Drywall Tapers, Local 2006

National Labor Relations Board - Board Decisions

Mar 24, 1980

248 N.L.R.B. 626 (N.L.R.B. 1980)

626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drywall Tapers and Finishers, Local 2006, a/w In-
ternational Brotherhood of Painters and Allied
Trades of the United States and Canada, AFL-
CIO; International Brotherhood of Painters and
Allied Trades of the United States and Canada,
AFL-CIO and Painting and Decorating COn-
tractors of America, Pittsburgh Chapter and A.
J. Vater & Co., Inc,; and T. D. Patrinos Paint-
ing and Contracting, Inc. and International
Brotherhood of Painters and Allied Trades of
the United States and Canada, Local Union 6,
AFL-CIO. Case 6-CD-676
March 24, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge by Painting and Decorating Contrac-
tors of America, Pittsburgh Chapter, herein called
the Association, alleging that Drywall Tapers and
Finishers, Local 2006, a/w International Brother-
hood of Painters and Allied Trades of the United
States and Canada, AFL-CIO, herein called Local
2006, had violated Section 8(b)(4)(D) of the Act by
engaging in certain proscribed activity with the
object of forcing or requiring A. J. Vater & Co.,
Inc., herein called Employer Vater, and T. D. Pa-
trinos Painting and Contracting, Inc., herein called
Employer Patrinos, and other persons engaged in
commerce or in an industry affecting commerce to
assign certain work to employees represented by it
rather than to employees represented by Interna-
tional Brotherhood of Painters and Allied Trades
of the United States and Canada, Local Union 6,
AFL-CIO, herein called Local 6.
The charge was amended on October 15, 1979,
to include the International Brotherhood of Paint-
ers and Allied Trades of the United States and
Canada, AFL-CIO, herein called the International.
Pursuant to notice, a hearing was held before
Hearing Officer Donald Burns on October 31
through November 2, 1979. 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.
Thereafter, the Association, Local 2006, and the
International filed briefs.
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 Hearing Officer's
rulings made at the hearing and finds that they are
248 NLRB No. 93
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYERS
The parties stipulated and we find that the Asso-
ciation is an organization composed of employers
engaged in the construction business, and it exists
for the purpose, inter alia, of representing its em-
ployer-members in negotiating and administering
collective-bargaining agreements with various labor
organizations.
At all times material herein, Employers Vater
and Patrinos have been and are now employer-
members of the Association. The parties stipulated,
and we find, that Employer Vater, a Pennsylvania
corporation with its principal place of business in
Pittsburgh, is engaged in the construction business
as a painting contractor. During the past year, Em-
ployer Vater purchased goods and materials from
outside the Commonwealth of Pennsylvania having
a value of $50,000. The parties also stipulated, and
we find, that Employer Vater is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and it will effectuate the purposes of the
Act to assert jurisdiction herein.
The parties stipulated, and we find, that Employ-
er Patrinos, a Pennsylvania corporation with its
principal place of business in Pittsburgh, is engaged
in the construction business as a painting contrac-
tor. During the past year, Employer Patrinos pur-
chased goods and materials from outside the Com-
monwealth having a value of $50,000. The parties
also stipulated, and we find, that Employer Pa-
trinos is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and it will effec-
tuate the purposes of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Local
2006 and Local 6 are labor organizations within the
meaning of Section 2(5) of the Act.
111. THE DISPUTE
A. Background and Facts of the Dispute
Employer Vater is a painting subcontractor for
the construction of the Century III Shopping
Center in West Mifflin, Pennsylvania. In July 1979,
it assigned the work of drywall taping to its em-
ployees who are represented by Local 6. Since
July 13, 1979, Local 2006 has demanded that Vater
assign the drywall taping work at Century III to
employees who are represented by that Local.
DRYWALL TAPERS, LOCAL 2006 627
Employer Patrinos was the painting subcontrac-
tor at the Station Square Shopping Center in Pitts-
burgh, Pennsylvania, until it completed this work
about the first part of October 1979. On September
27, 1979, Patrinos assigned the work of drywall
taping to its employees who are represented by
Local 6. From September 27, 1979, until the work
was completed, Local 2006 demanded that Em-
ployer Patrinos assign the disputed work to em-
ployees who are represented by that Local.
The Association is an organization composed of
employers engaged in the construction industry as
painting contractors and which exists for the pur-
pose, inter alia, of representing its employer-mem-
bers in negotiating and administering the collective-
bargaining agreements with various labor organiza-
tions, including Local 6.
At least since 1956, the Association has main-
tained successive collective-bargaining agreements
with Local 6 on behalf of its members, the most
recent of which expired May 31, 1979. Each of the
agreements contained a clause specifying that
drywall taping work was to be performed by mem-
bers of Local 6. In June 1976, the International
granted a charter to Local 2006 giving it exclusive
work jurisdiction over drywall taping work. The
purpose of granting exclusive jurisdiction of this
work to members of Local 2006 was to put to rest
the complaints and allegations of members of Local
6 who performed drywall taping work exclusively
that they were being discriminated against and not
properly represented by Local 6. Approximately 67
members of Local 6 joined the newly chartered
Local 2006; all members of Local 2006 work exclu-
sively as drywall finishers.
The current dispute arose out of negotiations for
a new contract between the Association and Local
6.' By letter dated April 14, 1977, the International
advised both Locals that they were not permitted
to execute new collective-bargaining agreements
without International approval of the jurisdiction
clauses in regard to the work in dispute between
the two Locals.
I The same issue had been raised following negotiations for the 1976
contract. There, an 8(bX3) charge was filed by the Association alleging
that Local 6 had refused to execute a collective-bargaining agreement,
and Local 6 had denied that any agreement had been reached. The Ad-
ministrative Law Judge found that Local 6 was in violation of Sec.
8(b)(3) as the Association had made its position clear that there would be
no contract without the drywall provision and the union negotiating team
had abandoned its position on the drywall issue and had accepted the
contract. Further, the Administrative Law Judge found that the negotiat-
ing team had authority to enter into agreement on behalf of Local 6
without the approval of the International. No exceptions were filed to
this Decision See International Brotherhood of Painters and Allied Trades.
Local Union 6. AFL-CIO Painting and Decorating Contractors of America.
Pittsburgh Chapter), Case 6-CB-3759, May 2, 1977 (not reported in vol-
umes of Board Decisions)
At the commencement of and throughout these
negotiations, representatives of the International
and Local 6 informed the Association representa-
tives that any clause with respect to the disputed
work would have to be approved by the Interna-
tional. The Association, however, remained ada-
mant that the new agreement with Local 6 retain
the drywall clause. On June 19, 1979, the Associ-
ation presented Local 6 with a "total package" of
proposals, including a modification of the drywall
clause.2 The membership considered the proposals
and was told by the International representative
that they could not vote on the drywall jurisdiction
and one other proposal; on June 22, 1979, the
membership ratified the collective-bargaining
agreement.
On July 12, 1979, representatives of the Associ-
ation met in Washington, D.C., with officers of the
International and representatives of Locals 6 and
2006 to present their view of the jurisdictional dis-
pute. On August 3, 1979, the International issued a
decision dividing the work, granting Local 2006
exclusive jurisdiction for all new construction jobs
and projects, and all alterations, remodeling, and
renovation jobs that exceed 750 square feet of
drywall surface, and granting Local 6 exclusive ju-
risdiction over the remaining drywall work. In ad-
dition, jurisdiction over the work of texturing of all
surfaces was transferred from Local 2006 to Local
6.
B. The Work in Dispute
The work in dispute involves the assignment of
drywall taping performed by members of the Asso-
ciation within Allegheny County, Pennsylvania.
C. The Contentions of the Parties
The Association contends that the work in dis-
pute should continue to be assigned to employees
represented by Local 6 with whom it has had a
collective-bargaining relationship for approximately
22 years and that employees represented by it have
been assigned this work at previous projects. The
Association further contends that the employees
represented by Local 6 are entitled to perform the
work in dispute on the basis of an alleged current
collective-bargaining agreement as well as on the
basis of economy and efficiency, skill, past practice,
and current work assignment.
Local 6 did not file a brief, but stated at the
hearing that employees represented by it should
continue to perform the work in dispute for Asso-
ciation members and for other employers with
2 More specifically. the proposal specified that all drywall work that
encompassed 20 percent or less of the cost of the total job fall within the
work jurisdiction of Local 6.
DRYWALL TAPERS, LOCAL 2006
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whom it has a collective-bargaining relationship.
However, Local 6 has adhered to directives from
its International and has not executed the recently
negotiated collective-bargaining agreement, be-
cause the agreement contains a clause on drywall
jurisdiction.
Local 2006 and the International take the posi-
tion that the award should be made to employees
represented by Local 2006 because the issue is an
internal dispute and the International has assigned
the work to Local 2006 in an effort to settle the
longstanding dispute within Local 6 in which cer-
tain members whose cards were stamped "tapers"
had complained to the International that Local 6
was discriminating against them in referrals. Local
2006 and the International further contend that the
apprenticeship program of Local 2006 provides the
special skills which the work requires. In addition,
Local 2006 contends that area practice and efficien-
cy favor the award to employees it represents.
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 there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated and that the parties have not agreed upon
a method which is binding on all of the parties for
the voluntary adjustment of the dispute. The par-
ties stipulated at the hearing that:
(1) Since on or about July 13, 1979, Local 2006
has demanded that Employer Vater assign the
work in dispute at Century III to employees it rep-
resents.
(2) Since September 27, 1979, Local 2006 has de-
manded that Employer Patrinos assign the work in
dispute at Station Square to employees it repre-
sents; this work was completed on or about the
first part of October 1979.
(3) Since on or about July 13, 1979, Local 2006
has threatened employees at Employers Vater and
Patrinos who are performing the work in dispute
with disciplinary charges and monetary fines if
those employees continue to perform such work.
(4) Since on or about August 1979, Local 2006
has threatened other Association employer-mem-
bers with picketing.
(5) Since on or about September 26, 1979, Local
2006 fined a painter-member of Local 6 employed
by Employer Vater for performing the work in dis-
pute at Century III.
From the record as a whole, we find reasonable
cause to believe that Section 8(b)(4)(D) of the Act
has been violated. To constitute an agreed-upon
method for settlement, a procedure must bind all
the parties to the dispute, including the employers.3
It is clear that there is no agreed-upon method for
the resolution of this dispute. While both Locals
appear to be bound by the decision of their Inter-
national, the Employers are not bound to resolve
work disputes through this procedure. According-
ly, we find the dispute is properly before the Board
for determination under Section 10(k) of the Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors. 4 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case. 5
The following factors are relevant in making the
determination of the dispute before us:
1. Certification and collective-bargaining
agreeements
Neither of the Unions involved herein has been
certified by the Board as the collective-bargaining
representative for employees of the Association's
members. Consequently, Board certifications are
not a factor in resolving this dispute. The Associ-
ation asserts that it has a collective-bargaining
agreement with Local 6 which permits members of
Local 6 to perform drywall taping work. However,
this agreement has not been executed by Local 6
and the Association has been on notice since the
commencement of negotiations for this collective-
bargaining agreement that the general executive
board of the International had to approve any con-
tract otherwise agreed to by Local 6 and the Asso-
ciation, and that Local 6 lacked authority to nego-
tiate a collective-bargaining agreement containing a
drywall provision. Accordingly, we are unable to
rely on contract considerations in awarding the
work in dispute.
2. Employers' past and present practice
Francis J. Vater, the Association's secretary, tes-
tified that it has been the practice of its employer-
members since at least 1956 to assign the disputed
work to their employees who are represented by
Local 6 and that its members are currently assign-
ing the work to employees who are represented by
Local 6. On the other hand, William Happ, busi-
3 Local Union 825, International Union of Operating Engineers, AF--CIO
(Schwerman Co. of Pa., Inc), 139 NLRB 1426, 1429 (1962).
4 NVL.R.B. v. Radio & Television Broadcast Engineers Union. Local
1212, International Brorherhood of Electrical Workers, AFL-CIO Colum-
bia Broadcasting Sysvtem, 364 U S. 573 (1961).
International Association of Machinists. Lodge No. 1743, AFL-CIO (J.
A Jones Construction Company), 135 N.RB 1402 (1962).
----
DRYWALL TAPERS, LOCAL 006 629
ness manager of Local 2006, testified that 46 mem-
bers of Local 6 transferred to Local 2006 at the
time the drywall work jurisdiction was transferred
to Local 2006. Accordingly, we find that the trans-
fer of members to Local 2006 seriously undercuts,
in our view, the Association's claims based on past
practice. However, current practice favors award-
ing the disputed work to the Employers' employees
represented by Local 6.
3. Area and industry practice
The evidence concerning area and industry prac-
tice is in conflict. There was testimony from James
Yoezle, business manager of Local 6, that many
nonmember contractors also use Local 6 members
to perform the disputed work. There was testimo-
ny of James Hofrichter, president of M.I.C.A., 6 an
association whose members are principally engaged
in drywall finishing, that members who are paint-
ing contractors use Local 2006 members to per-
form the disputed work and use Local 6 members
to perform the painting work. In regard to industry
practice outside Allegheny County, there was testi-
mony from William Happ, that the work jurisdic-
tions of the two trades are divided into separate
drywall and painting locals in Philadelphia and
New Jersey, while the painters' locals in the rural
areas of Pennsylvania have jurisdiction over both
trades. We find, therefore, that the factors of area
and industry practice are inconclusive in making a
determination of which group of employees will be
awarded the disputed work.
4. Skills and training
Each Local conducts an apprenticeship program
modeled on the National Apprenticeship and
Training Standards developed for each trade by
the U.S. Department of Labor. Michael J. Mooney,
a painting contractor and chairman of Local 6's ap-
prenticeship program, testified that from 30-40
hours are devoted to drywall finishing during the
3-year program. He acknowledged that Local
2006's 2-year program is not excessive in order to
develop the expertise required for a taper. James
Banda, a member of M.I.C.A., testified that it
would be difficult to find a Local 6 member who
could perform the disputed work as proficiently
and effectively as a Local 2006 member. In view of
the superior training of Local 2006 members, we
conclude that the factors of skills and training
favor employees represented by Local 2006.7
6 Master Interior Contractors Association
7 Local 481. Internationol Brotherhood of Electrical 'brkers. AFL-CIO
(Huber. Ilunt & NVchols Incorporated). 216 NLRH 431 (1975)
5. Economy and efficiency
There was testimony from John LaValley, a
painting contractor and chairman of the Associ-
ation's negotiating committee, that it is more effi-
cient for Local 6 members to perform both paint-
ing and taping work since an employee can alter-
nate the tasks. On the other hand, there was testi-
mony from James Banda that, in areas beyond
Local 6's jurisdiction, he hires members of painting
locals to perform the painting work and Local
2006 members to perform the taping work and that
this division of work between the two locals is
both efficient and economical. There was also testi-
mony that Local 2006 members can perform work
of higher quality and in less time as they have a
greater expertise in the work and in the use of
tools. On the basis of the above, we find that the
factors of economy and efficiency favor neither
group and, accordingly, are neutral factors in
awarding the work in dispute.
6. The Association's and employer-members'
preference
In view of the facts of this case, we are unwill-
ing to give substantial weight to the factors relied
upon by the Association and its employer-members'
employees who are represented by Local 6. More-
over, we conclude that, in the circumstances of this
case, the current preference of the Association and
its employer-members is contrary to the weight of
other relevant factors. Accordingly, we find that
even though the present preference of the Associ-
ation and its employer-members is a factor which
favors awarding the disputed work to employees
represented by Local 6, it is not entitled to control-
ling weight.8
7. The Locals' charters and award by the
International
Local 2006 was chartered as a "Drywall Tapers"
local in order to resolve complaints of discrimina-
tion from the Local 6 members who worked exclu-
sively as "tapers." The members of Local 6 who
worked exclusively as drywall tapers were trans-
ferred to Local 2006, as the International had de-
termined that a division of the trade by crafts was
the most effective means of resolving the com-
plaints. We find that the chartering of Local 2006
with exclusive drywall jurisdiction under these cir-
cumstances favors awarding the work in dispute to
employees represented by Local 2006.
On August 3, 1979, the International awarded
the work in dispute to employees represented by
8 Local Union No. 68. Wood. Wire and Metal Lathers International
Union, AFL-CIO (Acoustics & Specialiries. Inc.), 142 NLRB 1073 (1963).
DRYWALL TAPERS, LOCAL 2006
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 2006, but inasmuch as the award was not
binding on all parties, members of the Association
have continued to assign the work to employees
represented by Local 6, notwithstanding the award
by the International. Nevertheless, because the In-
ternational specifically awarded the work to em-
ployees represented by Local 2006, and in view of
the notice which the International gave to the As-
sociation prior to and during bargaining sessions
for the latest negotiated and unexecuted contract
between the Association and Local 6, we find that
this factor favors awarding the work in dispute to
employees represented by Local 2006.
Conclusion
Upon the record as a whole and after full consid-
eration of all the relevant factors, especially the
factors of the award of the International and the
superior skills and training of Local 2006 members,
we conclude that employees represented by Local
2006 are entitled to the work in dispute, and we
shall determine the dispute in their favor. We do
not, however, award the work to Local 2006 or to
its members.
Scope of Award
The Association, in its brief, requests that the
Board determine the dispute by awarding the dis-
puted work to employees represented by Local 6
and further requests that the Board's determination
be coextensive with the jurisdictional area involved
in past collective-bargaining agreements with Local
6, namely Allegheny County, Pennsylvania.
In the past, it has been the Board's policy to
make an award broad enough to encompass the
geographic area in which an employer does busi-
ness, wherever jurisdiction of the competing unions
coincide, in circumstances where there is an indica-
tion that the dispute is likely to recur.9 As mem-
bers of the Association will continue to seek new
contracts that include performance of the work in
dispute, as Local 6 did not effectively disclaim that
work and there is no assurance that disputes similar
to the one herein will not recur, and in view of the
history of such claims by Local 6, we find that the
dispute is likely to recur between the parties.
Therefore, our determination in this case applies to
all similar disputes occurring within Allegheny
County, Pennsylvania, where the Association and
its members operate and wherever the jurisdictions
of Local 6 and Local 2006 coincide.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing and the entire record in this proceed-
ing, the National Labor Relations Board makes the
following Determination of Dispute:
Employees employed by Association members
who are represented by Drywall Tapers and Fin-
ishers Local 2006, a/w International Brotherhood
of Painters and Allied Trades of the United States
and Canada, AFL-CIO, are entitled to perform all
work involving drywall taping for Association
members at the Century III Shopping Center and
on any other projects of Association members
within Allegheny County, Pennsylvania.
9 International Brotherhood of Electrical Workers. Local No. 26. AFL-
C10 (Taylor Woodrow Brtman Construction Corporation). 195 NLRB 261,
264 (1972).