Painters Local 1447 (Hargrove)

National Labor Relations Board - Board Decisions

Jan 21, 1992

306 N.L.R.B. 97 (N.L.R.B. 1992)

97
306 NLRB No. 27
PAINTERS LOCAL 1447 (HARGROVE)
1 The Carpenters moves to reopen the record to include the
Board’s decision in Carpenters Local 623 (Atlantic Exhibit Services),
274 NLRB 71 (1985). The Decorators moves to reopen the record
to include the Board’s decision in Painters Local 1447 (United Ex-
position Service), 303 NLRB 732 (1991), and the Employer opposes.
We take administrative notice of these decisions and therefore find
it unnecessary to pass on the motions.
2 The Employer’s unopposed motion to correct the transcript is
granted.
Local Union No. 1447, Sign-Pictorial & Displaymen,
a/w International Brotherhood of Painters and
Allied Trades of the United States and Canada,
AFL–CIO–CLC and Hargrove, Inc. and Car-
penters District Council of South Jersey and its
Local 623, a/w United Brotherhood of Car-
penters and Joiners of America, AFL–CIO.
Case 4–CD–801
January 21, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The charge in this Section 10(k) proceeding was
filed on February 28, 1991, by Hargrove, Inc. (the Em-
ployer) alleging that the Respondent, Local Union No.
1447, Sign-Pictorial and Displaymen, a/w International
Brotherhood of Painters and Allied Workers of the
United States and Canada, AFL–CIO–CLC (Decora-
tors), violated Section 8(b)(4)(D) of the National Labor
Relations Act by engaging in proscribed activity with
an object of forcing the Employer to assign certain
work to employees it represents rather than to employ-
ees represented by Carpenters District Council of
South Jersey and its Local 623, a/w United Brother-
hood of Carpenters and Joiners of America, AFL–CIO
(Carpenters). The hearing was held on April 29 and
May 17, 1991, before Hearing Officer Kathleen
O’Neill.1
The National Relations Board has delegated its au-
thority 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,2 the Board makes the following findings.
I. JURISDICTION
The Employer, a Maryland corporation, creates and
produces trade shows and special events at hotels and
convention centers in various cities around the country
from its facility in Lanham, Maryland. It annually pur-
chases and receives goods and materials in New Jersey
valued in excess of $50,000 from points outside the
State of New Jersey. The parties stipulate, and we find,
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
the Decorators and the Carpenters are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
The Employer has staged special events and trade
shows in Washington, D.C.; Baltimore, Maryland;
Houston and Austin, Texas; New Orleans, Louisiana;
Boston, Massachusetts; and Atlanta, Georgia. Special
events are functions such as weddings, New Year’s
Eve parties, bar and bat mitzvahs, and theme parties.
Trade shows are substantially larger than special
events in the number of attendees and participants. The
Employer had produced special events in Atlantic City,
but never produced a trade show there until the Amer-
ican Society of Association Executives (ASAE) meet-
ing in March 1991.
In producing an event the Employer may lay out the
floor, install and dismantle drapery and swagging, as-
semble and disassemble the pipes and drape outlining
the show floor or designating display booth areas, skirt
and decorate tables, install and dismantle display
booths, and set up and remove plants, props, signs,
flags, and banners. Wherever it performs its functions,
it takes with it a crew of employees represented by a
Carpenters local out of Washington, D.C. These em-
ployees do draping, swagging, and decorating work
that often requires riding lifts to do ceiling work. They
also install and dismantle prefabricated display booths.
The Employer uses local help obtained at the site of
the event, generally for 2 days at a time, to augment
its permanent employees.
Although the Employer had intermittently worked in
Atlantic City during the 1950s, 1960s, and 1970s, it
never signed a contract with the Decorators until No-
vember 20, 1987. The contract expired on April 1,
1989. It did not differentiate between special events
and trade shows, but it was signed in anticipation of
a number of special events the Employer was doing in
Atlantic City over the holidays in 1987. For these spe-
cial events, the Employer used employees represented
by the Decorators who worked alongside its permanent
Carpenters-represented employees.
After the contract with the Decorators expired in
April 1989, the Employer sought to negotiate a con-
tract with the Decorators to cover special events in At-
lantic City. The Decorators refused to grant the con-
cessions the Employer wanted, in part, because the
Decorators had ‘‘most favored nation’’ clauses in its
contracts with all the other show producers in Atlantic
City and would, therefore, have to grant the same con-
cessions to all these other employers. The Employer
told the Decorators that if it would not agree to the
Employer’s terms, it would sign a contract with the
Carpenters. On December 28, 1990, the Employer
signed a contract with Carpenters Local 623.
98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 We reject the Decorators’ claim that it is merely trying to pre-
serve work that it has traditionally done for the Employer. It is un-
disputed that the ASAE trade show was the first trade show ever
done by the Employer in Atlantic City. Thus, Decorators-represented
employees have never performed for the Employer the same type of
trade show work that is in dispute. Accordingly, we do not address
the relevance of that claim to the existence of a jurisdictional dis-
pute.
In January 1991, Decorators Business Manager Ray-
mond Nelson learned that the ASAE trade show was
going to be done by the Employer at the Trump Taj
Mahal Hotel and Casino in Atlantic City. He also
learned that the Employer planned to assign local em-
ployees represented by the Carpenters to do the pipe
and drape and table skirting work. Nelson met with
William Blaziek, executive director of sales for the Taj
Mahal. Nelson told him that the Employer was giving
the ‘‘traditional work’’ of employees represented by
the Decorators to employees represented by the Car-
penters. Nelson told Blaziek that the Decorators would
have no recourse but to engage in informational pick-
eting of the convention.
In a letter of February 26, 1991, Nelson informed
the Employer’s senior vice president, Chris Hargrove,
that Decorators Local 1447 was going to picket the
Employer at the ASAE trade show, starting March 1,
1991. Thereafter, the Employer filed the instant
charges.
For the ASAE trade show, the Employer used 50
carpenters, including its permanent employees and em-
ployees represented by Local 623. They performed all
the pipe and drape work, skirting of tables, draping
banners, cleaning of furniture, setting up and disman-
tling of exhibits. The pipe and drape and table skirting
work constituted 20 percent of the job.
B. Work in Dispute
The disputed work involves the installation of pipes
and drapes, including the skirting of tables, at the 1991
American Society of Association Executives trade
show in Atlantic City, New Jersey.
C. Contentions of the Parties
The Employer draws a distinction between special
events and convention work, claiming that they are
two different industries. The Employer contends that,
while some of the work involved in each is similar,
there are significant differences, such as crew size and
the amount of ceiling work. The Employer contends
that the work in dispute should be assigned to employ-
ees represented by the Carpenters because it has a cur-
rent collective-bargaining agreement covering the work
with the Carpenters and it has no current collective-
bargaining agreement with the Decorators. The Em-
ployer also contends that the skills of the employees
represented by the Carpenters are superior, that they
are more versatile and therefore have less down time,
and that the Carpenters is able to provide greater num-
bers of qualified workers.
The Decorators contends that the disputed work is
its traditional work in Atlantic City. The Decorators
contends that it made no threat in violation of Section
8(b)(4)(D) and was involved only in preservation of its
traditional work. Therefore, the Decorators contends
that no jurisdictional dispute exists.
The Carpenters contends that there is a jurisdictional
dispute and that the disputed work should be assigned
to employees it represents based on its collective-bar-
gaining agreement with the Employer, relative skills,
economy and efficiency of operation, and employer
and industry practice.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute pursuant to Section 10(k) of the Act, it
must be satisfied that there is reasonable cause to be-
lieve that Section 8(b)(4)(D) has been violated and that
the parties have not agreed upon a method for the vol-
untary adjustment of the dispute.
Contrary to the Decorators, we find that there are
competing claims for the work and that a jurisdictional
dispute exists.3 As noted above, the Decorators threat-
ened the Employer and the Taj Mahal Hotel with pick-
eting in order to force the Employer to assign the dis-
puted work to employees it represents.
We find reasonable cause to believe that a violation
of Section 8(b)(4)(D) has occurred and that there exists
no agreed method for voluntary adjustment of the dis-
pute within the meaning of Section 10(k) of the Act.
Accordingly, we find that the dispute is properly be-
fore 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. Certification and collective-bargaining
agreements
There is no evidence that the Board has certified ei-
ther the Decorators or the Carpenters as the collective-
bargaining representative of the Employer’s employees
in Atlantic City.
99PAINTERS LOCAL 1447 (HARGROVE)
The Employer’s collective-bargaining contract with
Carpenters Local 623 was signed on December 28,
1990, and expires on April 30, 1993. It explicitly cov-
ers the disputed work.
The Decorators has no current collective-bargaining
contract with the Employer. The Decorators’ only con-
tract with the Employer expired on April 1, 1989.
Because the Carpenters has a current collective-bar-
gaining agreement with the Employer covering the dis-
puted work and the Decorators has no current contract,
we find that this factor favors an award of the disputed
work to employees represented by the Carpenters.
2. Employer preference
The Employer prefers to assign the disputed work to
employees represented by the Carpenters rather than to
employees represented by the Decorators. Accordingly,
we find this factor favors an award of the disputed
work to employees represented by the Carpenters.
3. Employer past practice
The Employer uses employees represented by the
Carpenters for both special events and trade shows in
all the other cities in which it performs work, includ-
ing Houston and Austin, Texas; Washington, D.C.;
Baltimore, Maryland; New Orleans, Louisiana; Atlanta,
Georgia; and Boston, Massachusetts. The Employer
has used employees represented by both Unions in its
special events work in Atlantic City. It has never be-
fore done trade show work in Atlantic City. We find
this factor does not favor an award of the disputed
work to either group of employees.
4. Area and industry practice
The practice varies greatly across the country, and
is a matter of local custom. In Atlantic City, employ-
ees represented by the Decorators perform the type of
work that is in dispute for trade shows, while in other
cities one or more of several other unions may perform
this work. We find the factor of area practice favors
an award of the disputed work to employees rep-
resented by the Decorators. We find the factor of in-
dustry practice is inconclusive and does not favor an
award to either group of employees.
5. Relative skills
The record reveals that both groups of employees
have the requisite skills to perform the disputed work.
Accordingly, we find that this factor does not favor an
award of the disputed work to either group of employ-
ees.
6. Economy and efficiency of operations
The evidence shows that employees represented by
the Carpenters can perform all the jobs needed to
produce a trade show. They generally have more tools,
including power tools, than the employees represented
by the Decorators. For ceiling work, riding lifts must
be used. Employees represented by the Decorators
have declined to ride the lifts. Employees represented
by the Carpenters are more versatile and can do other
jobs when the show floor is blocked, because of un-
loading procedures for instance, and it is impossible to
do pipe and drape work. Since the disputed work rep-
resents only 20 percent of the total job, there is less
down time with employees represented by the Car-
penters because of their versatility.
Accordingly, we find this factor favors an award of
the disputed work to employees represented by the
Carpenters.
Conclusions
After considering all the relevant factors, we con-
clude that employees represented by the Carpenters are
entitled to perform the work in the dispute. We reach
this conclusion relying on the factors of collective-bar-
gaining agreements, employer preference, and econ-
omy and efficiency of operations, which we find out-
weigh the factor of area practice that favors the Deco-
rators.
In making this determination, we are awarding the
work to employees represented by the Carpenters, not
to that Union or its members. The determination is
limited to the controversy that gave rise to this pro-
ceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
1. Employees represented by Carpenters District
Council of South Jersey and its Local 623, a/w United
Brotherhood of Carpenters and Joiners of America,
AFL–CIO are entitled to perform the installation of
pipes and drapes work, including the skirting of tables,
at the 1991 American Society of Association Execu-
tives 1991 trade show in Atlantic City, New Jersey.
2. Local Union No. 1447, Sign-Pictorial &
Displaymen, a/w International Brotherhood of Painters
and Allied Trades of the United States and Canada,
AFL–CIO–CLC, is not entitled by means proscribed
by Section 8(b)(4)(D) of the Act to force Hargrove,
Inc. to assign the disputed work to employees rep-
resented by it.
3. Within 10 days from this date, Local Union No.
1447, Sign-Pictorial & Displaymen, a/w International
Brotherhood of Painters and Allied Trades of the
United States and Canada, AFL–CIO–CLC, shall no-
tify the Regional Director for Region 4 whether it will
refrain from forcing the Employer, by means pro-
scribed by Section 8(b)(4)(D), to assign the disputed
work in a manner inconsistent with this determination.