Shopmen's Local Union No. 468 of the International Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO (AMPAT/Midwest Corporation)

National Labor Relations Board - Board Decisions

Jun 9, 1983

266 N.L.R.B. 963 (N.L.R.B. 1983)

SHOPMEN'S LOCAL 468
Shopmen's Local Union No. 468 of the International
Association of Bridge, Structural and Ornamen-
tal Ironworkers, AFL-CIO and AMPAT/-
Midwest Corporation and Glaziers Local No.
181 of the International Brotherhood of Paint-
ers and Allied Trades, AFL-CIO. Case 8-CD-
371
9 June 1983
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing a charge filed by AMPAT/Midwest Corpo-
ration, herein called AMPAT or the Employer, al-
leging that Shopmen's Local Union No. 468 of the
International Association of Bridge, Structural and
Ornamental Ironworkers, AFL-CIO, herein called
Shopmen, has violated Section 8(b)(4)(D) of the
Act by engaging in conduct with an object of forc-
ing or requiring the Employer to assign certain
work to employees represented by it, rather than to
employees represented by Glaziers Local No. 181
of the International Brotherhood of Painters and
Allied Trades, AFL-CIO, herein called Glaziers.
A hearing was held on 13, 22, 24, and 27 Sep-
tember 1982, before Hearing Officer Thomas J.
Blabey. All parties appeared at the hearing and all
were afforded full opportunity to be heard, to ex-
amine witnesses, and to adduce evidence bearing
on the issues. Thereafter, AMPAT, Shopmen, and
Glaziers each filed a brief in support of its position.
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 rulings of the Hearing Officer made at the
hearing 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 Employer, an Ohio corporation which is a
wholly owned subsidiary of AMPAT Grouping, a
Delaware corporation, designs, manufactures, and
installs custom architectural metals and glass. It an-
nually ships goods valued in excess of $50,000 di-
rectly to points outside the State of Ohio. The par-
ties stipulated, and we find, that the Employer is
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act, and that it will effectu-
266 NLRB No. 170
ate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Shop-
men and Glaziers are labor organizations within
the meaning of Section 2(5) of the Act.
Ill. THE DISPUTE
A. The Work in Dispute
The work in dispute consists of the in-shop
structural glazing (siliconing) of window units
being fabricated in the Employer's warehouse
(Hussey Building), next to its Cuyahoga Heights,
Ohio, plant located at 5171 Grant Avenue.
B. Background and Facts of the Dispute
During October 1981 the Employer entered into
an agreement with Turner Construction Company
to provide structurally glazed window walls (cur-
tain walls) for the Ohio Bell Telephone (OBT)
Company office complex located in downtown
Cleveland, Ohio. Actual production work on the
OBT project commenced on or about 1 June 19821
and was scheduled for completion on 31 Decem-
ber. On 15 August the Employer completed work
on the Washington Design Center project which is
located in Washington, D.C. This was the Employ-
er's only other project which entails structural
glazing of window units. On both projects the Em-
ployer assigned all of the in-shop glazing to em-
ployees represented by Shopmen.
Structural glazing or siliconing of window units
is, according to Donald F. Kelly, Jr., president of
AMPAT, the bonding of glass to a metal frame.2
The process may be roughly divided into three
subparts: cleaning and priming, bonding, and
curing. Principally for aesthetic reasons, there is no
metal on the outside of the glass; the only thing se-
curing it to the frame is the silicone bond. Because
of this, a proper adhesion of glass to metal is cru-
cial. The "key element" in achieving optimum
bonding, according to Kelly, is that "the materials
be kept as dirt-free as possible." The metal and
glass must be carefully cleaned and the materials
must be primed with chemicals. If both the clean-
ing and priming are performed correctly, the sili-
cone cement or seal (bonding) has the best chance
of attaining required adhesion. After bonding, the
silicone requires a 14-day curing process during
which the units are stored, undisturbed, horizontal-
All dates hereinafter refer to 1982. unless otherwise stated.
2 The frames are typically aluminum. but other metals are used. They
are fabricated at the Employer's 5171 Grant Avenue facility by employ-
ees represented by Shopmen.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly. This is to assure that no weight is transferred to
the silicone until it is strong enough to resist the
weight; i.e., has become a "structural element."
The Employer leased the Hussey Building, adja-
cent to the Employer's existing facility, to have
adequate space to perform the in-shop glazing.
Kelly testified that leases for both buildings run for
8 years and are tied together, and that the Employ-
er plans physically to join the two buildings. Table
fixtures designed specifically for the OBT project
were assembled in the Hussey Building; they are
used to check the alignment and tolerances of a
unit and to hold the unit in position during silicon-
ing once it reaches the proper configuration. The
window units made for the OBT project weigh be-
tween 375 and 425 pounds a piece and must be
transported within the plant by an overhead crane.
James A. Bailey, business manager of Glaziers,
testified that, sometime in April, he became aware
that AMPAT had assigned Shopmen-represented
employees the structural glazing work in connec-
tion with the Washington Design Center project.
Sometime after 20 April, Bailey met with Kelly to
discuss the Washington Design project. After tour-
ing the Hussey Building, Bailey asked if Kelly in-
tended to do the OBT project the same way. When
Kelly answered yes, Bailey claimed the glazing
work on behalf of employees represented by Gla-
ziers. Kelly refused to assign the work to Glaziers-
represented employees and declared his intention to
assign it to Shopmen-represented employees. Bailey
then threatened to take the dispute to arbitration
and, by letter dated I June, informed Kelly that
Glaziers was indeed proceeding to arbitration. The
arbitration was scheduled for 4 October. In a letter
dated 1 July, Mark Hebda, chief shop steward of
Shopmen, wrote Kelly that he knew Glaziers had
filed a grievance and reasserted Shopmen's claim to
the work. On 22 July the Employer posted a notice
which stated that, if Glaziers won the arbitration:
[T]he Company may be required to take this
work away from members of the Shopmen's
Union and reassign it to the Glaziers. If this
occurs, 12 to 15 members of Local 468 will be
laid off immediately with little chance of
recall. Additional layoffs of members of Local
468 may be required later this year if the Com-
pany is unable to compete for jobs similar to
Ohio Bell or if these jobs have to be fabricated
in other AMPAT plants.
On 27 July at 7 a.m., the Employer's production
and maintenance employees represented by Shop-
men struck and picketed the Employer's facility.
Picketers carried signs that read, "AMPAT MID-
WEST DON'T TAKE OUR JOBS AWAY
HONK FOR US," and "SHOP WORK IS OUR
WORK SHOPMEN'S LOCAL 468 HONK FOR
US!" The Employer and employees represented by
Shopmen, settling the strike, entered into an agree-
ment providing, in pertinent part, that the employ-
ees would return to work and that the jurisdiction-
al dispute would be resolved by the Board.3
In a telegram dated 4 August, the Ironworkers
International Association notified AMPAT that it
did not recognize the authority of any arbitrator of
Glaziers' grievance to make an award of the work,
and that the International Association had filed an
article XX charge for violation of the AFL-CIO
no-raiding procedure against the Brotherhood of
Painters and Allied Trades. Glaziers filed counter-
charges against Shopmen. The hearing on the arti-
cle XX charges was scheduled for 29 September.
Glaziers, on 5 August, filed an unfair labor prac-
tice charge against the Employer, which later was
withdrawn. That charge (Case 8-CA-15955) al-
leged a violation of Section 8(a)(5) and (1) of the
Act for refusal to bargain in good faith since on or
about 15 April. On 17 September Glaziers filed an-
other charge (Case 8-CA-16087) containing the
same allegation, which is currently pending.
C. Contentions of the Parties
The Employer and Shopmen contend that there
is reasonable cause to believe that Shopmen violat-
ed Section 8(b)(4)(D) of the Act and the proceed-
ing is properly before the Board for determination
of the dispute. They further argue that, on the basis
of Shopmen's collective-bargaining agreement with
the Employer, the Employer's assignment and pref-
erence, industry practice, relative skills involved,
and economy and efficiency of operation the work
in dispute should be assigned to employees repre-
sented by Shopmen.
Glaziers contends that the evidence does not es-
tablish an unlawful work assignment dispute viola-
tive of Section 8(b)(4)(D), particularly because the
strike was a "sham" cooperated in by the Employ-
er solely to invoke the Board process. Glaziers
contends that it was a sham because it was caused
by the Employer posting the 22 July notice, which
occurred 7 weeks after Glaziers had notified the
Employer of the arbitration and after the Employer
had participated in the choice of an arbitrator. Fur-
ther, the Company did not proceed for an injunc-
tion against the illegal strike, nor post a notice re-
quiring the employees to return to work as re-
quired by its contract, nor file a damage suit for
the wages ultimately paid to the strikers. Glaziers
:' The strike settlement further provided that there would be "no penal-
ty or reprisals agaiist anlly employee who participated in the strike or
who did not cross the picket line " Pursuant to this, the employees were
paid for the time the) were not working
964
SHOPMEN'S LOCAL 468
asserts that the issue is not properly before the
Board, inasmuch as the Employer "created" the
dispute by assigning the work to Shopmen-repre-
sented employees, relying upon Truckdrivers Local
107 (Safeway Stores), 134 NLRB 1320 (1961), and
Longshoremen Local 8 (Waterway Terminals), 185
NLRB 186 (1970), vacated and remanded 467 F.2d
1011 (9th Cir. 1972), on remand 203 NLRB 681
(1973). Should the Board find a jurisdictional dis-
pute exists, Glaziers contends that the work should
be awarded to employees represented by it on the
basis of its collective-bargaining agreement with
the Employer; industry, area, and national practice;
the Employer's past practice; relative skills; and
economy and efficiency of operation.
D. Applicability of the Statute; Ruling on the
Motion to Quash Notice of Hearing
Before the Board may proceed with a determina-
tion of dispute pursuant to Section 10(k) of the
Act, it must be satisfied that (1) there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated and (2) the parties have not agreed upon a
method for the voluntary adjustment of the dis-
pute.
Here, contrary to Glaziers' assertions in support
of its motion to quash, the evidence is sufficient to
establish a traditional jurisdictional dispute between
two groups of employees. Shopmen, in its I July
letter to the Employer, indicated it was aware of
the grievance filed by Glaziers claiming the disput-
ed work, and then reasserted its claim to the work.
In response to Glaziers' claim and initiation of an
arbitration of that claim, the Employer informed
Shopmen on 22 July that, should Glaziers win, the
arbitration would result in a reassignment of the
work in dispute from employees represented by
Shopmen to those represented by Glaziers with a
consequent loss of jobs to the Shopmen-represented
employees. The next day, Shopmen struck and
picketed the jobsite with an object of forcing
AMPAT to assign the work to employees repre-
sented by Shopmen rather than reassign the disput-
ed work to employees represented by Glaziers. 4
Glaziers' reliance on cases such as Safeway and
Waterway, to support its position, is misplaced.
Unlike those cases, this is not a situation where the
"employer created a dispute with a union by termi-
nating a group of employees, whom the union rep-
resented, and assigning their duties to another
4 Contrary to Glaziers' assertion, we cannot agree this was a sham
strike Although the strikers were not disciplined for their participation in
the strike, there is no evidence that this was anything other than an at-
tempt amicably to resolve the dispute An employer is not required to
discipline such strikers. nor to initiate a damage suit in connection with a
strike.
group of employees." 5 Here, Glaziers claims that,
by obtaining new work and leasing the Hussey
building to house the work and hiring new employ-
ees, "the Company obviously created the dispute"
and caused the strike. This logic ignores the evi-
dence of record that the Employer posted the in-
formational notice to employees represented by
Shopmen which led to the strike in response to pres-
sure and the pending arbitration instigated by Gla-
ziers in its effort to claim the disputed work. With
this in mind, it is apparent that the object of Shop-
men's protest was Glaziers' effort to take away
work which the Employer had assigned to employ-
ees represented by Shopmen. Accordingly, we
deny Glaziers' motion to quash the notice of hear-
ing.
The record reveals that AMPAT is not bound
by the outcome of the article XX proceeding, and
Shopmen is not bound by the arbitration initiated
by Glaziers with the Employer. Therefore, there
exists no agreed-upon method for the voluntary ad-
justment of the dispute.
On the basis of the entire record, we conclude
that there is reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred and that
there exists no agreed-upon method for the volun-
tary adjustment of the dispute within the meaning
of Section 10(k) of the Act. Accordingly, we find
that this dispute is properly before the Board for
determination.
E. Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of disputed work after
giving due consideration to various factors. 6 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case. 7
The following factors are relevant in making the
determination of the dispute before us:
1. Board certification and collective-bargaining
agreement
There is no evidence that any of the labor orga-
nizations involved herein has been certified by the
Board as the collective-bargaining representative
for a unit of the Employer's employees.
Since 1973 the Employer has been a member of
various employer groups which have had collec-
tive-bargaining relationships with Glaziers. Since
5 Waterway. 185 NLRB 187.
6 ALRB v Radio & Television Broadcast Engineers Union. Local 1212,
IBEW [Columbia Broadcasting Systeml, 364 U.S. 573 (1961).
M7 achinists. Lodge 1743 (J A. Jones Construction Co., 135 NLRB 1402
(1962).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on or about 15 July, the Employer has been a
member of the Cleveland Area Glazing Contrac-
tors Labor Group of Cleveland, Ohio, which was
formed by a merger of two employer groups. Arti-
cle XIII, paragraph 63, of its collective-bargaining
agreement gives Glaziers jurisdiction over the "re-
moving, cutting, and setting" of various types of
glass "when in the shop or on the jobsite." Shop-
men has represented the Employer's in-shop pro-
duction and maintenance employees since 1962.
Section I(A) of the Employer's contract with
Shopmen gives Shopmen jurisdiction over the
"fabrication of iron, steel, metal, and other prod-
ucts . . . in or about the Company's plant or plants
located at Cuyahoga Heights, Ohio." While the
broad language of AMPAT's contract with Gla-
ziers lends support to Glaziers' claim, testimony
comparing AMPAT's contract with Shopmen with
those of other Cleveland area glass contractors
contracts with Shopmen buttresses its claim that
the undefined term "other products" includes sili-
coning. Section 1(A) of Shopmen agreements with
other Cleveland area glass contractors specifically
excludes "removing, cutting and setting glass con-
tained in fabricated products," while AMPAT's
contract contains no such language. This, Shopmen
asserts, is because of AMPAT's practice of using
Shopmen-represented employees to perform in-
shop glazing on preglazed (i.e., assembled in-shop
rather than on-site) products. We conclude, there-
fore, that this factor does not favor an award of the
work in dispute to either party.
2. Employer assignment, preference, and past
practice
As to the Employer's past practice, there is evi-
dence that Shopmen-represented employees have
historically performed the in-shop glazing. For ex-
ample, Shopmen-represented employees have per-
formed the in-shop glazing of AMPAT's Clear Rail
product (glass handrails). There is evidence that
during 1981 the Employer had employees repre-
sented by Glaziers perform in-shop glazing on the
Wayne County, Michigan, jail, the Southerly
Sewage, and the Goodyear projects. However, Joe
Mason, contract manager for Midwest, testified
that certain glaziers the company considered key
employees were transferred in-shop to perform
glazing when the weather was bad on-site. The
Employer considered it important to keep these
men steadily employed so they would not go else-
where for work; AMPAT often relied on them to
run out-of-town jobs and act as foremen on other
jobs. Evidence shows that the amount of in-shop
glazing performed on these projects by Glaziers-
represented employees was not substantial alone, or
in comparison to that done by Shopmen-represent-
ed employees. The Employer has assigned the
work and prefers assignment to employees repre-
sented by Shopmen. This factor, therefore, favors
an assignment of the work to employees represent-
ed by Shopmen.
3. Area and industry practice
Kelly testified that no other employer in the area
is working on structurally glazed or siliconed
window units.
There is evidence in the record of companies lo-
cated outside the State of Ohio that do this type of
work. At the hearing, Kelly named several of
AMPAT's national competitors, and testified that
while these companies employ glaziers they also
have a shop union that performs preglazing in their
shops. Bailey, business manager for Glaziers, intro-
duced evidence on the various innovations and im-
provements realized in the glazing industry in past
years. Included in this was siliconing work per-
formed in the Cleveland area, on-site, by Glaziers
on the National City Complex and various malls.
But on cross-examination, when asked about the
National City Complex job, Bailey admitted that
the siliconing was of a different nature. While
Kelly's testimony was unspecific, in that he did not
name particular jobs at which work similar to the
instant disputed work as performed in-shop by
Shopmen, Bailey's testimony was misdirected, in
that its focus is on innovations in the glazing indus-
try rather than on specific instances of similar
structural-glazing work being performed on-site by
Glaziers. Therefore, we find that this factor of area
and industry practice does not favor either party.
4. Relative skill
Kelly testified that employees represented by
Shopmen are performing the structural glazing in a
satisfactory, timely manner, and that the Employer
has noticed no difference in the quality of work
performed in the shop by them vis-a-vis that per-
formed on-site by employees represented by Gla-
ziers. We conclude, therefore, that either group of
employees is capable of satisfactorily performing
the work, and, therefore, this factor favors neither
party to the dispute.
5. Economy and efficiency of operations
At the hearing, it was explained that, because the
silicone seal is all that holds the glass in place, the
frame and glass must be kept free from contami-
nants and the unit must be stored, undisturbed,
horizontally, both to facilitate proper bonding.
Also, because of the great weight of each window
unit it must be transported by overhead crane. Be-
966
SHOPMEN'S LOCAL 468
cause it is easier to protect the metal and glass
from contamination and transfer the units in the
shop, it is more efficient to perform the disputed
work there. We conclude, therefore, that this
factor favors an award of the work in dispute to
employees represented by Shopmen.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees who are represented by
Shopmen are entitled to perform the work in dis-
pute. We reach this conclusion relying on the Em-
ployer's assignment, preference and past practice,
and economy and efficiency of operations. In
making this determination, we are awarding the
work in question to employees who are represented
by Shopmen, but not to that Union or its members.
The present determination is limited to the particu-
lar 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 Dis-
pute:
Employees employed by AMPAT/Midwest Cor-
poration, who are represented by Shopmen's Local
Union No. 468 of the International Association of
Bridge, Structural and Ornamental Ironworkers,
AFL-CIO, are entitled to perform the in-shop
structural glazing (siliconing) of window units
being fabricated in the Employer's warehouse
(Hussey Building), next to its Cuyahoga Heights,
Ohio, plant located at 5171 Grant Avenue.
967