Glaziers Glassworkers and Glass Warehouse Workers Union, Local No. 636

National Labor Relations Board - Board Decisions

Nov 12, 1974

214 N.L.R.B. 912 (N.L.R.B. 1974)

912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glaziers, Glassworkers and Glass Warehouse Workers
Union, Local No. 636, Affiliated with the Interna-
tional Brotherhood of Painters and Allied Trades,
AFL-CIO and Plaza Glass Company and Interna-
tional Association of Bridge, Structural and Orna-
mental Ironworkers , AFL-CIO, Local 433. Cases
31-CD-127 and 31-CD-129
November 12, 1974
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing separate charges filed by Plaza Glass Company,
herein called Employer, alleging that Glaziers, Glass-
workers and Glass Warehouse Workers Union, Lo-
cal No. 636, affiliated with the International Brother-
hood of Painters and Allied Trades, AFL-CIO, here-
in called Glaziers, and International Association of
Bridge, Structural and Ornamental Ironworkers,
AFL-CIO, Local 433, herein called Ironworkers, re-
spectively, violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with an object
of forcing or requiring the Employer to assign certain
work to employees represented by their respective or-
ganizations.
Pursuant to notice, hearing was held before Hear-
ing Officer Norman L. McCracken on May 20 and
21, 1974, and before Hearing Officer Raymond M.
Norton on June 14, 1974. All parties, including the
Employer, Glaziers, Ironworkers, and the Southern
California Glass Management Association 1 ap-
peared at the hearing and were afforded full opportu-
nity to be heard, to examine and cross-examine wit-
nesses, and to adduce evidence bearing on the is-
sues.2 Thereafter, the Employer, Glaziers, and
Ironworkers filed briefs.
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
Officers made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
1 At the hearing , the Southern California Glass Management Association
was permitted to intervene as a party in interest This association is com-
prised of some 82 employers , including Plaza Glass Company, engaged in
the glass and glazing industry in the Southern California area
2 Although Ironworkers was afforded the opportunity at the hearing to
present witnesses on its behalf , it declined to do so
Upon the entire record in this case, the Board
makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
We find that the Employer is a California corpora-
tion engaged in the business of glazing, including the
fabricating and installing of glass curtain walls and
window walls. The parties stipulated, and we find,
that the Employer has performed services or sold
goods valued in excess of $50,000 annually to cus-
tomers which themselves meet the Board's discre-
tionary direct-inflow jurisdictional standard. Accord-
ingly, we find that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act and that it will effectuate the purposes of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated , and we find , that Glaziers
and Ironworkers are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts
The following facts are undisputed. On March 19,
1973, Howard S. Wright Construction Co., a general
contractor, engaged the Employer as a subcontractor
to furnish and install aluminum doors, frames, win-
dows, and window wall units, and to perform other
glazing work on the Ocean View Apartment project
in Marina del Rey, California. At all times since the
Employer commenced working on that project it has
utilized its own employees represented by Glaziers to
perform such work.
During January 1974, Frank P. Ragusa, president
and one of the owners of the Employer, received a
telephone call from one Kinney, a representative of
Ironworkers. At that time Kinney stated that the Em-
ployer was using glaziers to perform work which be-
longed to ironworkers and requested that Ragusa
meet with him to discuss the matter.' Later that
month, during a meeting arranged between the two,
Kinney reiterated Ironworkers' claim to the work on
the Ocean View project and stated that he would do
"everything in his power" to stop glaziers from per-
forming the work. Kinney further warned Ragusa
J According to the uncontroverted testimony of Ragusa , Kinney had spo-
ken with him in November 1973 while the Employer was engaged in similar
work on another project At that time Kinney claimed such work for iron-
workers and stated that , although the Employer would be permitted to com-
plete that project, it would not be allowed to perform such work in the
future within Orange County, California , unless it employed ironworkers for
such work
214 NLRB No. 140
GLAZIERS GLASSWORKERS AND GLASS WAREHOUSE WORKERS UNION, LOCAL NO. 636
that if the Employer did not place ironworkers on the
job immediately , he would cause "one hell of a prob-
lem" with the general contractor and would shut
down the job.
Following this meeting, Ragusa telephoned Hel-
ton, a representative of Glaziers , and related the con-
tents of his conversation with Kinney . Helton then
informed Ragusa that the Employer was bound by
its agreement with Glaziers and that if it should em-
ploy ironworkers to perform the work on the Ocean
View project, Glaziers would consider the Employer
to have violated that agreement. Thereafter, by letter
dated February 12, 1974, Glaziers notified the Em-
ployer that in the event it did not assign to glaziers
the window wall work on the Ocean View project, as
well as similar work on other projects to be com-
menced in the future , Glaziers would take action "in-
cluding withdrawing Glaziers from yourjob sites, re-
fusing to dispatch Glaziers and picketing all job sites
where your Company is performing work. . ..
Subsequently , on March 15 , Ragusa was ap-
proached by Kinney at the Ocean View project. At
that time , Kinney told Ragusa that the Jurisdictional
Disputes Board had awarded the work at that project
to ironworkers and demanded to know why the Em-
ployer had not complied with the award. When Ra-
gusa advised Kinney to contact Glaziers, Kinney
again stated that he would go to the general contrac-
tor and shut down thejob . Shortly thereafter , Ragusa
received a telephone call from one Lansford, another
representative of Ironworkers, who suggested that
they meet to discuss the matter . Ragusa agreed to do
so and , on March 18 , he met with Lansford and Kin-
ney. During this meeting Ragusa rejected Ironwork-
ers' request to employ its members on the Ocean
View project, whereupon Lansford threatened to
shut down the job. Kinney then stated that the Iron-
workers is "big" and "powerful" and "we can get
anything we want," and then added , "You're Italian,
you know how the Mafia works? . . . They [Iron-
workers] could get rough and tough. . .
B. The Work in Dispute
The work in dispute consists of the fabricating and
installing of metal doors , metal framing pieces, and
glass panes in the construction of window wall units.
C. Contentions of the Parties
Ironworkers solely contends that this proceeding is
not properly before the Board because an agreed-
upon method for the voluntary settlement of the dis-
pute exists to which all parties are bound . In support
of this contention Ironworkers argues that all parties
913
herein are bound to the procedures of the Impartial
Jurisdictional Disputes Board for the Construction
Industry , herein called the Impartial Jurisdictional
Disputes Board , and, therefore , to a decision of that
body awarding the work in dispute to ironworkers.
The Employer contends that its assignment of the
disputed work is consistent with its collective-bar-
gaining agreement with Glaziers and its past practice
and area practice , and that the factors of relative
skills, safety , efficiency , and economy of operations
favor an award of the disputed work to employees
represented by Glaziers . The Employer further con-
tends that no agreed -upon method for the voluntary
settlement of the instant dispute exists to which all
parties are bound.
Glaziers, for reasons similar to those urged by the
Employer, contends that the work in dispute should
be awarded to employees represented by it. Glaziers
further contends that any award herein should not be
limited to the Ocean View project , but rather should
encompass all similar work performed by all glass
installing contractors in the southern California area.
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 there is no agreed -upon method for the volun-
tary settlement of the dispute.
As stated above, it is undisputed that Ironworkers
demanded the disputed work and, on various occa-
sions, threatened to shut down the Ocean View pro-
ject in support of its demand . It is further undisputed
that Glaziers claimed the work involved herein, as
well as such work to be performed by the Employer
in the future , and advised the Employer that if the
latter failed to assign such work to employees repre-
sented by it, it would withdraw its members , refuse to
dispatch its members, and picket the Employer's job-
sites. Based on the foregoing and the record as a
whole , we find that both Ironworkers and Glaziers
sought to force or require the assignment of the dis-
puted work to employees represented by their re-
spective organizations . Accordingly, we find reason-
able cause eixsts to believe that Ironworkers and
Glaziers, respectively , violated Section 8(b)(4)(D) of
the Act.
As noted above , Ironworkers contends that all par-
ties herein are bound to the procedures of the Impar-
tial Jurisdictional Disputes Board and to the decision
rendered by that body awarding the work involved
herein to ironworkers . With respect to the Employer,
Ironworkers primarily contends that it is expressly
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bound to the procedures of the Impartial Jurisdic-
tional Disputes Board by virtue of its subcontracting
agreement with the general contractor on the Ocean
View project, executed on March 19, 1973, and
which provides in pertinent part: "Subcontractors
are bound by [sic] agreement establishing [sic] Na-
tional Joint Board and its procedural rules in assign-
ment of work. . . ." Alternatively, Ironworkers con-
tends the Employer has in fact submitted the instant
dispute to that body inasmuch as it was fully aware
of, but did not protest, the proceedings before that
body, and it supplied evidence to Glaziers for use in
those proceedings. We find these contentions without
merit.
By its terms the above-quoted clause of the con-
tract between the Employer and the general contrac-
tor on the Ocean View project specifically refers to
the National Joint Board, a body which was in exis-
tence at the time of the execution of the contract, but
which had expired at the time of the events herein.
Applying the rationale set forth in Lembke,4 we hold
that the Employer's obligation to be bound to the
National Joint Board ceased with the termination of
that body. Furthermore, in view of the fact that the
Impartial Jurisdictional Disputes Board did not
come into existence until June 1, 1973, and in view of
the absence of any evidence showing that the Em-
ployer has stipulated to be bound to the procedures
of that body, we conclude that it has not expressly
consented to be bound thereby.' Finally, we reject
Ironworkers' contention that the Employer, by its
conduct, signified an intention to be bound by the
proceedings before the Impartial Jurisdictional Dis-
putes Board. In this regard, we particularly note that
the Employer neither was present nor was repre-
sented during those proceedings; that it did not di-
rectly correspond with that body; and that it did not
inform any one that it would consider itself bound by
any decision rendered by that body.'
It is clear from the foregoing, and we find, that at
the time of the instant dispute there did not exist any
4 Bricklayers, Masons and Plasterers ' International Union of America, Local
No 1, AFL-CIO (Lembke Construction Company of Colorado, Inc), 194
NLRB 649, 650-651 (1971)
5 The Impartial Jurisdictional Disputes Board is a creature of the Plan for
Settlement of Jurisdictional Disputes in the Construction Industry which
became effective on June 1 , 1973 That plan provides that an employer may
bind itself to the plan by signing a stipulation that it is willing to be bound,
or by membership in an association of employers which has the authority to
bind its members and which has signed a stipulation to be bound, or by
being a party to a collective -bargaining agreement which provides for the
settlement of disputes under the plan The record clearly discloses that the
Employer has not committed itself to the procedures of the plan through
an^ of these means
Cf Sheet Metal Workers International Association , Local 19 (Modern
Cooling, Inc), 199 NLRB 1020 (1972), International Association of Bridge,
Structural & Ornamental Iron Workers, Local 272 (P & G Erectors, Inc), 203
NLRB 1021 (1973)
agreed-upon or approved method for the voluntary
adjustment of the dispute to which all parties to the
dispute were bound.' Accordingly, the matter is
properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work af-
ter giving due consideration to various relevant fac-
tors.
1. Certification and collective-bargaining
agreements
Neither of the labor organizations herein involved
has been certified as the collective-bargaining repre-
sentative for a unit of the Employer's employees. The
Employer has no collective-bargaining agreement
with Ironworkers. The Employer, however, has a cur-
rent collective-bargaining agreement with Glaziers
which specifically covers the work in dispute. The
Employer's collective-bargaining agreement with
Glaziers, therefore, favors the Employer' s assignment
of the work to its employees represented by Glaziers.
2. Employer's assignment and practice
It is undisputed that since it began operations in
1965, the Employer, with the exception of one pro-
ject, has consistently assigned the work in dispute to
its employees represented by Glaziers. The
Employer's past practice, therefore, favors the
Employer's assignment.
3. Area and industry practice
The Employer presented testimony that it is the
general practice among glazing contractors perform-
ing window wall work in the Southern California
area to utilize glaziers for all phases of such construc-
tion. Glaziers presented testimony that during the
last 5 years employees represented by it have in-
stalled approximately 85 to 90 percent of the metal
units in window wall construction in this area.
Ironworkers has submitted into evidence a copy of
the decision rendered by the Impartial Jurisdictional
Disputes Board which awards the disputed work to
ironworkers based on trade practice. Although we do
not consider that award binding on the Employer, we
do consider it as a factor in determining the proper
7 At the hearing, Respondent filed a "Motion to Dismiss" the 10(k) pro-
ceeding on the ground that all parties are bound to the award rendered by
the Impartial Jurisdictional Disputes Board . The Hearing Officer reserved
ruling on this motion to the Board In view of our decision herein, we
hereby deny Respondent 's motion
GLAZIERS GLASSWORKERS AND GLASS WAREHOUSE WORKERS UNION , LOCAL NO. 636
assignment of the work in dispute. However, in view
of all the circumstances, we are of the opinion that
the award of the Impartial Jurisdictional Disputes
Board should not be accorded controlling weight.
We find, therefore, that the evidence relating to area
and industry practice is inconclusive.
4. Relative skills, safety, efficiency, and economy of
operations
The record shows that the fabrication and installa-
tion of metal framing pieces for window wall units
require working at close tolerances to ensure that
window panes are firmly and properly installed. Fur-
thermore, the handling and cutting of glass require
the exercise of great caution and, if done improperly,
may cause serious injury to workmen. Additionally,
the improper installation of window wall units
creates a real risk that the glass panes may break and
fall to the ground from great heights thereby causing
serious personal injury and property damage. It is
undisputed that glaziers possess the necessary skills
and experience to perform such work in a satisfacto-
ry and safe manner. It is further undisputed that ir-
onworkers are unaccustomed to working at such pre-
cise tolerances and that they have no experience in
glazing work. The factors of relative skills and safety,
therefore, favor the Employer's assignment.
The Employer urges that factors of efficiency and
economy of operations support its assignment. Thus,
the Employer presented undisputed testimony that
glaziers perform the work involved herein in a rapid
and efficient manner, thereby avoiding delays in con-
struction which may result in the incurring of costly
penalties by the Employer. Furthermore, the Em-
ployer presented testimony that the utilization of gla-
ziers offers greater flexibility and versatility in the
performance of such work. In this regard, the Em-
ployer adduced testimony that during those frequent
periods when metal is unavailable, glaziers may be
used to install glass panes, whereas ironworkers, who
do not possess this additional skill, would have to
stand idle. Since Ironworkers adduced no evidence
to establish that it would be at least as economical to
utilize employees represented by it, we find that the
factors of efficiency and economy of operations fa-
vor the Employer's assignment.
Conclusion
Upon the record as a whole, and after full consid-
eration of all relevant factors involved, we conclude
that the Employer's employees represented by Gla-
ziers are entitled to perform the work in dispute. We
reach this conclusion upon the facts that the assign-
915
ment is consistent with the Employer's past practice
and its current collective-bargaining agreement with
Glaziers; it is not clearly inconsistent with area prac-
tice; the employees represented by Glaziers possess
the requisite skills and safety considerations to per-
form the work; such assignment will result in greater
efficiency and economy of operations; and it is con-
sistent with the Employer's preference. Accordingly,
we shall determine the dispute before us by awarding
the work in dispute to the Employer's employees rep-
resented by Glaziers, but not to that Union or its
members. In consequence, we also find that Iron-
workers is not entitled by means proscribed by Sec-
tion 8(b)(4)(D) of the Act to force or require the Em-
ployer to assign the disputed work to employees rep-
resented by it.
The Board has previously held that it will restrict
the scope of its determination to a specific jobsite
unless there is evidence that similar disputes may oc-
cur in the future.' In view of the undisputed testimo-
ny of the Employer's president that Ironworkers has
stated its intention to prevent the Employer from uti-
lizing glaziers to perform such work anywhere within
Orange County, California, and that the Employer,
as of the time of the hearing, had future commit-
ments to perform such work in that area, we believe
that there is a reasonable likelihood that this dispute
will recur. Therefore, our determination in this case
applied not only to the jobsite where the dispute
arose, but to all similar work done or to be done by
the Employer within the Orange County, California,
area.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute:
1. Employees of Plaza Glass Company who are
currently represented by Glaziers, Glassworkers and
Glass Warehouse Workers Union, Local No. 636, af-
filiated with the International Brotherhood of Paint-
ers and Allied Trades, AFL-CIO, are entitled to per-
form the work of fabricating and installing metal
framing pieces and glass panes in the construction of
window wall units on the Ocean View Apartment
project at Marina del Rey, California , and on any
other of the Employer's projects in the Orange Coun-
ty, California, area.
2. International Association of Bridge, Structural
8 See, e g , International Longshoremen's Association, Local 1576, AFL-
CIO and International Longshoremen 's Association, Local 329, AFL-CIO
(Texas Contracting Company), 162 NLRB 878, 884 (1967)
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Ornamental Irownworkers, AFL-CIO, Local
433, is not entitled by means proscribed by Section
8(b)(4)(D) of the Act to force or require Plaza Glass
Company to assign the above work to employees rep-
resented by it.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Associ-
ation of Bridge, Structural and Ornamental Iron-
workers, AFL-CIO, Local 433, shall notify the Re-
gional Director for Region 31, in writing, whether or
not it will refrain from forcing or requiring the Em-
ployer, by means proscribed by Section 8(b)(4)(D) of
the Act, to assign the work in dispute to employees
represented by Ironworkers rather than to employees
represented by Glaziers.