Painters Local 1447 (United Exposition)

732 303 NLRB No. 112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 On May 28, 1991, the Carpenters filed a motion to reopen the record for the purpose of introducing testimony in an unrelated pending case which the Carpenters assert supports its contention that the award of work in the instant case should be limited to work performed by the Employer, and not cover the entire Atlantic City area. In view of our finding below that our award is lim- ited to jobs performed by the Employer, we find it unnecessary to pass on the Carpenters’ motion because the testimony sought to be introduced would have no effect on the result. Local Union 1447, Sign-Pictorial and Displaymen, a/w International Brotherhood of Painters and Allied Trades of the United States and Canada, AFL–CIO (United Exposition Service Co., Inc.) and Martin J. Sobol. Case 4–CD–795 July 19, 1991 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT The original charge in this Section 10(k) proceeding was filed on October 19, 1990, and an amended charge was filed on November 29, 1990, by Martin J. Sobol, alleging that the Respondent, Local 1447, Sign-Pic- torial and Displaymen, a/w International Brotherhood of Painters and Allied Trades of the United States and Canada, AFL–CIO (Decorators) violated Section 8(b)(4)(D) of the National Labor Relations Act by en- gaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by Carpenters District Council of South Jersey and its Local 623, a/w United Brotherhood of Carpenters and Joiners of America, AFL–CIO (Carpenters). The hear- ing was held January 9 and 18, 1991, before Hearing Officer Henry R. Protas.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board affirms the hearing officer’s rulings, find- ing them free from prejudicial error. On the entire record, the Board makes the following findings. I. JURISDICTION The Employer, a corporation with its principal place of business in Chicago, Illinois, and an office in Atlan- tic City, New Jersey, is engaged in the business of servicing conventions, expositions, trade shows, and special events for associations and show managers. The Employer’s Atlantic City, New Jersey location has provided services valued in excess of $50,000 directly to customers located outside the State of New Jersey, and has purchased supplies valued in excess of $50,000 directly from suppliers located outside the State of New Jersey. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Decorators and the Carpenters are labor orga- nizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer receives exhibits and displays des- tined for conventions or trade show sites from cus- tomers, takes them from their shipping containers, as- sembles them, erects them, and dismantles and repacks them. It also rents pipe and drape booth equipment, ta- bles and chairs, carpets, and decorative items. The Em- ployer has a maintenance shop for the repair and as- sembly of its rental equipment. In the Atlantic City area, trade shows and conven- tions are held in one of many hotels or the Atlantic City Convention Center. At events held at the hotels, most exhibition companies assign the erecting and dis- mantling of displays and exhibits to employees rep- resented by the Decorators. The Employer uses em- ployees represented by the Decorators and employees represented by the Carpenters. As the exhibits and dis- plays in large part are prefabricated, erecting and dis- mantling them generally requires nothing more than screwdrivers, wrenches, drills, and clamps to tighten panels together with screws, bolts, and wingnuts. The dispute began when the Employer was hired by ENESCO to install and dismantle its exhibits for a trade show to take place in January 1989. At the spe- cific direction of the customer, the Employer hired em- ployees represented by the Carpenters to perform the work. The Employer was hired for the same work by ENESCO for a show in January 1990. This time, how- ever, the customer directed the Employer to utilize em- ployees represented by the Decorators. The Carpenters protested the assignment and a settlement was reached whereby employees represented by the Carpenters were assigned the dismantling work. In response to the Employer’s assigning the erecting and dismantling work to employees represented by the Decorators on subsequent jobs, the Carpenters filed a series of grievances dating from January 1990, through September 1990. By letter dated October 11, 1990, the Decorators informed the Employer that it was aware that there had been discussions between the Carpenters and the Employer concerning the disputed work. The letter claimed that the assignment of this work to any- one other than employees represented by the Decora- tors was a violation of their contract and threatened to respond to any such violation with action up to and in- cluding a work stoppage. At present, the Employer claims to assign the erecting and dismantling of exhib- its and displays to employees represented by the Deco- rators in accord with its preference. 733 PAINTERS LOCAL 1447 (UNITED EXPOSITION) 2 The Employer does not erect or dismantle exhibits and displays at the At- lantic City Convention Center. This work is retained by the Convention Center which utilizes employees represented by the Carpenters to perform it. The award of this work was the subject of a previous Board decision. Carpenters Local 623 (Atlantic Exhibit), 274 NLRB 71 (1985). The work at the Conven- tion Center is not part of the disputed work. B. Work in Dispute The disputed work involves the erecting and disman- tling of exhibits and displays by the Employer in the Atlantic City, New Jersey area, except for that per- formed at the Atlantic City Convention Center.2 C. Contentions of the Parties The Employer contends that the disputed work should be assigned to employees represented by the Decorators based on their collective-bargaining agree- ment, its preference, the area practice outside the Con- vention Center, and its own past practice. The Em- ployer claims its past practice has been to assign 90 percent of the disputed work to employees represented by the Decorators and to use employees represented by the Carpenters only when requested by the customer or carpentry skills are required. The Decorators contends that the disputed work has always been the work of employees it represents and is specifically covered by its collective-bargaining agreement with the Employer. The Decorators further contends that the work should be awarded to employ- ees it represents based on the Employer’s preference and past practice and the area and industry practice. The Carpenters contends that the work is covered by its collective-bargaining agreement and that it only re- cently became aware that the Employer was using em- ployees represented by the Decorators. The Carpenters contends that the work should be awarded to employ- ees it represents based on its collective-bargaining agreement, the Employer’s past practice, and area and industry practice. D. Applicability of the Statute As noted above, the Decorators, on October 11, 1990, threatened the Employer with work stoppages in order to force the Employer to continue to assign the disputed work to employees it represents. We find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that there exists no agreed method for voluntary adjustment of the dis- pute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dispute is properly be- fore the Board for determination. E. Merits of the Dispute Section 10(k) requires the Board to make an affirm- ative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by balancing the factors in- volved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the de- termination of the dispute. 1. Certifications and collective-bargaining agreements There is no evidence that the Board has certified ei- ther the Decorators or the Carpenters as the collective- bargaining representative of the Employer’s employees. The relevant portion of the Decorators’ collective- bargaining agreement with the Employer, effective April 1, 1989, until March 31, 1993, states that the fol- lowing work shall come under the Decorators’ jurisdic- tion: The erection and dismantling of pipe and drape work, prefabricated displays, floats, decorative signs and banners, flags and bunting, and any other display work used for conventions, parties, banquets, parades and events of such nature. The Carpenters has a collective-bargaining agree- ment with the Employer, effective August 1, 1989, until July 31, 1993, that covers the carpenters in its maintenance shop. It provides, ‘‘United agrees that work performed outside the shop shall be done in ac- cordance with the Local Jurisdiction, in accordance with past practice.’’ This language appears to refer to the fact that shop carpenters are permitted on occasion to work outside the shop and that the Employer agreed to pay them at the higher ‘‘outside rate.’’ The Carpenters argues that a one-page document called ‘‘Agreement’’ dated April 27, 1970, also sup- ports its claim for the work. This document contains no indication as to duration and does not discuss the work to be performed. Two copies of the document were introduced into evidence, one of which had a type written addition at the top stating, ‘‘Note: This agreement was cancelled by the UBC because con- tractor did not sign the updated agreement.’’ The Em- ployer claimed that it had no knowledge of this agree- ment, and the addition at the top was never satisfac- torily explained. Because the Decorators’ collective-bargaining agree- ment, but not the Carpenters’, specifically defines ju- risdiction and covers the disputed work, we find that this factor favors an award of the disputed work to em- ployees represented by the Decorators. 2. Employer preference The Employer’s witness testified that the Employer has assigned the disputed work to employees rep- resented by the Decorators for 30 years and that it pre- 734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 See fn. 1. fers to continue to assign the work to those employees. Accordingly, we find that this factor favors an award of the disputed work to employees represented by the Decorators. 3. Employer past practice The Employer’s representative testified that its past practice was to assign 90 percent of the disputed work to employees represented by the Decorators, and the Decorators’ witness corroborated this testimony. The Carpenters claims that the Employer’s past practice has been to assign the work to employees it represents and that it was not aware that the Employer was assigning some of the disputed work to employees represented by the Decorators. The documentary evidence indicates that the Employer has assigned the work to employees represented by the Decorators about half the time and to employees represented by the Carpenters about half the time. Thus, we find that this factor is inconclusive. 4. Area and industry practice The industry practice is a matter of local custom. Employees represented by the Decorators perform the disputed work in Phoenix, Houston, Miami, Mil- waukee, Kansas City, Los Angeles, and San Francisco. Employees represented by the Carpenters perform the work in Atlanta, Cleveland, Chicago, Philadelphia, Washington, and New York. Employees represented by other unions perform the work in certain other cities. Therefore, we find that the industry practice is incon- clusive. The work at the Atlantic City Convention Center is performed by the Carpenters under a collective-bar- gaining agreement with the Convention Center Author- ity.3 Except for this special situation, almost all the re- maining Atlantic City work is performed by employees represented by the Decorators. The prevailing area practice, therefore, favors an award of the disputed work to employees represented by the Decorators. 5. Relative skills Erecting and dismantling the displays and exhibits is semiskilled work requiring the use of screwdrivers, wrenches, drills, and clamps. The panels generally are put together with screws, bolts, and wingnuts. The em- ployees represented by either Union have the skills to perform the work. Consequently, we find this factor in- conclusive. 6. Economy and efficiency of operation No evidence was presented concerning this factor. Conclusions After considering all the relevant factors, we con- clude that employees represented by Local Union 1447, Sign-Pictorial and Displaymen, a/w International Brotherhood of Painters and Allied Trades of the United States and Canada, AFL–CIO, are entitled to perform the disputed work. We reach this conclusion relying on the Decorators’ collective-bargaining agree- ment, the Employer’s preference, and the area practice. In making this determination, we are awarding the work to employees represented by Local Union 1447, Sign-Pictorial and Displaymen, a/w International Brotherhood of Painters and Allied Trades of the United States and Canada, AFL–CIO, not to that Union or its members. DETERMINATION OF DISPUTE The National Labor Relations Board makes the fol- lowing Determination of Dispute. Employees represented by Local Union 1447, Sign- Pictorial and Displaymen, a/w International Brother- hood of Painters and Allied Trades of the United States and Canada, AFL–CIO, are entitled to perform the work of erecting and dismantling of exhibits and displays by United Exposition Services Co., Inc. in the Atlantic City, New Jersey area, except for that per- formed at the Atlantic City Convention Center.