Painters Local 1447 (Hargrove)

97 306 NLRB No. 27 PAINTERS LOCAL 1447 (HARGROVE) 1 The Carpenters moves to reopen the record to include the Board’s decision in Carpenters Local 623 (Atlantic Exhibit Services), 274 NLRB 71 (1985). The Decorators moves to reopen the record to include the Board’s decision in Painters Local 1447 (United Ex- position Service), 303 NLRB 732 (1991), and the Employer opposes. We take administrative notice of these decisions and therefore find it unnecessary to pass on the motions. 2 The Employer’s unopposed motion to correct the transcript is granted. Local Union No. 1447, Sign-Pictorial & Displaymen, a/w International Brotherhood of Painters and Allied Trades of the United States and Canada, AFL–CIO–CLC and Hargrove, Inc. and Car- penters District Council of South Jersey and its Local 623, a/w United Brotherhood of Car- penters and Joiners of America, AFL–CIO. Case 4–CD–801 January 21, 1992 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT The charge in this Section 10(k) proceeding was filed on February 28, 1991, by Hargrove, Inc. (the Em- ployer) alleging that the Respondent, Local Union No. 1447, Sign-Pictorial and Displaymen, a/w International Brotherhood of Painters and Allied Workers of the United States and Canada, AFL–CIO–CLC (Decora- tors), violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employ- ees represented by Carpenters District Council of South Jersey and its Local 623, a/w United Brother- hood of Carpenters and Joiners of America, AFL–CIO (Carpenters). The hearing was held on April 29 and May 17, 1991, before Hearing Officer Kathleen O’Neill.1 The National Relations Board has delegated its au- thority 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,2 the Board makes the following findings. I. JURISDICTION The Employer, a Maryland corporation, creates and produces trade shows and special events at hotels and convention centers in various cities around the country from its facility in Lanham, Maryland. It annually pur- chases and receives goods and materials in New Jersey valued in excess of $50,000 from points outside the State of New Jersey. The parties stipulate, 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 organiza- tions within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer has staged special events and trade shows in Washington, D.C.; Baltimore, Maryland; Houston and Austin, Texas; New Orleans, Louisiana; Boston, Massachusetts; and Atlanta, Georgia. Special events are functions such as weddings, New Year’s Eve parties, bar and bat mitzvahs, and theme parties. Trade shows are substantially larger than special events in the number of attendees and participants. The Employer had produced special events in Atlantic City, but never produced a trade show there until the Amer- ican Society of Association Executives (ASAE) meet- ing in March 1991. In producing an event the Employer may lay out the floor, install and dismantle drapery and swagging, as- semble and disassemble the pipes and drape outlining the show floor or designating display booth areas, skirt and decorate tables, install and dismantle display booths, and set up and remove plants, props, signs, flags, and banners. Wherever it performs its functions, it takes with it a crew of employees represented by a Carpenters local out of Washington, D.C. These em- ployees do draping, swagging, and decorating work that often requires riding lifts to do ceiling work. They also install and dismantle prefabricated display booths. The Employer uses local help obtained at the site of the event, generally for 2 days at a time, to augment its permanent employees. Although the Employer had intermittently worked in Atlantic City during the 1950s, 1960s, and 1970s, it never signed a contract with the Decorators until No- vember 20, 1987. The contract expired on April 1, 1989. It did not differentiate between special events and trade shows, but it was signed in anticipation of a number of special events the Employer was doing in Atlantic City over the holidays in 1987. For these spe- cial events, the Employer used employees represented by the Decorators who worked alongside its permanent Carpenters-represented employees. After the contract with the Decorators expired in April 1989, the Employer sought to negotiate a con- tract with the Decorators to cover special events in At- lantic City. The Decorators refused to grant the con- cessions the Employer wanted, in part, because the Decorators had ‘‘most favored nation’’ clauses in its contracts with all the other show producers in Atlantic City and would, therefore, have to grant the same con- cessions to all these other employers. The Employer told the Decorators that if it would not agree to the Employer’s terms, it would sign a contract with the Carpenters. On December 28, 1990, the Employer signed a contract with Carpenters Local 623. 98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 We reject the Decorators’ claim that it is merely trying to pre- serve work that it has traditionally done for the Employer. It is un- disputed that the ASAE trade show was the first trade show ever done by the Employer in Atlantic City. Thus, Decorators-represented employees have never performed for the Employer the same type of trade show work that is in dispute. Accordingly, we do not address the relevance of that claim to the existence of a jurisdictional dis- pute. In January 1991, Decorators Business Manager Ray- mond Nelson learned that the ASAE trade show was going to be done by the Employer at the Trump Taj Mahal Hotel and Casino in Atlantic City. He also learned that the Employer planned to assign local em- ployees represented by the Carpenters to do the pipe and drape and table skirting work. Nelson met with William Blaziek, executive director of sales for the Taj Mahal. Nelson told him that the Employer was giving the ‘‘traditional work’’ of employees represented by the Decorators to employees represented by the Car- penters. Nelson told Blaziek that the Decorators would have no recourse but to engage in informational pick- eting of the convention. In a letter of February 26, 1991, Nelson informed the Employer’s senior vice president, Chris Hargrove, that Decorators Local 1447 was going to picket the Employer at the ASAE trade show, starting March 1, 1991. Thereafter, the Employer filed the instant charges. For the ASAE trade show, the Employer used 50 carpenters, including its permanent employees and em- ployees represented by Local 623. They performed all the pipe and drape work, skirting of tables, draping banners, cleaning of furniture, setting up and disman- tling of exhibits. The pipe and drape and table skirting work constituted 20 percent of the job. B. Work in Dispute The disputed work involves the installation of pipes and drapes, including the skirting of tables, at the 1991 American Society of Association Executives trade show in Atlantic City, New Jersey. C. Contentions of the Parties The Employer draws a distinction between special events and convention work, claiming that they are two different industries. The Employer contends that, while some of the work involved in each is similar, there are significant differences, such as crew size and the amount of ceiling work. The Employer contends that the work in dispute should be assigned to employ- ees represented by the Carpenters because it has a cur- rent collective-bargaining agreement covering the work with the Carpenters and it has no current collective- bargaining agreement with the Decorators. The Em- ployer also contends that the skills of the employees represented by the Carpenters are superior, that they are more versatile and therefore have less down time, and that the Carpenters is able to provide greater num- bers of qualified workers. The Decorators contends that the disputed work is its traditional work in Atlantic City. The Decorators contends that it made no threat in violation of Section 8(b)(4)(D) and was involved only in preservation of its traditional work. Therefore, the Decorators contends that no jurisdictional dispute exists. The Carpenters contends that there is a jurisdictional dispute and that the disputed work should be assigned to employees it represents based on its collective-bar- gaining agreement with the Employer, relative skills, economy and efficiency of operation, and employer and industry practice. D. 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 be- lieve that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the vol- untary adjustment of the dispute. Contrary to the Decorators, we find that there are competing claims for the work and that a jurisdictional dispute exists.3 As noted above, the Decorators threat- ened the Employer and the Taj Mahal Hotel with pick- eting in order to force the Employer to assign the dis- puted 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. Certification 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 in Atlantic City. 99 PAINTERS LOCAL 1447 (HARGROVE) The Employer’s collective-bargaining contract with Carpenters Local 623 was signed on December 28, 1990, and expires on April 30, 1993. It explicitly cov- ers the disputed work. The Decorators has no current collective-bargaining contract with the Employer. The Decorators’ only con- tract with the Employer expired on April 1, 1989. Because the Carpenters has a current collective-bar- gaining agreement with the Employer covering the dis- puted work and the Decorators has no current contract, we find that this factor favors an award of the disputed work to employees represented by the Carpenters. 2. Employer preference The Employer prefers to assign the disputed work to employees represented by the Carpenters rather than to employees represented by the Decorators. Accordingly, we find this factor favors an award of the disputed work to employees represented by the Carpenters. 3. Employer past practice The Employer uses employees represented by the Carpenters for both special events and trade shows in all the other cities in which it performs work, includ- ing Houston and Austin, Texas; Washington, D.C.; Baltimore, Maryland; New Orleans, Louisiana; Atlanta, Georgia; and Boston, Massachusetts. The Employer has used employees represented by both Unions in its special events work in Atlantic City. It has never be- fore done trade show work in Atlantic City. We find this factor does not favor an award of the disputed work to either group of employees. 4. Area and industry practice The practice varies greatly across the country, and is a matter of local custom. In Atlantic City, employ- ees represented by the Decorators perform the type of work that is in dispute for trade shows, while in other cities one or more of several other unions may perform this work. We find the factor of area practice favors an award of the disputed work to employees rep- resented by the Decorators. We find the factor of in- dustry practice is inconclusive and does not favor an award to either group of employees. 5. Relative skills The record reveals that both groups of employees have the requisite skills to perform the disputed work. Accordingly, we find that this factor does not favor an award of the disputed work to either group of employ- ees. 6. Economy and efficiency of operations The evidence shows that employees represented by the Carpenters can perform all the jobs needed to produce a trade show. They generally have more tools, including power tools, than the employees represented by the Decorators. For ceiling work, riding lifts must be used. Employees represented by the Decorators have declined to ride the lifts. Employees represented by the Carpenters are more versatile and can do other jobs when the show floor is blocked, because of un- loading procedures for instance, and it is impossible to do pipe and drape work. Since the disputed work rep- resents only 20 percent of the total job, there is less down time with employees represented by the Car- penters because of their versatility. Accordingly, we find this factor favors an award of the disputed work to employees represented by the Carpenters. Conclusions After considering all the relevant factors, we con- clude that employees represented by the Carpenters are entitled to perform the work in the dispute. We reach this conclusion relying on the factors of collective-bar- gaining agreements, employer preference, and econ- omy and efficiency of operations, which we find out- weigh the factor of area practice that favors the Deco- rators. In making this determination, we are awarding the work to employees represented by the Carpenters, not to that Union or its members. The determination is limited to the controversy that gave rise to this pro- ceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the fol- lowing Determination of Dispute. 1. 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 are entitled to perform the installation of pipes and drapes work, including the skirting of tables, at the 1991 American Society of Association Execu- tives 1991 trade show in Atlantic City, New Jersey. 2. Local Union No. 1447, Sign-Pictorial & Displaymen, a/w International Brotherhood of Painters and Allied Trades of the United States and Canada, AFL–CIO–CLC, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Hargrove, Inc. to assign the disputed work to employees rep- resented by it. 3. Within 10 days from this date, Local Union No. 1447, Sign-Pictorial & Displaymen, a/w International Brotherhood of Painters and Allied Trades of the United States and Canada, AFL–CIO–CLC, shall no- tify the Regional Director for Region 4 whether it will refrain from forcing the Employer, by means pro- scribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.