Glass Workers Local No. 740

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1155 (N.L.R.B. 1976)

GLASS WORKERS LOCAL NO 740
Glass Workers Local No 740, International Brother-
hood of Painters and Allied Trades , AFL-CIO and
Tom Benson Glass Co, Inc I and International As-
sociation of Bridge, Structural and Ornamental Iron
Workers, Local No 29, AFL-CIO Case 36-CD-
137
June 18, 1976
DECISION AND ORDER QUASHING NOTICE
OF HEARING
BY MEMBERS FANNING, JENKINS, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Tom Benson Glass Co, Inc
(herein called the Employer), on October 1, 1975, al-
leging that Glass Workers Local No 740, Interna-
tional Brotherhood of Painters and Allied Trades,
AFL-CIO (herein called Glass Workers), had violat-
ed Section 8(b)(4)(D) of the Act by engaging in cer-
tain proscribed activities with an object of forcing
the Employer to assign certain work to the employees
represented by the Glass Workers, rather than to em-
ployees represented by the International Association
of Bridge, Structural and Ornamental Iron Workers,
Local No 29, AFL-CIO (herein called the Iron
Workers)
Pursuant to notice, a hearing was held before
Hearing Officer Dale B Cubbison on November 5,
1975 All parties appeared at the hearing and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence
bearing on the issues Thereafter, briefs were filed by
the Employer, the Glass Workers, and the Iron
Workers
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error The rulings are hereby
affirmed The Board has considered the entire record
in this case and hereby makes the following findings
I THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer is an Oregon corporation engaged in the busi-
ness of glazing, including the fabricating and install-
ing of glass curtain walls and window walls In the
1 The Employers name was corrected at the hearing
1155
past 12 months it has performed services or sold
goods valued in excess of $50,000 to customers which
themselves meet the Board's direct-inflow jurisdic-
tional standard Accordingly, we find that the Em-
ployer is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that it will effec-
tuate the policies of the Act to assert jurisdiction
herein
II THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that the Glass
Workers and Iron Workers are labor organizations
within the meaning of Section 2(5) of the Act
III THE DISPUTE
A The Work in Dispute
The work in dispute consists of the assembly and
installation of aluminum window frames in all upper
floors (second and above) in all buildings at the Gen-
eral Electric Service Headquarters jobsite at 1 S W
Salmon Street, Portland , Oregon
B Background and Facts of the Dispute
On November 11, 1974, the Employer was award-
ed a contract by Blaesing Granite Company (herein
called Blaesing) covering the work in dispute The
job involved herein requires approximately 20 men
and had been scheduled to begin on December 15,
1975 The Employer was contacted by the Iron
Workers representative, Leroy Worley, in late spring
or summer 1975 regarding the work in dispute On
September 30, 1975, in response to being told that
the Iron Workers was claiming the work, Richard
Bragiel, business representative for the Glass Work-
ers, told the Employer's supervisors that "[I]f you put
anybody else except Glaziers on that job, I'm going
to strike you " At another time he stated, "[N]o that's
our work and we're going to keep it "
The business representatives for both unions re-
quested a meeting with the Employer to discuss the
work assignment The Employer replied that such a
discussion was unnecessary as the job had already
been assigned to the Glass Workers The meeting
did, however, take place Bragiel opened with the
statement that "Worley and I are taking this to pro-
cedures", to which the Employer's president re-
sponded, "It makes no difference because we're
going 10(k) " Upon that remark, the union represen-
tatives left
224 NLRB No 62
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C Contentions of the Parties
The Iron Workers contends that this proceeding
should be quashed because there exists an agreed-
upon method for the voluntary settlement of the dis-
pute to which all parties are bound Alternatively, the
Iron Workers concedes that, if the notice of hearing
is not quashed, the Board should determine that the
work in dispute properly belongs to the employees
represented by the Glass Workers since the Iron
Workers presented no evidence on the merits at the
hearing
The Employer contends that there is reasonable
cause to believe that the Glass Workers violated Sec-
tion 8(b)(4)(D) of the Act, and that there is no volun-
tary method of adjustment to which all of the parties
have agreed to be bound Specifically, the Employer
claims it is not bound since it has not signed a stipu-
lation obligating itself to submit conflicts to the Im-
partial Jurisdictional Disputes Board (herein called
the IJDB), it is not a member of a stipulated employ-
er association, and it is not a party to any collective-
bargaining agreement providing for settlement of
such disputes by the IJDB
The Glass Workers agrees that the Employer is not
bound to resolution of this dispute by the IJDB and
thus no method for the voluntary adjustment of this
dispute exists It argues further that even if the clause
in the subcontract is sufficient to obligate the Em-
ployer to deal with the IJDB, it is not clear that the
IJDB would assert jurisdiction over the dispute
D Applicability of the Statute
Before the Board may proceed to a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be satisfied that (1) the parties have not agreed
upon a method for the voluntary adjustment of the
dispute, and (2) there is reasonable cause to believe
that Section 8(b)(4)(D) has been violated
With respect to the issue of a voluntary method for
the adjustment of the dispute, we find for the reasons
stated below, that an agreed-upon method exists in-
asmuch as all the parties to the instant dispute are
required to submit their jurisdictional disputes to the
new Impartial Jurisdictional Disputes Board for de-
termination
Both the Glass Workers and the Iron Workers
agree that they are bound to submit jurisdictional
disputes to the IJDB, as both they and their Interna-
tionals are members of the Building and Construc-
tion Trades Department of the AFL-CIO and are
signatory to the agreement creating the IJDB The
Iron Workers asserts that the Employer is also bound
based on the November 11, 1974, agreement between
Blaesing and the Employer which provides in impor-
tant part as follows
19 JURISDICTIONAL DISPUTES-Any jurisdictional
dispute involving any work covered by this Sub-
contract shall be determined by the Building
Trades Department "National Joint Board for
Settlement of Jurisdictional Disputes", or its
successor
The National Joint Board for Settlement of Jurisdic-
tional Disputes (herein called the NJB) was abol-
ished prior to June 1, 1973 On June 1, 1972, the
IJDB became effective
As stated above, the Employer , as well as the Glass
Workers , disputes the Iron Workers claim that the
Employer is bound, arguing that the subcontract's
clause is not equivalent to a stipulation binding it to
the IJDB It is our view that the successorship lan-
guage in the contract must be construed as referring
to the IJDB and therefrom does obligate the Em-
ployer to submit the instant jurisdictional dispute to
it for resolution
The Glass Workers reliance on the Lembke line of
cases is misplaced 2 In those cases , the obligation to
be bound by the NJB ceased with the termination of
that body There was, however, no successorship lan-
guage present in any of those decisions We consider
this fact to be crucial in distinguishing those cases
from the one at hand In this connection , the Board
in Industrial Turf 3 construed the phrase "may be
adopted" in the contract clause providing that "it is
hereby agreed that such plan for settlement of juris-
dictional disputes as is or may be adopted by the
American Federation of Labor , Building and Con-
struction Trades Department , shall be used" referred
to "the new IJDB and its successors" and bound the
employer therein to the settlement procedures of the
IJDB The same construction was given by the Board
to similar language in ELT Piping 4 Similarly, in the
present case , the contract specifically refers to the
NJB, "or its successor" which is the IJDB
Furthermore, we are of the view that by signing
the subcontract the Employer agreed to be bound by
all of its provisions The Employer should therefore
be held to the logical construction of the pertinent
2 Bricklayers Masons & Plasterers International Union of America Local
No 1 (Lembke Construction Company of Colorado Inc) 194 NLRB 649
(1971) Sheet Metal Workers Union Local No 4 (Tennessee Acoustics) 194
NLRB 1081 (1972) Sheet Metal Workers Local 19 (Modern Cooling Inc)
199 NLRB 1020 (1972) Glaziers Glassworkers and Glass Warehouse Work
ers Union Local No 636 (Plaza Glass Company 214 NLRB 801 (1974) In
Lembke supra Member Fanning would have quashed the notice of hearing
3 Construction Production & Maintenance Laborers Union Local No 383
of the Laborers International Union (Industrial Turf Inc) 218 NLRB 424
(1975)
4 Sheet Metal Workers Local Union No 359 affiliated with Sheet Metal
Workers International Association (ELT Piping) 217 NLRB 987 (1975)
GLASS WORKERS LOCAL NO 740 1157
language and be required to submit this dispute to
the IJDB Member Jenkins presumes too much in
suggesting that this matter can again be raised before
this Board That issue is not before us
In view of the foregoing, we find that all parties
have agreed to be bound by a determination of the
new IJDB I Accordingly, we shall quash the notice of
hearing issued herein
ORDER
It is hereby ordered that the notice of hearing is-
sued in this proceeding be, and it hereby is, quashed
MEMBER JENKINS, dissenting
I have previously expressed my concern over the
policy this Board is following in denying employers
the right to invoke the procedures of Section 10(k) of
our Act by finding agreed-upon voluntary methods
for the resolution of the dispute when, in fact, the
employer has never agreed that such disputes should
be resolved in another forum 6 My objections to this
policy have been fully set forth and I shall not repeat
them here However, I do feel obligated to point out
that a new and most disturbing precedent is being
established in this proceeding
In prior cases, the employer's "agreement" to be
bound by the procedures of the Impartial Jurisdic-
tional Disputes Board (IJDB) was based on language
in a collective-bargaining agreement between the em-
ployer and one of the unions party to the dispute
Here, the provision relied on to bind the Employer is
5 In view of this finding we find it unnecessary to pass on whether there
was reasonable cause to believe that Sec 8 (b)(4)(D) of the Act has been
violated by the Glass Workers
6 See my dissenting opinion in United Association of Journeymen and Ap
prentices of the Plumbing and Pipe Fitting Industry of the United States and
Canada Local Union No 447 AFL-CIO (Capitol Air Conditioning Inc) 224
NLRB 985 (1976)
contained in the subcontracting agreement between
Blaesing, the general contractor, and the Employer
as subcontractor The differences between the two
situations I think are obvious A commitment made
as a result of the "give and take" in the negotiation of
a collective-bargaining agreement is a commitment
which should not be treated lightly However, in
my opinion, there is nothing voluntary in a
subcontractor's being forced to accept a unilaterally
imposed condition by the general contractor in order
to have his bid accepted To me, such an approach
makes a mockery of the concept of voluntary agree-
ment
It also seems to me highly unlikely that the IJDB
would accept jurisdiction in these circumstances The
plan for settlement of jurisdictional disputes in the
construction industry under which the IJDB func-
tions contemplates a situation in which the parties
have agreed to be bound by its procedures in future
disputes as well as the one then before it But here,
the Employer's commitment, if in fact it has made
one, lasts only for the one job covered by the subcon-
tracting agreement and the work in question will
have long since finished before the IJDB can decide
the matter If the IJDB does not take jurisdiction, the
matter might be raised again before this Board, re-
sulting in a decision still longer delayed, or if a re-
newed plea to this Board would be denied, the dis-
pute is left without resolution The procedures of
Section 10(k) were designed to provide a quick and
efficient method of forestalling the exercise of eco-
nomic pressures until their legality could be de-
termined at least in a preliminary manner My col-
leagues' action here must certainly subvert this
purpose
I would proceed to a determination of this dispute
on the merits