Service Employees Local 44 (Sir Francis Drake)

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 501 (N.L.R.B. 1985)

SERVICE EMPLOYEES LOCAL 44 (SIR FRANCIS DRAKE)
Window Cleaners Union Local 44 , Service Employ-
ees International Union , AFL-CIO and Sir
Francis Drake Hotel . Case 20-CD-620
28 February 1985
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The charge in this Section 10(k) proceeding was
filed 17 July 1984 by Sir Francis Drake Hotel (the
Hotel), alleging that the Respondent, Window
Cleaners Union Local 44, Service Employees Inter-
national Union, AFL-CIO (Local 44) violated Sec-
tion 8(b)(4)(D) of the National Labor Relations Act
by engaging in proscribed activity with an object
of forcing the Hotel to assign certain work to em-
ployees it represents rather than to the unrepresent-
ed employees of the Hotel. The hearing was held 7
August 1984 before Hearing Officer Lucile L.
Rosen.
The Board affirms the hearing officer's rulings,
finding them free from prejudicial error. On the
entire record, the Board makes the following find-
ings.
1. JURISDICTION
The parties were unable to reach a stipulation on
whether the Hotel, operated by Hotel Systems
International (HSI), is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
The record shows that the Hotel is a California
corporation with its principal place of business in
San Francisco, California. It is engaged in operat-
ing a hospitality hotel with one restaurant and two
bars. During the past calendar year, its business op-
erations generated gross revenues in excess of $2
million and, during the same period, it received
goods and materials valued in excess of $50,000 di-
rectly from points located outside the State of Cali-
fornia. We find that the Hotel is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
The parties stipulated, and we find, that Window
Cleaners Union Local 44, Service Employees Inter-
national Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
On 18 July 1983 HSI purchased the Hotel from
Princess International and instituted some oper-
ational changes to increase efficiency and reduce
costs. Accordingly, on 12 October 1983 HSI can-
501
celed its prior contractual agreement with Lewis
and Taylor (contractor), a building maintenance
company which provides window washer services
and whose employees are represented by Local 44.
In December 1983 the cleaning of exterior win-
dows at the Hotel, which work had previously
been performed by employees represented by
Local 44, was assigned to an unrepresented em-
ployee of the Hotel.
Prior to this assignment, hotel officials met with
the contractor's representatives and two union
members. William Snider, the Hotel's personnel di-
rector, testified that, during this meeting with
union members, the contractor's representatives
(nonunion members) said that "it would be neces-
sary to employ Local 44 window washers because
this was a Union town, and if Local 44 Union
workers were not employed there would be prob-
lems with pickets."
In April 1984 hotel officials met twice with
Local 44 representatives, but no resolution was
reached. Snider testified that, during a meeting
with Local 44 representatives, Healey, the Union's
attorney, said, "I want the retention of Local 44
window washers." Steven Harper, manager direc-
tor of the Hotel, advised Snider to call Jack Crow-
ley, who is employed by the Central Labor Coun-
cil of San Francisco, because the Union had ap-
plied for strike sanction. Snider testified that Crow-
ley said that "he would like to see Local 44
window washers in the Sir Francis Drake Hotel."
According to Snider, Crowley also said, "You
have other Unions in your Hotel, Local 2, 14, and
Teamsters who will probably honor any strike
sanction."
Thereafter, on 17 July 1984, there were pickets
at the Hotel. Snider recognized two union mem-
bers carrying picket signs which said, "Sir Francis
Drake Hotel unfair, the Window Washers Union."
Other picket signs made reference to the "Hotel's
failure to meet area standards."
The same day, a meeting was arranged with
Local 44 to discuss the Union's demands. At this
meeting, Snider reiterated the options that Local
44's secretary-treasurer Frediani had given to the
Hotel. They were to "either sign a contract with a
contractor or fire our employee or have him join a
Union, which he didn't want to do." Snider asked
Jack Miller, the Union's president, if these were the
only options available. According to Snider, Miller
"said they were and that the pickets would not be
removed unless the Union's demands were met."
B. Work in Dispute
The disputed work involves the cleaning of exte-
rior windows at the Sir Francis Drake Hotel, The
274 NLRB No. 71
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work is now performed by an unrepresented em-
ployee of the Hotel . Prior to December 1983, the
Hotel contracted the work in dispute to Lewis and
Taylor, which employs window washers represent-
ed by Local 44.
C. Contentions of the Parties
Neither party filed briefs . At the hearing, how-
ever , the Employer contended that an object of the
picketing on 17 July 1984 was to acquire the work
performed by the Hotel 's unrepresented employee
for Local 44 members. Furthermore , the Employer
contended that the assignment of the disputed
work to an in-house employee is more efficient and
economical.
At the conclusion of the hearing , Local 44 dis-
claimed the work and asserted that the picketing
was intended merely to preserve jobs already per-
formed by its members . Local 44 also stated that
picketing would continue allegedly for the sole
purpose of protesting the Hotel 's failure to meet
"area standards."
D. Applicability of the Statute
Before the Board can determine a dispute pursu-
ant to Section 10(k) of the Act, it must be satisfied
that there is reasonable cause to believe that Sec-
tion 8(b)(4)(D) has been violated and that the par-
ties have not agreed upon a method for the volun-
tary adjustment of the dispute.
As set forth in section A above, the Hotel's per-
sonnel director, Snider, testified that Local 44
agents claimed a right to the work in dispute. The
record shows that the Union demanded that the
Hotel sign a contract with a contractor or fire the
unrepresented employee or have him join the
Union. It is undisputed that the Union demanded
that the Hotel employ Local 44 workers, but the
record is devoid of evidence that shows that the
Union's picketing was to "obtain reemployment" of
the employees, represented by the Union, who had
once performed the work.' Without ruling on the
credibility of the testimony, we find reasonable
cause to believe that a violation of Section
8(b)(4)(D) has occurred, and that there exists no
agreed-upon method for voluntary adjustment of
the dispute within the meaning of Section 10(k) of
the Act. We also find the Respondent's disclaimer
of the disputed work ineffective. The disclaimer
was not made until the conclusion of the 10(k) pro-
ceeding and it was coupled with the Union's inten-
tion to continue picketing allegedly for the sole
purpose of protesting the Hotel's failure to meet
' Electrical Workers IBEW Local 292 (Franklin Broadcasting), 126
NLBR 1212 (1960)
area standards. Accordingly, we find that the dis-
pute is properly before the Board for determina-
tion.
E. Merits of the Dispute
Section 10(k) requires the Board to make an af-
firmative 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 plac-
ing the factors involved in a particular case. Ma-
chinists Lodge 1743 (J. A. Jones Construction), 135
NLRB 1402 (1962). The following factors are rele-
vant in making the determination of this dispute.
1. The Employer's past practice and
preference
The Employer purchased the Hotel from Prin-
cess International on 18 July 1983. As part of its
plans to institute operational changes to improve
efficiency and reduce costs, the Employer canceled
on 12 October 1983 a contractual arrangement en-
tered into by Princess International and Lewis and
Taylor for window washing services. Inasmuch as
only a few months elapsed while employees repre-
sented by Local 44 who were employed by Lewis
and Taylor performed window washing services
for the Employer, we find an insufficient basis for
establishing a past practice by the Employer affect-
ing the award here.
The Employer's preference is to have its in-
house employee perform the disputed work, and
this preference favors an assignment consistent
with the Employer 's assignment to its in-house em-
ployee.
2. Relative skills
No particular skill is necessary to perform the
disputed work; therefore, this factor does not favor
an award either to Local 44-represented employees
or to the Employer's employee.
3. Economy and efficiency of operations
The Employer contends that it would be ineffi-
cient and impractical to continue to use workers
represented by Local 44. The Employer testified
that Local 44 workers were not available for emer-
gencies. In addition, because the Local 44 repre-
sented employees did not work every day, they
had to be recalled if the work was not adequately
performed, whereas an in-house employee is read-
ily accessible. The record also shows that when
workers represented by Local 44 performed the
SERVICE EMPLOYEES LOCAL 44 (SIR FRANCIS DRAKE)
work supervisory difficulties ensued because the
employees failed to report their arrival to the hotel
superintendent. Therefore, it was difficult for the
Employer to control the work performed. Present-
ly, by contrast, there are no supervisory problems
with the Hotel's employee because he is available
for work and on the Employer' s premises at all
times.
In these circumstances, we find the factor of
economy and efficiency of operations favors an
award of the disputed work to the Employer's em-
ployee.
Conclusion
After considering all the relevant factors, we
conclude that the Hotel's unrepresented employee
is entitled to perform the work in dispute. In reach-
ing this conclusion, we have relied on the efficien-
cy and economy resulting from such an assignment
and the Employer's preference with respect to in-
house employees. The determination is limited to
the controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
503
The National Labor Relations Board makes the
following Determination of Dispute.
1. Employees of Sir Francis Drake Hotel are en-
titled to clean the Hotel's exterior windows.
2. Window Cleaners Union Local 44, Service
Employees International Union, AFL-CIO is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act to force Sir Francis Drake Hotel to
assign the disputed work to employees represented
by it.
3. Within 10 days from this date, Window Clean-
ers Union Local 44, Service Employees Interna-
tional Union, AFL-CIO shall notify the Regional
Director for Region 20 in writing whether it will
refrain from forcing Sir Francis Drake Hotel, by
means proscribed by Section 8(b)(4)(D), to assign
the disputed work in a manner inconsistent with
this determination.