Painters And Drywall Finishers

National Labor Relations Board - Board DecisionsOct 2, 1974

213 N.L.R.B. 788 (N.L.R.B. 1974)

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Painters and Drywall Finishers , Local No. 79, affiliated with International Brotherhood of Painters and Al- lied Trades, AFL-CIO and Richard O'Brien Plas- tering Co. and Operative Plasterers and Cement Masons International Association, Local No. 32, AFL-CIO.' Case 27-CD-164 October 2, 1974 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY 1. THE BUSINESS OF THE EMPLOYER The Employer, a Colorado corporation with its principal office in Denver, Colorado, operates in the construction industry where it is engaged in the erec- tion and finishing of drywall, plastering, and concrete pumping. During the past year, a representative peri- od, it purchased and received materials valued in ex- cess of $50,000 from points located outside the State of Colorado. The parties stipulated, and we find, that the Employer is engaged in commerce within the meaning of the Act. Accordingly, we further find that it will effectuate the purposes of the Act to assert jurisdiction herein. This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges initially filed on September 13, 1973, by Rich- ard O'Brien Plastering Co. (herein called O'Brien or the Employer), alleging that Painters and Drywall Finishers, Local No. 79, affiliated with International Brotherhood of Painters and Allied Trades, AFL- CIO (herein called Painters or Respondent), had vio- lated the Act by engaging in certain proscribed activi- ty with an object of forcing or requiring the assignment of certain work described below to em- ployees represented by the Painters rather than to employees of the Employer represented by Operative Plasterers and Cement Masons International Associa- tion, Local No. 32, AFL-CIO (herein called Plas- terers). A hearing was held before Hearing Officer Hobart Corning on January 3 and 11, February 19 and 20, and March 20, 1974. All parties appeared at the hear- ing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Em- ployer, the Respondent, and the Plasterers filed briefs which have been 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 au- thority in this proceeding to a three-member panel. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, including the briefs of the parties, the Board makes the following findings: 1 The names of all parties herein are set forth as amended at the hearing to reflect their correct designations. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated , and we find , that the Paint- ers and the Plasterers are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute O'Brien is normally engaged as a subcontractor to general contractors in the construction industry. It employs approximately 70 employees, including 20 plasterers who are members of Plasterers Local 32. The remaining employees-lathers, operating engi- neers, and laborers-are members of unions, not otherwise involved herein, representing their re- spective crafts or occupations. O'Brien is a party to collective-bargaining agreements with the Plasterers and with the unions representing its other employees. The Employer assigns its plasterer employees to perform both conventional plastering work and the finishing of drywall, the latter consisting of "pointing" and "taping." The term "pointing" refers to the appli- cation of various drywall compounds so as to fill nail- holes and screwholes, while "taping" consists of the application of paper tapes to the joints of drywall panels. The present dispute is confined to the plas- terers' drywall finishing work. There is no dispute concerning either their plastering work or the drywall erection work which is assigned to O'Brien's lathers. From 1970 to the present time, Respondent's repre- sentatives contacted the Employer some 15 to 20 times for the purpose of requesting that drywall fin- ishing be assigned to members of their Union and that O'Brien sign a contract with the Painters. Further, on a few occasions prior to the events giving rise to the dispute herein, Respondent picketed O'Brien at con- struction sites on which its plasterers were finishing drywall. On each such occasion, the picketing was 213 NLRB No. 106 PAINTERS AND DRYWALL FINISHERS preceded by requests for assignment of the disputed work and execution of a Painters contract; the picket- ing was of short duration, ceasing immediately upon O'Brien's filing of unfair labor practice charges, and said charges were thereafter withdrawn. During this same period, Painters circulated among Denver area construction contractors a letter which, in effect, warned them of "inconveniences" at their jobsites if they subcontracted drywall work to firms which em- ployed craftsmen other than painters to perform pointing and taping of drywall. At the time the dispute herein arose in September 1973,2 the Employer was engaged in drywall work at four sites in the Denver metropolitan area. During the first week of September, the Painters business manag- er and business representative separately contacted O'Brien to request that drywall finishing on its current and future projects be assigned to employees they represented. Richard O'Brien, the Employer's presi- dent, testified that when he refused the Painters re- quests its representatives stated that if the disputed work was not assigned to its members the Employer would have problems on its jobs. On September 13, Respondent picketed O'Brien at one of its construc- tion sites, the Cherry Creek School project, with a picket sign which alleged that O'Brien paid substan- dard wages for drywall finishing work. As a result thereof, craftsmen employed by other employers on the project--including electricians, plumbers, labor- ers, and carpenters-left the jobsite. The picketing terminated the next day and all employees returned to work. During the next month, the same Painters repre- sentatives contacted O'Brien by telephone and in person on five or six occasions to again assert that pointing and. taping drywall was Painters work and to demand that the work be so assigned. Richard O'Brien testified that, upon his continued refusal to comply, the Painters representatives stated that the Employer would have work stoppages on its jobs in progress and that, unless the parties could get togeth- er, the schools on which O'Brien was then working would not be ready to open on time. In their testimo- ny, the business manager and business representative denied making any of the threats attributed to them, both before and after the picketing incident, by Rich- ard O'Brien. They did, however, substantially con- firm that their numerous contacts with O'Brien dur- ing this period were for the purposes of asserting the Painters claim to jurisdiction over the Employer's drywall finishing and requesting that such work be assigned to members of their Union. At various times in and around September, the 2 All dates hereinafter are in 1973, unless otherwise indicated. 789 Painters submitted to the Impartial Jurisdictional Disputes Board' disputes concerning the perform- ance of drywall finishing work on the four construc- tion projects involved herein. It appears that Painters and Plasterers both fully participated in the proceed- ings before the Impartial Board, while the Employer's involvement therewith was confined to submitting a brief written statement setting forth the nature of the materials used in performing the disputed work and its current and past assignment of such work to plas- terer employees. In decisions issued between late Sep- tember and early November, the Impartial Board assigned the disputed drywall finishing work to paint- ers. However, effective December 4, the Joint Admin- istrative Committee-which oversees the Impartial Board-upon review of the Impartial Board's deci- sions and pending cases involving drywall finishing, directed the Impartial Board to defer action on such disputes and then referred the entire matter to the international unions concerned for the purpose of reaching a national agreement governing future juris- diction. From the record, it is not clear as to whether or not the Joint Committee's action had the effect of suspending the job awards previously made by the Impartial Board. B. The Work in Dispute The work here in dispute is the finishing of dry- wall-pointing and taping-at the following four construction sites in the Denver, Colorado, metropol- itan area: the Cherry Creek School Fine Arts Build- ing, the Mission Viejo School, the Regency Inn, and St. Joseph Hospital. C. The Contentions of the Parties 1. Respondent first contends that the Board is without jurisdiction to determine the merits of this dispute under Section 10(k) of the Act because the parties have an agreed-upon method for the voluntary adjustment of the dispute, as fully set forth infra. Sec- ond, Respondent argues that there is no reasonable cause to believe that it violated Section 8(b)(4)(D) as it denies having ever threatened to strike, picket, or cause a work stoppage, and asserts that the picketing it did engage in was designed only to protest alleged substandard wages being paid by O'Brien. Finally, Respondent maintains that the disputed work should be assigned to the employees it represents on the basis of the factors normally considered by the Board in making such awards. 2. The Employer first contends that the dispute is properly before the Board because there is no method 3 Hereinafter referred to as the Impartial Board. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for voluntary settlement to which all the necessary parties are bound. Secondly, the Employer asserts that Respondent violated Section 8(b)(4)(D) by mak- ing threatening statements and engaging in picketing for a proscribed purpose. Finally, the Employer states that the award of the disputed work to its own plas- terer employees is appropriate in view of their posses- sion of the requisite skills, efficiency and economy of operation, the contract between O'Brien and the Plas- terers, past company practice, and the Employer's as- signment of the work. The Plasterers position is in agreement with that of the Employer. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the 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 vio- lated, and (2) the parties have not agreed upon meth- ods for the voluntary adjustment of the dispute. 1. Respondent denies that its picketing of the Cher- ry Creek School was for purposes violative of Section 8(b)(4)(D) and contends that its sole picketing object was to protest the Employer's substandard wages. While there is some evidence that there may have been one nonunion drywall finisher employed at sub- standard wages on that project, the Board must still consider whether an object of the picketing-among possible multiple objects sought by the Painters--was to force or require O'Brien to reassign the work from its own employees, represented by the Plasterers, to members of the Respondent. For, one proscribed ob- ject is sufficient to bring a union's conduct within the statutory language of Section 8(b)(4)(D). In regard to the above, it is clear from the record that the Painters never questioned or otherwise con- tacted O'Brien concerning the status of the single em- ployee allegedly working at substandard rates. Further, it appears that all other O'Brien employees engaged in drywall work at the same site were mem- bers of the Plasterers and there is no evidence that they worked under substandard conditions. In fact, the Painters business representative responsible for the picketing admittedly did not even know what wage rates O'Brien was paying under its Plasterers contract and conceded that they might even be above the rates provided for in Painters contracts for similar work.4 Moreover, the Painters business manager and business representative conceded that approximately I week prior to the picketing they had contacted O'Brien for the express purpose of renewing their See Local 25, International Brotherhood of Electrical Workers, AFL-CIO (Sarrow-Suburban Electric Co., Inc.), 152 NLRB 531 (1965). claim to the drywall finishing and demanding that O'Brien execute a Painters contract . Also, the picket- ing did have the effect of causing the cessation of work on the Cherry Creek School project. In our view , the above-noted facts clearly estab- lished reasonable cause to believe that an object of the picketing was to force the reassignment of work from employees of the Employer to members of the Re- spondent. There is additional testimony in the record that the Painters engaged in proscribed conduct , both before and after the picketing incident , by threatening work stoppages and project delays if the disputed work was not assigned in accordance with its demands . In their testimony , the Painters representatives involved de- nied making such threats , but agreed that they had contacted O'Brien on numerous occasions at or about the time the threats were allegedly made and conced- ed that their purpose in so doing was to have the drywall finishing reassigned to their members and to obtain a contract with O'Brien covering such work. In a jurisdictional dispute context , the Board is not charged with finding that a violation did in fact occur, but only that there is reasonable cause to believe that there has been a violation . On the facts herein, and without ruling on the credibility of testimony that is in issue , we find that there is reasonable cause to believe that Section 8 (b)(4)(D) has been violated. 2. Respondent contends that a method for the vol- untary adjustment of this dispute exists . In support of this contention , it asserts that the Employer , as well as the Painters and Plasterers , is bound to the proce- dures and decisions of the Impartial Board estab- lished by the Plan for the Settlement of Jurisdictional Disputes in the Construction Industry 5 which came into existence on June 1 , 1973. Respondent argues that O'Brien is committed to this settlement process by: (a) its collective -bargaining contract with the Plas- terers , (b) its membership in the International Associ- ation of Wall & Ceiling Contractors (IAWCC), a signatory to the Plan , and (c) its alleged participation in the Impartial Board 's award-making process. a. In its collective -bargaining contract, effective May 8 , 1972, O'Brien agreed , inter alia, "to recognize the jurisdictional claims" of the Plasterers "which have been established . . . as a result of decisions of the National Joint Board for the Settlement of Juris- dictional Disputes ." 6 Respondent asserts that this provision of the contract binds the Employer to the decisions of the Impartial Board because it provides for the use of the Joint Board , and the latter was the Impartial Board 's predecessor . Respondent further asserts that, as the parties to the contract knew when 5 Hereinafter referred to as the Plan. 6 Hereinafter referred to as the Joint Board. PAINTERS AND DRYWALL FINISHERS 791 they executed it, in 1972, that the then current Joint Board was going to be dissolved, they must have in- tended to bind themselves to that board's successor- the Impartial Board. We find no merit in these arguments as the contrac- tual provision at issue, at most, only bound the Em- ployer to recognize "claims" of the Plasterers established by Joint Board decisions. There was no commitment to recognize claims of other unions so established and no commitment to be generally bound by, or otherwise participate in, the proceedings of that board. Moreover, we note that, although the parties to the contract knew upon its execution that the Joint Board was going to be discontinued, there is no evidence whatever that they intended to be bound to any board other than the one then existing and certainly no evi- dence of intent to bind themselves to an Impartial Board which did not even come into existence until after the effective date of the Plan, June 1, 1973- more than a year subsequent to the effective date of the contract. We also note that the Joint and Impar- tial Boards differ significantly from one another in terms of the size of their voting memberships, the composition of their panels, their procedures for ap- peals, and other rules applicable to their proceedings. We conclude that, even had there been a commitment to generally comply with decisions of the now defunct Joint Board, such commitment could not be regarded as binding the Employer to the new Impartial Board, absent a showing of express intent to be so bound.' b. O'Brien is a member of the IAWCC which, in turn, is a signatory employer association to the Plan establishing the Impartial Board. However, the Plan provides, in pertinent part, that it is binding on em- ployers who execute a stipulation setting forth their willingness to be so bound and on employers who are members of a participating employer association which has authority to bind its members. It is clear from the record that O'Brien never executed such a stipulation and that IAWCC is not an association possessing authority to bind its members. Further, the record reveals that in June 1973, prior to the arising of the dispute herein, IAWCC sent a letter to its mem- bers which, while urging them to sign stipulations binding themselves to the Plan, specifically pointed out that IAWCC's status as a signatory thereto did not bind any member and that each member must decide the matter for itself. Accordingly, we conclude that O'Brien was not bound to the Impartial Board, or to the Plan, by virtue of its IAWCC membership. 7 See Local No. 17 Sheet Metal Workers International Association, AFL- CIO (J. Slotnik Company), 197 NLRB 1127 (1972); and Bricklayers, Masons and Plasterers ' International Union of America, Local No. 1, AFL-CIO (Rocky Mountain Prestress, Inc.), 195 NLRB 555 (1972). c. As part of the Impartial Board's processing of the drywall finishing disputes submitted to it by the Painters, the board's chairman wrote to O'Brien re- questing full and complete descriptions of the drywall work at the projects involved. As previously related, O'Brien responded with letters confined to brief de- scriptions of the materials used in performing the dis- puted work, its assignment of such work to plasterers, and its assignment of the same type of work to plas- terers on prior construction projects. At the hearing, Richard O'Brien maintained that he wrote the letters only at the specific request of the Plasterers and never intended to submit his Company to the jurisdiction of the Impartial Board. Respondent argues that, by so responding to the Impartial Board's inquiries, O'Brien bound itself to the Impartial Board's decisions. We disagree. Cooper- ation with the Impartial Board is not synonymous with submission and, in our view, the record does not support a finding that the sending of such informa- tional letters bound the Employer to any award the Impartial Board might render. International Associa- tion of Bridge, Structural & Ornamental Iron Workers, Local 272 (P & G Erectors, Inc.), 203 NLRB No. 178 (1973). E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors. As the Board has stated, the determination in a juris- dictional dispute case is an act of judgment based on commonsense and experience in weighing these fac- tors.' The following factors are relevant in making a determination of the dispute before us. 1. Certification and collective-bargaining agreements Neither of the labor organizations involved herein has been certified by the Board. However, the Em- ployer and the Plasterers have maintained collective- bargaining relations for many years and are currently parties to a contract, effective through April 30, 1975, which covers the employees who have been perform- ing the disputed work. That contract makes specific reference to drywall work and recognizes the trade jurisdiction outlined in the Plasterers international constitution which, in turn, sets forth pointing and taping of drywall as being within its exclusive jurisdic- 8 N.L. R.B. v. Radio and Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad- casting System], 364 U.S. 573 ( 1961); International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402 (1962). 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion. The Employer has no employees represented by the Painters and has never had collective-bargaining agreements with that Union. Accordingly, we find that the contractual relationship between the Plas- terers and the Employer favors the Plasterers. 2. Company and area practice The Employer's past and present practice has been to assign the finishing of drywall to its employees who are represented by the Plasterers. Respondent alleges that O'Brien has, on occasion, also employed mem- bers of the Painters on such work. However, it appears from the record that the employees involved on such occasions either held membership in both unions or were actually employed, not by O'Brien, but by a company to which O'Brien had subcontracted a small amount of its drywalling work. We are satisfied that O'Brien plasterers have exclusively performed dry- wall finishing on the overwhelming majority of the Employer's construction projects. Accordingly, we find that the company practice favors assignment to the Plasterers. As to the area practice, it appears that the majority of drywall finishing is performed by non- union craftsmen. Of the remainder, plasterers and painters both perform substantial amounts, although the painters may do more. Inasmuch as the area prac- tice is mixed, this factor favors neither labor organiza- tion. 3. Skills, efficiency, and economy of operations Although employees represented by the Plasterers have demonstrated to the Employer's satisfaction over many years that they possess the knowledge and skills necessary to perform the disputed work in a highly competent fashion, there is no record evidence to indicate that members of the Painters cannot per- form that work with equal skill. However, the Em- ployer strongly favors an award to its plasterer employees for reasons of efficiency, economy, inte- gration of operations, and continuity of its work force. The evidence shows that plasterers are capable of performing a wide range of plastering work, as well as drywall finishing, while Respondent's members per- form drywall work alone. On the approximately one- half of O'Brien 's jobs which involve both plastering and drywall work, it can assign its plasterer employ- ees to do the plastering work in one room and then drywall finishing in the next. On any given day, it can initially assign them to outdoor plastering and then, if bad weather develops, shift them inside to finish drywall. By thus employing persons proficient in both skills, it can-and does-keep them em- ployed on a full-time basis. Further, it appears that the nature of O'Brien's business is such that, if it hired painters to finish drywall, there would not be sufficient work available to keep either them. or the plasterers continuously working. Instead of the 20 full-time employees now performing all plastering and drywall finishing, there would have to be 40 part-time employees-divided between the two crafts. Under the present job assignment, the Em- ployer is able to offer year-round full-time employ- ment and, therefore, is able to attract, and keep, a stable work force of high caliber craftsmen. Also, the Employer testified that plasterers provide their own tools for finishing drywall, while painters do not. We conclude that, although painters and plasterers may be approximately equal in the area of drywall-finish- ing skills, the factors of efficiency, economy, integra- tion of operations, and continuity of the work force strongly favor award of the disputed work to employ- ees represented by the Plasterers. 4. The Impartial Board awards Although we do not consider the Impartial Board awards to the Painters binding on the Employer, we do consider them as a factor in determining the prop- er assignment of the work in dispute. However, in view of all the circumstances, we are of the opinion that the Impartial Board awards should not be given controlling weight herein. 5. Employer's assignment of work We find that O'Brien's assignment of the disputed work to employees represented by the Plasterers was based on sound business considerations, including economy, efficiency, and maintenance of a stable work force. ' Conclusion Upon the record as a whole, and after full consider- ation of all relevant factors involved, we conclude that the Employer's employees who are represented by the Plasterers are entitled to the work in dispute. In reach- ing this conclusion, we have particularly relied on the Employer's assignment of the work to its employees; the fact that this assignment is consistent with the Employer's past practice and its current collective- bargaining agreement with the Plasterers; the fact that the Plasterers-represented employees possess the requisite skills to perform the work; and the efficiency and economy of operations which result from such assignment. We shall, therefore, determine the dispute before us by awarding the work involved herein to those employees represented by the Plasterers, but not to that Union or its members. PAINTERS AND DRYWALL FINISHERS 793 Scope of Award The Employer requests a broad work award, con- tending that it is necessary to avoid similar disputes which are likely to occur in the future at other con- struction sites on which it is performing drywall work. However, we do not find the record evidence herein sufficient to establish a pattern of misconduct sugges- tive of a likelihood that this dispute will extend to other jobsites or recur in the future. Accordingly, we do not believe that the broad order requested by the Employer is appropriate at this time and, therefore, the determination herein shall apply only to the proj- ects presently under consideration. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Richard O'Brien Plastering Co., represented by Operative Plasterers and Cement Ma- sons International Association, Local No. 32, AFL- CIO, are entitled to perform the work of finishing drywall at the following projects in the Denver, Colo- rado, metropolitan area: the Cherry Creek School Fine Arts Building, the Mission Viejo School, the Re- gency Inn, and St. Joseph Hospital. 2. Painters and Drywall Finishers, Local No. 79, affiliated with International Brotherhood of Painters and Allied Trades, AFL-CIO, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the assignment of the above work to its members or to employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, Painters and Drywall Finishers, Local No. 79, affiliated with Interantional Brotherhood of Painters and Allied Trades, AFL- CIO, shall notify the Regional Director for Region 27, in writing, whether it will refrain from forcing or re- quiring, by means proscribed by Section 8(b)(4)(D) of the Act, the assignment of the work in dispute to employees represented by the Painters, rather than to employees represented by the Plasterers.