Painters Local 513 (Mccarthy Bros.)

. PAINTERS LOCAL 513 (MCCARTHY BROS.) Glaziers, Architectural Metal, and Glassworkers Local Union No. 513 , affiliate of the Brother- hood of Painters and Allied Traders, AFL-CIO and McCarthy Brothers Construction Company and International Association of Bridge, Struc- tural and Ornamental Ironworkers, AFL-CIO, Local Nos. 66 and 396. Case 14-CD-710 19 April 1985 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS, The charge in this Section 10(k) proceeding was filed 15 January- 1985 by the Employer (McCar- thy), alleging that the Respondent Glaziers Local Union No. 513 (Local -Union No. 513 or the Gla- ziers), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed ac- tivity with an object of forcing the Employer to assign certain work to employees- it represents rather than to employees .represented by Interna- tional Association of Bridge, Structural and Orna- mental Ironworkers, AFL-CIO, Local Nos. 66 and 396 (Locals 66 and-396 or the • Iron Workers). The hearing was held 1 February 1985 before Hearing Officer Terry L. Potter. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. 1. JURISDICTION The parties stipulated the following: McCarthy, a Missouri corporation with its principal offices lo- cated at 1341 North Rockhill Road, St. Louis, Mis- souri, is a general construction contractor. During the past 12 months, which period is representative of McCarthy's operations, McCarthy purchased and received goods valued in excess of $50,000, which goods were shipped directly to McCarthy's St. Louis, Missouri facility from points located out- side the State of Missouri. Livers Bronze Compa- ny, Inc., herein Livers, a Missouri corporation with its principal offices located at 1608 South Marsh Avenue, Kansas City, Missouri,. is engaged in the manufacture and installation of handrailings and or- namental metals . During the past 12 months, which period is representative of Livers' operations; Livers purchased and received goods valued in excess of $50,000, which goods were shipped di- rectly to Livers' Kansas City, Missouri facility from points located outside the State of Missouri. 177 Based on these* stipulated facts, we find McCar- thy and Livers are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties stipulated and we find that Local-513 and Locals 66 and 396 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute McCarthy, general contractor at the Southwest- ern Bell Telephone Company building under con- struction in-St. Louis, Missouri, has subcontracted to Livers, whose employees are represented by the Iron Workers, the installation of a glass handrail system at the Southwestern Bell site. McCarthy subcontracted to Ampat Midwest Corporation (Ampat), whose employees are represented by the Glaziers, the installation of a window system t the site. - About 11 a.m. on 14 January 1985 Charles Rafley; an employee of Ampat and the Glaziers steward on the job, called McCarthy's job superin- tendent, William Schrader, to the mezzanine and complained that iron workers employed by Livers were, installing glass panels in metal handrails. Rafley said, "something has to. be done here or oth- erwise we're not going to have any glaziers on the job." Shortly thereafter Pat Hughes, Glaziers' busi- ness agent on the job, complained to Schrader that iron workers were installing glass and stated, "That's the work of the Glaziers." Schrader said he could not reassign work and suggested that the business agents for the Glaziers and the Iron Work- ers get together and try to resolve the matter. At this point, Livers' field superintendent-and working foreman, John Mathews, joined the group. Hughes told Mathews the disputed work "is work of the Glaziers." Mathews said, "Well, we install all over the country. There are many, many jobs that we install like this." Hughes responded, "Well, you might do it all over the country but you don't do it here in St. Louis." About 1 p.m. all five glaziers employed on the job by Ampat reported that they were going home because they were sick. No glaziers worked the re- mainder of 14 January or on 15 January. - B. Work in Dispute - The work in dispute involves the handling and installation of glass panels to be placed in handrails at the construction site of the Southwestern Bell Telephone Company building on Ninth and Pine Streets, St. Louis, Missouri. 275 NLRB No. 31 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Contentions of the Parties McCarthy and Locals 66 and 396 contend that there is reasonable cause to believe that Local 513 violated Section 8(b)(4)(D ) of the Act and that -therefore the Board must determine the, merits of the dispute . They further 'contend that the disputed work should be awarded to employees represented by the Iron Workers based on company preference and practice, area and industry practice, and effi- ciency and skill. Local 513 participated in the hearing , but did not call witnesses or file a brief. At the close of the hearing it moved to quash the notice of hearing on the grounds that the evidence failed to establish that "there was an object or attempt to force or re- quire the Employer to assign work." D. Applicability of the Statute Before the Board may proceed with the determi- nation 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 do not have an agreed- upon method of dispute resolution. With respect to (1) above , the record 'reveals that, on 14 January 1984, Local 513 protested- the assignment of the work in dispute to employees represented by the Iron Workers , claimed the dis- puted work should be assigned to the Glaziers, and threatened that if the work was not reassigned there were not going to be any glaziers on the job. Within 2 hours of this protest, the entire job com- plement of glaziers, as threatened, left the job and remained off for a day and a half.- On these facts, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred. - As to (2) above, the parties indicated at the hear- ing that there is no voluntary . method for , adjust- ment of jurisdictional disputes by which all three parties are bound. 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 af- firmative-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 bal- ancing the factors involved in a particular case. Machinist Lodge 1743 (JA. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Company preference and past practice For over 15 years, Livers has had collective-bar- gaining agreements with the Iron Workers and for 22 years has used, to its satisfaction, employees rep- resented by the iron Workers to handle and install glass panels in handrails throughout the United States. Of over 360 jobs performed by Livers since 1980, about one-third involved the handling and in- stallation of structural glass handrailing systems. At least 90 percent of the glass handrails were handled and installed by iron workers. Livers has no collec- tive-bargaining agreement with the Glaziers and has never used glaziers to perform work similar to the work in dispute. Field Superintendent Mathews, a member of Local 66, has 'worked for Livers for 7 years. During this period he personally' worked on ap- proximately 80 construction projects, in 15 States, at which iron workers performed the handling and installation of glass panels in handrails similar to those at the Southwestern Bell jobsite. Consistent with its past practice, Livers. selected, and wishes to continue using , iron workers to per- form the disputed work at the Southwestern job- site. It prefers using iron workers for reasons of economy, efficiency, and skill and because of their generally fine level of performance. On these uncontested facts, we find that factors of company preference and past practice favor. an award of the disputed work to employees repre- sented by the Iron Workers. _ 2. Area and industry practice According to Robert Bouleware, business man- ager for Local 396, since 1980 in the St. Louis area, iron workers have performed 90 to 95 percent of the handling and installing ' of glass panels in handrails similar to those at the Southwestern-Bell project. Since 1981 Livers alone has performed 16 jobs in the St. Louis and Kansas City areas using employees represented by the Iron Workers. At least 20 additional construction projects in St. Louis since 1975 have used iron workers-to handle and install glass panels in handrails . McCarthy also presented correspondence from 4 Missouri compa- nies enumerating at least 16 projects in- Missouri, and 4 in other States, which used employees repre- sented by the Iron workers to install glass' hand- rails. Additionally, there is testimony that Ampat, employer of the -protesting glaziers, recently com- pleted a sizable job in St. Louis using iron workers to perform work similar to the work in dispute. On these undisputed facts and absent any evi- dence that glaziers have performed work similar. to the work in dispute, we find that the factors of PAINTERS LOCAL 513 (MCCARTHY BROS) area and industry practice favor an award of the disputed work to employees represented by the Iron Workers. 3. Efficiency and skill According to Mathews, a field superintendent for Livers, glass handrails such as those at the Southwestern Bell site are part of a system . Instal- lation involves bolting or welding aluminum tracks to iron or some other material ; setting tempered glass panels with quick set cement in the aluminum tracks; and topping the tracked -glass with a hand- rail of matching material. According to Livers' vice president, Richard Livers, the efficient per- formance of Livers' work is dependent on using in- dividuals very familiar with Livers' products and possessing a very high level of training and experi- ence needed to install glass handrails . For this reason Livers fills its crews with iron workers who have previously worked for Livers and who pos- sess special skills relating to stainless steel and non- ferrous metal finish work, i.e., ornamental iron workers. Further, Livers maintains a permanent crew of 10 individuals, called field superintendents, all represented by the Iron Workers. These individ- uals are able to read complex blueprints and to work with different types of materials, skills neces- sary for installing glass panels in handrail systems. To ensure that the permanent crew of iron workers remains current with the latest products , designs, tools, and techniques, Livers holds periodic in-fac- tory training for these individuals. Based on these facts, which are not disputed, and in the absence of evidence that glaziers possess the skills necessary to efficiently perform the disputed work, we find the factors of efficiency and skill 179 support awarding the disputed work to employees represented by the Iron Workers. Conclusions After considering all the relevant factors, we conclude that employees represented by Locals 66 and 396 are entitled to perform the work in dis- pute. We reach this conclusion relying on company preference and practice , area and industry practice, and efficiency and skill . In making this determina- tion, we are awarding the work to employees rep- resented by the Iron Workers, not to that Union or its members . The determination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Livers Bronze Company, Inc., represented by Iron Workers Local Nos. 66 and 396 are entitled to perform the handling and instal- lation of glass panels to be placed in handrails at the construction site of the Southwestern Bell Tele- phone Company building on Ninth and Pine Streets, St. Louis, Missouri. 2. Glaziers Local Union No. 513 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force McCarthy Brothers Construction Company to assign the disputed work to employees represented by it. 3. Within 10 days from this date, Glaziers Local Union No. 513 shall notify the Regional Director for Region 14 in writing whether it will refrain from forcing McCarthy Brothers Construction Company, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.