Glaziers Architectural Metal & Glass Workers Local Union No. 513

974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glaziers, Architectural Metal & Glass Workers Local Union No. 513 and Custom Contracting Company. Case 14-CD-712 24 June 1986 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS DENNIS, JOHANSEN, AND STEPHENS The charge in this Section 10(k) proceeding was filed 4 February 1985 by the Employer, alleging that the Respondent, Glaziers, Architectural Metal & Glass Workers Local Union No. 513 (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 unrepresented employees of the Em- ployer. The hearing was held on 11 March 1985 before Hearing Officer Thomas J. Tobey. 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, fmding them free from prejudicial error. On the entire record, the Board makes the following find- ings. I. JURISDICTION The Employer, a partnership, with its principal office and facility located in Labadie, Missouri, is engaged in business as a contractor in the construc- tion industry. During the 12 months preceding the hearing, a representative period, the Employer has performed services valued in excess of $50,000 out- side the State of Missouri. For the reasons set forth below, we reject the Glaziers contention that the "partnership" arrangement of the Employer pre- cludes a fmding that it is an employer within the meaning of the Act. Instead, we find that it is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act and that the Glaziers is a labor organization within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer is a subcontractor on the Care Unit Hospital renovation project and, in that ca- pacity, has contracted to remove approximately 400 to 500 existing windows and install retrofit (preglazed replacement) windows. The Employer has no collective-bargaining agreement with the Glaziers or any other labor organization, although four of the six senior partners of the Employer are members of the Carpenters District Council of Greater St. Louis. The Employer commenced work on the project on 21 January 1985 with a completion deadline on 21 February 1985. The crew assigned to work consisted of a job superin- tendent,1 who is one of the Employer's senior part- ners, and a three-man work crew consisting of one senior partner and two junior partners. On 24 January, a Glaziers business representative informed the Employer's job superintendent and the Employer's managing partner that the work the Employer was performing was Glaziers work and that, if the Employer continued the work with its existing crew, the Glaziers would set up a picket. The Employer ceased work on the project on 24 January and did not return to the project until 26 January. The Employer's crew resumed work on the project on 26 and 27 January, and on Monday, 28 January, the Glaziers established a purported "area standards" picket line at the Care Unit Hos- pital jobsite. After being informed that the Em- ployer was not on the jobsite, the Glaziers re- moved its pickets about 1 p.m. on 28 January. That same day, the Glaziers representative again in- formed the Employer's managing partner that the Employer's work at the Care Unit Hospital be- longed to the Glaziers and, further, that all similar work performed in the St. Louis, Missouri area in the future would require a composite crew of gla- ziers and carpenters. The Glaziers business repre- sentative also stated that the failure to use such a composite crew on future jobs would result in picketing of those jobsites and that the return of the Employers' existing crew to the Care Unit Hospital jobsite would result in the resumption of picketing by the Glaziers. The Employer's crew re- turned to this jobsite on 23 February and the Gla- ziers resumed its purported area standards picket- ing. The Glaziers continued to picket the jobsite on 23 and 25 February and, upon being informed on 25 February that the Employer was not on the site, stopped picketing. The Employer has not returned to the jobsite since 24 February and the Care Unit Hospital jobsite has not been picketed since 25 February. i According to undisputed evidence, the job superintendent, Eddie Smith, is a supervisor He makes effective recommendations to the man- aging partner, Larry Proemsey, concerning discharges and generally is in charge of the work on the site, subject only to Proemsey's review Thus, he has the authority to assign work, allow employees to take time off, set working hours and lunchbreaks, discipline employees, and direct the manner and method of work including necessary corrections We, there- fore, do not make any award of the work he performs See Teamsters Local 170 (Henley-Lundgren Co), 240 NLRB 649 (1979), and cases cited therein at fn 2 280 NLRB No. 112 GLAZIERS LOCAL 513 (CUSTOM CONTRACTING) B. Work in Dispute The notice of hearing states that the work in dis- pute consists of the removal of existing wooden windows and installation of preglazed aluminum replacement windows at the Care Unit Hospital lo- cated at 1775 South Grant Boulevard, St. Louis, Missouri. The Employer assigned this work to its unrepresented crew. The Glaziers would neither admit nor deny that a claim was made for this work. However, the parties stipulated that the Gla- ziers established pickets on Monday, 28 January 1985; Saturday, 23 February 1985; and Monday, 25 February 1985, which coincides with each attempt by the Employer to return to the site to perform the disputed work. This work has been halted since 24 February 1985 due to the picketing by the Gla- ziers. C. Contentions of the Parties The Employer contends that there is reasonable cause to find a violation of Section 8(b)(4)(D) of the Act, and that the disputed work was properly assigned to its unrepresented employees. The Em- ployer also contends that the partnership arrange- ment under which it operates does not preclude a finding of an employer-employee relationship among the partners. It asserts that the managing partner, along with the senior partners assigned to act as job superintendents, has the authority to direct and assign the work and control the employ- ment and working conditions of the other partners. With respect to the merits, the Employer contends that such relevant factors as employer and area practice, efficiency and economy, and the absence of a collective-bargaining agreement with the Gla- ziers or any other party favor an award of the dis- puted work to the Employer's unrepresented em- ployees. Finally, it contends that if its employees are not assigned this work, some of them will have to be laid off. The Glaziers contends that there is no reasonable cause to find the violation of Section 8(b)(4)(D) of the Act because Custom Contracting Company is not an employer within the meaning of the Act, in- asmuch as the "partners," which entirely compose its work force, are not employees within the mean- ing of the Act. The Glaziers did not deny making a claim for disputed work on behalf of the employees it represents and presented no evidence to rebut the Employer's contention to this effect. Neither did it present evidence that the merits of the dis- pute favor the award to the employees it repre- sents, nor dispute the Employer's contentions in that regard. 975 D. Applicability of the Statute Before the Board may proceed with a determina- tion of 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) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. As indicated above, the Glaziers contends that the Employer is a partnership and has no employ- ees. On this basis, it has moved for the notice of hearing to be quashed.2 The pertinent facts with regard to this issue are as follows. The Employer is a partnership in name, with 6 senior partners and 18 junior partners. All have signed a partership agreement which provides for an hourly wage, plus a percentage share in the profits as well as losses. Senior partners receive ap- proximately twice the hourly wage rate received by the junior partners. Senior partners have one share each in the profits and one vote each in part- nership matters. Junior partners each have one-half share and one-half vote in partnership matters. Some, but not all senior partners, are superintend- ents with apparent supervisory duties. No mone- tary investment is required to become a partner. The Employer owns no property and leases its equipment. (The crew must supply their own hand- tools.) The partnership provides for a managing partner, Larry Proemsey, and invests virtually all manageri- al authority in his hands. This condition preexisted the formation of the partnership 4 years ago and was not voted upon by any of the partners. Proem- sey has the authority to bid for and arrange for all contracts and to direct "the method and manner of job performance" of all the other partners. He de- cides when and which new individuals will be brought into the agreement-apparently without the required approval of the other partners. He also has discharged three partners during a 3- month probationary period, pursuant to an oral prearrangement with the other partners granting him this authority. He has appointed a senior part- ner, Eddie Smith, to be superintendent at the Care Unit Hospital jobsite and this person is responsible for the job there "from A to Z," subject only to Proemsey's review. Starting wages are set and are changed by vote of all the partners, but almost all the junior partners are unskilled when they begin working for the Employer and start at a low, uni- 2 Sec 10(k) of the Act limits the Board's authority to hear and deter- mine disputes out of which Sec 8(b)(4)(D) charges have arisen to work disputes between competing groups of employees Teamsters Local 236 (Maxon Construction Co), 194 NLRB 594 (1971) 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form rate. Junior partners may become senior part- ners by vote of the entire partnership. However, two persons have been made senior partners, ap- parently by Proemsey, 6 and 9 months prior to the hearing, respectively, and the partnership has not yet voted on the ratification. The agreement pro- vides that the partnership can decrease of increase Proemsey's authority and undisputed testimony was presented that it can even remove him. How- ever, in the 4 years of the Employer's existence, the partnership has ratified every decision made by Promesey. The Employer withholds no Federal or state taxes, makes no social security deductions, and pays no unemployment compensation. Although Proemsey testified that the partnership continues from job to job (with partners coming and going), Job Superintendent Smith testified that new part- nership agreements are signed for each job lasting more than a few days. A review of these facts in light of the basic tenets of partnership law demonstrates that the nonsupervisory members of the Employer's work force are not partners.3 We, therefore, find no merit to the Glaziers' contrary contention. It is well settled that partnership status is determined on the totality of the facts.4 However, the facts here fall short on several of the factors that the Uniform Partnership Act (UPA) and pertinent case law hold relevant to this determination. For instance, the UPA requires that all partners must approve the selection of all other partners.5 Here, Proemsey selects those persons to be includ- ed, with no evidence presented that any other of the purported partners must approve the selection or are even consulted. Further, no monetary in- vestment is required and the individuals receive part of their compensation as hourly wages. Signifi- cantly, although the UPA presumes partnership from shared profits,6 it specifically excludes shared profits in return for labor.7 Other indicia of em- ployment rather than partnership status include the unilateral right of the individual to leave and the right of the partnership to discharge him." Both are present here. Another pertinent consideration is the delegation of managerial authority-9 Thus, the right of each 3 We have looked to the Uniform Partnership Act and other Federal and state authority for guidance in making this determination 4 See Potts v Lux, 161 Kan 217, 166 P 2d 694, 696-698 (1946). Sec 18(g) 6 Sec 7(4) ' Sec. 7(4)(b) 6 E g., Georgia Casualty Co. v Hoage, 61 U S App D C 195, 59 F 2d 870, 873 (1932). e Re Estate of Foreman, 269 Ca App 2d 180, 74 Cal Rptr 699, 706 (1969), Tafoya v. Trisler, 8 Ariz App 250, 445 P.2d 452, 455 (1968), Hayes v Killinger, 235 Or 465, 385 P 2d 747, 753-754 (1963) partner to participate in the management of the business is well settled.1 ° Although the partnership agreement at issue here purports to give the part- ners some input into managerial decisions, the facts show that this input is more nominal than effective. In 4 years, there has been uniform approval of Proemsey's decisions and, as noted above, Proem- sey's actual authority appears to have been un- changed in any meaningful way from that which he exercised prior to the formation of the partner- ship. Further, although all partners allegedly vote to approve promoting junior partners, two senior partners have had that status for 6 to 9 months without a ratification vote yet taken. Finally, al- though the partners may reduce or increase Proem- sey's authority, according to the agreement, and even remove him, their power to do so has never been exercised in even the most minimal matters. In sum, consideration of all the above factors leads to the conclusion that the purported partner- ship is a partnership in name only and the nonsu- pervisory personnel, who have been assigned the disputed work, are not true partners but employ- ees.'-' The degree of control that the managing partner Proemsey exercises over these individuals, with minimal effective input from them, further supports a finding that their relationship is more accurately characterized as that between employer and employee.12 Having found that the nonsupervisory partners are employees within the meaning of the Act, we next consider whether the Glaziers took action to force or require the Employer to assign the work in dispute to employees it represents rather than to the latter's unrepresented employees. The Glaziers neither admits nor denies that it made a claim for the disputed work, but it presented no evidence re- butting the Employer's evidence that it has. As noted, on 24 January and again on 28 Janu- ary, the business representative of the Glaziers made a demand of the Employer for the assign- ment of work-including the work in dispute-to the employees it represents and threatened the Em- ployer with picketing if the assignment were not However, delegation per se does not defeat partnership status See Greenhouse v. Zemsky, 153 Conn 501, 218 A 2d 533, 538 (1966); Claude v. Claude, 191 Or 308, 228 P 2d 776, 783-784 (1951), rehearing denied 191 Or 341, 230 P 2d 211 (1951) 10 Church v Collier, 71 Ariz 353, 227 P 2d 385, 388 (1951), Armstrong v Commissioners of Internal Revenue, 143 F 2d 700, 704 (10th Cir 1944) See also Hayes v Killinger supra I I We note that although taxes are not withheld and workmen's com- pensation is not paid for these individuals, these factors have not been held determinative of employee status E.g, Seven-Up Bottling Co v. NLRB, 506 F 2d 596 (1st Cir 1974), enfg 211 NLRB 521 (1974) 12 See Great Scot Super Market, 156 NLRB 592, 596-597 (1966), enfd 368 F 2d 173 (7th Cir 1966) See also Capitol Smoked Fish Corp, 107 NLRB 752 (1954) GLAZIERS LOCAL 513 (CUSTOM CONTRACTING) made. It is also undisputed that the Glaziers picket- ed at each instance when the Employer's work force performed the work in dispute-on 28 Janu- ary, and on 23 and 25 February. Although the picket signs carried by the Glaziers referred to the project's wages and working conditions as alleged- ly substandard to those in the area, it is undisputed that neither the Glaziers business representative nor any other of its agents ever inquired of the Em- ployer what its wages and working conditions were. We, therefore, find that the Glaziers failed to make a bona fide attempt to determine whether the Employer in fact failed to conform to area stand- ards,13 and conclude that an object of the Glaziers' conduct was to force or require the Employer to assign the disputed work to the employees the Gla- ziers represents rather than to the Employer's un- represented employees. Accordingly, we find that reasonable cause exists to believe that Section 8(b)(4)(D) of the Act has been violated. l4 The parties stipulated, and we find, that no agreed-upon method for the voluntary adjustment of this dispute exists. Based on all the above, we conclude that the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative 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 involved in a par- ticular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). As noted above, the Glaziers presented no evidence on this issue. The following factors are relevant in making the determination of this dispute. 1. Collective-bargaining agreements and certifications The parties stipulated that the Employer has no collective-bargaining agreement with the Glaziers or any other labor organization and that there is no relevant certification of representative by the Board . Therefore, this factor is not helpful to our determination. 13 Bricklayers Local 13 (Biork Builders), 265 NLRB 448, 450 (1982), and cases cited at fn 4 14 Accordingly, the Glaziers motion to quash the notice of hearing is denied 977 2. Employer assignment, practice, and preference In accord with the Employer's consistent past practice and its stated preference, the work in dis- pute has been assigned to the Employer's unrepre- sented employees because , according to the Em- ployer's managing partner, the Employer is the li- censed, authorized EFCO (a brand of replacement window) factory installer in St. Louis and its em- ployees have been specifically trained to install this system. According to his undisputed testimony, the Employer's employees have installed every EFCO replacement window in the city of St. Louis and none of the employees represented by the Glaziers has installed any such windows. Based on the above, we find that the factors of employer assign- ment, practice, and preference favor the award of the work in dispute to the unrepresented employ- ees. 3. Area practice The installation of replacement windows in the St. Louis area has traditionally been done by either nonunion installers, self-employed carpenters, or carpenters from the hiring hall. Proemsey listed 10 companies that used these employees, including Delsan Aluminum and Moeller-Reimer Company. Proemsey did not know of any employees repre- sented by the Glaziers installing preglazed replace- ment windows. Mendel Rosenberg, the president of Delsan Aluminum, also testified that his company utilizes nonunion installers or carpenters , either self-employed or from the Carpenters hiring hall, to install its windows, and never employees repre- sented by the Glaziers. He further testified that he did not know of any company using employees represented by the Glaziers. He further testified that he did not know of any company using em- ployees represented by the Glaziers to install preg- lazed replacement windows. Similarly, the com- mercial salesman for Moeller-Reimer, Joe Stark, testified that his company uses self-employed car- penters to install this kind of windows and he did not know of any company in the St. Louis area using employees represented by the Glaziers for this kind of work. Based on the above, we conclude that this factor favors the award of the work in dispute to the un- represented employees of the Employer. 4. Relative skills and training According to Proemsey, the work in dispute consists basically of taking out wooden windows and then installing aluminum preglazed windows. He further testified that installing retrofit window 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD systems made by EFCO is entirely different from installing other windows. Each EFCO window system has 30 to 60 individual parts, including completed panning and snap tips that are all coded by numbers. Proemsey stated that to install these windows an employee has to understand the EFCO manual, which requires an understanding of the coding system. Similarly, the Employer installs windows of several other companies and each of these also has its own system. He further explained that because of the complexity of these window systems, especially the EFCO window system, a thorough knowledge of each system is required to install the windows properly. He testified that the Employer's unrepresented employees have this knowledge and experience, noting that the Em- ployer is the licensed authorized EFCO installer in St. Louis, and that its employees are specifically trained in the installation of this system. Finally, he testified that the employees represented by the Gla- ziers have no experience with EFCO or any other brand of retrofit window. Based on the above undisputed evidence, we conclude that this factor favors the award of the work in dispute to the unrepresented employees of the Employer. 5. Economy and efficiency of operations According to Proemsey, it would be more eco- nomical and efficient for the Employer's own em- ployees to perform the work in dispute because the employees represented by the Glaziers would have to be trained whereas its own employees have al- ready been trained. He also testified that because 90 percent of the Employer's work is with preg- lazed retrofit window systems, its employees have gained speed and efficiency by installing them on a daily basis. Relying on this undisputed testimony, we con- clude that the factor of economy and efficiency of operations favors assignment of the disputed work to the unrepresented employees of the Employer. Conclusion After considering all the relevant factors, we conclude that the Employer's unrepresented nonsu- pervisory employees are entitled to perform the work in dispute. Thus, the following factors favor an award of the work in dispute to these employ- ees: the Employer's assignment, preference, and past practice, area practice, the relative skills and training of the Employer's employees, and the effi- ciency and economy of operations which will result from such assignment. The present determi- nation is limited to the particular dispute which gave rise to this proceeding.' 5 DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Unrepresented nonsupervisory employees of Custom Contracting Company are entitled to per- form the removal of existing wooden windows and installation of preglazed aluminum replacement windows at the Care Unit Hospital located at 1775 South Grant Boulevard, St. Louis, Missouri. 2. Glaziers, Architectural Metal & Glass Work- ers Local Union No. 513 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Custom Contracting Company to assign the disputed work to employees represented by it. 3. Within 10 days from this date, the Glaziers, Architectural Metal & Glass Workers Local Union No. 513 shall notify the Regional Director for Region 14 in writing whether it will refrain from forcing the Employer, by means proscribed by Sec- tion 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination. MEMBER JOHANSEN, dissenting. The Employer held itself out as a partnership and its employees as partners. It should not be heard to complain when it was taken at its word. I would quash the notice of hearing. is The Employer requests that the Board issue a broad order assigning the disputed work to its unrepresented employees at all future jobsites anywhere within the area that it operates In issuing our award , we note that the Glaziers has threatened to picket at the Employer's future job- sites unless the Employer assigns some of the work of this kind to the employees it represents In our view, such a threat does not alone estab- lish that similar disputes will necessarily occur in the future According- ly, we hold that the determination in this case should include only the present job on which the dispute arose Plumbers Local 157 (L & K Con- tracting Co.), 186 NLRB 1103, 1106 (1970)