Iron Workers Local 625 (Fuller-'Brien Divison)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Bridge, Structural and Ornamental Iron Workers, Local 625, AFL-CIO and Fuller-O'Brien Div., The O'Brien Corp. and Glaziers and Glass Workers Union, Local 1889, AFL-CIO. Case 37-CD-37 December 2, 1977 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Fuller-O'Brien Div., The O'Brien Corp., herein called the Employer, alleging that International Association of Bridge, Structural and Ornamental Ironworkers, Local 625, AFL-CIO, herein called Iron Workers, had violated Section 8(b)(4)(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 Iron Workers, rather than to employees represented by Glaziers and Glass Workers Union, Local 1889, AFL-CIO, herein called Glaziers. Pursuant to notice, a hearing was duly held in Honolulu, Hawaii, before Hearing Officer Edward J. Parnell, on May 24, 1977. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, all parties filed briefs which have been duly considered by the Board. 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. Upon the basis of the entire record in this case, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Employer, an Indiana corporation, is engaged in the business of retailing and wholesaling glass and glazing throughout various States, including Hawaii. During the 12-month period ending September 1976, the Employer's gross volume exceeded $500,000 and during the same period it purchased and received The two ironworkers filed unfair labor practice charges alleging that their discharges violated the Act. The Regional Director for Region 20 233 NLRB No. 124 materials valued in excess of $50,000 from points located outside the State of Hawaii. Accordingly, we find that the Employer is engaged in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II1. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Iron Workers and Glaziers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer had a contract to perform the work in dispute on a high rise condominium project known as Inn of the Park, located in Honolulu, Hawaii. The work the Employer was to perform involved the installation of sliding window and door frames, including all necessary hardware, and the installation of "storefront" window frames above the ground floor. In March 1977, the Employer hired two ironwork- ers for the Inn on the Park project. At the end of I week, the necessary materials had been prepared but the project was not ready for the disputed installation work and the two ironworkers were laid off. The Employer had hired the two ironworkers under the assumption that a 1961 agreement between the Glaziers and Iron Workers Internationals, giving the work in question to Iron Workers, was still in effect. Thereafter, however, Glaziers Business Representa- tive Jose Encarnacion contacted the Employer with whom Glaziers had a collective-bargaining agree- ment and informed it that the 1961 agreement was no longer in force. The Employer acquiesced in Glazi- ers' request not to rehire the ironworkers and so informed Iron Workers Business Representative Martin. The work in dispute was then assigned to employees represented by Glaziers. Shortly thereaf- ter, about April 21, 1977, Martin notified the Employer's glass contract manager, Jose Tablada, that in light of the Employer's decision not to recall the two ironworkers there would be a picket line around the job. Thereafter, on April 25, 1976, the Employer filed the instant 8(b)(4)(D) unfair labor practice charge.1 With respect to the union agreement mentioned above, the record shows that, in 1968, Glaziers and Iron Workers entered into a local agreement reflect- ing a national agreement, which had been in effect thereafter refused to issue a complaint and the charges were withdrawn. Iron Workers never picketed at the jobsite. 898 IRON WORKERS, LOCAL 625 since 1961 but which previously had no impact in Hawaii, whereby iron workers employees were to perform the type of work currently in dispute. On February 13, 1974, the president of the International Brotherhood of Painters and Allied Trades (Glaziers International) abrogated the 1961 agreement. Not- withstanding this, on August 19, 1974, the business representatives of the two locals involved here entered into an agreement continuing in effect the 1968 agreement. However, the current business representative of Glaziers, Jose Encarnacion, later repudiated the August 19 accord and Glaziers contends that the local business representative in 1974 was without authority to enter into a local agreement governing work jurisdiction. Iron Workers argues that the August 19, 1974, agreement is still effective and governs the instant dispute. 2 B. Work in Dispute The work in dispute consists of: All exterior and interior sliding door frames or surrounds and/or sliding window frames includ- ing any hardware; and in addition, work involv- ing "store front" window frames above the ground floor at the "Inn on the Park" construc- tion site, located in Honolulu, Hawaii. C. Contentions of the Parties The Employer contends that the work in dispute should be assigned to employees represented by Glaziers for the following reasons: (I) it has a contract with Glaziers that covers the work in dispute; (2) it has no contract with Iron Workers; (3) the 1968 agreement between the Internationals of the two local unions involved herein, governing the disputed work, was abrogated in 1974; (4) the current area practice is to assign the work in dispute to employees represented by Glaziers; and (5) it is more economical and efficient to assign the disputed work to the Employer's Glaziers-represented employees. Glaziers contends that its members should be awarded the work in dispute in light of the following factors: (1) its collective-bargaining agreement with the Employer; (2) the current area practice; (3) Glaziers members' superior work skills; and (4) the increased economy and efficiency of the Employer's operation. Iron Workers contends that company and industry practice from at least 1968 to 1974 was to assign iron 2 We note that in September 1975 the president of Iron Workers International informed Iron Workers Representative Martin that the agreement between the two Internationals had been abrogated by Glaziers International but that Iron Workers should continue to claim the work. N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212, workers the work in dispute. Iron Workers argues that assignment of the work to its members would be in accordance with the Board's policy of deferring to voluntary resolution of jurisdictional disputes. This last contention is in reference to the August 1974 agreement between Iron Workers and Glaziers representatives by which it was agreed to continue the 1968 agreement in effect. D. Applicability of the Statute Before the Board may proceed with the determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and that there is no agreed-upon method for the voluntary adjustment of the dispute. As it appears that Iron Workers threatened to picket the Employer to force the reassignment of work from employees represented by Glaziers to employees represented by Iron Workers, we find that there is reasonable cause to believe there has been a violation of Section 8(b)(4)D) of the Act. Also, it appears from the record that there is no agreed-upon method for the settlement of this dispute. According- ly, we conclude that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to all relevant factors involved.3 The following factors are relevant in making a determination of the dispute before us: I. Certifications and collective-bargaining agreements There is no Board certification covering the work in dispute. The Employer is a member of the Glass/Metal Association of Hawaii which has had a contract with Glaziers at all times relevant herein. Exemination of section 2, "Coverage," of the contract indicates that Glaziers work jurisdiction encompasses the work in dispute. In contrast, the Employer has not entered into any contract with Iron Workers. In view of the above, we conclude that the factor of relevant collective-bargaining agreements favors an award of the work in dispute to employees represent- ed by Glaziers. 4 International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S. 573 (1961). 4 Iron Workers contends that recent decisions of the Impartial Junsdic- tional Disputes Board for the Construction Industry have dealt with iron workers-glazier jurisdictional disputes involving work comparable to that (Continued) 899 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Efficiency and economy The Employer maintains a full-time work force of approximately 18 to 20 employees who are members of Glaziers. Each employee is capable of performing all phases of glazing and glass installation work and, as a result of this versatility, if business delays require the suspension of certain work, the Employer's permanent staff can be transferred to other projects, which involve different glazing work, without a loss of worktime. Because of their limited glazing skills, ironworkers, in similiar situations, would either have to be paid for idle time or be laid off. In addition, the Employer generally would be unfamiliar with the work ability of any individual ironworker referred to it by the hiring hall. In contrast, from the tenure of its employees, who are glaziers, the Employer has a thorough knowledge of its work force which allows it to plan its work more efficiently and to bid more accurately in competition for contracts. Consequently, we find that the factors of economy and efficiency favor an award to employees repre- sented by Glaziers. 3. Employer preference The Employer has assigned the work in dispute to employees represented by Glaziers. Representatives of the Employer testified that the skills possessed by the glaziers enable them to perform the disputed work and all glazing functions beyond those in dispute and therefore render them more valuable employees than the ironworkers. In view of the above, we find that the factor of employer preference favors an award of the disputed work to employees who are represented by Glaziers. 4. Area practice The record indicates that until 1968 it was area and industry practice to use members of Glaziers to perform the work in dispute. The record also indicates that, from 1968 to 1974, Iron Workers- represented employees were assigned the work in dispute pursuant to the 1961 agreement that became effective in Hawaii in 1968. This agreement was abrogated by the Internationals in February 1974. As previously noted, in August 1974, Glaziers and Iron Workers local representatives agreed to continue the 1968 pact in effect despite its abrogation. By letter dated September 15, 1975, however, Iron Workers Business Representative Martin was notified by his involved in the current proceeding and therefore should have a bearing on the Board's decision here. Examination of the record, however, reveals that, while the IJDB's decisions involve work of the same general nature as that in dispute herein, the work is sufficiently dissimiliar so as to render those determinations inapplicable to the instant matter. Furthermore, the Employer here has not agreed to be bound by IJDB procedures and did not participate in the proceedings which resulted in these decisions. International's president that the 1961 agreement had, in fact, been abrogated. Glaziers asserts that the August 1974 letter between the two local business agents was ineffective since glazier locals are not permitted to supersede the International on ques- tions concerning work jurisdiction. The record reveals that the current area practice since the period following the abrogation by the Internationals is to assign the disputed work to members of Glaziers. Further, the uncontroverted testimony of Encarna- cion is that on at least three occasions since he became Glaziers business representative in Novem- ber 1976 he has had confrontations with Iron Workers Representative Martin concerning work similar to the work in dispute, and, on each occasion, glaziers were allowed to perform the work. We find that aside from the years 1968-74, which were governed by the 1961 agreement, the area practice has been to assign the work in dispute to employees represented by Glaziers. Accordingly, we find that the factor of current area practice favors an assignment of the disputed work to employees represented by Glaziers.5 5. Skills Glaziers contends, in view of its ongoing training program which requires 432 classroom hours and 8,000 on-the-job training hours coupled with the fact that Glaziers members are kept informed of all new techniques and materials in the glazing industry, that Glaziers-represented employees possess greater skills than ironworkers on the work in dispute. Iron Workers contends that its members possess sufficient skills to perform the disputed work and that they have satisfactorily done so since 1968. The Employer admits that in the period in which ironworkers performed the work, they did so satisfactorily. Therefore, we find the factor of job skills favors neither Glaziers- nor Iron Workers-represented employees. Conclusion Upon the entire record in this proceeding, and after full consideration of all the relevant factors, in particular Glaziers collective-bargaining agreement, the economy and efficiency of the Employer's operation, the Employer's preference, and the cur- rent area practice, we conclude that employees of the Employer who are represented by Glaziers are entitled to perform the work in question. In making 5 While Iron Workers representatives testified that employees represent- ed by Iron Workers are currently performing work comparable to the work in dispute at several construction sites in Hawaii, the record indicates that the vast majority of the employees engaged in the disputed work throughout Hawaii are represented by Glaziers. 900 IRON WORKERS, LOCAL 625 our present determination, however, we award the work to employees who are represented by Glaziers, but not to that Union or its members. Further, our award is limited to the particular controversy which gave rise to this proceeding. 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 entire record in this proceed- ing, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of Fuller-O'Brien Div., The O'Brien Corp., who are currently represented by Glaziers and Glass Workers Union, Local 1889, AFL-CIO, are entitled to perform the disputed work involving all exterior and interior sliding door frames or surrounds and/or sliding window frames including any hard- ware; and, in addition, work involving "storefront" window frames above the ground floor at the Inn on the Park construction site, located in Honolulu, Hawaii. 2. International Association of Bridge, Structural and Ornamental Iron Workers, Local 625, AFL- CIO, is not entitled, by means proscribed by Section 8(b)(4)(D), to force or require Fuller-O'Brien Div., The O'Brien Corp., to assign such work to individu- als represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Associ- ation of Bridge, Structural and Ornamental Iron Workers, Local 625, AFL-CIO, shall notify the Regional Director for Region 20, in writing, whether it will refrain from forcing Fuller-O'Brien Division, The O'Brien Corp., by means proscribed by Section 8(b)(4)(D), to assign the work in dispute to employ- ees represented by it rather than to employees represented by Glaziers and Glass Workers Union, Local 1889, AFL-CIO. 901