Golden Gateway Center

492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Golden Gateway Center and Painters Local Union No. 4, Brotherhood of Painters, Decorators & Paper- hangers of America, AFL-CIO, Petitioner. Case 20- RC-10131 February 22, 1972 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Paula J. Paley. The Hearing Officer's rulings made at the hearing except as discussed infra are free from prejudicial error and are hereby affirmed.' Following the hearing, and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Proce- dure, Series 8, as amended, and by direction of the Regional Director for Region 20, this case was trans- ferred to the National Labor Relations Board for deci- sion. Thereafter, the Employer, the Petitioner, and the Intervenor2 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. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2.The labor organizations involved claim to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of the Employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. Golden Gateway Center, hereinafter Employer, a limited partnership, is engaged in the operation and management of a high-rise complex which included apartments and commercial office buildings. In the op- eration of its residential complex the Employer em- ploys approximately 20 men on a full-time basis to perform maintenance work. In 1964 the Employer gave a power of attorney to the Building Owners and Managers Association (herein BOMA) to represent it for the purposes of collective bargaining with various labor organizations including the Intervenor. At that time the Employer employed maintenance engineers to maintain the mechanical Over Petitioner 's objection the Hearing Officer struck certain testimony offered by Petitioner at pp 444 to 449 of the record In our view the Hearing Officer's ruling constituted prejudicial error The evidence and the Hearing Officer's ruling are discussed infra. ' International Union of Operating Engineers , Stationary Local 39, AFL-CIO equipment at the Center; it employed no painters.' Through BOMA the Employer became a party to a collective-bargaining agreement with the Intervenor covering the maintenance engineers' work. This collec- tive-bargaining agreement, hereinafter the BOMA agreement, covers a multiemployer group of about 60 employers. Section 3 of the BOMA agreement sets forth the duties of engineers; these duties include the operation, maintenance, and repair of all heating and ventilating equipment, refrigerating and air-condition- ing equipment, pumps, air compressors, water filters, softeners, and piping and pumps used in conjunction with water distribution, and the maintenance of eleva- tors and all electrical work and repair. In enumerating the functions of maintenance engineers there is no men- tion of painting. When the Employer joined the multiemployer group in 1964 its maintenance painting was performed by painting contractors, most of whom were under con- tract with the Petitioner. The Petitioner has separate contracts covering the maintenance painters regularly employed by at least 11 of the employers who are parties to the BOMA agree- ment. Elmer Johnson, executive vice president of BOMA, testified that nothing in the BOMA agreement or BOMA's bylaws prohibits employers who are par- ties to the master agreement from negotiating in- dividual contracts with other labor unions. Other than the contention that the maintenance painters of the Employer are covered by the BOMA agreement there is no record evidence that any other employer covered by the agreement employs painters who are working under the BOMA agreement. In July 1967, the Employer published newspaper advertisements seeking "maintenance painters," through which it employed its first maintenance paint- ers, two in July 1967 and one in September 1967. One of these, Charles Gedra, testified that shortly after he was hired he was told by the chief engineer he had to join the Intervenor; rather than risk his job he did. Foreman Jungclaus also testified that he answered an advertisement for a maintenance painter. Both empha- sized they had been hired as maintenance painters, and had no experience as, and, in fact, were not competent to perform the duties of, maintenance engineers. At the time of the hearing the painting crew con- sisted of a foreman^and five painters; they spend virtu- ally all of their time painting. The maintenance engi- neers do not paint, except occasionally to apply some paint to a boiler they are working on, but spend all of their time performing the functions of maintenance en- gineers as set forth in the )SOMA agreement. There is ' The Petitioner seeks a unit of the maintenance painters now employed by the Employer ' Jungclaus ' supervisory status will be discussed infra 195 NLRB No. 92 GOLDEN GATEWAY CENTER 493 no interchange between the painters and engineers. Ge- dra, a maintenance painter , testified he does not know how to perform any of the jobs listed under section 3 of the BOMA agreement and has received no training with respect to those jobs. The Employer admits it has trained none of the painters as engineers. The painters report to work at the paint shop; the engineers report to work at a different location. Until the time of the hearing the painters were punched in by their foreman , Jungclaus. The painters wear special clothing and eat lunch separately as a group . The paint- ers, except on rare occasions, do not work with the maintenance engineers; primarily they work in the apartments or public areas while the maintenance engi- neers work for the most part on heavy equipment. Alfred Jungclaus identified himself as the painting foreman.' Jungclaus receives 48 cents more per hour than the other maintenance painters. The entire maintenance crew is under the supervision of the chief engineer. The engineers are directed by the assistant chief engineer. Jungclaus directs the painters. Jung- claus testified that he is in charge of ("runs") the paint- work. He paints 50 to 75 percent of the time. Jungclaus begins one-half hour earlier than the painting crew in order to arrange the work for the day and line up the crews, makes all assignments to the crews, and decides where the crews will work . Jungclaus maintains and controls all records of painting and orders all paint and paint supplies. In addition , he determines himself whether or not he will paint, changes work orders with- out consulting with the chief engineer , and decides whether public areas need painting. Jungclaus hands out checks, receives all requests for time off, and de- cides when overtime is necessary; the chief engineer has never rejected Jungclaus' recommendation on over- time. The only painter hired since Jungclaus became foreman was interviewed by Jungclaus and hired on his recommendation; another applicant for that job was rejected on Jungclaus' recommendation.' Charles Ge- dra was painting foreman from August 1967 to January 1969 when he left the Employer; he later returned as a painter. Jungclaus, who succeeded Gedra as foreman, testified that his duties as foreman are "generally simi- lar" to the duties of Gedra when he (Gedra) was fore- man. Gedra testified without contradiction that as fore- man he discharged one and hired four painters. The Employer hired its first painters in July 1967; they were required to join the Intervenor. Upon learn- ing this in late 1969 Evenson, business agent for Peti- tioner, requested recognition as representative of the maintenance painters. The Employer referred Evenson to BOMA, where he was told BOMA had a contract with the Intervenor and would abide by it. In April 1970, the painters learned they were being paid sub- stantially less than the maintenance engineers ; the engi- neers were receiving $5.03 per hour and the painters $4.60 per hour. Certain of the painters including Gedra went to McBride, then the Employer's building super- intendent, and complained . McBride responded that the painters were not entitled to the engineers' pay rate as they were not competent to do the work of engineers. Gedra then contacted the Petitioner who in turn con- tacted management . Evenson, Petitioner's business agent, who testified on the last day of the hearing, confirmed Gedra's testimony. Evenson further testified that he went to McBride and demanded that the paint- ers receive the same pay rates as the engineers. After Evenson testified, Employer's counsel indicated he would call McBride as a witness but that he would need time to find McBride who no longer works for the Employer. He added that it was his understanding that Evenson never had such a conversation with McBride but rather that McBride was contacted by another of Petitioner's business agents , one Hellesto . The Hearing Officer then stated that she would entertain a motion to strike Evenson's testimony. Upon such motion by the Employer the Hearing Officer, over the strenuous objection of the Petitioner, ruled that Evenson's tes- timony with respect to his April 1970 conversation with McBride be stricken on the grounds that "the conversation if it were of some importance taken in the light of the total record in this proceeding is not material to delay or continue the proceeding ."' In our opinion this ruling was erroneous and prejudicial to Petitioner's case. On the other hand, to utilize Even- son's testimony would be prejudicial to the Employer who was given no opportunity to call McBride. We do believe, however, that we may use the combined tes- timony of Gedra and Evenson along with the acknowl- edgement of the Employer 's attorney that McBride was contacted by the Petitioner for the limited purpose of showing that , at the time of the wage dispute and prior to the Employer's granting the painters a wage in- crease, the Petitioner did intercede on behalf of the painters. A few weeks after Gedra contacted the Peti- tioner, Art Viat, representing the Intervenor, called a meeting of the painters and informed them they would be paid the same rate as the engineers. The BOMA agreement contains no seniority clause. In January 1971 Gedra and Stafford , another mainte- nance painter, were laid off by the Employer.' Gedra filed a grievance with the Intervenor on January 7, 1971. On January 13, 1971, the Petitioner, by letter, ' The Employer and Intervenor contend Jungclaus is a leadman, the Petitioner contends he is a supervisor within the meaning of the Act ' It is to this ruling we refer in fn 1, supra ' The chief engineer said he would look at more applications after Jung- ° The Petitioner filed unfair labor practice charges with respect to these claus informed him the applicant was not qualified as a painter layoffs , which were later settled informally 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demanded that the Employer recognize it as exclusive bargaining agent of the painters. On January 15, 1971, the Petitioner informed the Employer that unless Ge- dra and Stafford were reinstated Petitioner would take action. On January 19 Petitioner began picketing the Employer. The Employer commenced an action in the Superior Court of the State of California in an attempt to enjoin the picketing. Viat, Intervenor' s business agent, testified he signed an affidavit for the Employer in connection with this civil action in which he stated that the layoffs, pursuant to past practice, were made on the basis of seniority and that Gedra and Stafford were determined to have the least seniority and were therefore properly laid off. In this connection Viat ad- mitted that at the time he signed the affidavit he had not, in fact, investigated the seniority status of Gedra and Stafford. Finally, in early February the seniority status of Gedra and Stafford was investigated and it was found Gedra had been laid off out of seniority. As a result Gedra was reinstated and a maintenance engi- neer was laid off. Upon Gedra's reinstatement the Peti- tioner ceased picketing the Employer. Although the Intervenor and Employer contend the Petitioner had nothing to do with Gedra's reinstatement either by its picketing or otherwise, such a contention is obviously untenable in view of the evidence. That the Petitioner was involved in, if not instrumental in, obtaining Ge- dra's reinstatement appears clear. The Petitioner seeks a unit of all maintenance paint- ers employed by the Employer. It contends that al- though severance of the painters is justified under the Board's craft severance criteria, this case is not, in fact, a craft or departmental severance case, but rather pre- sents the basic issue of whether this previously unor- ganized group of painters constitutes an appropriate unit regardless of severance considerations. The Employer contends the painters are not a craft group and do not quality as a functionally distinct department. It further contends that any separate com- munity of interest possessed by the painters has been submerged in the larger community of interest of all the maintenance employees and that the existing multiem- ployer unit is appropriate. The Intervenor contends the facts do not support the severance of the painters and that if a unit of maintenance painters were found to be appropriate it should be coextensive with the multiem- ployer BOMA bargaining unit. The supervisory status of Foreman Jungclaus is also in issue; the Employer and Intervenor contend he is a leadman and the Petitioner contends he is a supervisor within the meaning of the Act. After carefully consid- ering the record, we are of the view that Jungclaus who not only employs independent judgment in responsibly directing the painters but also possesses the authority to effectively recommend personnel action is a super- visor with the meaning of the Act. To find otherwise would mean that the painters, who have little or no connection with the maintenance engineers, would be virtually without supervision. The painters were hired through advertisements call- ing for maintenance painters and were hired because they had painting experience. They are engaged almost exclusively in painting whereas maintenance engineers do little or no painting. There is no interchange of work between the painters and the engineers. As Gedra tes- tified, the painters cannot do the engineers' work de- scribed in the BOMA contract. The painters report to work at a different location and wear special clothing. In addition, the painters are separately supervised by the painting foreman, Jungclaus. In our opinion, it is clear that the painters constitute a functionally distinct department comprising a homogeneous group of skilled workers who have a special community of inter- est not shared by the engineers. There is no direct history of collective bargaining between the Petitioner and the Employer. However, outside of the claim that the painters of the Employer work under the BOMA agreement there is no evidence that painters in any other BOMA building are working under the BOMA agreement. On the contrary, the evi- dence reveals that at least 11 of the 50 or 60 buildings covered by the BOMA agreement have separate con- tracts with the Petitioner or its affiliate district council covering maintenance painters. Moreover, the evidence shows that for the first 2 or 3 years of the BOMA agreement's existence the Employer's maintenance painting was done by painting contractors working un- der contract with the Petitioner. On this record the history of collective bargaining in this industry both in and out of BOMA in the Bay area shows a consistent pattern of bargaining for maintenance painters on a single-employer basis between the employers and the Petitioner. Petitioner has had, unlike Intervenor, exten- sive experience in representing painters; it has numer- ous contracts covering similar workers and similar buildings both within and without BOMA. In addition, it has a master agreement covering the entire painting contracting industry in the area, including contractors who do similar maintenance painting. There is no evidence that the continuity of the Em- ployer's maintenance operation is dependent on any integration or interrelationship between the painters and engineers; to the contrary each crew operates sepa- rately and independently of the other. The BOMA agreement does not and it does not ap- pear that it was intended to cover painters. When the Employer became a party to that contract it had no painters. Painting is not mentioned in the BOMA agreement which treats exclusively the functions of maintenance engineers. The painters were hired as painters, not engineers. After they were hired , as$um- ing the experience of Gedra is typical, the painters were GOLDEN GATEWAY CENTER 495 required to join and pay dues to the Intervenor or relinquish their jobs. They were afforded no oppor- tunity to choose their own bargaining representative. Most significantly, however, it appears the Inter- venor has never truely represented the interests of the maintenance painters. Thus, the painters were paid at a substantially lower wage rate than the engineers until May 1970, apparently with the concurrence of the In- tervenor. Upon realizing the situation the painters were told they were not being paid the contract rate because they were not engineers and were not competent to perform the work of engineers. The question is thus raised as to whether the painters were considered part of the bargaining unit by the Employer and Intervenor. The record indicates that the painters received the con- tract rate to which they were entitled only after the Petitioner interceded on their behalf. This incident demonstrates that the Intervenor had little or no inter- est in protecting or representing the painters. Likewise in January 1971 when Gedra was laid off out of seniority the Intervenor again showed little inter- est in the painters. Viat, who serviced the BOMA agreement , admitted the Intervenor had decided the two maintenance painters had junior seniority without any investigation. Only after the Petitioner again in- terceded and picketed the Employer was the actual seniority status of the unit employees determined and Gedra reinstated. In our opinion the record shows that the painters not only were never afforded an opportunity to choose a representative, but were never, in fact, truly repre- sented by the Intervenor. As argued by the Petitioner the real issue herein is whether this group of previously unorganized painters, a functionally distinct depart- ment with a separate community of interest, constitutes an appropriate unit. In our opinion it does. Accord- ingly, we shall direct an election within the following appropriate unit: All maintenance painters employed by the Em- ployer, excluding supervisors, and all other maintenance employees. [Direction of Election' omitted from publication.] In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N..L R.B v Wyman-Gordon Co, 394 U.S. 759. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 20 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordi- nary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.