New York Dist. Council No. 9, Painters, AFL-CIO

National Labor Relations Board - Board Decisions

Jun 8, 1970

183 N.L.R.B. 78 (N.L.R.B. 1970)

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