Glaziers Local 1778 Brotherhood of Painters, Etc.

GLAZIERS LOCAL 1778, BROTHERHOOD OF PAINTERS" ETC. 975 awarded the work. We would award the work in question as was done in Binswanger Glass. Co., Inc., supra, to inside glaziers employed by Pittsburgh Plate Glass Company, and represented under ..a collective-bargaining agreement by the Glaziers Union. Glaziers Local Union No. 1778, Brotherhood of Painters, Deco- rators and Paperhangers of America , AFL-CIO and Man- hattan Construction Company of Texas, Inc. and Binswanger Glass Co., Inc. Case No. 23-CD-48. June °L8, 1960 DECISION AND DETERMINATION OF DISPUTE STATEMENT OF THE CASE This is a proceeding under Section 10(k) of the Act following a charge filed by Binswanger Glass Co., Inc., herein called Binswanger, and Manhattan Construction Company of Texas, Inc., herein called Manhattan, against Glaziers Local Union No. 1778, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, herein called Local 1778 or the Respondent, alleging that the Respondent il- legally coerced' employers to change work assignments from one class of employees to another. A duly scheduled hearing was held before, Jerome L. Avedon, hearing ' officer, on October 31, 1961. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs filed by the parties have been considered. Upon the entire record, the Board makes the following findings : 1. The Employers Binswanger Glass Co., Inc., is a glass contractor, and Manhattan Construction Company of Texas, Inc., is a general contractor. Both these Companies operate in the State of Texas and during the year preceding the hearing each of them purchased good valued in excess of.$50,000 directly from out-of-State sources. We find that both Com- panies are engaged in commerce within the meaning of the Act. 2. The labor organizations The parties stipulated, and we find, that Local 1778 and Inter- national Hod Carriers Building and Common Laborers Union of America, Local Union No. 18, herein called Local 18, are labor. organi- zations within the meaning of the Act. 137 NLRB No. 101. 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The dispute The work dispute which gave rise to this proceeding occurred at Houston, Texas, where Manhattan, as general contractor, was engaged in constructing the Liberty-Lincoln Center, a 28-story office and hotel building. Binswanger was a subcontractor furnishing and installing window glass in very large quantities. Binswanger's work includes transporting crated glass, in boxes weighing 2 and 3 thousand pounds, to the jobsite, and installing the glass in the windows and outer walls of the building. Its employees are divided into two groups : glaziers, also called outside glaziers, who are skilled craftsmen and put the glass in its permanent position in the building structure; and inside work- ers, including warehousemen, drivers, glaziers (also called glass handlers), who, as a total group, fabricate and handle the glass at the Company's storage or factory, transport it in trucks to the con- struction sites, and place or spot it at the location in the structure where the outside glaziers unpack and install it. When the crated glass arrives at the job in Binswanger's trucks, it must be lifted to the successive floors and there moved on each level to the outer walls. In some cases it is raised by cranes or derricks; this work is performed by operating engineers, whose right to do the work is not in question. In other cases the crates are moved by hand from the trucks to temporary hoists, or elevators, standing on the edge of the structure. When it arrives at the designated level, whether by crane or elevator hoist, it is again moved by hand to its final loca- tion where the crates are opened by the outside glaziers and the glass installed. There is a slight but not important ambiguity in the record as to the precise extent to which the handwork of moving the crates from the arriving trucks to the building walls is in dispute. One of the claiming groups of employees is the outside glaziers, and clearly they claim the right to move the crates from the place where they first come to rest after being raised to the successive building levels out of the window frames or walls for installation. There is also indica- tion that the outside glaziers claim the work of moving the crates from the trucks to the hoisting elevators and off the elevators in those instances where derricks or cranes are not used. All this work, in- cluding the removal from the trucks and the moving about on the various building levels, always before the crates are opened, has long been performed by the warehousemen or glass handlers' group em- ployed by Binswanger. After the dispute between these two groups of its own employees erupted, and in the hope of avoiding a disruptive work stoppage, Binswanger started to use some of the laborers em- ployed by Manhattan, on a bill-back basis. Basically, however, the underlying dispute remained, and still exists, between the outside GLAZIERS LOCAL 1778, BROTHERHOOD OF PAINTERS, ETC. 977 glaziers and the warehouse workmen or glass handlers employed by Binswanger. All Binswanger employees who are involved in this case are rep- resented by Local 1778, but in two separate bargaining units, each covered by a separate bargaining agreement, one encompassing the out- side glaziers, and the other the warehousemen, laborers, truckmen, and/or glass handlers. Manhattan's laborers, whom Binswanger used only after the dispute arose and pending the hearing herein are rep- resented by Hod Carriers, Local 18, under contract between that union and Manhattan. Contention of the Parties Binswanger defends the assignment to its glass handlers or laborers no matter in whose direct employ, and requests an affirmative award continuing its chosen method, on the grounds that the work requires little skill, that its current assignment comports with provisions of both its contracts with Local 1778, and that it follows a widespread and well-established custom and practice in the industry. Manhattan, although not directly involved in the dispute, and Local 18, on behalf of the laborers in fact doing the work at the time of the events leading to the charge, adopt Binswanger's arguments. Respondent Local 1778 contends that the outside glaziers are en- titled to the disputed work because it was awarded to them by the National Joint Board for Settlement of Jurisdictional Disputes, Building and Construction Industry, because they have long asserted their right to do the work, and because on a number of construction jobs similar to the Liberty-Lincoln Center, their classification has in fact been assigned the work. Applicability of the Statute Local 1778's entire defense in this case is that whatever steps it took could not be called improper because it was entitled to press its claim on behalf of the outside glaziers. Thus the parties stipulated that Local 1778 took the following action to force Binswanger to take the work from the one group and give it to the glaziers. During July, Binswanger used its own glass handlers; the next delivery to the job was scheduled for July 25, and again glass handlers came with it. Local 1778 then threatened the Company with picketing unless out- side glaziers were used. The unloading was postponed. To avoid diffi- culties, Binswanger used Manhattan's laborers on a bill-back basis. On August 31 and September 6, Local 1778 picketed the jobsite and on September 7 it picketed Binswanger's office and warehouse. In addition to inducing the glaziers to cease work, the picketing also caused plasterers, lathers, and operating engineers to cease work. Fol- 649856-63-vol. 137-6.3 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lowing institution of an injunction proceeding in the Federal District Court, Local 1778 stipulated to discontinue all picketing until the dispute could be resolved in this proceeding. 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 a determination under Section 10(k) of the Act. Merits of the Dispute On due consideration of all the pertinent facts in the record, we are satisfied that the outside glaziers are not entitled to the disputed work and that the warehousemen, or glass handler group, is entitled to the assignment. An original intent by all parties that this moving and spotting of crated glass was to be done by the glass handlers is fairly indicated in the two contracts whose language pertaining to this point has long stood unchanged. Thus, the inside glaziers and warehousemen's con- tract covers "all work performed inside the warehouse and delivery of materials." Against this, the outside glaziers' agreement specifies "all work properly classified as outside glaziers' work and requiring glaziers' tools." With the precise object of having the work not in dispute done by outside glaziers, Local 1778's officers asked that these quoted phrases from the contracts be altered to provide for the assign- ment to the outside glaziers. The Company resisted, and when the last and current contracts were made in January 1961, the clauses re- mained unchanged, a conscious concession by Local 1778 that the cur- rent assignments were consistent with the contracts. It also appears quite clearly that the training and skills utilized by the outside glaziers bear little relationship to the work of hoisting and moving about crated glass. Outside glaziers pursue a 3-year appren- ticeship program and achieve journeymen status; they work with numerous tools, including cutters and special glazing tools. The han- dling of unopened large crates, on the other hand, is obviously the type of work traditionally performed by warehousemen, or plain stock "handlers." While in this instance a degree of skill is no doubt also required, it necessarily is of a kind unrelated to the use of special tools of the glazier craft. The record also shows that for years glass contractors in the Hous- ton area have assigned this kind of work to glass handlers or laborers without serious dispute. The president of Manhattan, the general contractor on this project, testified without contradiction that on 17 major construction jobs of that Company during the past 12 years, either ironworkers or laborers did all the glass hoisting. Witnesses for Binswanger and other glass subcontractors testified that outside glaziers do no more than 3 percent of all unloading and placing of glass handled by their companies. GLAZIERS LOCAL 1778, BROTHERHOOD OF PAINTERS, ETC. 979 On the question of custom or past practice, Local 1778's business agent asserted generally that he knew of several construction sites where outside glaziers had unloaded and spotted crated glass. More detailed questioning brought out that some of these instances involved buildings only a few stories high, where apparently the work of merely moving the glass was minor and of little importance. And one case was a jobsite 100 miles away from Houston, a distance making it im- practical for the Company to send two separate crews, one for un- loading and another for installing. A further explanation of why the practice generally has been to use warehousemen or glass handlers, and perhaps an added reason why an affirmative award to them now would be more logical, is a timing prob- lem for deliveries frequently encountered on large construction jobs like the one we are considering. It appears that in the Houston area generally the glass subcontractor is notified by the prime contractor as to when rigging groups or hoists will be available for limited periods of time for raising the crated glass and spotting it conven- iently. In order to integrate the function of the various subcontractors efficiently, therefore, in many instances the glass is delivered several days in advance of actual installation, and even placed where it will not interfere with other work. On such occasions, the outside glaziers are generally not at the jobsite at all. After the charge was filed in this proceeding, and after Binswanger had started to use Manhattan's laborers represented by Local 18, as a temporary expedient, the respective officers of the parent organiza- tions of Local 18 and Local 1778 submitted their dispute to the Na- tional Joint Board for Settlement of Jurisdictional Disputes, Build- ing and Construction Industry. The Joint Board rendered a decision on October 13, 1961, in which it assigned the work to "glaziers." It would appear, however, that the facts upon which the Company relied were not presented to or considered by the Joint Board. Moreover, the Joint Board was not confronted with and therefore did not pass upon, the underlying dispute now before us, which, as explained above, is between outside glaziers and inside glaziers or glass handlers. At best its award to "glaziers" is ambiguous, for the successful party dis- putant there was Local 1778, the representative of both groups of glaziers. In any event, our decision here is not inconsistent with the Joint Board's assignment to "glaziers." Upon the entire record, we shall determine the dispute by assigning the work in dispute to Binswanger's inside or warehousemen group of employees-whether called inside glaziers, drivers, helpers, or glass handlers.' In making this determination, we are assigning the work i Member Rodgers would assign the work in dispute not only to the inside glaziers or warehousemen group of employees , but also to the laborers represented by Hod Carriers, Local 18 980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to this group of employees represented by Local 1778, but not to Local 1778 or to its members. DETERMINATION OF DISPUTE On the basis of the foregoing findings, and upon the entire record in the case, the Board makes the following Determination of Dispute pursuant to Section 10(k) of the Act: Employees engaged as glass handlers are entitled to move to the construction elevator, hoist to the proper floor, and move from the ele- vator to various locations, crated glass on glass contracting jobs per- formed by Binswanger in the Houston, Texas, area. Accordingly, Local 1778 is not entitled to force or require Binswanger, by means proscribed by Section 8(b) (4) (D) of the Act, to assign the work to outside glaziers. Within 10 days of the date of this Decision and Determination of Dispute, Glaziers Local Union No. 1778, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, shall notify the Regional Director for the Twenty-third Region, in writing, whether or not it will refrain from forcing or requiring Binswanger Glass Com- pany, Inc., by means proscribed by Section 8(b) (4) (D), to assign the work in dispute to outside glaziers. American Compress Warehouse , Division of Frost-Whited Com- pany, Inc. and United Packinghouse, Food and Allied Work- ers, AFL-CIO. Cases Nos. 15-CA-1998 and 15-CA-2000_ June 28, 1962 DECISION AND ORDER On March 22, 1962, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report together with supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. 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 Intermedi- ate Report and the entire record in this case, including the exceptions 137 NLRB No. 111.