Artcraft Displays, Inc.; Freeman Decorating Company; C.D. Displays, Inc., d/b/a Freeman Design & Display Company; Transamerica Convention Service, Inc.; United Display, Inc.

National Labor Relations Board - Board DecisionsJul 23, 1982

262 N.L.R.B. 1233 (N.L.R.B. 1982)

ARTCRAFT DISPLAYS, INC. Artcraft Displays, Inc.;' Freeman Decorating Com- pany; C.D. Displays, Inc., d/b/a Freeman Design & Display Company;I Transamerica Convention Service, Inc.; United Display, Inc. and Independent Decorators & Exhibit Employ- ees Alliance Local No. 1, Petitioner. Case 23- RC-5049 July 23, 1982 DECISION AND DIRECTION OF ELECTIONS BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Robert G. Levy II on January 7, 8, 11, and 12, 1982. Follow- ing the hearing, and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Di- rector for Region 23 transferred this case to the Board for decision. Thereafter, Freeman Decorat- ing Company and C.D. Displays, Inc., d/b/a Free- man Design & Display Company, the Petitioner, and Sign and Pictorial Painters, Local Union No. 550, affiliated with the International Brotherhood of Painters and Allied Trades, an Intervenor, 2 filed briefs with the Board. 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 Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error.3 They are hereby af- firmed. Upon the entire record in this case, the Board finds: 1. The Employers are engaged in various aspects of the convention and decorating business in Hous- ton, Texas. Artcraft Displays, Inc., and Freeman Design & Display Company essentially fabricate convention exhibits and displays. Freeman Deco- rating Company supplies. labor, furniture, tables, carpeting, drapery, and other materials for trade shows and conventions. Transamerica Convention i The names of these Employers appear as amended at the hearing. I Carpenters District Council of Houston & Vicinity is also an Interve- nor in this proceeding. a Prior to the hearing, the Sign and Pictorial Painters filed a motion to dismiss the petition on the basis that the Petitioner does not have a sui- cient showing of interest, that the Petitioner is not a labor organization, and that there is a contract bar. The Sign Painters has not adduced any evidence, or even put forth any argument, to support its allegation that the Petitioner lacks a sufficient showing of interest. Accordingly, we deny that aspect of the Sign Painters motion. The other aspects of the motion are identical to issues addressed herein and are likewise denied for reasons subsequently stated. 262 NLRB No. 151 Service, Inc., and United Display, Inc., are also en- gaged in the business of convention decorating. During the 12-month period preceding the hear- ing, Artcraft Displays, Inc., performed services valued in excess of $50,000 or customers located outside the State of Texas. During the same period, C.D. Displays, Inc., d/b/a Freeman Design & Dis- play Company and Freeman Decorating Company each purchased goods valued in excess of $50,000 from firms located outside the State of Texas. During its past fiscal year, Transamerica Conven- tion Service, Inc., received revenues in excess of $50,000 directly from customers located outside the State of Texas. During its past fiscal year, United Display received revenues in excess of $50,000 di- rectly from customers located outside the State of Texas. We find, therefore, that the Employers are engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The parties present at the hearing stipulated, and we find, that the Sign Painters is a labor orga- nization as defined in the Act. The record shows that the Petitioner is an orga- nization in which employees participate and which exists for the purpose of representing employees in collective bargaining. We find, therefore, that the Petitioner is a labor organization within the mean- ing of Section 2(5) of the Act. The Sign Painters and Freeman Decorating and Freeman Design maintain that the Petitioner should be disqualified from representing the em- ployees in the petitioned-for unit on the basis that there is a conflict of interest between the Petitioner and the employees it seeks to represent. This argu- ment is based upon their contention that the Peti- tioner is under the influence of leadmen who are supervisors as defined by Section 2(11) of the Act. They rely primarily upon the Board's decision in Sierra Vista Hospital, Inc. 4 There we recognized the potential conflict of interest between employees and a union in which supervisors participate, and we found that an employer may lawfully refuse to bargain with such a union if it establishes that the danger of a conflict of interest is clear and present. s The employees in the petitioned-for unit deco- rate convention and meeting halls for conventions, trade shows, and the like, and also construct var- ious types of exhibits that are used in connection with those functions. For the sake of convenience, those employees will sometimes be collectively re- ferred to as "decorators." Each Employer has a ' 241 NLRB 631 (1979). s Id. at 633. 1233 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complement of regular, full-time decorators. The decorating business in Houston is seasonal, with the consequence that each Employer, except for United Display, hires part-time decorators as they are needed. To obtain those employees, the Em- ployers contact the Sign Painters, which maintains a referral list. The Sign Painters refers decorators to the Employers on the basis of seniority. The Employers, however, choose part-time leadmen. The part-time decorators work with full-time deco- rators, do the same work, receive the same wages, and are directed by the same leadmen who direct the full-time decorators. In November and December 1981, Jo Ann Tipton and Gary Boyd began to solicit authoriza- tion cards for the Petitioner. Tipton had been em- ployed by the Sign Painters until February 27, 1981. Boyd, a leadman who has been referred for work to one of the Employers by the Sign Paint- ers, works mostly for Freeman Decorating Compa- ny. The Petitioner held its first meeting on Decem- ber 19, 1981, when a constitution and bylaws were adopted, and interim officers were elected. Tipton was elected business agent, and Boyd was elected treasurer. Altogether, 12 officers were elected, 5 of whom may work as leadmen. The Employers have sole discretion in determin- ing who will be a leadman. There are different cat- egories of leadman. Some are permanently em- ployed by the Employers; others are hired from the Sign Painters referral list when work is availa- ble. The latter do not always act as leadmen, but may act as journeyman decorators or exhibit build- ers. Finally, some leadmen are trainees and func- tion as leadmen approximately 15 percent of the time. Even when serving as leadmen, the employ- ees spend a substantial amount of time actually doing the work with the other decorators on the crew. The Employers provide the leadmen with floor plans and instructions. Generally, the Employers' foremen assign the decorators to work with the leadmen. Only on rare occasions does a leadman directly contact the Sign Painters for decorators. The Employers cannot request specific decorators from the Sign Painters, and the Sign Painters would not honor such a request. If an Employer is dissatisfied with a particular employee, it so notifies the Sign Painters by letter, and that employee will not be referred to the Employer again. The leadmen direct their crews in accordance with the floor plans and instructions. They report any problems to the Employer or to a supervisor. As the job nears completion, leadmen either con- tact the Employer to determine if the employees should be transferred, or lay off employees on the basis of seniority. Thus, seniority, which is deter- mined by the Sign Painters, governs both hiring and laying off. One leadman who testified at the hearing stated that he has never sent an employee back to the hiring hall, and that if an employee en- gaged in "blatant" misconduct, he would report such employee to the Employer. The other lead- man who testified stated that he would lay off an employee out of the order of seniority if the em- ployee was lazy. He does this very rarely, howev- er, and could not recall a single instance in 1981. An executive employed by Freeman Decorating Company testified that leadmen had the authority to lay off an employee for misconduct such as rudeness to customers, drinking, tardiness, or poor work. Leadmen are responsible for reviewing and ini- tialing timecards, and for preparing a form that lists any changes requested by the customer and the materials used in the job. Leadmen have no( author- ity to grant promotions or wage increases, or to re- solve grievances. They were covered by now-ex- pired collective-bargaining agreements between the Sign Painters and the Employers. We find that leadmen are not supervisors. Al- though they have authority to direct their crews, they may do so only in accordance with instruc- tions and floor plans furnished by the Employers. Thus, directing the crews is essentially routine, and does not entail substantial independent judgment.s Leadmen report any problems to the supervisors. They have little or no authority over hiring em- ployees onto their crews. Although they have au- thority to lay off employees, this too is mechanical and routine since layoffs are governed by seniority. The leadman who testified that he had laid off em- ployees out of order of seniority was unable to recall a single instance in which he had done so.? Similarly, the testimony of the executive employed by Freeman Decorating Company that leadmen can discharge employees for egregious misconduct was conclusionary and not supported by even a single example. A discharge occurs when an Em- ployer notifies the Sign Painters by letter that a particular employee should no longer be referred to that Employer. There is no evidence that lead- men have a role in instigating or preparing those letters. Finally, the leadmen's responsibility to e See, e.g., General Thermo, Inc., 250 NLRB 1260, 1264 (1980), en- forcement denied on other grounds 664 F.2d 195 (8th Cir. 1981); John Cuneo of Oklahoma, Inc., 238 NLRB 1438 (1978), enfd. 106 LRRM 3077 (10th Cir. 1980). 7 Even if leadmen do possess this authority, it is so restricted and exer- cised so sporadically that it is not an indicium of supervisory status. The Washington Post Company, 254 NLRB 168 (1981); Dad's Foods, Inc., 212 NLRB 500, 501 (1974); Willis Shaw Frozen Food Express Inc., 173 NLRB 487, 488 (1968). 1234 ARTCRAFT DISPLAYS. INC. review and initial timecards and to prepare other paperwork is merely routine and clerical, and is not indicative of supervisory status.8 We also note that leadmen have historically been covered by the col- lective-bargaining agreements between the Sign Painters and the Employers. Our finding that lead- men are not supervisors obviates the contention that there is a conflict of interest between the Peti- tioner and the employees in the petitioned-for unit. 9 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employers within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. The Sign Painters entered into collective-bar- gaining agreements with each of the Employers. For the sake of convenience, those contracts will be referred to as the decorators' agreements. The decorators' agreements each expired on March 6, 1982. The petition was filed on December 8, 1981, and thus there is no contract bar with respect to the decorators' agreements.10 There is another agreement, however, called the tripartite agreement. This agreement was entered into by the Sign Painters, the Carpenters, Freeman Decorating, Transamerica, and United Exposition Service Company, Inc."1 The Sign Painters, the Carpenters, and the Freeman companies contend that the tripartite agreement bars the petition in this case. The tripartite agreement became effective on September 1, 1981, and is due to expire on Septem- ber 1, 1984. It applies to conventions and trade shows where employees represented by the Car- penters are employed in decorating and exhibit building work. The tripartite agreement sets the terms and conditions of employment for those car- penters. It also seeks to eliminate jurisdictional dis- putes between the Carpenters and the Sign Paint- ers.12 Pursuant to the tripartite agreement, carpen- ters perform work such as uncrating, erecting, dis- mantling, and re-crating fabricated displays; han- dling and erecting hardwall booths, pegboards, sheetrock, and specially built booths; and building * John Cuneo of Oklahoma, Inc.. supra at 1439. · Jo Ann Tipton, the Petitioner's business agent, was discharged from her employment at the Sign Painters, and Freeman Decorating and Free- man Design maintain that the purpose of the Petitioner is merely to "re- taliate" against the Sign Painters for this discharge. This allegation is to- tally unfounded. There is not a scintilla of evidence that the Petitioner does not intend to represent the decorators fairly and to operate solely in their interest. to General Cable Corporaion, 139 NLRB 1123 (1962). i t United Exposition is engaged in the same type of work as the other Employers. It The tripartite agreement was at issue in Carpenters Local Union No. 213 and Carpenters District Council of Houston and Vicinity (Brede, Inc. of Houston), 202 NLRB 776 (1973), a proceeding under Sec. 10(k) of the Act which resolved a jurisdictional dispute between the Sign Painters and the Carpenters. and installing platforms, walls, and other items. The tripartite greement reserves other work for employees represented by the Sign Painters. This work includes marking lines on exhibit floors; drap- ing booths with cloth; installing aisle carpets and other items outside the exhibit booth areas; paint- ing, handling, and hanging signs; and delivering furniture. The tripartite agreement provides that employees represented by the Sign Painters may be employed to do the work designated for Carpen- ters-represented employees. When they do that work, the tripartite agreement provides that they receive the carpenters' wage rate. Employees rep- resented by the Sign Painters do carpenters' work very infrequently. We find that the tripartite agreement does not bar the petition. Since decorators do the carpentry work set forth in the tripartite agreement only very rarely, it follows that the tripartite agreement does not set substantial terms and conditions of employ- ment with respect to decorators. Rather, those terms and conditions were set by the now-expired decorators' agreements. It is those agreements, not the tripartite agreement, which chartered the course of the decorators' bargaining relationship with the Employers, and to which the parties looked for guidance in their day-to-day problems. Also, it appears that, even when decorators per- form carpenters' work pursuant to the tripartite agreement, only their wages are set by that con- tract. The decorators' agreements supplied all of the other terms and conditions of employment.'3 It has long been settled that a collective-bargaining agreement will not constitute a bar if it is limited to wages only. 14 Finally, we note that the decorators' agreements terminated on March 6, 1982, while the tripartite agreement is due to expire on September 1, 1984. The parties have the ability to continue to execute indefinitely these contracts, expiring on dif- ferent dates, with the consequence that a petition would never be timely if we found the tripartite agreement to be a bar. This is surely incompatible with the Act's goal of insuring that employees have maximum freedom in choosing a collective- bargaining representative. 4. The Petitioner seeks an election in a unit of all full-time convention and decorating employees, and temporary convention and decorating employees with over 1,000 hours' seniority, employed by the Employers in their Houston, Texas, operations. The Petitioner maintains that there is a multiem- 13 Cecil Guinn, the Sign Painters business manager and financial secre- tary, testified that even a jurisdictional dispute between the Carpenters and the Sign Painters would be resolved pursuant to the grievance proce- dures set forth in the decorators' agreements. .4 Appalachian Shale Products C., 121 NLRB 1160, 1163-64 (1958). 1235 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer bargaining unit which is an appropriate unit in which to conduct the election. All of the other parties contend that there is no multiemployer bar- gaining unit. The Employers met separately with the Sign Painters when previous contracts were-negotiated. They also met separately to negotiate wage reopen- ers in 1977 and 1978. When the decorators' agree- ments were negotiated in 1979, the Employers met together as a group with the Sign Painters. Initial- ly, Keith Kennedy, a vice president at Freeman Decorating, was the spokesman for the Employers. Kennedy was replaced in this role by V. Scott Kneese, attorney for the two Freeman companies. Kneese stated to the representatives of the other Employers that he would be the spokesman in the negotiations, but that he represented only the two Freeman companies and that, should any conflict arise, his obligations, responsibilities, and loyalties rested solely with the Freeman companies. When Kneese first met with the Sign Painters negotiators, he similarly informed them that, although he was the spokesman of the Employers, the Employers were not bargaining as a multiemployer association. During negotiations, a representative of at least one other Employer occasionally acted as spokesman. Representatives of other Employers participated in the negotiations, and they could and did take posi- tions different from those put forth by Kneese. When the parties finally reached agreement, each Employer entered into a separate contract with the Sign Painters. The recognition clause in each con- tract stated that: The Company recognizes the Union as the collective bargaining agent for all convention and decorating employees, including Exhibit Journeymen, Exhibit Helpers, Sho-card Writ- ers, Junior Helpers and Seamstresses employed by the Company only at its Houston, Texas operations, excluding office clerical employees, guards, watchmen and supervisors as defined in the National Labor Relations Act, as amended. We find that there is no multiemployer unit. Such a unit exists only where employers indicate an unequivocal intent to be bound as a group for collective-bargaining purposes.'5 Here, in contrast, the Employers clearly manifested an intent not to be bound as a group. There is no history of mul- tiemployer bargaining.s6 And, during the 1979 ne- '" Van Berden Company. etc., 154 NLRB 496, 499 (1965). L' "[T]o establish a claim for a broader unit a controlling history of collective bargaining on a broader basis or agreement of the parties is necessary." Cab Operating Corp., 153 NLRB 878, 879-880 (1965). gotiations, Kneese clearly made known to all par- ticipants that the Employers were not bargaining as a group at that time either. Representatives of the other Employers also actively participated in the negotiations. Finally, the Sign Painters and each Employer en- tered into separate contracts that contained recog- nition clauses stating that each individual Employer recognized the Sign Painters as the exclusive repre- sentative of its employees. We therefore reject the Petitioner's contention that there is a multiem- ployer bargaining unit, and we find that single-em- ployer units are appropriate. 17 Accordingly, we find that the following units constitute units appro- priate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time convention and decorating em- ployees employed by Artcraft Displays, Inc., at its Houston, Texas, operations, and those temporary convention and decorating employ- ees with over 1,000 hours' seniority currently working, or available for work and who appear on the November 1981 seniority list of Sign and Pictorial Painters, Local Union No. 550, a/w International Brotherhood of Paint- ers and Allied Trades, excluding office clerical employees, guards, watchmen, and supervisors as defined by the Act. All full-time convention and decorating em- ployees employed by Freeman Decorating Company, at its Houston, Texas, operations, and those temporary convention and decorat- ing employees with over 1,000 hours' seniority currently working, or available for work and who appear on the November 1981 seniority list of Sign and Pictorial Painters, Local Union No. 550, a/w International Brotherhood of Painters and Allied Trades, excluding office clerical employees, guards, watchmen, and su- pervisors as defined by the Act. All full-time convention and decorating em- ployees employed by C.D. Displays, Inc., d/b/a Freeman Design & Display Company, at its Houston, Texas, operations, 'and those temporary convention and decorating employ- ees with over 1,000 hours' seniority currently working, or available for work and who appear on the November 1981 seniority list of Sign and Pictorial Painters, Local Union No. 550, a/w International Brotherhood of Paint- 17 At the hearing, Freeman Design moved to be dismissed on the ground that the Petitioner does not seek to represent exhibit building em- ployees. The Petitioner does in fact seek to represent those employees, and they share a community of interest with the decorators. Accordingly, we include them in the units and deny Freeman Design's motion. 1236 ARTCRAFT DISPLAYS, INC. ers and Allied Trades, excluding office clerical employees, guards, watchmen, and supervisors as defined by the Act. All full-time convention and decorating em- ployees employed by Transamerica Conven- tion Service, Inc., at its Houston, Texas, oper- ations, and those temporary convention and decorating employees with over 1,000 hours' seniority currently working, or available for work and who appear on the November 1981 seniority list of Sign and Pictorial Painters, Local Union No. 550, a/w International Brotherhood of Painters and Allied Trades, excluding office clerical employees, guards, watchmen, and supervisors as defined by the Act. All full-time convention and decorating em- ployees employed by United Display, Inc., at its Houston, Texas, operations, and those tem- porary convention and decorating employees with over 1,000 hours' seniority currently working, or available for work and who appear on the November 1981 seniority list of Sign and Pictorial Painters, Local Union No. 550, a/w International Brotherhood of Paint- ers and Allied Trades, excluding office clerical employees, guards, watchmen, and supervisors as defined by the Act. 5. The parties disagree regarding the formula to be used in determining which employees are eligi- ble to vote in the elections. The convention and trade show business in Houston is seasonal. The busiest time of the year is the first two quarters of the calendar year, and the peak occurs in the second calendar quarter. The gist of the problem in devising an eligibility formula here involves ex- tending the voting franchise to the part-time em- ployees who are hired from the Sign Painters refer- ral list. The Petitioner proposes a formula which yields the yearly average number of hours worked by each part-time employee. The Petitioner would presumably include all part-time employees who have worked more than this average. The Freeman companies advocate a formula based upon the one used in Manncraft Exhibitors Services, Inc., 212 NLRB 923 (1974). The employer in Manncraft was engaged in essentially the same type of business as are the Employers in this case. The Manncraft for- mula included all employees who worked a mini- mum of 15 days in the calendar quarter preceding the eligibility date. The Freeman companies would modify the formula so that it applies only to the second quarter of the 1982 calendar year, which is the peak of the Employers' busy season. The Sign Painters proposes a formula that would include part-time employees who were employed by an Employer on at least two show jobs for a minimum of 40 working hours during 1981. Alternatively, the Sign Painters seeks a formula that would in- clude part-time employees who worked at least 15 days during the first two calendar quarters of 1981. We find that the formula suggested by the Free- man companies is the most equitable. Promulgation of an eligibility formula for the part-time employ- ees depends on a careful balancing of the factors of length, regularity, and currency of employment giving due regard for the industry involved. The Employers are busiest during the first two calendar quarters, and particularly during the second quar- ter, and accordingly the greatest portion of part- time decorators are employed during that period. In cases involving year-round operations with a fluctuating need for extra employees, the Board has found it equitable to include in the unit, on the basis of available records of employment, all extra employees who had worked a minimum of 15 days in the calendar quarter preceding the eligibility date, reasoning that devoting that much time to unit work evidenced a substantial and continuing interest in the unit." s Such employees have a rea- sonable expectancy of reemployment, and therefore share a community of interest with the regular, full-time employees. We adopt that formula here, modified so that it applies to the second calendar quarter of 1982, the Employers' busiest season. As modified, the formula will include only part-time decorators with enough seniority so that they have a reasonable expectation of reemployment and share a community of interest with the full-time employees in the units. The part-time employees eligible to vote are thus those who have worked for a minimum of 15 days during the second calen- dar quarter of 1982. Accordingly, we shall direct elections in the above-described units. [Direction of Elections' 9 and Excelsior foot- note2 0 omitted from publication.] ' See, e.g., Manncraft Exhibitors Services, Inc.. supra: Scoa. Inc, 140 NLRB 1379 (1963); Motor Transport Labor Relations Inc., 139 Nl RB 70 (1962). 19 At the hearing, the parties raised an issue regarding the proper method for conducting the balloting. It was suggested, for example, that balloting by mail might be appropriate in the circumstances of this case. The Board is not in a position to structure the actual mechanics of the balloting, and so we will let the Regional Director for Region 23 deter- mine all aspects of the balloting procedure, 20 The pan-time employees eligible to vote are those who have worked in a unit for a minimum of 15 days during the second calendar of 1982. 1237