New York Dist. Council No. 9, Painters, AFL-CIODownload PDFNational Labor Relations Board - Board DecisionsJun 8, 1970183 N.L.R.B. 78 (N.L.R.B. 1970) Copy Citation 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New York District Council No. 9, Brotherhood of Painters, Decorators and Paperhangers of Amer- ica, AFL-CIO and Strip Clean Floor Refinishing and Painting Corp . Case 29-CD-81 June 8, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed on August 8, 1969, by Strip Clean Floor Refinishing and Painting Corp. (herein referred to as Strip Clean), alleging violations of Section 8(b)(4)(D) by Respondent, New York Dis- trict Council No. 9, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO (herein referred to as Respondent or District Council). A duly scheduled hearing was held before Hearing Officer Steven Fish on various dates from November 12, 1969, until January 9, . 1970. Delta Construction Company (herein referred to as Delta) and the Office of School Buildings , Board of Education of City of New York (herein referred to as Board of Education) were permitted to intervene as parties in interest to the proceeding.' All parties who appeared at the hear- ing were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to ad- duce evidence bearing on the issues. Thereafter, Respondent filed a brief which the National Labor Relations Board has duly considered. 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Hear- ing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record, the Board makes the fol- lowing findings: A. The Facts District Council is a labor organization compris- ing 21 painters' locals and 5 other local unions in the New York City area. It customarily represents painters employed by contractors performing work for the Board of Education and other city agencies. In August 1964, when Delta, a painting contractor in New York, was organized, it signed a collective- bargaining agreement with District Council. The second agreement between the two parties expired on July 31, 1968. Since its formation, Delta has received a number of painting contracts from the Board of Education. During the term of their second bargaining agree- ment , Delta and Respondent had numerous difficul- ties relating to Delta's compliance with the con- tract. The most serious of these difficulties was the alleged failure of Delta to pay all contractual as- sessments due to the joint industry insurance fund. While it appears that settlement was reached as to many of the problems between the parties, the as- sessment delinquency became a continuing, serious problem sometime in 1967. The amount alleged to be due the fund is about $23,000. In addition to the assessments, Delta, by early 1969, had been fined approximately $3,250 by the Joint Industry Board of the Painting and Decorating Industry for various contract violation. Delta continuously has denied the accuracy of the assessments and the validity of the fines. Ada Gloro Durandes is nominally the president and sole owner of Delta; Ada's husband, John Du- randes, is the secretary-treasurer of Delta and acts as its chief executive. In August 1968, Felix Gloro, Ada Durandes' brother, formed the corporation called Strip Clean to engage in the commerical painting business. On about September 11, 1968, Gloro signed a collective-bargaining agreement with Respondent, and Durandes thereafter, as promised, let some subcontracts to Strip Clean. About a week later, Respondent sent a telegram to Strip Clean, voiding the agreement on the asserted ground that Strip Clean was Delta's alter ego. As a result, Delta withdrew the subcontract previously let. On September 9, 1968, Delta's previous contract having expired, Durandes signed a memorandum of agreement on behalf of Delta, agreeing to accept, with applicable modifications, the terms of Respon- dent's master agreement. The testimony is conflict- ing as to whether a new bargaining relationship ever became formalized. Durandes, however, does not contend that Delta was not bound by the Dis- trict Council agreement. In December 1968, District Council, after failing to adjust the contract dispute, declared Delta to be ' Local Union No 7, Affiliated Painters of America, National Organiza- tion of Industrial Trade Unions ( herein referred to as Local 7) was' originally deemed a party in interest, but did not appear at the hearing. It was stipulated by the parties that Local 7 ceased to exist as of the last week of September 1969. 183 NLRB No. 9 NEW YORK DIST . COUNCIL NO. 9, PAINTERS , AFL-CIO "unfair," and withdrew its members from employ- ment with Delta pursuant to a provision of the col- lective-bargaining agreement. The "unfair" declaration was suspended in January 1969, when Delta agreed to cooperate in settling its assessment and fine delinquencies. Between January and June, various hearings, meetings, and conversations for the purpose of settling the dispute were held between Delta, the trustees of the insurance fund, and the members of the Joint Industry Board; on one occasion, officials of the Board of Education were present. Delta continued to employ members of District Council for work on its various Board of Education contracts. On or about May 29, Gloro, on behalf of Strip Clean, signed a collective-bargaining agreement with Local 7. Gloro had not functioned as a paint- ing contractor since District Council had canceled its collective-bargaining agreement with Strip Clean in September 1968 and Delta had withdrawn the subcontracts let to Strip Clean. It appears that thereafter, Gloro, doing business as Strip Clean, began to perform certain painting contracts let to him by Durandes, as discussed below. On June 27, while Delta was working at P.S. 228 in Brooklyn, District Council Business Agent Beard, arrived at the school and told the District Council members working there that Delta had again been declared "unfair," since it owed pay- ments to the welfare and pension fund. As a result, the men left the job. Durandes testified that as he was under pressure to complete work at P.S. 228 before school started in the fall, he subcontracted the work to Strip Clean, on or about June 28. Strip Clean began working at P.S. 228 on June 30, using members of Local 7. Beard retruned to P.S. 228 on June 30. Durandes testified that he was present at the time, and that Beard said that the men working there were not recognized by District Council, and, unless they stopped, he would have the Board of Education throw "us" out. Then, according to Durandes, Beard went to the school's maintenance office where he telephoned Francescani, a Board of Edu- cation official, telling him that the Local 7 em- ployees were not recognized and that unless the work was stopped, the Board of Education would have more problems than it could handle. Fran- cescani testified that he received a call from an unidentified business agent of District Council on June 30.2 Francescani, however, in contrast to the testimony of Durandes, testified that the business 79 agent said that "... Delta had not cooperated and cleared up his [sic] problems with the union and that they [the Union] were going to picket 228 if he was allowed to work." Beard himself testified that he told Francescani that there was "a different local working at 228 and Delta owes money to Dis- trict Council and therefore will be picketed." Later that day, Francescani received a call from Blum, another union official, who confirmed that Respon- dent "had not been able to come to terms with Delta on some of the problems he was having with the Union and they were going to picket at 228, Brooklyn, if he continued to work." On the same day, Durandes called Francescani. The latter told Durandes that Strip Clean would have to stop work immediately. The order was complied with on that day. There followed, on July 1 and 14, a letter and a telegram from District Council to the Board of Education threatening to picket P.S. 228 because of Delta's contract violations. Sometime during July, Blum, a District Council official, had a conversation with Martin, a Board of Education official. While the testimonial accounts as to Blum's mentioning Local 7's nonrecognized status are in essential agreement, it appears from the testimony that Blum's primary complaint was that Delta was using an alter ego, which employed nonrecognized workers, in order to avoid comply- ing with its obligations due District Council, i.e., the previously discussed assessments and fines. Martin, however, told Blum that Local 7's presence made the situation a jurisdictional dispute, and that the Board of Education could not get involved. Strip Clean, meanwhile, continued to adhere to Francescani's June 30 order to halt work. Around the middle of August, in response to District Coun- cil's continued complaints about Delta's contract delinquencies, the Board of Education held a hear- ing at which it approved Strip Clean as a subcon- tractor and gave it permission to resume work at P.S. 228, pending an investigation to determine if Strip Clean was following area standards, especially in regard to wage rates. Strip Clean resumed work on August 18. On September 4, District Council began to picket P.S. 228, the placards reading "Delta Contracting Unfair to D.C. 9, AFL-CIO.. . for Underpayment to Insurance and Pension Funds." The picketing continued until October when the Federal District Court, Eastern Division of New York, acting under Section 10(1) of the Act, enjoined the picketing upon charges filed by Strip Clean alleging violations of Section 8(b)(4)(B) 2 This appears to be the same conversation that Durandes referred to, as Durandes testified that at the end of Beard 's conversation he was given the telephone and spoke to Francescani. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and (D) of the Act 3 Strip Clean eventually stopped working at P.S. 228 on September 26, because of financial difficulties. Apparently, the P.S. 228 pro- ject was the only one of the several Board of Edu- cation contracts held by Delta which Respondent picketed. B. Contentions of the Parties Strip Clean filed the charge under Section 8(b)(4)(D) which led to this proceeding. That charge alleges that since July 1, 1969, Respondent has threatened and coerced the Board of Educa- tion, a "person engaged in commerce," with an ob- ject of forcing or requiring Delta and Strip Clean to assign painting work to members of, or employees represented by, District Council rather than em- ployees represented by Local 7. Despite the fact that Section 8(b)(4)(D) is directed at jurisdictional disputes, and despite the fact that Strip Clean par- ticipated in litigating this 10(k) hearing for 10 days, at the end of the hearing Strip Clean maintained that no jurisdictional dispute existed. Strip Clean appears to rest this position on the following two contentions: (1) that District Council has never made a "true" demand for the painting work; and (2) that District Council's real objective in the picketing was to cause the Board of Education to cancel its contracts with Delta and assign them to some other contractor represented by District Council. While Strip Clean's position could be con- strued as an implied withdrawal of the 8(b)(4)(D) charge, Strip Clean has not formally requested such withdrawal, and we shall proceed on the assump- tion that the charge is still viable. District Council also contends that no jurisdic- tional dispute exists. While it lays claim to the work at P.S. 228 and any other Board of Education con- tracts performed by Delta or Strip Clean, District Council asserts that it never had a dispute with Local 7; that Local 7 has, at any rate, ceased to ex- ist; and that the charge does not mention, and there is not in existence, a "class" of employees demand- ing the disputed work. District Council also con- tends that even if the Board were to find that a ju- risdictional dispute exists, District Council is enti- tled to the claimed work on the basis of its contrac- tual relationship with Delta and its traditional per- formance of such work in the New York City area. C. The Applicability of the Statute Before the Board may proceed with a determina- tion of a dispute prusuant to Section 10(k), it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated.4 That requirement means , among other things, that the Board must find reasonable cause to believe that a true jurisdictional dispute underlies the con- troversy. We said in Pipe Fitter's Local No. 1205 that the issue was whether "there was any real com- petition between unions or groups of employees for work assignments . . ." and, in Highway Truck- drivers & Helpers, Local 107, we said, "Im- plicit in [the directive of the Supreme Court in N.L.R.B. v. Radio & Television Broadcast Engineers Local 1212, IBEW, AFL-CIO, 364 U.S. 573] is the proposition that Sections 8(b)(4)(D) and 10(k) were designed to resolve competing claims between rival groups of employees, and not to arbitrate disputes between a union and an employer where no such competing claims are involved."6 We find, based on the facts discussed above, that the basic objective of District Council's actions in this case was not to lay jurisdictional claim to the painting work, but rather to force Delta to pay the assessments and fines allegedly owed under the contract. Undoubtedly, District Council also desires to have its members perform the painting work which was subcontracted to Strip Clean. There ex- ists , however, no "real competition between groups," as Delta has at all times been willing, and in fact has desired, to have District Council workers do the painting work, and no other group of em- ployees disputes such an assignment . That the con- tract violations, rather than the work assignment, constitute the essential dispute is convincingly in- dicated by District Council's consistent refusal to supply workers to Delta until the alleged debts are settled. Payment of these debts has been District Council's true objective. Where a jurisdictional determination holds out no real hope of resolving the primary dispute between the parties, there is no point in proceeding under Section 10(k). We con- clude, therefore, that there is not present here the situation of the beleaguered employer caught between rival claims of competing unions or groups 'A complaint hearing on the 8(b)(4)(B) violation has since been held, and the Trial Examiner in that proceeding concluded that the picketing, at least in part, had the unlawful objective of causing the Board of Education to cease doing business with Delta and Strip Clean While a few of the fac- tual findings made by the Trial Examiner are somewhat at variance with the evidence as adduced in the present proceeding , none of these factual dif- ferences are material to the decision we reach hereinafter 4 Local 337, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at. (John Perrone Co.), 179 NLRB 909 3 Pipe Fitters Local No 120 (Mechanical Contractors Association of Cleveland, Inc ), 168 NLRB 997 6 Highway Truckdrivers & Helpers, Local 107 (Safeway Stores, Incor- porated), 134 NLRB 1320, 1322 NEW YORK DIST. COUNCIL NO. 9, PAINTERS, AFL-CIO 81 of employees' envisioned by Sections 10(k) and ORDER 8(b)(4)(D) of the Act,' and that it is inappropriate to make any jurisdictional award under Section It is hereby ordered that the notice of hearing is- 10(k). sued in this case be, and it hereby is, quashed. r The few oral statements by District Council officials relating to the non- threats to picket , and the picketing , were based recognized status of Local 7 are, in our opinion , too inconclusive to over- " See Highway Truckdnvers & Helpers, Local 107, etc , (Safeway Stores, come the preponderance of the remaining evidence which unambiguously Incorporated), supra points to the contract dispute as the real item of contention upon which all Copy with citationCopy as parenthetical citation