Glaziers and Glassworkers Local Union No. 767

200 DECISIONS OF NATIONAL Glaziers and Glassworkers Local Union No. 767 and Sacramento Metal & Glass Co. and Bridge, Structural and Ornamental Ironworkers Union, Local No. 11& Case 20-CD-495 February 10, 1977 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed on June 17, 1976, by Sacramento Metal & Glass Co., herein called the Employer, alleging that Glaziers and Glassworkers Local Union No. 767, herein called Glaziers, has violated Section 8(b)(4)(D) of the Act by threatening, coercing, and restraining the Employer with an object of forcing the Employer to assign certain work to employees represented by Glaziers rather than to employees represented by Bridge, Structural and Ornamental Ironworkers Union, Local No. 118, herein called Ironworkers. Pursuant to notice, a hearing was • held before Hearing Officer John D. Meakin on September 2, 1976. 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 on the issues.' Thereafter, the Employer, Ironworkers, and the AGC filed briefs .2 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 entire record in this case, including the briefs of the parties, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated that the Employer, a Califor- nia corporation, is engaged in the sale and installa- tion of glass and glazing products and that during the most recent 12-month period it purchased and received goods valued in excess of $50,000 directly from outside the State of California. Accordingly, we find that the Employer is engaged in commerce 1 Associated General Contractors of California, herein called AGC, appeared at the hearing and intervened on behalf of its member, Continental Heller Corporation, the general contractor on the construction project involved herein. Counsel for the Ironworkers appeared and intervened at the commence- ment of the 10(k) hearing, moved to quash the notice of hearing for the 228 NLRB No. 28 LABOR RELATIONS BOARD within the meaning of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that the Glaziers and Ironworkers are labor organizations within the meaning of Section 2(5) of the Act. M. THE DISPUTE A. The Work in Dispute The work in dispute is the installation of "window- wall" metal perimeter framing and the metal, vertical, and horizontal supports (called "mullions") placed within the frame and into which window glass will be installed. B. Background and Facts of the Dispute On or about October 7, 1975, the Employer was awarded a contract by Continental Heller Corpora- tion (herein called Continental) covering the work in dispute. The contract calls for the furnishing and installation of "all Section 8B Aluminum Balanced Doors, Section 8C Aluminum Window Wall and Section 8G Glass and Glazing all complete" on the Sacramento County Administration Center, Sacra- mento, California. The actual work covered by the subcontract involves the taking of stock-length alumi- num extrusion material, fabricating it to sizes for installation as the window-wall of the administration building, transporting the fabricated units from the shop to the jobsite, installing them within the concrete openings, and thereafter setting and caulk- ing the glass within the metal frames. On March 12, 1976, the Employer received a letter from Fred J. Driscoll, Jr., chairman of the Impartial Jurisdictional Disputes Board (herein called IJDB), stating that the IJDB had voted to award the work in dispute to the Ironworkers on the basis of trade practice. On or about March 19, 1976, the Employer received a letter from M.C. Sturgis, business agent of the Ironworkers, enclosing a copy of the IJDB decision and copies of the Ironworkers standard contract with a request that the Employer sign and return all copies of the contract. On or about May 21, the Employer received a phone call from Sturgis who discussed the Employer's assignment of the work to the Glaziers. Shortly thereafter, the Employer re- ceived a phone call from Cecil Mark of Continental reason that there was a voluntary method for determining the dispute, and did not participate further in the proceeding. 2 By letter, Glaziers stated that it would not file a brief herein , asserting that the Employer's brief adequately states the issues and contentions of the parties and fairly represents a summary of the evidence produced at the hearings. GLAZIERS AND GLASSWORKERS LOCAL UNION NO. 767 201 who advised the Employer that the Ironworkers was threatening economic action against Continental and requested that the Employer use ironworkers to install the perimeter framing. Following this call, the Employer received a phone call from Kendall Bart- lett, business agent of the Glaziers, and when the Employer advised him of the pressures from Conti- nental to use ironworkers , Bartlett advised the Employer that if glaziers were not assigned the work the Glaziers would take economic action against the Employer. At this point, the Employer told Bartlett that if his threat were serious, to put it in writing. On May 27, 1976, Bartlett wrote the Employer a letter, including inter alia: This letter is to advise that any attempts to use Ironworkers or any other craft on this work will subject you to any economic remedies or means at our disposal, including if necessary, jobsite or plantsite picketing. On June 1, 1976, the Employer wrote the IJDB that it was not a signatory to any agreement that bound it to any decision of the IJDB and that it would not participate in, or be bound by, any proceedings of that board. C. Contentions of the Parties The Ironworkers contends that the notice of hearing should be quashed because there exists an agreed-upon method for the voluntary settlement of the dispute to which all parties are bound. In support of this position, the Ironworkers asserts that both Unions are bound by the IJDB decision, Continental is bound through its membership in the AGC association, and that the Employer is bound due to the Ironworkers contract with Continental requiring that all subcontractors of Continental be bound by decisions of the IJDB. Alternatively, the Ironworkers contends that the work should be awarded to ironworkers by virtue of its contract with Continen- tal. The Employer contends that there is reasonable cause to believe that the Glaziers violated Section 8(b)(4)(D) of the Act, and that there is no voluntary method of adjustment to which all parties have agreed to be bound. The Employer claims it is not bound by IJDB awards since it has not signed a stipulation to that effect, in negotiating its contract with Continental it specifically rejected Continental's proposed clause requiring the Employer to be bound by the IJDB determinations, it is not a member of a stipulated employer association, and it is not a party 3 United Brotherhood of Carpenters and Joiners of America, Local 753, AFL-CIO (Blount Bros. Corporation), 175 NLRB 496 (1969). 4 The Employer is a member of Glass Management Association of to any collective-bargaining agreement providing for settlement of such disputes by the IJDB. The Em- ployer also contends that the diputed work should be awarded to glaziers because they have performed this work in the past, they possess the skills required to perform this work, the contract between the Employ- er and Glaziers awards this work to glaziers, and economy and job efficiency dictate that the work be performed by glaziers. D. Applicability of the Statute The Board is satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. We find no merit in the Ironworkers contention that the Glaziers letter of May 27, 1976, and the subse- quent charge by the Employer amount to no more than a "friendly" suit. The Glaziers contract with the Employer calls for the assignment of the disputed work to employees whom it represents, and there is nothing to indicate that it was not serious in stating it would picket or take other steps in the event the Employer assigned the work to employees represent- ed by the Ironworkers. We are also satisfied that there is no agreed-upon method for voluntary settlement of the dispute. There is no merit in the Ironworkers claim that its contract with Continental, which requires Continental to include the IJDB clause in its subcontracts, is binding on the Employer. Continen- tal's failure to include the, IJDB clause in its subcon- tract with the Employer may give the Ironworkers a cause of action for breach of contract against Continental but certainly cannot give rise to any rights against the Employer who was a stranger to the Ironworkers contract with Continental. The Employ- er refused to accept an IJDB clause in its subcontract with Continental and has not stipulated to be bound by a decision by the IJDB. Consequently, there is no agreed-upon method for voluntary settlement of the dispute.3 E. Merits of the Dispute In making a determination of dispute under Section 10(k) of the Act, the Board finds the following factors relevant: 1. The collective-bargaining agreements The Employer has a history of collective-bargaining with the Glaziers for several years. The Glaziers current agreement with the Employer4 provides that its members shall perform the disputed work. Al- though the Ironworkers contends that its collective- Superior, California (herein called GMA), which represents several glazing contractors in collective bargaining with Glaziers Local 767. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agreement with Continental assigns the disputed work to ironworkers, it makes no claim that it has any contractual relationship with the Employer. In the absence of any contractual relationship be- tween the Ironworkers and the Employer, we con- clude that the Glaziers contract with the Employer favors the award of the work to the Glaziers. 2. Employer and area practice The Employer's employees, all of whom are mem- bers of the Glaziers, have worked for it for several years and since 1974 have consistently been assigned the disputed work. Prior to 1974, as a result of a "blue book" agreement between the Ironworkers and Glaziers International Unions, the Employer, based on a demand by the Ironworkers and with the acquiescence of the Glaziers, hired ironworkers to work with its glaziers in a composite crew . In 1974, the "blue book" agreement was abrogated and since that time the Employer has assigned the work in dispute exclusively to its employees represented by the Glaziers. With regard to area practice, the Employer intro- duced evidence showing that several other GMA members in the Sacramento area engaged in similar window-wall construction using employees represent- ed by the Glaziers. In the absence of any evidence indicating that the disputed work is traditionally assigned to ironworkers in the Sacramento area, we find that employer and area practice favors the assignment of the disputed work to the Employer's employees represented by the Glaziers. 3. Relative skills, economy, and efficiency The Employer's employees have performed the work in dispute to its satisfaction for many years. They have the skills and experience to perform all aspects of the required work and as part of their apprentice training are required to complete 3,500 hours of "fabrication and setting of store fronts, metals, metal window wall, and metal doors." The Employer also presented evidence that its employees work full time, spending substantial periods of time at the Employer's shop when there is no ongoing jobsite installation work. The hiring of ironworkers for the disputed work would involve constant interruption in their employment because of the substantial down- time in the installation work accompanied by the inherent inefficiency in the repeated hiring of iron- 5 The Employer has filed a motion to consolidate this case with Case 20- CD-500 which involves charges filed by the Employer against the Ironwork- ers based on the samejunsdictional dispute . Since a hearing has not yet been held in Case 20-CD-500, consolidation would delay a determination of the jurisdictional dispute . The Ironworkers, as noted earlier, was duly served a notice of hearing in this proceeding, had full opportunity to appear and workers through the hiring hall and subsequent layoffs. In addition, the Employer' s witnesses testi- fied that ironworkers were not as qualified as glaziers, their work needed constant checking, and on many occasions their work was done improperly and was required to be redone at the Employer's additional expense. The Employer's witnesses also testified that if the Employer were required to employ ironworkers it would have to lay off several of its present glazier employees. Because of these factors, we find that efficiency and economy of operation also favor the Employer's current assignment of the work in dispute to its employees represented by the Glaziers. Conclusion as to the Merits of the Dispute On the basis of the foregoing and the lack of any evidence favoring an award to the Ironworkers, we conclude that employees represented by Glaziers are entitled to perform the work in dispute. In reaching this conclusion we rely on the terms of the Glaziers collective-bargaining agreement with the Employer, employer and area practice, the relative skills of the glaziers and ironworkers, and efficiency and econo- my of operation. In making this determination, we are awarding the work in question to employees represented by Glaziers, but not to that labor organization or its members. The record does not support an areawide award as requested by the Employer. Accordingly, the present determination is limited to work in controversy being performed by the Employer at the Sacramento County Administra- tion Building, Sacramento, California.5 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 Sacramento Metal & Glass Co., who are represented by Glaziers and Glassworkers Local Union No. 767, are entitled to perform the work of installing metal perimeter framing and metal vertical and horizontal supports ("mullions") placed within the frame and into which window glass will be installed at the Sacramento County Administration Building, Sacramento, California. present evidence with regard to the award of the work in dispute , and did in fact appear at the hearing, although it limited its participation to contending that there existed a voluntary method of adjusting the dispute. Moreover, Case 20-CD-500 may involve issues not germane to a determination of the jurisdictional dispute . For these reasons, we deny Employer's motion to consolidate.