Carpenters Local 623 (Atlantic Exhibit)

CARPENTERS LOCAL 623 (ATLANTIC EXHIBIT) United Brotherhood of Carpenters and Joiners of America, Local 623 of Atlantic County and Sign, Pictorial and Displaymen, Local 1447, International Brotherhood of Painters and Allied Trades and Atlantic Exhibit Services, Inc.; McColl's Display Service, Inc.; and Instal- lation and Dismantle, Inc. Sign, Pictorial and Displaymen , Local 1447, Interna- tional Brotherhood of Painters and Allied Trades and Atlantic City Convention Center Authority and United Exposition Service Com- pany and Carpenters District Council of South Jersey and its Local 623. Cases 4-CD-608 and 4-CD-618 14 February 1985 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The first charge, Case 4-CD-608, in this Section 10(k) proceeding was filed 13 September 1983 by Sign, Pictorial and Displaymen, Local 1447, Inter- national Brotherhood of Painters and Allied Trades (Displaymen Local 1447), alleging that United Brotherhood of Carpenters and Joiners of America, Local 623 of Atlantic County (Carpenters Local 623) violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed ac- tivity with an object of forcing Atlantic Exhibit Services, Inc. (AES), McColl's Display Service, Inc. (McColl's), and Installation and Dismantle, Inc. (I & D) to assign certain work to employees it represents rather than to employees represented by Displaymen Local 1447. The second charge, Case 4-CD-618, was filed 28 December 1983 by Atlan- tic City Convention Center Authority (Convention Center) alleging that Displaymen Local 1447 vio- lated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the as- signment of certain work to employees it represents rather than to employees represented by Carpen- ters Local 623. The cases were consolidated 24 January 1984. The hearings were held 8 and 9 Feb- ruary 1984 before Hearing Officer Joseph C. Kelly and 28 February 1984 before Hearing Officer Carmen P. Cialino Jr. The Board affirms the hearing officers' rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings.' ' The parties have filed various motions to correct the hearing tran- script We grant the motions to the extent they are unopposed Where there are opposing positions on the corrections to be made, we grant Dis- playmen Local 1447's proposed corrections 1. JURISDICTION 71 AES, McColl's, and I & D, New Jersey corpora- tions, engaged in providing services to exhibitors who display products at conventions or trade shows, annually provide services valued in excess of $50,000 each in the State of New Jersey for cor- porations located outside the State of New Jersey. We find that AES,, McColl's, and I & D are en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Carpenters Local 623 and Displaymen Local 1447 are labor organiza- tions within the meaning of Section 2(5) of the Act. The Convention Center was created by the laws of the State of New Jersey. The Convention Center manages and operates Atlantic City's Con- vention Hall (Convention Hall). II. THE DISPUTE A. Background and Facts of Dispute The Convention Center leases its premises to show managers for trade shows. A show manager signs a contract with the Convention Center agree- ing to comply with rules and regulations concern- ing the use of the premises, including the use of the Convention Center's service desk to obtain carpen- ters to perform certain work. The show manager contracts with exhibitors who provide products to be displayed and with a show decorator who ar- ranges for freight delivery, furniture rental, and booth construction. In the early 1950s displaymen did most of the booth erection. Exhibitors used prefabricated dis- plays infrequently. When prefabricated displays became common in the 1950s, carpenters erected and dismantled prefabricated displays. For carpen- try services, the Convention Center charged show decorators the carpenters' hourly wage rates plus an extra hourly charge to obtain revenue for the Convention Center. From 1957 to the early 1980s carpenters performed the work exclusively. In the 1980s, some show decorators employed displaymen directly for this work to avoid the Convention Center's service desk fee for the use of the carpen- ters. The Convention Center, although not party to a written agreement with Carpenters Local 623, paid carpenters the wage rates, benefits, and area pen- sion contributions provided in the area Building Contractors Association agreement from 1974 through 1 May 1983. On 1 May 1983 the Conven- tion Center and Carpenters Local 623 agreed to be bound by the Building Contractors Association agreement, which included jurisdiction for carpen- ters over "the handling and installation of all pre- 274 NLRB No. 14 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fabricated, precut and modular structures." On 18 October 1983 the Convention Center and Carpen- ters Local 623 signed a contract governing the terms and conditions of employment of carpenters at the Convention Hall. The contract codified the past practice and reiterated that carpenters would perform the "erection and dismantling of display[s]." In the early 1980s, when show decorators em- ployed displaymen to do the disputed work, Car- penters Local 623 objected. No mutual agreement was reached. AES, McColl's, and I & D entered into initial contracts with Displaymen Local 1447 on 1 April 1982, 16 March 1981, and 17 January 1983, respectively. The contracts provide for dis- playmen to erect and dismantle prefabricated dis- plays. On 23 March 1983 displaymen were installing a prefabricated display at the Convention Hall for AES. A Carpenters Local 623 steward telephoned his business agent Robert Boyce, who came to the Convention Hall. Boyce arrived carrying picket signs which he contends were for a dispute at an area restaurant. No one could identify the wording on the signs. Displaymen Local 1447 Business Agent William Toland testified Boyce told him that Carpenters Local 623 was going to picket the entire Convention Hall unless Toland removed the displaymen. Toland and another witness testified that Howard Persina, manager of the Convention Hall, told them he had heard Carpenters Local 623 had threatened to picket. On 23 December 1983 Displaymen Local 1447 Business Manager Ed Ireland telephoned Persina and told him that he would put up a picket line if displaymen could not perform the disputed work for show decorators with whom his Union had agreements . Persina testified that a show manager (United Exposition Services) telephoned him about receiving a similar threat from a Displaymen Local 1447 representative. B. Work in Dispute The disputed work involves the installation and dismantling of prefabricated display booths for pri- vate contractors at the Convention Hall. C. Contentions of the Parties The Convention Center and Carpenters Local 623 contend that the disputed work should be awarded to Carpenters Local 623-represented em- ployees on the basis of the Convention Center's preference , past practice, Carpenters Local 623's collective-bargaining agreement, relative skills, economy and efficiency of operation , and area practice . Carpenters Local 623 also urges that in- dustry practice favors awarding the disputed work to employees it represents. Displaymen Local 1447 argues that the disputed work should be awarded to Displaymen Local 1447-represented employees on the basis of the preferences of AES, McColl's, and I & D; its col- lective-bargaining agreements and constitution; economy and efficiency of operation; past practice of AES, McColl's, and I & D; and area past prac- tice. D. Applicability of the Statute As discussed above, in March 1983 Carpenters Local 623 Business Agent Boyce arrived at the Convention Hall in response to a complaint that displaymen were performing disputed work. Ac- cording to Displaymen Local 1447 Business Agent Toland, Boyce threatened to picket the Convention Hall unless the displaymen were taken off the dis- puted work. Persina told Toland and another wit- ness he heard that Carpenters Local 623 had threatened to picket.2 In December 1983 Display- men Local 1447 Business Manager Ireland threat- ened to picket the Convention Hall if displaymen could not perform the disputed work for show decorators having written agreements with his Union. Although the Convention Center is not an employer under Section 2(2) of the Act, Section 8(b)(4)(D) of the Act provides that a union violates the Act when it threatens a "person" in order to force an employer to assign work to employees represented by one labor organization rather than another. In this case, the Convention Center was the "person" threatened. We find reasonable cause to believe that viola- tions of Section 8(b)(4)(D) have occurred and that there exists no agreed method for voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that the dis- pute is properly before the Board for determina- tion. E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative 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 bal- ancing the factors involved in a particular case. 2 Because the Board must only find reasonable cause , a conflict in testi- mony does not preclude the Board from determining a 10(k) dispute La- borers Local 334 (C H Heist Corp), 175 NLRB 608 (1969) CARPENTERS LOCAL 623 (ATLANTIC EXHIBIT) Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 ( 1962). The following factors are relevant in making the determination of this dispute. 1. Certifications and collective-bargaining agreements No party claims there are certifications applica- ble to the work in dispute. Carpenters Local 623 contends that its contract with the Convention Center specifies that the dis- puted work falls under the Carpenters ' jurisdiction. The contract modifies the past practice of the con- tracting parties. Displaymen Local 1447 similarly contends that its contracts with AES, McColl's, and I & D give it jurisdiction over the disputed work. We conclude that the collective -bargaining agreements favor an award of the disputed work to neither group of employees. 2. Past practice Displaymen erected and dismantled booths in the early 1950s before the frequent use of prefabricated displays. From at least 1957 to the early 1980s car- penters erected and dismantled prefabricated dis- plays exclusively . Beginning in the early 1980s cer- tain show decorators used both carpenters and dis- playmen to perform the disputed work . Except for one instance where the Unions reached a special agreement, Carpenters Local 623 complained whenever it knew that displaymen were used to perform disputed work. Because Carpenters Local 623 performed the work for over 20 years until vir- tually the time of the instant dispute, we find this factor favors awarding the work to employees Car- penters Local 623 represents. 3. Area practice Carpenters perform the disputed work in con- vention halls in Philadelphia, Washington, D.C., and New York. Area practice, therefore, favors awarding the disputed work to employees Carpen- ters Local 623 represents. 4. Industry practice In addition to performing the work in Atlantic City and the surrounding area , carpenters perform the work in Cleveland and Chicago. Displaymen perform the disputed work in Anaheim , Los Ange- les, Las Vegas, Dallas, Miami, and Providence. Teamsters perform the disputed work in Boston. Accordingly, industry practice favors awarding the disputed work to neither group of employees. 73 5. Relative skills Prefabricated displays can be complex , with two stories and stairways. The displays may be pack- aged in numerous shipping crates, which may re- quire carpentry repair after repeated use. Erection and dismantling of the displays involves the use of nuts, bolts, screwdrivers, pliers, handtools, and power machinery . The tools and equipment are conventionally used by carpenters rather than dis- playmen . We therefore conclude that this factor favors awarding the disputed work to employees Carpenters Local 623 represents. 6. Economy and efficiency of operation Displaymen Local 1447's contracts and Carpen- ters Local 623 's contract provide for a guaranteed minimum of 4 hours' pay and 2 hours ' pay, respec- tively. The displaymen can be used to perform painting or other types of display work at the Con- vention Hall if they run out of erection work before their 4 hours are completed . They can also be used during this time to work at hotel casinos nearby where the show decorators have other work to be performed The carpenters can be used to perform assorted carpentry repair around the Convention Hall and in its carpentry shop if they run out of erection work before their 2-hour mini- mum is met. Displaymen have more experience in positioning booths to avoid overlapping of exhibits . They can perform touchup paint work that may be required on exhibits. Carpenters can repair crates in the event of damage in transit . They can perform other carpentry work in the Convention Hall and are more experienced and familiar with the Convention Hall's operations. We find different economy and efficiency rea- sons favoring both groups of employees , and con- sequently this factor is inconclusive. 7. Employer preference AES, McColl's and I & D prefer assigning the disputed work to displaymen ; the Convention Center prefers assigning the work to carpenters. The Convention Center maintains control over the premises where the disputed work is per- formed . The contract between the Convention Center and the show contractor specifies that car- pentry work be performed by carpenters hired through the Convention Center's service desk. The show decorators have attempted to use displaymen to avoid the service desk fee for using carpenters knowing that the Convention Center wanted and expected carpenters to perform the disputed work. Under these circumstances , we find the Convention 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Center's preference is entitled to greater weight than that of AES, McColl's, and I & D. Accord- ingly, this factor favors awarding the disputed work to the employees Carpenters Local 623 rep- resents. Conclusions After considering all the relevant factors, we conclude that employees represented by Carpenters Local 623 are entitled to perform the work in dis- pute. We reach this conclusion relying on past practice, area practice, relative skills, and the Con- vention Center's preference. In making this deter- mination, we are awarding the work to employees represented by Carpenters Local 623, not to that Union or its members. The determination is limited to the controversy that gave rise to this proceed- ing. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. Employees represented by United Brother- hood of Carpenters and Joiners of America, Local 623 of Atlantic County are entitled to perform the installation and dismantling of prefabricated display booths for private contractors at Atlantic City's Convention Hall. 2. Sign, Pictorial and Displaymen, Local 1447, International Brotherhood of Painters and Allied Trades is not entitled by means proscribed by Sec- tion 8(b)(4)(D) of the Act to force the Atlantic City Convention Center Authority or private con- tractors to assign the disputed work to employees represented by it. 3. Within 10 days from this date, Sign, Pictorial and Displaymen, Local 1447, International Broth- erhood of Painters and Allied Trades shall notify the Regional Director for Region 4 in writing whether it will refrain from forcing the Employer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.