Local 585 of the Brotherhood of Painters, ETC.

National Labor Relations Board - Board Decisions

Feb 18, 1963

140 N.L.R.B. 1304 (N.L.R.B. 1963)

1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing factual findings and conclusions , I make the
following:
CONCLUSIONS OF LAW
1. Henry I. Siegel Co., Inc., is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Amalgamated Clothing Workers of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All nonsupervisory production and maintenance employees at Respondent's
Dickson , Tennessee , and Fulton, Kentucky, plants, constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b) of the Act.
4. The Union was on September 29, 1961, and has been at all times since, the
exclusive representative of all employees in the aforesaid appropriate unit for the
purposes of collective bargaining , within the meaning of Section 9(a) of the Act.
5. On and after September 29, 1961, by refusing to put into writing its agreement
that a 121/2-percent incentive factor would continue to be utilized, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
6. By said refusal to bargain, Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed them in Section 7 of the
Act, and thereby has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
(Recommendations omitted from publication.]
Local 585 of the Brotherhood of Painters , Decorators and Paper-
hangers of America , AFL-CIO and Bishopric Products Com-
pany. Case No. 23-CD-56. February 18, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act, following a
charge filed on June 11, 1962, by the Bishopric Products Company,
herein called Bishopric, alleging that Local 585 of the Brotherhood
of Painters, Decorators and Paperhangers of America, AFL-CIO,
herein referred to as Painters, had violated Section 8(b) (4) (i) and
(ii) (D) of the Act. The charge alleges, in substance, that the Paint-
ers engaged in a strike or picketing at the Galveston, Texas, plant of
Falstaff Brewing Company, herein called Falstaff, where Bishopric
was performing work, with an object of forcing or requiring
Bishopric and/or Falstaff to assign certain work to members of the
Painters rather than to employees of Bishopric who were performing
the work.
A hearing was held before Kenneth L. Tilley, hearing officer, on
June 27, 1962, at Galveston, Texas. All parties participated in 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
'Falstaff and International Union of United Brewery , Flour, Cereal, Soft Drink &
Distillery Workers of America, AFL-CIO, herein called the Brewery Workers and its
Local 12 , were permitted to intervene and participate in this proceeding.
140 NLRB No. 125.
LOCAL 585 OF THE BROTHERHOOD OF PAINTERS, ETC. 1305
free from prejudicial error and are hereby affirmed. All parties ex-
cept Falstaff filed briefs with the Board.
Upon the entire record in this case, the Board makes the following
findings :
1. Falstaff and Bishopric are engaged in commerce within the
meaning of the Act.
2. The Painters and the Brewery Workers are labor organizations
within the meaning of the Act.
3. The dispute :
A. Work in dispute; contentions of the parties
The work involved in the dispute which gave rise to this proceeding
consists of the blasting work involved in removal of old linings from
Falstaff's brewery settling tanks at its Galveston plant, and the ap-
plication of new linings thereto. Falstaff contracted for the per-
formance of this work with Bishopric. For this work, Bishopric uses
field traveling crews operating out of Cincinnati, Ohio. The em-
ployees comprising these crews are members of the Brewery Workers
Union.
Painters contends that Falstaff, in violation of a contract between
them, was responsible for the assignment of the work in dispute to
employees other than painters, for which they were paid substandard
wages, and, therefore, by virtue of the contract, it had a right to strike
to protest the payment of substandard wages and in furtherance of
its claim that employees classified as "painters" were entitled to the
work. Thus arguing, Painters appears to claim that no jurisdictional
dispute existed. If a jurisdictional dispute is found, the Painters re-
quests that "the disputed work in this case should be awarded to paint-
ers, who are represented by Painters Local 585."
Bishopric, Brewery Workers, and Falstaff argue that a jurisdic-
tional dispute exists and that it should be resolved by an award of
the work to employees of Bishopric who are represented by the Brew-
ery Workers.
B. Basic facts
The charge alleging violations of Section 8(b) (4) (i) and (ii) (D)
is based on certain statements made by the Painters' agents to repre-
sentatives of Bishopric and/or Falstaff between June 6 and 7, 1962,
and on picketing in which the Painters engaged on June 7 and 8 at
Falstaff's premises. The relevant record evidence regarding these
Painters' activities is as follows :
Bishopric's employees appeared at Falstaff's premises for the pur-
pose of commencing work on the settling tanks on or shortly before
June 6. On the morning of June 6, the Painters' job steward protested
to B. H. Fortner, Bishopric's road supervisor, that the work was
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Painters' work" and threatened to contact Hughes, the Painters'
business agent in Galveston.
Later that day, Hughes appeared at the Falstaff jobsite. In con-
versation with Fortner, Hughes claimed for the Painters the "right
of lining or blasting," tasks which had been assigned Bishopric's em-
ployees, and said he "would have to put up a picket." On this occasion,
Hughes also ascertained that Bishopric was paying its employees
$3.271/2 per hour, and stated that "this type of work is $3.75 in the
Painters."
The same day, Hughes telephoned E. A. Hucke, Bishopric's sales
manager, at the latter's office in Cincinnati. According to Hucke's
uncontradicted testimony, Hughes advised Hucke that "the work we
were performing at the Falstaff Brewing Corporation at Galveston was
to be performed by Painters and that we were using Brewery workers."
In the course of the conversation, Hughes also said that Bishopric
was paying its employees "substandard wages." Hucke denied this
accusation and told Hughes he believed that this was a jurisdictional
matter which the Painters should try to work out with the Brewery
Workers.
Sometime during June 6, a Falstaff representative telephoned a
Painters representative and asked if the Operating Engineers claimed
jurisdiction over the air compressor equipment being operated by
Bishopric.' This call resulted in a joint meeting held on the morning
of June 7, between representatives of Falstaff, Bishopric, the Painters,
the Brewery Workers, and the Operating Engineers. Among those
present were Hughes of the Painters; Wright, the Operating Engi-
neers' business agent; Lower, Falstaff's plant superintendent; Hutton,
Falstaff's resident engineer; Fortner, Bishopric's crew leader; and
Oliver, job steward for the Brewery Workers members employed by
Bishopric. At this meeting, Hughes charged that the work being
performed by Bishopric was the work of the Painters. He also
asserted that substandard wages and working conditions existed on
the job and that "there was a possibility that Falstaff might be in viola-
tion of their contract." In this connection, Hughes testified as follows :
Q. . . . it made no difference to you under this contract whether
... the work in dispute was construction or maintenance?
A. Well, it covers both, the contract covers both construction
and maintenance.
Q. I mean this work you were protesting and putting up a picket
for?
A. Either one. It covers it under the contract, and I told
Falstaff my feelings was that they might be in violation of their
2 Apparently , an amicable relationship exists between the Painters and the Operating
Engineers locals in the Galveston area, both of whom are affiliated with the Galveston
Building Trade' Counrll.
LOCAL 585 OF THE BROTHERHOOD OF PAINTERS, ETC . 1307
contract, but I was going to protest substandard wages and work-
ing conditions.
Q. As far as the picket sign was concerned?
A. Yes, sir.
Q. But you never withdrew any claim to the work, did you, I
mean you haven't to this day, as painters' work?
A. No, I have-not.
At the conclusion of the meeting, Hughes announced that the Paint-
ers would put up a picket line that afternoon.
Picketing commenced on the afternoon of June 7, with a single
picket patrolling the entrance of the Falstaff plant used primarily by
Bishopric's employees and employees of a subcontractor engaged in
certain construction work. The picket sign bore the following legend :
PAINTERS LOCAL UNION NO. 585 PROTESTS PAY-
MENT OF SUBSTANDARD WAGES AND WORKING
CONDITIONS ON THIS JOB BY BISHOPRIC PRODUCTS
COMPANY
This picket is not intended to induce or persuade the em-
ployees of any other employer or contractor to engage in a
strike or work stoppage.
Picketing was continued on the following day. During this period,
a substantial number of employees of Falstaff and of contractors
and subcontractors working on Falstaff Is premises refused to cross
the picket line. Thereafter Bishopric's Supervisor Fortner contacted
Painters Business Agent Hughes and arranged for the latter's removal
of the picket line on Fortner's offer and actual pulloff of Bishopric's
crew. There was no subsequent resolution of the dispute.
The instant charge was filed June 11. On June 15, Bishopric's
crew returned to Falstaff's premises and resumed work. About 9 p.m.,
June 15, a picket was placed on the premises for a period of a few
hours.'
As above noted, Respondent argues in its brief to the Board that
"... by virtue of contract between Falstaff and Galveston Building
and Construction Trades Council of Galveston, Texas, Painters Local
585 had a lawful right to strike, asserting that Bishopric was paying
substandard wages and in furtherance of its claim that employees
classed as painters were entitled under the Union's contract to be
assigned the work in question, whether employed by Falstaff or by
Bishopric."
8 At a hearing before the United States District Court for the Southern District of
Texas, on June 26, 1962, upon an order to show cause why a 10(1) injunction should
not be issued, the Painters agreed to refrain from picketing or taking other coercive
action pending a resolution of the dispute by this Board.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Applicability of the statute
Before the Board proceeds with a determination of 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) (i) and (ii) (D) has been vio-
lated, as alleged in the charge filed by Bishopric.4 In order to conclude
that reasonable cause exists, the Board must find evidence in the
record showing that conduct proscribed by this section has occurred
and that such conduct was engaged in for the purpose of forcing or
requiring any employer to assign particular work to employees in a
particular labor organization or in a particular trade, craft, or class
rather than to employees in another labor organization or in another
trade, craft, or class.
Upon the evidence before us, including the Respondent's repeated
demands for the assignment of the work in dispute and its continued
claim to the right to perform this work, and its threats to picket and
its picketing, we are satisfied that there is reasonable cause to believe
that the Respondent engaged in the threats and picketing as described
above with an object of forcing the assignment of the disputed work
to its members or to employees classified as painters who are repre-
sented by it rather than to employees represented by the Brewery
Workers. Such circumstances are sufficient to invoke the Board's
jurisdiction to hear and determine a dispute within the meaning of
Section 8(b) (4) and Section 10(k) of the Act.
Merits of the Dispute
1. Character of the work in dispute
The significance and weight to be accorded the facts pertinent to
the dispute in this case can best be appreciated in light of the precise
character of the work in dispute.
The process of lining or relining fermenting or settling brewery
tanks requires, in the main, the application to the interior of huge
metal tank structures, of special plastic, glass, or resin materials
resistant to bacterial formations and otherwise meeting rigid health
and safety requirements peculiar to the food industry. After the
interior linings have been applied, the exteriors are then painted with
preservative paints. Where, as here, the settling tanks are already in
use-as distinguished from new installations-the process of applying
new linings requires, of course, the removal of existing linings.
4Under the procedures established by Section 10(k), we are not required to find that
the union charged with the violation has in fact engaged in conduct proscribed by Sec-
tion 8(b) (4) (1) and (11) (D). We need only find there is reasonable cause so to believe
on the record as made. International Brotherhood of Electrical Workers, and its Local
639 (Bendim Radio Division of the Bendim Corporation), 138 NLRB 689.
LOCAL 585 OF THE BROTHERHOOD OF PAINTERS, ETC. 1309
The process of relining existing tanks is normally performed at
intervals of from 5 to 10 years. It was last performed on the tanks
here involved about 10 years ago. It is ordinarily performed by com-
panies specializing in the work of lining or relining food containers.
Bishopric, the company with which Falstaff contracted for the re-
lining of its 14 settling tanks in the Galveston brewery, has been en-
gaged for about 25 years almost exclusively in the business of relining
brewery tanks. It has developed and owns a special, secret trade-
marked coating, having a resin base, called "Lastiglas," which ap-
parently has proved to be a highly satisfactory and desirable product
in the industry. Bishopric performs about 90 percent of all the brew-
ery tank relining work in the United States brewery industry as a
whole. It guarantees its work for 5 years. Its relining work, step
by step, proceeds as follows :
First, its employees "set up" the necessary equipment. This equip-
ment includes a special high-pressure device suitable for sandblasting
out the old lining and also usable, with certain conversions, for the
spraying on of the coatings; sandhoppers and mixers; portable pro-
pane gas furnaces and blowers (for use in baking or "curing" the
interior coatings and drying the exterior paints) ; and certain other
supporting tools or devices not specifically described in the record.
The "set up" phase of the work also includes certain preparatory work
to arrange for proper ventilation or otherwise to insure safety of the
workers.
After the employees set up the above equipment, they begin the
relining process. They surround the exterior of the tanks with tem-
porary Fiberglas insulation to prevent any heat damage to nearby
or related fixtures and equipment when, later in the process, it be-
comes necessary to use the propane gas furnaces. Next, they sandblast
the insides of the tanks down to bare metal to remove the existing
lining.' Afterward, they convert the pressure equipment for spray-
ing, apply the special coating, and then "heatcure" each coat with
portable furnaces they have inserted into the tank for this purpose.
They repeat the coating application and baking process four to eight
times. When they have completed the interior relining, and the tank
has cooled, they remove the Fiberglas insulation, apply preservative
paint to the outside of the tank, and dry the same.
2. Comparative skills of the competing groups of employees
The record establishes that the brewery workers which Bishopric
used to perform the mentioned tasks are part of a stable force of
employees it has specially trained in all phases of the relining work
as above described. They are classified as "combo men." The crew
5 At this point, if there are any leaks or defects In the metal they are corrected by the
brewery's maintenance employees.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here involved was comprised of five employees and a supervisor. Most
of them possessed 7 to 10 years of full-time on-the-job experience with
Bishopric in doing its relining work. They work as an integrated
unit on each step in round-the-clock shifts. Their ability to perform
all phases of the work to the satisfaction of Bishopric and/or Falstaff
is unquestioned.'
In contrast, the record fails to establish that employees represented
by the Painters possess the full gamut of skills possessed by the
brewery workers employed by Bishopric. And, indeed, the Painters
apparently does not claim all the work tasks involved. While the
precise extent of its work claims is not clear, it appears that it is pri-
marily interested in the tasks of removing the existing linings through
sandblasting and in applying the coatings to the interior of the tanks.
There appears to be little question that employees the Painters
represents possess the skills needed to do the sandblasting operation.
It is somewhat doubtful that they are fully qualified to perform the
coating application tasks involved without further specialized train-
ing. We note in this connection that Painters adduced evidence of
their conduct of annual instruction classes for the benefit of their craft
members in the handling and application of new plastic and other
coating products, some of which are perhaps similar in nature to the
"Lastiglas" coating developed by Bishopric. But there is no evi-
dence as to the number of workers attending these classes. Signifi-
cantly, none of these workers presently represented by Painters has
ever had actual experience or instruction in the handling and appli-
cation of "Lastiglas." And, as detailed below, there is no convincing
evidence that any of them has regularly performed tank relining work
on brewery tanks or similar containers in the food industry 7
3. Collective-bargaining contracts
Brewery Workers and Bishopric have a bargaining agreement cov-
ering the employees to whom Bishopric assigned the relining work
which it contracted to perform for Falstaff.
Painters has no contract with Bishopric. It is party to a collective-
bargaining contract with Falstaff covering employees for whom it
seeks the work 8 As already indicated, it is Respondent's position that,
under the contract, only painters are entitled to perform the work in
9 We note in this connection undisputed record evidence that there is only one com-
pany which will insure employees performing brewery tank relining work and that this
company requires , as a condition of insuring such work , that the employees have a mini-
mum of 6 months ' special training. Bishopric carries insurance with this company
'r It further appears from the record that brewery workers who are part of Falstaff's
normal employee force have regularly been assigned by Falstaff to do the repair work on
the interiors of the brewery tanks where such repairs involved patching of the coatings
These employees are not claiming the disputed work.
9 The collective -bargaining agreement referred to is a master contract between Falstaff
and the "Galveston Building and Construction Trades Council , and affiliated unions,"
with which the Painters is affiliated.
LOCAL 585 OF THE BROTHERHOOD OF PAINTERS, ETC. 1311
dispute. However, this does not clearly appear from the contract
itself. The contract makes no specific reference to the very type of
work in issue, which work is normally required to be performed only
at intervals of from 5 to 10 years. Even assuming that the parties
meant to encompass such work within the "maintenance" or "construc-
tion" provisions of the contract, we note, as to the former, that the
contract expressly bars the contracting out of maintenance work only
if such contracting out "will cause maintenance employees to be laid-
off or if maintenance employees of the craft are on the layoff list." 9
With respect to "construction" provisions, there is no express con-
tractual delegation of construction work to anybody. The contract
provides only that "The Company may . . . award contracts for the
execution of construction work in this plant to contractors who pay
the prevailing wage scale in the area and grant to their employees
prevailing working conditions."
In the circumstances, we cannot find that Respondent's claim to the
work in dispute on behalf of painters is clearly and unambiguously
supported by the contract asserted as a defense herein.10
4. Area practices
Contrary to the contentions of Bishopric and Brewery Workers,
Painters claims that practice in the area supports its position herein.
Painters relies on evidence of: (1) custom and practice in the oil and
chemical industry in the Galveston County area establishing the as-
signment to painters of tank relining work, and (2) a prior occasion
in the brewery herein involved when some 10 years before, during the
brewery's operation by a prior owner, the brewery tanks were reha-
bilitated by employees who were members of the Painters.
We do not regard the custom and practice in the oil and chemical
industry as persuasively supporting all aspects of the Painters' claims
here. For we are satisfied that, because of the rigid requirements im-
posed by law on the food industry in the interest of the health of the
consuming public, the work of relining food containers demands a
specialized experience and knowledge not ordinarily required for the
work of relining oil and chemical containers. Also, we cannot accord
much weight to the performance, by members of the Painters, of the
tank relining work on the brewery tanks here involved some 10 years
before as a factor in determining the instant dispute. We note that
Duesterberg, whose company performed the work under a contract
with the prior brewery owner, testified that he brought his own spe-
cially trained crew to the plant, some of whom were brewery workers
'There is no showing in this record that Falstaff's retention of Bishopric caused any
of its employees to be laid off or resulted in prolonging their layoff status
I' See Local 853, International Union of Operating Engineers , AFL-CIO, et al. (Schia.
vone & Sons, Inc., et al. ), 136 NLRB 993.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and some of whom were laborers. The Painters then claimed certain
of the work and the then existing complement of workers paid permit
fees or dues to the Painters, which resulted in settlement of the dis-
pute without reassignment to a different group of workers.
5. Industry practice
Evidence with respect to industry practice outside the Galveston
area affirmatively establishes that the work of relining brewery tanks
is not ordinarily performed by employees represented by the Painters,
and that, in the large majority of cases, it is regularly performed by
employees represented by the Brewery Workers.
Conclusion as to the Merits of the Dispute
In International Association of Machinists, Lodge No. 1743 (J. A.
Jones Construction Company), 135 NLRB 1402, the Board set forth
criteria such as it would consider in resolving jurisdictional disputes.
It was noted therein that the decision in each case would be an act of
judgment based upon commonsense and experience and a balancing
of all relevant factors. Applying the standards and criteria of the
Jones case to this matter, it appears that the work skills of the brewery
workers now employed by Bishopric, the practice in the industry, and
factors relating to the efficiency of operations resulting from the pres-
ent work assignment plan make manifest the superiority of the claim
by the Brewery Workers to the work in dispute which was assigned
to employees represented by it, and that neither the contract between
the Painters and Falstaff nor local custom adequately supports the
conflicting claim of the Painters. On the basis of the entire record,
therefore, we shall determine the existing jurisdictional controversy
by awarding to employees represented by the Brewery Workers, rather
than to employees represented by the Painters, the blasting and re-
lining work on the interior of the brewery tanks at the Galveston,
Texas, plant of Falstaff.
We find, accordingly, that Painters is not and has not been entitled
to force or require Bishopric and/or Falstaff, by means proscribed
by Section 8(b) (4) (i) and (ii) (D) of the Act, to assign the disputed
work to its members or to employees classified as painters who are
represented by it rather than to the employees of Bishopric now rep-
resented by Brewery Workers.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
the case, the Board makes the following Determination of Dispute
pursuant to Section 10 (k) of the Act :
I. POSNER, INC., ETC. 1313
1. Employees engaged by Bishopric Products Company as "combo
men" currently represented by International Union of United Brew-
ery, Flour, Cereal, Soft Drink and Distillery Workers of America,
and its Local 12, are entitled to perform all blasting and relining work
on the interior of brewery tanks at the Galveston, Texas, plant of Fal-
staff Brewing Corporation. Accordingly, Local 585 of the Brother-
hood of Painters, Decorators and Paperhangers of America, AFL-
CIO, is not entitled to force or require Bishopric and/or Falstaff to
assign the above-mentioned disputed work to painters currently repre-
sented by it.
2. Within 10 days from the date of this Decision and Determination
of Dispute, Local 585 of the Brotherhood of Painters, Decorators and
Paper Hangers of America, AFL-CIO, shall notify the Regional Di-
rector for the Twenty-third Region, in writing, whether or not it will
refrain from forcing or requiring Bishopric and/or Falstaff by means
proscribed by Section 8(b) (4) (i) and (ii) (D) to assign the work in
dispute to its members or to employees classified as painters who are
represented by it rather than to the employees of Bishopric Products
Company, currently represented by the International Union of United
Brewery, Flour, Cereal, Soft Drink and Distillery Workers of
America, and its Local 12.
1. Posner, Inc.; Posner Distributing Corp.; and Posner Beauty
and Barber Supply Corp . and District 65, Retail , Wholesale
and Department Store Union , AFL-CIO. Case No. 2-CA-7270.
February 18, 1963
SUPPLEMENTAL DECISION AND ORDER
On December 3, 1962, Trial Examiner Lloyd Buchanan issued his
Supplemental Intermediate Report in the above-entitled matter, find-
ing that employees Simpson and Moore had engaged in such mis-
conduct during the course of a strike as to warrant the Respondent's
refusal to reinstate them.' Thereafter, exceptions to the Supplemental
Intermediate Report and a supporting brief were filed by the General
Counsel and adopted by the Union.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
ion October 30, 1961 , the Board issued its Decision and Order herein ( 133 NLRB
1567 ). On July 3, 1962 , the United States Court of Appeals for the Second Circuit
handed down its opinion ( 304 F. 2d 773 ) enforcing the Order except as to Marcus
Morales, Samuel L. Simpson , and Edgar Moore, and by its decree dated July 16, 1962,
remanded the case for further proceedings consistent with the said opinion. Pursuant
thereto, the Board directed supplemental proceedings as recited in the Supplemental
Intermediate Report.
140 NLRB No. 128.