Golden Gateway Center

National Labor Relations Board - Board Decisions

Feb 22, 1972

195 N.L.R.B. 492 (N.L.R.B. 1972)

492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Golden Gateway Center and Painters Local Union No.
4, Brotherhood of Painters , Decorators & Paper-
hangers of America, AFL-CIO, Petitioner . Case 20-
RC-10131
February 22, 1972
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, JENKINS, AND KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Paula J. Paley. The
Hearing Officer's rulings made at the hearing except as
discussed infra are free from prejudicial error and are
hereby affirmed.' Following the hearing, and pursuant
to Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of Proce-
dure, Series 8, as amended, and by direction of the
Regional Director for Region 20, this case was trans-
ferred to the National Labor Relations Board for deci-
sion. Thereafter, the Employer, the Petitioner, and the
Intervenor2 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.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2.The labor organizations involved claim to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of the Employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4. Golden Gateway Center, hereinafter Employer, a
limited partnership, is engaged in the operation and
management of a high-rise complex which included
apartments and commercial office buildings. In the op-
eration of its residential complex the Employer em-
ploys approximately 20 men on a full-time basis to
perform maintenance work.
In 1964 the Employer gave a power of attorney to the
Building Owners and Managers Association (herein
BOMA) to represent it for the purposes of collective
bargaining with various labor organizations including
the Intervenor. At that time the Employer employed
maintenance engineers to maintain the mechanical
Over Petitioner 's objection the Hearing Officer struck certain testimony
offered by Petitioner at pp 444 to 449 of the record In our view the Hearing
Officer 's ruling constituted prejudicial error The evidence and the Hearing
Officer's ruling are discussed infra.
' International Union of Operating Engineers , Stationary Local 39,
AFL-CIO
equipment at the Center; it employed no painters.'
Through BOMA the Employer became a party to a
collective-bargaining agreement with the Intervenor
covering the maintenance engineers' work. This collec-
tive-bargaining agreement, hereinafter the BOMA
agreement, covers a multiemployer group of about 60
employers. Section 3 of the BOMA agreement sets
forth the duties of engineers; these duties include the
operation, maintenance, and repair of all heating and
ventilating equipment, refrigerating and air-condition-
ing equipment, pumps, air compressors, water filters,
softeners, and piping and pumps used in conjunction
with water distribution, and the maintenance of eleva-
tors and all electrical work and repair. In enumerating
the functions of maintenance engineers there is no men-
tion of painting.
When the Employer joined the multiemployer group
in 1964 its maintenance painting was performed by
painting contractors, most of whom were under con-
tract with the Petitioner.
The Petitioner has separate contracts covering the
maintenance painters regularly employed by at least 11
of the employers who are parties to the BOMA agree-
ment. Elmer Johnson, executive vice president of
BOMA, testified that nothing in the BOMA agreement
or BOMA's bylaws prohibits employers who are par-
ties to the master agreement from negotiating in-
dividual contracts with other labor unions. Other than
the contention that the maintenance painters of the
Employer are covered by the BOMA agreement there
is no record evidence that any other employer covered
by the agreement employs painters who are working
under the BOMA agreement.
In July 1967, the Employer published newspaper
advertisements seeking "maintenance painters,"
through which it employed its first maintenance paint-
ers, two in July 1967 and one in September 1967. One
of these, Charles Gedra, testified that shortly after he
was hired he was told by the chief engineer he had to
join the Intervenor; rather than risk his job he did.
Foreman Jungclaus also testified that he answered an
advertisement for a maintenance painter. Both empha-
sized they had been hired as maintenance painters, and
had no experience as, and, in fact, were not competent
to perform the duties of, maintenance engineers.
At the time of the hearing the painting crew con-
sisted of a foreman^and five painters; they spend virtu-
ally all of their time painting. The maintenance engi-
neers do not paint, except occasionally to apply some
paint to a boiler they are working on, but spend all of
their time performing the functions of maintenance en-
gineers as set forth in the )SOMA agreement. There is
' The Petitioner seeks a unit of the maintenance painters now employed
by the Employer
' Jungclaus ' supervisory status will be discussed infra
195 NLRB No. 92
GOLDEN GATEWAY CENTER 493
no interchange between the painters and engineers. Ge-
dra, a maintenance painter , testified he does not know
how to perform any of the jobs listed under section 3
of the BOMA agreement and has received no training
with respect to those jobs. The Employer admits it has
trained none of the painters as engineers.
The painters report to work at the paint shop; the
engineers report to work at a different location. Until
the time of the hearing the painters were punched in by
their foreman , Jungclaus. The painters wear special
clothing and eat lunch separately as a group . The paint-
ers, except on rare occasions, do not work with the
maintenance engineers ; primarily they work in the
apartments or public areas while the maintenance engi-
neers work for the most part on heavy equipment.
Alfred Jungclaus identified himself as the painting
foreman .' Jungclaus receives 48 cents more per hour
than the other maintenance painters. The entire
maintenance crew is under the supervision of the chief
engineer. The engineers are directed by the assistant
chief engineer . Jungclaus directs the painters. Jung-
claus testified that he is in charge of ("runs") the paint-
work. He paints 50 to 75 percent of the time. Jungclaus
begins one-half hour earlier than the painting crew in
order to arrange the work for the day and line up the
crews, makes all assignments to the crews , and decides
where the crews will work . Jungclaus maintains and
controls all records of painting and orders all paint and
paint supplies. In addition , he determines himself
whether or not he will paint, changes work orders with-
out consulting with the chief engineer , and decides
whether public areas need painting . Jungclaus hands
out checks, receives all requests for time off, and de-
cides when overtime is necessary; the chief engineer has
never rejected Jungclaus' recommendation on over-
time. The only painter hired since Jungclaus became
foreman was interviewed by Jungclaus and hired on his
recommendation; another applicant for that job was
rejected on Jungclaus' recommendation.' Charles Ge-
dra was painting foreman from August 1967 to January
1969 when he left the Employer; he later returned as
a painter. Jungclaus, who succeeded Gedra as foreman,
testified that his duties as foreman are "generally simi-
lar" to the duties of Gedra when he (Gedra) was fore-
man. Gedra testified without contradiction that as fore-
man he discharged one and hired four painters.
The Employer hired its first painters in July 1967;
they were required to join the Intervenor. Upon learn-
ing this in late 1969 Evenson, business agent for Peti-
tioner, requested recognition as representative of the
maintenance painters. The Employer referred Evenson
to BOMA, where he was told BOMA had a contract
with the Intervenor and would abide by it. In April
1970, the painters learned they were being paid sub-
stantially less than the maintenance engineers ; the engi-
neers were receiving $5.03 per hour and the painters
$4.60 per hour . Certain of the painters including Gedra
went to McBride , then the Employer 's building super-
intendent , and complained . McBride responded that
the painters were not entitled to the engineers ' pay rate
as they were not competent to do the work of engineers.
Gedra then contacted the Petitioner who in turn con-
tacted management . Evenson , Petitioner 's business
agent , who testified on the last day of the hearing,
confirmed Gedra 's testimony . Evenson further testified
that he went to McBride and demanded that the paint-
ers receive the same pay rates as the engineers. After
Evenson testified , Employer 's counsel indicated he
would call McBride as a witness but that he would need
time to find McBride who no longer works for the
Employer . He added that it was his understanding that
Evenson never had such a conversation with McBride
but rather that McBride was contacted by another of
Petitioner's business agents , one Hellesto . The Hearing
Officer then stated that she would entertain a motion
to strike Evenson's testimony. Upon such motion by
the Employer the Hearing Officer , over the strenuous
objection of the Petitioner, ruled that Evenson's tes-
timony with respect to his April 1970 conversation
with McBride be stricken on the grounds that "the
conversation if it were of some importance taken in the
light of the total record in this proceeding is not
material to delay or continue the proceeding ."' In our
opinion this ruling was erroneous and prejudicial to
Petitioner's case. On the other hand, to utilize Even-
son's testimony would be prejudicial to the Employer
who was given no opportunity to call McBride. We do
believe , however, that we may use the combined tes-
timony of Gedra and Evenson along with the acknowl-
edgement of the Employer 's attorney that McBride was
contacted by the Petitioner for the limited purpose of
showing that , at the time of the wage dispute and prior
to the Employer 's granting the painters a wage in-
crease, the Petitioner did intercede on behalf of the
painters. A few weeks after Gedra contacted the Peti-
tioner , Art Viat, representing the Intervenor, called a
meeting of the painters and informed them they would
be paid the same rate as the engineers.
The BOMA agreement contains no seniority clause.
In January 1971 Gedra and Stafford , another mainte-
nance painter, were laid off by the Employer.' Gedra
filed a grievance with the Intervenor on January 7,
1971. On January 13, 1971, the Petitioner, by letter,
' The Employer and Intervenor contend Jungclaus is a leadman, the
Petitioner contends he is a supervisor within the meaning of the Act ' It is to this ruling we refer in fn 1, supra
' The chief engineer said he would look at more applications after Jung- ° The Petitioner filed unfair labor practice charges with respect to these
claus informed him the applicant was not qualified as a painter layoffs , which were later settled informally
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demanded that the Employer recognize it as exclusive
bargaining agent of the painters. On January 15, 1971,
the Petitioner informed the Employer that unless Ge-
dra and Stafford were reinstated Petitioner would take
action. On January 19 Petitioner began picketing the
Employer. The Employer commenced an action in the
Superior Court of the State of California in an attempt
to enjoin the picketing. Viat, Intervenor' s business
agent, testified he signed an affidavit for the Employer
in connection with this civil action in which he stated
that the layoffs, pursuant to past practice, were made
on the basis of seniority and that Gedra and Stafford
were determined to have the least seniority and were
therefore properly laid off. In this connection Viat ad-
mitted that at the time he signed the affidavit he had
not, in fact, investigated the seniority status of Gedra
and Stafford. Finally, in early February the seniority
status of Gedra and Stafford was investigated and it
was found Gedra had been laid off out of seniority. As
a result Gedra was reinstated and a maintenance engi-
neer was laid off. Upon Gedra's reinstatement the Peti-
tioner ceased picketing the Employer. Although the
Intervenor and Employer contend the Petitioner had
nothing to do with Gedra's reinstatement either by its
picketing or otherwise, such a contention is obviously
untenable in view of the evidence. That the Petitioner
was involved in, if not instrumental in, obtaining Ge-
dra's reinstatement appears clear.
The Petitioner seeks a unit of all maintenance paint-
ers employed by the Employer. It contends that al-
though severance of the painters is justified under the
Board's craft severance criteria, this case is not, in fact,
a craft or departmental severance case, but rather pre-
sents the basic issue of whether this previously unor-
ganized group of painters constitutes an appropriate
unit regardless of severance considerations.
The Employer contends the painters are not a craft
group and do not quality as a functionally distinct
department. It further contends that any separate com-
munity of interest possessed by the painters has been
submerged in the larger community of interest of all the
maintenance employees and that the existing multiem-
ployer unit is appropriate. The Intervenor contends the
facts do not support the severance of the painters and
that if a unit of maintenance painters were found to be
appropriate it should be coextensive with the multiem-
ployer BOMA bargaining unit.
The supervisory status of Foreman Jungclaus is also
in issue; the Employer and Intervenor contend he is a
leadman and the Petitioner contends he is a supervisor
within the meaning of the Act. After carefully consid-
ering the record, we are of the view that Jungclaus who
not only employs independent judgment in responsibly
directing the painters but also possesses the authority
to effectively recommend personnel action is a super-
visor with the meaning of the Act. To find otherwise
would mean that the painters, who have little or no
connection with the maintenance engineers , would be
virtually without supervision.
The painters were hired through advertisements call-
ing for maintenance painters and were hired because
they had painting experience. They are engaged almost
exclusively in painting whereas maintenance engineers
do little or no painting. There is no interchange of work
between the painters and the engineers. As Gedra tes-
tified, the painters cannot do the engineers' work de-
scribed in the BOMA contract. The painters report to
work at a different location and wear special clothing.
In addition, the painters are separately supervised by
the painting foreman, Jungclaus. In our opinion, it is
clear that the painters constitute a functionally distinct
department comprising a homogeneous group of
skilled workers who have a special community of inter-
est not shared by the engineers.
There is no direct history of collective bargaining
between the Petitioner and the Employer. However,
outside of the claim that the painters of the Employer
work under the BOMA agreement there is no evidence
that painters in any other BOMA building are working
under the BOMA agreement . On the contrary, the evi-
dence reveals that at least 11 of the 50 or 60 buildings
covered by the BOMA agreement have separate con-
tracts with the Petitioner or its affiliate district council
covering maintenance painters. Moreover, the evidence
shows that for the first 2 or 3 years of the BOMA
agreement 's existence the Employer's maintenance
painting was done by painting contractors working un-
der contract with the Petitioner. On this record the
history of collective bargaining in this industry both in
and out of BOMA in the Bay area shows a consistent
pattern of bargaining for maintenance painters on a
single-employer basis between the employers and the
Petitioner. Petitioner has had, unlike Intervenor, exten-
sive experience in representing painters; it has numer-
ous contracts covering similar workers and similar
buildings both within and without BOMA. In addition,
it has a master agreement covering the entire painting
contracting industry in the area, including contractors
who do similar maintenance painting.
There is no evidence that the continuity of the Em-
ployer's maintenance operation is dependent on any
integration or interrelationship between the painters
and engineers; to the contrary each crew operates sepa-
rately and independently of the other.
The BOMA agreement does not and it does not ap-
pear that it was intended to cover painters. When the
Employer became a party to that contract it had no
painters. Painting is not mentioned in the BOMA
agreement which treats exclusively the functions of
maintenance engineers. The painters were hired as
painters , not engineers . After they were hired , as$um-
ing the experience of Gedra is typical, the painters were
GOLDEN GATEWAY CENTER 495
required to join and pay dues to the Intervenor or
relinquish their jobs. They were afforded no oppor-
tunity to choose their own bargaining representative.
Most significantly, however, it appears the Inter-
venor has never truely represented the interests of the
maintenance painters. Thus, the painters were paid at
a substantially lower wage rate than the engineers until
May 1970, apparently with the concurrence of the In-
tervenor. Upon realizing the situation the painters were
told they were not being paid the contract rate because
they were not engineers and were not competent to
perform the work of engineers. The question is thus
raised as to whether the painters were considered part
of the bargaining unit by the Employer and Intervenor.
The record indicates that the painters received the con-
tract rate to which they were entitled only after the
Petitioner interceded on their behalf. This incident
demonstrates that the Intervenor had little or no inter-
est in protecting or representing the painters.
Likewise in January 1971 when Gedra was laid off
out of seniority the Intervenor again showed little inter-
est in the painters. Viat, who serviced the BOMA
agreement , admitted the Intervenor had decided the
two maintenance painters had junior seniority without
any investigation. Only after the Petitioner again in-
terceded and picketed the Employer was the actual
seniority status of the unit employees determined and
Gedra reinstated.
In our opinion the record shows that the painters not
only were never afforded an opportunity to choose a
representative, but were never, in fact, truly repre-
sented by the Intervenor. As argued by the Petitioner
the real issue herein is whether this group of previously
unorganized painters, a functionally distinct depart-
ment with a separate community of interest, constitutes
an appropriate unit. In our opinion it does. Accord-
ingly, we shall direct an election within the following
appropriate unit:
All maintenance painters employed by the Em-
ployer, excluding supervisors, and all other
maintenance employees.
[Direction of Election' omitted from publication.]
In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them Excelsior Underwear
Inc, 156 NLRB 1236, N..L R.B v Wyman-Gordon Co, 394 U.S. 759.
Accordingly, it is hereby directed that an election eligibility list, containing
the names and addresses of all the eligible voters, must be filed by the
Employer with the Regional Director for Region 20 within 7 days of the
date of this Decision and Direction of Election The Regional Director shall
make the list available to all parties to the election No extension of time
to file this list shall be granted by the Regional Director except in extraordi-
nary circumstances . Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections are filed.