Laborers, Local 616

National Labor Relations Board - Board Decisions

Jun 29, 1971

191 N.L.R.B. 796 (N.L.R.B. 1971)

796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Laborers' International Union of North America, Lo-
cal No. 616, AFL-CIO and PPG Industries, Inc.
and Henry F. Teichmann , Inc. and United Glass and
Ceramic Workers of North America , Local 180,
AFL-CIO-CLC. Case 5-CD-157
June 29, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
located outside the State of Maryland . The parties fur-
ther stipulated , and we find, that PPG Industries, Inc.,
is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Laborers
and Glassworkers are labor organizations within the
meaning of Section 2(5) of the Act.
This is a proceeding pursuant to Section 10(k) of the
National Labor Relations Act, as amended, following
the filing of charges by PPG Industries, Inc. (here-
inafter called the Employer or PPG), alleging that La-
borers' International Union of North America, Local
No. 616, AFL-CIO (hereinafter called Laborers), vi-
olated Section 8(b)(4)(D) of the Act. The charge al-
leges, in substance, that the Laborers, by picketing,
violated the Act in that one of the purposes of the
picketing was to force PPG and/or Henry F. Teich-
mann , Inc. (hereinafter called Teichmann), to assign
certain work to its members rather than to members of
the United Glass and Ceramic Workers of North
America, Local 180, AFL-CIO-CLC (hereinafter
called Glassworkers). Pursuant to notice, a hearing was
held in Cumberland, Maryland, before Hearing Officer
David L. Bernstein on February 18, 1971. The Em-
ployer, the Laborers, and the Glassworkers were repre-
sented at the hearing, and were afforded full oppor-
tunity to be heard, to examine and cross -examine
witnesses, and to adduce evidence bearing on the issues.
Thereafter the Employer and the Laborers filed briefs
which have been duly considered by the Board.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the Hearing Officer's rulings
made at the hearing and finds that they are free from
prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board makes
the following findings.
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated that PPG Industries, Inc., a
Pennsylvania corporation, is engaged in the business of
manufacturing and fabricating plate and float glass at
its Cumberland, Maryland, plant. In its operation at
Cumberland it annually receives goods and materials
directly from outside the State of Maryland valued in
excess of $50,000 and it annually ships and sells its
products valued in excess of $50,000 to customers
191 NLRB No. 142
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer 's facilities at Cumberland include two
large tanks in which raw materials used in the fabrica-
tion of glass are mixed and heated into a molten state.
Each of these tanks , which principally consists of a
special type of brick , must be substantially rebuilt ap-
proximately once every 3 years, such reconstruction
taking from 6 to 8 weeks . The "Number 1," or plate
glass tank was originally constructed in 1956 and was
rebuilt in 1960, 1963 , 1966, and 1971 , the latter being
the subject matter of the instant dispute . The "Number
2," or "float glass tank" was constructed in 1963 and
rebuilt in 1968. Such rebuilding or repairing of the
tanks is referred to as "cold tank repairs."
When the tanks were originally constructed in 1956
and 1963 , respectively , the Employer contracted out
the entire operation , the contractor furnishing all the
necessary employees . Members of the Laborers worked
on the 1963 construction.
In 1960 , the Employer contracted the repair work on
the No. 1 tank to Toledo Engineering Company, the
latter furnishing the bricklayers . The Employer as-
signed its employees , members of the Glassworkers, as
bricklayer helpers. The same arrangement was effected
for the 1963 repair work on the No. 1 tank . In neither
instance were laborers used . In 1966 , when it again
became necessary to repair the No. 1 tank , the Em-
ployer elected to contract out the entire tank repair
operation to Toledo Engineering Company. Toledo did
not use PPG's employees as helpers at that time. The
Employer states that this was because no layoffs of
PPG employees would have been necessary due to the
fact that the repair work was scheduled in the summer,
and the vacation schedules created a shortage of PPG
employees. In 1968 , the Employer contracted the re-
pair work for the No. 2 tank to Toledo Engineering
Company , but assigned its own employees , members of
the Glassworkers , to work as bricklayer helpers. The
Laborers set up a picket line to protest the work assign-
ment, and thereafter an agreement was worked out
whereby the two unions agreed to a 50-50 division of
LABORERS , LOCAL 616
the work in dispute. All the parties specified that the
agreement reached would not be used as a precedent for
manning arrangement on future tank repairs.
On January 7, 1971,1 the Employer issued a purchase
order to Henry F. Teichmann, Inc., by the terms of
which Teichmann was to furnish all necessary bricklay-
ers for the repair of the No. 1 tank at the Cumberland
plant, and the Employer was to assign its own em-
ployees to assist the Teichmann bricklayers.' On Janu-
ary 25, the Teichmann bricklayers reported to work,
and the Employer assigned its own employees to assist
the bricklayers. That same day, the Laborers estab-
lished a picket line at the plant entrance and picketed
intermittently at that location until January 30, when
Teichmann removed all of its bricklayers from the job.
On February 1, an application was made to the
United States District Court for Maryland for Section
10(1) relief, and Respondent Union entered into a stipu-
lation in which it agreed, during the pendency of this
case before the Board, not to picket or commit other
acts designed to force or require PPG and/or Teich-
mann to assign laborers' work to employees repre-
sented by the Respondent.'
B. The Work in Dispute
The work which gave rise to this proceeding is the
assisting of bricklayers in connnection with cold tank
repair work on the No. 1 tank at the Employer's Cum-
berland, Maryland, plant. The repair work consists of
the reconstruction of the inside of the tank, and re-
quires the labor of bricklayers and bricklayer helpers.
All dates hereinafter are 1971 unless otherwise specified.
This work assignment was in conformity with the requirements in arti-
cle I, section 9, of the 1969 local agreement between PPG and the Glass-
workers, which reads as follow:
9. Tank Repair Laborers
a. The Company will meet with the Union at least 30 days prior
to each Cold Repair to review agreements concerning such repairs
and to discuss the assignment of laboring jobs to plant employees
who would otherwise be laid off.
b. After appropriate arrangements are made, the Company will:
(1) Notify contractors that the plant will furnish laborers from
among plant employees who would otherwise be laid off, which has
been past practice
(2) Furnish the local Union a letter indicating the arrangements
between Local Igo and the Company. '
c If no plant employees are laid off, the Company is free to obtain
such labor as best suits its needs.
d. Cumberland maintenance employees schedules will follow as
closely as practical procedures relative to past tank repair
schedules. Should unforeseen circumstances develop unequal
schedules, they will be discussed with the Union.
The repairs were more than half completed as of the date of the hearing
and the parties contemplated full completion within a few weeks thereafter.
C. The Contentions of the Parties
797
It is the position of the Employer that it had properly
assigned the work of assisting the bricklayers to the
Glassworkers on the basis of past assignments, both at
Cumberland and at its other plants, and its obligation
under the collective-bargaining agreement. Addition-
ally, the Employer contends that the assignment of the
work in dispute to its own employees, who would oth-
erwise be laid off should be upheld as its purpose and
result are to avoid the dislocation and unemployment
of an existing regular workforce.
The Laborers contends that the national agreement
between the Laborers' International Union and Teich-
mann entitles them to the right to supply laborers for
Teichmann's tank repair jobs. Furthermore, the Labor-
ers argues that the employees it represents, by reason
of special training and long practice in both the original
construction and cold repair of these tanks, acquired
the skills necessary to efficiently perform the disputed
work.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8 (b)(4)(D) has been violated.
The record shows, and the parties stipulated , that on
January 25 , 1971, the Laborers picketed at the Em-
ployer 's plant for an object of forcing reassignment of
the disputed work to employees represented by it. On
the basis of the entire record , and as the Laborers pick-
eting was admittedly for an object of forcing assign-
ment of work from one group of employees to another,
we find that there is reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred and that
the dispute is properly before the Board for determina-
tion pursuant to Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work after
giving due consideration to various relevant factors. As
the Board has stated, its determination in a jurisdic-
tional dispute case is an act of judgment based upon
commonsense and experience in the weighing of these
factors.' The following factors are' relevant in making
a determination of the dispute before us.
International Association of Machinists. Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company),135 NLRB 1402, 1410.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. The collective-bargaining agreements
The Employer is bound by a collective-bargaining
agreement between it and the Glassworkers. The agree-
ment contains a specific provision which requires the
Employer to assign the disputed work to its own em-
ployees, represented by the Glassworkers, if its em-
ployees would be idled by the partial shutdown for tank
repairs, as set forth, supra. The record herein show that
the Employer's employees would have been idled if
they were not assigned the disputed work as required
by the contract. The Employer has no contract with the
Laborers.
A national agreement exists between the Laborers'
International Union and Teichmann, upon which the
Laborers predicates a contractual claim to the work in
dispute. However, here it was PPG, not Teichmann,
that employed, paid, and supervised the laborers in-
volved.
Upon consideration of the various provisions, we
find that the foregoing agreements favor an award to
employees represented by the Glassworkers. The agree-
ment between the Employer and the Glassworkers di-
rectly pertains to the work in accordance therewith.
The national agreement between Teichmann and the
Laborers' International Union at most could be inter-
preted to mean that if Teichmann were to hire em-
ployees to do the disputed work, it would be required
to employ members of the Laborers. Since PPG hired
the bricklayer assistants in the instant case, the Labor-
ers contract has no bearing in this case.
tractors are hired, supervised, and paid by the contrac-
tor.
The Employer adduced testimony with respect to its
other facilities as well as plants of other employers in
the glass or container industry who maintain tanks of
similar purpose and' construction. The substance of
such testimony is that on almost all tank repair work,
of which the witnesses were aware, the contractor sup-
plied and hired the bricklayers and the owner of the
respective facility supplied the bricklayer helpers. Em-
ployer and industry practice, therefore, clearly favor an
award to the Glassworkers.
3. Relative skills
As heretofore noted, both Glassworkers and Labor-
ers have worked on the tanks and it appears that in-
dividuals represented by both of the Unions possess the
necessary skills to assist the bricklayers in repairing the
tanks. Therefore, the degree of skills is not a significant
factor herein.
4. Employer's preference
The Employer argues for an award to the Glass-
workers, who would otherwise be idled and thus avoid
dislocation and unemployment of its existing regular
work force. This consideration is another factor which
in our opinion supports an assignment to the Glass-
workers.
Conclusions
2. Company and area practice
It is clear that regarding the construction of new
tanks, the masonry contractor furnished all the labor
necessary,' and, in the construction of the No. 2 tank,
members of the Laborers assisted the bricklayers. On
all tank repairs, the policy, of the Employer has been
that the contractor supplied the bricklayers and the
Employer supplied the bricklayer helpers from that
part of its regular work force as was idled by the partial
shutdown for such repairs, unless factors cause such
otherwise idled employees to be absorbed in other con-
tinuing operations. It appears that employees repre-
sented by the Laborers Union were used only twice on
repairs in 1966 and on the composite crew in 1968.5
When PPG employees are used on repairs, as noted
above, they remain under PPG supervision and receive
wages and benefits in accordance with the collective-
bargaining agreement between the Employer and the
Glassworkers. Employees supplied by masonry con-
' Employer witnesses admitted that Respondent's members worked on
jobs in 1963, but asserted that this occurred only with respect to new
construction of the No 2 tank, and that only PPG employees worked as
bricklayer assistants that year on the repairs performed on the No. 1 tank.
Based upon the entire record, and after full consider-
ation of all relevant factors, particularly the bargaining
agreements, company, area, and industry practice, and
evidence of dislocation and unemployment of PPG's
labor force, we conclude that the employees repre-
sented by United Glass and Ceramic Workers of North
America, Local 180, AFL-CIO-CLC, are entitled to
the work in the dispute. Our present determination,
awarding the work to the employees who are repre-
sented by the Glassworkers, but not to that Union or
its members, is limited to the particular controversy
which gave rise to this proceeding.
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 hereby makes
the following Determination of Dispute:
1. Employees of PPG Industries , Inc., who are repre-
sented by United Glass and Ceramic Workers of North
America, Local 180 , AFL-CIO-CLC, are entitled to
perform the work of assisting bricklayers in connection
LABORERS, LOCAL 616 799
with cold tank repair work atthe Employer's Cumber-
land, Maryland , plant:
2. Laborers' International Union of North America,
Local 616, AFL-CIO, is not entitled,,by means pro-
scribed by Section 8(b)(4)(D), to force or require PPG
Industries , Inc., and/or Henry F. Teichmann, Inc., to
assign the above-described work to laborers repre-
sented by it.
3. Within 10 days from the date of this Decision and
Determination of Dispute, Laborers'. International
Union of North America, Local 616 , AFL-CIO, shall
notify the Regional Director for Region 5, in writing,
whether or not it will refrain from forcing PPG Indus-
tries , Inc., and/or Henry ,F. Teichmann , Inc., by means
proscribed in Section 8(b)(4)(D), to assign the work in
dispute to employees represented by it rather than to
employees represented by United Glass and Ceramic
Workers of North America , Local 180,' AFL-CIO-
CLC.