Local 243, Brotherhood of Painters, Etc.

National Labor Relations Board - Board Decisions

Nov 24, 1959

125 N.L.R.B. 336 (N.L.R.B. 1959)

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of our employees are free to become, remain, or to refrain from becoming or
remaining members in good standing in Teamsters, Chauffeurs & Helpers Local
Union No 79, International Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization
REDWING CARRIERS, INC,
Employer
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material
Local 243, Brotherhood of Painters, Paperhangers and Deco-
rators of America, AFFL-CIO and International Brotherhood
of Painters, Paperhangers and Decorators of America, AFL-
CIO and Richardson Paint Company , Inc. Case No 39-OD-37
November 24, 1959
DECISION AND DETERMINATION OF DISPUTE
STATEMENT OF CASE
This proceeding arises under Section 10 (k) of the Act, which pro-
vides that "Whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4) (D) of
section 8(b), the Board is empowered and directed to hear and deter-
mine the dispute out of which such unfair lalbor practice shall have
arisen "
On April 29, 1959, Richardson Paint Company, Inc, herein called
the Company, filed charges alleging that Local 243, Brotherhood of
Painters, Paperhangers and Decorators of America, AFL-CIO,
herein called Local 243, and International Brotherhood of Painters,
Paperhangers and Decorators of America, AFL-CIO, herein
called International Painters, had engaged in and were engag-
ing in certain unfair labor practices within the meaning of Section
8 (b) (4) (D) of the Act It was charged, in substance, that the Unions
had induced and encouraged employees of Stone & Webster Engineer-
ing Corporation to engage in a strike or concerted refusal to work,
with the object of forcing or requiring Richardson Paint Company,
Inc , to assign certain work to employees who were members of Local
243 rather than to employees who were members of International
Brotherhood of Electrical Workers, AFL-CIO, herein called IBEW
Thereafter, pursuant to Section 10(k) of the Act and Sections
102 79 and 102 80 of the Board's Rules and Regulations, the Regional
Director investigated the charges and provided for an appropriate
hearing upon due notice Hearings were held on June 25 and 26,
1959, at Beaumont, Texas, before Franklin R Sears, hearing officer
125 NLRB No 39
LOCAL 243, BROTHERHOOD OF PAINTERS, ETC. 337
All parties appeared at the hearing and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
adduce evidence bearing on the issues. The rulings of the hearing
officer made at the hearings are free from prejudicial. error and are
hereby affirmed. Briefs were filed by the Company and the
Respondents.
Upon the entire record in this case, the Board makes the following :
FINDINGS OF FACT
1. The Company is a Wisconsin corporation with its main seat at
Baraiboo, Wisconsin. It furnishes services to 22 public utility com-
panies in the central United States from the Great Lakes to the Gulf
of Mexico. The Company's annual revenues from such services exceed
$50,000. We find that the Company is engaged in commerce within
the meaning of the Act.
2. Local 243, the International Painters, and the IBEW are labor
organizations within the meaning of the Act.
3. The dispute :
A. The facts
The Company is engaged in the business of painting energized elec-
trical equipment carrying, supporting, or adjacent to energized con-
ductors of electricity. In addition, the Company paints for public
utilities, buildings, and other nonenergized structures and equipment.
The Company started its operations in 1936. Prior thereto, the paint-
ing of energized equipment of the public utilities was performed by
their employees who were members of the IBEW. For some time
after 1936, the Company cleared its employees through the IBEW.
Subsequently, the Company used members of locals of the Interna-
tional Painters for painting of nonenergized equipment. In 1941,
the Company entered into an arrangement with International Painters
and the IBEW whereby the jurisdictional interests of both Unions
were mutually recognized, and the International Painters established
a special Local 173 in Baraboo, Wisconsin, the main seat of the Com-
pany, to provide for representation of the Company's employees
engaged in painting energized equipment. The electrical painters
joined Local 173 and have been represented by that local under suc-
cessive collective-bargaining agreements from 1941 until January
1958, while the nonelectrical painters, employed by the Company in
various localities, were obtained from regular locals of the Interna-
tional Painters. In 1958 the president of the International Painters
declined to approve a contract between Local 173 and the Company
because the wage rates for the electrical painters were below the rates
paid by other employers. The Company since then has operated
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under an agreement with its electrical painters entered into without
the auspices of any union.
On March 31, 1959, the Company's president, Richardson, went to
Washington, D.C., where he negotiated with an official of the IBEW
a tentative agreement subject to the approval and signature of the
IBEW's president. This tentative agreement recognized the jurisdic-
tion of the IBEW over the electrical painters and provided for its
implementation by local agreements with locals of the IBEW, setting
wage rates and working conditions. On April 1, 1959, the Company
sent to its employees application cards for the IBEW. A number of
these cards were signed by employees of the Company. However, on
the date of the hearing no employee had yet been accepted into
membership by the IBEW. The international president of the
IBEW, moreover, declined to sign the tentative agreement because
of the instant dispute.
In early April 1959, the Company started painting energized equip-
ment of the Gulf States Utility Company at its Neches Power Station
at Beaumont, Texas, a job which the Company had performed periodi-
cally over the preceding years. For this work the Company employed
its regular electrical painters who had been members of the special
painters' Local 173, under Foreman Judd, also a member of Local
173. On April 13, the Company, through the services of Local 243,
hired two local painters, members of Local 243, to point a turbine
which was nonenergized equipment. Judd was also made foreman
over these two local painters, Chambers and Yellott, and received the
higher painter's rates for those portions of his working time spent
supervising them. Chambers, on or about the time of his hire, was
appointed steward on the job by Local 243, and was instructed to
check the union cards of all painters, apparently because there had
been some talk among the members of Local 243, including Business
Agent Hatcher, that the electrical painters used the tools of the paint-
ers' trade and that it was work within the jurisdiction of the Painters'
Union. However, Chambers failed to follow these instructions. On
Thursday, April 23, Business Agent Hatcher appeared at the project,
approached Judd, showed him a Local Trades Council card, and asked
him if he had one of these. When Judd replied in the negative,
Hatcher asked Chambers whether he had checked the cards of the
electrical painters. Chambers admitted that he had not checked any
cards. Hatcher then stated that he was going to "flag," i.e., picket,
the job on the following Monday.
This incident was reported to the Company's Superintendent Haw-
kins, who went immediately to see Hatcher. Hawkins explained to
Hatcher that Judd had a card from Local 173 and that, moreover, the
Company was under contract with the IBEW. Hatcher thereupon
called Business Agent Wolfe of Local 470 of the IBEW and inquired
LOCAL 243, BROTHERHOOD OF PAINTERS, ETC. 339
whether the IBEW had a contract with the Company. In the course
of this conversation Hatcher said that the electrical painters were
using painters' tools and equipment and that "it is his work and he
wanted his job." 1 Wolfe contacted an IBEW representative in Fort
Worth, Texas, and relayed to Hatcher the information that the IBEW
was in the process of signing an agreement with the Company. Wolfe
asked Hatcher to leave the Company alone and Hatcher agreed.
Hatcher then told Hawkins that there would be no picket line on the
following Monday.
On Monday, April 27, Chambers and Yellott reported for work on
the turbine. Contrary to previous procedure, they were ordered by
Foreman Judd to hand-sand rather than power-sand the turbine.
The temperature on the turbine was 110 to 120 degrees, and the men
were furnished as their only protection an. asbestos blanket. At 11
o'clock Chambers and Yellott told Foreman Judd that they were leav-
ing the job because the turbine was too hot. Judd reported this to
Hawkins, who gave permission to continue the remaining work with
power tools, as 90 percent of the work was already completed. Never-
theless, Chambers and Yellott left the job to complain to Business
Agent Hatcher at his office. Hatcher told them that they were wrong
and ordered them to return to the job. When they arrived there,
Judd had by then been instructed by Superintendent Hawkins to
make out their checks, as he considered them to have quit the work
voluntarily. On the same day, Hawkins went to Hatcher to ask for
replacements for Chambers and Yellott. The two men were present
in Hatcher's office and Hawkins gave them their checks. Hatcher
refused to dispatch other painters and stated, according to Superin-
tendent Hawkins 2
It would not do any good because there was going to be a picket
line out there is the morning anyway. . . That picket line is
going up and it didn't have anything to do with these men for
that turbine job. Those guys are out there on the substation
using our tools and equipment and it should be our work.
Hatcher further told Hawkins that he had been advised that the Com-
pany had no collective-bargaining agreement with the IBEW. On
the same afternoon, Hatcher called the office of the international
president's deputy, Echols, that he was going to "flag" the job. He
also requested Echols to check with the international office of the
IBEW whether the latter had a contract with the Company.
On the following day, Tuesday, April 28,1959, Local 243 established
a picket line at the Company's project. The picket sign read as fol-
lows : "Painters Local Union No. 243 protests substandard wages
'Hatcher made a similar remark to IBEW Representative Branch Johnson on a later
occasion.
2 This testimony was not denied by Hatcher who testified at the hearing.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conditions by Richardson Paint Company." On the first day
of the picketing employees of another contractor refused to cross the
picket line. The picketing, however, was generally ignored and
ceased entirely after a few weeks.
On April 30, 1959, Painters' International President Raftery sent
a telegram to Hatcher to the effect that he had been advised that the
IBEW had no contract with the Company. The telegram further
suggested "That you proceed to encourage this firm to recognize
established wages, hours, and conditions of employment." During
the week commencing April 27, 1959, the Painters sent International
Representative Carroll to assist in settling the dispute. Hatcher con-
tacted him and discussed the situation with him.
Contentions of the Parties
The Employer contends that Local 243, with the consent and en-
couragement of the International Painters, engaged in a strike and
picketing because of the conflicting claims of the Respondents and the
IBEW to jurisdiction over the electrical painters.
Local 243 and the International Painters contend that they are not
claiming jurisdiction over the electrical painters, and that the picket-
ing occurred as a protest against substandard wages and working
conditions. The International Painters contends, moreover, that it
did not participate in any manner in the instant controversy.
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 believe that Section 8 (b) (4) (D) has been violated
by the Respondents. In order to conclude that reasonable cause exists,
the Board must find some evidence in the record showing that (a) a
strike or a concerted refusal, or an inducement or encouragement of
employees to engage in a strike or concerted refusal to perform services
for the Employer occurred; and (b) any such action was for purposes
unlawful within the proscription of Section 8(b) (4) (D) of the Act.
It is clear that Respondent Local 243 established the picket line.
The Board has held that the picket line itself constitutes an act of
inducement or encouragement of employees not to perform services for
the picketed employer.' There is also sufficient evidence in the record
to give reasonable cause to believe that the International Painters
.participated in the establishment of the picket line. Local 243's Busi-
ness Agent Hatcher testified that he advised the office of the interna-
tional president on April 27 that a picket line would be established on
the following day, and on April 30, 1959, the president of the Inter-
8 United Brotherhood of Carpenters & Joiners of America, Local Union No. 978, AFL-
CIO, et al. (Markwell & Hartz Contractors ), 120 NLRB 610, 618.
LOCAL 243 , BROTHERHOOD OF PAINTERS, ETC. 341
national Painters by telegram requested Hatcher to encourage the
Company to recognize established wages , hours, and conditions of
employment.4
With respect to the Respondent Union's objective in picketing the
Company, the record shows that in April 1959 members of Local 243,
including Business Agent Hatcher, had discussed the fact that the
electrical painters used the tools of the painters' trade and that it was
work pertaining to the jurisdiction of the Painters. On April 27
Hatcher told Superintendent Hawkins that the picket line was going
up, that it did not have anything to do with Chambers and Yellott,
and that the electrical painters were "using our tools and equipment
and it should be our work." Hatcher also indicated in his conversa-
tions with Business Agent Wolfe of Local 470, IBEW, and Business
Agent Johnson of the Local 1551, IBEW, that the electrical painters
were using the tools and materials of the painters and that it should
be painters' work.
On these facts, and the record as a whole, we are persuaded that
there is reasonable cause to believe that an objective of Local 243's
picketing was the reassignment of work from the Company's electrical
painters, who at that time were not represented by any union, to mem-
bers of Local 243. Such conduct is prohibited by Section 8 (b) (4) (D),
even though the Respondent Unions might have had additional,
legitimate reasons for engaging in it.-'
We find, accordingly, that the dispute involved in this proceeding is
properly before the Board for determination under Section 10(k) of
the Act.
Merits of the Dispute
An employer is free to make work assignments without being sub-
ject to the pressures proscribed by Section 8(b) (4) (D) of the Act,
unless the employer fails to conform to an order or certification of the
Board determining the bargaining representative for employees per-
forming such work, or unless the employer is bound by an agreement
to assign the work in dispute to a respondent union. The Respondents
have no Board order or certification or contract claim to that work.
Accordingly, we find that they are not entitled, by means proscribed
by Section 8 (b) (4) (D), to require the Company to assign the disputed
4 Member Fanning disagrees with his colleagues that there is reasonable cause to be-
lieve that the International Painters was responsible for the picketing. Hatcher did not
testify that he informed the International as to the objective of the picketing ; and the
record shows that in the past the International Painters has on some occasions inter-
vened on behalf of the Company to prevent encroachments of local unions on the jurisdic-
tion of the electrical painters . Member Fanning , therefore , participates in this Decision
and Determination of Dispute only insofar as it pertains to Local 243 . He would quash
the notice of hearing with respect to the International Painters.
6Locai 472, International Laborers Union, Heavy and General Construction , AFL-CIO,
et al. ( Ernest Renda Contracting Company, Inc .), 123 NLRB 1776 ; International Union
of Operating Engineers , AFL-CIO, Local 513 (Missouri Roofing Company), 124 NLRB 937.
535828-60-vol. 125-23
342 DECISIONS'" OF NATIONAL LABOR RELATIONS BOARD
work to members of the Respondent Unions rather than to its own
employees.
By this action, however, we are not to be deemed as making "an
assignment" of the disputed work. Because of the hazardous nature
of the disputed work which should be performed without interference
by jurisdictional conflicts, the Company urges the Board to assign
the work to the IBEW and to recognize that labor organization as the
exclusive bargaining agent of the Company's employees. The'IBEW
never has, nor does it now, represent the Company's electrical painters,
and the international president of the IBEW declines to sign the
tentative agreement with the Company. The IBEW has never been
certified as the bargaining representative. We therefore deny the
Company's request for such an affirmative work award.6
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and the entire record in
this case, the Board makes the following determination of dispute
pursuant to Section 10 (k) of the Act :
1. Local 243, Brotherhood of Painters, Paperhangers and Dec-
orators of America, AFL-CIO, and International Brotherhood of
Painters, Paperhangers and Decorators of America, AFL-CIO, and
their agents, are not and have not been lawfully entitled to force or
require Richardson Paint Company, Inc., to assign the work in dispute
to members of Local 243, rather than to Richardson Paint Company,
Inc.'s, oNvn employees.
2. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Local 243 and International Brotherhood of Paint-
ers, Paperhangers and Decorators of America, AFL-CIO, shall notify
the Regional Director for the Sixteenth Region, in writing, whether
or not they will refrain from forcing or requiring Richardson Paint
Company, Inc., by means proscribed by Section 8(b) (4) (D) of the
Act, to assign the work in dispute to their members rather than to
employees of Richardson Paint Company, Inc.
0In declining to make an affirmative work award we respectfully disagree with the
decision of the United States Court of Appeals for the Third Circuit in N.L.R.B. v.
United Association of Journeymen and Apprentices, etc. (Frank Hake), 242 F. 2d 722.
See Newark & Essex Plastering Co., 121 NLRB 1094.
Ballas Egg Products , Inc. and Amalgamated Meat Cutters and
Butcher Workmen of North America, Local No. 346, AFL-
CIO. Case No. 8-C4-1550. November 25, 1959
DECISION AND ORDER
On July 27, 1959, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above -entitled proceeding , finding that the Re-
125 NLRB No. 46.