Cuyahoga Carpenters District Council

190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cuyahoga, Lake, Geauga and Ashtabula Counties Car- penters District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Midwest Exhibitors Service, Inc. and Uphol- sterers' International Union of North America, Lo- cal Union No. 48, Decorators and Displayman's Division, AFL-CIO. Case 8-CD-293 March 28, 1975 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, KENNEDY, AND PENELLO This is a proceeding under Section 10(k) of the Na- tional Labor Relations Act, as amended, following a charge filed by Midwest Exhibits Service, Inc., here- inafter called Midwest or the Employer, alleging that Cuyahoga, Lake, Geauga and Ashtabula Counties Car- penters District Council, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, herein called Carpenters, has violated Section 8(b)(4)(D) of the Act. Thereafter, a hearing in this matter was held on Oc- tober 29 and November 1, 4, and 12, 1974, before Hear- ing Officer Samuel J. Cognata. Midwest and Carpen- ters 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, briefs were filed by Midwest and the Carpenters. 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 rulings of the Hearing Officer made at the hear- ing are free from prejudicial error and are hereby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings- I THE BUSINESS OF THE EMPLOYER The parties' stipulated, and we find, that Midwest is a corporation engaged, inter alia, in the assembly and disassembly of premanufactured exhibits. Annually, in the course and conduct of its business, it receives gross revenues in excess of $231,000, of which in excess of $50,000 is derived from other corporations which, in 1 Although the other union involved here, Upholsterers' International Union of North America, Local Union No. 48, Decorators and Dis- playman's Division, AFL-CIO, hearinafter called Decorators , was served with a copy of the notice of hearing, it was present at only the first of the 4 days of the hearing but was given full opportunity to participate in this proceeding. 2 Including Decorators turn, are directly engaged in interstate commerce. Ac- cordingly, we find that Midwest is engaged in com- merce within the meaning of Section 2(6) of the Act and it -will effectuate the purposes of the Act to assert jurisdiction herein. II THE LABOR ORGANIZATIONS INVOLVED The parties3 stipulated, and we find, that Carpen- ters and Decorators are labor organizations within the meaning of Section 2(5) of the Act. III THE DISPUTE A. Background and Facts of the Dispute Midwest began its corporate existence in 1971. It performs a range of services for clients who exhibit at trade shows and conventions around the country. In- cluded in its services are the assembly and disassembly of the "hard goods" portion of trade show exhibits. The exhibits themselves vary in complexity from a single panel to complex structures. The "hard goods" por- tions are those which are composed of materials such as wood, metal, and/or fiberglass. They are preengi- neered for assembly and disassembly, and are assem- bled by using simple tools and following an assembly drawing or simply a picture of the completed exhibit. It is the assembly and disassembly of the "hard goods" portions of the exhibit, together with the laying of car- peting with the exhibit, that is the subject of the present dispute.' Although Midwest performs its services for clients in many cities across the country, the instant dispute is limited to one geographic location, the Cleveland Con- vention Center, which is a show and exposition center operated by the city of Cleveland. There appear to be two key methods by which exhibitors coming into the Cleveland Convention Center for a trade show have their exhibits assembled. First, an exhibitor can con- tract directly with the city through its Cleveland Con- vention Service by applying at the service desk at the center for labor. The workers thus supplied through the city are carpenters since the city has a collective-bar- gaining agreement with Carpenters.' An exhibitor can 3 Including Decorators 4 There may be a further part of the exhibit called the "soft goods" portion. This part includes the drapery, bunting, and skirting, as well as the pipe and drapery, which is used to separate one area of floor space from another Carpenters makes no claim to the assembly and disassembly of this "soft goods" portion, conceding that it is Decorators work. In turn, the actual construction of the exhibits themselves into component parts is also 'not work in dispute here. In fact, Midwest does not perform this type of work. 5 Under this method, the city assigns the employees to do the work and then bills the exhibitor for the exact amount of money the city has paid the workmen without any markup. 217 NLRB No. 41 CUYAHOGA CARPENTERS DISTRICT COUNCIL 191 otherwise opt to contract directly with an outside setup contractor such as Midwest. Carpenters contends that when an exhibitor uses an outside setup contractor at the convention center that the contractor's employees have been traditionally car- penters. While the Employer disputes this, it does ap- pear that initially the Employer had attempted to uti- lize carpenters in its work at the convention center but, according to an affidavit of the Employer's president, Larry Lengle, which was filed in a law suit pending in the U.S. district court in Cleveland, the Employer be- gan to request referrals of temporary workers from Decorators toward the end of 1973 , allegedly because of problems experienced with Carpenters, as discussed plfra.6 Thereafter, sometime in February or March 1974, Kenneth Steiger, business agent for Carpenters, while at the Cleveland Convention Center, ordered a work stoppage by members of Carpenters, demanding that the Employer remove members of Decorators from the work of assembling display units and assign the work to members of Carpenters . The work stoppage in ques- tion began when Steiger approached employees of the Employer demanding to see their union cards and, when certain members of Decorators did not display Carpenters cards, Steiger ordered Carpenters members to cease working. The work stoppage lasted about 2- 1/2 hours. Thereafter, according to Steiger, on March 11, 1974, the parties agreed that the Employer would employ members of both Unions on a one-carpenter- to-one-decorator basis for the duration of the 1973-74 show season. Sometime thereafter, in March 1974 according to Steiger, and after March 1974 ac- cording to the Employer's president, but in any event subsequent to reaching the one-to-one agreement, Steiger showed the Employer's president picket signs with the Employer's name on them . The signs read "Midwest Exhibitors Unfair to the Carpenters Union" and Steiger admitted he told the Employer 's president flu at, he wanted the Employer to stop using workers who,were members of Decorators and to hire men who were members of Carpenters. The Employer's president also testified that after the plant maintenance show, which the Employer com- pleted on March 26, 1974 , Steiger told carpenters that he did not want them working on an exhibit with decorators. There is no evidence that any Carpenters- represented employees ever refused to do such work, however. There has been no pickets in the center. E Records submitted at the hearing indicate the Employer had used decorators since at least early 1973. B. The Work in Dispute The work in dispute consists of the assembling and disassembling of exhibits and modules and the laying and removal of carpeting at the Cleveland Convention Center, 1220 East Sixth Street in Cleveland, Ohio. C. Contentions of the Parties The Employer desires the work be assigned to decorators, contending that decorators have the neces- sary skill to perform the work and ,that the assignment is consistent with the Employer's and the area practice and promotes the efficient operation of the Employer's business. Decorators contends that its members have histori- cally done the work in question at the convention cen- ter, and in ,the area, for the Employer and other display contractors; that the work has been assigned to it by the Employer; and that it has a contract with the Employer covering the work in dispute. Carpenters contends that it has a contract with the Employer covering the work in dispute; that carpenters have the skill to perform the work; that the Employer had originally assigned the work in question to carpen- ters; that historically, and currently, the area practice is for carpenters to do the work; and that the use of carpenters does not impair the efficiency of the Em- ployer's operations. D. Applicability of the Statute Before the Board may proceed with the determina- tion of a dispute pursuant to Section 10 (k) of the Act, it must be satisfied that there is reasonable cause to believe Section 8(b)(4)(D) of the Act has been violated. It appears that sometime in February or March 1974,' Carpenters Representative Steiger ordered a work stoppage by members of the Union at the Cleve- land Convention Center, demanding that the Employer remove decorators from the work in dispute and assign the work to members of Carpenters . Additionally, at a later date, either in March or after March, but in any event after the March 11 meeting establishing the one- to-one ratio noted above, Carpenters Representative Steiger showed the Employer's president picket signs with the Employer's name on them and sought to have the Employer assign to members of Carpenters the work in dispute. And on or about March 26, 1974, Carpenters Representative Steiger told the carpenters on the job not to work with decorators, although the carpenters continued to do so. 7 Steiger places the date as February 27, 1974, while Lengle, the Em- ployer's president, states the date was sometime during the Employer's work at the Pittsburgh Conference at the center, which ran from February 28 to March 12, 1974 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We thus conclude that there is reasonable cause to believe that there has been a violation of Section 8(b)(4)(D) of the Act and that the dispute is properly before the Board for determination. The parties' hereto having so stipulated, we also find that there does not exist any agreed -upon or ap- proved method for the voluntary adjustment of the dispute to which all parties to the dispute are bound. Accordingly, we shall proceed to a determination of the merits of the dispute. E. The Merits of the Dispute As the Board stated in J. A. Jones Construction Company,9 we shall determine the appropriate assign- ment of disputed work in each case presented for reso- lution under Section 10(k) of the Act by taking into account and balancing all relevant factors including: ... the skills and work involved, certifications by the Board, company and industry practice , agree- ments between unions and between employers and unions, awards of arbitrators , joint boards, and the AFL-CIO in the same or related cases, the assign- ment made by the employer, and the efficient op- eration of the employer's business. 10 1. Certifications and collective-bargaining agreements This attempted cancellation of the one contract left standing, however, another Employer-Carpenters agreement, dated September 28, 1973, and effective from March 1973 to February 1976. This contract ap- pears to be still in full force and effect. In the face of conflicting contracts, both covering the work in dispute, we find that this factor of collective- bargaining agreements does not favor the claim of ei- ther Union. 2. Employer's assignment and past practice The evidence indicates that the Employer, which began operations in 1971 , initially called on Carpenters for referrals of workers but that, after allegedly ex- periencing difficulties in obtaining workers in sufficient number and of suitable skills from Carpenters, the Em- ployer began to seek referrals from Decorators, cul- minating in the use, from March 1974 until the end of the show season in 1974, of a crew of carpenters and decorators in a one-to-one ratio. While the Employer desires that the work be given now exclusively to decorators , its past practice mili- tates against such an assignment . Since it appears that recently the Employer has assigned the work in dispute to both carpenters and decorators, we can not fmd this factor favors the award to carpenters, exclusively, but find that this factor of the Employer's assignment weighs in neither Decorators nor Carpenters favor. There is no Board certification determining the bar- gaining representative for the employees assigned the work in dispute. Neither of the labor organizations involved herein has been certified by the Board as col- lective-bargaining representative for a unit of the Em- ployer's employees. There was introduced into evidence a contract be- tween the Employer and Decorators which runs from July 1972 to December 1975. This contract contains a recognition clause covering the work in dispute. There were introduced into evidence, however, two contracts between the Employer and Carpenters, both of whose recognition clauses also cover the work in dispute. One contract, signed July 31, 1973, was to be effective from May 1973 until April 1976. Carpenters, sometime prior to April 1974, exercised its option to reopen this con- tract for wage negotiations . This allegedly gave the Employer the ability to cancel the agreement , consist- ent with certain contract provisions, and on May 21, 1974, the Employer did send notice of its intent to cancel the contract, the Employer having refused to sign an extension agreement to this contract offered by Carpenters on April 30, 1974. 8 Including Decorators 9 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1962) 10 135 NLRB at 1410-11. 3. Area practice The record evidence indicates that the practice at the Cleveland Convention Center had been to assign the work in dispute predominantly to carpenters . With re- gard to an exhibitor's use of the city to supply workers for the disputed work, testimony indicates the workers so provided are carpenters. More important because more relevant is the evidence that outside setup con- tractors, like Midwest, who also perform the work in dispute at the convention center , also use carpenters. While Midwest has submitted evidence indicating that individual decorators have performed the disputed work for various setup contractors like the Employer, the evidence preponderates in favor of a finding that at the Cleveland Convention Center this work has in re- cent years been done predominantly by carpenters. Tes- timony by various members of Laborers Union, Local 1099, reveals that initially the disputed work has been done by workers represented by the union but that eventually that work passed to carpenters and has been done by carpenters since. It appears that at least since 1968 Carpenters has been the source of workers for outside contractors do- ing the disputed work at the convention center. Tes- timony of the head of a company in competition with CUYAHOGA CARPENTERS DISTRICT COUNCIL the Employer indicates that his company has tradition- ally used carpenters on the diputed work and that only the Employer has used decorators for part of the work. This testimony is confirmed by the fact that the agree- ment establishing the one-carpenter-to-one-decorator ratio by which the Employer completed its work in the 1974 season involved the Employer only. No other competitor of the'Employer was so affected." We find the factor of area practice at the convention center favors an award to carpenters.12 4. Relative skills, efficiency, and economy of operations 'While the assembly of certain exhibits may require the ability to read blueprints, the evidence indicates that the greater percentage of exhibits are prefabricated units, the assembly of which requires only the bolting together of various sections of the display. This can be learned simply by watching a more experienced person doing the work. Carpenters, over the years, has conducted an appren- tice program, part of which was directed toward in- str action in the assembly and disassembly of exhibits. The bulk of the training, however, was directed toward the manufacture of exhibits rather than their assembly. Decorators has no formal apprentice training program covering assembly and disassembly of the exhibits. `While the Employer contends that certain of the help supplied by Carpenters had no prior experience with the assembly of exhibits, we have concluded that the bulk of the work in dispute could be learned easily by those without prior experience.13 Also, while the Em- ployer contends the workers employed through Decorators performed in a satisfactory manner, it ap- pears that a number of those supplied through Decora- tors were not members of Decorators but men given permission to work under its jurisdiction. There is no indication these workers had experience in the work in dispute prior to their assignment and thus we can not find they were any more skilled than the employees referred by Carpenters.14 II We note too as indicative of the practice at the convention center that Carpenters complained on various occasions when individual decorators attempted to erect exhibits , but there is no evidence showing Decorators ever complained about carpenters performing this work exclusively 12 There is evidence that the same type of work here in dispute when done at certain other locations in the Cleveland area , such as at hotels, is done by decorators. Carpenters acknowledges this but contends there was an oral agreement between it and Decorators whereby carpenters would perform the work in dispute at the convention center and decorators would perform the work in hotels. Representatives of Decorators could not remember if there; was such an agreement but, in any event, the evidence indicates that the work in dispute has been done at the convention center at least since 1968 predominantly by carpenters 13 Midwest's superintendent, Hockey, testified that, as long as a person had the proper tools, anyone could put the exhibits together since no skill was required. 193 Midwest states that it is able to take Decorators- supplied employees out of the Cleveland area during the year to other locations in the country to service its customers and that this familiarity which decorators thus have with the exhibits is an aid to the Employer. However, the president of one of Midwest's competi- tors, who also does assembly work outside of the Cleve- land area, uses carpenters at the convention center and we are unable to conclude the Employer would realize a more efficient operation through the use of decorators exclusively at the convention center. The Employer also noted that the wage scale for decorators is significantly below that paid to carpen- ters, but we do not regard difference in wage rates as a factor. We thus conclude that the factors of skill, efficiency, and economy of operations do not favor an award to either carpenters or decorators. Conclusion As was present in United Brotherhood of Carpenters and Joiners of America, Local No. 171, AFL-CIO (Knowlton Construction Company), 15 we have a situa- tion "in which the Employer's assignment of the dis- puted tasks to [Decorators] instead of [Carpenters] is in conflict with well-defined area practice [at the relevant site, the Cleveland Convention Center] and is affirma- tively supported only by the difference in wage scales," which is not regarded by us as a determinative factor. As we noted in Knowlton, we are reluctant to disturb area practice in making our awards, absent some com- pelling reason, which we do not find in the -present case. We therefore conclude that employees represented by Carpenters are entitled to the work in question,16 and we shall determine the dispute in their favor . In making this determination, however, we award the work to employees represented by Carpenters and not to the Union or its members. Further, we shall confine this award to the Cleveland Convention Center, the site at which this dispute arose. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Re- lations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceed- 14 While the Employer claims that at times it could not get enough help from Carpenters, Carpenters representatives denied this ever occurred 15 207 NLRB 406 (1973). i6 The notice of hearing also listed as part of the work in dispute "the laying and removal of carpeting" at the Cleveland Convention Center. What evidence was introduced at the hearing concerning this work indicates a verbal agreement between Carpenters and Decorators whereby carpeting that comes into the convention center with an exhibit is worked on by carpenters, and carpeting that is rented to an exhibitor is worked on by decorators. We shall adhere to that agreement in our award to carpenters. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing, the National Labor Relations Board hereby makes the following Determination of Dispute: Employees employed by Midwest Exhibitors Serv- ice, Inc., who are represented by Cuyahoga, Lake, Geauga and Ashtabula Counties Carpenters District Council, United Brotherhood of Carpenters and Join- ers of America, AFL-CIO, are entitled to perform the work in dispute which involves the assembling and disassembling of exhibits and modules at the Cleveland Convention Center, 1220 East Sixth Street in Cleve- land, Ohio, and the laying and removal of carpeting that comes with the exhibit into the Cleveland Conven- tion Center. -