Painters, Local 328

National Labor Relations Board - Board Decisions

Mar 12, 1971

188 N.L.R.B. 965 (N.L.R.B. 1971)

PAINTERS, LOCAL 328
Brotherhood of Painters , Decorators & Paperhangers
of America, AFL-CIO, Local No. 328 and Brother-
hood of Painters , Decorators & Paperhangers of
America, AFL-CIO, et al. and The Ralph M. Par-
sons Company . Case 23-CD-240
March 12, 1971
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended , following
a charge filed by The Ralph M . Pasons Company,
hereinafter called the Employer , alleging that Broth-
erhood of Painters , Decorators , & Paperhangers of
America , AFL-CIO, Local No. 328 and Brotherhood
of Painters , Decorators & Paperhangers of America,
AFL-CIO, hereinafter called the Painters , had violat-
ed Section 8(b)(4)(D) of the Act. A hearing was held
pursuant to notice at Port Arthur, Texas , on June 17
and 19, 1970, before Hearing Officer Jerome L. Ave-
don. The Employer, the Painters, the Boilermakers,'
the Carpenters ,' the Millwrights ,3 the Ironworkers,4
and the Pipefitters 5 appeared at the hearing and were
afforded full opportunity to be heard, to examine and
cross-examine witnesses , and to adduce eivdence
bearing on the issues , The Employer and the Painters
filed briefs with the Board and the Millwrights adopt-
ed the brief of the Employer . The National Construc-
tors Association filed an amicus brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegat-
ed its powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error . They are hereby affirmed.
Upon the entire record in this case , the Board
makes the following findings:
1 International Brotherhood of Boilermakers , Iron Ship Builders, Black-
smiths, Forgers and Helpers, AFL-CIO, Local No. 587.
2 United Brotherhood of Carpenters and Joiners of America , AFL-CIO,
Local No 610.
3 United Brotherhood of Carpenters and Joiners of America , AFL-CIO,
Millwrights Local No. 2484
4 International Association of Bridge , Structural & Ornamental Ironwork-
ers AFL-CIO, Local No. 125
3 United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada, AFL-CIO, Local No
195.
1. THE BUSINESS OF THE EMPLOYER
965
The Employer, The Ralph M. Parsons Company, is
a Nevada corporation engaged in the erection of re-
fineries, petrochemical plants, and other industrial
plants in several States of the United States. During
the past year it received goods valued in excess of
$50,000 at its Port Arthur, Texas, construction pro-
ject, itself valued in excess of $15,500,000, from States
outside the State of Texas. The parties agree, and we
find, that the Employer is engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to assert
jurisdiction herein.
II THE LABOR ORGANIZATIONS INVOLVED
The parties agree, and we find, that the Painters, the
Boilermakers, the Carpenters, the Millwrights, the
Ironworkers, and the Pipefitters are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
At Port Arthur, Texas, the Employer is engaged in
an oil refinery construction project for Texas Oil
Company, which involves the erection of a structure
made of galvanized steel, used in order to combat the
corrosive effect of the salty atmosphere in the Port
Arthur area. Since the inception of the project in June
1969, employees represented by the Boilermakers, the
Carpenters, the Millwrights, the Ironworkers, and the
Pipefitters have been engaged in various aspects of the
construction and installation work. Since October
1969, this work has included numerous welding and
cutting operations to accommodate a variety of instal-
lations. Following each welding operation, the em-
ployee performing the same would apply to the
welded surface a protective galvanizing zinc com-
pound known as ZRC, sometimes called galvecon.
The Employer has never hired employees represented
by the Painters for any work at the construction pro-
ject,6 nor has it ever contracted with the Painters in
that regard.
The work in dispute concerns the coating of the
welds with ZRC, currently performed by employees
represented by the Boilermakers, the Carpenters, the
Millwrights, the Ironworkers, and the Pipefitters as an
adjunct to their respective construction and installa-
tion operations, and now claimed exclusively by the
6 Around November 1, 1969, employees represented by the Painters and
hired by Gibson Paint Company, a subcontractor, commenced painting and
sandblasting in a storage area elsewhere on the project. They have continued
this work since January 1970 under Gunnels Industrial Painters , successor
to Gibson.
188 NLRB No. 145
966
Painters.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Background and Facts of the Dispute
In late February 1970, apparently in response to
evident complaints, both to the Employer and to rep-
resentatives of the Unions engaged in the welding
work, by Edward Fontenot, the Painters business rep-
resentative, over the use of brushes for applying ZRC,
then in liquid form, the employees engaged in the
work switched from brushes to swabs, ropes, and sim-
ilar devices for applying the compound? In March,
the Employer, discovering that ZRC could be ob-
tained as an aerosol spray, a more effective and effi-
cient way of coating the welds, switched to this
method of ZRC application. In April, Fontenot re-
turned to the construction site and complained to the
Employer about the use of the aerosol spray. He wrote
the Painters International, stating that a dispute exist-
ed between the Employer and the Pipefitters over the
application of the ZRC, by brush or spray can.
On May 19 Boyd Cutler, the Employer's resident
construction manager, hearing a rumor that the
Painters were about to set up a picket line the next
day, contacted Fontenot, who replied that the issue of
the picket line was to be voted upon by the local
membership that evening. When Cutler reminded
Fontenot that brushes were not being used, Fontenot
replied that the coating work belonged to the Painters,
regardless of how it was performed.
The parties stipulated that on May 20, at 6 a.m., the
Painters established a picket line at the construction
site , using a picket sign which stated:
INFORMATION PICKET TO INFORM THE PUBLIC OF PRO-
TEST AGAINST PARSONS CO.-GALVECON PAINT IS NOT
BEING APPLIED BY MEMBERS OF PAINTERS LOCAL 328
AFL-CIO
They further stipulated that the picket sign remained
up each working day until its removal on May 26, at
approximately 2 p.m. Immediately following the es-
tablishment of the picket line on May 20, Cutler noti-
fied Harry Hine, the Employer's director of labor
relations, who in turn advised William Cour, chair-
man of the National Joint Board for the Settlement of
Jurisdictional Disputes, advising him of the picket
line and that there were no painters on the Employer's
payroll, and requesting that he direct the Painters to
remove the picket line. Cour, on May 20, instructed
the Painters to cease picketing. The Employer also
sought to have the Painters International remove the
picket line, but the latter agreed to do so only if the
7 Employer representatives and business agents of the Unions engaged in
the welding work testified that they had direct conversations with Fontenot,
who, they claimed , complained about the use of brushes , and that they
decided to forego the brushes in order to avoid conflicts with the Painters
in that regard Fontenot recalled no such conversations
Employer agreed to assign the disputed work to the
Painters. On May 22, the Employer filed the instant
charge. The picket line was finally removed on May
26, more than 48 hours following notification by the
National Joint Board. On May 28, the Painters Inter-
national directed its Local to remove the line. While
the picket line was in existence, some 450 of the
Employer's and subcontractors' employees refused to
cross the picket line. On June 12, 1970, the National
Joint Board awarded the disputed work to the
Painters.
C. Contentions of the Parties
The Painters contends that the work in dispute,
however performed, is properly within its jurisdiction
and should therefore be awarded to employees repre-
sented by the Painters. The Employer and the other
Unions involved in this proceeding contend that the
work should be awarded to employees represented by
those unions who are currently performing the work.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that there is a reasonable cause to
believe that Section 8(b)(4)(D) of the Act has been
violated. The record, in accord with the stipulation of
the parties, shows that between May 20 and May 26,
1970, the Painters picketed the Employer's jobsite be-
cause the disputed work had not been assigned to
employees represented by the Painters, and that a
work stoppage took place during that time at the job-
site.
We find without merit the Painters contention that
the instant dispute is properly arbitrable before the
National Joint Board for the Settlement of Jurisdic-
tional Disputes. The Employer, conceding that it has
stipulated to the procedures of the National Joint
Board, contends that it is nevertheless not bound
thereby because it is released therefrom by article VI,
section 2, thereof, which reads, in pertinent part, as
follows:
Should work stoppages persist for more than for-
ty-eight (48) hours following notification by the
National Joint Board (Saturdays, Sundays and
legal holidays excluded), the parties hereto agree
that the contractor shall be free to pursue
methods of settlement other than the Joint Board
established hereunder.
Applying article VI, section 2, to the facts of the dis-
pute, we agree with the Employer that inasmuch as
the work stoppage lasted from 6 a.m. on May 20 to 2
p.m. on May 26, or more than 48 hours following
notification from the National Joint Board (exclusive
PAINTERS, LOCAL 328 967
of Saturdays, Sundays, and holidays), the Employer
was exempted, by the specific provisions of the Na-
tional Joint Board's procedures to which it had sub-
scribed, from the National Joint Board's jurisdic-
tion,e and that the National Joint Board's decision
awarding the work in dispute to the Painters is there-
fore no bar to a determination of the dispute 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 relevant factors. The fol-
lowing are the factors relied upon by the parties to the
dispute in support of their respective claims:
1. Collective-bargaining contracts
The Employer has no current agreement with the
Painters covering work at the construction project,
nor has it employed any employees represented by the
Painters to perform work at the project site.
utes per weld for slag removal and 2 minutes for
spraying. The skills involved appear to be no greater
than those required of a person using an aerosol can
for hairspraying or a variety of ordinary household
spraying tasks. As the employees employed by the
Unions herein other than the Painters regularly per-
form the coating work as an incident to their primary
construction and installation work, the assignment
thereof to employees represented by the Painters
would be both inefficient and uneconomical because
it would necessitate the replacement of steady crews
represented by the other Unions by separate crews of
painters with intermittent and insufficient work for
each. Furthermore, delays between welding and coat-
ing operations, such as might occur if the work were
assigned to painter crews, could lead to unnecessary,
time-consuming, and expensive cleaning operations
to remove the corrosion which could accumulate dur-
ing the interval between the welding and the coating
operations.
4. National Joint Board Awards
2. Company and area practice
Since the inception of the welding operations in
October 1969, the Employer has always used, for both
welding and ZRC coating operations, employees rep-
resented by the Unions herein other than the Painters.
Cogent evidence submitted by the Constructors Asso-
ciation of the Sabine Area, within which the project
is situated, indicates that the practice in the Sabine
area is to assign the coating work to the trade that
performs the welding operations. Business managers
for the Unions herein other than the Painters con-
firmed this area practice.
3. Employee skills and efficiency of operations
The disputed work involves the application of the
ZRC compound to small welded areas about 4 inches
wide by means of an aerosol can operated by a push-
button, an operation requiring no more than 4 min-
9 Our interpretation of the term "forty-eight (48) hours" as used in article
VI, section 2, has been confirmed by a letter from Mr William J. Cour,
chairman of the National Joint Board , in which he advised that "the 48 hours
refers to 48 consecutive hours on working days following receipt of notifica-
tion by the Joint Board . The time starts from the date of receipt by the
affected union (Ltr. dated November 20, 1970)." Although copies of our
inquiry of November 16 to the National Joint Board were furnished to all
parties of record , a response was received only from the Employer reaffirm-
ing its position . Since there has been no objection to our inquiry directed to
the National Joint Board by any party, we shall sua sponte reopen the record
in this case and include therein our letter to the National Joint Board dated
November 16, 1970, the letter of the Joint Board dated November 20, 1970,
and the letter of the Employer dated December 4, 1970, and shall designate
these documents as Board Exhibits A, B, and C
We have already determined that the Employer is
exempted from its obligation to the National Joint
Board by article VI, section 2, of its Statement of
Procedures. We find that its decision of June 12, 1970,
awarding the disputed work to employees represented
by the Painters, is not binding upon the Board in its
disposition of the instant case, and, in the circum-
stances of the case, has no significant persuasive val-
ue?
CONCLUSIONS
Upon the record as a whole, and after full consider-
ation of all relevant factors involved, we believe that
the Employer's assignment of the work in dispute to
the employees represented by the Unions who are
parties to this proceeding, other than the Painters,
should not be disturbed. We shall therefore determine
the dispute before us by awarding the work of ap-
plying the ZRC compound to welded joints and sur-
faces to the employees represented by these several
Unions in accord with their current work assign-
ments, but not to these Unions or their members. This
determination is limited to the particular controversy
giving rise to this dispute.
9 The record shows that although there are five craft unions competing for
the disputed work with the Painters , only one (the Pipefitters) is named as
a disputant in the Joint Board 's decision , and it appears that neither the other
four unions nor the Employer presented any evidence or were otherwise
advised of the Joint Board proceeding . Furthermore , even the business man-
ager of Local 328 of the Painters knew nothing of the Joint Board proceeding
until the Board's decision was rendered . The record is silent as to the nature
of the evidence presented to the Joint Board.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon the basis of the
foregoing findings , the National Labor Relations
Board hereby makes the following Determination of
Dispute:
1. Employees represented by International Brother-
hood of Boilermakers , Iron Ship Builders , Black-
smiths , Forgers and Helpers , AFL-CIO, Local No.
587; by United Brotherhood of Carpenters and Join-
ers of America , AFL-CIO, Local No 610; by United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Millwrights Local No. 2484 ; by Interna-
tional Association of Bridge , Structural & Ornamen-
tal Ironworkers , AFL-CIO, Local No. 125; and by
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada , AFL-CIO, Local No. 195,
are entitled to perform the work of applying zinc gal-
vanizing compound to welded joints and surfaces on
galvanized steel at the Employer 's Port Arthur, Texas,
Texaco Oil Company construction project.
2. Brotherhood of Painters , Decorators & Paper-
hangers of America, AFL-CIO, Local No. 328 and
Brotherhood of Painters , Decorators & Paperhangers
of America , AFL-CIO, are not and have not been
entitled, by means proscribed by Section 8(b)(4)(D) of
the Act, to force or require The Ralph M. Parsons
Company to assign the above work to its members.
3. Within 10 days from the date of this Decision and
Determination of Dispute , Brotherhood of Painters,
Decorators & Paperhangers of America, AFL-CIO,
Local No. 328 and Brotherhood of Painters , Decora-
tors & Paperhangers of America, AFL-CIO, shall no-
tify the Regional Director of Region 23, in writing,
whether they will or will not refrain from forcing or
requiring The Ralph M. Parsons Company, by means
proscribed by Section 8(b)(4)(D), to assign the work
in dispute to employees represented by the Painters
rather than to the other Unions who are parties to this
proceeding.