Glaziers & Glassworkers Local Un. No. 1621

GLAZIERS & GLASSWORKERS LOCAL UN. NO. 1621 641 Glaziers and Glassworkers Local Union No. 1621 and Hart Glass Company, Inc. and International Association of Bridge, Structural, Ornamental, Reinforcing Iron Workers, Riggers and Machinery Movers, Local Union No. 377. Case 20-CD-417 We find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATIONS INVOLVED February 19, 1975 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Hart Glass Company, Inc., herein called the Employer, alleging that Glaziers and Glassworkers Local Union No. 1621, herein called Glaziers, had violated Section 8(b)(4)(ii)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by it rather than to employees represented by Internation- al Association of Bridge, Structural, Ornamental, Reinforcing Iron Workers, Riggers and Machinery Movers, Local Union No. 377, herein called Iron Workers. Pursuant to notice, a hearing was held before Hearing Officer Joseph R. Wirts on August 5, 14, and 30, 1974. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and to cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer, the Glaziers, and the Iron Workers filed briefs, which have been duly considered. 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 made, at the hearing 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 Employer is engaged in wholesaling and installing glass and glazing products and maintains offices in San Jose, California. During the calendar year preceding the hearing, the Employer's revenues exceeded $500,000 and its purchases of goods and supplies received directly from outside the State of California exceeded $50,000. I The agreement provides that the Glaziers has junsdiction over the "fabrication, assembly and installation of .. aluminum ... materials . 216 NLRB No. 129 Glaziers and Iron Workers are labor organizations within the meaning of the Act. III. THE WORK IN DISPUTE The work in dispute involves the installing and caulking of prefabricated metal window frames into precast concrete window openings. A. Background and Facts of the Dispute The Employer, a glazing subcontractor and a member of the Glass Management Association (GMA), was a party to a multiemployer agreement with the Glaziers for the 15-20 glaziers that it employs on its regular payroll. The Employer is not a party to any agreement with the Iron Workers and has no ironworkers on its regular payroll. The Employer does occasionally employ ironworkers by calling them from their hiring hall. In June 1973 the Employer entered into an agreement with a general contractor (Hathaway) to furnish and install aluminum window frames and storefront doors, to supply and install glass, and to seal the windows to the precast concrete window openings and to seal the glass to the windows in a Pacific Gas and Electric (PGE) office building in San Jose, California. Subsequently, the Employer notified the Glaziers in accordance with its usual practice, that its own employees would perform the work of installing the prefabricated aluminum windows on the PGE job. On March 14, 1974, the Employer received a letter from the Iron Workers claiming the work of installing the windows on the PGE project and requesting that the Employer assign the work to members of the Iron Workers. Thereafter, represent- atives of Hathaway, the Employer, the Glaziers, and the Iron Workers had a prejob conference to settle the matter. At this meeting the Employer announced that it had assigned all metal frame work and all glass work to the glaziers on its payroll in accordance with its collective-bargaining agreement with the Glaziers,' and the latter claimed all the work. The Iron Workers stated that it was claiming the work of installing and caulking the aluminum framework to the concrete. The Iron Workers asked for a copy of the blueprints and subsequently submitted the dispute to the Impartial Jurisdictional Disputes relative to store front and window construction in any type of building." 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board (IJDB). Although the Employer was aware of the Iron Workers action and was requested to submit its views pertaining to the facts of the dispute it apparently decided not to participate in the proceed- ing. On April 19, 1974, the IJDB issued an award finding that the installation of fabricated metal windows should be assigned to members of the Iron Workers on the basis of trade practice. The dispute continued, however, because the Glaziers threatened to picket the jobsite if the Employer attempted to reassign the work to members of the Iron Workers. The Employer assigned the work in dispute to its own employees in late June 1974 and the disputed work was completed in early August 1974. B. Contentions of the Parties The Iron Workers contends that the notice of hearing should be quashed because all parties to the proceeding are bound to the procedure and proceed- ings of the IJDB . Alternatively, in the event the dispute is properly. before the Board, the Iron Workers urges that the work in dispute should be awarded to ironworkers in view of established trade and area practices, prior decisions of the IJDB pursuant to the "Blue Book," 2 and contractual obligations. The Employer and Glaziers contend that the work was properly awarded to employees of the Employer on the basis of their collective-bargaining agreement, and because the employees possess the necessary skills, the Employer was following its own past practice, and it is more efficient and economical to assign the work to its own employees. C. Applicability of the Statute Before the Board may proceed to the determina- tion of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) the parties have not agreed upon any methods for the voluntary adjustment of the dispute. As to (1) above, it is not disputed that Glaziers threatened to picket the project site if the Employer attempted to reassign the disputed work to members of the Iron Workers. With respect to (2), above, the Iron Workers contends that the notice of hearing should be quashed because, inter alia, all parties agreed to be bound to the procedures and proceedings of the 2 The Glaziers and Iron Workers were parties to the "Blue Book" agreement from 1961 until March 1 , 1974, when the former served notice that it abrogated the "Blue Book" agreement. 3 International Union of Operating Engineers, Local V6 AFL-CIO (Frank P. Badolato & Son), 135 NLRB 1392 (1962). United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local 1622 (0 R. Karst), 139 IJDB and that the IJDB award constituted a voluntary adjustment of the dispute within the meaning of Section 10(k). It is well settled that "where one party had not agreed to be bound by a decision of the [IJDB] it cannot be said that the parties have submitted to us `satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, that dispute.' "3 In the present proceeding the Iron Workers offered evidence to show that the Employer was aware that Iron Workers and Glaziers submitted facts to the IJDB relevant to the dispute and that the Employer and Hathaway were asked to state their views concerning the matter and that the Employer was kept fully aware of the proceedings before the IJDB. In our view this evidence fails to show that the Employer agreed to be bound by the proceedings. In fact the testimony offered by the Employer shows that it never agreed to be bound by the award of the IJDB and did not take part in the proceedings. Respondent also contends that the Employer as part of its contract with Hathaway agreed to "comply with all working conditions [and] labor agreements" established by Hathaway, who in turn was a member of the Associated General Contractors which is a party to the Iron Workers master agreement which commits AGC to the IJDB. In our opinion this contract does not bind the Employer to the procedures of the IJDB, because the contract with Hathaway does not mention any method for settling disputes, and the particular portion of the contract relied on by Iron Workers does not amount to an agreement to submit a dispute to the IJDB. In addition the record does not show that the Employer has ever signed or stipulated in writing to the plan for the settlement of jurisdictional disputes which pro- vides that only employers who have signed such stipulations are entitled to have jurisdictional dis- putes resolved by the IJDB. Thus, we conclude, on the basis of the entire record, that as the Employer did not agree to be bound by the procedures of the IJDB and did not participate in those proceedings, there was no agreed-upon method for the voluntary adjustment of the dispute herein .4 Hence, we deny the Iron Workers motion to quash the notice of hearing. We conclude that on the basis of the entire record there is reasonable cause to believe a violation of Section 8(b)(4)(D) has occurred and that at the time of the instant dispute there did not exist any agreed- NLRB 591, 594-595 (1%2). 4 Obviously without merit is the Iron Workers contention that the Employer has become a party to the Iron Workers master agreement simply because the Employer has hired employees on the terms set forth in the agreement. ('}LAZIERS & GLASSWORKERS LOCAL UN. NO. 1621 643 upon or approved method for the voluntary adjust- ment of the dispute to which all parties were bound. Therefore, the matter is properly before the Board for determination. D. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to and balancing all relevant factors. The following factors are relevant in making a determination of the dispute before us. 1. The collective-bargaining agreement The record shows that the Employer's collective- bargaining history has been with the Glaziers for at least 10 years. The Employer's current agreement with the Glaziers provides that employees represent- ed by the Glaziers will perform the work involving the installation of aluminum frames used in construc- tion of windows. The Employer is not a signatory to any agreement with the Iron Workers. This factor gives great weight to the Glaziers claim for the disputed work. 2. Employer and area practice The record shows that the Employer's employees, all of whom are members of the Glaziers, have worked for him for several years. During this period, the Employer has consistently assigned the disputed work to its employees. Only when the Employer was faced with a demand for the disputed work from the Iron Workers, and then only if the Glaziers agreed, did the )Employer hire ironworkers to work with Glaziers in a composite crew. However, even at those times when the Employer hired ironworkers his own employees continued to perform some of the disput- ed work. 'Although the Iron Workers contends that the disputed work is traditionally assigned to ironwork- ers, the record shows that such assignment has not been traditional with this Employer. Accordingly, we find that company practice favors the continued assignment of the disputed work to the Employer's employees represented by the Glaziers. 3. Economy and efficiency Members of Glaziers have performed the work in dispute to the Employer's satisfaction for many years. They have the skills and experience to perform all aspects of the required work, thus avoiding the need to hire ironworkers. In addition, the Employer presented evidence to show that the contract terms offered by the Iron Workers would of necessity increase its hourly costs, in that when two or more ironworkers were employed on the job the Employer would have to pay one of them the wages of a foreman, whether or not that employee acted as a foreman. Also, it has' been the Employer's experience that the work performed by ironworkers must be checked more carefully than that done by glaziers. This is so because when the ironworkers have installed the windows, they do not have to install the glass, while the glaziers do. But if the frames are not plumb and square, the resulting pressure will break the glass. Since this is their responsibility, the glaziers would have to recheck all the openings before installing the glass, which, if the ironworkers installed the frames, would mean a duplication of labor. Furthermore, if the glaziers install the frames knowing they will have to fit the glass later, they will do so more carefully. We find that these factors of efficiency and economy also favor the Company's assignment. E. Conclusions as to the Merits of the Dispute Having considered all pertinent factors present herein, we conclude that employees represented.by Glaziers are entitled to perform the work in dispute. This assignment is consistent with the terms of its collective-bargaining agreement, Employer practice, and efficiency and economy of operation., Accord- ingly, we shall determine the existing jurisdictional controversy by awarding the work of installing and caulking of prefabricated window frames into precast concrete window openings to employees represented by Glaziers, rather than to employees represented by Iron Workers. In making this determination, we are awarding the work in question to employees repre- sented by Glaziers, but not to that labor organization 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: Employees of Hart Glass Company, Inc., who are represented by Glaziers and Glassworkers Local Union No. 1621, are entitled to perform the work of installing and caulking prefabricated metal window frames into precast concrete window openings.