Painters District Council No. 51

National Labor Relations Board - Board Decisions

Jul 31, 1980

250 N.L.R.B. 1270 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Painters and Allied
Trades of the United States and Canada, Dis-
trict Council No. 51, AFL-CIO and C. J. Coak-
ley Co., Inc. and Operative Plasterers Local
Union No. 96, Operative Plasterers and Cement
Masons International Association of the United
States and Canada, AFL-CIO. Case 5-CD-
259
July 31, 1980
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by C. J. Coakley Co., Inc.,
herein called the Employer, alleging that Interna-
tional Brotherhood of Painters and Allied Trades
of the United States and Canada, District Council
No. 51, AFL-CIO, herein called the Respondent
or the Painters, had violated Section 8(b)(4)(D) of
the Act by engaging in certain proscribed activity
with an object of forcing or requiring the Employ-
er to assign certain work to employees represented
by Operative Plasterers Local Union No. 96, Oper-
ative Plasterers and Cement Masons International
Association of the United States and Canada,
AFL-CIO, herein called Plasterers.
Pursuant to notice, a hearing was held before
Hearing Officer Maria C. Walsh on March 11 and
17, 1980. All parties appeared and were afforded
full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing
on the issues.
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
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer, a Virginia corporation with its principal
place of business in Merrifield, Virginia, is engaged
in commercial construction. During the past year,
the Employer had gross revenues in excess of
S500,000 and, during that same period, performed
services valued at more than $50,000 outside the
Commonwealth of Virginia. We find that the Em-
ployer is engaged in commerce within the meaning
250 NLRB No. 171
of Section 2(6) and (7) of the Act and that it will
effectuate the purposes of the Act to assert juris-
diction herein.
11. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that the
Painters and the Plasterers are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer, a construction contractor operat-
ing in the Washington, D.C., area, does interior
and exterior lathing, plastering, and fireproofing
work, including the installation of gypsum wall-
board. The installation of wallboard is a several
step process, one of which being the finishing stage
where the seams of the wallboard sections are
taped and spackled so as to provide a smooth sur-
face for the application of a decorator coat.
The Employer has had a collective-bargaining
relationship with the Plasterers since 1962, and,
except for a 3-year period ending June 1976, it has
assigned the wallboard finishing work to employees
represented by the Plasterers. During that 3-year
period employees represented by the Painters did
the work pursuant to a collective-bargaining agree-
ment. Since the cancellation of that contract in
1976, however, the Employer has not had a collec-
tive-bargaining agreement with the Painters nor has
it employed any employees represented by that
Union.
The Employer has subcontracting agreements to
perform plastering and drywall finishing work at
the Sears, Roebuck & Co. and Woodward & Loth-
rop construction sites at the Fair Oaks Mall in
Fairfax, Virginia. The contracts are with two gen-
eral contractors-Mahony-Troast Construction
Company at the Sears site and Charles H. Tomp-
kins Construction Company at the Woodward &
Lothrop site. Consistent with its past practice, the
Employer assigned the work to employees repre-
sented by the Plasterers.
On February 14, 1980, Painters Business Repre-
sentative Myers visited the Mall to police several
jobs there. Myers spoke to Tompkins' job superin-
tendent, Sullivan, at the Woodward & Lothrop site
and inquired about the type of work Coakley was
performing. Sullivan told Myers that Coakley's
contract covered drywall finishing work. Sullivan
testified that Myers objected to Coakley's use of
plasterers to perform the drywall finishing and
claimed that the work belonged to employees rep-
resented by the Painters. Myers then requested per-
mission to photograph the work and Sullivan asked
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PAINTERS DISTRICT COUNCIL NO. 51
what was going to happen. Myers declared that
there was going to be a jurisdictional dispute. Sulli-
van asked if the dispute would resemble what oc-
curred at the nearby AT & T jobsite, the scene of
a Painters work stoppage the month before involv-
ing Coakley's performance of drywall finishing.
Myers replied that the AT & T strike had ended
and that the Painters had prevailed, but that Tomp-
kins, as the prime contractor at the Woodward &
Lothrop site, would be involved in the upcoming
dispute. Myers denied mentioning the possibility of
picketing the Woodward & Lothrop site, but he
admitted discussing the AT & T work stoppage
with Sullivan.
Later that same day Myers spoke to Mahony-
Troast's job superintendent, Fetzko, at the Sears
site. Fetzko testified that Myers asked him who
had the contract to do the drywall finishing at the
Sears job. Upon learning that Coakley was the con-
tractor, Myers stated that the Painters would have
to picket the jobsite because Coakley was "stealing
the work." According to Fetzko, Meyers then al-
luded to the Painters dispute with Coakley at the
AT & T site and stated that Mahony-Troast would
have to find a new subcontractor if the Painters
won the Sears dispute. Myers denied that he
threatened to picket the site or mentioned the AT
& T dispute. He testified that he merely told
Fetzko that the Painters would take the dispute
"one step at a time." On February 19, 1980, the
Employer filed a charge alleging that the Painters
violated Section 8(b)(4)(D) of the Act by threaten-
ing to picket the two jobsites.
B. The Work Dispute
The work in dispute involves the finishing of
gypsum wallboard at the Sears and Woodward &
Lothrop construction sites at the Fair Oaks Mall in
Fairfax, Virginia.
C. The Contentions of the Parties
The Employer contends that the work should be
assigned to its employees represented by the Plas-
terers, relying on the collective-bargaining history,
employer and area practice, economy and efficien-
cy of operations, job impact, and employer assign-
ment and preference. The Painters contends that
there is no reasonable cause to believe that Section
8(bX4XD) has been violated because Myers' state-
ments to Sullivan and Fetzko did not constitute
threats to force the assignment of the disputed
work to employees represented by the Painters. It
further contends that the Board is without jurisdic-
tion to decide the dispute because the parties have
an agreed-upon method for voluntary settlement of
the dispute. The Plasterers contends that the Em-
ployer's assignment of the work should be upheld.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to Section 10(k) of the
Act, it must be satisfied that (I) there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated and (2) the parties have not agreed upon a
method for the voluntary adjustment of the dis-
pute.
1. Fetzko testified that Myers threatened to
picket the Sears site because Coakley was not using
employees represented by the Painters to perform
the drywall finishing. According to Fetzko, Myers
also referred to the Painters' recent successful
work stoppage against Coakley and declared that if
the Painters won the upcoming dispute, Mahony-
Troast would be looking for a new subcontractor.
With regard to the Woodward & Lothrop site, Sul-
livan testified that Meyers objected to Coakley's
Plasterers-represented employees doing the disput-
ed work and claimed the work for employees rep-
resented by the Painters. Myers also stated that
there was going to be a jurisdictional dispute,
which prompted Sullivan to ask if it would resem-
ble the AT & T dispute. Myers replied that the AT
& T strike had ended, that the Painters had won
the dispute, and that Tompkins, as the general con-
tractor, would be involved in the dispute at Sears.
Myers denied that he threatened to take action
to force assignment of the work to employees rep-
resented by the Painters. Although the evidence as
to what occurred at the two jobsites is in conflict,
in a proceeding under Section 10(k) of the Act the
Board is required only to find that there is reason-
able cause to believe that Section 8(b)(4)(D) has
been violated. The Board need not conclusively re-
solve conflicts in testimony.' Myers' statement to
Fetzko that the Painters would have to picket the
Sears site because of Coakley's use of plasterers
clearly constituted a threat to picket with an object
of forcing the assignment of the disputed work to
employees represented by the Painters.
Likewise, Myers' remarks to Sullivan amounted
to an implied threat to take action if the work was
not given to employees represented by the Paint-
ers. Myers' claim for the work and his prediction
of a jurisdictional dispute must be considered in
thecontext of his comments concerning the Paint-
ers' recent work stoppage against Coakley at the
nearby AT & T jobsite. According to Sullivan,
Myers indicated that the Painters' work stoppage
International Union of Elevator Constructors, AFL-CIO. Local LUnon
No. I (Millar Elevator Industries. Inc ), 229 NLRB 1200 (1977)
1271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had enabled it to prevail in its dispute involving the
same Employer and the same work as that in the
instant case. Myers further stated that Sullivan's
company would necessarily be a party to the dis-
pute at Fair Oaks Mall. Given the proximity and
similarity of the AT & T dispute, we find that
Myers' statements establish reasonable cause to be-
lieve that the Painters implicitly threatened to take
action at the Woodward & Lothrop site with an
object of forcing the assignment of the disputed
work in violation of Section 8(b)(4)(D).
2. The Painters contends that an agreed-upon
method for voluntary adjustment of the dispute
exists because the parties are bound to submit this
jurisdictional dispute to the Impartial Jurisdictional
Disputes Board (IJDB) for determination. With re-
spect to the Employer's commitment to a settle-
ment mechanism, the Painters argues that Coak-
ley's collective-bargaiing agreement with the Plas-
terers and its subcontracting agreements with
Mahony-Troast and Tompkins obligate Coakley to
submit the dispute to the IJDB.
We find no merit in the Painters' claim that the
Employer agreed to be bound to the procedures of
the IJDB. The record shows that in September
1977 the Employer and the Plasterers executed a
"rehab" agreement which incorporated the terms
of the existing master agreement between the Em-
ploying Plasterers Association and the Plasterers
subject to certain modifications. One of the modifi-
cations altered the manner in which jurisdictional
disputes were to be resolved. Instead of adopting
the IJDB procedure set out in the master agree-
ment, the parties provided that work within the
traditional jurisdiction of two unions shall be as-
signed "in accordance with Agreement and Deci-
sions of Record, established trade practice, or pre-
vailing area practice." The agreement also states
that, "[s]ince presently established jurisdictional
dispute settlement procedures are not applicable to
the work covered by this Agreement," any dis-
putes arising from work assignments shall be re-
ferred to the respective general presidents for reso-
lution. Subsequent to the execution of the rehab
agreement, the Plasterers and the Association en-
tered into a new master agreement. The Employer,
although a member of the Association, did not sign
the new agreement. Thus, with respect to the Em-
ployer and the Plasterers, the relevant contract lan-
guage in effect is that of the rehab agreement
which bypasses the IJDB and provides for an alter-
native method of settlement. Accordingly, we find
that the Employer is not bound to submit the dis-
pute to the IJDB by virtue of its labor agreement
with the Plasterers.
As for the Employer's subcontracting agree-
ments, the contract with Tompkins for the Wood-
ward & Lothrop job provides in relevant part that
Coakley "agrees to abide by the prevailing practice
of the Construction Industry and to request the as-
sistance of the Contractor's Construction Council
in any matters involving jurisdictional disputes."
The contract further provides that the subcontrac-
tor shall request the Board to determine the dispute
in the event the council fails to resolve the matter.
The contract makes no reference to the IJDB.
Consequently, we are unable to find that the sub-
contracting agreement with Tompkins requires the
Employer to submit the dispute to the IJDB.
The Employer's subcontracting agreement with
Mahony-Troast was executed on August 20, 1979,
and consists of a standard basic agreement with
several forms attached as riders. One of the riders
provides:
The Subcontractor shall abide by all decisions
rendered by the National Joint Board for the
Settlement of Jurisdictional Disputes and make
all assignment of work performed by it to the
trade or craft as directed by the Joint Board.
In the event any jurisdictional dispute arises
over work being performed by the Subcon-
tractors, the Subcontractor shall forthwith
submit the said jurisdictional dispute to the
National Joint Board for the Settlement of Ju-
risdictional Disputes and shall process said dis-
pute in accordance with the rules and proce-
dures of the Joint Board.
This provision, while appearing to obligate the
Employer to a dispute settlement mechanism, refers
to the National Joint Board, which was abolished
in May 1973. The IJDB, which succeeded the Na-
tional Joint Board on June 1, 1973, is not men-
tioned in the agreement despite the fact that it had
been in existence for more than 6 years when the
contract was executed. This ambiguity takes on
added significance when considered with the Em-
ployer's modification of the master agreement with
the Plasterers so as to eliminate resort to the IJDB.
We are not persuaded that in these circumstances
the subcontracting agreement's reference to an
entity which has long been defunct manifests an
intent on the Employer's part to submit jurisdic-
tional disputes to the IJDB. To the contrary, the
Employer's modification of the jurisdictional dis-
pute language in its collective-bargaining agree-
ment with the Plasterers, and the ambiguity in the
Mahony-Troast contract concerning a dispute set-
tlement mechanism indicates that the Employer has
not expressed a clear voluntary agreement to be
bound by the procedures of the IJDB. The record
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PAINTERS DISTRICT COUNCIL NO. 51
therefore fails to establish the existence of an
agreed-upon method for the voluntary adjustment
of this dispute binding on all the parties. Accord-
ingly, we find that this dispute is appropriate for
resolution by the Board under Section 10(k) of the
Act.
E. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of disputed work after
giving due consideration to various factors. The
following factors are relevant in making the deter-
mination of the dispute before us:
1. Collective-bargaining agreement
The Employer has a collective-bargaining agree-
ment with the Plasterers. That agreement consists
of the terms of the master agreement as modified
by the agreement executed by the Employer and
the Plasterers. Article XIII of the master agree-
ment provides that the jurisdiction of the agree-
ment covers, inter alia, the taping and pointing (i.e.,
spackling) of wallboard where plaster finishes are
to be applied. The record does not reveal whether
plaster or another type of finish is to be applied at
the Sears and Woodward & Lothrop projects, but
Cornelius Coakley, the Employer's president, testi-
fied that the company's subcontracting agreements
frequently omit the type of finish to be applied be-
cause the Employer often does not perform the
final stage of the finishing work.
The Painters has no collective-bargaining agree-
ment with the Employer.
We therefore find that this factor favors the
award of the disputed work to employees repre-
sented by the Plasterers.
2. Employer and area practice
Except for a 3-year period ending June 1976, the
Employer has assigned drywall finishing work ex-
clusively to employees represented by the Plaster-
ers. The Employer's practice therefore favors an
award to those employees.
The employees represented by the Plasterers do
the same work for other employers in the Wash-
ington, D.C., area. Employees represented by the
Painters also perform the work in that area. Since
both groups of employees perform a certain
amount of finishing work in the same geographical
location, the factor of area practice favors neither
group.
3. Economy and efficiency of operations
Plasterers-represented employees perform work
for the Employer other than that which is in dis-
pute. As a result, the Employer is able to inter-
change employees between plastering-related work
and finishing work and perform both the disputed
and other tasks with one work force. Furthermore,
since the Employer performs no painting work, an
award of the work to employees represented by
the Painters would appear to require the Employer
to hire two work complements. Therefore, econo-
my and efficiency of operations favors an award to
employees represented by the Plasterers.
4. Employer assignment and preference
The Employer has assigned the work in dispute
to employees represented by the Plasterers and has
expressed its preference that the disputed work be
performed by those employees. We find that the
Employer assignment and preference favor an
award of the disputed work to employees repre-
sented by the Plasterers.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees represented by the Plasterers
are entitled to perform the work in dispute. In
making this determination, we are awarding the
work in question to employees who are represented
by the Plasterers, but not to that Union or its mem-
bers. The record does not warrant the issuance of a
broad order as requested by the Employer. Ac-
cordingly, the present determination is limited to
the work in controversy being performed by the
Employer at the Sears and Woodward & Lothrop
jobsites at the Fair Oaks Mall in Fairfax, Virginia.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of
the foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of C. J. Coakley Co., Inc., who are
represented by Operative Plasterers Local Union
No. 96, Operative Plasterers and Cement Masons
International Association of the United States and
Canada, AFL-CIO, are entitled to perform the fin-
ishing of gypsum wallboard at the Sears, Roebuck
& Co. and Woodward & Lothrop jobsites at the
Fair Oaks Mall in Fairfax, Virginia.
2. International Brotherhood of Painters and
Allied Trades of the United States and Canada,
District Council No. 51, AFL-CIO, is not entitled
by means proscribed by Section 8(b)(4)(D) of the
Act to force or require C. J. Coakley Co., Inc., to
assign the disputed work to employees represented
by that labor organization.
1273
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Within 10 days from the date of this Decision 5, in writing, whether or not it will refrain from
and Determination of Dispute, International Broth- forcing or requiring the Employer, by means pro-
erhood of Painters and Allied Trades of the United scribed by Section 8(b)(4)(D) of the Act, to assign
States and Canada, District Council No. 51, AFL- the disputed work in a manner inconsistent with
CIO, shall notify the Regional Director for Region the above determination.