Drywall Tapers, Local 2006

626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Drywall Tapers and Finishers, Local 2006, a/w In- ternational Brotherhood of Painters and Allied Trades of the United States and Canada, AFL- CIO; International Brotherhood of Painters and Allied Trades of the United States and Canada, AFL-CIO and Painting and Decorating COn- tractors of America, Pittsburgh Chapter and A. J. Vater & Co., Inc,; and T. D. Patrinos Paint- ing and Contracting, Inc. and International Brotherhood of Painters and Allied Trades of the United States and Canada, Local Union 6, AFL-CIO. Case 6-CD-676 March 24, 1980 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 by Painting and Decorating Contrac- tors of America, Pittsburgh Chapter, herein called the Association, alleging that Drywall Tapers and Finishers, Local 2006, a/w International Brother- hood of Painters and Allied Trades of the United States and Canada, AFL-CIO, herein called Local 2006, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with the object of forcing or requiring A. J. Vater & Co., Inc., herein called Employer Vater, and T. D. Pa- trinos Painting and Contracting, Inc., herein called Employer Patrinos, and other persons engaged in commerce or in an industry affecting commerce to assign certain work to employees represented by it rather than to employees represented by Interna- tional Brotherhood of Painters and Allied Trades of the United States and Canada, Local Union 6, AFL-CIO, herein called Local 6. The charge was amended on October 15, 1979, to include the International Brotherhood of Paint- ers and Allied Trades of the United States and Canada, AFL-CIO, herein called the International. Pursuant to notice, a hearing was held before Hearing Officer Donald Burns on October 31 through November 2, 1979. 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 Association, Local 2006, and the International filed briefs. 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 Hearing Officer's rulings made at the hearing and finds that they are 248 NLRB No. 93 free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYERS The parties stipulated and we find that the Asso- ciation is an organization composed of employers engaged in the construction business, and it exists for the purpose, inter alia, of representing its em- ployer-members in negotiating and administering collective-bargaining agreements with various labor organizations. At all times material herein, Employers Vater and Patrinos have been and are now employer- members of the Association. The parties stipulated, and we find, that Employer Vater, a Pennsylvania corporation with its principal place of business in Pittsburgh, is engaged in the construction business as a painting contractor. During the past year, Em- ployer Vater purchased goods and materials from outside the Commonwealth of Pennsylvania having a value of $50,000. The parties also stipulated, and we find, that Employer Vater is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. The parties stipulated, and we find, that Employ- er Patrinos, a Pennsylvania corporation with its principal place of business in Pittsburgh, is engaged in the construction business as a painting contrac- tor. During the past year, Employer Patrinos pur- chased goods and materials from outside the Com- monwealth having a value of $50,000. The parties also stipulated, and we find, that Employer Pa- trinos is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effec- tuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 2006 and Local 6 are labor organizations within the meaning of Section 2(5) of the Act. 111. THE DISPUTE A. Background and Facts of the Dispute Employer Vater is a painting subcontractor for the construction of the Century III Shopping Center in West Mifflin, Pennsylvania. In July 1979, it assigned the work of drywall taping to its em- ployees who are represented by Local 6. Since July 13, 1979, Local 2006 has demanded that Vater assign the drywall taping work at Century III to employees who are represented by that Local. DRYWALL TAPERS, LOCAL 2006 627 Employer Patrinos was the painting subcontrac- tor at the Station Square Shopping Center in Pitts- burgh, Pennsylvania, until it completed this work about the first part of October 1979. On September 27, 1979, Patrinos assigned the work of drywall taping to its employees who are represented by Local 6. From September 27, 1979, until the work was completed, Local 2006 demanded that Em- ployer Patrinos assign the disputed work to em- ployees who are represented by that Local. The Association is an organization composed of employers engaged in the construction industry as painting contractors and which exists for the pur- pose, inter alia, of representing its employer-mem- bers in negotiating and administering the collective- bargaining agreements with various labor organiza- tions, including Local 6. At least since 1956, the Association has main- tained successive collective-bargaining agreements with Local 6 on behalf of its members, the most recent of which expired May 31, 1979. Each of the agreements contained a clause specifying that drywall taping work was to be performed by mem- bers of Local 6. In June 1976, the International granted a charter to Local 2006 giving it exclusive work jurisdiction over drywall taping work. The purpose of granting exclusive jurisdiction of this work to members of Local 2006 was to put to rest the complaints and allegations of members of Local 6 who performed drywall taping work exclusively that they were being discriminated against and not properly represented by Local 6. Approximately 67 members of Local 6 joined the newly chartered Local 2006; all members of Local 2006 work exclu- sively as drywall finishers. The current dispute arose out of negotiations for a new contract between the Association and Local 6.' By letter dated April 14, 1977, the International advised both Locals that they were not permitted to execute new collective-bargaining agreements without International approval of the jurisdiction clauses in regard to the work in dispute between the two Locals. I The same issue had been raised following negotiations for the 1976 contract. There, an 8(bX3) charge was filed by the Association alleging that Local 6 had refused to execute a collective-bargaining agreement, and Local 6 had denied that any agreement had been reached. The Ad- ministrative Law Judge found that Local 6 was in violation of Sec. 8(b)(3) as the Association had made its position clear that there would be no contract without the drywall provision and the union negotiating team had abandoned its position on the drywall issue and had accepted the contract. Further, the Administrative Law Judge found that the negotiat- ing team had authority to enter into agreement on behalf of Local 6 without the approval of the International. No exceptions were filed to this Decision See International Brotherhood of Painters and Allied Trades. Local Union 6. AFL-CIO Painting and Decorating Contractors of America. Pittsburgh Chapter), Case 6-CB-3759, May 2, 1977 (not reported in vol- umes of Board Decisions) At the commencement of and throughout these negotiations, representatives of the International and Local 6 informed the Association representa- tives that any clause with respect to the disputed work would have to be approved by the Interna- tional. The Association, however, remained ada- mant that the new agreement with Local 6 retain the drywall clause. On June 19, 1979, the Associ- ation presented Local 6 with a "total package" of proposals, including a modification of the drywall clause.2 The membership considered the proposals and was told by the International representative that they could not vote on the drywall jurisdiction and one other proposal; on June 22, 1979, the membership ratified the collective-bargaining agreement. On July 12, 1979, representatives of the Associ- ation met in Washington, D.C., with officers of the International and representatives of Locals 6 and 2006 to present their view of the jurisdictional dis- pute. On August 3, 1979, the International issued a decision dividing the work, granting Local 2006 exclusive jurisdiction for all new construction jobs and projects, and all alterations, remodeling, and renovation jobs that exceed 750 square feet of drywall surface, and granting Local 6 exclusive ju- risdiction over the remaining drywall work. In ad- dition, jurisdiction over the work of texturing of all surfaces was transferred from Local 2006 to Local 6. B. The Work in Dispute The work in dispute involves the assignment of drywall taping performed by members of the Asso- ciation within Allegheny County, Pennsylvania. C. The Contentions of the Parties The Association contends that the work in dis- pute should continue to be assigned to employees represented by Local 6 with whom it has had a collective-bargaining relationship for approximately 22 years and that employees represented by it have been assigned this work at previous projects. The Association further contends that the employees represented by Local 6 are entitled to perform the work in dispute on the basis of an alleged current collective-bargaining agreement as well as on the basis of economy and efficiency, skill, past practice, and current work assignment. Local 6 did not file a brief, but stated at the hearing that employees represented by it should continue to perform the work in dispute for Asso- ciation members and for other employers with 2 More specifically. the proposal specified that all drywall work that encompassed 20 percent or less of the cost of the total job fall within the work jurisdiction of Local 6. DRYWALL TAPERS, LOCAL 2006 627 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whom it has a collective-bargaining relationship. However, Local 6 has adhered to directives from its International and has not executed the recently negotiated collective-bargaining agreement, be- cause the agreement contains a clause on drywall jurisdiction. Local 2006 and the International take the posi- tion that the award should be made to employees represented by Local 2006 because the issue is an internal dispute and the International has assigned the work to Local 2006 in an effort to settle the longstanding dispute within Local 6 in which cer- tain members whose cards were stamped "tapers" had complained to the International that Local 6 was discriminating against them in referrals. Local 2006 and the International further contend that the apprenticeship program of Local 2006 provides the special skills which the work requires. In addition, Local 2006 contends that area practice and efficien- cy favor the award to employees it represents. D. Applicability of the Statute Before the Board may proceed with a 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) has been violated and that the parties have not agreed upon a method which is binding on all of the parties for the voluntary adjustment of the dispute. The par- ties stipulated at the hearing that: (1) Since on or about July 13, 1979, Local 2006 has demanded that Employer Vater assign the work in dispute at Century III to employees it rep- resents. (2) Since September 27, 1979, Local 2006 has de- manded that Employer Patrinos assign the work in dispute at Station Square to employees it repre- sents; this work was completed on or about the first part of October 1979. (3) Since on or about July 13, 1979, Local 2006 has threatened employees at Employers Vater and Patrinos who are performing the work in dispute with disciplinary charges and monetary fines if those employees continue to perform such work. (4) Since on or about August 1979, Local 2006 has threatened other Association employer-mem- bers with picketing. (5) Since on or about September 26, 1979, Local 2006 fined a painter-member of Local 6 employed by Employer Vater for performing the work in dis- pute at Century III. From the record as a whole, we find reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. To constitute an agreed-upon method for settlement, a procedure must bind all the parties to the dispute, including the employers.3 It is clear that there is no agreed-upon method for the resolution of this dispute. While both Locals appear to be bound by the decision of their Inter- national, the Employers are not bound to resolve work disputes through this procedure. According- ly, we find the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors. 4 The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case.5 The following factors are relevant in making the determination of the dispute before us: 1. Certification and collective-bargaining agreeements Neither of the Unions involved herein has been certified by the Board as the collective-bargaining representative for employees of the Association's members. Consequently, Board certifications are not a factor in resolving this dispute. The Associ- ation asserts that it has a collective-bargaining agreement with Local 6 which permits members of Local 6 to perform drywall taping work. However, this agreement has not been executed by Local 6 and the Association has been on notice since the commencement of negotiations for this collective- bargaining agreement that the general executive board of the International had to approve any con- tract otherwise agreed to by Local 6 and the Asso- ciation, and that Local 6 lacked authority to nego- tiate a collective-bargaining agreement containing a drywall provision. Accordingly, we are unable to rely on contract considerations in awarding the work in dispute. 2. Employers' past and present practice Francis J. Vater, the Association's secretary, tes- tified that it has been the practice of its employer- members since at least 1956 to assign the disputed work to their employees who are represented by Local 6 and that its members are currently assign- ing the work to employees who are represented by Local 6. On the other hand, William Happ, busi- 3 Local Union 825, International Union of Operating Engineers, AF--CIO (Schwerman Co. of Pa., Inc), 139 NLRB 1426, 1429 (1962). 4 NVL.R.B. v. Radio & Television Broadcast Engineers Union. Local 1212, International Brorherhood of Electrical Workers, AFL-CIO Colum- bia Broadcasting Sysvtem, 364 U S. 573 (1961). International Association of Machinists. Lodge No. 1743, AFL-CIO (J. A Jones Construction Company), 135 N.RB 1402 (1962). ---- DRYWALL TAPERS, LOCAL 006 629 ness manager of Local 2006, testified that 46 mem- bers of Local 6 transferred to Local 2006 at the time the drywall work jurisdiction was transferred to Local 2006. Accordingly, we find that the trans- fer of members to Local 2006 seriously undercuts, in our view, the Association's claims based on past practice. However, current practice favors award- ing the disputed work to the Employers' employees represented by Local 6. 3. Area and industry practice The evidence concerning area and industry prac- tice is in conflict. There was testimony from James Yoezle, business manager of Local 6, that many nonmember contractors also use Local 6 members to perform the disputed work. There was testimo- ny of James Hofrichter, president of M.I.C.A., 6 an association whose members are principally engaged in drywall finishing, that members who are paint- ing contractors use Local 2006 members to per- form the disputed work and use Local 6 members to perform the painting work. In regard to industry practice outside Allegheny County, there was testi- mony from William Happ, that the work jurisdic- tions of the two trades are divided into separate drywall and painting locals in Philadelphia and New Jersey, while the painters' locals in the rural areas of Pennsylvania have jurisdiction over both trades. We find, therefore, that the factors of area and industry practice are inconclusive in making a determination of which group of employees will be awarded the disputed work. 4. Skills and training Each Local conducts an apprenticeship program modeled on the National Apprenticeship and Training Standards developed for each trade by the U.S. Department of Labor. Michael J. Mooney, a painting contractor and chairman of Local 6's ap- prenticeship program, testified that from 30-40 hours are devoted to drywall finishing during the 3-year program. He acknowledged that Local 2006's 2-year program is not excessive in order to develop the expertise required for a taper. James Banda, a member of M.I.C.A., testified that it would be difficult to find a Local 6 member who could perform the disputed work as proficiently and effectively as a Local 2006 member. In view of the superior training of Local 2006 members, we conclude that the factors of skills and training favor employees represented by Local 2006.7 6 Master Interior Contractors Association 7 Local 481. Internationol Brotherhood of Electrical 'brkers. AFL-CIO (Huber. Ilunt & NVchols Incorporated). 216 NLRH 431 (1975) 5. Economy and efficiency There was testimony from John LaValley, a painting contractor and chairman of the Associ- ation's negotiating committee, that it is more effi- cient for Local 6 members to perform both paint- ing and taping work since an employee can alter- nate the tasks. On the other hand, there was testi- mony from James Banda that, in areas beyond Local 6's jurisdiction, he hires members of painting locals to perform the painting work and Local 2006 members to perform the taping work and that this division of work between the two locals is both efficient and economical. There was also testi- mony that Local 2006 members can perform work of higher quality and in less time as they have a greater expertise in the work and in the use of tools. On the basis of the above, we find that the factors of economy and efficiency favor neither group and, accordingly, are neutral factors in awarding the work in dispute. 6. The Association's and employer-members' preference In view of the facts of this case, we are unwill- ing to give substantial weight to the factors relied upon by the Association and its employer-members' employees who are represented by Local 6. More- over, we conclude that, in the circumstances of this case, the current preference of the Association and its employer-members is contrary to the weight of other relevant factors. Accordingly, we find that even though the present preference of the Associ- ation and its employer-members is a factor which favors awarding the disputed work to employees represented by Local 6, it is not entitled to control- ling weight.8 7. The Locals' charters and award by the International Local 2006 was chartered as a "Drywall Tapers" local in order to resolve complaints of discrimina- tion from the Local 6 members who worked exclu- sively as "tapers." The members of Local 6 who worked exclusively as drywall tapers were trans- ferred to Local 2006, as the International had de- termined that a division of the trade by crafts was the most effective means of resolving the com- plaints. We find that the chartering of Local 2006 with exclusive drywall jurisdiction under these cir- cumstances favors awarding the work in dispute to employees represented by Local 2006. On August 3, 1979, the International awarded the work in dispute to employees represented by 8 Local Union No. 68. Wood. Wire and Metal Lathers International Union, AFL-CIO (Acoustics & Specialiries. Inc.), 142 NLRB 1073 (1963). DRYWALL TAPERS, LOCAL 2006 629 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 2006, but inasmuch as the award was not binding on all parties, members of the Association have continued to assign the work to employees represented by Local 6, notwithstanding the award by the International. Nevertheless, because the In- ternational specifically awarded the work to em- ployees represented by Local 2006, and in view of the notice which the International gave to the As- sociation prior to and during bargaining sessions for the latest negotiated and unexecuted contract between the Association and Local 6, we find that this factor favors awarding the work in dispute to employees represented by Local 2006. Conclusion Upon the record as a whole and after full consid- eration of all the relevant factors, especially the factors of the award of the International and the superior skills and training of Local 2006 members, we conclude that employees represented by Local 2006 are entitled to the work in dispute, and we shall determine the dispute in their favor. We do not, however, award the work to Local 2006 or to its members. Scope of Award The Association, in its brief, requests that the Board determine the dispute by awarding the dis- puted work to employees represented by Local 6 and further requests that the Board's determination be coextensive with the jurisdictional area involved in past collective-bargaining agreements with Local 6, namely Allegheny County, Pennsylvania. In the past, it has been the Board's policy to make an award broad enough to encompass the geographic area in which an employer does busi- ness, wherever jurisdiction of the competing unions coincide, in circumstances where there is an indica- tion that the dispute is likely to recur.9 As mem- bers of the Association will continue to seek new contracts that include performance of the work in dispute, as Local 6 did not effectively disclaim that work and there is no assurance that disputes similar to the one herein will not recur, and in view of the history of such claims by Local 6, we find that the dispute is likely to recur between the parties. Therefore, our determination in this case applies to all similar disputes occurring within Allegheny County, Pennsylvania, where the Association and its members operate and wherever the jurisdictions of Local 6 and Local 2006 coincide. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing and the entire record in this proceed- ing, the National Labor Relations Board makes the following Determination of Dispute: Employees employed by Association members who are represented by Drywall Tapers and Fin- ishers Local 2006, a/w International Brotherhood of Painters and Allied Trades of the United States and Canada, AFL-CIO, are entitled to perform all work involving drywall taping for Association members at the Century III Shopping Center and on any other projects of Association members within Allegheny County, Pennsylvania. 9 International Brotherhood of Electrical Workers. Local No. 26. AFL- C10 (Taylor Woodrow Brtman Construction Corporation). 195 NLRB 261, 264 (1972).