Brotherhood of Painters, Decorators,, Etc.

National Labor Relations Board - Board Decisions

Feb 17, 1960

126 N.L.R.B. 683 (N.L.R.B. 1960)

BROTHERHOOD OF PAINTERS, DECORATORS, ETC 683
rapher In addition to these duties he is the voice of Popeye on the
station's own puppet show, and as such is the station's leading per-
sonality He receives a talent fee in addition to his regular salary.
His interests are then more allied with those of the talent employees.
We shall therefore exclude him from the unit without passing upon
the question of his supervisory status 13
As to the production chief and chief engineer, the record contains
insufficient evidence upon which to make a finding as to their super-
visory status We shall, therefore, permit these employees to vote
subject to challenge
We find that the following employees of Douglas H McDonald,
Trustee of Evansville Television, Inc, Debtor, employed at the Em-
ployer's studio in Evansville, Indiana, and at its transmitter at
Chandler, Indiana, to constitute an appropriate unit for collective
bargaining within the meaning of Section 9 (b) of the Act
All engineers, cameramen, directors, floormen, projectionists, traffic
employees, continuity writers, promotion men, artists, and film depart-
ment employees including news film men, newswriters, and film tech-
nicians, employed at the Employer's television station, Evansville,
Indiana, and transmitter, Chandler, Indiana, excluding all office
clerical employees, salesmen, announcers, talent employees, profes-
sional employees, guards, and supervisors as defined in the Act
[Text of Direction of Election omitted from publication.]
"Ibsd
Brotherhood of Painters , Decorators, and Paper Hangers of
America, Local No. 365, AFL-CIO and Southern Florida Hotel
and Motel Association (Seville Hotel)
Brotherhood of Painters, Decorators , and Paper Hangers of
America, Local No. 365, AFL-CIO and Southern Florida Hotel
and Motel Association ( Carillon Hotel). Cases Nos 1f-CD-9
and 10-CD-10 February 17, 1960
DECISION AND DETERMINATION OF DISPUTE
STATEMENT OF THE CASE
This proceeding arises under Section 10 (k) of the Act, which pro-
vades that, "whenever it is charged that any person has engaged in an
unfair labor practice within the meaning of paragraph (4) (D) of
Section 8(b), the Board is empowered to hear and determine the dis-
pute out of which such unfair labor practice shall have arisen "
On October ,5 and October 8, 1959, the Southern Florida Hotel and
Motel Association, herein called the Association, filed, with the Re-
126 NLRB No 92
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gional Director for the Twelfth Region charges on behalf of the
Seville and Carillon Hotels, respectively, alleging that Brotherhood
of Painters, Decorators, and Paper Hangers of America, Local No.
365, AFL-CIO, herein called Painters, had engaged in and was engag-
ing in certain unfair labor practices within the meaning of Section
8(b) (4) (D) of the Act. It was charged, in substance, that Painters
had induced or encouraged the employees of these Employers to en-
gage in a strike with an object of forcing or requiring the Seville and
Carillon Hotels to assign certain painting work to Painters' members,,
rather than to maintenance employees, employed by each Hotel, who
are members of Hotel Employees Local Union 255, Hotel and Res-
taurant Employees and Bartenders International Union, AFL-CIO,
herein called Hotel Employees.
Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.79
and 102.80 of Board Rules and Regulations, Series 7, the Regional
Director investigated the charges and provided for a consolidated
hearing upon due notice to the parties. The hearing was held before
Henry L. Jalette, hearing officer, on November 23, 1959. All parties
appeared at the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to adduce evidence
bearing on the issues. The rulings of the hearing officer made at the
hearing are free from prejudicial error 1 and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
Upon the entire record in these cases, the Board makes the following
findings :
FINDINGS OF FACT
1. The Association is a multiemployer organization composed of
owners and operators of hotels and motels in both the Miami Beach,
Florida, and the Miami, Florida, areas. The Seville and Carillon
Hotels are members of the Association. The Association engages in
collective bargaining with various labor organizations on behalf of its
members and was organized, in part, for this purpose. Each of the
hotels in the Association, including the Seville and the Carillon, does
a gross annual business in excess of $500,000. In none of the Associa-
tion's member-hotels do 75 percent of the guests reside therein for a
month or more. Collectively, the hotels in the Association make pur-
1 The hearing officer, on numerous occasions, declined to admit testimony which was
offered to illustrate that certain acts of Painters , other than the picketing itself, induced
or encouraged the employees of various employers to engage in a strike . Such evidence
has always been held to be admissible in 10 ( k) proceedings since it is the Board's duty
in such proceedings to determine whether there is reasonable cause to believe that Section
8(b) (4) (D ) has been violated . Inasmuch as this point can be decided herein on the
basis of other evidence , we find that , while the hearing officer's rulings with respect to
this testimony were in error , such error was not prejudicial in nature.
BROTHERHOOD OF PAINTERS, DECORATORS, ETC. 685
,chases from points located directly outside the State of Florida in an
amount exceeding $100,000 annually. We find that the Association
and its members are engaged in commerce within the meaning of the
Act, and that it will effectuate the policies of the Act to assert juris-
diction herein.2
2. Painters and Hotel Employees are labor organizations within the
meaning of the Act.
3. The dispute :
a. The facts
The Association is a party to a collective-bargaining agreement
with Hotel Employees which covers wages, hours, and working con-
ditions of certain classifications of employees including those em-
ployed in the maintenance department of each member-hotel. This
agreement is effective from September 1, 1959, to October 31, 1969,
and succeeds a collective-bargaining agreement similar in scope which
was in effect until the current agreement became effective.
Both the Seville and Carillon Hotels generally assign to employees
in their maintenance departments certain touch-up painting work,
consisting of touching up blemishes, scars, or other areas of damage to
hotel rooms and property. This work often necessitates the painting
of several entire walls. When a major painting project is under-
taken-the painting of all the rooms on a floor, for example-an out-
side contractor is hired to do this work. The maintenance department
employees, in addition to their painting duties, also perform minor
plumbing, carpentry, and electrical work. The employees in the main-
tenance departments of the Seville and Carillon Hotels are members
of Hotel Employees.
In July and September 1959, Hugh Smith, business agent of
Painters, visited Milton Towbin, executive director of the Seville, and
stated, to no avail, that he would like to have Painters' members on
the payroll of that hotel. Smith, on two occasions in September
1959, asked Chief Engineer Peppler of the Seville whether that hotel
employed any painters. Receiving negative responses, Smith then
stated that he knew the Hotel employed painters, that his Union had
men out of work, and that he would have to put up a picket line
around the Hotel.
On October 1, 1959, Smith called Edwin Dean, Executive Secretary
of the Association, and stated that the Carillon had two men doing
work which is within Painters' jurisdiction, that he had heard that a
truckload of paint had been delivered to the Carillon, and that he
would have to act. Dean checked with Carillon and subsequently in-
formed Smith that the Carillon had not received a load of paint and
that the executive director of the latter Hotel had said that Smith
2 Floridan Hotel of Tampa, Inc ., 124 NLRB 261.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not get very far if he insisted that a member of Painters do
the work every time a man picked up a brush. Smith replied that he
was not going to let Painters' standards be lowered.
On October 5, 1959, Painters picketed the various entrances of the
Seville Hotel with signs reading :
PAINTERS
STANDARDS
are being
LOWERED
HOTEL
LOWERS WAGES
and other benefits
Painters Local Union 365
AFL-CIO
HOTEL
LOWERS
WORKING
CONDITIONS
PAINTERS L.U. 365
AFL-CIO
On October 7, 1959, Painters began picketing the Carillon Hotel
with signs bearing the following legend :
PAINTERS LOCAL
UNION 365
Is Picketing to Advise the
PUBLIC
CARILLON HOTEL
Does Not Employ Skilled Union Painters
Does Not Have a Contract to Pay Wages Which
Union Painters Have Taken Years to Establish
THIS IS A PUBLIC PROTEST
This is Not Meant to Stop Any Person Working
for Any Other Employer from Making Deliveries
or Performing Any Services
AFL-CIO
The picketing continued until October 27, at which time an injunc-
tion was issued by the Federal District Court pursuant to a petition
filed by the Board under Section 10(1) of the Act.
b. Contentions of the parties
The Association, on behalf of the Seville and Carillon Hotels, con-
tends that Painters picketed said Hotels with the intention of induc-
ing or encouraging employees of other employers to engage in a strike:
BROTHERHOOD OF PAINTERS, DECORATORS, ETC. 687
or concerted refusal, the object of which was to force or require the
Hotels to award the maintenance touch-up painting done by their own
employees to members of Painters.
Painters apparently contends, although its position is not clear,
that it is entitled to the disputed work by virtue of a practice wherein
hotels in the area adopt, and abide by, a verbal agreement with
Painters which provides for the employment of members of the latter
Union to do painting work.
Applicability of the Statute
Section 10(k) of the Act empowers the Board to hear and determine
disputes out of which 8(b) (4) (D) charges have arisen. However,
before the Board may proceed to a determination of the dispute in
10(k) proceedings, it must be satisfied that there is reasonable cause
to believe that Section 8(b) (4) (D) has been violated. In order to
conclude that reasonable cause exists, the Board must find some evi-
dence in the record showing a strike or concerted refusal to perform
services, or inducement or encouragement to engage in a strike or
concerted refusal to perform services, or evidence of threats, coercion,
or restraint directed against or applied to any person engaged in coin-
merce or in an industry affecting commerce, where the purpose of any
of the above is that proscribed by Section 8(b) (4) (D) of the Act.'
Under the circumstances herein, we find that there is reasonable
cause to believe that the object of the picketing by Painters, notwith-
standing the wording of the legends on the picket signs, was to induce
or encourage employees of other employers to engage in a strike or
concerted refusal to perform services in an attempt to force or require
the Hotels to award the disputed work to Painters rather than to their
own employees.' Such picketing for this purpose is within the pro-
scription of Section 8 (b) (4) (D).
While Painters apparently is relying to some extent on an area
practice wherein hotels formerly adopted, and abided by, a verbal
agreement to use only Painters' members, there is no evidence in the
record that such practice or agreement was in effect at any time ma-
terial herein with respect to the Carillon or Seville. Accordingly, we
find that a dispute exists within the purview of Section 10 (k).
c. The Merits of the Dispute
As indicated above, there is evidence that the dispute involved the
Seville and Carillon Hotels' assignment of maintenance touch-up
painting to its own employees, who are members of Hotel Employees,
rather than to members of Painters. It is well established that an
Employer is free to make work assignments without being subject to
pressures by a labor organization seeking the work for its members,
3 Labor-Management Reporting and Disclosure Act of 1959 , Section 8 ( b) (4) (1) ,and (ii).
4 Industrtial Chrome Plating Co, 121 NLRB 1298, 1300.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless the employer is thereby failing to conform to an order or cer-
tification of the Board determining the bargaining representative for
employees performing such work, or unless an employer is bound by
an agreement to assign the work in dispute to other employees.
Painters has no order, certification, or valid contractual claim to the
disputed work herein. Accordingly, we find that Painters is not
entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to
force or require the Seville and/or Carillon Hotels to assign the
disputed work to members of Painters rather than to its own em-
ployees. However, we are not by this action to be regarded as assign-
ing the work in question to members of Hotel Employees.
DETERMINATION OF DISPUTE
On the basis of the foregoing findings of fact and the entire record
in this case, the Board makes the following determination of dispute
pursuant to Section 10 (k) of the Act :
1. Brotherhood of Painters, Decorators, and Paper Hangers of
America, Local 365, AFL-CIO, is not, and has not been, lawfully
entitled to force or require the Seville Hotel to assign the work of
maintenance painting to employees who are members of Painters,
rather than to the Seville Hotel's own employees.
2. Brotherhood of Painters, Decorators, and Paper Hangers of
America, Local 365, AFL-CIO, is not, and has not been, lawfully
entitled to force or require the Carillon Hotel to assign the work of
maintenance painting to employees who are members of Painters,
rather than to the Carillon Hotel's own employees.
3. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Painters shall notify the Regional Director for the
Twelfth Region, in writing, whether or not it will refrain from forc-
ing or requiring the Seville and Carillon Hotels, by means proscribed
by Section 8(b) (4) (D) of the Act, to assign the disputed work to
members of Painters, rather than to the Seville and Carillon Hotels'
own employees.
International Union of Operating Engineers , Local Union No.
12, AFL-CIO and Tri County Association of Civil Engineers
and Land Surveyors
International Union of Operating Engineers , Local Union No.
12, AFL-CIO and Tri -Counties Association of Civil Engineer-
ing Employees. Cases Nos. 21-CC-319 and 21-CC-322. , Febru-
ary 17, 1960
DECISION AND ORDER
On a charge and amended charge duly filed on March 26, 1959, and
April 8,1959, by Tri County Association of Civil Engineers and Land
126 NLRB No. 87.