Intl. Un. of Operating Engineers, Loc. 66

National Labor Relations Board - Board DecisionsJun 30, 1975

218 N.L.R.B. 1260 (N.L.R.B. 1975)

1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local 66, AFL-CIO and Brockway Glass Company , Inc. and Glass Bottle Blowers Association of the United States and Canada , Local 110, AFL-CIO. Case 6- CD-559 We find that Brockway is engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED June 30, 1975 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Brockway Glass Company, Inc., on February 21, 1975, alleging that International Union of Operating Engineers, Local 66; AFL-CIO, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Brockway to assign the work in dispute to employees represented by Local 66, Operating Engineers, rather than to employees represented by Glass Bottle Blowers Association of the United States and Canada, Local 110, AFL-CIO. A hearing was held on March 26, 1975, before Hearing Officer F. J. Surprenant. Although all parties were afforded full opportunity to appear at the hearing, to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues, Local 66 failed to make an appearance.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The rulings of the Hearing Officer are free from prejudicial error and are hereby affirmed. None of the parties to this proceeding filed briefs. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE COMPANY Brockway is -a New York corporation engaged in the manufacture of glass products in several States. Its plant in Crenshaw, Pennsylvania, is the only plant involved here. It was stipulated that during the past 12 months Brockway has purchased goods and materials in excess of $50,000, from directly outside the Commonwealth of Pennsylvania for use at the Crenshaw, Pennsylvania, plant. Prior to the hearing, counsel for Local 66 requested that the Hearing Officer receive into evidence a copy of a telegram from Local 66 to the Employer dated February 24, 1975, in which Local 66 asserted that its picketing was informational and that it did not seek to have its members replace employees engaged in the disputed work . The Employer acknowl- 218 NLRB No. 190 It was stipulated and we find that International Union of Operating Engineers, Local 66 , AFL-CIO, and Glass Bottle Blowers Association of the United States and, Canada, Local 110, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute In mid-February 1975, Brockway began work on relining a glass-melting furnace at its Crenshaw plant 2. The work, which is required every 7 or 8 years and necessitates shutting down the plant, involves the replacement of refractories that are washed or worn away during the glass-melting process . Brockway uses forklift trucks to deliver necessary material to the actual repair area. Brockway assigned the operation of the forklift trucks to the plant employees who normally operate the forklifts during the regular operation of the plant.2 These employees are repre- sented by Local 110, Glass Bottle Blowers Associa- tion. On February 19, Local 66 Business Agent Lester Smiley arrived at the office of Delbert Truesdale, Brockway's chief engineer. Smiley asked Truesdale if the Operating Engineers could be given the forklift work. When told that Brockway felt obligated to continue to give the work to Local 110, Smiley indicated his displeasure with the decision and told Truesdale that he intended to contact the area representative for the Glass Bottle Blowers to discuss the matter further. Early on the morning of Friday, February 21, Local 66 began picketing Brockway's Crenshaw plant number 2 with signs stating that Brockway was "undermining area standards and working condi- tions" of Local 66 members. Employees of a plumbing contractor who had been working in the plant left the plant premises when informed of the picketing. Later on the morning of the 21'st, Brock- way's industrial relations manager, Stanley Van Deventer, was present when Smiley told a Pennsyl- vania State trooper in response to a question concerning the purpose of the picket line: "We feel edged receipt of the telegram and it was received into evidence. 2 In addition to using plant employees for the relining work, the Employer assigns some of the work to outside contractors particularly when special skills are required. INTL. UN. OF OPERATING ENGINEERS, LOC. 66 1261 we have jurisdiction over certain jobs being per- formed in the plant." There was no picketing at the plant on February 22 or 23, but the pickets returned on Monday, February 24. On that day Smiley informed a group of sheet metal workers who were deciding whether or not to cross the picket line that the forklift operators were doing work that belonged to the Operating Engi- neers . The Local 66 pickets also told Matthew Verne, chairman of Local 110, that the Operating Engineers believed it had jurisdiction over the forklifts. On February 24, the plumbers and sheet metal workers failed to report to work at the Brockway plant. There has been no picketing at the plant since that date. B. The Work in Dispute The work in dispute is the operation of forklift trucks used to deliver both materials and equipment in the relining project at Brockway's plant 2, Crenshaw, Pennsylvania. work to members of Local 66. When the Employer declined to make this change in assignment, Local 66 picketed the Employer's Crenshaw plant. There is testimony that on several occasions pickets informed employees of subcontractors that work that belonged to the Operating Engineers was being performed by other employees. As a consequence of the picketing, plumbers and sheet metal workers employed by subcontractors refused to enter or to remain on the Employer's premises. Under all the circumstances, we conclude that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated.3 With respect to whether or not there is an agreed- upon method of resolving the dispute, we note the uncontroverted testimony of the Employer's manag- er of industrial relations that the Employer has no agreement with any party that would require that the dispute be submitted to any private settlement proceeding. Accordingly, we find that there is no agreed-upon method for resolving the dispute and that the dispute is properly before the Board for determination. C. The Contentions of the Parties Brockway and Local 110 contend that the disputed work belongs to employees represented by Local 110 by virtue of past practice , the collective-bargaining agreement between Brockway and Local 110, and the skills of employees represented by Local 110. As indicated previously , Local 66 failed to enter an appearance at the hearing or to submit a brief thereafter, but it did seek to have introduced into evidence a telegram stating that its picketing was purely informational. D. Applicability of the Statute Before the Board may proceed to a determination of a dispute under Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and that there is no agreed-upon method , which is binding on all parties, for the voluntary adjustment of the dispute. The record shows that the Employer assigned the disputed work at its Crenshaw plant to employees represented by the Glass Bottle Blowers in February 1975 . Shortly thereafter, Respondent's business agent asked the Employer 's chief engineer to assign the 3 As indicated previously , Respondent did not appear at the hearing but did seek to have its February 24 telegram to the Employer introduced into evidence. In its telegram Respondent stated that it did not with the employees currently doing the work removed from their jobs . Respondent further asserted that its picketing was informational and that picketing would continue until the Employer gave assurances that it was paying "prevailing construction rates of pay and fringe benefits to the employees now performing the construction work ..... Apparently Respondent would contend that by this telegram it had effectively disclaimed interest in E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to all relevant factors. The following factors are relevant in determining the dispute before us.4 1. Relevant collective-bargaining agreements The Employer contends that article 34, section 1, of the current companywide collective-bargaining agreement between Brockway and the Glass Bottle Blowers Association requires assignment of the disputed work to employees represented by Local 110. Although article 34, section 1, does not specifically set out the work jurisdiction of the Glass Bottle Blowers, it does provide that the Company will not sublet contracts for maintenance, repair, and other work if bargaining unit employees can perform the work "satisfactorily and economically." The Employer also maintains that provisions of a local supplement to the collective-bargaining agree- ment dealing specifically with transfers and seniority rights indicate that work done in connection with the relining operation is the work of Local 110. The the work. Under the circumstances of this case, we are satisfied that any such contention lacks meet. See Sheet Metal Workers International Association Local Union No 420, AFL-CIO (Rusco Building Systems), 198 NLRB 1207 ( 1972), and cases cited therein. 4 NLRB. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S: 573, 586 (1961); International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402, 1411(1962). 1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer also noted that it has no current collective- bargaining agreement with the Operating Engineers. 2. The Employer's assignment and preference The Employer assigned the work in dispute to members of the Glass Bottle Blowers Association, and it is clear that the Employer wishes to continue this assignment of the work. 3. The Employer's practice The Employer's chief engineer testified that since 1961 or 1962 there have been a number of relining operations at Brockway's plants I and 2. He could recall no instance when the operation of forklift trucks in connection with this repair work was not performed by regular plant personnel, and in the case of plant 2 by plant personnel who were members of Local 110 and operated the forklift trucks during the regular operation of the plant. This testimony was corroborated by Robert Marti- ni, the Employer's personnel manager at plant 2, and by James Smith, the assistant manager at plant 2. Martini testified that in 1972, when relining was last required at plant 2, the work of operating the forklift trucks was assigned to employees represented by Local 110. Neither Martini nor Smith could recall a single instance when such work was assigned to employees other than those represented by the Glass Bottle Blowers. 4. Skills and the work involved As indicated previously, employees represented by Local 110 operate the forklift trucks during the normal operation of the plant. Uncontradicted evidence in the record establishes that a lesser degree of skill is involved in operating the forklift trucks during the relining process because this is largely a "lift and move activity" that does not require the forklift operator to stack materials. No evidence was introduced as to the skills or ability of Local 66 members to operate the forklift equipment and to perform the work in dispute. 5. Efficiency and economy of operations The Employer maintained at the hearing that factors of efficiency and economy support assign- ment of the disputed work to employees represented by the Glass Bottle Blowers. In this regard, the Employer notes that it enjoys greater flexibility and saves time by assigning the forklift operation to these employees because when they are not operating the forklift trucks they can be assigned to other work that they normally perform at the plant. Conclusion Upon consideration of all relevant factors, we conclude that the Employer's employees who are represented by Local 110, Glass Bottle Blowers Association, are entitled to the work in dispute. We reach this conclusion upon the Employer' s assign- ment of the disputed work to these employees and the facts that the assignment is consistent with the Employer's practice, that employees represented by Local 110 possess the requisite skills to perform the work, and that such an assignment will apparently result in greater efficiency and economy of opera- tions. Accordingly, we shall determine the dispute before us by awarding the work in dispute at the Employer's plant 2, Crenshaw, Pennsylvania, to those employees represented by Local 110, but not to that Union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and on the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: 1. Employees of the Brockway Glass Company, Inc., who are currently represented by Glass Bottle Blowers Association of the United States and Canada, Local 110, AFL-CIO, are entitled to perform the work consisting of the operation of forklift trucks used to deliver material and equipment in the relining project at Brockway's plant 2, Crenshaw, Pennsylvania. 2. International Union of Operating Engineers, Local 66, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Brockway Glass Company, Inc., to assign the disputed work described in paragraph I of this Determination of Dispute to employees represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Union of Operating Engineers , Local 66, AFL-CIO, shall notify the Regional Director for Region 6, in writing, whether or not it will refrain from forcing or requiring Brockway Glass Company, Inc., by means proscribed by Section 8(b)(4)(D) to assign the above- described disputed work to employees represented by it rather than to employees represented by Glass Bottle Blowers Association of the United States and Canada, Local 110, AFL-CIO.