Carpenters Local 623 (Atlantic Exhibit)

National Labor Relations Board - Board Decisions

Feb 14, 1985

274 N.L.R.B. 71 (N.L.R.B. 1985)

CARPENTERS LOCAL 623 (ATLANTIC EXHIBIT)
United Brotherhood of Carpenters and Joiners of
America, Local 623 of Atlantic County and
Sign , Pictorial and Displaymen , Local 1447,
International Brotherhood of Painters and
Allied Trades and Atlantic Exhibit Services,
Inc.; McColl's Display Service , Inc.; and Instal-
lation and Dismantle, Inc.
Sign , Pictorial and Displaymen , Local 1447, Interna-
tional Brotherhood of Painters and Allied
Trades and Atlantic City Convention Center
Authority and United Exposition Service Com-
pany and Carpenters District Council of South
Jersey and its Local 623. Cases 4-CD-608 and
4-CD-618
14 February 1985
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The first charge, Case 4-CD-608, in this Section
10(k) proceeding was filed 13 September 1983 by
Sign, Pictorial and Displaymen, Local 1447, Inter-
national Brotherhood of Painters and Allied Trades
(Displaymen Local 1447), alleging that United
Brotherhood of Carpenters and Joiners of America,
Local 623 of Atlantic County (Carpenters Local
623) violated Section 8(b)(4)(D) of the National
Labor Relations Act by engaging in proscribed ac-
tivity with an object of forcing Atlantic Exhibit
Services, Inc. (AES), McColl's Display Service,
Inc. (McColl's), and Installation and Dismantle,
Inc. (I & D) to assign certain work to employees it
represents rather than to employees represented by
Displaymen Local 1447. The second charge, Case
4-CD-618, was filed 28 December 1983 by Atlan-
tic City Convention Center Authority (Convention
Center) alleging that Displaymen Local 1447 vio-
lated Section 8(b)(4)(D) of the Act by engaging in
proscribed activity with an object of forcing the as-
signment of certain work to employees it represents
rather than to employees represented by Carpen-
ters Local 623. The cases were consolidated 24
January 1984. The hearings were held 8 and 9 Feb-
ruary 1984 before Hearing Officer Joseph C. Kelly
and 28 February 1984 before Hearing Officer
Carmen P. Cialino Jr.
The Board affirms the hearing officers' rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.'
' The parties have filed various motions to correct the hearing tran-
script We grant the motions to the extent they are unopposed Where
there are opposing positions on the corrections to be made , we grant Dis-
playmen Local 1447's proposed corrections
1. JURISDICTION
71
AES, McColl's, and I & D, New Jersey corpora-
tions, engaged in providing services to exhibitors
who display products at conventions or trade
shows, annually provide services valued in excess
of $50,000 each in the State of New Jersey for cor-
porations located outside the State of New Jersey.
We find that AES,, McColl's, and I & D are en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act and that Carpenters Local
623 and Displaymen Local 1447 are labor organiza-
tions within the meaning of Section 2(5) of the
Act.
The Convention Center was created by the laws
of the State of New Jersey. The Convention
Center manages and operates Atlantic City's Con-
vention Hall (Convention Hall).
II. THE DISPUTE
A. Background and Facts of Dispute
The Convention Center leases its premises to
show managers for trade shows. A show manager
signs a contract with the Convention Center agree-
ing to comply with rules and regulations concern-
ing the use of the premises, including the use of the
Convention Center's service desk to obtain carpen-
ters to perform certain work. The show manager
contracts with exhibitors who provide products to
be displayed and with a show decorator who ar-
ranges for freight delivery, furniture rental, and
booth construction.
In the early 1950s displaymen did most of the
booth erection. Exhibitors used prefabricated dis-
plays infrequently. When prefabricated displays
became common in the 1950s, carpenters erected
and dismantled prefabricated displays. For carpen-
try services, the Convention Center charged show
decorators the carpenters' hourly wage rates plus
an extra hourly charge to obtain revenue for the
Convention Center. From 1957 to the early 1980s
carpenters performed the work exclusively. In the
1980s, some show decorators employed displaymen
directly for this work to avoid the Convention
Center's service desk fee for the use of the carpen-
ters.
The Convention Center, although not party to a
written agreement with Carpenters Local 623, paid
carpenters the wage rates, benefits, and area pen-
sion contributions provided in the area Building
Contractors Association agreement from 1974
through 1 May 1983. On 1 May 1983 the Conven-
tion Center and Carpenters Local 623 agreed to be
bound by the Building Contractors Association
agreement, which included jurisdiction for carpen-
ters over "the handling and installation of all pre-
274 NLRB No. 14
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fabricated, precut and modular structures." On 18
October 1983 the Convention Center and Carpen-
ters Local 623 signed a contract governing the
terms and conditions of employment of carpenters
at the Convention Hall. The contract codified the
past practice and reiterated that carpenters would
perform the "erection and dismantling of
display[s]."
In the early 1980s, when show decorators em-
ployed displaymen to do the disputed work, Car-
penters Local 623 objected. No mutual agreement
was reached. AES, McColl's, and I & D entered
into initial contracts with Displaymen Local 1447
on 1 April 1982, 16 March 1981, and 17 January
1983, respectively. The contracts provide for dis-
playmen to erect and dismantle prefabricated dis-
plays.
On 23 March 1983 displaymen were installing a
prefabricated display at the Convention Hall for
AES. A Carpenters Local 623 steward telephoned
his business agent Robert Boyce, who came to the
Convention Hall. Boyce arrived carrying picket
signs which he contends were for a dispute at an
area restaurant. No one could identify the wording
on the signs. Displaymen Local 1447 Business
Agent William Toland testified Boyce told him
that Carpenters Local 623 was going to picket the
entire Convention Hall unless Toland removed the
displaymen. Toland and another witness testified
that Howard Persina, manager of the Convention
Hall, told them he had heard Carpenters Local 623
had threatened to picket.
On 23 December 1983 Displaymen Local 1447
Business Manager Ed Ireland telephoned Persina
and told him that he would put up a picket line if
displaymen could not perform the disputed work
for show decorators with whom his Union had
agreements . Persina testified that a show manager
(United Exposition Services) telephoned him about
receiving a similar threat from a Displaymen Local
1447 representative.
B. Work in Dispute
The disputed work involves the installation and
dismantling of prefabricated display booths for pri-
vate contractors at the Convention Hall.
C. Contentions of the Parties
The Convention Center and Carpenters Local
623 contend that the disputed work should be
awarded to Carpenters Local 623-represented em-
ployees on the basis of the Convention Center's
preference , past practice, Carpenters Local 623's
collective -bargaining agreement , relative skills,
economy and efficiency of operation , and area
practice . Carpenters Local 623 also urges that in-
dustry practice favors awarding the disputed work
to employees it represents.
Displaymen Local 1447 argues that the disputed
work should be awarded to Displaymen Local
1447-represented employees on the basis of the
preferences of AES, McColl's, and I & D; its col-
lective-bargaining agreements and constitution;
economy and efficiency of operation; past practice
of AES, McColl's, and I & D; and area past prac-
tice.
D. Applicability of the Statute
As discussed above, in March 1983 Carpenters
Local 623 Business Agent Boyce arrived at the
Convention Hall in response to a complaint that
displaymen were performing disputed work. Ac-
cording to Displaymen Local 1447 Business Agent
Toland, Boyce threatened to picket the Convention
Hall unless the displaymen were taken off the dis-
puted work. Persina told Toland and another wit-
ness he heard that Carpenters Local 623 had
threatened to picket.2 In December 1983 Display-
men Local 1447 Business Manager Ireland threat-
ened to picket the Convention Hall if displaymen
could not perform the disputed work for show
decorators having written agreements with his
Union. Although the Convention Center is not an
employer under Section 2(2) of the Act, Section
8(b)(4)(D) of the Act provides that a union violates
the Act when it threatens a "person" in order to
force an employer to assign work to employees
represented by one labor organization rather than
another. In this case, the Convention Center was
the "person" threatened.
We find reasonable cause to believe that viola-
tions of Section 8(b)(4)(D) have occurred and that
there exists no agreed method for voluntary adjust-
ment of the dispute within the meaning of Section
10(k) of the Act. Accordingly, we find that the dis-
pute is properly before the Board for determina-
tion.
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.
2 Because the Board must only find reasonable cause , a conflict in testi-
mony does not preclude the Board from determining a 10(k) dispute La-
borers Local 334 (C H Heist Corp), 175 NLRB 608 (1969)
CARPENTERS LOCAL 623 (ATLANTIC EXHIBIT)
Machinists Lodge 1743 (J. A. Jones Construction),
135 NLRB 1402 ( 1962).
The following factors are relevant in making the
determination of this dispute.
1. Certifications and collective -bargaining
agreements
No party claims there are certifications applica-
ble to the work in dispute.
Carpenters Local 623 contends that its contract
with the Convention Center specifies that the dis-
puted work falls under the Carpenters ' jurisdiction.
The contract modifies the past practice of the con-
tracting parties. Displaymen Local 1447 similarly
contends that its contracts with AES, McColl's,
and I & D give it jurisdiction over the disputed
work . We conclude that the collective -bargaining
agreements favor an award of the disputed work to
neither group of employees.
2. Past practice
Displaymen erected and dismantled booths in the
early 1950s before the frequent use of prefabricated
displays. From at least 1957 to the early 1980s car-
penters erected and dismantled prefabricated dis-
plays exclusively . Beginning in the early 1980s cer-
tain show decorators used both carpenters and dis-
playmen to perform the disputed work . Except for
one instance where the Unions reached a special
agreement , Carpenters Local 623 complained
whenever it knew that displaymen were used to
perform disputed work. Because Carpenters Local
623 performed the work for over 20 years until vir-
tually the time of the instant dispute, we find this
factor favors awarding the work to employees Car-
penters Local 623 represents.
3. Area practice
Carpenters perform the disputed work in con-
vention halls in Philadelphia, Washington, D.C.,
and New York. Area practice , therefore , favors
awarding the disputed work to employees Carpen-
ters Local 623 represents.
4. Industry practice
In addition to performing the work in Atlantic
City and the surrounding area , carpenters perform
the work in Cleveland and Chicago. Displaymen
perform the disputed work in Anaheim , Los Ange-
les, Las Vegas, Dallas, Miami , and Providence.
Teamsters perform the disputed work in Boston.
Accordingly, industry practice favors awarding the
disputed work to neither group of employees.
73
5. Relative skills
Prefabricated displays can be complex , with two
stories and stairways . The displays may be pack-
aged in numerous shipping crates, which may re-
quire carpentry repair after repeated use. Erection
and dismantling of the displays involves the use of
nuts, bolts, screwdrivers , pliers, handtools, and
power machinery . The tools and equipment are
conventionally used by carpenters rather than dis-
playmen . We therefore conclude that this factor
favors awarding the disputed work to employees
Carpenters Local 623 represents.
6. Economy and efficiency of operation
Displaymen Local 1447's contracts and Carpen-
ters Local 623 's contract provide for a guaranteed
minimum of 4 hours ' pay and 2 hours ' pay, respec-
tively . The displaymen can be used to perform
painting or other types of display work at the Con-
vention Hall if they run out of erection work
before their 4 hours are completed . They can also
be used during this time to work at hotel casinos
nearby where the show decorators have other
work to be performed The carpenters can be used
to perform assorted carpentry repair around the
Convention Hall and in its carpentry shop if they
run out of erection work before their 2-hour mini-
mum is met.
Displaymen have more experience in positioning
booths to avoid overlapping of exhibits . They can
perform touchup paint work that may be required
on exhibits . Carpenters can repair crates in the
event of damage in transit . They can perform other
carpentry work in the Convention Hall and are
more experienced and familiar with the Convention
Hall's operations.
We find different economy and efficiency rea-
sons favoring both groups of employees , and con-
sequently this factor is inconclusive.
7. Employer preference
AES, McColl 's and I & D prefer assigning the
disputed work to displaymen ; the Convention
Center prefers assigning the work to carpenters.
The Convention Center maintains control over
the premises where the disputed work is per-
formed . The contract between the Convention
Center and the show contractor specifies that car-
pentry work be performed by carpenters hired
through the Convention Center's service desk. The
show decorators have attempted to use displaymen
to avoid the service desk fee for using carpenters
knowing that the Convention Center wanted and
expected carpenters to perform the disputed work.
Under these circumstances , we find the Convention
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Center's preference is entitled to greater weight
than that of AES, McColl's, and I & D. Accord-
ingly, this factor favors awarding the disputed
work to the employees Carpenters Local 623 rep-
resents.
Conclusions
After considering all the relevant factors, we
conclude that employees represented by Carpenters
Local 623 are entitled to perform the work in dis-
pute. We reach this conclusion relying on past
practice, area practice, relative skills, and the Con-
vention Center's preference. In making this deter-
mination , we are awarding the work to employees
represented by Carpenters Local 623, not to that
Union or its members. The determination is limited
to the controversy that gave rise to this proceed-
ing.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees represented by United Brother-
hood of Carpenters and Joiners of America, Local
623 of Atlantic County are entitled to perform the
installation and dismantling of prefabricated display
booths for private contractors at Atlantic City's
Convention Hall.
2. Sign, Pictorial and Displaymen, Local 1447,
International Brotherhood of Painters and Allied
Trades is not entitled by means proscribed by Sec-
tion 8(b)(4)(D) of the Act to force the Atlantic
City Convention Center Authority or private con-
tractors to assign the disputed work to employees
represented by it.
3. Within 10 days from this date, Sign , Pictorial
and Displaymen, Local 1447, International Broth-
erhood of Painters and Allied Trades shall notify
the Regional Director for Region 4 in writing
whether it will refrain from forcing the Employer,
by means proscribed by Section 8(b)(4)(D), to
assign the disputed work in a manner inconsistent
with this determination.