Glaziers Local 1778 Brotherhood of Painters, Etc.

National Labor Relations Board - Board Decisions

Jun 28, 1962

137 N.L.R.B. 975 (N.L.R.B. 1962)

GLAZIERS LOCAL 1778, BROTHERHOOD OF PAINTERS" ETC. 975
awarded the work. We would award the work in question as was
done in Binswanger Glass. Co., Inc., supra, to inside glaziers employed
by Pittsburgh Plate Glass Company, and represented under ..a
collective-bargaining agreement by the Glaziers Union.
Glaziers Local Union No. 1778, Brotherhood of Painters, Deco-
rators and Paperhangers of America , AFL-CIO and Man-
hattan Construction Company of Texas, Inc. and Binswanger
Glass Co., Inc . Case No. 23-CD-48. June °L8, 1960
DECISION AND DETERMINATION OF DISPUTE
STATEMENT OF THE CASE
This is a proceeding under Section 10(k) of the Act following a
charge filed by Binswanger Glass Co., Inc., herein called Binswanger,
and Manhattan Construction Company of Texas, Inc., herein called
Manhattan, against Glaziers Local Union No. 1778, Brotherhood of
Painters, Decorators and Paperhangers of America, AFL-CIO, herein
called Local 1778 or the Respondent, alleging that the Respondent il-
legally coerced' employers to change work assignments from one class
of employees to another. A duly scheduled hearing was held before,
Jerome L. Avedon, hearing ' officer, on October 31, 1961. 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 upon the issues. The rulings of the hearing officer made at
the hearing are free from prejudicial error and are hereby affirmed.
Briefs filed by the parties have been considered.
Upon the entire record, the Board makes the following findings :
1. The Employers
Binswanger Glass Co., Inc., is a glass contractor, and Manhattan
Construction Company of Texas, Inc., is a general contractor. Both
these Companies operate in the State of Texas and during the year
preceding the hearing each of them purchased good valued in excess
of.$50,000 directly from out-of-State sources. We find that both Com-
panies are engaged in commerce within the meaning of the Act.
2. The labor organizations
The parties stipulated, and we find, that Local 1778 and Inter-
national Hod Carriers Building and Common Laborers Union of
America, Local Union No. 18, herein called Local 18, are labor. organi-
zations within the meaning of the Act.
137 NLRB No. 101.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The dispute
The work dispute which gave rise to this proceeding occurred at
Houston, Texas, where Manhattan, as general contractor, was engaged
in constructing the Liberty-Lincoln Center, a 28-story office and hotel
building. Binswanger was a subcontractor furnishing and installing
window glass in very large quantities. Binswanger's work includes
transporting crated glass, in boxes weighing 2 and 3 thousand pounds,
to the jobsite, and installing the glass in the windows and outer walls
of the building. Its employees are divided into two groups : glaziers,
also called outside glaziers, who are skilled craftsmen and put the glass
in its permanent position in the building structure; and inside work-
ers, including warehousemen, drivers, glaziers (also called glass
handlers), who, as a total group, fabricate and handle the glass at
the Company's storage or factory, transport it in trucks to the con-
struction sites, and place or spot it at the location in the structure
where the outside glaziers unpack and install it.
When the crated glass arrives at the job in Binswanger's trucks, it
must be lifted to the successive floors and there moved on each level to
the outer walls. In some cases it is raised by cranes or derricks; this
work is performed by operating engineers, whose right to do the
work is not in question. In other cases the crates are moved by hand
from the trucks to temporary hoists, or elevators, standing on the
edge of the structure. When it arrives at the designated level, whether
by crane or elevator hoist, it is again moved by hand to its final loca-
tion where the crates are opened by the outside glaziers and the glass
installed.
There is a slight but not important ambiguity in the record as to
the precise extent to which the handwork of moving the crates from
the arriving trucks to the building walls is in dispute. One of the
claiming groups of employees is the outside glaziers, and clearly they
claim the right to move the crates from the place where they first
come to rest after being raised to the successive building levels out of
the window frames or walls for installation. There is also indica-
tion that the outside glaziers claim the work of moving the crates
from the trucks to the hoisting elevators and off the elevators in those
instances where derricks or cranes are not used. All this work, in-
cluding the removal from the trucks and the moving about on the
various building levels, always before the crates are opened, has long
been performed by the warehousemen or glass handlers' group em-
ployed by Binswanger. After the dispute between these two groups
of its own employees erupted, and in the hope of avoiding a disruptive
work stoppage, Binswanger started to use some of the laborers em-
ployed by Manhattan, on a bill-back basis. Basically, however, the
underlying dispute remained, and still exists, between the outside
GLAZIERS LOCAL 1778, BROTHERHOOD OF PAINTERS, ETC. 977
glaziers and the warehouse workmen or glass handlers employed by
Binswanger.
All Binswanger employees who are involved in this case are rep-
resented by Local 1778, but in two separate bargaining units, each
covered by a separate bargaining agreement, one encompassing the out-
side glaziers, and the other the warehousemen, laborers, truckmen,
and/or glass handlers. Manhattan's laborers, whom Binswanger used
only after the dispute arose and pending the hearing herein are rep-
resented by Hod Carriers, Local 18, under contract between that union
and Manhattan.
Contention of the Parties
Binswanger defends the assignment to its glass handlers or laborers
no matter in whose direct employ, and requests an affirmative award
continuing its chosen method, on the grounds that the work requires
little skill, that its current assignment comports with provisions of
both its contracts with Local 1778, and that it follows a widespread
and well-established custom and practice in the industry. Manhattan,
although not directly involved in the dispute, and Local 18, on behalf
of the laborers in fact doing the work at the time of the events leading
to the charge, adopt Binswanger's arguments.
Respondent Local 1778 contends that the outside glaziers are en-
titled to the disputed work because it was awarded to them by the
National Joint Board for Settlement of Jurisdictional Disputes,
Building and Construction Industry, because they have long asserted
their right to do the work, and because on a number of construction
jobs similar to the Liberty-Lincoln Center, their classification has in
fact been assigned the work.
Applicability of the Statute
Local 1778's entire defense in this case is that whatever steps it took
could not be called improper because it was entitled to press its claim
on behalf of the outside glaziers. Thus the parties stipulated that
Local 1778 took the following action to force Binswanger to take the
work from the one group and give it to the glaziers. During July,
Binswanger used its own glass handlers; the next delivery to the job
was scheduled for July 25, and again glass handlers came with it.
Local 1778 then threatened the Company with picketing unless out-
side glaziers were used. The unloading was postponed. To avoid diffi-
culties, Binswanger used Manhattan's laborers on a bill-back basis.
On August 31 and September 6, Local 1778 picketed the jobsite and
on September 7 it picketed Binswanger's office and warehouse. In
addition to inducing the glaziers to cease work, the picketing also
caused plasterers, lathers, and operating engineers to cease work. Fol-
649856-63-vol. 137-6.3
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lowing institution of an injunction proceeding in the Federal District
Court, Local 1778 stipulated to discontinue all picketing until the
dispute could be resolved in this proceeding.
We find that there is reasonable cause to believe that a violation of
Section 8(b) (4) (D) has occurred, and that the dispute is properly
before the Board for a determination under Section 10(k) of the Act.
Merits of the Dispute
On due consideration of all the pertinent facts in the record, we are
satisfied that the outside glaziers are not entitled to the disputed work
and that the warehousemen, or glass handler group, is entitled to the
assignment.
An original intent by all parties that this moving and spotting of
crated glass was to be done by the glass handlers is fairly indicated
in the two contracts whose language pertaining to this point has long
stood unchanged. Thus, the inside glaziers and warehousemen's con-
tract covers "all work performed inside the warehouse and delivery
of materials." Against this, the outside glaziers' agreement specifies
"all work properly classified as outside glaziers' work and requiring
glaziers' tools." With the precise object of having the work not in
dispute done by outside glaziers, Local 1778's officers asked that these
quoted phrases from the contracts be altered to provide for the assign-
ment to the outside glaziers. The Company resisted, and when the last
and current contracts were made in January 1961, the clauses re-
mained unchanged, a conscious concession by Local 1778 that the cur-
rent assignments were consistent with the contracts.
It also appears quite clearly that the training and skills utilized by
the outside glaziers bear little relationship to the work of hoisting and
moving about crated glass. Outside glaziers pursue a 3-year appren-
ticeship program and achieve journeymen status; they work with
numerous tools, including cutters and special glazing tools. The han-
dling of unopened large crates, on the other hand, is obviously the type
of work traditionally performed by warehousemen, or plain stock
"handlers." While in this instance a degree of skill is no doubt also
required, it necessarily is of a kind unrelated to the use of special tools
of the glazier craft.
The record also shows that for years glass contractors in the Hous-
ton area have assigned this kind of work to glass handlers or laborers
without serious dispute. The president of Manhattan, the general
contractor on this project, testified without contradiction that on 17
major construction jobs of that Company during the past 12 years,
either ironworkers or laborers did all the glass hoisting. Witnesses
for Binswanger and other glass subcontractors testified that outside
glaziers do no more than 3 percent of all unloading and placing of
glass handled by their companies.
GLAZIERS LOCAL 1778, BROTHERHOOD OF PAINTERS, ETC. 979
On the question of custom or past practice, Local 1778's business
agent asserted generally that he knew of several construction sites
where outside glaziers had unloaded and spotted crated glass. More
detailed questioning brought out that some of these instances involved
buildings only a few stories high, where apparently the work of merely
moving the glass was minor and of little importance. And one case
was a jobsite 100 miles away from Houston, a distance making it im-
practical for the Company to send two separate crews, one for un-
loading and another for installing.
A further explanation of why the practice generally has been to use
warehousemen or glass handlers, and perhaps an added reason why an
affirmative award to them now would be more logical, is a timing prob-
lem for deliveries frequently encountered on large construction jobs
like the one we are considering. It appears that in the Houston area
generally the glass subcontractor is notified by the prime contractor
as to when rigging groups or hoists will be available for limited
periods of time for raising the crated glass and spotting it conven-
iently. In order to integrate the function of the various subcontractors
efficiently, therefore, in many instances the glass is delivered several
days in advance of actual installation, and even placed where it will
not interfere with other work. On such occasions, the outside glaziers
are generally not at the jobsite at all.
After the charge was filed in this proceeding, and after Binswanger
had started to use Manhattan's laborers represented by Local 18, as a
temporary expedient, the respective officers of the parent organiza-
tions of Local 18 and Local 1778 submitted their dispute to the Na-
tional Joint Board for Settlement of Jurisdictional Disputes, Build-
ing and Construction Industry. The Joint Board rendered a decision
on October 13, 1961, in which it assigned the work to "glaziers." It
would appear, however, that the facts upon which the Company relied
were not presented to or considered by the Joint Board. Moreover,
the Joint Board was not confronted with and therefore did not pass
upon, the underlying dispute now before us, which, as explained above,
is between outside glaziers and inside glaziers or glass handlers. At
best its award to "glaziers" is ambiguous, for the successful party dis-
putant there was Local 1778, the representative of both groups of
glaziers. In any event, our decision here is not inconsistent with the
Joint Board's assignment to "glaziers."
Upon the entire record, we shall determine the dispute by assigning
the work in dispute to Binswanger's inside or warehousemen group of
employees-whether called inside glaziers, drivers, helpers, or glass
handlers.' In making this determination, we are assigning the work
i Member Rodgers would assign the work in dispute not only to the inside glaziers or
warehousemen group of employees , but also to the laborers represented by Hod Carriers,
Local 18
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to this group of employees represented by Local 1778, but not to Local
1778 or to its members.
DETERMINATION OF DISPUTE
On the basis of the foregoing findings, and upon the entire record
in the case, the Board makes the following Determination of Dispute
pursuant to Section 10(k) of the Act:
Employees engaged as glass handlers are entitled to move to the
construction elevator, hoist to the proper floor, and move from the ele-
vator to various locations, crated glass on glass contracting jobs per-
formed by Binswanger in the Houston, Texas, area. Accordingly,
Local 1778 is not entitled to force or require Binswanger, by means
proscribed by Section 8(b) (4) (D) of the Act, to assign the work to
outside glaziers.
Within 10 days of the date of this Decision and Determination of
Dispute, Glaziers Local Union No. 1778, Brotherhood of Painters,
Decorators and Paperhangers of America, AFL-CIO, shall notify the
Regional Director for the Twenty-third Region, in writing, whether or
not it will refrain from forcing or requiring Binswanger Glass Com-
pany, Inc., by means proscribed by Section 8(b) (4) (D), to assign the
work in dispute to outside glaziers.
American Compress Warehouse , Division of Frost-Whited Com-
pany, Inc. and United Packinghouse , Food and Allied Work-
ers, AFL-CIO . Cases Nos. 15-CA-1998 and 15-CA-2000_ June
28, 1962
DECISION AND ORDER
On March 22, 1962, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint. Thereafter, the General Counsel and the Respondent filed
exceptions to the Intermediate Report together with supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report and the entire record in this case, including the exceptions
137 NLRB No. 111.