Iron Workers Local 433, International Association Of Bridge, Structural And Ornamental Iron Workers, Afl-Cio

670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Iron Workers Local 433, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO and Crescent Corporation. Case 21-CD-541 22 November 1985 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON The charge in this Section 10(k) proceeding was filed 29 May 1985 by the Employer, alleging that the Respondent, Iron Workers Local 433, Interna- tional Association of Bridge , Structural and Orna- mental Iron Workers, AFL-CIO (Iron Workers Local 433), violated Section 8(b)(4)(D) of the Na- tional Labor Relations Act by engaging in pro- scribed activity with an object of forcing the Em- ployer to assign certain work to employees it rep- resents rather than to employees represented by Glaziers, Architectural Metal & Glass Workers Local Union No. 636 , International Brotherhood of Painters and Allied Trades, AFL-CIO (Glaziers Local 636). The hearing was held 29 and 30 July and 13 August 1985 before Hearing Officer Marga- ret H. Poskaitis. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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 Employer, a Delaware corporation, is en- gaged in manufacturing curtain wall and window wall at its Carpentersville, Illinois facility, where it annually manufactures, sells, and ships goods valued in excess of $50,000 directly to purchasers outside the State of Illinois. The Employer installs its curtain and window wall at sites located throughout the United States. The parties stipulate, and we find, that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and that Iron Workers Local 433 and Glaziers Local 636 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer is a construction subcontractor that specializes in fabricating curtain wall and window wall and installing it on high-rise commer- cial buildings, including several in southern Califor- nia. "Curtain wall" or "window wall" describes cer- tain panels used to create exterior building facades. Although curtain and window wall panels may be made of porcelain, marble, or other like materials, the disputed work involves only panels made of glass. These panels may be installed and inter- locked ("stacked") to create continuous vertical or horizontal windows. They may also be stacked both vertically and horizontally so that the build- ing's entire exterior facade, or a substantial portion of it, is glass.I The Employer is a party to a national collective- bargaining agreement with the Iron Workers Inter- national Association, an agreement with the Cali- fornia and Vicinity Iron Workers District Council, and an independent agreement with Iron Workers Local 433. Under the national agreement, the Em- ployer agreed to employ journeymen ironworkers for work within the Iron Workers' jurisdiction through hiring halls operated by Iron Workers local unions. The Employer's independent agree- ment with Local 433 incorporates the district coun- cil agreement. Section 3(D) of the district council agreement states the Union's, jurisdiction includes: All work in connection with field fabrication and/or erection of structural, ornamental and reinforcing steel, including but not limited to .. . erection of all curtain wall and window wall . . . [and] installation of metal window stools and sills. Section 24(Q) states in pertinent part: Iron Workers Required on Window Wall or Curtain Wall Erection-All installation of window wall or curtain wall shall be per- formed by workmen covered by this Agree- ment. The parties' latest agreement, effective 1 July 1983 through 30 June 1986, was the first to contain the latter provision. The Employer is also a party to a collective-bar- gaining agreement with Glaziers Local 636 which states the Union's jurisdiction includes: The installation of all extruded rolled or fabri- cated metals or any materials that replace same . . . including those in any or all of the build- i Iron Workers Local 433 Financial Secretary-Treasurer and Business Manager Joe Ward stated that the panels are called "curtain wall" when they are attached to the building outside the floor edge, and "window wall" when attached inside the floor edge The Employer, however, dis- tinguishes between the two differently The Employer uses "window wall" to mean only panels that are stacked either vertically or horizontal- ly, but not both When the panels are to be installed both horizontally and vertically, the Employer calls those panels "curtain wall " 277 NLRB No. 77 IRON WORKERS LOCAL 433 (CRESCENT CORP.) ings related to store front and window wall and curtain wall construction. The agreement also contains a grievance and arbi- tration provision covering "any dispute . . . con- cerning the application or interpretation of any terra or condition of this Agreement." Grievances may be referred to a "Joint Conference Commit- tee" whose decision is final and binding. Curtain or window wall is conventionally in- stalled by attaching metal frames, or "sills" and "heads," to a building and then installing glass panels, or "lights," into the frames. This type of work accounts for approximately 60 percent of the Employer's work and the Employer always assigns installing the sills and heads to ironworkers. The Employer's policy is to assign installing the glass lights in accordance with area practice, assigning glaziers where the Iron 'Workers and Glaziers local unions have agreed that glaziers should do the work.2 The remaining 40 percent of the Employer's cur- tain and window wall work is with "pre-glazed" panels. Glass lights are installed into pre-glazed unit frames and the frames are then attached to a building with the lights installed. Except for the Employer's work at the 53rd at Third office build- ing in New York City, the Employer has always assigned pre-glazed unit installation to ironwork- ers.3 At 53rd at Third, the Employer assigned the work to composite crews of one glazier for each group of eight ironworkers pursuant to an agree- ment between Iron Workers and Glaziers local unions. Glaziers Local 636 presented evidence that nu- merous glass companies that glaze small buildings (generally under 20 stories), in addition to perform- ing other glass work, employ glaziers and not iron- workers to install pre-glazed curtain wall and window wall. These glass companies generally employ a regular complement of glaziers and do not employ ironworkers, nor do they generally have collective-bargaining agreements with Iron Workers local unions. Glaziers Business Represent- ative Able Macias testified, however, that on at least two buildings, the 20-story Promenade Towers and a 28-story building at 400 South Hope, 2 At the conventionally glazed Olympic Butler office building in Los Angeles, the Employer, contrary to its usual policy, assigned ironworkers rather than glaziers to install glass lights Glaziers Local 636 filed a griev- ance pursuant to its contract and a joint conference committee on 1 August 1983 found the Employer "guilty" of violating the contract Ac- cording to a transcript of the committee' s meeting , Employer Vice Presi- dent Wayne J Bergmann admitted glaziers should have been assigned the glazing and promised to assign them to do so in the future at othei sites a The buildings the Employer's vice president identified are all located in Chicago They include Boulevard Towers North and South, Doral Plaza, Warwick Apartments, Hyatt Regency Hotel, 303 East Walker, and City of Chicago 671 both in Los Angeles, the glazing contractor used a composite crew of glaziers and ironworkers to in- stall pre-glazed curtain or window wall. Iron Workers Local 433 Business Manager Joe Ward named several contractors who assigned pre-glazed curtain or window wall installation exclusively to ironworkers and named numerous buildings within the Local's jurisdiction at which. ironworkers did the installing.4 Whether the frames are glazed or unglazed, at- taching them to the building involves substantially the same tasks. An anchor is bolted into the build- ing's concrete slab and a bolting clip is attached to both the frame and the anchor to attach the unit to the building. Each unit must be vertically plumb and thus the bolting clips allow the unit to be adjusted to some extent toward or away from the building. In some cases, the panel must be adjusted farther away or toward the building than the standard bolting clip allows. When this occurs, a new clip must be made. The new clip is generally made at the jobsite and is made using welding equipment, cutting torches, saws, drills, and like tools and equipment. Donald Stobridge, former Olson Glass Company glazing superintendent, testified that, of his 20- to 35-glazier crews that installed pre-glazed curtain wall at the Arco Center building, Long Beach, California, only two or three glaziers could weld. Similarly, former Crone Glass Company General Foreman Michael Nimigekn testified that, among the ironworker and glazier composite crews that glazed the conventionally glazed Sheraton Premier Hotel, only the ironworkers were certified welders, the glaziers were not. Both the Iron Workers and the Glaziers operate apprenticeship or training programs. Joe Ward, who is Iron Workers Local 433's joint apprentice- ship committee chairman, as well as its financial secretary-treasurer and business manager, testified that one-sixth of the Iron Workers' 3-year appren- ticeship program is devoted to ornamental iron- work, including window wall layout and installa- tion. Peter Verkerke, former Glaziers Local 636 business manager and joint apprenticeship trust sec- 4 Among the southern California contractors Ward identified is Tom Benson Industries, which employed ironworkers to install pre-glazed units on a 26-story building in Santa Monica He also said Jack Fields Installation used ironworkers for installing pre-glazed units on the 45- story Wells Fargo building, and on a 28-story building in Woodland Hills Other buildings in southern California Ward identified as having had pre-glazed curtain or window wall installed exclusively by ironworkers include a Hughes-project building in El Segundo ; Universal Plaza in Uni- versal City, Ventura County Jail in Ventura County, Long Beach City Hall in Long Beach, Arco Twin Towers in Los Angeles, and a Flour City-project building in Irvine. Ward did not state the number of stories these buildings have 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD retary, testified that the Glaziers' 4-year training program taught curtain and window wall installa- tion. Neither man, however, stated whether his union's program taught only its craft's role in con- ventional curtain and window wall installation, or whether the program provided training in installing pre-glazed curtain and window wall as well. In 1984, the Employer began installing pre- glazed curtain or window wall at the California Plaza building, 300 South Grand Street, Los Ange- les, California, and at a building located at 5916 Owensmouth, Woodland Hills, California (Wood- land Hills building). These are the only sites in southern California at which the Employer has used pre-glazed panels. The Employer assigned the installation work to employees represented by Iron Workers Local 433 and confirmed the assignments in writing on 6 June and 11 September 1984, re- spectively. The Employer was also responsible for attaching a "store front" window exterior facade to the ground floor of the Woodland Hills building. The store front was not pre-glazed; it was instead to be installed by the conventional method. The Employ- er originally subcontracted the work to another company. After learning the company employed nonunion workers and lacked the necessary license to do the work, the Employer assigned the work to its own ironworkers. Glaziers Local 636 believed the Employer's having assigned ironworkers rather than glaziers to the work at the California Plaza building violated its collective-bargaining agreement with the Em- ployer. Pursuant to the contract, the Union re- ferred a grievance to a joint conference committee. The joint conference committee mailed meeting no- tices to the Employer at its Illinois address. The Employer, however, did not attend the scheduled meetings. On 18 December 1984 the committee found the Employer "guilty" of violating its con- tract with Glaziers Local 636 by its California Plaza work assignment and awarded glaziers mone- tary damages. On 7 May 1985 Glaziers Local 636 filed suit in Federal district court to confirm the award. Glaziers Local 636 also referred a grievance to the joint conference committee concerning the Em- ployer's work assignment at the Woodland Hills building. The committee again mailed a meeting notice to the Employer's Illinois address and the Employer again did not attend the meeting. On 22 May 1985 the committee found the Employer "guilty" of violating its contract with the Glaziers by its Woodland Hills work assignment and again awarded glaziers monetary damages. Iron Workers Local 433 Business Manager Ward testified that Employer Vice President Bergmann approached him in May 1985 about the Glaziers' claims for the work at the California Plaza and Woodland Hills buildings. Bergmann asked Ward "how to approach it and what effect it would have on [Ward]" if the Employer reassigned the work to Glaziers-represented employees. According to Ward, he told Bergmann he would do "[e]verything short of breaking [Bergmann's] legs." He also testified he told Bergmann he would "take whatever job action is necessary to keep control of the work in question." On 29 May 1985 Employer Attorney Richard W. Kopenhefer telephoned Iron Workers Local 433 Attorney Victor J. Van Bourg about Glaziers Local 636's claims. According to Kopenhefer, Van Bourg stated, "You can have your magic words" and "indicated" Iron Workers Local 433 would file a grievance and engage in a job action to retain the work. Kopenhefer confirmed the conversation by a letter dated that same day and stated the disputed work involved "preglazed window units." On 10 June 1985 Van Bourg responded stating the 29 May letter "accurately sets forth our conversa- tion." Van Bourg also stated, "Local 433 will exer- cise all options legally available to them." Employer Vice President Bergmann testified that the Employer is seeking additional work in south- ern California and, should the Employer obtain contracts to install pre-glazed curtain or window wall, Bergmann would assign that work to iron- workers represented by Iron Workers Local 433. Glaziers Local 636 Financial Reporting Secretary Sam Porter testified that he would "insist" that the Employer assign its future curtain or window wall installation to Glaziers. B. Work in Dispute The parties stipulated that the work in dispute includes at least installing pre-glazed curtain wall or window wall at the Employer's projects at the California Plaza building, 300 South Grand Street, Los Angeles, California, and at a building located at 5916 Owensmouth, Woodland Hills, California. At the hearing, Glaziers Local 636 sought to in- clude, as part of the disputed, work storefront window installation at the Woodland Hills build- ing. As noted, the storefront windows are conven- tionally glazed, not pre-glazed. The parties be- lieved until the hearing that only pre-glazed unit installation was disputed and there is no evidence of a threat with respect to the Employer's store- front installation work assignment. Accordingly, IRON WORKERS LOCAL 433 (CRESCENT CORP) we shall limit our determination to pre-glazed cur- tain or window wall installation.5 C. Contentions of the Parties The Employer contends there is reasonable cause to believe Iron Workers Local 433 violated Section 8(b)(4)(D) of the Act by Ward's May 1985 threat to Vice President Bergmann that Ward would "take whatever job action is necessary to keep con- trol of the work in question." The Employer also relies on Iron Workers Attorney Van Bourg's tele-, phone threat to Employer Attorney Kopenhefer on 29 May, and Van Bourg's 10 June letter which stated, "Local 433 will exercise all options legally available to them." Iron Workers Local 433 also relies on Ward's threat to do "[e]verything short of breaking [Bergmann's] legs." Both the Employer and Iron Workers Local 433 contend the Iron Workers' collective-bargaining agreement with the Employer favors awarding the disputed work to ironworkers because the agree- ment grants that Union jurisdiction over "erection of all curtain wall and window wall" and states, "All installation of window wall or curtain wall shall be performed by [ironworkers]." They also argue that the Employer's preference for awarding the work to ironworkers, its past practice, and the relative skills of ironworkers and glaziers also favor awarding the work to ironworkers. They contend that area practice does not support an award to glaziers because the employers who award similar work to glaziers are small "'glass houses" that work on low-rise buildings only and not, like the Em- ployer, construction subcontractors who work on high-rise buildings. The Employer also argues that area practice favors awarding the work to iron- workers and that concern for the economy and ef- ficiency of its operations does not favor awarding the work to glaziers. Both the Employer and Iron Workers Local 433 argue that the Board should issue a broad order, covering all the Employer's work, wherever located, in addition to the work now disputed. Glaziers Local 636 agrees there is reasonable cause to believe Iron Workers Local 433 violated Section 8(b)(4)(D) of the Act. It contends, howev- er, that its collective-bargaining agreement with the Employer favors awarding the work to glaziers be- cause the agreement states the Union's jurisdiction includes "[t]he installation of all extruded, rolled, or fabricated metals . . . including those in any or s Cf Teamsters Local 807 (American Bank Note Co), 241 NLRB 811 (1979) (disputed work considered for determination limited to that de- scribed in notice of hearing absent evidence of notice to parties that dis- pute was broader, and absent full opportunity to litigate broader work dispute issues) 673 all of the buildings related to store front and window wall and curtain wall construction." It also argues that the Employer's past practice sup- ports awarding the work to a composite crew of ironworkers and glaziers and that area practice supports awarding the work to glaziers. It contends concern for the economy and efficiency of the Em- ployer's operation favors awarding the work to glaziers in part because ironworkers have broken glass at other of the Employer's operations. It fur- ther contends that glaziers are better skilled and that the Employer's preference is not controlling. It argues against a broad order, contending there is no evidence Iron Workers Local 433 will engage in further unlawful conduct and that its filing griev- ances to obtain the disputed work is not unlawful. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied there is reasonable cause to believe Section 8(b)(4)(D) has been violated and that the parties have not agreed on a method to voluntarily adjust the dispute. Iron- Workers Local 433 Business Manager Ward's threat to "take whatever job action is nec- essary to keep control of the work in question" provides reasonable cause to believe Section 8(b)(4)(D) has been violated.6 The parties stipulat- ed that they have not agreed on a method to vol- untarily adjust this dispute. Accordingly, we find 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 1BEW 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- 6 Lithographers & Photo-Engravers Local One-P (Sterling-Regal), 169 NLRB 606, 607 (1968), Stage Employees IATSE Local 659 (Westinghouse Broadcasting), 222 NLRB 1004, 1005 (1976) We do not rely on Iron Workers Local 433 Attorney Van Bourg's 29 May 1985 threat, in a telephone conversation with Employer Attorney Kopenhefer, "indicating" the Union would engage in a job action to retain the disputed work According to Kopenhefer, Van Bourg initially said, "You can have your magic words " Thus, in context, the threat was clearly intended only as a sham to invoke the Board's authority to deter- mine the dispute Van Bourg's 10 June 1985 letter, confirming the Employer's version of the 28 May conversation, also does not constitute an unlawful threat that would provide the Board with authority to determine this dispute, even if considered independently of the 29 May telephone conversation That letter threatened only that Iron Workers Local 433 would "exercise all options legally available to them " See Brockton Newspaper Guild (Enter- prise Publishing), 275 NLRB 135, 136 (1985) 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402, 1410-1411 (1962). The following factors are relevant in making the determination of this dispute. 1. Collective-bargaining agreements Iron Workers Local 433's collective-bargaining agreement clearly gives it a contractual claim to the work for the employees it represents because the contract includes "erection of all curtain and window wall" within the Union's jurisdiction and affirmatively states: "All installation of window wall or curtain wall shall be performed by [iron- workers]." Glaziers Local 636, however, also has a contractual claim to the work for its employees based on that part of its contract that gives it juris- diction over installing metal "in any or all of the buildings related to store front and window wall and curtain wall construction." We thus find that the Unions' collective-bargain- ing agreements do not support awarding the disput- ed work to either group of employees. 2. Employer preference and past practice The Employer prefers that ironworkers perform the disputed work and, as noted, the Employer has assigned installing pre-glazed curtain or window wall to ironworkers at all its projects except the 53rd at Third office building in New York City. At that site, Iron Workers and Glaziers local unions had an agreement requiring composite ironworker and glazier crews and the Employer respected the agreement. No such agreement exists here. Accordingly, the Employer's preference and past practice supports awarding the disputed work to ironworkers. 3. Area and industry practice As noted, Glaziers Local 636 presented evidence indicating that glass companies that glaze buildings less than 20 stories, in addition to performing other glass services, assign their regular complement of glaziers to install pre-glazed curtain wall and window wall. The Employer, however, is a high- rise construction subcontractor and not a glass company that performs other glass services and it does not maintain a regular complement of glaziers. Glaziers Local 636's evidence thus does not persua- sively establish an industry practice for employers with operations similar to that of the Employer here. The other evidence of area and industry practice is not conclusive, Glaziers Business Representative Able Macias conceded that for installing pre-glazed curtain or window wall on at least two southern California buildings 20 stories or higher, the glaz- ing contractor employed a composite crew of iron- workers and glaziers, rather than just glaziers. Iron Workers Business Manager Ward named numerous employers within the Union's jurisdiction who as- signed exclusively ironworkers to do the installing. We thus find that neither area nor industry prac- tice favors awarding the disputed work to one group of employees over the other. 4. Relative skills That both ironworkers and glaziers install pre- glazed curtain or window wall at certain jobsites for various employers demonstrates clearly that both groups are generally capable. Ironworkers, however, are certified welders, while glaziers may or may not be. As noted, the Employer needs certi- fied welders to make new bolting clips when the standard clip will not allow enough adjustment toward or away from the building to make the cur- tain or window wall unit vertically plumb. This factor thus favors awarding the disputed work to ironworkers rather than glaziers.? 5. Economy and efficiency of operation The evidence presented does not suggest that an award to one group would be more economical or lead to greater efficiency than an award to the other. Accordingly, we find that concern for the economy and efficiency of the Employer's oper- ation does not favor awarding the disputed work to either group of employees. Conclusion After considering all the relevant factors, we conclude that employees represented by Iron Workers Local 433 are entitled to perform the work in dispute. We reach this conclusion relying on the Employer's preference and past practice, and the fact that ironworkers are certified welders. 7 Glaziers Local 636 and the Employer presented evidence intended to discredit each craft's work quality Glaziers Local 636, for example, pre- sented photographs showing that 5 to 9 of the Woodland Hills building's 1200 to 1300 ironworker-installed curtain or window wall lights were cracked Employer Vice President Bergmann testified, however, that 2 to 3 percent breakage is normal He also testified that lights may break in shipping, or from stress after they are installed, as well as from poor in- stallation Similarly, Crone Glass General Foreman Michael Nimigekn testified for Glaziers Local 636 that ironworkers he employed improperly installed bolting clips at one of his projects. On cross-examination, how- ever, he conceded that a general foreman made the error Bergmann tes- tified glaziers delayed completing the Employer's conventionally glazed Alameda Pass project and increased costs by breaking too many lights The Employer's glazier foreman at that time, Rick Rogers, testified, how- ever, that he instructed the glaziers to insert vinyl into the curtain or window wall frames with baseball bats because the holes for the vinyl were too small We find these incidents to be isolated and innocuous and do not rely on them in comparing the crafts' skills. IRON WORKERS LOCAL 433 (CRESCENT CORP.) In making this determination , we are awarding the work, to employees represented by Iron Workers Local 433, not to that Union or its members. Scope of the Award As noted, the Employer and Iron Workers Local 433 contend the determination should encompass work at all the Employer's pre-glazed curtain or window wall jobsites, wherever located. For the Board to issue a broad, areawide award, there must be evidence that the disputed work has been a con- tinuing source of controversy in the relevant geo- graphic area and that similar disputes are likely to recur. There also must be evidence demonstrating that the charged party has a proclivity to engage in unlawful conduct to obtain work similar to the dis- puted work.8 The evidence demonstrates that assigning work similar to the disputed work will likely continue to be controversial, at least in southern California, as the Employer intends to seek additional work there, intends to assign the disputed work to iron- workers, and Glaziers Local 636 intends to "insist" it be assigned instead to glaziers. The charged party, Iron Workers Local 433, has not, however, demonstrated a proclivity for unlawful threats by its threats regarding the two assignments here. 8 Electrical Workers IBEW Local 104 (Standard Sign), 248 NLRB 1144, 1147-1148 (1980) (citing cases) 675 Also, while the dispute is likely to continue, the evidence suggests no unlawful pressure will be ex- erted to obtain or retain it. The Employer has stated it will favor employees represented by the only union that exerted unlawful pressure, Iron Workers Local 433. Although Glaziers Local 636 intends to continue to insist that the Employer's pre-glazed unit installation work be assigned to gla- ziers, it has in the past pursued its claim lawfully, filing grievances pursuant to a colorable contract claim.9 Accordingly, our determination is limited to the controversy that gave rise to this proceeding.10 DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of Crescent Corporation represented by Iron Workers Local 433, International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL-CIO are entitled to install pre- glazed curtain wall or window wall at the Employ- er's projects at the California Plaza building, 300 South Grand Street, Los Angeles , California, and at a building located at 5916 Owensmouth, Wood- land Hills, California. 9 See Sheet Metal Workers Local 49 (Los Alamos Constructors), 206 NLRB 473, 475-477 (1973) 10 See Standard Sign Co, supra, 248 NLRB at 1148.