Iron Workers Local Union No. 167

IRON WORKERS LOCAL UNION NO. 167 457 Iron Workers Local Union No. 167, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Binswanger Glass Com- pany) and Glaziers & Glass Workers Local Union No. 242 of the National Brotherhood of Painters & Allied Trades, AFL-CIO. Case 26-CD-98 Glass Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATIONS INVOLVED November 20, 1973 DECISION AND DETERMINATION OF ` DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by the Glaziers & Glass Workers Local Union No. 242 of the National Brotherhood of Painters & Allied Trades, AFL-CIO, herein called Local 242, alleging that Iron Workers Local Union No. 167, International Association of Bridge, Struc- tural and Ornamental Iron Workers, AFL-CIO, had violated Section 8(b)(4)(D) of the Act. Memphis Glass Contractors, a multiemployer group to which Binswanger Glass Company belongs, intervened in these proceedings. Pursuant to a notice of hearing, a hearing was held in Memphis, Tennessee, before Hearing Officer C. L. Moser on May 15, 1973. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence bearing on the issues. 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 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. 1. THE BUSINESS OF THE EMPLOYER The parties stipulated and we find that Binswanger Glass Company is a Virginia corporation with offices and places of business located in various States of the United States, including Memphis, Tennessee. Bin- swanger Glass Company is engaged in the sale and installation of building glass and aluminum and during the preceding 12 months, a representative period, has purchased goods valued in excess of $50,000 that were shipped directly to its Tennessee facilities from outside the State of Tennessee. The parties stipulated and we find that Binswanger 1 Art. I, sec. 2 of the agreement between Local 242 and the Memphis Glass Contractors provides "The work covered by this Agreement coming under the jurisdiction of Glaziers' Local Union No 242 shall consist of .. . 207 NLRB No. 56 The parties stipulated, and we find, that Iron Workers Local Union No. 167, International Associ- ation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, and Glaziers & Glass Workers Local Union No. 242 of the National Brotherhood of Painters & Allied Trades, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts Binswanger Glass Company has received a cori- tract in the amount of $320,000 from Allen & O'Hara, Inc., the general contractor on the Cook, Treadwell and Harry Building, herein CTH Building, in Memphis, Tennessee, for the installation of the building's curtain wall. Curtain wall technically is described as any framing system which passes the spandrel section of a building; it is more simply referred to as the external skin of a building. The work involved consists of affixing metal rods or frames to the structural members of the building and inserting glass into the metal frame. Only the installation and rigging of the metal framework is in dispute. Ironworkers concedes that the work of inserting glass panels into the frames belongs to the glaziers. There is no evidence on the record that the Employer has made a specific assignment of the work to any employees represented by a particular union. Nevertheless, it appears most likely that the Employer will assign the work to the Glaziers and all parties appear to agree with this assumption. In this regard the Employer is a member of Memphis Glass Contractors, a multiemployer group which has signed a contract with Local 242 providing all curtain wall work within the geographical jurisdic- tion of Local 242 will be assigned to members of Local 242.1 Also, the Employer has for several years routinely assigned curtain wall work to it's employees who are members of Local 242. Moreover the Iron Workers had three representatives speak to Employ- er's contract manager and another representative to the Employer to "protect the interest of the Iron Workers" in the CTH curtain wall, demonstrating its the fabrication (when installed by Glaziers employed by Employer) and installation of all glazing either in shop or jobsite. in connection with Curtain Wall. .11 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD belief that it would not be awarded the job by Binswanger. The International Association of Bridge, Structural and Ornamental Iron Workers signed an agreement with the Brotherhood of Painters, Decorators and Paperhangers of America in 1961, herein the 1961 Agreement, which provides in pertinent part that the installation of metal curtain wall construction is the work of the Iron Workers while the installation of glass panels is the work of the Glaziers.2 Several employers including Binswanger are signatories to the 1961 Agreement. The 1961 Agreement provides a method for the settlement of disputes which is binding on both Internationals but is not binding on any of the employer signatories.3 Local 242 has never honored the 1961 Agreement even though the Glaziers International has therefor, in the past, threatened to recall Local 242's charter. At the aforementioned meeting between the Iron Workers and Binswanger, the Iron Workers stated that if Binswanger does not award the curtain wall work to it, then it would have no recourse but to apply pressure on the various contractors including Allen & O'Hara. B. The Work in Dispute The work in dispute involves the installation of framing required for the erection of curtain wall on the CTH Building in Memphis, Tennessee. C. Contentions of the Parties Local 242 contends that the curtain wall installa- tion in dispute should be awarded to it pursuant to the current collective-bargaining agreement between that Union and the Memphis Glass Contractors. The Charging Union further asserts that it has never honored the 1961 Agreement between its Interna- tional and that of the Iron Workers granting the installation of the metal portion of a curtain wall to the Iron Workers, and that curtain wall-composed normally of 90 percent glass and 10 percent metal- -historically and traditionally is within the Glaziers jurisdiction. Finally, the Glaziers asserts that it would be more efficient to use glaziers for curtain wall construction. 2 The 1961 Agreement provides in pertinent part: This section is confined to the installation of metal curtain-wall construction of all types. Metal curtain-wall construction is defined to be any framing system which passes the spandrel section on a building. The installation of metal curtain-wall construction is the work of Iron Workers. This section is confined to the installation and sealing of panels used in connection with curtain-wall construction. (a) The installation of metal panels is the work of the Iron Workers. The application of Thiokol, Meoprene or other patented sealants, when used to seal metal to metal surfaces , is the work of Iron Workers. The Employer's position is basically the same as that of the Glaziers Union, namely, both by years of past practice and by reason of the agreement between the Memphis Glass Contractors and Glazi- ers Local 242, it must assign curtain wall work to the Glaziers. The Iron Workers contends conversely that (1) there was an agreed-upon method of adjustment as to disputes over the installation of curtain wall in the 1961 Agreement to which all parties are bound, and that it considers Glaziers Local 242 bound by the 1961 Agreement between the International Unions, and (2) the installations of curtain wall is commonly done by ironworkers. Further, it is contended that Binswanger does not normally do curtain wall installations, but contracted that type of work to subcontractors who used ironworkers: D. Applicability of the Statute The charges herein allege a violation of Section 8(b)(4)(i) and (ii)(D) of the Act. The facts show that the Employer takes the position that it must assign the work to its employees who are members of, or are represented by, Local 242. The Iron Workers demands, however, that the Employer refrain from assigning the work to members of Local 242 and assign it, instead, to its members. In support of its demand, the Iron Workers threatened to refuse to perform ironwork at the jobsite. Accordingly, we find that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. Contrary to the contention of the Iron Workers, the 1961 Agreement does not provide a voluntary method of dispute settlement within the meaning of Section 10(k). It is well settled that a proceeding under Section 10(k) of the Act is not precluded where two unions have agreed upon a voluntary method of settlement but where the employer has not joined the agreement. N.L.R.B. v. Plasterers' Local Union No. 79, 404 U.S. 116 (1971); Kahoe Air Balance Co., 197 NLRB 159; Telander Bros. Contractors, Inc., 196 NLRB 119. Even assuming that Local 242 is bound by the 1961 Agreement, Binswanger Glass is not bound to the voluntary method of dispute settlement provided by section X of the 1961 Agreement.4 First, Binswanger expressly did not agree to be bound by section X. (b) The installation of glass panels is the work of the Glaziers. The application of Thiokol, Neoprene or other patented sealants, when used to seal glass to metal surfaces, is the work of Glaziers. See discussion, infra. Sec. X of the 1961 Agreement is as follows: If a dispute should arise over the interpretation of application of this agreement, the two business agents of the respective unions shall make a conscientious endeavor to settle the dispute locally. Should the business agents fail to consummate a satisfactory understanding, they shall immediately draw up a joint letter describing the disputed work, including pictures and blue prints of the work in dispute, sign the same 3 a IRON WORKERS LOCAL UNION NO. 167 459 The stipulation to the 1961 Agreement signed by various glass and glazing companies expressly pro- vides that "the contractors shall not be bound by the provisions or procedures of Section X of the Agreement." 5 Second, even if Binswanger is a member of the National Joint Trade Board of the Glass and Glazing Industry which signed a separate agreement with the International Association of Bridge, Structural and Ornamental Iron Workers providing that the National Joint Trade Board of the Glass and Glazing Contractors shall assign work in accordance with sections 1-IX of the 1961 Agree- ment, there is no mention of the National Joint Trade Board binding the contractors to section X.6 Since the parties have not provided any evidence that Binswanger agreed with Local 242 and the Iron Workers on a voluntary method of dispute settlement within 10 days after notice that the charge had been filed,7 the Board is empowered and directed to hear and determine the dispute.8 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 involved. The following are relevant in making a determination of the dispute before-us. 1. Certifications and collective-bargaining agreements There is no evidence that either of the labor jointly, and forward copies to the Presidents of their respective international unions. Disputes forwarded to the respective General Presidents shall be referred to a designated representative for immediate adjustment. In any case where the representatives appointed by the General Presidents to adjust the dispute fail to arrive at a satisfactory disposition in a reasonable period of time, the dispute will be resolved in the following manner. In localities where recognized plans exist as per Article IV, Section I of the "Green Book" amended January, 1958, they shall prevail; otherwise, the dispute will be immediately referred to the National Joint Board for the Settlement of Jurisdictional Disputes. There shall be no stoppage of work while the dispute is in process of settlement. Committees designated by the respective General Presidents shall meet periodically to review work covered by this agreement and to consider new problems which arise in order to adjust same- 5 The Stipulation in full is: The undersigned contractors, on behalf of themselves and as contractors affiliated with the National Joint Trade Board of the Glass and Glazing Industry, will assign work covered by Section I-IX of the agreement of February 22, 1961 [the 1961 Agreement], between the Brotherhood of Painters, Decorators and Paperhangers of America and the International Association of Bridge, Structural and Ornamental Iron Workers, in accordance with the provisions of Sections I through IX of the agreement. It is agreed that when a request is made of a contractor by either Union, for an assignment on a particular job, the contractor shall make such assignment within three (3) working days from date of the request. It is further stipulated that the contractors shall not be bound by the provisions or the procedures of Section X of the Agreement. 6 This agreement provides: organizations involved herein has been certified by the Board as the collective-bargaining representative for a unit of the Employer's employees. Although signatory to the 1961 Agreement between the Iron Workers and Painters Internationals, there is no evidence that the Employer has ever employed individuals represented by Iron Workers. The Em- ployer is currently a party to a collective-bargaining agreement with Local 242 through Memphis Glass Contractors, a multiemployer group of which the Employer is a member. The Employer has been under contract with Local 242 ever since curtain wall has been used in the Memphis area-some 14 or 15 years. 2. Employer's assignment and past practice There is no affirmative evidence that an assign- ment of work had actually taken place as of the date of the hearing. Raymond Robertson, general organ- izer for the Iron Workers International, testified that as of the hearing date no dispute had been filed under the 1961 Agreement because there had not yet been any assignment of work. Article 1, section 2 of the Agreement between Local 242 and the Memphis Glass Contractors requires the Employer to assign the curtain wall work to Local 242. - Generally, it is current area practice in Memphis to assign curtain wall work to Local 242 and the Employer has done so for the past 14 or 15 years. However, at least one construction company installs The National Joint Trade Board of the Glass and Glazing Industry, on behalf of its affiliated contractors, has agreed work shall be assigned in accordance with the provisions of Section 1-IX of the agreement of February 22, 1961 [the 1961 Agreement ], between the Brotherhood of Painters, Decorators and Paperhangers of America and the Interna- tional Association of Bridge. Structural and Ornamental Iron Workers. The International Association of Bridge, Structural and Ornamental Iron Workers agrees that it and its affiliated local unions, on request of a glass and glazing contractor, will permit its members to perform work recognized to be within the jurisdiction of the Iron Workers under the jurisdictional agreement between the Brotherhood of Painters , Decora- tors and Paperhangers of America and the International Association of Bridge, Structural and Ornamental Iron Workers without the necessity of such glass or glazing contractor being signatory to the applicable local collective bargaining agreement, provided such glass or glazing contractor conforms to the wage, fringe benefits and other economic provisions contained in the applicable local collective bargaining agreement. 7 The charge was filed on April 2, 1973. 8 The Iron Workers has apparently invoked one of the methods of dispute settlement of sec. X of the 1961 Agreement since it has submitted an exhibit after the close of the hearing which is a document from the Impartial Jurisdictional Disputes Board of the Construction Industry dated June 29, 1973, purporting to award jurisdiction of the curtain wall at the CTH project to the Iron Workers. Since we have found that Binswanger is not a party to sec. X methods of dispute settlement and since there is no other evidence to suggest that Binswangerjoined in the submission of the dispute to the Impartial Jurisdictional Disputes Board of the Construction Industry, the settlement by the Impartial Jurisdictional Disputes Board for the Construction Industry is not a voluntary settlement by all parties within the meaning of Sec. 10(k) and thus we are not precluded from determining the dispute. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD curtain wall using ironworkers. There have been occasions where Binswanger subcontracted the installation of curtain wall to one other employer who used ironworkers for the installation. 3. Relative skills, efficiency, and economy of operation Members of Local 242 in general and Binswanger employees in particular are experienced in the installation of curtain wall, having done it a number of times. Further, if the ironworkers installed the curtain wall there would be duplication of labor expense since the glaziers would have to recheck all the openings to see if they are plumbed and squared before the glass is installed to prevent unnecessary stress and strain. If the opening is not properly plumbed and squared then there might be leakage (historically a problem with curtain wall) or the glass panes may even pop out. On the other hand if the glaziers install the metal knowing they are going to do the glazing, they are more likely to do so carefully, so that the glass which is installed later will fit properly. At least some ironworkers have some experience in the installation of curtain wall since one contractor which has done some curtain wall installations in the Memphis area has used ironworkers for the installa- tion. Also, Iron Workers Local 167 has trained apprentices and journeymen in the installation of curtain wall. Conclusion Upon the entire record in this proceeding and after full consideration of all the relevant factors, in particular the contractual relationship between the Employer and Local 242, the Employer's practice and the practice of similar employers in the area, and the experience of members of Local 242 in perform- ing the disputed work and the resulting efficiency of operations, we conclude that the employees of the Employer who are represented by Local 242 are entitled to the work in question, and we shall determine the dispute in their favor . In making this determination, we award the work to the employees of the Employer who are represented by Local 242 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 upon 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 employed by Binswanger Glass Company, who are represented by Glaziers & Glass Workers Local Union No. 242 of the National Brotherhood of Painters & Allied Trades, AFL-CIO, are entitled to perform the work in dispute which involves installation of the curtain wall at the CTH building jobsite located in Memphis , Tennessee. 2. Iron Workers Local Union No. 167, Interna- tional Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Binswanger Glass Company, Mem- phis, Tennessee, to assign the above work to ironworkers represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, Iron Workers Local Union No. 167, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, shall notify the Regional Director for Region 26, in writing, whether or not it will refrain from forcing or requiring Binswanger Glass Company , by means proscribed by Section 8(b)(4)(D), to assign the work in dispute in a manner inconsistent with the above determination.