Glaziers Local 27 (E.J. Hayes)

National Labor Relations Board - Board Decisions

Apr 27, 1998

325 N.L.R.B. 674 (N.L.R.B. 1998)

674
325 NLRB No. 122
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1997, unless stated otherwise.
2 At the hearing, the Ironworkers filed a Motion to Stay Section
10(k) Hearing on the basis that a pending lawsuit in the U.S. District
Court for the Northern District of Illinois was the appropriate means
of resolving a contractual dispute between the Ironworkers and the
Glaziers. The suit alleges that: (1) the Glaziers entered into an agree-
ment with the Ironworkers that gave the latter jurisdiction over the
installation of preglazed windows; and (2) the Glaziers violated the
agreement by performing the disputed work at two area construction
sites and refusing to abide by the determination of the Joint Con-
ference Board of the Construction Employers’ Association and the
Chicago & Cook County Building and Construction Trades Council
(JCB). On September 17, the JCB, a construction industry arbitration
panel, awarded the preglazed work to the employees represented by
the Ironworkers.
We deny the motion to stay for the following reasons. Sec. 10(k)
provides that the Board must ‘‘hear and determine the dispute out
of which [the] unfair labor practice shall have arisen, unless . . . the
parties to such dispute . . . have adjusted, or agreed upon methods
for the voluntary adjustment of, the dispute.’’ The Supreme Court
has held that the employer controlling the assignment of the work
is a necessary ‘‘party’’ to the ‘‘dispute’’ for purposes of Sec. 10(k).
NLRB v. Plasterers Local 79, 404 U.S. 116 (1971). Here, however,
the Employer is not a party to the lawsuit between the two Unions
and is not a party to the alleged agreement between the two Unions.
Therefore, regardless of the outcome of the lawsuit between the two
Unions, the Board would still be required to ‘‘hear and determine’’
the dispute within the meaning of Sec. 10(k). Furthermore, to the ex-
tent that a conflict might arise between the court’s adjudication of
the Unions’ contract rights and the Board’s determination of the ju-
risdictional dispute, it is clear that, under Carey v. Westinghouse
Electric Corp., 375 U.S. 261, 272 (1964), the Board’s ruling would
take precedence. Accordingly, there is no need for the Board to stay
the instant 10(k) proceeding.
3 Counsel for the Ironworkers and counsel for the JCB left the
hearing room after the Ironworkers offered its Motion to Stay Sec.
10(k) Hearing, and did not return. Thus, the stipulating parties were
the Employer and the counsel for the Glaziers.
4 No stipulation regarding the status of the Ironworkers as a labor
organization was received. We find, however, that the Ironworkers
is a labor organization within the meaning of Sec. 2(5) of the Act
based on the Board’s similar finding in Bricklayers (Sesco, Inc.), 303
NLRB 401 (1991).
5 The Ironworkers also requested that the hearing include similar
jurisdictional disputes at Sears Tower, Amerisuites Hotel, and the
Main West School.
Glaziers, Architectural Metal and Glass Workers,
Local No. 27, Chicago and Vicinity, of the
International Brotherhood of Painters and Al-
lied Trades, AFL–CIO and E. J. Hayes Glass
& Mirror Co. and International Association of
Bridge, Structural and Ornamental Iron Work-
ers, Local Union 63, AFL–CIO and Iron
Workers District Council of Chicago and Vi-
cinity, International Association of Bridge,
Structural and Ornamental Iron Workers,
AFL–CIO and Joint Conference Board of the
Construction Employers’ Association and the
Chicago & Cook County Building and Con-
struction Trades Council, Parties-in-Interest.
Case 13–CD–545
April 27, 1998
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
The charge in this Section 10(k) proceeding was
filed on September 25, 19971 by the Employer, E. J.
Hayes Glass & Mirror Co., alleging that the Respond-
ent, Glaziers, Architectural Metal and Glass Workers,
Local No. 27, Chicago and Vicinity, of the Inter-
national Brotherhood of Painters and Allied Trades,
AFL–CIO (Glaziers), violated Section 8(b)(4)(ii)(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 the International As-
sociation of Bridge, Structural and Ornamental Iron
Workers, Local Union 63, AFL–CIO (Ironworkers).
The hearing was held on October 22 before Hearing
Officer Paul Prokop.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.2
I. JURISDICTION
The Employer is an Illinois corporation engaged in
the installation of glass glazing and architectural alu-
minum. It annually purchases and receives goods val-
ued in excess of $50,000 into its facility located in
Skokie, Illinois, directly from suppliers located outside
the State of Illinois. The parties stipulated,3 and we
find, that the Employer is engaged in commerce within
the meaning of Section 2(6) and 2(7) of the Act. The
parties also stipulated, and we find, that the Glaziers
is a labor organization within the meaning of Section
2(5) of the Act.4
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer is engaged in the installation of glass,
glazing, and architectural aluminum in the construction
industry. In or before June, General Contractor
BABCO subcontracted to the Employer the installation
of preglazed windows at the Hampton Inn & Suites lo-
cated at Illinois and Dearborn Streets, Chicago, Illi-
nois. Thereafter, the Employer assigned the unloading,
handling, and installing of preglazed windows at
Hampton Inn to the employees represented by the Gla-
ziers. In about July, the employees represented by the
Glaziers began performing the disputed work.
In about August, the Ironworkers requested a juris-
dictional hearing before the JCB concerning the Gla-
ziers’ preglazed work at the Hampton Inn & Suites.5
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675GLAZIERS LOCAL 27 (E. J. HAYES)
6 The posthearing brief filed by the Ironworkers was untimely and
was not accepted by the Board. The Employer did not file a brief.
By letter dated September 5, 1997, the JCB advised
the Employer that a hearing was scheduled for Septem-
ber 17 to consider the jurisdictional dispute at Hamp-
ton Inn. Neither the Employer nor the Glaziers at-
tended the hearing. By letter dated September 17, the
JCB advised the Employer that it awarded the work in
question to the Ironworkers. By letter dated September
19, the Glaziers advised the Employer that if it
changed its assignment of the disputed work from em-
ployees represented by the Glaziers to employees rep-
resented by the Ironworkers, the Glaziers would strike
and picket to preserve its work jurisdiction.
B. Work in Dispute
The disputed work involves the unloading, handling,
and installing of preglazed windows at Hampton Inn &
Suites, Illinois, and Dearborn Streets, Chicago, Illinois.
C. Contentions of the Parties6
The Employer stated at the hearing that it has had
a collective-bargaining agreement with the Glaziers
since 1945 and that it has never had a collective-bar-
gaining agreement with the Ironworkers. The Employer
also claimed that the employees represented by the
Glaziers possess the skills to perform the disputed
work and that its preference is to continue assigning
the preglazed work to Glaziers-represented employees.
Further, the Employer stated that it is common practice
for the employees represented by the Glaziers to per-
form the disputed work in the area.
In its brief, the Glaziers contend that its threat to
strike and picket the Employer if the work were reas-
signed establishes reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated. The Glaziers also
argue that there is no agreed-on method of dispute res-
olution. Although the Unions may be bound by the
JCB decision, the Glaziers contend that the Employer
has not agreed to abide by that decision. Thus, the
Glaziers argue that under Plasterers Local 502 (Ad-
vance Terrazzo), 272 NLRB 810, 811 (1984), there is
no method of voluntary dispute resolution binding on
all the parties.
Further, the Glaziers argue that the work in dispute
should be awarded to employees it represents. The
Glaziers contend that its collective-bargaining agree-
ment with the Employer covers the disputed work and
that the Employer has consistently assigned the dis-
puted work to employees it represents for the past 40
years. The Glaziers also contend that the employees it
represents are trained for 4 to 6 months to perform the
disputed work, and they have the requisite skills to
perform the work. In addition, the Glaziers claim that
members of the Glazing Contractors Association of
Chicago and Vicinity (Glazing Association) exclu-
sively employ Glaziers-represented employees to per-
form similar work, and that only Glaziers-represented
employees perform the disputed work on 10 similar
projects in the area. The Glaziers also rely on the Em-
ployer’s preference, and economy and efficiency of op-
erations. Moreover, the Glaziers seek a broad award
covering the disputed work at both the Hampton Inn
and the Sears Tower.
D. Applicability of the Statute
Before the Board may proceed with a determination
of the dispute pursuant to Section 10(k) of the Act, it
must be established that reasonable cause exists to be-
lieve that Section 8(b)(4)(D) has been violated, and
that the parties have not agreed on a method for vol-
untary adjustment of the dispute. As noted above, by
letter dated September 19, the Glaziers threatened the
Employer that, if the Employer changed its assignment
of the disputed work from the Glaziers to the Iron-
workers, the Glaziers would strike and picket to pre-
serve its work jurisdiction. We find that this threat is
sufficient to establish reasonable cause to believe that
Section 8(b)(4)(D) has been violated.
Further, we find that there is not an agreed-upon
method for voluntary resolution of this dispute. The
record contains a 1985 ‘‘tentative agreement’’ between
the Glaziers and the Ironworkers which outlines the ju-
risdiction of each labor organization and provides that
if the Unions cannot reach an understanding concern-
ing the interpretation or application of the agreement,
‘‘they shall immediately go to the Chicago Joint Board
for jurisdictional hearings.’’ We find that, even assum-
ing that the Glaziers and the Ironworkers are bound by
the ‘‘tentative agreement,’’ there is still no agreed
upon method of voluntary resolution of the dispute
within the meaning of Section 10(k) because the Em-
ployer is not a party to the agreement. It is settled that
the Board may defer to a private tribunal only when
all the parties involved in the dispute have agreed to
be bound. NLRB v. Plasterers Local 79, 404 U.S. 116
(1971); Plasterers Local 502 (Advance Terrazzo),
supra. Similarly, although the JCB issued a determina-
tion awarding the disputed work to the employees rep-
resented by the Ironworkers, the Employer is not
bound by the JCB proceedings. Accordingly, there is
no basis to find that all the parties have agreed on a
method for the voluntary adjustment of this dispute.
See Bricklayers (Sesco, Inc.), supra.
Based on the foregoing, we find reasonable cause to
believe that the Glaziers violated Section 8(b)(4)(ii)(D)
of the Act, and 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.
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676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Art. VI, sec. 1 states in part that:
Journeyperson Glaziers or Apprentices will be employed in
the following classifications: general glazing, including the
setting, cutting, preparing, handling . . . . or removal of win-
dow glass . . . . .
The installation of all extruded, rolled, or fabricated metals
or any materials that replace same, metal tubes, mullions,
metal facing materials, muntins, facia trim moldings, porcelain
panels, architectural porcelain, plastic panes, skylights, show-
case doors and relative materials including those in any or all
types of building related to store front and window construc-
tion.
Door and window frame assemblers such as patio sliding or
fixed doors, vented or fixed windows, shower doors, bath tub
enclosures, storm sash where the glass becomes an integral
part of the finished product, including the installation of the
above.
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 this dispute.
1. Certifications and collective-bargaining
agreements
Neither the Glaziers nor the Ironworkers are cer-
tified as the collective-bargaining representative of any
of the employees performing the work in dispute.
The Employer, as a member of the Glazing Associa-
tion and as an individual signatory, has a collective-
bargaining agreement with the Glaziers. The most re-
cent local collective-bargaining agreement is effective
from June 1, 1995, through May 31, 1998. Article VI,
section 1 of the local agreement covers the work in
dispute.7 The Employer does not have a collective-bar-
gaining agreement with the Ironworkers or with the
Iron Workers District Council of Chicago and Vicinity.
Accordingly, we find that the factor of collective-bar-
gaining agreements favors awarding the work in dis-
pute to the employees represented by the Glaziers.
2. Employer preference and past practice
The Employer assigned the disputed work to the em-
ployees represented by the Glaziers, and the Employer
maintains a preference for that assignment. In addition,
work similar to that in dispute has been performed by
the employees represented by the Glaziers for the past
40 years. We find that this factor favors an award of
the disputed work to employees represented by the
Glaziers.
3. Area practice and industry practice
It is common practice for the employees represented
by the Glaziers to perform work similar to the disputed
work in the Chicago area. The Glaziers presented evi-
dence that the Glazing Association members exclu-
sively employ Glaziers-represented employees to in-
stall preglazed windows. The Glaziers also presented a
list of 10 similar projects in the area performed exclu-
sively by employees represented by the Glaziers. The
Ironworkers did not present evidence concerning the
area practice. No party presented witnesses or evidence
concerning industry practice. We find that the factor of
area practice favors an award of the disputed work to
employees represented by the Glaziers.
4. Relative skills
The Glaziers presented evidence that the employees
it represents participate in a 3-year apprentice trade
program consisting of class work and field training, in-
cluding 4 to 6 months of preglazed window installation
training. The Employer testified that the employees
represented by the Glaziers possess the requisite skills
to perform the disputed work. No evidence was pre-
sented by the Ironworkers concerning the skills of the
employees it represents. Based on the foregoing evi-
dence, we find that this factor favors awarding the dis-
puted work to employees represented by the Glaziers.
5. Economy and efficiency of operations
The Employer and the Glaziers contended that it is
more economical to assign the disputed work to em-
ployees represented by the Glaziers because the Iron-
workers’ wage and benefit package is $36.06 per hour
while the Glaziers’ wage and benefit package is $33.37
per hour. No evidence was presented by the Iron-
workers concerning the economy and efficiency of op-
erations.
The Board does not consider wage differentials as a
basis for awarding disputed work. Longshoremen ILA
Local 1242 (Rail Distribution Center), 310 NLRB 1
fn. 4 (1993). We, therefore, do not rely on this argu-
ment in evaluating this factor. We find that the evi-
dence with respect to economy and efficiency of oper-
ations is insufficient to favor awarding the disputed
work to employees represented by either Union.
6. Awards
On September 17, the JCB awarded the disputed
work to employees represented by the Ironworkers.
However, the Employer was not a party to that pro-
ceeding and has not agreed to be bound by the JCB’s
results. Thus, we cannot give dispositive weight to this
award. Although this factor favors awarding the dis-
puted work to employees represented by the Iron-
workers, we find that this factor does not outweigh
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677GLAZIERS LOCAL 27 (E. J. HAYES)
8 The Sears Tower project is located less than a mile from the
Hampton Inn site.
others which favor awarding the disputed work to em-
ployees represented by the Glaziers.
Conclusion
After considering all the relevant factors, we con-
clude that the employees represented by Glaziers, Ar-
chitectural Metal and Glass Workers, Local No. 27,
Chicago and Vicinity, of the International Brotherhood
of Painters and Allied Trades, AFL–CIO are entitled to
perform the work in dispute. We reach this conclusion
relying on the factors of collective-bargaining agree-
ments, the Employer’s preference and past practice, the
area practice, and the relative skills of the employees.
In making this determination, we are awarding the
work in dispute to the employees represented by the
Glaziers, and not to that Union or its members.
Scope of Award
The Glaziers seeks a broad award covering both the
disputed work at the Hampton Inn & Suites and a
similar dispute at the Sears Tower.8 The Board has
customarily declined to grant an areawide award in
cases such as this in which the charged party rep-
resents the employees to whom the work is awarded
and to whom the employer contemplates continuing to
assign the work. Automotive Trades District Lodge 190
(Sea-Land Service), 322 NLRB 830 (1997). Thus, we
find that a broad award is inappropriate here. Accord-
ingly, this determination is limited to the controversy
that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of E. J. Hayes Glass & Mirror Com-
pany, represented by Glaziers, Architectural Metal and
Glass Workers, Local No. 27, Chicago and Vicinity, of
the International Brotherhood of Painters and Allied
Trades, AFL–CIO are entitled to perform the unload-
ing, handling and installation of preglazed windows at
Hampton Inn & Suites, Illinois & Dearborn Streets,
Chicago, Illinois.
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