Iron Workers Local 625 (Fuller-'Brien Divison)

National Labor Relations Board - Board Decisions

Dec 2, 1977

233 N.L.R.B. 898 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge, Structural and
Ornamental Iron Workers, Local 625, AFL-CIO
and Fuller-O'Brien Div., The O'Brien Corp. and
Glaziers and Glass Workers Union, Local 1889,
AFL-CIO. Case 37-CD-37
December 2, 1977
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Fuller-O'Brien Div., The
O'Brien Corp., herein called the Employer, alleging
that International Association of Bridge, Structural
and Ornamental Ironworkers, Local 625, AFL-CIO,
herein called Iron Workers, had violated Section
8(b)(4)(D) of the Act by engaging in certain
proscribed activity with an object of forcing or
requiring the Employer to assign certain work to
employees represented by Iron Workers, rather than
to employees represented by Glaziers and Glass
Workers Union, Local 1889, AFL-CIO, herein called
Glaziers.
Pursuant to notice, a hearing was duly held in
Honolulu, Hawaii, before Hearing Officer Edward J.
Parnell, on May 24, 1977. All parties appeared and
were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. Thereafter, all parties
filed briefs which have been duly considered by the
Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the basis of the entire record in this case, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the
Employer, an Indiana corporation, is engaged in the
business of retailing and wholesaling glass and
glazing throughout various States, including Hawaii.
During the 12-month period ending September 1976,
the Employer's gross volume exceeded $500,000 and
during the same period it purchased and received
The two ironworkers filed unfair labor practice charges alleging that
their discharges violated the Act. The Regional Director for Region 20
233 NLRB No. 124
materials valued in excess of $50,000 from points
located outside the State of Hawaii. Accordingly, we
find that the Employer is engaged in a business
affecting commerce within the meaning of Section
2(6) and (7) of the Act and that it will effectuate the
policies of the Act to assert jurisdiction in this
proceeding.
II1. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Iron
Workers and Glaziers are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer had a contract to perform the work
in dispute on a high rise condominium project known
as Inn of the Park, located in Honolulu, Hawaii. The
work the Employer was to perform involved the
installation of sliding window and door frames,
including all necessary hardware, and the installation
of "storefront" window frames above the ground
floor.
In March 1977, the Employer hired two ironwork-
ers for the Inn on the Park project. At the end of I
week, the necessary materials had been prepared but
the project was not ready for the disputed installation
work and the two ironworkers were laid off. The
Employer had hired the two ironworkers under the
assumption that a 1961 agreement between the
Glaziers and Iron Workers Internationals, giving the
work in question to Iron Workers, was still in effect.
Thereafter, however, Glaziers Business Representa-
tive Jose Encarnacion contacted the Employer with
whom Glaziers had a collective-bargaining agree-
ment and informed it that the 1961 agreement was no
longer in force. The Employer acquiesced in Glazi-
ers' request not to rehire the ironworkers and so
informed Iron Workers Business Representative
Martin. The work in dispute was then assigned to
employees represented by Glaziers. Shortly thereaf-
ter, about April 21, 1977, Martin notified the
Employer's glass contract manager, Jose Tablada,
that in light of the Employer's decision not to recall
the two ironworkers there would be a picket line
around the job. Thereafter, on April 25, 1976, the
Employer filed the instant 8(b)(4)(D) unfair labor
practice charge.1
With respect to the union agreement mentioned
above, the record shows that, in 1968, Glaziers and
Iron Workers entered into a local agreement reflect-
ing a national agreement, which had been in effect
thereafter refused to issue a complaint and the charges were withdrawn. Iron
Workers never picketed at the jobsite.
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IRON WORKERS, LOCAL 625
since 1961 but which previously had no impact in
Hawaii, whereby iron workers employees were to
perform the type of work currently in dispute. On
February 13, 1974, the president of the International
Brotherhood of Painters and Allied Trades (Glaziers
International) abrogated the 1961 agreement. Not-
withstanding this, on August 19, 1974, the business
representatives of the two locals involved here
entered into an agreement continuing in effect the
1968 agreement. However, the current business
representative of Glaziers, Jose Encarnacion, later
repudiated the August 19 accord and Glaziers
contends that the local business representative in
1974 was without authority to enter into a local
agreement governing work jurisdiction. Iron Workers
argues that the August 19, 1974, agreement is still
effective and governs the instant dispute. 2
B. Work in Dispute
The work in dispute consists of:
All exterior and interior sliding door frames or
surrounds and/or sliding window frames includ-
ing any hardware; and in addition, work involv-
ing "store front" window frames above the
ground floor at the "Inn on the Park" construc-
tion site, located in Honolulu, Hawaii.
C. Contentions of the Parties
The Employer contends that the work in dispute
should be assigned to employees represented by
Glaziers for the following reasons: (I) it has a
contract with Glaziers that covers the work in
dispute; (2) it has no contract with Iron Workers; (3)
the 1968 agreement between the Internationals of the
two local unions involved herein, governing the
disputed work, was abrogated in 1974; (4) the current
area practice is to assign the work in dispute to
employees represented by Glaziers; and (5) it is more
economical and efficient to assign the disputed work
to the Employer's Glaziers-represented employees.
Glaziers contends that its members should be
awarded the work in dispute in light of the following
factors: (1) its collective-bargaining agreement with
the Employer; (2) the current area practice; (3)
Glaziers members' superior work skills; and (4) the
increased economy and efficiency of the Employer's
operation.
Iron Workers contends that company and industry
practice from at least 1968 to 1974 was to assign iron
2 We note that in September 1975 the president of Iron Workers
International informed Iron Workers Representative Martin that the
agreement between the two Internationals had been abrogated by Glaziers
International but that Iron Workers should continue to claim the work.
N.L.R.B. v. Radio & Television Broadcast Engineers Union, Local 1212,
workers the work in dispute. Iron Workers argues
that assignment of the work to its members would be
in accordance with the Board's policy of deferring to
voluntary resolution of jurisdictional disputes. This
last contention is in reference to the August 1974
agreement between Iron Workers and Glaziers
representatives by which it was agreed to continue
the 1968 agreement in effect.
D. Applicability of the Statute
Before the Board may proceed with the determina-
tion of the 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) of the Act has been
violated and that there is no agreed-upon method for
the voluntary adjustment of the dispute.
As it appears that Iron Workers threatened to
picket the Employer to force the reassignment of
work from employees represented by Glaziers to
employees represented by Iron Workers, we find that
there is reasonable cause to believe there has been a
violation of Section 8(b)(4)D) of the Act. Also, it
appears from the record that there is no agreed-upon
method for the settlement of this dispute. According-
ly, we conclude that the 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 the disputed work after
giving due consideration to all relevant factors
involved.3 The following factors are relevant in
making a determination of the dispute before us:
I. Certifications and collective-bargaining
agreements
There is no Board certification covering the work
in dispute.
The Employer is a member of the Glass/Metal
Association of Hawaii which has had a contract with
Glaziers at all times relevant herein. Exemination of
section 2, "Coverage," of the contract indicates that
Glaziers work jurisdiction encompasses the work in
dispute. In contrast, the Employer has not entered
into any contract with Iron Workers.
In view of the above, we conclude that the factor of
relevant collective-bargaining agreements favors an
award of the work in dispute to employees represent-
ed by Glaziers. 4
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573 (1961).
4 Iron Workers contends that recent decisions of the Impartial Junsdic-
tional Disputes Board for the Construction Industry have dealt with iron
workers-glazier jurisdictional disputes involving work comparable to that
(Continued)
899
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Efficiency and economy
The Employer maintains a full-time work force of
approximately 18 to 20 employees who are members
of Glaziers. Each employee is capable of performing
all phases of glazing and glass installation work and,
as a result of this versatility, if business delays require
the suspension of certain work, the Employer's
permanent staff can be transferred to other projects,
which involve different glazing work, without a loss
of worktime. Because of their limited glazing skills,
ironworkers, in similiar situations, would either have
to be paid for idle time or be laid off. In addition, the
Employer generally would be unfamiliar with the
work ability of any individual ironworker referred to
it by the hiring hall. In contrast, from the tenure of
its employees, who are glaziers, the Employer has a
thorough knowledge of its work force which allows it
to plan its work more efficiently and to bid more
accurately in competition for contracts.
Consequently, we find that the factors of economy
and efficiency favor an award to employees repre-
sented by Glaziers.
3. Employer preference
The Employer has assigned the work in dispute to
employees represented by Glaziers. Representatives
of the Employer testified that the skills possessed by
the glaziers enable them to perform the disputed
work and all glazing functions beyond those in
dispute and therefore render them more valuable
employees than the ironworkers.
In view of the above, we find that the factor of
employer preference favors an award of the disputed
work to employees who are represented by Glaziers.
4. Area practice
The record indicates that until 1968 it was area and
industry practice to use members of Glaziers to
perform the work in dispute. The record also
indicates that, from 1968 to 1974, Iron Workers-
represented employees were assigned the work in
dispute pursuant to the 1961 agreement that became
effective in Hawaii in 1968. This agreement was
abrogated by the Internationals in February 1974. As
previously noted, in August 1974, Glaziers and Iron
Workers local representatives agreed to continue the
1968 pact in effect despite its abrogation. By letter
dated September 15, 1975, however, Iron Workers
Business Representative Martin was notified by his
involved in the current proceeding and therefore should have a bearing on
the Board's decision here. Examination of the record, however, reveals that,
while the IJDB's decisions involve work of the same general nature as that
in dispute herein, the work is sufficiently dissimiliar so as to render those
determinations inapplicable to the instant matter. Furthermore, the
Employer here has not agreed to be bound by IJDB procedures and did not
participate in the proceedings which resulted in these decisions.
International's president that the 1961 agreement
had, in fact, been abrogated. Glaziers asserts that the
August 1974 letter between the two local business
agents was ineffective since glazier locals are not
permitted to supersede the International on ques-
tions concerning work jurisdiction. The record
reveals that the current area practice since the period
following the abrogation by the Internationals is to
assign the disputed work to members of Glaziers.
Further, the uncontroverted testimony of Encarna-
cion is that on at least three occasions since he
became Glaziers business representative in Novem-
ber 1976 he has had confrontations with Iron
Workers Representative Martin concerning work
similar to the work in dispute, and, on each occasion,
glaziers were allowed to perform the work.
We find that aside from the years 1968-74, which
were governed by the 1961 agreement, the area
practice has been to assign the work in dispute to
employees represented by Glaziers. Accordingly, we
find that the factor of current area practice favors an
assignment of the disputed work to employees
represented by Glaziers.5
5. Skills
Glaziers contends, in view of its ongoing training
program which requires 432 classroom hours and
8,000 on-the-job training hours coupled with the fact
that Glaziers members are kept informed of all new
techniques and materials in the glazing industry, that
Glaziers-represented employees possess greater skills
than ironworkers on the work in dispute. Iron
Workers contends that its members possess sufficient
skills to perform the disputed work and that they
have satisfactorily done so since 1968. The Employer
admits that in the period in which ironworkers
performed the work, they did so satisfactorily.
Therefore, we find the factor of job skills favors
neither Glaziers- nor Iron Workers-represented
employees.
Conclusion
Upon the entire record in this proceeding, and
after full consideration of all the relevant factors, in
particular Glaziers collective-bargaining agreement,
the economy and efficiency of the Employer's
operation, the Employer's preference, and the cur-
rent area practice, we conclude that employees of the
Employer who are represented by Glaziers are
entitled to perform the work in question. In making
5 While Iron Workers representatives testified that employees represent-
ed by Iron Workers are currently performing work comparable to the work
in dispute at several construction sites in Hawaii, the record indicates that
the vast majority of the employees engaged in the disputed work throughout
Hawaii are represented by Glaziers.
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IRON WORKERS, LOCAL 625
our present determination, however, we award the
work to employees who are represented by Glaziers,
but not to that Union or its members. Further, our
award is limited to the particular 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 entire record in this proceed-
ing, the National Labor Relations Board hereby
makes the following Determination of Dispute:
1. Employees of Fuller-O'Brien Div., The O'Brien
Corp., who are currently represented by Glaziers and
Glass Workers Union, Local 1889, AFL-CIO, are
entitled to perform the disputed work involving all
exterior and interior sliding door frames or surrounds
and/or sliding window frames including any hard-
ware; and, in addition, work involving "storefront"
window frames above the ground floor at the Inn on
the Park construction site, located in Honolulu,
Hawaii.
2. International Association of Bridge, Structural
and Ornamental Iron Workers, Local 625, AFL-
CIO, is not entitled, by means proscribed by Section
8(b)(4)(D), to force or require Fuller-O'Brien Div.,
The O'Brien Corp., to assign such work to individu-
als represented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Associ-
ation of Bridge, Structural and Ornamental Iron
Workers, Local 625, AFL-CIO, shall notify the
Regional Director for Region 20, in writing, whether
it will refrain from forcing Fuller-O'Brien Division,
The O'Brien Corp., by means proscribed by Section
8(b)(4)(D), to assign the work in dispute to employ-
ees represented by it rather than to employees
represented by Glaziers and Glass Workers Union,
Local 1889, AFL-CIO.
901