Service Employees Local 44 (Sir Francis Drake)

SERVICE EMPLOYEES LOCAL 44 (SIR FRANCIS DRAKE) Window Cleaners Union Local 44 , Service Employ- ees International Union, AFL-CIO and Sir Francis Drake Hotel . Case 20-CD-620 28 February 1985 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The charge in this Section 10(k) proceeding was filed 17 July 1984 by Sir Francis Drake Hotel (the Hotel), alleging that the Respondent, Window Cleaners Union Local 44, Service Employees Inter- national Union, AFL-CIO (Local 44) violated Sec- tion 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Hotel to assign certain work to em- ployees it represents rather than to the unrepresent- ed employees of the Hotel. The hearing was held 7 August 1984 before Hearing Officer Lucile L. Rosen. The Board affirms the hearing officer's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. 1. JURISDICTION The parties were unable to reach a stipulation on whether the Hotel, operated by Hotel Systems International (HSI), is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The record shows that the Hotel is a California corporation with its principal place of business in San Francisco, California. It is engaged in operat- ing a hospitality hotel with one restaurant and two bars. During the past calendar year, its business op- erations generated gross revenues in excess of $2 million and, during the same period, it received goods and materials valued in excess of $50,000 di- rectly from points located outside the State of Cali- fornia. We find that the Hotel is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties stipulated, and we find, that Window Cleaners Union Local 44, Service Employees Inter- national Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute On 18 July 1983 HSI purchased the Hotel from Princess International and instituted some oper- ational changes to increase efficiency and reduce costs. Accordingly, on 12 October 1983 HSI can- 501 celed its prior contractual agreement with Lewis and Taylor (contractor), a building maintenance company which provides window washer services and whose employees are represented by Local 44. In December 1983 the cleaning of exterior win- dows at the Hotel, which work had previously been performed by employees represented by Local 44, was assigned to an unrepresented em- ployee of the Hotel. Prior to this assignment, hotel officials met with the contractor's representatives and two union members. William Snider, the Hotel's personnel di- rector, testified that, during this meeting with union members, the contractor's representatives (nonunion members) said that "it would be neces- sary to employ Local 44 window washers because this was a Union town, and if Local 44 Union workers were not employed there would be prob- lems with pickets." In April 1984 hotel officials met twice with Local 44 representatives, but no resolution was reached. Snider testified that, during a meeting with Local 44 representatives, Healey, the Union's attorney, said, "I want the retention of Local 44 window washers." Steven Harper, manager direc- tor of the Hotel, advised Snider to call Jack Crow- ley, who is employed by the Central Labor Coun- cil of San Francisco, because the Union had ap- plied for strike sanction. Snider testified that Crow- ley said that "he would like to see Local 44 window washers in the Sir Francis Drake Hotel." According to Snider, Crowley also said, "You have other Unions in your Hotel, Local 2, 14, and Teamsters who will probably honor any strike sanction." Thereafter, on 17 July 1984, there were pickets at the Hotel. Snider recognized two union mem- bers carrying picket signs which said, "Sir Francis Drake Hotel unfair, the Window Washers Union." Other picket signs made reference to the "Hotel's failure to meet area standards." The same day, a meeting was arranged with Local 44 to discuss the Union's demands. At this meeting, Snider reiterated the options that Local 44's secretary-treasurer Frediani had given to the Hotel. They were to "either sign a contract with a contractor or fire our employee or have him join a Union, which he didn't want to do." Snider asked Jack Miller, the Union's president, if these were the only options available. According to Snider, Miller "said they were and that the pickets would not be removed unless the Union's demands were met." B. Work in Dispute The disputed work involves the cleaning of exte- rior windows at the Sir Francis Drake Hotel, The 274 NLRB No. 71 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work is now performed by an unrepresented em- ployee of the Hotel . Prior to December 1983, the Hotel contracted the work in dispute to Lewis and Taylor, which employs window washers represent- ed by Local 44. C. Contentions of the Parties Neither party filed briefs . At the hearing, how- ever, the Employer contended that an object of the picketing on 17 July 1984 was to acquire the work performed by the Hotel's unrepresented employee for Local 44 members. Furthermore, the Employer contended that the assignment of the disputed work to an in-house employee is more efficient and economical. At the conclusion of the hearing, Local 44 dis- claimed the work and asserted that the picketing was intended merely to preserve jobs already per- formed by its members. Local 44 also stated that picketing would continue allegedly for the sole purpose of protesting the Hotel 's failure to meet "area standards." D. Applicability of the Statute Before the Board can determine a dispute pursu- ant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Sec- tion 8(b)(4)(D) has been violated and that the par- ties have not agreed upon a method for the volun- tary adjustment of the dispute. As set forth in section A above, the Hotel's per- sonnel director, Snider, testified that Local 44 agents claimed a right to the work in dispute. The record shows that the Union demanded that the Hotel sign a contract with a contractor or fire the unrepresented employee or have him join the Union. It is undisputed that the Union demanded that the Hotel employ Local 44 workers, but the record is devoid of evidence that shows that the Union's picketing was to "obtain reemployment" of the employees, represented by the Union, who had once performed the work.' Without ruling on the credibility of the testimony, we find reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred, and that there exists no agreed-upon method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act. We also find the Respondent's disclaimer of the disputed work ineffective. The disclaimer was not made until the conclusion of the 10(k) pro- ceeding and it was coupled with the Union's inten- tion to continue picketing allegedly for the sole purpose of protesting the Hotel's failure to meet ' Electrical Workers IBEW Local 292 (Franklin Broadcasting), 126 NLBR 1212 (1960) area standards. 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 plac- ing the factors involved in a particular case. Ma- chinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are rele- vant in making the determination of this dispute. 1. The Employer's past practice and preference The Employer purchased the Hotel from Prin- cess International on 18 July 1983. As part of its plans to institute operational changes to improve efficiency and reduce costs, the Employer canceled on 12 October 1983 a contractual arrangement en- tered into by Princess International and Lewis and Taylor for window washing services. Inasmuch as only a few months elapsed while employees repre- sented by Local 44 who were employed by Lewis and Taylor performed window washing services for the Employer, we find an insufficient basis for establishing a past practice by the Employer affect- ing the award here. The Employer's preference is to have its in- house employee perform the disputed work, and this preference favors an assignment consistent with the Employer's assignment to its in-house em- ployee. 2. Relative skills No particular skill is necessary to perform the disputed work; therefore, this factor does not favor an award either to Local 44-represented employees or to the Employer's employee. 3. Economy and efficiency of operations The Employer contends that it would be ineffi- cient and impractical to continue to use workers represented by Local 44. The Employer testified that Local 44 workers were not available for emer- gencies. In addition, because the Local 44 repre- sented employees did not work every day, they had to be recalled if the work was not adequately performed, whereas an in-house employee is read- ily accessible. The record also shows that when workers represented by Local 44 performed the SERVICE EMPLOYEES LOCAL 44 (SIR FRANCIS DRAKE) work supervisory difficulties ensued because the employees failed to report their arrival to the hotel superintendent. Therefore, it was difficult for the Employer to control the work performed. Present- ly, by contrast, there are no supervisory problems with the Hotel's employee because he is available for work and on the Employer' s premises at all times. In these circumstances, we find the factor of economy and efficiency of operations favors an award of the disputed work to the Employer's em- ployee. Conclusion After considering all the relevant factors, we conclude that the Hotel's unrepresented employee is entitled to perform the work in dispute. In reach- ing this conclusion, we have relied on the efficien- cy and economy resulting from such an assignment and the Employer's preference with respect to in- house employees. The determination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE 503 The National Labor Relations Board makes the following Determination of Dispute. 1. Employees of Sir Francis Drake Hotel are en- titled to clean the Hotel's exterior windows. 2. Window Cleaners Union Local 44, Service Employees International Union, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Sir Francis Drake Hotel to assign the disputed work to employees represented by it. 3. Within 10 days from this date, Window Clean- ers Union Local 44, Service Employees Interna- tional Union, AFL-CIO shall notify the Regional Director for Region 20 in writing whether it will refrain from forcing Sir Francis Drake Hotel, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination.