Glaziers Local 558 (DiCarlo Construction)

National Labor Relations Board - Board Decisions

Apr 30, 1996

321 N.L.R.B. 98 (N.L.R.B. 1996)

98
321 NLRB No. 20
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although the attorney for Glaziers Local 558 was served with a
notice of the hearing, no representative of that Union appeared at the
hearing.
2 All dates are in 1995, unless indicated otherwise.
3 Royal asserted that the glass had been intentionally damaged.
Royal presented evidence that the exposed edges of the glass had
been damaged and, in some instances, it had been necessary to drill
through the wooden packing crates to damage the glass.
4 On October 26, Duke sent a letter to Burrell disclosing that
Royal paid a total wage package in excess of $25.25 per hour to
its employees.
Glaziers, Architectural Metal and Glass Workers
Local No. 558 and DiCarlo Construction Com-
pany and Royal Remodeling and Ironworkers
Local Union No. 10, AFL–CIO. Case 17–CD–
347
April 30, 1996
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The charge in this Section 10(k) proceeding was
filed on November 13, 1995, by DiCarlo Construction
Company (DiCarlo) and Royal Remodeling (Royal),
alleging that the Respondent, Glaziers, Architectural
Metal and Glass Workers Local No. 558 violated Sec-
tion 8(b)(4)(D) of the National Labor Relations Act by
engaging in proscribed activity with an object of forc-
ing the Employer (Royal) to assign certain work to
employees it represents rather than to employees rep-
resented by Ironworkers Local Union No. 10, AFL-
CIO. A hearing was held on December 15, 1995, be-
fore Hearing Officer D. Michael McConnell.1
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.
I. JURISDICTION
DiCarlo is a State of Missouri partnership engaged
as a general contractor in the construction industry.
The Employer annually purchases and receives goods
and services valued in excess of $50,000 from sources
located outside the State of Missouri, and annually
sells and ships goods and services valued in excess of
$50,000 directly to customers located outside the State
of Missouri.
Royal is a sole proprietorship engaged as an installer
of skylights. The Employer annually purchases and re-
ceives goods and services valued in excess of $50,000
directly from sources located outside the State of Mis-
souri, and annually sells and ships goods and services
valued in excess of $50,000 directly to sources located
outside the State of Missouri.
The parties present at the hearing stipulated, and we
find, that the Employers are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and that Glaziers Local 558 and Ironworkers Local 10
are labor organizations within the meaning of Section
2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of the Dispute
DiCarlo is the general contractor at the Argosy Ca-
sino project located in Riverside, Missouri. Royal was
awarded a subcontract for the installation of the sky-
light at the Argosy Casino jobsite. Royal has a collec-
tive-bargaining agreement with the Ironworkers but not
with the Glaziers.
Royal initially assigned the work of installing the
large skylight at the Argosy Casino project to employ-
ees represented by the Ironworkers. Royal commenced
work on the project on about October 1, 1995,2 and
worked for a total of about 13 days. The first 7 days
were spent assembling the metal frame. After that task
was completed, Royal discovered that the glass panels,
worth more than $50,000, had been vandalized while
stored at the jobsite.3 New glass panels were ordered,
delaying the work for about 3 weeks.
DiCarlo, through rumor, learned that the Glaziers
were claiming the installation of the glass panels into
the skylight and were threatening to picket the project.
James Duke, DiCarlo’s project manager, contacted
Gene Burrell, Glaziers Business Agent, in an attempt
to reach a compromise to avoid a strike. Following
several discussions between Burrell and Duke, Burrell
rejected Duke’s compromise offer to employ a com-
posite crew to complete the installation of the skylight.
The Glaziers maintained its position that the Iron-
workers could not touch the glass. Although the issue
of wages was discussed, the Glaziers’ representative
never contacted Royal to inquire about its compensa-
tion package.4
When the new glass panels arrived at the jobsite,
members of the Glaziers began picketing. On October
31, and November 1, the pickets carried signs accusing
Royal of violating area wage standards, and passed out
handbills. One handbill entitled ‘‘Safe Glass is Only a
‘Stones [sic] Throw Away’ Glaziers Local 558,’’ went
on to state, ‘‘Don’t Cheat Yourself—Use Professional
Glaziers.’’ Also shown on the handbill is a picture of
a rat wearing an Ironworkers Local Union No. 10 T-
shirt and a hat. A similar handbill omitted the picture
of the Ironworkers hat, but contained the same mes-
sage. When an agent of the Ironworkers asked one of
the pickets what the problem was, he responded that
‘‘the Ironworkers were installing glass’’ and the instal-
lation of glass is Glaziers’ work. Glaziers who were
employed on other jobs on the project, as well as elec-
99GLAZIERS LOCAL 558 (DICARLO CONSTRUCTION CO.)
tricians, sheet metal workers, and painters, all honored
the picket line and left the jobsite. The picketing
ceased on November 1, when DiCarlo’s project man-
ager notified the Glaziers that Royal would be off the
project until November 4, due to the weather. The
Ironworkers eventually completed the installation of
the skylight by working on Saturdays.
B. Work in Dispute
The work in dispute involves the installation of sky-
lights at the Argosy Casino project in Riverside, Mis-
souri. The work consists of assembling an extruded
aluminum frame and bolting it together; installing
glass panels (which weigh about 250 pounds each); in-
stalling and securing the assembled skylight onto the
building; and sealing it with caulking.
C. The Contentions of the Parties
The Employer contends that the work in dispute has
always been assigned to employees represented by the
Ironworkers, with whom it has a current collective-bar-
gaining agreement. Royal asserts, and it is not dis-
puted, that it has no collective-bargaining agreement
with the Glaziers.
The initial part of the installation of the skylight
consists of assembling the aluminum frame, work that
the Glaziers Union does not claim. Royal argues that
it is more efficient to have the Ironworkers do the en-
tire job as that avoids bringing in a different craft to
perform a very minor segment of the work. The instal-
lation of the glass panels into the aluminum frame re-
quires no specialized skill since no glass cutting is in-
volved.
Ironworkers Local 10 agrees with the Employer’s
position. As noted above, no representative of Glaziers
Local 558 attended the hearing so its position, at least
for the record, is unknown.
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 be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have no agreed-on method for the voluntary
adjustment of the dispute.
During the conversations between Duke and Burrell,
prior to the commencement of the strike, Duke, re-
sponding to rumors, asked Burrell if there would be
picketing over the Ironworkers installing the skylight
glass. Burrell answered affirmatively. As a com-
promise, Duke proposed to Burrell that Royal could
employ a composite crew to complete the work.
Burrell rejected the compromise, stating that the Iron-
workers could not touch the glass. Subsequently, mem-
bers of the Glaziers Union picketed the project on Oc-
tober 31 and November 1, causing other crafts to
honor their picket line and leave the jobsite. The pick-
eting ceased on November 1, after Duke notified the
Glaziers that Royal would be off the project until No-
vember 4.
The parties present at the hearing stipulated, and we
find, that there is no voluntary method of resolving the
competing claims for the disputed work.
We find reasonable cause to believe that the Gla-
ziers violated Section 8(b)(4)(D), and that there exists
no agreed-upon 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.
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 the dispute.
1. Certification and collective-bargaining
agreements
There is no evidence that either the Ironworkers
Local Union No. 10 or the Glaziers Local Union No.
558 have ever been certified as the exclusive collec-
tive-bargaining representative of any of the Employers’
employees. Royal, however, has a current collective-
bargaining agreement with the Ironworkers covering
the work in dispute, but not with the Glaziers. Accord-
ingly, the agreement between Royal and the Iron-
workers favors an award of the disputed work to em-
ployees represented by the Ironworkers.
2. Employer preference
Royal stated its preference for having the work in
dispute awarded to employees represented by the Iron-
workers. Accordingly, this factor favors an award of
the disputed work to employees represented by the
Ironworkers.
3. Employer past practice
Royal stated that it has consistently assigned the dis-
puted work to employees represented by the Iron-
workers on similar projects in the past. Accordingly,
this factor favors an award of the disputed work to em-
ployees represented by the Ironworkers.
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. Area practice
Royal presented evidence that the area practice is to
assign the installation of skylights, including the glass
panels, to Ironworkers. Accordingly, we find that this
factor favors an award of the disputed work to employ-
ees represented by the Ironworkers.
5. Relative skill
The record shows that both groups of employees
possess the skills necessary to perform the work in dis-
pute. Accordingly, this factor does not favor an award
of the disputed work to either group of employees.
6. Economy and efficiency of operations
Royal contends that it is more economical and effi-
cient to assign the disputed work to employees rep-
resented by the Ironworkers. The current work assign-
ment avoids bringing in a different craft to perform
only a minor portion of the work in dispute. Accord-
ingly, we find that these factors favor an award of the
disputed work to the employees represented by the
Ironworkers.
CONCLUSION
After considering all the relevant factors, we con-
clude that the employees represented by the Iron-
workers are entitled to perform the work in dispute.
We reach this conclusion relying on the factors of
collective-bargaining agreements; employer preference;
employer past practice; area practice; and economy and
efficiency of operations.
In making this determination, we are awarding the
work to employees represented by the Ironworkers, not
to that Union or its members.
Scope of Award
The Employers have requested that the Board issue
a broad award covering the work in dispute on behalf
of the Ironworkers in view of the Glaziers’ repeated
picketing of projects where similar work is performed.
Before the Board will make such an award, it must be
shown that: (1) the work in dispute has been a continu-
ous source of controversy in the relevant geographic
area and is likely to recur; and (2) the offending union
has a proclivity to engage in further unlawful conduct
in order to obtain the work in dispute. See Laborers
(Paschen Contractors), 270 NLRB 327, 330 (1984);
Electrical Workers IBEW Local 104 (Standard Sign),
248 NLRB 1144, 1147–1148 (1980). There is no indi-
cation in this record that Glaziers Local No. 558 is
likely to engage in unlawful conduct in pursuit of work
similar to the work in dispute at future projects. Ac-
cordingly, the award is limited to the controversy at
the jobsite that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Royal Remodeling, represented by
Ironworkers Local Union No. 10, AFL–CIO, are enti-
tled to perform the work of installing the glass panels
in the skylights at the Argosy Casino project located
in Riverdale, Missouri.
2. Glaziers, Architectural Metal and Glass Workers
Local No. 558 is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force DiCarlo Con-
struction Company and Royal Remodeling to assign
the disputed work to employees represented by it.
3. Within 10 days from this date, Glaziers, Architec-
tural Metal and Glass Workers Local No. 558 shall no-
tify the Regional Director for Region 17 in writing
whether it will refrain from forcing the Employers, by
means proscribed by Section 8(b)(4)(D), to assign the
disputed work in a manner inconsistent with this deter-
mination.