Painters Local No. 260

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1311 (N.L.R.B. 1979)

PAINTERS LOCAL NO. 260
International Brotherhood of Painters and Allied
Trades Local No. 260, AFL-CIO and The Bon.
Case 19 CD-334
September 28, 1978
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN FANNING AND MEMBFRS PENI.IO
AND TRUEISIAIE
This is a proceeding under Section 10(k) of the Na-
tional Labor Relations Act, as amended, following a
charge filed by The Bon, herein called the Employer,
alleging that the International Brotherhood of Paint-
ers and Allied Trades Local No. 260, AFL-CIO,
herein called the Painters, had violated Section
8(b)(4)(i) and (ii)(D) of the Act by engaging in certain
proscribed activities with an object of forcing or re-
quiring the Employer to assign certain work to em-
ployees represented by the Painters rather than to un-
represented employees of the Employer.
Pursuant to notice, a hearing was held before Hear-
ing Officer Susan S. Gresham on July 31, 1979. 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. There-
after. the Employer filed a brief.
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 rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
The Board has considered the brief and the entire
record in this case and hereby makes the following
findings:
1. THE BUSINESS OF THE EMPLOYER
The parties stipulated, and we find, that the Em-
ployer is a Montana corporation engaged in the op-
eration of a retail sales outlet in Great Falls. Mon-
tana. During the past year, the Employer's gross
volume of sales exceeded $500,000, and, during the
same period, purchases of goods from outside the
State of Montana exceeded $50,000. Accordingly, we
find that the Employer is an employer within the
meaning of Section 2(2) of the Act, it is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act, and it will effectuate the policies of the Act
to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that the Inter-
national Brotherhood of Painters and Allied Trades
Local No. 260, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
11i. Till I)ISPUTE
A. Background and Facts of the Di.spute
The dispute in this case involves the painting of
ceilings, walls, pipes, pillars. and doors at the Em-
ployer's store. Painting is required when the Em-
plover establishes a new selling department in the
store or refurbishes and redesigns an existing depart-
ment. In addition, painting may be required in var-
ious nonselling areas of the store, such as stair wells,
stockrooms, and offices. Generally this painting has
been done in the evening, when the store has been
closed to customers. In most cases, the Employer has
assigned this work to supervisors,' unrepresented
maintenance employees, and/or display employees
represented by United Food and Commercial Work-
ers, Local 57.2
In late 1978 or early 1979 the Employer contracted
with Grinnell Company for the installation of fire ex-
tinguisher sprinkler pipes on each of the selling floors
of its store, The contract between the Employer and
Grinnell stated that the pipes were to be installed
painted, but, upon completion of this work, the Em-
ployer was dissatisfied with the quality of painting on
the installed pipes. In settlement of this dispute, Grin-
nell agreed to arrange for the repainting of pipes on
only the fourth floor of the store, and, to this end,
Grinnell itself contracted with a local painting con-
tractor to paint the fourth-floor pipes.
On June 12, 1979, the Employer assigned its main-
tenance employees, assisted by its operations man-
ager, the task of painting sprinkler pipes in the store's
basement, as well as pillars on the second floor. The
Painters learned that this work had been assigned to
i To the extent that the Employer has assigned this work to its supervisory
employees. within the meaning of Sec. 211) of the Act, such work may not
he the subject of a work assignment dispute under Sec. 10(k of the Act. See
Teamsters Local Union .No 1 70, afiliated sitrh the International Brotherhood
I)' Tea7mteri, Chauffeur. Warehousemen and Helpers aoj.4merica (The Hen
lev-Lundgren Co)i. 240 NLRB 649 1979). and cases cited therein at fn. 2.
: Display employees represented by Local 57 design and set up the vanous
selling areas of the store In doing so. they may be required to paint peg-
boards and display cases to be used in a particular department. Local 57. by
letter dated July 19, 1979. and introduced into evidence at the heanng. dis-
claimed any of the disputed work sought by the Painters.
The Employer also employs custodians, who are represented by Chaul-
feurs, Teamsters. Warehousemen and Helpers. I[ocal 45 The record indi-
cates that the Employer has never assigned disputed work to these employ-
ees. and ocal 45 has executed a written disclaimer of interest In the disputed
work. dated June 18. 1979. which was also placed into evidence at the hear-
ing.
245 NLRB No. 169
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonunion personal and thereupon commenced pick-
eting the store, carrying signs stating that the Em-
ployer was acting unfairly toward the Painters. On
June 13 the Employer contacted the Painters to dis-
cuss this matter and was informed that the Painters
sought a union contract for the painting that was
being performed at the store. Picketing continued at
the store until June 19, at which time the Painters
voluntarily ceased picketing pending resolution of the
instant dispute.
B. Work in Dispute
The notice of hearing states that the work in dis-
pute consists of preparation work, scraping, and
painting of ceilings, pipes, walls, and pillars at the
Bon Marche building located in Great Falls, Mon-
tana. At the hearing the parties further stipulated that
the disputed work also includes the preparation,
scraping, and painting of doors at The Bon. The par-
ties stipulated that there was no dispute over the
painting of pegboards or display cases in the Employ-
er's store, which work is presently performed by dis-
play employees represented by the United Food and
Commercial Workers, Local 57.
C. Contentions of the Parties
The Employer contends that the disputed work
should be assigned to its unrepresented maintenance
employees because such assignment comports with its
past practice and the practice of other retail stores in
the area and is more efficient and economical for the
Employer. Moreover, the Employer emphasizes that
it prefers that this work be assigned to its unrepre-
sented employees and that it is satisfied with the per-
formance of these employees.
The Painters contends that its members are entitled
to perform the disputed work inasmuch as the Em-
ployer's and area practice has been to contract out
painting work, and the painting of sprinkler pipes in-
stalled at the Employer's store was done by its mem-
bers. The Painters also contends that the Employer's
unrepresented employees lack the necessary skills and
training to perform the work efficiently and safely
and that its members would be available for work at
times when the Employer's store is closed. Finally,
the Painters asserts that no loss of employees' jobs
would occur if the disputed work was assigned to its
members.
D. Applicability of the Statute
Section 10(k) of the Act empowers the Board to
determine a dispute out of which an 8(b)(4)(D)
charge has arisen. However, before the Board pro-
ceeds with a determination of the dispute, it must be
satisfied that there is reasonable cause to believe that
Section 8(b)(4)(D) has been violated and that the par-
ties have not agreed upon a method for the voluntary
adjustment of the dispute.
On June 13. 1979, the Painters demanded that the
disputed work be assigned to employees represented
by it rather than to unrepresented maintenance em-
ployees of the Employer. In furtherance of its claim
to the disputed work, the Painters picketed at the Em-
ployer's store from June 12 to June 19, 1979. In view
of the conduct described above, we find that there is
reasonable cause to believe that a violation of Section
8(b)(4)(D) has occurred.
As to whether an agreed-upon method exists for
the voluntary adjustment of the dispute, the parties
stipulated that the dispute has not been adjusted, nor
has any method for the voluntary adjustment of the
dispute been agreed upon, nor is the Employer a
party to any joint board for the settlement ofjurisdic-
tional disputes. Accordingly. we find that the dispute
is properly before the Board for determination 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 the disputed work tasks after
giving due consideration to various relevant factors.
The following factors are relevant in making the de-
termination of the dispute before us:
1. Certifications and collective-bargaining
agreements
There are no orders or certifications of the Board
awarding jurisdiction of the work in dispute to mem-
bers of the Painters or to the Employer's unrepresent-
ed employees. Moreover, there are no collective-bar-
gaining agreements covering the disputed work. The
record indicates that the Employer's custodial em-
ployees are represented by Chauffeurs, Teamsters,
Warehousemen and Helpers, Local 45, and that dis-
play employees of the Employer are represented by
the United Food and Commercial Workers, Local 57.
However, as noted previously both unions have dis-
claimed any interest in the disputed work being
sought by the Painters. Based on the above, we find
this factor does not assist us in determining the merits
of the dispute.
2. Employer and area practice
The Painters contends that the Employer's practice
has been to contract out all painting work to outside
3 See fn. 2, supra.
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PAINTERS LOCAL NO. 260
contractors. Moreover, the Painters contends that
other department stores in the Great Falls, Montana,
area contract out painting work. The record reveals
that over the past few years the Employer has as-
signed painting work to its in-house maintenance and
supervisory employees on numerous occasions with-
out protest by the Painters. The Employer admittedly
has contracted out some of its painting work; how-
ever, it has contracted out work only when the work
was outside the capability of its employees or where
the Employer had sufficient time to solicit bids from
outside contractors. Moreover. Norman Wilcott, a
painting contractor called by the Painters, testified
that other retail establishments in the area assign a
substantial amount of painting to their in-house
maintenance employees.
Thus, based on this evidence and the record as a
whole, this factor, while not conclusive, favors an
award of the disputed work to the Employer's unrep-
resented employees.
3. Economy and efficiency of operation
The Painters does not contend that the employ-
ment of its members to do the disputed work would
result in a more efficient or economical operation for
the Employer. Rather, assignment of the disputed
work to employees represented by the Painters may
result in a less economical operation. Should such an
assignment be made, the Employer may be required
to contract out all its painting work or to hire an
additional employee, represented by the Painters, to
do painting work, thereby entailing possible addi-
tional expense for the Employer. While cost is not an
overriding factor in the Employer's decision not to
contract out painting work, it is one factor considered
in assigning the disputed work to its own employees.
Moreover, the Employer's efficiency may be ad-
versely affected by requiring that the disputed work
be contracted out. The record reveals that employees
of the Employer undertake relatively minor painting
tasks as needed. Specifically, Ronald White, the Em-
ployer's operations manager, testified that on at least
six occasions since September 1978 display or mainte-
nance employees have been assigned to paint offices,
walls, pillars, and ceilings. These painting tasks have
been assigned in conjunction with the refurbishing or
remodeling of the Employer's selling departments.
Many of these tasks were of short duration. The
Painters concedes that were this painting work to be
contracted out, the Employer would have to give con-
tractors 3 or 4 days' notice before those contracts
would be available for painting assignments. This de-
lay could affect the Employer's ability to expedi-
tiously remodel selling areas of the store.
For the above reasons we conclude that the factors
of economy and efficiency favor assignment of the
disputed work to the Employer's unrepresented em-
ployees.
4. Relative skills
The record establishes that members of the Paint-
ers participate in a 3-year apprenticeship program, in
which they acquire various skills related to the prepa-
ration and painting of all types of surfaces and the
use of various equipment. The Employer does not
contend that its employees who paint are professional
painters, but the Employer is satisfied with the qual-
ity of their work. Moreover, the record reveals that
the Employer's employees performing painting use
with proficiency all equipment used by employees
represented by the Painters, including ladders, mitts,
hydraulic lift devices, brushes, scrapers, and sanders.
Since the record lacks evidence that employees repre-
sented by the Painters possess significantly superior
skills necessary for the performance of the disputed
work, this factor favors neither group of employees.
5. Employer's assignment and preference
On or about June 12, 1979, the Employer assigned
the disputed work to its unrepresented maintenance
personnel. The record indicates that the Employer is
satisfied with and maintains a preference for this as-
signment. This factor favors an award of the disputed
work to the Employer's unrepresented employees.
Conclusion
Upon the record as a whole, and after full consider-
ation of all relevant factors involved, we conclude
that the Employer's unrepresented maintenance em-
ployees are entitled to perform the work in dispute,
and we shall determine the dispute in their favor. We
reach this conclusion relying on the Employer's as-
signment and preference, economy and efficiency of
operation, and employer and area practice, all of
which favor an award of the disputed work to the
Employer's unrepresented maintenance employees.
The present determination is limited to the particular
dispute which gave rise to this proceeding.
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 pro-
ceeding, the National Labor Relations Board hereby
makes the following determination of dispute:
i. Unrepresented maintenance employees em-
ployed by the Employer, The Bon. are entitled to per-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form preparation work, scraping, and painting of ceil-
ings, pipes, walls, doors, and pillars of the Bon
Marche building located at Great Falls, Montana.
2. International Brotherhood of Painters and Al-
lied Trades Local No. 260, AFL-CIO, is not entitled
by means proscribed by Section 8(b)(4)(D) of the Act
to force or require The Bon to assign any such dis-
puted work to employees represented by the labor
organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, the International
Brotherhood of Painters and Allied Trades Local No.
260, AFL-CIO, shall notify the Regional Director for
Region 19, in writing, whether or not it will refrain
from forcing or requiring the Employer, by means
proscribed by Section 8(b)(4)(D) of the Act, to assign
the disputed work in a manner inconsistent with the
above determination.
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