Painters Local 1447 (United Exposition)

National Labor Relations Board - Board Decisions

Jul 19, 1991

303 N.L.R.B. 732 (N.L.R.B. 1991)

732
303 NLRB No. 112
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On May 28, 1991, the Carpenters filed a motion to reopen the record for
the purpose of introducing testimony in an unrelated pending case which the
Carpenters assert supports its contention that the award of work in the instant
case should be limited to work performed by the Employer, and not cover the
entire Atlantic City area. In view of our finding below that our award is lim-
ited to jobs performed by the Employer, we find it unnecessary to pass on
the Carpenters’ motion because the testimony sought to be introduced would
have no effect on the result.
Local Union 1447, Sign-Pictorial and Displaymen,
a/w International Brotherhood of Painters and
Allied Trades of the United States and Canada,
AFL–CIO (United Exposition Service Co., Inc.)
and Martin J. Sobol. Case 4–CD–795
July 19, 1991
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
The original charge in this Section 10(k) proceeding
was filed on October 19, 1990, and an amended charge
was filed on November 29, 1990, by Martin J. Sobol,
alleging that the Respondent, Local 1447, Sign-Pic-
torial and Displaymen, a/w International Brotherhood
of Painters and Allied Trades of the United States and
Canada, AFL–CIO (Decorators) violated Section
8(b)(4)(D) of the National Labor Relations Act by en-
gaging in proscribed activity with an object of forcing
the Employer to assign certain work to employees it
represents rather than to employees represented by
Carpenters District Council of South Jersey and its
Local 623, a/w United Brotherhood of Carpenters and
Joiners of America, AFL–CIO (Carpenters). The hear-
ing was held January 9 and 18, 1991, before Hearing
Officer Henry R. Protas.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
The Employer, a corporation with its principal place
of business in Chicago, Illinois, and an office in Atlan-
tic City, New Jersey, is engaged in the business of
servicing conventions, expositions, trade shows, and
special events for associations and show managers.
The Employer’s Atlantic City, New Jersey location has
provided services valued in excess of $50,000 directly
to customers located outside the State of New Jersey,
and has purchased supplies valued in excess of
$50,000 directly from suppliers located outside the
State of New Jersey. The parties stipulated, 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 Decorators and the Carpenters are labor orga-
nizations within the meaning of Section 2(5) of the
Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer receives exhibits and displays des-
tined for conventions or trade show sites from cus-
tomers, takes them from their shipping containers, as-
sembles them, erects them, and dismantles and repacks
them. It also rents pipe and drape booth equipment, ta-
bles and chairs, carpets, and decorative items. The Em-
ployer has a maintenance shop for the repair and as-
sembly of its rental equipment.
In the Atlantic City area, trade shows and conven-
tions are held in one of many hotels or the Atlantic
City Convention Center. At events held at the hotels,
most exhibition companies assign the erecting and dis-
mantling of displays and exhibits to employees rep-
resented by the Decorators. The Employer uses em-
ployees represented by the Decorators and employees
represented by the Carpenters. As the exhibits and dis-
plays in large part are prefabricated, erecting and dis-
mantling them generally requires nothing more than
screwdrivers, wrenches, drills, and clamps to tighten
panels together with screws, bolts, and wingnuts.
The dispute began when the Employer was hired by
ENESCO to install and dismantle its exhibits for a
trade show to take place in January 1989. At the spe-
cific direction of the customer, the Employer hired em-
ployees represented by the Carpenters to perform the
work. The Employer was hired for the same work by
ENESCO for a show in January 1990. This time, how-
ever, the customer directed the Employer to utilize em-
ployees represented by the Decorators. The Carpenters
protested the assignment and a settlement was reached
whereby employees represented by the Carpenters
were assigned the dismantling work.
In response to the Employer’s assigning the erecting
and dismantling work to employees represented by the
Decorators on subsequent jobs, the Carpenters filed a
series of grievances dating from January 1990, through
September 1990. By letter dated October 11, 1990, the
Decorators informed the Employer that it was aware
that there had been discussions between the Carpenters
and the Employer concerning the disputed work. The
letter claimed that the assignment of this work to any-
one other than employees represented by the Decora-
tors was a violation of their contract and threatened to
respond to any such violation with action up to and in-
cluding a work stoppage. At present, the Employer
claims to assign the erecting and dismantling of exhib-
its and displays to employees represented by the Deco-
rators in accord with its preference.
733PAINTERS LOCAL 1447 (UNITED EXPOSITION)
2 The Employer does not erect or dismantle exhibits and displays at the At-
lantic City Convention Center. This work is retained by the Convention Center
which utilizes employees represented by the Carpenters to perform it. The
award of this work was the subject of a previous Board decision. Carpenters
Local 623 (Atlantic Exhibit), 274 NLRB 71 (1985). The work at the Conven-
tion Center is not part of the disputed work.
B. Work in Dispute
The disputed work involves the erecting and disman-
tling of exhibits and displays by the Employer in the
Atlantic City, New Jersey area, except for that per-
formed at the Atlantic City Convention Center.2
C. Contentions of the Parties
The Employer contends that the disputed work
should be assigned to employees represented by the
Decorators based on their collective-bargaining agree-
ment, its preference, the area practice outside the Con-
vention Center, and its own past practice. The Em-
ployer claims its past practice has been to assign 90
percent of the disputed work to employees represented
by the Decorators and to use employees represented by
the Carpenters only when requested by the customer or
carpentry skills are required.
The Decorators contends that the disputed work has
always been the work of employees it represents and
is specifically covered by its collective-bargaining
agreement with the Employer. The Decorators further
contends that the work should be awarded to employ-
ees it represents based on the Employer’s preference
and past practice and the area and industry practice.
The Carpenters contends that the work is covered by
its collective-bargaining agreement and that it only re-
cently became aware that the Employer was using em-
ployees represented by the Decorators. The Carpenters
contends that the work should be awarded to employ-
ees it represents based on its collective-bargaining
agreement, the Employer’s past practice, and area and
industry practice.
D. Applicability of the Statute
As noted above, the Decorators, on October 11,
1990, threatened the Employer with work stoppages in
order to force the Employer to continue to assign the
disputed work to employees it represents.
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and that there exists
no agreed method for voluntary adjustment of the dis-
pute within the meaning of Section 10(k) of the Act.
Accordingly, we find that the dispute is properly be-
fore the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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 balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Certifications and collective-bargaining
agreements
There is no evidence that the Board has certified ei-
ther the Decorators or the Carpenters as the collective-
bargaining representative of the Employer’s employees.
The relevant portion of the Decorators’ collective-
bargaining agreement with the Employer, effective
April 1, 1989, until March 31, 1993, states that the fol-
lowing work shall come under the Decorators’ jurisdic-
tion:
The erection and dismantling of pipe and drape
work, prefabricated displays, floats, decorative
signs and banners, flags and bunting, and any
other display work used for conventions, parties,
banquets, parades and events of such nature.
The Carpenters has a collective-bargaining agree-
ment with the Employer, effective August 1, 1989,
until July 31, 1993, that covers the carpenters in its
maintenance shop. It provides, ‘‘United agrees that
work performed outside the shop shall be done in ac-
cordance with the Local Jurisdiction, in accordance
with past practice.’’ This language appears to refer to
the fact that shop carpenters are permitted on occasion
to work outside the shop and that the Employer agreed
to pay them at the higher ‘‘outside rate.’’
The Carpenters argues that a one-page document
called ‘‘Agreement’’ dated April 27, 1970, also sup-
ports its claim for the work. This document contains
no indication as to duration and does not discuss the
work to be performed. Two copies of the document
were introduced into evidence, one of which had a
type written addition at the top stating, ‘‘Note: This
agreement was cancelled by the UBC because con-
tractor did not sign the updated agreement.’’ The Em-
ployer claimed that it had no knowledge of this agree-
ment, and the addition at the top was never satisfac-
torily explained.
Because the Decorators’ collective-bargaining agree-
ment, but not the Carpenters’, specifically defines ju-
risdiction and covers the disputed work, we find that
this factor favors an award of the disputed work to em-
ployees represented by the Decorators.
2. Employer preference
The Employer’s witness testified that the Employer
has assigned the disputed work to employees rep-
resented by the Decorators for 30 years and that it pre-
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 See fn. 1.
fers to continue to assign the work to those employees.
Accordingly, we find that this factor favors an award
of the disputed work to employees represented by the
Decorators.
3. Employer past practice
The Employer’s representative testified that its past
practice was to assign 90 percent of the disputed work
to employees represented by the Decorators, and the
Decorators’ witness corroborated this testimony. The
Carpenters claims that the Employer’s past practice has
been to assign the work to employees it represents and
that it was not aware that the Employer was assigning
some of the disputed work to employees represented
by the Decorators. The documentary evidence indicates
that the Employer has assigned the work to employees
represented by the Decorators about half the time and
to employees represented by the Carpenters about half
the time. Thus, we find that this factor is inconclusive.
4. Area and industry practice
The industry practice is a matter of local custom.
Employees represented by the Decorators perform the
disputed work in Phoenix, Houston, Miami, Mil-
waukee, Kansas City, Los Angeles, and San Francisco.
Employees represented by the Carpenters perform the
work in Atlanta, Cleveland, Chicago, Philadelphia,
Washington, and New York. Employees represented by
other unions perform the work in certain other cities.
Therefore, we find that the industry practice is incon-
clusive.
The work at the Atlantic City Convention Center is
performed by the Carpenters under a collective-bar-
gaining agreement with the Convention Center Author-
ity.3 Except for this special situation, almost all the re-
maining Atlantic City work is performed by employees
represented by the Decorators. The prevailing area
practice, therefore, favors an award of the disputed
work to employees represented by the Decorators.
5. Relative skills
Erecting and dismantling the displays and exhibits is
semiskilled work requiring the use of screwdrivers,
wrenches, drills, and clamps. The panels generally are
put together with screws, bolts, and wingnuts. The em-
ployees represented by either Union have the skills to
perform the work. Consequently, we find this factor in-
conclusive.
6. Economy and efficiency of operation
No evidence was presented concerning this factor.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by Local Union
1447, Sign-Pictorial and Displaymen, a/w International
Brotherhood of Painters and Allied Trades of the
United States and Canada, AFL–CIO, are entitled to
perform the disputed work. We reach this conclusion
relying on the Decorators’ collective-bargaining agree-
ment, the Employer’s preference, and the area practice.
In making this determination, we are awarding the
work to employees represented by Local Union 1447,
Sign-Pictorial and Displaymen, a/w International
Brotherhood of Painters and Allied Trades of the
United States and Canada, AFL–CIO, not to that
Union or its members.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees represented by Local Union 1447, Sign-
Pictorial and Displaymen, a/w International Brother-
hood of Painters and Allied Trades of the United
States and Canada, AFL–CIO, are entitled to perform
the work of erecting and dismantling of exhibits and
displays by United Exposition Services Co., Inc. in the
Atlantic City, New Jersey area, except for that per-
formed at the Atlantic City Convention Center.