Local 1333, Painters

National Labor Relations Board - Board Decisions

Feb 29, 1980

247 N.L.R.B. 1542 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 1333, International Brotherhood of
Painters & Allied Trades, AFL-CIO and Shoor-
Elias Glass Company and United Brotherhood of
Carpenters & Joiners of America, AFL-CIO, Local
Union No. 176. Case 1-CD-585
February 29, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, PENEI.I.O, AND
TRUESDAI.E
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, following
a charge filed by Shoor-Elias Glass Company, herein
called the Employer, alleging that Local Union No.
1333, International Brotherhood of Painters & Allied
Trades, AFL-CIO, herein called the Glaziers, had
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 it represented rather than to employees
represented by United Brotherhood of Carpenters &
Joiners of America, AFL-CIO, Local Union No. 176,
herein called the Carpenters. Pursuant to notice, a
hearing was held before Hearing Officer Gerald
Wolper on October 29, 1979. All parties appeared and
were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence
bearing on the issues.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPI.OYER
The parties stipulated, and we find, that the
Employer, a Rhode Island corporation with its princi-
pal place of business in East Providence, Rhode
Island, is engaged in the business of glass installation
work. During the past year, the Employer purchased
goods and materials from outside the State having a
value of $50,000. The parties also stipulated, and we
find, that the Employer is engaged in commerce
' The contract was never executed by the Employer.
within the meaning of Section 2(6) and (7) of the Act.
Accordingly, we further find that it will effectuate the
purposes of the Act to assert jurisdiction herein.
II. THE I.ABOR ORGANIZATIONS INVOI.VE:I)
The parties stipulated, and we find, that the
Glaziers and the Carpenters are labor organizations
within the meaning of Section 2(5) of the Act.
111. THi I)ISPUTE
A. Background and Facts of the Dispute
The Employer is a glass installation subcontractor
and employs a regular crew of glaziers, hiring carpen-
ters from the hiring hall on an "as needed" basis.
About 10 years ago, the advent of aluminum frame
windows created the possibility of jurisdictional dis-
putes over which union should install the windows
and, in anticipation of such disputes, the various
parties involved orally agreed to use composite crews.
Composite crews of equal numbers of ironworkers and
glaziers were used when the frame was attached
directly to masonry, while equal numbers of carpen-
ters and glaziers were used when the frames were
attached to wood blocking.
In 1978, at the St. George's School project in
Middletown, Rhode Island, the Employer deviated
from this practice and used only glaziers. The Carpen-
ters, upon discovering this fact, filed a dispute with the
National Joint Board and claimed all the installation
work, for the employees it represented, including that
portion which had previously been done by employees
represented by the Glaziers. While a 50-50 composite
crew completed the job, the dispute was never resolved
because the National Joint Board was dissolved
shortly after the dispute was submitted.
Early in August 1979, the problem resurfaced,
giving rise to the present dispute. Soon after the
Employer was awarded the subcontract for the glass
installation work at the Edgehill Alcoholic Rehabilita-
tion Center, the Carpenters business agent, Rodney
Bowley, called regarding the work, mailed a contract
to the Employer for its signature,' and indicated that
the Carpenters claimed all the work involved in the
installation of the aluminum frame windows. The
Employer, supported by the Glaziers, relied upon its
past practice, and asserted the right to assign the work
to a composite crew composed of equal numbers of
glaziers and carpenters. In a letter dated August 10,
1979, the Carpenters reasserted its demand to the
247 NLRB No. 197
1542
LOCAL 1333. PAINTERS
Employer, and subsequently filed a dispute with the
Impartial Jurisdictional Disputes Board, herein called
the IJDB, which, on August 16, 1979, requested the
Employer to provide certain information. The infor-
mation was sent and, on August 31, 1979, the
Employer was notified of the IJBD decision to award
the disputed work to employees represented by the
Carpenters. The Employer, claiming that it was not
bound by the award, did not conform to it.
On September 17, 1979, Carmino Raspallo, the
Glaziers business agent, wrote to the Employer
threatening to picket unless the disputed work was
performed by equal numbers of carpenters and gla-
ziers. Under pressure from the general contractor, the
Employer has assigned the work to crews composed of
varying numbers of carpenters and glaziers, rather
than to composite crews on a 50-50 basis as it had
done in the past.
B. The Work in Dispute
The work in dispute involves the handling and
installation of aluminum windows secured to wood
blocking at the Edgehill Alcoholic Rehabilitation
Center, Newport, Rhode Island.
C. The Contentions of the Parties
The Employer contends that the work in dispute
should be awarded to employees represented by the
Glaziers due to considerations of efficiency and
economy which would be realized by the use of
trained, experienced, permanent crews of glaziers. The
Carpenters, however, asserts that the work should be
assigned to employees it represents because of area
practice, past Joint Board awards, the award of the
IJDB in the present case, and the Employer's alleged
subsequent conduct in conformity with that award.'
D. Applicability of the Statute
Before the Board may proceed with a determination
of a 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 the parties have not agreed upon a method for the
voluntary adjustment of the dispute.
It is uncontested that in a letter dated September 17,
1979, Carmino Raspallo, the Glaziers business agent,
advised the Employer "that unless work is resumed
immediately on a 50/50 Glazier/Carpenter basis, at
The ,ole basis for the Carpenters contention that the Employer's
subsequent conduct was i conformity with the IJDB award is the fact that
the charge in the present case. filed against the Glaziers. alleged that the
Glaziers threatened to picket in order to force the Employer to assign the
disputed work to employees represented by the Glaziers ". . instead of
permitting the [employees represented by the Carpenters] to whom the work
the Edgehill Alcoholic Rehabilitation project in New-
port, Rhode Island, we may be forced to picket the
job." (Emphasis supplied.) This threat to picket
clearly constitutes a threat of serious economic harm,
and is coupled with the stated aim of forcing the
Employer to assign particular work to employees
represented by the Glaziers rather than to employees
represented by the Carpenters. Given these facts, we
find that there is reasonable cause to believe that
Section 8(b)(4)(D) of the Act has been violated.'
No party to this dispute takes the position that any
contract involved contains an agreed-upon method,
binding on all the parties, for the voluntary settlement
of the dispute. The Carpenters, however, argues that
the Employer should be obligated on the facts of the
instant case to comply with the decision of the IJDB.
The Carpenters asserts that this result is required
because the Employer, pursuant to the IJDB request,
submitted information to that board before a decision
was reached, and subsequently conducted itself in
conformity with the award, thereby binding itself to
the decision. We find that this view is without merit.
First, the evidence does not bear out the Carpenters'
claim that the Employer conducted itself in conformi-
ty with the decision of the IJDB. The work has been
performed by composite crews, not crews composed
solely of carpenters as is required by the award. And
second, the Employer's submission of information to
the IJDB, as it was requested to do, is insufficient to
amount to participation in that dispute resolution
process. "Cooperation is not synonymous with sub-
mission . . . ." The Employer did not join in the
submission of the matter to the IJDB, did not agree to
be bound by a decision rendered by that body, and was
neither present nor represented in those proceedings.
Based on these facts, we find that there is no agreed-
upon method for the voluntary adjustment of the
dispute which binds all the parties.
Having concluded that no such agreed-upon meth-
od exists and that there is reasonable cause to believe
that a violation of Section 8(b)(4)(D) has occurred, we
find that this dispute is properly before the Board for
determination.
wa, awarded by the Impartial Jurisdictional Diputc'x ioard. to perform the
work"
See Glazierr and Gluavworer. Local .No. 767 (SUcramento Mfelal d Glare
Co.). 228 NLRB 20() (177).
I,,lrnaltoual Aocialiorn f Bridge. Structural Ornamental Iron
Workers. Local 272 (P & G. Errctors. Ic.). 203 NLRH 1021. 1022 (1973).
1543
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to make
an affirmative award of disputed work after giving due
consideration to various factors.' The Board had held
that its determination in a jurisdictional dispute is an
act of judgement based on commonsense and experi-
ence reached by balancing those factors involved in a
particular case."
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements and
certifications
There are no orders or certifications of the Board
awarding jurisdiction of the work in dispute to
employees represented by either of the Unions in-
volved in the present proceeding.
The Employer currently has an agreement with the
Glaziers, effective from September 24, 1978, to Sep-
tember 23, 1980. However, this agreement has no
work description, and is therefore of no assistance.
The Carpenters claims to have a valid collective-
bargaining agreement with the Employer.' Assuming
arguendo that such an agreement is actually in force,
it, too, fails to provide assistance. The work descrip-
tion it contains is extremely broad and vague,' and
does not address a situation such as the one at hand
where the work involves a combination of carpentry
and glazing skills.
Accordingly, we find that this factor is of no value
in determining this dispute.
2. Employer practice and preference
Although the Employer's practice has been to
assign the work to composite crews, the record
indicates that its preferred assignment is to a crew
made up solely of glaziers. The current and past
practice of using composite crews is equivocal at best
and favors neither Union. However, the Employer's
current preference supports an award to employees
represented by the Glaziers.
NIL.R.B. v. Radio & Television Broadcast Engineers Union. Local 1212.
International Brotherhood of Electrical Workers. AFL-CIO [Columnbia Broad-
casting Sysieml. 364 U.S. 573 (1961).
I,,lternational As.sociation of Machinsts. Lodge No. 1743. AFL-CIO (J. .4.
Jones Construction Company). 135 NLRB 1402 (1962).
An expired contract contained a continuation clause whereby it would be
renewed from year to year. absent notice to the contrary. The Carpenters
asserts that this contract still hinds the parties. Although we are not
convinced by this argument in this case, we find it unnecessary to resolve the
3. Area practice
The Carpenters presented evidence of three similar
jobs in the area. On two of these jobs, the disputed
work had been performed solely by carpenters and, on
the third job, by carpenters acting under the supervi-
sion of a glazier. The Carpenters business agent,
Bowley, also testified that carpenters had performed
the disputed work without the aid of glaziers in
numerous housing projects for the United States
Navy. Although this evidence is a rather limited
exposition of area practice, it tends to support an
award of the disputed work to employees represented
by the Carpenters.
4. Relative skills
Performance of the work here in dispute requires
skills which are traditionally associated with both
Unions involved. The preglazed sash is a unit that
comes from the manufacturer with an aluminum
perimeter frame around two removable glass inserts.
Installation is accomplished by applying a wood strip
onto the side of the wall opening, removing the glass
inserts, screwing the frame into place, and replacing
the glass. Testimony reveals that the job requires an
ability to read blueprints and to assure that the frames
are plumb and square, as well as a knowledge of the
proper methods of installing glass and glazing, and the
use of caulking and other sealants. Because of this
marriage of glazing and carpentry skills, when the
sash first came into use, the Carpenters claimed the
installation of the frame, while the Glaziers claimed
the balance of the work.
The evidence shows that glaziers possess all the
skills necessary to perform the job, and that, ordinari-
ly, carpenters need instruction from glaziers in order
to do the job properly. This factor therefore favors an
award to employees represented by the Glaziers.
5. Economy and efficiency of operations
The Employer contends that considerations of
economy and efficiency militate toward an award of
the disputed work to employees represented by the
Glaziers. As noted previously, the Employer has a
regular work force of glaziers and hires carpenters
through a hiring hall, with no assurance that previous-
question because of the inconclusiseness of the contract's job description. as
discussed above.
' Art. X, sec. A, of the agreement provides that "It] he trade autonomy of
the United Brotherhood of Carpenters and Joiners of America consists of the
milling, fashioning, joining, assembling, erection fashionlig or dismantling of
all material of wood, plastic, metal. fiber. cork and composition, and all other
substitute materials. The handling. cleaning, erecting, installing and disman-
tling of machinery, equipment and all materials used by members of the
United Brotherhood [sic]."
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LOCAL 1333, PAINTERS
ly employed and trained carpenters would be referred.
The Employer's ability to use a stable work force
made up of regularly employed workers would stream-
line installation by enabling the Employer to develop a
dependable crew, knowledgeable in proper installation
techniques. The inherent inefficiency in the repeated
hiring and layoff of the various carpenters employed
through the hiring hall would be eliminated, as would
the necessity for instructing nonglaziers in proper
installation procedure. Quality control would also be
enhanced by the presence of regular employees who
could be held accountable for defective workmanship
long after the job had been completed. Because of all
these factors, we find that economy and efficiency of
operation favor an award of the work to employees
represented by the Glaziers.
6. Job impact
If the work were awarded to employees represented
by the Carpenters, the evidence shows that some of the
regularly employed glaziers would have to be laid off.
Since an award to glaziers would negate the need for
carpenters, there would of course be some impact on
carpenters, who are obtained from the hiring hall on
an "as needed" basis; however, this impact would not
be as great as that felt by glaziers, some of whom
would lose their regular employment. Therefore, this
factor favors an award to employees represented by
the Glaziers.
7. Past and present National Joint Board and
IJDB awards
The Carpenters presented evidence of some 20
National Joint Board and IJDB determinations be-
tween 1967 and 1977 in which employees represented
by the Carpenters had been awarded similar work in
various parts of the United States and Canada.9 The
few decisions which articulate a basis for the determi-
nation cite "trade practice" and the "particular facts
and evidence . . . regarding this dispute." Although
these determinations concerned disputes which were
geographically distant from the present dispute and
covered a 10-year period which ended approximately 2
years ago, they do tend to show a trade preference for
awarding the disputed work to carpenters. As such,
they favor an award in the instant case to employees
represented by the Carpenters.
' Eight of the disputes involved the Brotherhood of Painters. Decorators
and Paperhangers. The balance involved the International Brotherhood of
Painters and Allied Trades, the International Union involved in the present
dispute.
The Carpenters also sought to rely on the IJDB
award of the disputed work to its members in the
present case. This award summarily disposes of the
dispute with the statement that "[t]he work in dispute
shall be assigned to carpenters on the basis of trade
practice." There is no attempt to set forth the factors
upon which this determination was made or to show
why the factors supporting an award to employees
represented by the Carpenters outweighed those sup-
porting an award to employees represented by the
Glaziers. Given this dearth of analysis, "we do not
accord to the award the significant weight that
otherwise might attach to it." '°
Conclusion
Upon the record as a whole, and after full consider-
ation of all relevant factors, we conclude that employ-
ees who are represented by the Glaziers are entitled to
perform the work in dispute. We reach this conclusion
relying on Employer practice and preference, relative
skills, economy and efficiency of operations, and job
impact. In making this determination, we are award-
ing the work in question to employees who are
represented by the Glaziers, but not to that Union or
its members. The present determination is limited to
the particular controversy which gave rise to this
proceeding.
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
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dispute:
Employees employed by the Employer who are
represented by Local Union No. 1333, International
Brotherhood of Painters & Allied Trades, AFL-CIO,
are entitled to perform the work in dispute which
consists of the handling and installation of aluminum
windows secured to wood blocking at the Edgehill
Alcoholic Rehabilitation Center, Newport, Rhode
Island.
'" Operative Plasterers' and Cement Masons' International Association. Local
No. 394. AFL-CIO (Warner Masonry. Inc.). 220 NLRB 1074, 1076(1975).
I U.S. Government Printing Office: 1981-346-518/505
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