Iron Workers Local 25 (Koerts Glass)

National Labor Relations Board - Board Decisions

Jun 30, 1993

311 N.L.R.B. 1095 (N.L.R.B. 1993)

1095
311 NLRB No. 126
IRON WORKERS LOCAL 25 (KOERTS GLASS)
1 The Employer also performs glazing, which the Employer’s vice
president, Dennis Calvin, described as ‘‘the method of installing
glass or panels, et cetera, into the subframing that is going to retain
it.’’ However, the parties expressly agreed at the hearing that glazing
is not part of the work in dispute and that the Employer’s consistent
assignment of glazing work almost exclusively to Local 826 per-
sonnel is not being challenged.
Local Union No. 25, International Association of
Bridge, Structural and Ornamental Iron Work-
ers, AFL–CIO and Koerts Glass and Paint Co.
and Glass and Architectural Metal Workers
Local 826, International Brotherhood of Paint-
ers and Allied Trades, AFL–CIO, Party in In-
terest. Case 7–CD–520
June 30, 1993
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed March 5, 1993, by the Employer, Koerts Glass
and Paint Company, alleging that the Respondent,
Local Union No. 25, International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL–CIO (Local 25) violated Section 8(b)(4)(D) of
the National Labor Relations Act by engaging in pro-
scribed activity with an object of forcing the Employer
to assign certain work to employees it represents rather
than to employees represented by Glass and Architec-
tural Metal Workers Local 826, International Brother-
hood of Painters and Allied Trades, AFL–CIO (Local
826). The hearing was held March 24, 1993, before
Hearing Officer Marion E. Muma. Thereafter, Local 25
filed a brief.
The National Labor Relations Board affirms the
hearing officer’s rulings, finding them free from preju-
dicial error. On the entire record, the Board makes the
following findings.
I. JURISDICTION
The Employer, Koerts Glass and Paint Company, a
Michigan corporation whose principal place of busi-
ness is in Flint, Michigan, is engaged in the fabrication
and installation of glass and metal work products in
the building and construction industry. During the 12-
month period preceding the hearing, the Employer had
gross revenue in excess of $1 million. During that
same period the Employer purchased aluminum and
glass products valued in excess of $50,000, which
products were shipped directly to the Employer’s var-
ious Michigan facilities from points located outside the
State of Michigan. We find that the Employer is en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act. The Employer, Local 25, and Local
826 stipulate, and we find, that Local 25 and Local
826 are labor organizations within the meaning of the
Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer has had collective-bargaining agree-
ments with both locals for many years, and has from
time to time employed employees represented by both
locals on various projects in the Flint area. The Em-
ployer maintains a regular and more or less permanent
work force of employees represented by Local 826
(Local 826 personnel). The Employer employs employ-
ees represented by Local 25 (Local 25 personnel), on
the other hand, only as needed, through referrals from
that local.
The parties have stipulated that the work in dispute
is:
The laying out and installing of steel clips, and
the installation of curtain wall framing, skylights,
louvers, fixed aluminum windows and aluminum
panels, which work has been assigned by Koerts
Glass and Paint Company to employees who are
members of, or represented by, [Local 25], rather
than to employees who are members of, or rep-
resented by, [Local 826], which latter labor orga-
nization claims the aforedescribed work.
The notice of hearing in this case states that the dis-
pute concerns the assignment of the above work at the
addition and renovation project jobsites at McLaren
Regional Medical Center (medical center) and Bishop
International Airport (airport), both in Flint.
Essentially, the work in dispute involves putting the
exterior walls on new buildings under construction.
More specifically, the Employer determines the par-
ticular places on the building’s skeletal structure (i.e.,
laying out) where it will weld or bolt (i.e., install) steel
clips to the skeletal structure. Following laying out and
installation of the steel clips, the Employer then affixes
aluminum framing to the clips, horizontally and
vertically, all around the structure (i.e., installing the
curtain wall framing). Also at this stage, the Employer
installs any fixed aluminum windows that are required
(these are inoperative windows that do not open and
close). Finally, the Employer installs the curtain wall
itself, which is the glass or aluminum panels, and the
air circulation louvers, all of which actually enclose
the structure.1
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 All subsequent dates are 1992, unless otherwise stated.
3 According to Calvin, the medical center project was approxi-
mately 90 percent completed at the time of the instant March 1993
hearing.
1. The medical center project
The Employer started working first on the medical
center, in September 1991, using only Local 826 per-
sonnel. In May 1992,2 Local 25 Business Representa-
tive Gregory Hicks and Business Agent Larry Hardin
told Employer Vice President Dennis Calvin that the
work in dispute at the medical center was within the
contractual jurisdiction of Local 25, and should be as-
signed to Local 25 personnel. On July 2, Local 25
filed a grievance with the Great Lakes Fabricators &
Erectors Association-Local 25 Joint Grievance Board
(Joint Board), alleging that the Employer had violated
its collective-bargaining agreement with Local 25.
On July 21, Local 826 Business Representative
Richard Brim notified the Employer’s attorney, Stanley
Moore, in writing that he would not meet with the Em-
ployer or with Local 25 to discuss anything that might
lead to a reassignment of work at the medical center
from members of Local 826 to members of Local 25.
Brim further stated that if Local 25 took any action
that threatened Local 826’s work assignment, Local
826 would ‘‘take whatever action it deems necessary,
including a work stoppage, to enforce its claim to this
work.’’
On July 29, the Joint Board issued its decision on
Local 25’s grievance against the Employer, finding
that the Employer was in violation of its collective-bar-
gaining agreement with Local 25, and ordering the
Employer to comply with it.
On July 31, the Employer and Local 25 entered into
a settlement agreement, under which the Employer
agreed to assign the remaining erection of curtain wall,
fixed windows, preglazed windows, preglazed louvers,
and skylights on the medical center project between
Local 25 personnel and Local 826 personnel, with
Local 826 personnel not to be assigned more than 60
percent of the work.
Immediately following the July 31 settlement, the
Employer began using what Calvin referred to at the
instant hearing as ‘‘a composite crew’’ at the medical
center, ‘‘meaning that Local 826 and Local 25 per-
sonnel would work together on the different oper-
ations.’’ In sum, according to Calvin, ‘‘the metal por-
tions of the job were done by Local 25 and the glass
and glazing was done by Local 826.’’3
On August 11, Local 826 Business Representative
Brim wrote to Calvin that the Employer had ‘‘improp-
erly failed to apply the Local 826 agreement to all
work coming under that agreement and to all of its
employees performing such work’’ at the medical cen-
ter, and that Local 826 was filing a grievance against
the Employer for an alleged violation of the
recognition/jurisdiction article of the Employer’s col-
lective-bargaining agreement with Local 826.
2. The airport project
The Employer began working on the airport project
in November. According to Calvin, the airport project
developed like the medical center project, with Local
25 personnel handling the metal and Local 826 per-
sonnel handling the glazing and the glass; ‘‘the Iron
Workers are installing the aluminum panels and the
Glaziers are installing the store front and the glass.’’
Local 826 Business Representative Brim testified that
he was not satisfied with this arrangement because
‘‘it’s all . . . our work, but anyway, Koerts, you
know, decided to split it up.’’
3. The alleged proscribed activity
On March 2, 1993, Local 25 notified the Employer
in writing that Local 25 had recently learned that Local
826 had filed a grievance challenging the Employer’s
assignment of ‘‘curtain wall erection on a composite
basis between Glaziers Local 826 and Iron Workers
Local 25’’ at the medical center and airport projects
and ‘‘other future job sites where Koerts is involved
in curtain wall erection.’’ Local 25 expressed its un-
derstanding that Local 826 was dissatisfied with the
Employer’s ‘‘composite assignment,’’ and that Local
826 wanted the Employer’s assignment of curtain wall
erection to be made entirely to Local 826 personnel.
Local 25 stated that it was ‘‘satisfied with the current
arrangement and accept[ed] the assignment on the cur-
rent composite basis’’ at the medical center and airport
jobsites. Local 25 advised the Employer that it in-
tended to do whatever was necessary for it to defend
its claim for the work in question. It warned the Em-
ployer that if Local 826 continued to ‘‘threaten’’ Local
25’s work assignment, then Local 25 ‘‘will take what-
ever action it deems necessary, including a job shut
down, to enforce its claim to this work.’’
On March 5, 1993, the Employer filed the instant
unfair labor practice charge, alleging that Local 25 had
violated Section 8(b)(4)(D) of the Act.
B. Work in Dispute
The description of the work in dispute is set forth
in full in the preceding section.
C. Contentions of the Parties
The Employer, in the closing statement of its attor-
ney, asserted that it had made a decision that certain
tasks could best be performed by Local 25 personnel
and certain others by Local 826 personnel. The Em-
ployer stated that it was ‘‘satisfied with’’ the compos-
ite arrangement used on the medical center and airport
projects, ‘‘where the metal was handled by the Iron
Workers and the glazing and glass was handled by the
1097IRON WORKERS LOCAL 25 (KOERTS GLASS)
4 This highlights the distinction between the Employer’s broad
work on the projects and the more narrow work in dispute. The Em-
ployer’s work on the projects is, generally speaking, comprised of
both (1) the work in dispute (performed almost exclusively by Local
25 personnel) and (2) glazing (not in dispute; performed almost ex-
clusively by Local 826 personnel).
5 The Employer also asks that the Board make a broad award, by
determining that in future projects of this nature it will be the Em-
ployer’s prerogative to assign composite or mixed crews to perform
the work.
6 Unlike the Employer and Local 25, Local 826 neither called any
witnesses nor introduced any evidence at the hearing.
Glaziers.’’4 The Employer contends that the work in
dispute should be awarded to employees represented
by Local 25 on the basis of the Employer’s preference
and practice, economy and efficiency of operations,
and relative skills of the employees involved.5
In its brief, Local 25 asserts that the work in dispute
should be assigned to employees it represents, on the
basis of, inter alia, employer preference and practice,
economy and efficiency of operations, and relative
skills of the employees involved.
Local 826’s business representative asserted at the
hearing that the work in dispute on the two projects in
question, and on all future projects on which the Em-
ployer performs such work, should be assigned entirely
to employees it represents, on the basis of its collec-
tive-bargaining agreement with the Employer, the ex-
perience of Local 826 personnel, and area practice.6
D. Applicability of the Statute
Before the Board may proceed with a determination
of dispute pursuant to Section 10(k) of the Act, it must
be established that reasonable cause exists to believe
that Section 8(b)(4)(D) has been violated. This requires
a finding that there is reasonable cause to believe that
a union has threatened to use or has used proscribed
means to force an employer to assign work to one
group of employees rather than to another.
It is undisputed that Local 826 claims the metal
work assigned to Local 25 personnel on the medical
center and airport projects. In its March 2, 1993 letter
to the Employer, Local 25 threatened that if Local 826
took any action that threatened Local 25’s work as-
signment on the medical center and airport projects,
then Local 25 would take whatever action it deemed
necessary, including a job shutdown, to enforce its
claim to that work. Based on the foregoing, we find
reasonable cause to believe that Local 25 has violated
Section 8(b)(4)(D) of the Act.
The parties have stipulated that no voluntary means
to settle the dispute in question is possible and that all
parties are not bound to the Impartial Jurisdictional
Disputes Board. Accordingly, we find that the dispute
is properly before the Board for determination.
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 dispute.
1. Certifications and collective-bargaining
agreements
There is no evidence that either of the Unions has
been certified by the Board to represent the employees
of the Employer.
a. Contracts with Local 826
The Employer has had collective-bargaining agree-
ments with Local 826 since approximately 1968. Its
current contract with Local 826 is for the period June
16, 1992 to June 15, 1993. Article 1 of this contract,
entitled ‘‘Recognition/Jurisdiction,’’ states in pertinent
part as follows:
The Employer agrees that the Union shall have
sole jurisdiction over the installation of the fol-
lowing kinds and types of work and/or materials
on work accepted by the Employer in connection
with the construction work of Local Union 826.
[A]ll types of aluminum, bronze, or stainless
steel materials used for the facing and/or framing
of buildings, store front construction, etc. . . . all
curtain wall systems (regardless of height) . . . all
types of preglazed window installation (wood or
metal). . . . All skylight systems (fabricating and
erection). . . . Also, the installation of any and
all other work or materials recognized in the glass
and metal industry as glass and metal work.
. . . .
It is further agreed that signatures [sic] to this
glass and metal agreement shall assign work as
outlined in this agreement to qualified glass and
metal workers of Local 826.
b. Contracts with Local 25
According to Employer Vice President Calvin, the
Employer has had contracts with Local 25 ‘‘from
every year from 1964.’’ The ‘‘Jurisdiction of Work’’
section of the Employer’s 1989–1992 collective-bar-
gaining agreement with Local 25, to which the Em-
ployer acknowledges that it remains bound, states in
pertinent part as follows:
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Local 25 Business Manager Gregory Hicks similarly testified that
‘‘[t]here hasn’t been that many high rises built in this area, most
projects don’t go over one or two stories in this locality and the ones
that have we’ve had Iron Workers on.’’
8 Local 25 introduced copious documentary evidence in support of
that proposition, in the form of letters submitted to Local 25 from
area contractors, which list various Michigan projects on which, ac-
cording to Hicks, work like that in dispute was assigned to iron-
workers or (as expressed more specifically in some instances) Local
25. As stated above, Local 826 did not introduce any evidence.
9 The McLaren Medical Center is 13 stories. The record does not
specify the number of stories in the Bishop International Airport, but
the totality of the record evidence supports at least an inference that,
like the medical center, it is a large structure, more than two stories.
10 Although Calvin acknowledged that both Unions cover the skills
needed to perform the work in dispute in their respective apprentice
training programs, he nevertheless testified that ‘‘The Iron Workers
have been welding steel from day one. The Glaziers have just started
getting education and bringing it in to their apprentice program.
[They] do not have a lot of experienced welders.’’
The jurisdiction of [Local 25] covers for its mem-
bers the following work: . . . erection and con-
struction of all iron and steel, . . . aluminum . . .
structures or parts thereof; . . . clips, brackets
. . . skylights . . . facias . . . fronts . . . .
The July 31, 1992 settlement agreement between the
Employer and Local 25 states in pertinent part that:
Koerts will assign the remaining erection of
curtain wall, fixed windows, preglazed windows
and preglazed louvers, together with all associated
tasks . . . between Iron Workers and Glaziers at
the McLaren hospital project on a basis not to ex-
ceed 60% Glaziers on all work covered by exte-
rior wall bid package.
Koerts will assign the erection of skylights and
all associated tasks, on the same basis[.]
Calvin testified that the settlement agreement cov-
ered basically the work described in the 1989–1992
contract with Local 25, ‘‘but just the items that are in-
volved on this project.’’ At the time the Employer and
Local 25 entered into the settlement agreement, it per-
tained only to the medical center project. It has, how-
ever, subsequently been applied to the airport project.
Because the Employer currently has collective-bar-
gaining agreements with both Local 826 and Local 25
that each appear to cover the work in dispute, we find
that this factor does not favor awarding the work in
dispute to either Local 826 or Local 25 personnel.
2. Employer preference
The Employer prefers that Local 25 personnel be as-
signed the work in dispute. We find, therefore, that
this factor favors awarding the work in dispute to
Local 25 personnel.
3. Area and industry practice
Calvin testified that, as far as he knew, the Em-
ployer was the only local contractor in the Flint area
to use ironworkers to perform work like that in dis-
pute, while other local contractors use glaziers ‘‘in a
lot of cases.’’ But Calvin then qualified his testimony
by stating that the Employer is the only company of
its type in the Flint area to perform such work on
large projects (structures more than two stories high),
where much if not most of the work in dispute must
be performed on scaffolding, relatively high off the
ground.7
Local 25 introduced into evidence a list of 11 con-
struction projects completed in the Flint area in the
past 10 years on which, according to the testimony of
Local 25 Business Agent Larry Harden, Local 25 per-
sonnel performed work like that in dispute.
Calvin testified that in the Detroit area (about 80
miles southeast of Flint) ironworkers perform work
like that in dispute ‘‘most of the time.’’ Consistent
with Calvin, Hicks testified that the general practice of
contractors in Local 25’s geographical jurisdiction (es-
sentially, the eastern half of Michigan’s lower penin-
sula) is to assign work like that in dispute to Local 25
personnel.8
Calvin testified that on an industrywide basis, the
practice of using ironworkers or glaziers to perform
work like that in dispute differs by geographical area.
We find that while the factor of industry practice is
inconclusive, the factor of area practice, especially as
it pertains to large structures, such as those involved
in the instant dispute,9 favors awarding the work in
dispute to Local 25 personnel.
4. Relative skills
Calvin testified that the first task for Local 25 per-
sonnel on the medical center project was to repair and
redo some of the work in dispute—welding—that had
initially been performed by Local 826 personnel, but
which had failed inspection and had to be redone. Cal-
vin subsequently testified that Local 25 personnel had
superior welding skills to those of Local 826 per-
sonnel.10
There are no licenses required to perform any of the
work in dispute, but welders must be certified, usually
by independent testing laboratories, on a project-by-
project basis. Certain individuals in both locals are cer-
tified welders. Neither trade uses tools that members of
the other trade are not ‘‘capable’’ of using. Calvin tes-
tified that both trades—and both locals—are safety-
minded. Local 25’s apprenticeship and training stand-
ards provide for classroom and field training in the dis-
crete tasks involved in performing the work in dispute.
Calvin testified that in assigning the work in dispute
on the two projects in question to Local 25 personnel,
the Employer attempted to capitalize on ‘‘what we
thought was the strengths of either Local 25 or their
1099IRON WORKERS LOCAL 25 (KOERTS GLASS)
11 Local 25 Business Manager Hicks testified that ironworkers are
particularly more experienced at working at heights because they
generally put together the superstructure of a building, involving a
lot of work with cranes.
12 The relative skills and experience that Local 25 and Local 826
personnel respectively could apply to performing the work in dispute
are, of course, a different analytical matter, and have been assessed
in the preceding section.
13 Electrical Workers IBEW Local 211 (Sammons Communica-
tions), 287 NLRB 930, 933 (1987).
14 Id.
abilities, where they excelled, which was in the weld-
ing operations and the steel clips, and where their ex-
pertise and more experience [was] in major large win-
dow wall, curtain wall types of assemblies . . . be-
cause of [the projects’] size, we went with the Iron
Workers in both cases.’’ Calvin elaborated, testifying
that on large structure projects, the Employer needs to
employ workers who can perform the work in dispute
while working on scaffolds many stories high, and that
Local 25 personnel have the most experience in work-
ing under such conditions.11
We find that this factor, especially as it pertains to
experience in performing the work in dispute on large
structures, favors awarding the work in dispute to
Local 25 personnel.
5. Economy and efficiency of operations
The record does not indicate that the Employer’s as-
signment of the work in dispute, on the large structures
in question, to Local 25 personnel has resulted in any
particular economies or efficiencies of operation that
would be lost by an assignment of the work in dispute
to Local 826 personnel.12 Accordingly, we find that
this factor does not favor awarding the work in dispute
to either Local 25 or Local 826 personnel.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Local Union No.
25, International Association of Bridge, Structural and
Ornamental Iron Workers, AFL–CIO are entitled to
perform the work in dispute on the McLaren Regional
Medical Center and Bishop International Airport
projects. We reach this conclusion relying on employer
preference, area practice on large structures such as
those involved in this dispute (i.e., more than two sto-
ries), and relative skills in performing the work in dis-
pute on such large structures.
In making this determination, we are awarding the
work in dispute to the Employer’s employees rep-
resented by Local 25, not to that Union or its mem-
bers.
Scope of the Award
The Employer has asked that the Board make a
broad award, by determining that in future projects of
this nature it will be the Employer’s prerogative to as-
sign composite or mixed crews. For the Board to issue
a broad, areawide award, there must be evidence that
the disputed work has been a continuing source of con-
troversy in the relevant geographic area and that simi-
lar disputes are likely to recur.13 There must also be
evidence which demonstrates that the charged party
(here, Local 25) has a proclivity to engage in unlawful
conduct to obtain work similar to the work in dis-
pute.14
The record fails to establish the existence of such
circumstances. Accordingly, the Employer’s request for
a broad award is denied, and our determination is lim-
ited to the controversy that gave rise to this pro-
ceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of the Employer represented by Local
Union No. 25, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL–CIO,
are entitled to perform for the Employer the laying out
and installing of steel clips, and the installation of cur-
tain wall framing, skylights, louvers, fixed aluminum
windows and aluminum panels at the McLaren Re-
gional Medical Center and Bishop International Airport
jobsites in Flint, Michigan.