other Board
members, that Moore Dry Dock did not apply to a
reserved gate situation in the primary employer's own
premises.
Accordingly, once picketing at a reserved gate is
otherwise held to be primary activity, it is no more subject
to Moore Dry Dock requirements in picketing a reserved
gate than it is in picketing any other part of the primary
employer's premises The General Counsel's further
observation that the omission of S-K's name from the
picket sign "certainly reinforced the fact that Respondents
by their picketing at the East Gate sought only to have
Crest cease doing business with S-K" is no more relevant
than would be a like observation in connection with
picketing which occurs while an independent contractor is
using what is undisputedly a primary area - such as for
example, the gate regularly used by the primary
employer's employees
RECOMMENDED ORDER
On the findings and conclusions above and on the entire
record, it is hereby recommended that the complaint be
dismissed