Glaziers, Architectural Metal & Glassworkers, Local 513

National Labor Relations Board - Board DecisionsJan 15, 1985

273 N.L.R.B. 1428 (N.L.R.B. 1985)

1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glaziers, Architectural Metal & Glassworkers, Local Union No. 513 and SK Consultants and Carpen- ters District Council of Greater St Louis. Case 14-CD-702 15 January 1985 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The charge in this Section 10(k) proceeding was filed 11 September 1984 1 by the Employer, alleg- ing that the Respondent, Glaziers, violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to em- ployees it represents rather than to employees rep- resented by Carpenters. The hearing was held on 4 October before Hearing Officer Lynette K. Zuch. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. I. JURISDICTION The Employer, SK Consultants, a sole propri- etorship with her principal office and place of busi- ness located in Godfrey, Illinois, is engaged in the installation of aluminum windows. The Employer commenced operations on 2 January 1984 and will annually perform window installation services valued in excess of $50,000 directly to customers located outside the State of Illinois. The parties stipulate, and we find, that the Employer is en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Glaziers and Car- penters are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer contracted to install operable and fixed aluminum replacement windows at the St. Louis Public Library and has a collective-bargain- ing agreement with Carpenters. The Employer commenced work at the jobsite in June 1984, and assigned the installation of both fixed and operable aluminum replacement windows to its six employ- ees who are represented by Carpenters. On 24 August Carpenters and Glaziers entered into a memorandum of understanding covering the St. Louis area which provided that operable and I All dates are In 1984 fixed aluminum replacement windows would be in- stalled by a composite crew of Carpenters and Gla- ziers. Thereafter, about 10 September, a. Glaziers representative spoke to the Employer's agent and claimed the work being performed at the St. Louis Public Library jobsite, and threatened to have pickets on the job. The following day, pickets for Glaziers appeared on the jobsite with ,"area standards" picket legend. A Glaziers representative testified that the picketing would have stopped if the work had been assigned to the employees rep- resented by Glaziers in accordance with the memo- randum of understanding., At the hearing, the Carpenters business repre- sentative claimed the work in accord with the memorandum of understanding. However, the Em- ployer's employees, who are represented by Car- penters, at the hearing claimed all of the work in- volved in the installation of both operable and fixed aluminum replacement windows at the St. Louis Public Library jobsite. B. Work in Dispute The, disputed work involves the installation of operable and fixed aluminum replacement windows at the St.- Louis Public Library at 1301 Olive Street, St. Louis,-Missouri. C. Contentions of the .Parties The Employer contends- that reAonable cause exists to believe that Glaziers has violated Section 8(b)(4)(D) of the Act. It argues, that the picketing violated Section 8(b)(4)(D) because it constituted unlawful coercion. The Employer contends that the work in dispute should be awarded to employ- ees represented by Carpenters based on its collec- tive-bargaining agreement with Carpenters; the Employer's past practice; relative skills; economy and efficiency of operations; and the Employer's preference. It further contends that it is not a party to the memorandum of understanding executed be- tween Glaziers and Carpenters and that there is no area or industry practice to use glaziers to perform the installation of aluminum replacement windows. Glaziers contends that no reasonable cause exists to believe that it has violated Section 8(b)(4)(D) of the Act. Glaziers contends that the purpose of the picketing was to protect the area standards estab- lished by Glaziers. Furthermore, Glaziers contends that there is no jurisdictional dispute because Gla- ziers and Carpenters have entered into a memoran- dum of understanding which provides that a com- posite crew of carpenters and glaziers shall install operable and fixed replacement windows, and that Carpenters has disclaimed work relating to the 273 NLRB No. 171 GLAZIERS LOCAL 513 (SK CONSULTANTS) 1429 glazing of windows and the installation of fixed window systems. Carpenters contends that the work in dispute should be awarded to a composite crew of employ- ees represented by Glaziers and Carpenters, con- sistent with the memorandum of understanding. D. Applicability of the Statute Before the Board may proceed with a determina- tion 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 on a method for voluntary adjustment of the dispute. The record shows that pickets for Glaziers ap- peared on the jobsite with an "area standards" picket legend. However, there is no support for a finding that the picketing had solely an area stand- ards purpose as the record shows that the Glaziers business representative testified that the picketing would have stopped if the installation of fixed and operable aluminum replacement windows had been assigned to employees represented by Glaziers in accordance with the memorandum of understand- ing. Therefore, we find reasonable cause to believe that the picketing had an object of forcing and re- quiring the Employer to assign the disputed work to Glaziers-represented employees, and that a vio- lation of Section 8(b)(4)(D) has occurred. The par- ties stipulated that there exists no agreed-on method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly before the Board for determination.2 E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative 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 bal- ancing the factors involved in a particular case. Machinists Lodge 1 743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 2 Contrary to Glaziers' contention, we find that a junsdictional dispute exists despite the agreement reached by the two Unions because conflict- ing claims still exist between Glaziers and individual Carpenters-repre- sented employees Teamsters Local 326 (Greggo & Ferrara), 269 NLRB 729 (1984) We therefore also find ineffective any purported disclaimer of the disputed work by Carpenters 1. Certification and collective-bargaining agreements Neither labor organization has been certified by the Board as the collective-bargaining representa- tive of the Employer's employees in an appropriate unit. However, the Employer currently has a col- lective-bargaining agreement with Carpenters which covers "the installation of replacement win- dows into existing buildings." We find that the col- lective-bargaining agreement is sufficient to cover the work in dispute. The Employer has no collec- tive-bargaining agreement with Glaziers. We there- fore find that the factor of collective-bargaining agreements favors an award of the disputed work to the Employer's employees represented by Car- penters. 2. Company preference, assignment, and past practice It is undisputed that the employees represented by Carpenters have installed operable and all fixed aluminum replacement windows in the past for the Employer and are presently assigned to do so. The Employer has never assigned this type of work to glaziers. We find that the Employer's assignment and practice favors an award to its employees rep- resented by Carpenters. The Employer, at the hearing and in her brief, has expressed her preference that the disputed work continue to be performed by her employees represented by Carpenters. While we do not afford controlling weight to this factor, we find that it favors an award of the work in dispute to employ- ees represented by Carpenters. 3. Area and industry practice The Employer's agent testified that generally other employers in the St. Louis area have assigned the installation of fixed and operable aluminum re- placement windows to employees having skills nor- mally associated with Carpenters-represented em- ployees. The Employer also presented the testimo- ny of a manufacturer of replacement windows that Glaziers-represented employees have not been as- signed this work in the St. Louis area. Glaziers presented testimony that employees it represents have been assigned to glaze windows and to install fixed aluminum replacement windows in the St. Louis area, and this testimony was corroborated by the business representative for Carpenters. Further- more, as noted above, Glaziers and Carpenters en- tered into a memorandum of understanding after the Employer commenced work at the jobsite, which provided that fixed and operable replace- ment windows would be installed by a composite 1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crew of employees represented by both Glaziers and Carpenters respectively. 3 The Employer's agent further testified that in his 17 to 18 years of experience in the industry employees represented by Glaziers did not perform work similar to that in dispute. However, it is clear from the record that his testimony was limited to the companies for whom he had worked in the past in the St. Louis area. Accordingly, we find the factors of area and industry practice are inconclusive. 4. Relative skills The Employer presented undisputed testimony that her employees represented by Carpenters are specially trained to install operable and fixed re- placement windows. A Glaziers representative tes- tified that Glaziers-represented employees possess the skills to install fixed aluminum replacement windows, but traditionally have not installed opera- ble aluminum replacement windows. Accordingly, we find that the factor of relative skills favors awarding the disputed work to employees repre- sented by Carpenters. 5. Economy and efficiency of operations The Employer presented undisputed testimony that, if the Employer were to assign the installation of aluminum replacement windows to a composite crew of Carpenters-represented employees and Glaziers-represented employees, the employees rep- resented by Glaziers would stand idle during peri- ods of the installation process. The record also re- flects that Carpenters-represented employees, unlike Glaziers-represented employees, are able to work with all construction mediums, whether they are metal or wood. Therefore, Carpenters-repre- sented employees, unlike Glaziers-represented em- ployees, can perform and are assigned a variety of tasks at the jobsite, resulting in greater economy and efficiency than can be achieved by a composite crew of Carpenters-represented and Glaziers-repre- sented employees. Glaziers has not shown that an 3 While we have considered the memorandum of understanding in de- termining the dispute, we find that it is not controlling award of the work to employees represented by it would be as economical and/or result in the same flexibility in adjusting to the jobsite requirements as an award of the disputed work to employees repre- sented by Carpenters. Accordingly, we find that the factors of economy and efficiency favor an award of the disputed work to employees repre- sented by Carpenters. Conclusions After considering all the relevant factors, we conclude that employees represented by Carpenters are entitled to perform the work in dispute. We reach this conclusion relying on the Employer's collective-bargaining agreement with Carpenters; the Employer's preference, assignment, and past practice; relative skills; and economy and efficiency of operations. In making this determination, we are awarding the work to employees represented by Carpenters, not to that Union or its members. The determination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of SK Consultants represented by Carpenters District Council of Greater St. Louis are entitled to perform the installation of fixed and operable aluminum replacement windows at the St. Louis Public Library at 1301 Olive Street, St. Louis, Missouri. 2. Glaziers, Architectural Metal & Glassworkers, Local Union No. 513 is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force SK Consultants to assign the disputed work to em- ployees represented by it. 3. Within 10 days from this date, Glaziers, Ar- chitectural Metal & Glassworkers, Local Union No. 513 shall notify the Regional Director for Region 14 in writing whether it will refrain from forcing the Employer, by means proscribed by Sec- tion 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.