Local 1396, Painters

National Labor Relations Board - Board Decisions

Nov 13, 1979

246 N.L.R.B. 442 (N.L.R.B. 1979)

D4E(ISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 1396, International Brotherhoodl of Painters and
Allied Trades, AFL-CIO and C. L. Wolff and Sons
Painting Company and United Steelworkers of
America, AFL-CIO and its ALocal 1000. Case 7
CD 369
November 13, 1979
DECISION AND ORDER QUASHING NOTICE
OF' HEARING
BY MEMBERS PENELI), MURPHIY, AND) TRUESDAIE
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed by C. L. Wolff and Sons Painting Com-
pany, herein called the Employer, alleging that Local
1396, International Brotherhood of Painters and Al-
lied Trades, AFL-CIO, herein called Painters 1396,
had violated Section 8(b)(4)(D) of the Act by engag-
ing in certain proscribed activity with an object of
forcing or requiring the Employer to assign certain
work to its members rather than to employees repre-
sented by United Steelworkers of America, AFL-
CIO and its Local 1000, herein called Steelworkers
1000.
Pursuant to notice, a hearing was held before Hear-
ing Officer Mark Rubin on July 10, 1979. Counsel for
Painters 1396 appeared at the hearing, entered into
certain stipulations and expressed on behalf of Paint-
ers 1396 a disclaimer of interest in the work at issue,
and thereafter withdrew and did not participate fur-
ther in the hearing. Steelworkers 1000 failed to ap-
pear at the hearing, despite having been duly served
with notice of the hearing. Counsel for the Employer
appeared at the hearing and was afforded full oppor-
tunity to be heard, to examine and cross-examine wit-
nesses, and to adduce evidence bearing on the issues.
Thereafter, the Employer filed a brief.
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 rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. IHE BUSINESS O IIti EMPO.()YER
The parties stipulated, and we find, that the Em-
ployer, a Michigan corporation with its principal
place of business in Benton Harbor, Michigan, is en-
gaged in painting and related services in the State of
Michigan. During calendar year 1978, the Employer
received total gross revenues in excess of $300,000
from its painting operations, of which $100,000 were
received from painting for Whirlpool Corporation in
Benton Harbor and St. Joseph, Michigan. The parties
further stipulated that Whirlpool Corporation in the
same period of time produced in the State of' Michi-
gan goods valued in excess of $100,000 which were
shipped directly to firms outside the State of Michi-
gan. Accordingly, 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 it
will effectuate the purposes of the Act to assert juris-
diction herein.
II. TE I.ABOR ORGANIZATIONS INVO)VI:I)
The parties stipulated, and we find, that Painters
1396 and Steelworkers 1000 are labor organizations
within the meaning of Section 2(5) of the Act.
111. THlE DISPIE
A. Background and Facts of the Dispute
Beginning on May 24, 1979., the Employer per-
formed painting and allied services under separate
agreements with two general contractors at sites lo-
cated in Benton Harbor, Michigan. One contract,
with Contractors I., Incorporated, called for the Em-
ployer to perform services in connection with remod-
eling of a K-Mart Store at 455 Riverview Drive in
Benton Harbor. The other contract, with C. H. Leav-
ell and Company, called for the Employer to perform
services in connection with the building of Orchards
Mall at Napier and Pipestone in Benton Harbor. At
the time the dispute arose, the Employer had assigned
this work to its own employees who were represented
by Steelworkers 1000.
On November 10, 1978, Gary Perrone, business
agent for Painters 1396, spoke with David Stuart, of-
fice manager for C. H. Leavell, concerning the paint-
ing work to be done at Orchards Mall. Upon being
informed that the Employer would be the painting
subcontractor, Perrone informed Stuart that the Em-
ployer was a nonunion contractor and that, unless the
Employer used Painters 1396 members or signed a
contract with Painters 1396, there would be pickets at
the site when the Employer started work.
As noted above, the Employer began work at the
Orchards Mall site on May 24. On that date, J. T.
Kelly, business agent for Painters 1396, met with
Dale H. Wolff, secretary-treasurer of the Employer,
and Chet Taylor, project superintendent for the Or-
chards Mall project. At that meeting, Kelly stated
i Except as otherwise indicated, all dates herein are in 1979.
246 NLRB No. 65
442
LOCAL. 1396. PAINIERS
that he wanted the Employer to sign a contract. A
second meeting was held a few hours later, at which
Perrone, Kelly, Wolff, and Painters 1396 president,
Ershell Sayre, were present. Wolff was asked whether
the Employer would sign a jobsite contract for the
Orchards Mall project if it would not sign a general
contract with Painters 1396. Kelly commented at the
meeting that Painters 1396 would have pickets on the
jobsite, and Sayre followed up with the observation
that "we are going to have trouble on that job" if the
Employer did not sign a contract. When Wolff
pointed out that a separate gate had been set up for
the Employer's employees, he was told that "we will
put pickets all over the job, we will shut the whole
works down."
On June 1, a meeting was held at the Orchards
Mall site. Stuart and Taylor represented C. H. Leav-
ell; a representative of the Southwestern Michigan
Building Trades Council was present for a brief time;
Wolff represented the Employer; and Painters 1396
was represented by Kelly, Perrone, Sayre (for part of
the meeting), and Larry Herzog. The Painters 1396
representatives indicated that their dispute with the
Employer stemmed from two factors: First, Painters
1396 did not know whether the Employer was union-
ized or not: and second, there was a jurisdictional
problem. Eventually, Kelly stated that if the Em-
ployer did not sign an agreement and use Painters
1396 members there would be pickets at the job on
Monday, June 4.
Beginning Monday, June 4, and running through
Wednesday, June 6, pickets appeared at entrances to
the Orchards Mall site. The signs carried by the pick-
ets stated, in essence, that the Employer did not pay
union scale. The pickets engaged employees of sub-
contractors other than the Employer in conversation.
and none of the other subcontractors at the site
worked while the pickets were present. Verb few em-
ployees crossed the picket lines, other than employees
of the Employer. At approximately 5 p.m. on June 5.
the Employer received a letter from C. H. Leavell and
Company requesting that the Emplover remove its
employees from the Orchards Mall jobsite until fur-
ther notice. Despite the Employer's compliance with
this directive, pickets reappeared on June 6. including
Business Agent Kelly. and several subcontractors
were unable to work on the jobsite on that day.
On June 7, Kelly called Eric E. Schoenborn. proj-
ect engineer and estimator for Contractors I. I ncorpo-
rated.2 Kelly informed Schoenborn that, contrary to
the Employer's representations, the Employer was a
'This call followed communications between Kell and lornm Bate,. he
job foreman tor the K-NMart project, which were reported t Schoenborn h?
Bates, n which Bate, vlas nformed that there would he picket thait da it
the Emphlser were not dismissed from the project
nonunion contractor. Kelly also suggested that Con-
tractors I would have no trouble getting out of its
contract with the Employer, and assured Schoenborn
that Painters 1396 had ample painters to furnish for
the K-Mart project. Schoenborn agreed to check
again on the Employer's union status, but warned
that he would hold Painters 1396 liable if pickets ap-
peared and caused other employees to walk off the
job. Kelly replied that he was not responsible for any
of his members' picketing the project. The Employer
remained on the job, but no pickets appeared.
On June 20, the Employer filed the instant charges,
alleging that Painters 1396 had violated Section
8(b)(4)(D). We take administrative notice that both
the Employer and C. H. Leavell filed charges in Cases
7 C('C 1044(1) and (2), alleging violations of Section
8(b)(4)(B), on June 6.
B. The Work i Dispute
The work in dispute involves the performance of
painting and allied services at the Orchards Mall and
K-Mart projects n Benton Harbor, Michigan.
C. 711w Contentions of the Parties
The Employer contends that Painters 1396 violated
Section 8(h)(4)(D) in that it demanded that the Em-
ployer assign members of Painters 1396 to perform
painting services instead of' the Employer's employ-
ees, demanded that the general contractors require
the Employer to use Painters 1396 members or secure
another contractor who would do so, picketed to en-
force these demands, anti encouraged employees of
other subcontractors to withhold their services in sup-
port of its demands. The Employer asserts that the
work at issue was properly assigned to its own em-
ployees, consistent with its agreement with Steelwork-
ers 1000, its own practice and that in the painting
industry, the skills of the employees, and the economy
and efficiency of the Employer's operations. The Em-
ployer further asserts that Painters 1396's disclaimer
of interest at the hearing was merely a maneuver to
avoid a decision on the merits of the dispute.
Painters 1396 and Steelworkers 1000 did not file
briefs herein. !However, at the hearing, counsel for
Painters 1396 moved to quash the notice of hearing
because it was the position of Painters 1396 that it
had no interest in the work at issue. Counsel for
Painters 1396 also asserted that the picketing on June
4 6 at the Orchards Mall was informational only.
that it sought merely to enforce pas ment of prevailing
wage scales to the Employer's emplosees, and that
the Employer and the general contractor were in-
formed of this limited purpose in a timely fashion.
443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Applicability of the Statute
Section 10(k) of the Act directs the Board to hear
and determine disputes which have given rise to
charges under Section 8(b)(4)(D) of the Act. The
Board's authority under this section, however, is lim-
ited to the resolution of actual disputes between com-
peting groups of employees. Thus, it is well estab-
lished that a jurisdictional dispute no longer exists
when one of the competing unions or parties effec-
tively renounces its claim to the work in question.3 "A
§10(k) hearing is a comparative proceeding aimed at
determining which union is entitled to perform cer-
tain tasks. Its function evaporates when one of the
unions renounces and refuses the work."4
General Building Laborers' Local Union No. 66 of the Laborers' Interna-
tional Union of North America (Georgia-Pacific Corporation), 209 NLRB 611
(1974), and cases cited therein.
' N. L. R. B v. Plasterers' Local Union No. 79, Operative Plastrers ' and Ce-
ment Masons' International Association, A FL CIO Texas State Title &d Ter-
razzo Company]., 404 U.S. 116, 135 (1971).
As indicated above, counsel for Painters 1396
stated at the hearing herein that Painters 1396 dis-
claims any interest in the work at issue. There is no
evidence that Painters 1396 has engaged in conduct
inconsistent with its disclaimer of the work since
making its disclaimer. Accordingly, in these circum-
stances we find that currently there are no competing
claims to the disputed work within the meaning of
Sections 8(b)(4)(D) and 10(k) of the Act, and we shall
therefore quash the notice of hearing issued herein.5
ORDER
It is hereby ordered that the notice of hearing is-
sued in this case be, and it hereby is, quashed.
' The Board has held that, where a union subsequently engages in conduct
inconsistent with a disclaimer of work, the Board ma) rescind in earlier
decision quashing notice of hearing and determine the dispute on its menrits.
Local 825, International Union of Operating Engineers, A FL (10 (Cruz (Con-
tractor., Inc.) 239 NLRB 490 (1978).
444