Carpenters Local 1 (Northern Window Products)

National Labor Relations Board - Board Decisions

Feb 28, 1991

301 N.L.R.B. 1216 (N.L.R.B. 1991)

1216
301 NLRB No. 155
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Local Union No. 1, Chicago and Northeast Illinois
District Council of Carpenters, United Brother-
hood of Carpenters and Joiners of America,
AFL–CIO and Northern Window Products,
Inc. and Glaziers, Architectural Metal and
Glassworkers’ Local Union No. 357, Inter-
national Brotherhood of Painters and Allied
Trades, AFL–CIO. Case 3–CD–430
February 28, 1991
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed July 20, 1990, by the Employer, alleging that the
Respondent, Carpenters Local Union No. 1 (the Car-
penters), violated Section 8(b)(4)(D) of the National
Labor Relations Act by engaging in proscribed activity
with an object of forcing the Employer to assign cer-
tain work to employees it represents rather than to em-
ployees represented by Glaziers Local Union No. 357
(the Glaziers). The hearing was held August 9, 1990,
before Hearing Officer Danielle J. Faulkner. Thereafter
the Employer filed a brief in support of its position.
The National Relations Board has delegated its au-
thority 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
The Employer, a Michigan corporation, sells and in-
stalls replacement windows. Its principal place of busi-
ness is in Brighton, Michigan. During the past 12
months the Employer purchased and received at its Illi-
nois construction site goods and materials valued in
excess of $50,000 from points located outside the State
of Illinois. During that same time period, the Employer
received more than $250,000 in gross revenues. The
parties stipulate, and we find, that the Employer is en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that the Carpenters and the Gla-
ziers are labor organizations within the meaning of
Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
In November 1989, the State of Illinois awarded a
contract to the Employer (Northern) to remove and re-
place windows at the State of Illinois Building at 160
North LaSalle Street in Chicago. In May 1990, Mark
Caster, Northern’s owner and president, with other em-
ployers who are not parties to this proceeding, formed
the Retrofit Employers Association, Inc. That Associa-
tion, in June 1990, entered into a contract with the
Glaziers that recognizes it as having jurisdiction over
work on retrofit or replacement projects described as
the unloading, distribution, assembly, and installation
of preglazed windows, panning systems, and acces-
sories, including the demolition and removal of exist-
ing sashes, stops, and interior trim and the caulking,
shimming, and blocking necessary for such work. The
contract will expire in 1993.
Northern started its window replacement project at
the State of Illinois Building on July 9, 1990, using
only employees it employed out of its Michigan busi-
ness location who were represented by the Glaziers.
On July 10, the Carpenters notified Northern orally
and in writing that Northern’s employees were per-
forming carpentry work at the State of Illinois Build-
ing and that they were not receiving wages and bene-
fits that conformed to area standards. On that date, Jim
Holland, the Carpenters’ job steward, asked James
Roy, Northern’s foreman at the State of Illinois Build-
ing site, to present his credentials. Roy then showed
Holland his Glaziers card. Somewhat later Casey
Vrasic and Bob Quanstrom, the Carpenters’ business
agents, along with Ken Wallendorf, the business rep-
resentative for Glaziers Local No. 27 (the Chicago
local), approached Roy. Vrasic checked Roy’s union
card and then asserted that Northern’s employees had
no business being there. Vrasic also said that if
Northern’s employees refused to leave the job, he
would throw up pickets and pull employees off the
site. Vrasic next saw Rob Bolt, the job superintendent
for Walsh Construction Co. of Illinois, the project’s
general contractor and again threatened to take the car-
penters off the job. Vrasic, Quanstrom, Wallendorf,
and Bolt then met with Bob Nowak, Walsh’s senior
project manager. Nowak’s testimony, which was cor-
roborated by Bolt, indicated that Vrasic told him the
work belonged to employees represented by the Car-
penters and that Wallendorf had confirmed it was the
Carpenters’ work. Vrasic added that if Northern con-
tinued to do the work the Carpenters would have to
consider Northern nonunion and therefore would leave
the job and picket the site. Although Vrasic in his sub-
sequent testimony denied the gist of the conversation
as recounted by Nowak and Bolt, he admitted that he
had said that the Carpenters would picket, albeit by
following procedures that would enable it to engage in
area standards picketing. Vrasic admitted that he said
he would ‘‘pull our carpenters off the job.’’
On July 10, the Carpenters also wrote general con-
tractor Walsh stating that Walsh had violated its con-
tract by subcontracting work to Northern. Vrasic testi-
fied that the letter was sent because the subcontracting
clause stipulated that the general contractor ‘‘would
not subcontract carpentry work outside our bargaining
unit.’’ Vrasic also admitted that he asked Nowak to
1217CARPENTERS LOCAL 1 (NORTHERN WINDOW PRODUCTS)
delay the window work until the matter could be set-
tled. Subsequently, the general contractor asked North-
ern to keep its employees off the job. Thereafter,
Northern filed the instant unfair labor practice charge
against the Carpenters.
B. Work in Dispute
The disputed work involves the removal of old win-
dows and the installation of new ones at the State of
Illinois Building, 160 North LaSalle, Chicago, Illinois.
C. Contentions of the Parties
Northern contends that the disputed work should be
awarded to its employees represented by the Glaziers
in view of the following factors: its collective-bar-
gaining agreement with the Glaziers covering the work
in dispute and the absence of any relevant collective-
bargaining agreement between Northern and the Car-
penters; Northern’s traditional assignment of the work
to its own employees and its preference for that assign-
ment; area and industry practice; its employees’ req-
uisite skills, and prior Board decisions. Northern also
contends that no common method of adjustment exists
to which all parties are bound.
Although the Carpenters has submitted no
posthearing brief, the testimony it presented and the
exhibits it introduced at the hearing indicate that it
contends that no jurisdictional dispute exists because
Glaziers Local 27 has disavowed interest in the work.
The Carpenters further contends that its interest was
merely in enforcing area standards and that there is an
agreed-on method for voluntary resolution of the dis-
pute. It nevertheless contends that area and industry
practice supports the performance of the disputed work
by employees it represents and that its members have
the experience and skills to perform that work.
D. Applicability of the Statute
On July 10, 1990, the Carpenters claimed the work
in dispute for the employees it represents and threat-
ened a work stoppage in order to compel assignment
of that work to its employees. That the business rep-
resentative of Glaziers Local 27 may have disclaimed
interest in the disputed work is of no import inasmuch
as Local 27 does not represent the Northern employees
and is not a party in interest. Furthermore that dis-
claimer cannot be imputed to Glaziers Local 357, the
party in interest, because that local did not join in the
disclaimer and, more importantly, its members kept
performing the work in dispute both before and after
the Carpenters’ threatened picketing. Accordingly, we
find that no effective disclaimer of the work in dispute
has occurred. See Operating Engineers Local 150
(Austin Co.), 296 NLRB 928, 939 (1989). Con-
sequently, we find reasonable cause to believe that a
violation of Section 8(b)(4)(D) has occurred.
Although the Carpenters contends that there is an
agreed-on method for resolving jurisdictional disputes
such as the one here, it relies on an agreement to
which Glaziers Local 27 is a party for that contention.
As noted above, however, Local 27 is not a party in
interest in the instant dispute. Moreover, the evidence
shows that neither the Employer nor Glaziers Local
357 is bound to the dispute resolution process ad-
vanced by the Carpenters. Accordingly, we find that
there exists no agreed-on method for voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act and that the dispute is properly before
the Board for determination. See Sheet Metal Workers
Local 141 (Debra Construction), 245 NLRB 310, 312
(1979).
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
agreement
The parties stipulated that there is no Board Order
covering the disputed work or Board certification de-
termining the bargaining representative of Northern’s
employees. In June 1990, the Retrofit Employer’s As-
sociation, of which Northern is a member, entered into
a collective-bargaining agreement with Glaziers Local
No. 357, of which Northern’s employees are members.
That agreement, which encompasses the type of work
here in dispute, expires in 1993 and is therefore cur-
rent. There is no evidence that Northern is a party to
any other collective-bargaining or jurisdictional agree-
ment. Consequently this factor favors assignment of
the disputed work to Northern’s employees represented
by the Glaziers.
2. Company preference and past practice
The record is clear that Northern prefers to employ
its own work crew and customarily has employed that
crew when it has worked on projects. Thus this factor
favors assignment of the work to Northern’s employ-
ees represented by the Glaziers.
3. Area and industry practice
The testimony and documentary evidence presented
shows that members of the Carpenters and the Gla-
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Carpenters either has declared in this proceeding or has apparently
agreed in related collective-bargaining arrangements that these three segments
of the work in dispute are within the respective craft jurisdictions of the La-
borers, Iron Workers, and the Glaziers Unions.
ziers, as well as members of the Iron Workers and La-
borers Unions, have all done window replacement
work in the Chicago area. In addition, many projects
in the Chicago area have been executed by nonunion
employers, including several by Northern before it
helped form the Retrofit Employers Association which
entered into the collective-bargaining agreement with
the Glaziers. Because work crews whose members
have belonged to different unions or to no union at all
have performed the type of work in question, informa-
tion pertaining to this factor favors neither group of
employees.
4. Relative skills
The work in question involves measuring, cutting,
and drilling of wood, metal, and glass. Although
Northern claims that in the past carpenters obtained
from the local hiring hall were unable to adapt their
skills to the work required of them, witnesses for the
Carpenters testified that they use the same tools and
perform the same functions as employees represented
by the Glaziers. The Carpenters’ witnesses further tes-
tified that at least 200 of its members were experi-
enced in window replacement work. The evidence per-
taining to this factor is inconclusive.
5. Economy and efficiency of operations
Northern’s employees have worked together for sev-
eral years and, except for cutting the panning, which
is done by only its most experienced employees, per-
form the various functions involved in the removal and
replacement of windows interchangeably. Assignment
of the work to employees represented by the Car-
penters could result in considerable fragmentation be-
cause the record indicates that the carpenters would
defer to other employees for the performance of certain
aspects of the work in dispute—for example, for por-
tions of window removal and cleanup, for metal sash
installation and some metal panning work, and for
glass replacement.1 In addition, witnesses for Northern
testified that caulking, a task regularly done by its em-
ployees, is infrequently done by carpenters and that it
would require considerable time to train them to do
this aspect of the work. The evidence thus indicates
that the most efficient way of performing the work in
question is to assign it to Northern’s employees rep-
resented by the Glaziers because they can perform the
entirety of the work involved in window replacement
and installation.
6. Joint Board determinations
No evidence was presented about determinations by
the National Labor Relations Board or dispute board
awards that involve this Employer. Accordingly, evi-
dence on this factor favors neither group.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the Glaziers are
entitled to perform the work in the dispute. We reach
this conclusion relying on the factors of collective-bar-
gaining agreements, employer preference and past
practice, and economy and efficiency of operations.
In making this determination, we are awarding the
work to employees represented by Glaziers Local No.
357, not to that Union or its members. The determina-
tion is limited to the controversy that gave rise to this
proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Northern Window Products, Inc.,
represented by Glaziers, Architectural Metal and Glass-
workers’ Local Union No. 357, International Brother-
hood of Painters and Allied Trades, are entitled to re-
move and replace windows at the State of Illinois
Building at 160 North LaSalle Street, Chicago, Illinois.
2. Local Union No. 1, Chicago and Northeast Illi-
nois District Council of Carpenters, United Brother-
hood of Carpenters and Joiners of America, AFL–CIO
is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force Northern Window Prod-
ucts, Inc. to assign the disputed work to employees
represented by it.
3. Within 10 days from this date, Local Union No.
1, Chicago and Northeast Illinois District Council of
Carpenters, shall notify the Regional Director for Re-
gion 13 in writing whether it will refrain from forcing
the Employer, by means proscribed by Section
8(b)(4)(D), to assign the disputed work in a manner in-
consistent with this determination.