Iron Workers Local 290

National Labor Relations Board - Board DecisionsApr 8, 1976

223 N.L.R.B. 790 (N.L.R.B. 1976)

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Iron Workers Local Union #290, International Asso- ciation of Bridge , Structural and Ornamental Iron Workers, AFL-CIO and Israel Builders Supplies, Inc. and Glaziers ' Local Union No. 923, Interna- tional Brotherhood of Painters and Allied Trades, AFL-CIO. Case 9-CD-322 State of Ohio. Accordingly, we find that the Employ- er is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effec- tuate the policies of the Act to assert jurisdiction herein. April 8, 1976 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS , PENELLO, AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Israel Builders Supplies, Inc. (herein called the Employer), on January 2, 1976, al- leging that Iron Workers Local Union #290, Inter- national Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO (herein called the Iron Workers), violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing the Employer to assign certain work to the employees represented by the Iron Workers rather than to employees represented by the Glaziers' Local Union No. 923 , International Brotherhood of Painters and Allied Trades, AFL-CIO (herein called the Glaziers). Pursuant to notice, a hearing was held before Hearing Officer Edward C. Verst on January 22, 1976. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer filed a brief. 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 Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. The Board has considered the entire record in this case and hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer, an Ohio corporation whose princi- pal offices are located in Dayton, Ohio, is engaged in the business of distribution and installation of metal windows and doors. During the past 12 months, which is a representative period, the Employer pur- chased and received goods and materials valued in excess of $50,000 from suppliers located outside the If. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the Iron Workers and the Glaziers are labor organizations within the meaning of Section 2(5) of the Act. 111. THE DISPUTE A. The Work in Dispute The work in dispute consists of the installation of preglazed aluminum window units in the Stouffer's Dayton Plaza Hotel, Dayton, Ohio. B. Background and Facts of the Dispute On May 27, 1975, the Employer was awarded a contract by B. G. Danis Company, the general con- tractor for Stouffer's Dayton Plaza Hotel project, to perform the work in dispute. The Employer has had a bargaining relationship with the Glaziers for ap- proximately 15 years, and employs three full-time glaziers on its regular payroll. In its 26 years of oper- ation it has used members of another union for its installation work on only one occasion, and that was in 1964 when it used iron workers in a composite crew arrangement, which according to the Employer was an unsatisfactory experience. Notwithstanding the Employer's negative reaction to the ironworkers' performance on that one occa- sion , but because of past requests for work by the Iron Workers, the Employer sent a letter to George Clark, the Iron Workers business agent, on June 23, 1975, informing him of the Stouffer contract and in- viting him to cooperate with the Employer in assign- ing the work. Clark failed to respond by June 30, 1975, as requested, and the Employer notified the Glaziers on September 3, 1975, that it was assigning all the work on the job to the glaziers. Thereafter, at a November 13 meeting involving William Veal, the Iron Workers assistant business agent , Clark, and Employer's president, David Israel, Clark requested that a composite crew be used on the project. Israel was willing, but indicated that he would first contact Robert Meyers, the Glaziers busi- ness agent , for his reaction to such an arrangement. When Meyers disapproved of the use of a composite crew, Israel followed through on his assignment and began work on the preglazed windows using mem- 223 NLRB No. 107 IRON WORKERS LOCAL 290 791 bers of the Glaziers' Local No. 923. The Iron Workers resorted to the Impartial Juris- dictional Disputes Board (hereinafter called the IJDB). Based on the Iron Workers characterization of the June 23 letter as a work assignment, and the Employer's alleged change in such assignment, on December 8, 1975, the IJDB directed the Employer to utilize ironworkers on the job. The Employer did not comply with this directive. On December 10, while the preglazed installation work was being done, Veal told Israel that he would put 50 pickets around the project site because of Israel's refusal to use ironworkers on the job. On December 23, at a meeting attended by Israel, Clark, Veal, and Thomas Klenke, vice president of construction operations for the general contractor, Clark's request that ironworkers be included in the Employer's work force was again denied by Israel. Clark then stated that, when he was through with the Employer on this site and the Knowlton job (a proj- ect not yet begun), no general contractor in the area would touch Israel with a 10-foot pole. C. Contention of the Parties The Iron Workers contends that the June 23 letter constituted an assignment of the work in dispute to its members. It further argues that the Employer is bound by the IJDB's determination that the work belongs at least in part to the iron workers. Finally, the Iron Workers claims that, on the merits, it is enti- tled to the work of installing the preglazed windows. The Employer and the Glaziers contend that there is reasonable cause to believe that the Iron Workers violated Section 8(b)(4)(D) of the Act, and that there is no voluntary method of adjustment to which all of the parties have agreed to be bound. In addition, they dispute the Iron Workers interpretation that the June 23 letter constituted an assignment of the work involved. They also take the position that the record favors an award of the disputed work to the Glaziers. D. Applicability of the Statute Before the Board may proceed to a determination of 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 there is no agreed-upon method for the volun- tary settlement of the dispute. As set out above, Iron Workers Assistant Business Agent Veal stated that he would put 50 pickets around the construction site in view of Israel's failure to use ironworkers as part of a composite crew. Iron Workers Business Agent Clark warned that no gener- al contractor would touch Israel with a 10-foot pole after Clark was through with him because of Israel's refusal to use ironworkers on the job. We find rea- sonable cause exists to believe that the Iron Workers violated Section 8(b)(4)(D) of the Act. With respect to the existence of a voluntary meth- od for the adjustment of the dispute, we find that such an agreed-upon method does not exist, inas- much as all the parties to the instant dispute are not required to submit their jurisdictional disputes to the IJDB. Both the Glaziers and the Iron Workers are bound to submit jurisdictional disputes to the IJDB, as both they and their internationals are members of the Building and Construction Trades Department of the AFL-CIO and are signatories to the agreement creating the IJDB. The Employer, however, has nev- er obligated itself to submit conflicts to the IJDB and it in no way participated in the proceeding before the IJDB instituted by the Iron Workers. It is therefore not bound by the IJDB award. Accordingly, the mat- ter is properly before the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work af- ter giving due consideration to various relevant fac- tors. 1. Certification and collective-bargaining agreements Neither of the labor organizations herein involved has been certified as the collective-bargaining repre- sentative for a unit of the Employer's employees and the Employer has no collective-bargaining agreement with the Iron Workers. But, the Employer does have a current collective-bargaining agreement with the Glaziers covering the work of its members. 2. Employer's assignment and practice In the 26 years of the Employer's operation, it has consistently and exclusively used glaziers except once in 1964, when it used a composite crew consisting of ironworkers and glaziers on the Senior Citizens Housing Project, Dayton, Ohio. On the basis of its experience, the Employer prefers that the glaziers alone perform the work in question. 3. Area and industry practice The Iron Workers presented testimony that con- tractors installing preglazed aluminum window units in the area utilize ironworkers. The witness who testi- fied to this could refer to only two jobs at which 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ironworkers had engaged in this task. It was admit- ted that, on one of these projects, the erection of pre- glazed windows had been a minute part of the job. The Employer's president, Israel, testified that his company has done 82 percent of all the preglazed window installation jobs in the area in the past 3 years, amounting to approximately 50-60 jobs. (Pre- glazed window units have only come into use in the past 3 or 4 years.) 4. Relative skills, safety, efficiency, economy, and continuity of operations The Employer's experience with the work of iron- workers and glaziers has shown the glaziers to be more skillful and expeditious in the installation of window units. The ironworkers are also not as flexi- ble as the glaziers in the performance of work that can be assigned to them by the Employer, as, for example, when metal is unavailable. Conclusion Upon the record as a whole, and the foregoing consideration of all relevant factors involved, we conclude that the Employer's employees represented by the Glaziers are entitled to perform the work in dispute. Accordingly, we shall determine the dispute before us by awarding the work in dispute at the Stouffer's Dayton Plaza Hotel, Dayton, Ohio, to the Employer's employees represented by the Glaziers, but not to that union or its members. In conse- quence, we also find that the Iron Workers is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work to employees represented by it. In light of all the foregoing, and the testimony of Clark and Veal at the hearing that they will continue to demand the work of installing preglazed window units on the Employer's future jobs, there is a strong probability that similar disputes involving the Iron Workers may occur in the future. We therefore hold that the determination in this case applies not only to the job in which the dispute arose, but also to all similar work done by the Employer in Montgomery County, Ohio, and adjacent county areas, within the territorial jurisdiction of the Iron Workers. 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 pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees of Israel Builders Supplies, Inc., who are currently represented by Glaziers' Local Union No . 923, International Brotherhood of Paint- ers and Allied Trades, AFL-CIO, are entitled to per- form the work of installing preglazed aluminum win- dow units in Montgomery County, Ohio, and adjacent county areas , within the territorial jurisdic- tion of Iron Workers Local Union #290 , Interna- tional Association of Bridge, Structural and Orna- mental Iron Workers , AFL-CIO. 2. Iron Workers Local Union #290 , International Association of Bridge , Structural and Ornamental Iron Workers , AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Israel Builders Supplies , Inc., to assign the work of installing preglazed aluminum window units in Montgomery County, Ohio , and adjacent county areas, within the territorial jurisdiction of Iron Work- ers Local Union #290, International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO , to employees who are represented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute , Iron Workers Local Union #290 , International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO, shall notify the Regional Director for Region 9, in writing , whether or not it will refrain from forcing or requiring the Employer , by means proscribed by Section 8 (b)(4)(D) of the Act, to assign the work of installing preglazed aluminum window units on Montgomery County, Ohio, and adjacent county ar- eas, within the territorial jurisdiction of Iron Work- ers' Local Union #290 , International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, to employees represented by the Iron Workers rather than to employees represented by the Glaziers.