Painters District Council 9 (Apple Restoration)

National Labor Relations Board - Board Decisions

Apr 25, 1994

313 N.L.R.B. 1111 (N.L.R.B. 1994)

1111
313 NLRB No. 195
PAINTERS DISTRICT COUNCIL 9 (APPLE RESTORATION)
1 Although testimony was presented at the hearing as to whether
Historical meets the Board’s commerce standards for jurisdictional
purposes, we find it unnecessary to decide this issue. In a 10(k) case,
the Board need have jurisdiction only over an employer that is the
object of a respondent union’s unlawful conduct to satisfy the
Board’s jurisdictional requirements. See, e.g., Plumbers Local 195
(Gulf Oil), 275 NLRB 484 (1985), and Longshoremen ILA Local
1911 (Cargo Handlers), 236 NLRB 1439 (1978).
2 All subsequent dates are in 1993 unless otherwise indicated.
International Brotherhood of Painters and Allied
Trades, District Council 9 and Apple Restora-
tion and Waterproofing and Local 868, Inter-
national Brotherhood of Teamsters, AFL–CIO.
Case 2–CD–866
April 25, 1994
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
The charge in this Section 10(k) proceeding was
filed by Apple Restoration and Waterproofing (Apple)
alleging that the Respondent, International Brotherhood
of Painters and Allied Trades, District Council 9 (Dis-
trict Council 9), violated Section 8(b)(4)(D) of the Na-
tional Labor Relations Act by engaging in proscribed
activity with an object of forcing Apple to assign cer-
tain work to employees it represents rather than to em-
ployees represented by Local 868, International Broth-
erhood of Teamsters, AFL–CIO (Local 868). The hear-
ing was held on September 20, 1993, before Hearing
Officer Geoffrey Dunham. Thereafter, Apple and the
Respondent filed briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire
record, the Board makes the following findings.
I. JURISDICTION
Apple, a New York corporation whose place of
business is in Brooklyn, New York, is engaged in the
business of general exterior waterproofing and restora-
tion work. During the year preceding the hearing,
Apple purchased and received at its Brooklyn, New
York facility goods, supplies, and services valued in
excess of $50,000 directly from entities located outside
the State of New York. We find that Apple is engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.1 The parties stipulated, and we find,
that District Council 9 and Local 868 are labor organi-
zations within the meaning of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Apple has no collective-bargaining agreement with
any labor organization and is not a member of any em-
ployer association. Historical Restoration and Water-
proofing Corp. (Historical) is party to a collective-bar-
gaining agreement with Local 868. Local 868 rep-
resents the mechanics and laborers who work for His-
torical. On about June 11, 1993,2 Apple entered into
a contract with Helmsley-Spear, Inc., to perform cer-
tain waterproofing and restoration work at 200 Fifth
Avenue and 1107 Broadway (collectively, the Toy
Center). On about July 8, Apple subcontracted a por-
tion of that work, primarily the waterproofing, to His-
torical. Apple retained the work of rigging the scaf-
folding at the jobsite and used its own unrepresented
employees to perform that work. Historical com-
menced its work at the Toy Center in late July or early
August.
On about August 9, Frank Marzillo, an agent of Dis-
trict Council 9, observed workers applying a tinted ma-
terial to the exterior of the Toy Center. When Marzillo
asked the workers who the employer was, the workers
replied that it was a ‘‘combination’’ of Apple and His-
torical. On the same day, Marzillo met with Apple
President John Weiss Sr. to claim the work of painting
the exterior of the Toy Center. Weiss told Marzillo
that the material being applied was a waterproof coat-
ing, not paint, and that the work belonged to Local
868. Marzillo responded that it was painters’ work and
that he did not recognize Local 868. Weiss responded
that he would talk to Local 868 about the problem. Be-
ginning on August 12, District Council 9 picketed the
Toy Center jobsite. On August 13, Weiss, who rep-
resented both Apple and Historical, Marzillo, Local
868 President Moran, and William Nuchow, a Team-
sters District Council arbitrator, held a meeting at
which Marzillo took the position that anything with
tint was District Council 9’s work. Moran responded
that it was Local 868 work and referred to literature
regarding the Sonneborn Super Colorcoat product, the
material that was being applied, which described it as
a unique compound to enhance the waterproofing of
heavy build coating. After the meeting and on the
same day, Todd Noble, the architect and engineer for
Helmsley-Spear, the owner of the Toy Center build-
ings, told Weiss that the waterproofing work would
have to stop because of the picketing. As a result, the
employees of both Apple and Historical had to cease
their work at the jobsite. Apple filed the instant
8(b)(4)(D) charge on August 25, 1993.
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Initially, we observe that although Apple, the Charging Party,
does not directly employ the employees who are performing the dis-
puted work, it is clear that District Council 9’s picketing was aimed
at Apple with an object of forcing Apple to assign or, through
Apple, of forcing Historical to reassign the disputed work from
Historical’s employees to employees represented by it. As the Board
stated in Plumbers Local 195 (Gulf Oil), supra at 485:
Section 8(b)(4)(D) makes it an unfair labor practice for a labor
organization to engage in proscribed activity with an object 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’’ . . . . The
Board has interpreted this language as showing the ‘‘clear intent
of Congress to protect not only employers whose work is in dis-
pute from such strike activity, but any employer against whom
a union acts with such a purpose.’’ [Emphasis in original; foot-
note omitted.]
4 The contractual wage rates of this agreement include rates for
‘‘Exterior Waterproofing Mechanic’’ and ‘‘Exterior Restoration &
Waterproofing Journeymen.’’
5 Since Historical’s employees are performing the disputed work,
we find that it is the relevant employer here and thus we look to
its preference and past practice in assigning the work. See Operating
Engineers Local 150 (Austin Co.), 296 NLRB 938, 942 fn. 21
(1989). In determining Historical’s preference and past practice, we
rely on Weiss’ testimony in this regard both because he is
Historical’s authorized representative in this proceeding and because
of his intimate knowledge of Historical’s past business dealings. As
to the former, Weiss testified without contradiction that Denise
McGuire, Historical’s president and Weiss’ daughter, authorized
Weiss to represent Historical both at the meetings with Marzillo and
B. Work in Dispute
The work in dispute is the application of pigmented
material, and any power washing and caulking per-
formed in preparation for such application, to the exte-
rior of the Toy Center located at 200 Fifth Avenue and
1107 Broadway, New York, New York.
C. Contentions of the Parties
Apple contends that the disputed work should be
awarded to employees represented by Local 868 on the
basis of Historical’s preference and past practice, econ-
omy and efficiency of operations, area practice,
Historical’s collective-bargaining agreement with Local
868, and the relative skills of the employees involved.
Local 868 agrees with Apple’s contentions.
District Council 9 argues that the work in dispute
should be awarded to employees represented by it on
the basis that all painting work, which it defines as the
application of any tinted or pigmented material, includ-
ing waterproofing material, falls within its jurisdiction
as set forth in its charter.
D. Applicability of the Statute
Before the Board may proceed with a determination
of dispute pursuant to Section 10(k) of the Act, it must
be established that reasonable cause exists to believe
that Section 8(b)(4)(D) has been violated, and that the
parties have no agreed-on method for the voluntary ad-
justment of the dispute.
Beginning on August 12, 1993, District Council 9
picketed the Toy Center jobsite after Weiss, Apple’s
president, refused to accede to its demands that
Historical’s employees represented by Local 868 be re-
moved from the waterproofing work and replaced by
employees represented by District Council 9.3 The evi-
dence, particularly District Council 9 business rep-
resentative Marzillo’s insistence that application of any
tinted substance was District Council 9’s work, reveals
that an object of District Council 9’s picketing was to
force the assignment of the disputed work to employ-
ees represented by it rather than to employees rep-
resented by Local 868. In this connection, Weiss testi-
fied that at his first meeting with Marzillo on August
9 or 10, he told Marzillo that workers represented by
Local 868 were applying the material and that Marzillo
responded that it was painters’ work, not Local 868
work.
Thus, we find reasonable cause to believe that a vio-
lation of Section 8(b)(4)(D) has occurred. No party
contends that there is an agreed-on method for vol-
untary adjustment of the dispute within the meaning of
Section 10(k) of the Act. Accordingly, we find that the
dispute is properly before the Board for determination.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirm-
ative 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 balancing the factors in-
volved in a particular case. Machinists Lodge 1743
(J. A. Jones Construction), 135 NLRB 1402 (1962).
The following factors are relevant in making the de-
termination of the dispute.
1. Certifications and collective-bargaining
agreements
There is no claim that either Local 868 or District
Council 9 has been certified by the Board to represent
Historical’s employees. Historical is party to a collec-
tive-bargaining agreement with Local 868 which is ef-
fective until July 31, 1995. Under that agreement,
work performed by mechanics or laborers employed by
Historical is within the jurisdiction of Local 868.4 His-
torical has no collective-bargaining agreement with
District Council 9. We find that the factor of collec-
tive-bargaining agreements favors awarding the dis-
puted work to employees represented by Local 868.
2. Employer preference and past practice5
Weiss testified that when McGuire, Historical’s
president, authorized him to represent Historical in the
1113PAINTERS DISTRICT COUNCIL 9 (APPLE RESTORATION)
in this proceeding. As to the latter, Weiss was Historical’s president
until November 1992 when he turned the business over to his chil-
dren.
meetings with Marzillo, McGuire told him that ‘‘[i]t
was 868’s work and to stick with it.’’ We find, there-
fore, that the factor of employer preference, while not
determinative, favors the award of the disputed work
to Local 868-represented employees. As to past prac-
tice, although Weiss testified that Historical has used
Local 868-represented employees on past jobs, no evi-
dence was presented as to whether a Sonneborn tinted
color coating was used on those jobs and thus it is not
clear whether the work on those jobs was similar to
that in dispute here. We therefore find that this factor
does not favor an award of the disputed work to either
group of employees.
3. Area and industry practice
Local 868 asserts that its collective-bargaining
agreements with other companies engaged in the exte-
rior application of waterproofing materials support its
claim for the work in dispute. In support of its asser-
tion, Local 868 presented three agreements between
Local 868 and other waterproofing companies. It is un-
clear from Local 868 President Moran’s testimony,
however, whether the agreements cover employees per-
forming work similar to that in dispute here. We there-
fore find that this factor is inconclusive.
4. Relative skills
Weiss testified that the skills required for the work
in dispute include not only the application of the wa-
terproofing coat, but also the repointing and caulking
of the building surface. Local 868-represented employ-
ees are qualified to perform the waterproofing work,
including the repointing and caulking work. Marzillo
testified that District Council 9-represented employees
are qualified to perform all painting work, including
the application of waterproofing material. This work
includes caulking and power washing done in prepara-
tion for painting. Marzillo testified, however, that Dis-
trict Council 9-represented employees do not perform
repointing work. We find that this factor tends to favor
an award of the disputed work to employees rep-
resented by Local 868.
5. Economy and efficiency of operations
Weiss testified that it would be more efficient for
Historical to assign the work to Local 868-represented
employees because of their skill in the application of
waterproofing as well as in other waterproofing tech-
niques such as caulking, pointing, and roofing. The
record establishes that there is no roofing work on this
job and that District Council 9-represented employees
are also skilled at the application of pigmented mate-
rial and at caulking. As noted above, however, District
Council 9-represented employees do not perform point-
ing work. Although the pointing work on the exterior
of the Toy Center is not extensive, we find that this
factor tends to favor an award of the disputed work to
employees represented by Local 868.
Conclusion
After considering all the relevant factors, we con-
clude that employees represented by Local 868, Inter-
national Brotherhood of Teamsters, AFL–CIO are enti-
tled to perform the work in dispute. We reach this con-
clusion relying on the collective-bargaining agreement
between Historical and Local 868, Historical’s pref-
erence, relative skills, and economy and efficiency of
operations.
In making this determination, we are awarding the
work in dispute to Historical’s employees represented
by Local 868, not to that Union or its members. The
determination is limited to the controversy that gave
rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees of Historical Restoration and Water-
proofing Corp. represented by Local 868, International
Brotherhood of Teamsters, AFL–CIO are entitled to
perform the application of tinted material, including
any caulking and power washing performed in prepara-
tion for such application, to the exterior of the Toy
Center located at 200 Fifth Avenue and 1107 Broad-
way, New York, New York.
2. International Brotherhood of Painters and Allied
Trades, District Council 9 is not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force
Apple Restoration and Waterproofing to assign the dis-
puted work to employees represented by it.
3. Within 10 days from the date of this decision,
District Council 9 of the International Brotherhood of
Painters and Allied Trades shall notify the Regional
Director for Region 2 in writing whether it will refrain
from forcing Apple Restoration and Waterproofing, by
means proscribed by Section 8(b)(4)(D), to assign the
disputed work in a manner inconsistent with this deter-
mination.