Local 243, Brotherhood of Painters, Etc.

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All of our employees are free to become, remain, or to refrain from becoming or remaining members in good standing in Teamsters, Chauffeurs & Helpers Local Union No 79, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization REDWING CARRIERS, INC, Employer Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material Local 243, Brotherhood of Painters, Paperhangers and Deco- rators of America, AFFL-CIO and International Brotherhood of Painters, Paperhangers and Decorators of America, AFL- CIO and Richardson Paint Company , Inc. Case No 39-OD-37 November 24, 1959 DECISION AND DETERMINATION OF DISPUTE STATEMENT OF CASE This proceeding arises under Section 10 (k) of the Act, which pro- vides that "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 8(b), the Board is empowered and directed to hear and deter- mine the dispute out of which such unfair lalbor practice shall have arisen " On April 29, 1959, Richardson Paint Company, Inc, herein called the Company, filed charges alleging that Local 243, Brotherhood of Painters, Paperhangers and Decorators of America, AFL-CIO, herein called Local 243, and International Brotherhood of Painters, Paperhangers and Decorators of America, AFL-CIO, herein called International Painters, had engaged in and were engag- ing in certain unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act It was charged, in substance, that the Unions had induced and encouraged employees of Stone & Webster Engineer- ing Corporation to engage in a strike or concerted refusal to work, with the object of forcing or requiring Richardson Paint Company, Inc , to assign certain work to employees who were members of Local 243 rather than to employees who were members of International Brotherhood of Electrical Workers, AFL-CIO, herein called IBEW Thereafter, pursuant to Section 10(k) of the Act and Sections 102 79 and 102 80 of the Board's Rules and Regulations, the Regional Director investigated the charges and provided for an appropriate hearing upon due notice Hearings were held on June 25 and 26, 1959, at Beaumont, Texas, before Franklin R Sears, hearing officer 125 NLRB No 39 LOCAL 243, BROTHERHOOD OF PAINTERS, ETC. 337 All parties appeared at the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing officer made at the hearings are free from prejudicial. error and are hereby affirmed. Briefs were filed by the Company and the Respondents. Upon the entire record in this case, the Board makes the following : FINDINGS OF FACT 1. The Company is a Wisconsin corporation with its main seat at Baraiboo, Wisconsin. It furnishes services to 22 public utility com- panies in the central United States from the Great Lakes to the Gulf of Mexico. The Company's annual revenues from such services exceed $50,000. We find that the Company is engaged in commerce within the meaning of the Act. 2. Local 243, the International Painters, and the IBEW are labor organizations within the meaning of the Act. 3. The dispute : A. The facts The Company is engaged in the business of painting energized elec- trical equipment carrying, supporting, or adjacent to energized con- ductors of electricity. In addition, the Company paints for public utilities, buildings, and other nonenergized structures and equipment. The Company started its operations in 1936. Prior thereto, the paint- ing of energized equipment of the public utilities was performed by their employees who were members of the IBEW. For some time after 1936, the Company cleared its employees through the IBEW. Subsequently, the Company used members of locals of the Interna- tional Painters for painting of nonenergized equipment. In 1941, the Company entered into an arrangement with International Painters and the IBEW whereby the jurisdictional interests of both Unions were mutually recognized, and the International Painters established a special Local 173 in Baraboo, Wisconsin, the main seat of the Com- pany, to provide for representation of the Company's employees engaged in painting energized equipment. The electrical painters joined Local 173 and have been represented by that local under suc- cessive collective-bargaining agreements from 1941 until January 1958, while the nonelectrical painters, employed by the Company in various localities, were obtained from regular locals of the Interna- tional Painters. In 1958 the president of the International Painters declined to approve a contract between Local 173 and the Company because the wage rates for the electrical painters were below the rates paid by other employers. The Company since then has operated 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under an agreement with its electrical painters entered into without the auspices of any union. On March 31, 1959, the Company's president, Richardson, went to Washington, D.C., where he negotiated with an official of the IBEW a tentative agreement subject to the approval and signature of the IBEW's president. This tentative agreement recognized the jurisdic- tion of the IBEW over the electrical painters and provided for its implementation by local agreements with locals of the IBEW, setting wage rates and working conditions. On April 1, 1959, the Company sent to its employees application cards for the IBEW. A number of these cards were signed by employees of the Company. However, on the date of the hearing no employee had yet been accepted into membership by the IBEW. The international president of the IBEW, moreover, declined to sign the tentative agreement because of the instant dispute. In early April 1959, the Company started painting energized equip- ment of the Gulf States Utility Company at its Neches Power Station at Beaumont, Texas, a job which the Company had performed periodi- cally over the preceding years. For this work the Company employed its regular electrical painters who had been members of the special painters' Local 173, under Foreman Judd, also a member of Local 173. On April 13, the Company, through the services of Local 243, hired two local painters, members of Local 243, to point a turbine which was nonenergized equipment. Judd was also made foreman over these two local painters, Chambers and Yellott, and received the higher painter's rates for those portions of his working time spent supervising them. Chambers, on or about the time of his hire, was appointed steward on the job by Local 243, and was instructed to check the union cards of all painters, apparently because there had been some talk among the members of Local 243, including Business Agent Hatcher, that the electrical painters used the tools of the paint- ers' trade and that it was work within the jurisdiction of the Painters' Union. However, Chambers failed to follow these instructions. On Thursday, April 23, Business Agent Hatcher appeared at the project, approached Judd, showed him a Local Trades Council card, and asked him if he had one of these. When Judd replied in the negative, Hatcher asked Chambers whether he had checked the cards of the electrical painters. Chambers admitted that he had not checked any cards. Hatcher then stated that he was going to "flag," i.e., picket, the job on the following Monday. This incident was reported to the Company's Superintendent Haw- kins, who went immediately to see Hatcher. Hawkins explained to Hatcher that Judd had a card from Local 173 and that, moreover, the Company was under contract with the IBEW. Hatcher thereupon called Business Agent Wolfe of Local 470 of the IBEW and inquired LOCAL 243, BROTHERHOOD OF PAINTERS, ETC. 339 whether the IBEW had a contract with the Company. In the course of this conversation Hatcher said that the electrical painters were using painters' tools and equipment and that "it is his work and he wanted his job." 1 Wolfe contacted an IBEW representative in Fort Worth, Texas, and relayed to Hatcher the information that the IBEW was in the process of signing an agreement with the Company. Wolfe asked Hatcher to leave the Company alone and Hatcher agreed. Hatcher then told Hawkins that there would be no picket line on the following Monday. On Monday, April 27, Chambers and Yellott reported for work on the turbine. Contrary to previous procedure, they were ordered by Foreman Judd to hand-sand rather than power-sand the turbine. The temperature on the turbine was 110 to 120 degrees, and the men were furnished as their only protection an. asbestos blanket. At 11 o'clock Chambers and Yellott told Foreman Judd that they were leav- ing the job because the turbine was too hot. Judd reported this to Hawkins, who gave permission to continue the remaining work with power tools, as 90 percent of the work was already completed. Never- theless, Chambers and Yellott left the job to complain to Business Agent Hatcher at his office. Hatcher told them that they were wrong and ordered them to return to the job. When they arrived there, Judd had by then been instructed by Superintendent Hawkins to make out their checks, as he considered them to have quit the work voluntarily. On the same day, Hawkins went to Hatcher to ask for replacements for Chambers and Yellott. The two men were present in Hatcher's office and Hawkins gave them their checks. Hatcher refused to dispatch other painters and stated, according to Superin- tendent Hawkins 2 It would not do any good because there was going to be a picket line out there is the morning anyway. . . That picket line is going up and it didn't have anything to do with these men for that turbine job. Those guys are out there on the substation using our tools and equipment and it should be our work. Hatcher further told Hawkins that he had been advised that the Com- pany had no collective-bargaining agreement with the IBEW. On the same afternoon, Hatcher called the office of the international president's deputy, Echols, that he was going to "flag" the job. He also requested Echols to check with the international office of the IBEW whether the latter had a contract with the Company. On the following day, Tuesday, April 28,1959, Local 243 established a picket line at the Company's project. The picket sign read as fol- lows : "Painters Local Union No. 243 protests substandard wages 'Hatcher made a similar remark to IBEW Representative Branch Johnson on a later occasion. 2 This testimony was not denied by Hatcher who testified at the hearing. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and conditions by Richardson Paint Company." On the first day of the picketing employees of another contractor refused to cross the picket line. The picketing, however, was generally ignored and ceased entirely after a few weeks. On April 30, 1959, Painters' International President Raftery sent a telegram to Hatcher to the effect that he had been advised that the IBEW had no contract with the Company. The telegram further suggested "That you proceed to encourage this firm to recognize established wages, hours, and conditions of employment." During the week commencing April 27, 1959, the Painters sent International Representative Carroll to assist in settling the dispute. Hatcher con- tacted him and discussed the situation with him. Contentions of the Parties The Employer contends that Local 243, with the consent and en- couragement of the International Painters, engaged in a strike and picketing because of the conflicting claims of the Respondents and the IBEW to jurisdiction over the electrical painters. Local 243 and the International Painters contend that they are not claiming jurisdiction over the electrical painters, and that the picket- ing occurred as a protest against substandard wages and working conditions. The International Painters contends, moreover, that it did not participate in any manner in the instant controversy. 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 believe that Section 8 (b) (4) (D) has been violated by the Respondents. In order to conclude that reasonable cause exists, the Board must find some evidence in the record showing that (a) a strike or a concerted refusal, or an inducement or encouragement of employees to engage in a strike or concerted refusal to perform services for the Employer occurred; and (b) any such action was for purposes unlawful within the proscription of Section 8(b) (4) (D) of the Act. It is clear that Respondent Local 243 established the picket line. The Board has held that the picket line itself constitutes an act of inducement or encouragement of employees not to perform services for the picketed employer.' There is also sufficient evidence in the record to give reasonable cause to believe that the International Painters .participated in the establishment of the picket line. Local 243's Busi- ness Agent Hatcher testified that he advised the office of the interna- tional president on April 27 that a picket line would be established on the following day, and on April 30, 1959, the president of the Inter- 8 United Brotherhood of Carpenters & Joiners of America, Local Union No. 978, AFL- CIO, et al. (Markwell & Hartz Contractors ), 120 NLRB 610, 618. LOCAL 243 , BROTHERHOOD OF PAINTERS, ETC. 341 national Painters by telegram requested Hatcher to encourage the Company to recognize established wages, hours, and conditions of employment.4 With respect to the Respondent Union's objective in picketing the Company, the record shows that in April 1959 members of Local 243, including Business Agent Hatcher, had discussed the fact that the electrical painters used the tools of the painters' trade and that it was work pertaining to the jurisdiction of the Painters. On April 27 Hatcher told Superintendent Hawkins that the picket line was going up, that it did not have anything to do with Chambers and Yellott, and that the electrical painters were "using our tools and equipment and it should be our work." Hatcher also indicated in his conversa- tions with Business Agent Wolfe of Local 470, IBEW, and Business Agent Johnson of the Local 1551, IBEW, that the electrical painters were using the tools and materials of the painters and that it should be painters' work. On these facts, and the record as a whole, we are persuaded that there is reasonable cause to believe that an objective of Local 243's picketing was the reassignment of work from the Company's electrical painters, who at that time were not represented by any union, to mem- bers of Local 243. Such conduct is prohibited by Section 8 (b) (4) (D), even though the Respondent Unions might have had additional, legitimate reasons for engaging in it.-' We find, accordingly, that the dispute involved in this proceeding is properly before the Board for determination under Section 10(k) of the Act. Merits of the Dispute An employer is free to make work assignments without being sub- ject to the pressures proscribed by Section 8(b) (4) (D) of the Act, unless the employer fails to conform to an order or certification of the Board determining the bargaining representative for employees per- forming such work, or unless the employer is bound by an agreement to assign the work in dispute to a respondent union. The Respondents have no Board order or certification or contract claim to that work. Accordingly, we find that they are not entitled, by means proscribed by Section 8 (b) (4) (D), to require the Company to assign the disputed 4 Member Fanning disagrees with his colleagues that there is reasonable cause to be- lieve that the International Painters was responsible for the picketing. Hatcher did not testify that he informed the International as to the objective of the picketing ; and the record shows that in the past the International Painters has on some occasions inter- vened on behalf of the Company to prevent encroachments of local unions on the jurisdic- tion of the electrical painters . Member Fanning, therefore , participates in this Decision and Determination of Dispute only insofar as it pertains to Local 243 . He would quash the notice of hearing with respect to the International Painters. 6Locai 472, International Laborers Union, Heavy and General Construction , AFL-CIO, et al. ( Ernest Renda Contracting Company, Inc.), 123 NLRB 1776 ; International Union of Operating Engineers, AFL-CIO, Local 513 (Missouri Roofing Company), 124 NLRB 937. 535828-60-vol. 125-23 342 DECISIONS'" OF NATIONAL LABOR RELATIONS BOARD work to members of the Respondent Unions rather than to its own employees. By this action, however, we are not to be deemed as making "an assignment" of the disputed work. Because of the hazardous nature of the disputed work which should be performed without interference by jurisdictional conflicts, the Company urges the Board to assign the work to the IBEW and to recognize that labor organization as the exclusive bargaining agent of the Company's employees. The'IBEW never has, nor does it now, represent the Company's electrical painters, and the international president of the IBEW declines to sign the tentative agreement with the Company. The IBEW has never been certified as the bargaining representative. We therefore deny the Company's request for such an affirmative work award.6 DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and the entire record in this case, the Board makes the following determination of dispute pursuant to Section 10 (k) of the Act : 1. Local 243, Brotherhood of Painters, Paperhangers and Dec- orators of America, AFL-CIO, and International Brotherhood of Painters, Paperhangers and Decorators of America, AFL-CIO, and their agents, are not and have not been lawfully entitled to force or require Richardson Paint Company, Inc., to assign the work in dispute to members of Local 243, rather than to Richardson Paint Company, Inc.'s, oNvn employees. 2. Within 10 days from the date of this Decision and Determina- tion of Dispute, Local 243 and International Brotherhood of Paint- ers, Paperhangers and Decorators of America, AFL-CIO, shall notify the Regional Director for the Sixteenth Region, in writing, whether or not they will refrain from forcing or requiring Richardson Paint Company, Inc., by means proscribed by Section 8(b) (4) (D) of the Act, to assign the work in dispute to their members rather than to employees of Richardson Paint Company, Inc. 0In declining to make an affirmative work award we respectfully disagree with the decision of the United States Court of Appeals for the Third Circuit in N.L.R.B. v. United Association of Journeymen and Apprentices, etc. (Frank Hake), 242 F. 2d 722. See Newark & Essex Plastering Co., 121 NLRB 1094. Ballas Egg Products, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 346, AFL- CIO. Case No. 8-C4-1550. November 25, 1959 DECISION AND ORDER On July 27, 1959, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 125 NLRB No. 46.