Painters District Council No. 20 of Westchester

National Labor Relations Board - Board Decisions

Oct 8, 1970

185 N.L.R.B. 930 (N.L.R.B. 1970)

930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Painters District Council No. 20 of Westchester And
Putnam Counties New York, Brotherhood of
Painters , Decorators and Paperhangers of
America , AFL-CIO and Uni-Coat Spray Painting,
Inc. Case 2-CC-1131-1
Upon the basis of the aforesaid stipulation, the
briefs of the parties and the entire record in this
case, the Board makes the following:
FINDINGS OF FACT
October 8, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
Upon charges duly filed by Uni-Coat Spray Paint-
ing, Inc., herein called Uni-Coat, as the Charging
Party, the General Counsel of the National Labor
Relations Board by the Regional Director for Region
2 issued a complaint dated September 12, 1969, against
Painters District Council No. 20 of Westchester and
Putnam Counties, New York, Brotherhood of Paint-
ers, Decorators and Paperhangers of America, AFL-
CIO, herein called the Respondent, alleging that the
Respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section
8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of
the National Labor Relations Act, as amended. Copies
of the charge and a complaint and notice of hearing
before a Trial Examiner were duly served on the
Respondent and Charging Party. On September 18,
1969, the Respondent filed its answers admitting cer-
tain allegations of the complaint, but denying the
commission of any unfair labor practices.
Pursuant to Section 10(b) of the Act, the Regional
Director sought a temporary injunction in the United
States District Court for the Southern District of
New York, pending the final disposition of the charges
filed with the Board. On September 16, 1969, a hearing
was held before the court and on December 15,
1969, the Respondent, the Charging Party and the
General Counsel entered into a stipulation in which
the parties waived their rights to a hearing and to
the issuance of a Trial Examiner's Decision.
In lieu thereof, the parties stipulated that the entire
record of this proceeding shall consist of the charge,
the complaint, the answer, and the official transcript
of the aforesaid District Court proceeding, including
all exhibits introduced therein into evidence.
By an order issued December 17, 1969, the Board
approved the aforesaid stipulation, transferred the
matter to the Board, and granted permission to the
parties to file briefs. Briefs were filed by the Respond-
ent and General Counsel.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this case to a three-member panel.
1. THE BUSINESS OF THE EMPLOYERS
Baker-Firestone, Inc., is a New York corporation
engaged in general construction work in the building
and construction industry, with its principal office
and place of business in New York, New York.
At all times material herein, Baker-Firestone has been
engaged as general contractor in the construction
of a garden apartment complex located at Kings
Ferry Road in Montrose, New York. During the
past 12 months, Baker-Firestone, in the course and
conduct of its business operations, purchased and
received directly from points outside the State of
New York, goods and materials valued in excess
of $50,000. It is estimated that upon completion
of the above complex, Baker-Firestone will derive
revenues from the sale of apartments in excess of
$ 500,000.
D. A. W. Rainbow Painting Company, Inc., is
a Missouri corporation which invented and holds
title to a paint product and process known as Quali-
ware, and has its principal office and place of business
in Clayton, Missouri.
Qualiware Sales Corporation, a Missouri corpora-
tion engaged in the sale of a paint product known
as Qualiware, maintains its principal office and place
of business in St. Louis, Missouri. D.A.W. and Quali-
ware Sales constitute a single-integrated business enter-
prise which in the past 12 months sold and distributed
products directly to States outside Missouri valued
in excess of $50,000.
St. Louis Mfg. Co. is a Missouri corporation
engaged in the manufacture and distribution of paint
with its principal place of business in St. Louis,
Missouri. During the last 12 months St. Louis Mfg.
Co., manufactured, sold, and distributed products
valued in excess of $50,000 to other companies which
in turn shipped these products directly to States out-
side Missouri.
Uni-Coat Spray Painting, Inc., is a New York
corporation engaged in the business of painting con-
tracting in the building and construction industry,
and at all times material has had a contract with
Baker-Firestone pursuant to which it has been engaged
in the painting of apartments at the Kings Ferry
Road garden apartment jobsite.
The parties admit, and we find, that the Companies
are persons engaged in commerce and in an industry
affecting commerce within the meaning of Section
8(b)(4) and Section 2(6) and (7) of the Act.
185 NLRB No. 136
PAINTERS DISTRICT COUNCIL NO 20
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulate, and we find, that the Respond-
ent, Painters District Council No. 20 of Westchester
and Putnam Counties, New York, Brotherhood of
Painters, Decorators and Paperhangers of America,
AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Baker-Firestone, Inc., is the general contractor for
the construction of a garden apartment complex on
Kings Ferry Road in Montrose, New York Sometime
prior to July 1969, Rocco Gallo, vice president of
Uni-Coat, a painting subcontractor, contacted Jack
Hon, project engineer for the job, to secure the painting
subcontract. Gallo informed Hon that if Uni-Coat
was hired, it would use Qualiware paint. On May
21, 1969, Baker-Firestone awarded the painting work
to Uni-Coat specifying that Qualiware, to be applied
in accordance with the manufacturer's standards, was
to be used for interior painting. Baker-Firestone
reserved the right to change overall specifications
provided the contract price was adjusted.
At some time prior to the execution of the painting
subcontract, Gallo traveled to St. Louis to secure
the rights to use Qualiware. On April 17, 1969,
Gallo negotiated an exclusive licensing agreement with
Williams, the president of both D.A.W. and Qualiware
Sales. This agreement and a contract with Qualiware
Sales were conditioned upon Uni-Coat's adherence
to the manufacturer's specifications for the product.
Qualiware is manufactured exclusively by St. Louis
Mfg. Co. in accordance with D.A.W.'s standards
and specifications which provide, in pertinent part,
that Qualiware is to be applied only by spraying.
Uni-Coat is a party to a collective-bargaining agree-
ment with the Respondent which provides under rule
9(a) of article III that "[t]he spraying of acoustic
ceilings, and wall surfaces or decorative effects which
it is impossible to brush, shall be permitted upon
receiving permission from District Council No. 20."
On or about June 30, 1969, Uni-Coat demonstrated
the application of Qualiware to the Respondent in
order to secure permission to spray wall surfaces.
The Respondent concluded that Qualiware could be
properly applied by being rolled or brushed, and
refused to authorize spray painting. However, Arthur
Colasanto, executive secretary-treasurer of Respond-
ent suggested the dispute be referred, pursuant to
article V of the collective-bargaining agreement, to
the Joint Trade Board for a final determination.'
' The Joint Trade Board, composed of six employer representatives
and five union representatives , has authority to make final and binding
decisions in disputes arising under the contract
931
Colasanto, a member of the Joint Trade Board, offered
to disqualify himself for purposes of this dispute,
but Gallo, vice president of Uni-Coat, refused to
submit the issue to the Joint Trade Board.
At a second meeting, on July 3, 1969, at Respond-
ent's headquarters, among the Respondent, Uni-Coat,
Baker-Firestone, D.A.W. and Qualiware Sales, Presi-
dent Williams of D.A.W. and Qualiware Sales stated
that Qualiware could not be properly rolled or brushed
and if it was not sprayed he could not guarantee
the job or materials. The Respondent was willing
to brush or roll Qualiware but opposed the application
of Qualiware by spraying and at no subsequent time
has it granted permission to spray Qualiware.
On the morning of July 7, 1969, Uni-Coat com-
menced spraying Qualiware in 11 model apartments
on the Kings Ferry Road jobsite. Uni-Coat notified
the Respondent that it was on the job, and about
noon Respondent's members began picketing the job-
site. They carried signs bearing the following language:
"The Painting Contractor on this job does not observe
the contract with District Council 20, AFL-CIO."
The Respondent informed Baker-Firestone and Uni-
Coat that the picketing would continue until spray
painting stopped. Baker-Firestone directed Uni-Coat
to stop painting until the problem was resolved. The
picketing ceased at 4 p.m. Prior to that time one
delivery truck refused to cross the picket line and
on the following day electricians and plumbers failed
to report to work. On July 21, Uni-Coat returned
to the jobsite to complete the spraying of the 11
model apartments. For the next 3 days the Respondent
again picketed the jobsite carrying signs similar to
those used on July 7. Uni-Coat performed no work
at the jobsite after July 21. Baker-Firestone met with
the Respondent on the evening of July 24, and the
Respondent stated that it objected to the spraying
and not to Uni-Coat itself. Baker-Firestone agreed
to dismiss any painting contractor who did not adhere
to the terms of Respondent's collective-bargaining
agreement, and the picketing ceased. Uni-Coat's serv-
ices were terminated and another contractor hired
to complete the unfinished work.
Discussion
The General Counsel contends that Respondent's
object in picketing was to force Baker-Firestone to
cease doing business with Uni-Coat in order to cause
Uni-Coat to cease doing business with D.A.W. Rain-
bow, St. Louis Mfg., and Qualiware Sales. In support
of this contention the General Counsel asserts that
under the "right to control" test, Uni-Coat and Baker-
Firestone are neutral secondary employers. In
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mechanical Contractors Association of Detroit Inc.,'
the Board stated that it "will continue to use the
`right to control' test in appropriate circumstances
in determining whether an unlawful secondary boycott
exists." For the reasons stated below, however, we
cannot agree that such test is appropriately to be
applied to the instant case.
As the foregoing factual recital shows, it was the
asserted neutral, Uni-Coat, which actively sought out
and secured a license to spray Qualiware, thereby
knowingly setting the stage for potential conflict
between that license and its contract with the Respond-
ent. In furtherance of its efforts Uni-Coat sought
out Baker-Firestone, informed it of Qualiware, and
persuaded it to give Uni-Coat the painting subcontract.
Such actions cannot, in our opinion, properly be
characterized as "neutral." For, assuming arguendo
that Uni-Coat contracted away its control over spray
painting through a series of restrictive documents,
it initiated such restrictions by seeking the product
and convincing Baker-Firestone to use it. Further,
as the record shows, Uni-Coat rejected the Respond-
ent's suggestion that the parties avail themselves of
the procedures under the collective-bargaining agree-
ment for settling disputes, despite the fact that the
contract between Uni-Coat and Baker-Firestone per-
mitted a change in specifications and Baker-Firestone
never insisted that only Qualiware be used.
As the Supreme Court has said, the provisions
of the Act sought to be applied in this case reflect
"the dual Congressional objectives of preserving the
right of labor organizations to bring pressure to bear
on offending employers in primary labor disputes
and of shielding unoffending employees and others
from pressures and controversies not their own."'
We do not believe that Uni-Coat can be deemed
such an "unoffending employer" in view of its active
role in seeking a license and subcontract which it
knew would cause it to breach its collective-bargaining
contract with the Respondent. We therefore conclude
that this case does not present "appropriate circum-
stances" for application of the "right-to-control" test.
The General Counsel also contends that the Peti-
tioner failed to adhere to the standards laid down
in the Moore Dry Dock case.' Specifically, he asserts,
on the basis of the picketing after Uni-Coat left
the jobsite on July 21, that the Respondent was
1 177 NLRB No 14 In view of our decision finding the right-
to-control test inapplicable to the facts in the instant case , it is unnecessary
in this proceeding to consider the issues as to the validity of that
test raised in the decision of the Court of Appeals for the District
of ColumbiaiCircuit (Local Union No 636, UnitedAssociation ofJourneymen
v N.L.R.B., 430 F.2d 906) denying enforcement of the Board Order
in Mechanical Contractors.
' N.LR.B v Denver Building and Construction Trades Council, 341
U S. 675, 692.
4 Sailors Union of the Pacific, 92 NLRB 547
picketing the situs at a time when the primary employ-
er Uni-Coat was not engaged in its normal business.
We do not agree, however, that in the circumstances
of this case, the absence of the primary employer
after resumption of picketing is alone a sufficient
basis for finding that the primary employer was not
engaged in its normal business at the situs of the
dispute. Here the record reveals that Uni-Coat had
not completed .its work on the 11 model apartments,
nor had it begun work on the 210 -dwelling units
it had contracted to paint for Baker-Firestone when
it left the jobsite on July 21. In addition, in the
past it had stopped working when picketing occurred
and returned as it did on July 21, without notifying
Respondent, to continue the work.
The Board has held that where the primary employ-
er is not physically on the job but is still engaged
in working there, the requirement of Moore Dry Dock
that the primary employer be engaged in its normal
operations at the jobsite is met.' Moreover, picketing
which is lawful primary picketing is not turned into
unlawful secondary picketing because the primary
employer is seeking to prevent the picketing by staying
off the jobsite when picketing occurs and returning
in its absence. In the circumstances of this case,
as Uni-Coat had not completed its work on the
project, we find that Uni-Coat was, at all material
times herein, engaged in its normal operations at
the situs of the dispute. Accordingly, we find that
Respondent picketed at the common situs here
involved in accordance with Moore Dry Dock stand-
ards.
For the foregoing reasons, we find that the General
Counsel has failed to establish by a preponderance
of the evidence that the Respondent engaged in con-
duct violative of Section 8(b)(4)(i) and (ii)(B) of the
Act and shall dismiss the complaint in its entirety.
CONCLUSIONS OF LAW
1. Painters District Council No. 20 of Westchester
and Putnam Counties, New York, Brotherhood of
Painters, Decorators and Paperhangers of America,
AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
2. Baker-Firestone, Inc., Uni-Coat Spray Painting
Inc., D.A.W. Rainbow Painting Company, Inc., Quali-
ware Sales Corporation, and St. Louis Mfg. Co.,
are persons and employers engaged in commerce and
in an industry affecting commerce within the meaning
of the Act.
' International Brotherhood of Electrical Workers, Local 861, 145
NLRB 1163
PAINTERS DISTRICT COUNCIL NO 20
3. The Respondent Union has not engaged in con-
duct violative of Section 8(b)(4)(i) and (ii)(B) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board hereby orders that the complaint be,
and it hereby is, dismissed in its entirety.
933