Glaziers Local 558 (BSC Steel)

101 321 NLRB No. 21 GLAZIERS LOCAL 558 (BSC STEEL) 1 Although the attorney for Glaziers Local 558 was served with a notice of the hearing, no representative of that Union appeared at the hearing. 2 All dates are in 1995, unless indicated otherwise. 3 The picket signs identified Bratton as the employer involved in the dispute. Bratton is the company that supplied the handrail sys- tems to BSC and has never had any employees on the job. We find that the picketing was aimed at BSC. 4 The total package of wage rates and benefits for the Glaziers and the Ironworkers is virtually identical. Glaziers, Architectural, Metal and Glass Workers, Local Union No. 558 and BSC Steel, Inc. and Ironworkers Local Union No. 10, AFL–CIO. Case 17–CD–348 April 30, 1996 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN The charge in this Section 10(k) proceeding was filed on November 21, 1995, by BSC Steel, Inc. (BSC or the Employer), alleging that the Respondent, Gla- ziers, Architectural, Metal and Glass Workers, Local Union No. 558 (Glaziers Local 558 or the Glaziers), violated Section 8(b)(4)(D) of the National Labor Re- lations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by Ironworkers Local Union No. 10, AFL– CIO (Ironworkers Local 10 or the Ironworkers). A hearing was held on December 15, 1995, before Hear- ing Officer D. Michael McConnell.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board affirms the hearing officer’s rulings, find- ing them free from prejudicial error. On the entire record, the Board makes the following findings. I. JURISDICTION BSC Steel is a State of Missouri corporation en- gaged as a steel erection contractor in the construction industry. During its last fiscal year, the Employer pur- chased and received goods and services valued in ex- cess of $50,000 from sources located outside the State of Missouri and sold and shipped goods and services valued in excess of $50,000 directly to customers lo- cated outside the State of Missouri. The parties present at the hearing stipulated, and we find, that BSC is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Glaziers Local 558 and Ironworkers Local 10 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of the Dispute The work in question is the installation of a hand- railing system at the H & R Block Corporation in Kan- sas City, Missouri. The glass handrail system was de- livered to the jobsite at about 7 a.m. on November 17, 1995.2 Members of Glaziers Local 558 began picketing the job at about 8:30 a.m. that day with signs that ad- vised that the Employer3 did not pay the area wage standard.4 The Employer removed the glass from the jobsite that same afternoon and the picketing ceased. On November 20, the Employer instructed the iron- workers to begin installing the handrail system at night to avoid problems with the picketing Glaziers. Em- ployees represented by the Glaziers were at the jobsite installing window glass and a glass curtain wall for an- other contractor on the project. When the Glaziers’ employees reported for work on the morning of No- vember 21, and found that work on the handrail sys- tem had been performed the night before, they ceased work and the picketing resumed. Employees rep- resented by other unions, except for the Ironworkers, declined to cross the picket line. In early November, Kenneth Bishop, superintendent for the general contractor, J.E. Dunn, had a conversa- tion with Paul Fisher, a Glaziers foreman and member of the Glaziers Union, about the installation of the handrailing system. Fisher indicated that he was con- cerned that the ironworkers were working with glass, which is glaziers’ work. When the picketing began, Fisher participated in the picketing. In a conversation on November 21, Bishop asked Fisher what he was doing; Fisher replied that the ironworkers were unload- ing glass, which was glaziers’ work, and that he was not going to put up with it. On that same day (November 21), John Simms, business agent for Glaziers Local 558, told Bishop that the ironworkers were installing the glass which was glaziers’ work. Simms also talked to Robert Bartley, erector manager for BSC, and told him that the Em- ployer had ironworkers doing glaziers’ work. Simms asked Bartley to sign up with the Glaziers Union but Bartley declined. Simms then told Bartley that the picket line would be removed if the ironworkers per- formed the handrailing work at night. The picketing ceased that afternoon and did not resume. B. Work in Dispute The work in dispute is the installation of the glass handrailing system at the H & R Block Corporate Ex- pansion project located in Kansas City, Missouri. The work involves welding or bolting metal guides to the floor of the structure and then attaching the glass rail- ings. The railings are then bolted to the metal guides. 102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 Although there is no current agreement between the Glaziers and the Ironworkers to resolve jurisdictional disputes, at one time there was a national agreement between the International presidents to re- solve such disputes. That national agreement was repudiated by the Glaziers on March 1, 1974. Similarly, on August 10, 1983, the Gla- ziers abrogated a local agreement that had also been designed to re- solve disputes. A handrail of some other material, such as wood or metal, is then attached to the top of the glass railing. C. The Contentions of the Parties The Employer maintains that this work has always been performed by employees represented by the Iron- workers Union. It is undisputed that the Employer has a current collective-bargaining agreement with the Ironworkers, but not with the Glaziers. The initial stage of the work involves securing the metal tracks to the floor, work that the Glaziers Union does not claim. Even after the glass is installed, there is often a need to make adjustments in the frame as it is being at- tached to the structure. The Employer argues that it is more efficient to have a crew of ironworkers, working continuously, performing the entire job, rather than to assign the work to two crafts and have two crews working intermittently. The Employer also argues that, although this type of work does not occur regularly, the evidence shows that it is usually assigned to the ironworkers and that is predominately true in the area. Ironworkers Local 10 agrees with the Employer’s position. As noted above, no representative of the Gla- ziers Union attended the hearing so its position, at least for the record, is unknown. D. Applicability of the Statute Before the Board may proceed with a determination of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to be- lieve that Section 8(b)(4)(D) has been violated and that the parties have no agreed-upon method for the vol- untary adjustment of the dispute. In the conversation between Fisher (a Glaziers mem- ber and foreman) and Bishop (general contractor super- intendent), Fisher related his concerns about iron- workers working with the glass. Fisher told Bishop that working with glass was glaziers’ work. When the picketing began Fisher participated in picketing. In a subsequent conversation, Fisher told Bishop that he was not going to put up with ironworkers performing glaziers’ work. On November 21, in a conversation between Simms (the Glaziers’ business agent) and Bishop, Simms stat- ed that ironworkers were installing the glass in the handrailing system, and that was glaziers’ work. Simms also talked to Bartley, BSC’s erection manager, and told him that the Employer had ironworkers doing glaziers’ work. After Bartley declined Simms’ offer to sign up with the Glaziers Union, Simms told Bartley that the picketing would cease if the ironworkers per- formed the handrailing work at night. The picketing ceased that day and did not resume. The parties present at the hearing stipulated, and we find, that there is no voluntary method of resolving the competing claims for the disputed work.5 We find reasonable cause to believe that the Gla- ziers violated Section 8(b)(4)(D), and that, as stipu- lated by the parties present at the hearing, there exists no agreed-upon method for the voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an affirm- ative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by balancing the factors in- volved in a particular case. Machinists Lodge 1743 (J.A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the de- termination of the dispute. 1. Certification and collective-bargaining agreements There is no evidence that either Ironworkers Local 10 or Glaziers Local 558 has ever been certified as the exclusive collective-bargaining representative of any of the Employer’s employees. BSC, however, has a cur- rent collective-bargaining agreement with the Iron- workers covering the disputed work, but not with the Glaziers. Accordingly, the agreement between BSC and the Ironworkers favors an award of the disputed work to employees represented by the Ironworkers. 2. Employer preference BSC stated a preference for having the disputed work awarded to employees represented by the Iron- workers Union. Accordingly, this factor favors an award of the disputed work to employees represented by the Ironworkers. 3. Employer past practice BSC has a past practice of assigning the disputed work to employees represented by the Ironworkers. Accordingly, this factor favors an award of the dis- puted work to employees represented by the Iron- workers. 103 GLAZIERS LOCAL 558 (BSC STEEL) 4. Area practice BSC presented evidence that the area practice is to assign the installation of the handrail system, including the glass panels, to employees represented by the Iron- workers. Accordingly, we find that this factor favors an award of the disputed work to employees rep- resented by the Ironworkers. 5. Relative skill The record shows that both groups of employees possess the necessary skill to perform the work in dis- pute. Accordingly, this factor does not favor an award of the work to either group of employees. 6. Economy and efficiency of operations BSC contends that it is more economical and effi- cient to assign the disputed work to employees rep- resented by the Ironworkers. This assignment avoids the bottlenecks and dead time that would occur by uti- lizing ironworkers to install the base and top of the handrailing system, with the intervening work by the glaziers to set the glass panels in place. The work of setting the glass panels in place requires no specialized skill that would warrant the intrusion of a second craft into an integrated installation process. Accordingly, we find that these factors favor an award of work to the employees represented by the Ironworkers. 7. Arbitration award On June 9 and 13, 1986, Arbitrator Frank J. Murphy conducted a hearing between the Ironworkers and the Glaziers to resolve the issues concerning the installa- tion of tempered glass on the handrails at the Com- merce Bank Building located in Kansas City, Missouri. In his decision issued on June 27, 1986, the arbitrator awarded the work in dispute to employees represented by the Ironworkers. The Board, in resolving competing claims to the same work in a 10(k) proceeding, will examine an ar- bitrator’s work assignment award, to determine if the award is based on the appropriate criteria. The Board, however, is not required the defer to an award by an arbitrator. The arbitrator of the 10-year-old award referred to here emphasized that his ‘‘decision is limited to the two jobs in question (at the Commerce Bank Building) and is not a general determination of the assignment of the type of work’’ in dispute. We find, therefore, that the arbitration decision re- lied on by the Ironworkers is not relevant to our deter- mination of the proper assignment of the work in dis- pute herein. Accordingly, this factor does not favor an award of the disputed work to either group of employ- ees. Conclusion After considering all the relevant factors, we con- clude that the employees represented by the Iron- workers are entitled to perform the work in dispute. We reach this conclusion relying on the factors of collective-bargaining agreements, employer preference, employer past practice, area practice, and economy and efficiency of operations. In making this determination, we are awarding the work to employees represented by the Ironworkers, not to that Union or its members. Scope of Award The Employer has requested that the Board issue a broad award on behalf of the Ironworkers covering the work in dispute in view of the Glaziers’ repeated pick- eting of projects where similar work is performed. Be- fore the Board will make such an award, it must be shown that: (1) the work in dispute has been a continu- ous source of controversy in the relevant geographic area and is likely to recur; and (2) the offending union has a proclivity to engage in further unlawful conduct in order to obtain the work in dispute. See Laborers (Paschen Contractors), 270 NLRB 327, 330 (1984); Electrical Workers IBEW Local 104 (Standard Sign), 248 NLRB 1144, 1147–1148 (1980). There is no indi- cation in this record that Glaziers Local 558 is likely to engage in unlawful conduct in pursuit of work simi- lar to the work in dispute at future projects. Accord- ingly, the award is limited to the controversy at the jobsite that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the fol- lowing Determination of Dispute. 1. Employees of BSC Steel, Inc., represented by Ironworkers Local Union No. 10, AFL–CIO, are enti- tled to perform the work of installing glass handrailing systems at the H & R Block Corporate Expansion project located in Kansas City, Missouri. 2. Glaziers, Architectural, Metal and Glass Workers, Local Union No. 558 is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force BSC Steel, Inc. to assign the disputed work to employees represented by it. 104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. Within 10 days from this date, Glaziers, Architec- tural, Metal and Glass Workers, Local Union No. 558 shall notify the Regional Director for Region 17 in writing whether it will refrain from forcing the Em- ployer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.