Glaziers Glass Workers, Etc., Local Union 1778

968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Local 1325, Retail. Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discharging Joseph Jesus on July 15, 1961, thereby discriminating in regard to his hire and tenure of employment and discouraging union activities among its employees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act. 3. By interfering with, restraining, and coercing ,its employees in the exercise of the rights guaranteed to them in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair .labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Glaziers Glass Workers and Glass Warehouse Workers, Local Union No. 1778, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO and Local Union No. 18, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO and Pittsburgh Plate Glass Com- pany. Case No. 23-CD-51. June 28, 1962 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act following a charge filed by Pittsburgh Plate Glass Company, herein called Pitts- burgh or the Employer, against Glaziers Glass Workers and Glass Warehouse Workers, 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 coerced employers to change work assignments from one class of employees to another. A duly scheduled hearing was held before Rodney L. Reagan, hearing officer, on February 16, 1962. Local 1778 and the Employer 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 Employer Pittsburgh Plate Glass Company is a glass manufacturer and con- tractor engaged in the sale and installation of glass in the State of Texas. At Houston, Texas, it annually receives products from other 1 Local Union No. 18, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, herein called Local 18, a party in interest, was served with the formal papers but did not' appear or, participate at the hearing. . 137 NLRB No. 115. GLAZIERS GLASS WORKERS, ETC., LOCAL UNION 1778 969 States valued in excess of $100,000. We find that Pittsburgh is en- gaged in commerce within the meaning of the Act. 2. The labor organizations The parties stipulated and we find that Local 1778 and Local 18 are labor organizations within the meaning of the Act. 3. The dispute a. The work in dispute The work dispute which gave rise to this proceeding occurred at Houston, Texas, where Pittsburgh, as a glass subcontractor, is engaged in the supply and installation of glass at the Humble Oil and Refining Company building, a multistoried office structure in process of con- struction. Pittsburgh's operation in this area includes transportation of crates of glass, weighing approximately 2,000 pounds, to the job- site, and installation of the glass in the windows and outer walls of the buildings. Among its employees are three distinct groups: (1) outside glaziers, skilled craftsmen who put the glass in its permanent position in the building structure; (2) inside glass workers, including warehousemen, drivers, inside glaziers, and glass handlers, who, as a total group, fabricate and handle the glass at the Employer 's local warehouse or factory and transport it in trucks to the construction sites; and (3) laborers, who do manual work at the construction site, including the handling of crated glass. When the crated glass arrives at the jobsite, it must be lifted to the successive floors or levels and there moved on each level either to the outer walls preparatory to installation or to some storage area where the crates will not interfere with the work of other subcon- tractors. In some instances, the crates are raised by cranes or der- ricks operated by operating engineers assisted by ironworkers; the right of operating engineers and ironworkers to do this 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 the glass arrives at the designated level, whether by crane or elevator hoist, it is again moved by hand to its final location where the crates are eventually opened by the outside glaziers and the glass installed. The record as made in this proceeding shows clearly that the work in dispute covers the moving of the crates from the point where they are deposited by cranes, or where they leave the hoists, to the installa- tion location or to other temporary resting places on the project. It appears, both from some indications contained in this record and from undisputed facts shown in a companion case mentioned below, 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the dispute may extend to the work of removing the crates from vehicles which bring them to the jobsites. Pittsburgh deals with two unions with respect to these employees. Local 1778, the Respondent here, represents the first two groups- outside glaziers and the comprehensive warehousemen, deliverymen, and glass handling workers-with a separate contract covering each unit. The unit coverage of the first agreement reads : "All work prop- erly classified as outside glaziers' work and requiring glaziers tools." The counterpart language of the second agreement extends to "all work performed inside the warehouse and delivery of materials." As to the third group-the laborers-they are taken on by the company as the need of a particular project requires by calling the Local 18 hall and they work intermittently only when there is work for them. The two contracts with Local 1778 are of long standing and, so far as the quoted recognition language is concerned, have remained un- changed for a number of years. This union's demand that the dis- puted work be assigned to the outside glaziers grew out of the greatly increased use of glass in large building construction in recent years. It had become a bone of contention before the last contracts expired in the fall of 1960. In the bargaining negotiations which ensued, Local 1778 demanded that the pertinent language be modified so as to make this work part of the duties and responsibilities as well as a right of outside glaziers. The company refused to agree and when the contracts were renewed in January 1961, they remained unchanged in this respect. Pittsburgh, after the new contracts were signed, started work on the Humble Oil building using laborers called individually from Lo- cal 18 to move the crated glass about on the construction floors. Local 1778 protested this action by the Company and, in consequence, the Company on June 13, by formal letter to Local 18, assigned the work to Local 18's members. On July 17, and again on December 8, 1961, Local 1778 picketed the project with the result that carpenters and ironworkers walked off the job. The Respondent admits that the object of the picketing was to force Pittsburgh to assign the work to the outside glaziers. b. Contentions of the parties Pittsburgh defends its past practice of assigning the work to un- skilled employees other than outside glaziers, and requests an affirma- tive award consistent with such continuing assignment, on the grounds that it is justified by past custom and practice, by the existing con- tracts, by pertinent skills, and by logical economic considerations. Local 1778 rests its claim for the work on an assertion that in the past it has been done by outside glaziers, and on the basis of an award made by the National Joint Board for the Settlement of Jurisdictional GLAZIERS GLASS WORKERS , ETC., LOCAL UNION 1778 971 Disputes in the Building and Construction Trades Industry, in a com- parable situation . The Respondent also moved to quash the notice of hearing on the ground that the failure of Local 18 to appear at the hearing precludes a finding that there are two competing groups of employees claiming the work in dispute. Although Local 18 was served with notice of hearing, it entered no appearance at the hearing. c. Applicability of the statute The evidence directly shows and the Respondent admits that it in- duced employees to cease work in order to force the Company to change work assignments from one class of employees to another. On its face, this conduct appears to be a direct violation of Section 8(b) (4) (D) ,of the Act, as alleged in the charge 2 The argument that the record nevertheless does not suffice to establish the existence of a juris- dictional dispute cognizable under Section 10(k) rests squarely upon a purported analogy to the Board's decision in Safeway Stores, Incorporated.' For the reasons expressed in their dissenting opinion in that case, Members Rodgers and Leedom find no merit in this contention. More- over, in view of the evidence in this and the related Glaziers Local Union No. 1778, etc. (Manhattan Construction Company of Texas, Inc., and Binswanger Glass Co., Inc.) case,' establishing the existence of a current continuing dispute between outside glaziers represented by Local 1778 and all other employees, there is in their opinion a cognizable jurisdictional dispute even under the views expressed by the majority in Safeway Stores and similar cases.' Accordingly, we find that there is reasonable cause to believe that a violation of Section 8(b) (4) (D) has occurred, and that a jurisdic- 2 For this reason Member Fanning agrees that a jurisdictional dispute is properly be- fore the Board. See his concurring opinion in Highway Truckdravers & Helpers, Local 107, International Brotherhood of Teamsters, etc (Safeway Stores, Incorporated), 134 NLRB 1320. Section 8(b) (4) (D) provides as follows: (4) (1) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, trans- port, or otherwise handle or work on any goods, articles, mateilals, or commodities or to perform any services, or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is: t s s a a s x (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determin- ing the bargaining representative for employees performing such work: 6134 NLRB 1320 4 137 NLRB 975 6 E.g, Sheet Metal Workers, International Association, Local Union No. 272, etc. (Valley Sheet Metal Company), 136 NLRB 1402; Brotherhood of Teamsters and Auto Truck Drivers, Local 70, etc. (Hills Transportation Co.), 136 NLRB 1086. 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional dispute is properly before the Board for determination under Section 10 (k) of the Act. d. Merits of the dispute In terms of the Respondent's claim for work on behalf of outside glaziers against any and all other employees, this is essentially the same dispute decided by the Board in the companion Binswanger case, and for the same relevant factors considered and found persuasive there, we reach the same conclusion here and find that the outside glaziers are not entitled to the disputed work. The skills required for moving such heavy crates from place to place bear virtually no relationship to the craft experience acquired and exercised in practicing the true glaziers' art. The outside glaziers are required to and in fact do use tools such as chisels, hammers, hack- saws, files, and plumb bobs. Against all this, the moving of heavy crates falls squarely within the usual duties of laborers and warehouse- men. More, the collective-bargaining agreement applicable to out- side glaziers is in words limited to "all work properly classified as out- side work and requiring the use of glaziers tools." (Emphasis sup- plied.) The very attempt by Local 1778, albeit unsuccessful, to alter this language in furtherance of its attempts to obtain the disputed work for outside glaziers seems to remove any doubt that as the contract stands, it does not cover that work. On the question of practice and custom in the industry or in the Houston area, said by each party to lead to different conclusion, the evidence is conflicting. The Company concedes that there have been times when it did use outside glaziers to move crates about, but it ex- plains this as occasioned by the smallness of a job, the unavailability of unskilled laborers at a given place or moment, and as a thing more and more of the past, now that increasing amounts of glass are being used in large buildings. It is clear that the Company has in fact used laborers from Local 18 in large measure. To the contrary, Mr. Ayo, a job foreman and witness for Local 1778, testified about three projects, including the Humble Oil building, where he said outside glaziers were used extensively. In some details, his recital ran counter to company records introduced into evidence. He also erred in some dates and his statement of facts was in a num- ber of material respects squarely contradicted by an opposing witness. Finally, Mr. Herman, of the Binswanger Glass Company, and Mr. Rubin, president of the Rubin Glass Company, both operating in the Houston area, testified that unskilled laborers have been used ex- tensively on this type of work on their projects. It is unnecessary for our purposes in this proceeding to reconcile these conflicting assertions relating to the extent to which various categories of employees have done this work. Understandably wit- GLAZIERS GLASS WORKERS, ETC., LOCAL UNION 1778 973 nesses could err on details or be overenthusiastic for their cause. At best, either version of past practice fails to prove consistent and wide- spread assignment to either group. As the Respondent admits in its brief "it would seem fair to state that no absolute clearcut assignment has evolved from past practice." Equally unpersuasive is Local 1778's reliance upon a decision of the National Joint Board for Settlement of Jurisdictional disputes. The reference on this point is to the Joint Board decision in the Bins- wanger dispute and found inconclusive by us in that case. The Joint Board there awarded this type of work to the "glaziers." As presented to the Joint Board, the dispute was phrased as a quarrel between Local 1778 and Local 18, although, in fact, the underlying work dispute was between outside glaziers on the one hand and all other nonskilled categories. The award of the Joint Board made to the "glaziers" did not truly address itself to the real dispute we are here appraising. Upon the entire record, we shall assign the disputed work to the laborers and inside glaziers whether represented by Local 18 or by Local 1778 under its collective-bargaining agreement covering inside warehouse employees.6 In making this determination we are assigning the work to this group of employees represented by Local 18 or by Local 1778, but not to the Unions themselves or their members. Our assignment is to be regarded, moreover, as limited to the parties, the facts, and the particular circumstances of the controversy which gave rise to these proceedings. Also, in view of our assignment, we shall provide that Local 1778 was not, and is not entitled to use methods proscribed by Section 8(b) (4) (D) of the Act to force or require Pittsburgh to assign the disputed work to its members who are outside glaziers rather than to laborers. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following Determination of Dispute pursuant to Section 10 (k) of the Act : 1. Laborers and inside glaziers represented by Local Union No. 18, International Hod Carriers, Building and Common Laborers Union ,of America, AFL-CIO, or by Glaziers Glass Workers and Glass O We do not agree with our dissenting colleagues that the work should be assigned solely to the inside glaziers During the past several years laborers represented by Local 18 have performed a major portion of this work while during this same period the inside glaziers covered by the contract with Local 1778 have been used to a much lesser extent. Unlike our colleagues we are not prepared to disregard several years' tradition and allow the language of the contract to be controlling especially as this issue was not in fact litigated at the hearing We likewise disagree with our colleagues' reliance on Local 18's "apparent acquiescence" in the Joint Board decision relating to the Binswanger case. The express language of the Joint Board in that dispute limits its award to the "particular facts and evidence before it" and "shall be effective on this particular job only " In such a circumstance, the Board should not presume that the Joint Board would arrive at the same conclusion on facts admittedly at variance with the facts in the Benswanger dispute. 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Warehouse Workers, Local Union No. 1778, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, are entitled to perform the work of handling and spotting of crated glass on con- struction jobsites in the Houston, Texas, area, where Pittsburgh Plate Glass Company is the glass subcontractor. 2. Glaziers Glass Workers and Glass Warehouse Workers, Local Union No. 1778, Brotherhood of Painters, Decorators and Paper- hangers of America, AFL-CIO, is not and has not been lawfully entitled to force or require Pittsburgh Plate Glass Company to assign the work of handling and spotting crated glass to employees engaged as outside glaziers who are currently represented by Local 1778. 3. Within 10 days from the date of this Decision and Determination of Dispute, Glaziers Glass Workers and Glass Warehouse Workers, 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 Pittsburgh Plate Glass Com- pany, by means proscribed by Section 8 (b) (4) (D), to assign the work in dispute to outside glaziers rather than to laborers. CHAIRMAN MCCULLOCH and MEMBER BROWN, dissenting : We cannot agree with our colleagues that they are resolving "the underlying jurisdictional dispute" in this case. On the contrary, the decision disregards the Hod Carriers apparent acquiescence in the decision of the National Joint Board for Settlement of Jurisdictional Disputes in the Building and Construction Industry, as well as our finding in Glaziers Local Union No. 1778 etc. (Manhattan Construc- tion Company of Texas, Inc. and Binswanger Glass Co., Inc.), 137 NLRB 975, and it awards the work to "laborers" represented by either the Respondent Union or the Hod Carriers. Such an award allows the employer to determine which of two competing groups shall be assigned the work. As the Supreme Court stated in N.L.R.B. v. Radio c Television Broadcast Engineers Union Local 1212, etc. (Columbia Broadcasting System), 364 U.S. 573, 579: ... Section 10(k) requires the Board to decide jurisdictional disputes on their merits. . . . The language of Section 10(k) supplementing Section 8(b) (4) (D) as it does, sets up a method adopted by Congress to try to get jurisdictional disputes settled. The words "hear and determine the dispute" convey not only the idea of hearing but also the idea of deciding a controversy. [Emphasis supplied.] Leaving two competing unions both entitled to the work in dispute does not appear to be "deciding a controversy" as the Supreme Court indicated. Rather, it appears to leave each of the two unions free to demand the work for its members and to strike and picket if not 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 28, 1962 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.