Operating Engineers Local 150 (All American)

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 933 (N.L.R.B. 1989)

OPERATING ENGINEERS LOCAL 150 (ALL AMERICAN)
International Union of Operating Engineers, Local
150 and All American Decorating Corporation
d/b/a All American Decorating Service and
Painters District Council No . 14, Party in In-
terest. Case 13-CD-363
September 29, 1989
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
The charge in this Section 10 (k) proceeding was
filed June 4, 1986, by the Employer , alleging that
the Respondent , Operating Engineers , Local 150,
violated Section 8(b)(4)(D) of the National Labor
Relations Act by engaging in proscribed activity
with an object of forcing the Employer to assign
certain work to employees it represents rather than
to employees represented by the Painters District
Council No . 14 (Painters). The hearing was held
June 25 , 1986, before Hearing Officer Margaret B.
Peck.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
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.
I. JURISDICTION
The Company, an Illinois corporation, is a paint-
ing subcontractor in the building and trades indus-
try with its principal place of business in Chicago,
Illinois, where it annually purchased and received
goods and materials valued in excess of $50,000
and during that same period of time received gross
revenues in excess of $50,000. The parties stipulat-
ed, and we find , that the Employer is engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that the Operating Engineers
Local 150 and the Painters District Council No. 14
are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
A. Background and Facts of Dispute
The Employer is a painting subcontractor. In
mid-April 1986 it began work as a subcontractor
with J . W. Halm/Agee Construction Company, the
General Contractor on the Loop El Rehabilitation
' The hearing officer referred the Operating Engineers ' motions to
quash the notice of hearing and to dismiss the charge for lack of compet-
ing claims for the work to the Board for a ruling In view of our findings
below , we shall deny the motions
Although the Painters and their counsel were served with a notice of
hearing , they did not attend the hearing
933
Program , performing certain work at the Quincy
and Wells Street Station . This work consists of re-
moving the old wooden platform to expose the ex-
isting steel for modification , sandblasting and re-
painting the steel structure , and installing a new
wooden platform . The Employer , who employs
about 100 painters , assigned an average of 3 paint-
ers to the Quincy/Wells project . The painters erect
the scaffolding and rig the tarps. One painter sand-
blasts the appropriate surface . The sandblasting
equipment is hooked up to and powered by an air
compressor . While this painter is sandblasting, the
other painters are preparing another surface for
sandblasting, moving scaffolding and tarps , sweep-
ing or moving sand, or painting the exposed steel
surfaces . The compressor, meanwhile , is turned on
at the start of the workday , off at lunchtime, on
again after lunch , and off at day's end . Starting and
stopping the compressor is done by pushing a
button . The painters also check the oil and gasoline
levels in the compressor and fill it with these fuels
as needed . The Employer 's employees, all of whom
are represented by the Painters, perform these tasks
as an incidental part of their jobs. The painters do
not perform other maintenance or repair work on
the compressor , which is serviced by the company
that leases it to the Employer.
On May 27, 1986,2 the Employer 's vice presi-
dent, Samy Hammad, testified that he received a
telephone call from Carl Davis, the Operating En-
gineers' business representative , informing him that
the Employer would have to hire an operating en-
gineer to run the compressor because it was larger
than 150 CFM . 3 Hammad told Davis that the Em-
ployer had a collective -bargaining agreement that
gives the work to the Painters . Davis replied that
he would visit the Employer 's office the next day
with a Local 150 memorandum of agreement and
unless the Employer put an operating engineer on
the compressor, the Respondent would "shut the
job down." The next day , May 28 , Davis, along
with another business representative , Dulkoski, vis-
ited Hammad at the Employer's office . They told
Hammad to sign the memorandum of agreement
and assign an operating engineer to run the com-
pressor and then the Employer would have no
problems . When Hammad refused to sign the
agreement , he was informed by Dulkoski of a side
agreement between the Respondent and the Paint-
ers in which the Painters awarded the operation of
all compressors larger than 150 CFM to the Re-
spondent's jurisdiction. This was subsequently con-
firmed in a telephone call between Hammad and
2 All dates are 1986 unless otherwise noted
' Cubic feet per minute
296 NLRB No. 120
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the president of the Painters Union . Hammad also
testified that he asked Davis and Dulkoski for some
time so that he could contact the Association's at-
torney who drafted the collective-bargaining agree-
ment between the Painters and the Employer's
Painting and Decorating Contractors ' Association.
The following day, May 29 , Dulkoski telephoned
Hammad and asked if the Employer had reached a
decision . Hammad testified that he asked to be
given until the following Monday , but Dulkoski re-
fused and told him that the Employer would re-
ceive a telegram.
On May 30, the Employer received an area
standards telegram from Dulkoski , which included
a statement that the Operating Engineers would
take steps to preserve its area standards . The par-
ties stipulated that the Respondent received a letter
dated May 30 from the Employer 's attorney seek-
ing the basis for its area standards claim . There was
no evidence presented that the Respondent an-
swered the letter.
On June 2, 3, 4, 5, and 9 , the Respondent posted
pickets carrying area standard picket signs at the
Quincy and Wells jobsite .4 The Employer 's paint-
ers refused to cross the picket line and no work
was performed on those dates . Charges were filed
on June 4 and the picketing stopped by June 10, at
which time the Employer 's painters returned to
work . On June 17 the Painters notified the Region-
al Director that it disclaimed any interest in operat-
ing compressors larger than 150 CFM on the
Quincy and Wells jobsite . However , the Employ-
er's employees represented by the Painters contin-
ued to operate the air compressor at the Quincy
and Wells jobsite.
B. Work in Dispute
The work in dispute involves the operation of an
air compressor larger than 150 CFM, used by the
Employer in connection with its sandblasting and
painting work at the Quincy and Wells Street Sta-
tion located in Chicago , Illinois.
C. Contentions of the Parties
The Employer contends that the Respondent has
violated Section 8(b)(4)(D) of the Act by engaging
in area standards picketing for a proscribed object
of forcing the Employer to reassign the disputed
work from the Painters -represented employees to
the Operating Engineers-represented employees
who have claimed jurisdiction over such work.
4 The record reveals that other than Dulkoski s remark to Hammad
that the Employer would be paying an operating engineer less than a
painter to operate the compressor , there was no evidence that the Oper-
ating Engineers investigated the wages and benefits enjoyed by the Paint-
ers-represented employees
The Employer further contends that the disputed
work should be awarded to the Painters -represent-
ed employees on the basis of employer preference,
existing collective-bargaining agreement , efficiency
and economy , area and industry practice, and be-
cause there is no voluntary method of resolving the
dispute . As for the Painters ' disclaimer regarding
the disputed work , the Employer contends that it is
ineffective because the painters continued to per-
form the disputed work and because it did not re-
quire a sacrifice or impose a hardship on the paint-
ers. The Operating Engineers contends that there is
no basis for finding a violation of Section
8(b)(4)(D) because the Painters ' disclaimer has
eliminated any competing claim for the disputed
work . The Operating Engineers claim the work by
virtue of a 1977 memorandum with the Employer's
predecessor which is, it claims, binding on the Em-
ployer . Finally , the Operating Engineers contends
that current Board law regarding the disclaimer of
work by one union , has distorted the purpose of
the statute.
D. Applicability of the Statute
Before the Board may proceed to the determina-
tion of a dispute pursuant to Section 10 (k) of the
Act it must be satisfied that ( 1) there is reasonable
cause to believe that Section 8(b)(4)(D ) has been
violated and (2) the parties have not agreed to a
method for the voluntary adjustment of the dis-
pute.
It is not disputed that Operating Engineers Busi-
ness Representative Davis called the Employer
and, after laying claim to the disputed work being
performed by the Painters , threatened to "shut the
job down" unless an operating engineer was as-
signed to operate the compressor . It is also undis-
puted that in a meeting the next day with the Em-
ployer's vice president , Hammad, Operating Engi-
neers Business Representatives Davis and Dulkoski
presented Hammad with a memorandum of agree-
ment for the work and stated, "You sign this and
put one of our guys on [and] you will have no
problems." In this same meeting, when Hammad
requested 2 days to consult with the attorney for
the Employer's multibargaining association about
the matter , Dulkoski stated , inter alia, that the Em-
ployer "only had one day [Thursday] and that is it.
. .. We will do what we have to do." It is further
undisputed that the following day, Dulkoski called
Hammad and asked if he had made a decision, but
when Hammad requested more time , Dulkoski
stated , "No, that is it. . . . and I am going to send
you a telegram today ." Hammad received an area
standards telegram the next day from the Operat-
ing Engineers stating that it had determined that
OPERATING ENGINEERS LOCAL 150 (ALL AMERICAN)
the Employer was not maintaining the area stand-
ards for operating engineers on the Employer's
project and that the Employer's continued failure
to comply with area standards left the Operating
Engineers with no other alternative but to take
necessary lawful action to insure the preservation
of area standards . Picketing commenced on June 2
and lasted to June 10 , when it ceased.
It is also undisputed that on the second day of
the picketing,5 in response to a question by the
Employer 's field superintendent , the picketers said
they were picketing because any compressor over
150 CFM must be operated by a member of the
Operating Engineers.
In determining the applicability of the statute,
the Board must consider whether an object of the
picketing was to force or require the Employer to
reassign the work in dispute from employees repre-
sented by the Painters to members of the Operating
Engineers . The establishment of one proscribed
object is sufficient to bring a union's conduct
within the statutory language of Section 8(b)(4)(D).
Cement Masons Local 577 (Rocky Mountain Pres-
tress), 233 NLRB 923 (1977). Carpenters Local 593
(T & P Iron Works), 266 NLRB 617 (1983).
The record establishes that the Operating Engi-
neers never contacted the Employer regarding
wages paid to the painters . Nor is there evidence
that the Operating Engineers availed themselves of
any other means of ascertaining such information.
Thus, it is clear that the Operating Engineers made
no reasonable inquiry into the Employer's pay
scales . This fact, coupled with the Operating Engi-
neers' repeated attempts to gain the disputed work
from the Painters-represented employees, to whom
the Employer had assigned the work, leads us to
find that an object of the picketing engaged in by
the Operating Engineers was to force or require
the Employer to reassign to the Operating Engi-
neers the disputed work that had previously been
awarded to the Painters . Plumbers Local 130 (Con-
tracting & Co.), 272 NLRB 1045, 1047 ( 1984).
We also find that the asserted disclaimer of the
Painters concerning the work in dispute is ineffec-
tive and that thus the jurisdictional dispute re-
mained active . The Painters were assigned the
work and they neither questioned nor rejected the
assignment . Instead they performed it, as assigned.
That the work was incidental to their main tasks,
and required little of their worktime , does not de-
tract from that fact . Nor is the situation changed
5 The pickets carried signs stating , "Notice to the Public .. . All
American does not pay the prevailing wage and economic benefits for
Operating Engineers which are standard in this area Our dispute con-
cerns only the substandard wages and benefits paid by this company.
Local 150 , International Union of Operating Engineers, AFL-CIO."
935
because they did not cross the picket line of the
Respondent . They performed no work of any kind
at the jobsite during the picketing. After the pick-
eting ceased , however, they resumed their normal
duties, including the operation of the compressor,
the work in dispute. Although the Painters pur-
portedly disclaimed the work 1 week later, the
Painters-represented employees of the Employer
continued to perform it without interruption and
insofar as the record shows, without complaint, re-
straint , or threat of discipline from their union. We
therefore conclude that they were continuing to
claim the work and that it is of no consequence, as
argued by the Respondent, that none of them came
forward at the hearing specifically to lay claim to
the work. Bricklayers Local 2 (E. J. Harris Con-
struction), 254 NLRB 1003, 1004 ( 1981).
The asserted disclaimer is also ineffective be-
cause it did not require the Painters-represented
employees to give up or sacrifice anything of value
to them .6 See, e .g., Longshoremen ILA Local 1291
(Pocohantas Steamship Co.), 152 NLRB 676, 679-
680 and 154 NLRB 1785, 1789 (1965), enfd. 368
F 2d 107, 110 (3d Cir. 1966), cert. denied 386 U.S.
1033 (1967). They went on performing their paint-
ing tasks, without any reduction in their wages or
benefits resulting from the disclaimer . Neither they
nor their union ceded any of their trade 's jurisdic-
tion, whether or not they continued to perform the
work in dispute . Nor is there any likelihood or in-
dication in the record that they would have forfeit-
ed their jobs with the Employer if they had re-
nounced the assignment of the disputed work
rather than, as here , continued to do it . Thus, the
disclaimer had absolutely no effect on their em-
ployment with the Employer and the renumeration
they received from it .7 This is not surprising con-
6 Member Cracraft finds its unnecessary to rely on this rationale.
Rather , she would find the disclaimer ineffective solely on the basis that
Painters-represented employees continued to perform the work in dispute
following the purported disclaimer.
' The Respondent 's argument-that evidence of sacrifice is immaterial
to the disclaimer 's validity-ignores that a disclaimer without sacrifice,
where the disclaiming party will continue to receive pay for the disputed
work , means that the essence of the jurisdictional dispute (i e, a claim for
pay) remains.
The Respondent also, in effect , alleges that the Board in cases of this
type has misconstrued the statute to find that two active claims for the
work are not a prerequisite to finding the existence of a jurisdictional dis-
pute In support of this argument the Respondent cites Electrical Workers
IBEW Local 40 (F & B/Ceco), 199 NLRB 903 (1972), Teamsters Local
326 (Eazor Express), 203 NLRB 1002 (1973), and Electrical Workers
IBEW Local 610 (Landau Outdoor Sign Ca), 225 NLRB 320 (1976) The
Respondent 's interpretation of these cases , however , fails to acknowledge
that the disclaiming party in each case, like the Painters in the instant
case, neither ceased performing the work in dispute nor disclaimed the
pay they received for performing it. Consequently , to the extent these
cases hold that two active claims for the "work" are not necessary for
the existence of a jurisdictional dispute , "active" is used in the sense of
"affirmatively seeking out" and "work" is used in the narrow sense of
"tasks to be performed " See our decision issued today in Operating Engi-
neers Local 150 (Austin Co.), 296 NLRB 121 fn 14
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sidering that the disputed work, as noted , was done
on an incidental basis and required at times no
more than pushing a button to start and stop the
compressor . In such circumstances it is impossible
to allocate part of their compensation to the disput-
ed work, a fact that was not likely lost on their
representative , the Painters , or any of those direct-
ly affected by the dispute. We thus conclude that
the Painters did not intend or expect the disclaimer
to have any adverse impact on their employment,
including their compensation for work performed.
Consequently , we find that the Painters' disclaimer
fails to extinguish the jurisdictional dispute that we
have found to exist.
We find , therefore , that reasonable cause exists
to believe that a violation of Section 8(b)(4)(D) has
occurred and that there exists no agreed -on method
for voluntary adjustment of the dispute within the
meaning of Section 10(k) of the Act. Accordingly,
we find that the dispute is properly before the
Board for determination.
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 bal-
ancing the factors involved in a particular case.
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 (1962).
The following factors are relevant in making the
determination of this dispute.
1. Certification and collective -bargaining
agreements
The evidence does not show that there is a
Board certification relative to the disputed work.
No collective-bargaining agreement brought to
our attention mentions specifically the operation of
air compressors , but the collective-bargaining
agreement between the Painters and the Painting
and Decorating Contractors Association , of which
the Employer is a member , defines in article II,
section 6 of that agreement the scope of the paint-
ers' work to include : "all work regarding the .. .
removal of paints . . . [and] all preparatory and an-
cillary work necessary in connection with the re-
moval of paint including the . . . sanding of sur-
faces and the operation of all tools and equipment
used . . . including but not limited to . . . miscella-
neous hand and power driven tools including sand-
blasting . . . equipment ." We find this description
encompasses the work in dispute.
The Operating Engineers also contends that the
Employer is bound by a 1977 memorandum of
agreement between it and a prior employer, All
American Decorating Service , because that agree-
ment contained a self-renewal clause and was still
in effect at the time the business was sold . In order
to find this agreement arguably binding on the Em-
ployer, we would have to find that the Employer
is the alter ego of the predecessor . See Pinter Bros.,
263 NLRB 723, 739 (1982); Jersey Juniors, 230
NLRB 329 (1977). The Operating Engineers failed
to establish the existence of an alter ego relation-
ship . Therefore, we find no basis for the Operating
Engineers ' claim that its agreement with the prior
employer was binding on this Employer. We there-
fore find that the collective-bargaining agreement
between the Employer and the Painters favors an
award to the employees represented by the Paint-
ers.
2. Employer and area practice
The record discloses that most, if not all, of the
Painting Contractors in the Chicago area , including
the Employer, have traditionally assigned the oper-
ation of compressors larger than 150 CFM to their
painters , who also operate the sandblasting equip-
ment. Thus, we find this factor favors an award to
employees represented by the Painters.
3. Skills, economy, and efficiency
Employees represented by the Painters or the
Operating Engineers are both experienced and
qualified to operate the disputed air compressors.
The record also shows not only that the operation
of the air compressor is relatively simple but also
that it does not require full-time attention . The Em-
ployer currently employs only individuals repre-
sented by the Painters to perform sandblasting and
painting work. Such employees are able effectively
to operate the air compressor in conjunction with
their normal job duties for the Employer. If the
Employer were required to hire an employee rep-
resented by the Operating Engineers to operate the
air compressor , his job duties would consume only
3 to 20 minutes of the entire 8-hour workday. Ac-
cordingly, while the skill factor favors neither
group, we find that the factors of economy and ef-
ficiency favors an award to employees represented
by the Painters.
4. Employer preference
The Employer assigned the work in dispute to,
and prefers that it be performed by, employees rep-
resented by the Painters ; this factor, while not de-
terminative , favors an award to these employees.
OPERATING ENGINEERS LOCAL 150 (ALL AMERICAN)
5. Interunion agreements
At the hearing, the Operating Engineers intro-
duced a copy of an April 1985 interunion agree-
ment between the Painters and the Operating Engi-
neers, which ceded the operation of air compres-
sors in excess of 150 CFM to the Operating Engi-
neers. However, record testimony shows that the
Employer neither was a party to this agreement
nor manifested an intention to be bound by it. In
Laborers Local 646 (General Refrigeration), 268
NLRB 472 (1983), the Board ruled that this type of
agreement is not entitled to any weight in which
"there is no evidence that the Employer ever
agreed to be bound by the agreement." Moreover,
record testimony showed that although the Paint-
ers notified Region 13 of its purported disclaimer,
the employees represented by the Painters have
continued to perform the disputed work for the
Employer and other area painting contractors.
Therefore, we accord no weight to the interunion
agreement in determining the award of the disput-
ed work.
Conclusion
After considering all the relevant factors, we
conclude that employees represented by the Paint-
ers are entitled to perform the work in dispute. We
reach this conclusion relying on the Employer's
collective-bargaining agreement with the Painters,
employer preference, and employer and area prac-
tice, and the economy and efficiency of the work
performed by the Painters-represented employees.
In making this determination we are awarding the
work to employees represented by Painters District
Council No. 14, not to that Union or its members.
The determination is limited to the controversy
that gave rise to this proceeding.8
a The Employer requests a broad award applying to this and similar
work disputes arising between it, other painting contractors and the Op-
937
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of All American Decorating Cor-
poration d/b/a All American Decorating Service
represented by Painters District Council No. 14 are
entitled to operate the air compressor in excess of
150 CFM used by All American Decorating Serv-
ice in connection with its sandblasting and painting
work at the Quincy and Wells Street Station in
Chicago, Illinois.
2. International Union of Operating Engineers,
Local 150, is not entitled by means proscribed by
Section 8(b)(4)(D) of the Act to force or require
All American Decorating Corporation d/b/a All
American Decorating Service to assign the disput-
ed work to employees represented by that labor or-
ganization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, International Union
of Operating Engineers , Local 150 shall notify the
Regional Director for Region 13, in writing,
whether or not it will refrain from forcing Ross, by
means proscribed by Section 8(b)(4)(D) of the Act,
to assign the disputed work in a manner inconsist-
ent with this determination.
erating Engineers While the Employer correctly cites the standard for
issuing such an award , Electrical Workers IBEW Local 104 (Standard Sign
& Signal Ca), 248 NLRB 1144, 1147- 1148 (1980), it has not demonstrated
that "a broad order [sic] is indispensable to the fashioning of a meaningful
award here " While the Operating Engineers in this case did use pro-
scribed means to force the assignment of the disputed work to employees
it represented , it did so for a very brief period and , soon after the filing
of the instant charge, cooperated with Region 13 to allow work to con-
tinue on the Quincy and Wells jobsite while the parties submitted their
dispute to the Board for determination In these circumstances, we
cannot conclude that the operating engineers are likely to engage in fur-
ther unlawful conduct to obtain work similar to that in dispute