Sign Painters Local 756 (Heritage Display)

National Labor Relations Board - Board Decisions

Mar 25, 1992

306 N.L.R.B. 818 (N.L.R.B. 1992)

818
306 NLRB No. 147
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The overflow work is the work that cannot be performed by the
regular employees of the exhibitors or their contractors.
Sign Painters, Decorators and Paintmakers Union
No. 756 and Carpenters District Council of
North Central Texas and Heritage Display
Group of Dallas, Inc. Case 16–CD–148
March 25, 1992
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The charge in this Section 10(k) proceeding was
filed on June 11, 1991, by Carpenters District Council
of North Central Texas (Carpenters), alleging that the
Respondent, Sign Painters, Decorators and Paintmakers
Union No. 756 (Decorators) violated Section
8(b)(4)(D) of the National Labor Relations Act by en-
gaging in proscribed activity with an object of forcing
Heritage Display Group of Dallas, Inc. (Heritage) to
assign certain work to employees it represents rather
than to employees represented by the Carpenters. A
hearing was held on August 29, September 9, and Sep-
tember 20, 1991, before Hearing Officer Paul
Blackwell.
The National Labor Relations Board has delegated it
authority 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, the Board makes the following findings.
I. JURISDICTION
The parties stipulated that Heritage is a Texas cor-
poration with a place of business in Dallas, Texas,
where it is engaged in the designing, fabricating, and
installing of trade show exhibits. During the 12 months
prior to this hearing, a representative period, Heritage
purchased and received goods valued in excess of
$50,000 directly from sources located outside the State
of Texas. We find that Heritage is engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
The parties also stipulated that the Decorators and
the Carpenters are labor organizations within the
meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Heritage operates nationwide, building and erecting
displays for clients at conventions and trade shows.
Trade shows have a general contractor which oversees
the show for the sponsoring group. Typically, Heritage
is one of the several contractors performing services
for one or more clients at the show.
The events which gave rise to the instant case oc-
curred in April 1991 and were associated with a con-
vention involving the American Association of Petro-
leum Geologists (AAPG) at the Dallas Convention
Center. The AAPG hired Freeman Decorating Com-
pany as the general contractor for the show. Heritage
had built and was assembling displays for several cli-
ents on the floor of the main hall of the convention
center.
About April 4, 1991, Heritage brought into the cen-
ter a number of workers, some of whom were its reg-
ular, full-time shop employees and some of whom
were temporary employees provided through the Car-
penters Union hiring hall only for this show. The
Decorators, which has a collective-bargaining agree-
ment with Freeman Decorating, learned of the presence
on the convention floor of employees represented by
the Carpenters beyond those who were regular employ-
ees of Heritage. Thus, Joel Wine, Freeman’s general
manager, discussed with Decorators Chief Steward
Dietra Langley the presence of employees represented
by the Carpenters doing overflow work. Wine testified
that the use of the extra carpenters violated a rule pro-
mulgated by the AAPG that only regular, full-time em-
ployees of the exhibitors or their contractors could be
used on the floor at the time. According to Wine, this
rule required that additional employees had to be ob-
tained through Freeman or directly from the Decora-
tors’ hiring hall.
Langley then protested to Heritage’s operations
manager, Steve Byford, via Ruth Fain, Heritage’s show
service manager, and Sue Bassey, an employee of Her-
itage’s show service department. Langley also in-
formed Bassey that if the extra employees represented
by the Carpenters were not removed from the floor the
Decorators would put up a picket line and shut down
the show. Byford directed Heritage to remove the extra
employees represented by the Carpenters from the job.
These employees had been working for about 1 hour.
According to Langley, Fain then ordered employees
represented by the Decorators for the job.
The Decorators’ threat to put up a picket line and
shut down the show if the extra employees represented
by the Carpenters were not removed from the floor led
to the filing of the instant charge.
B. Work in Dispute
The disputed work is the overflow work related to
the preparation, erection, dismantling, and preparation
for shipment of exhibits at trade shows, conventions,
fairs, and like or related activities in the Dallas, Texas
area.1
C. Contentions of the Parties
Decorators contends that its oral agreement with
Heritage, employer preference, employer past practice,
819PAINTERS LOCAL 756 (HERITAGE DISPLAY)
assignment under the show rules, area and industry
practice, relative skills, economy and efficiency of op-
erations, and job impact favor an award of the disputed
work to the employees it represents.
Carpenters contends its collective-bargaining agree-
ment as extended by recent negotiations, relative skills,
and efficiency and economy of operations favor an
award of the disputed work to employees it represents.
Carpenters notes that Heritage prefers to have the more
highly skilled work awarded to the employees rep-
resented by the Carpenters but is agreeable to having
the less highly skilled work performed by the employ-
ees represented by the Decorators. Carpenters states it
would not object to such an award.
D. Applicability of the Statute
Before the Board may proceed with a determination
of a dispute under Section 10(k) of the Act, 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 on a method for the voluntary ad-
justment of the dispute.
As discussed above, undisputed testimony shows
that the Decorators, by Langley, protested to Heritage
the presence on the convention floor of the employees
represented by the Carpenters who were not regular
employees of Heritage. Langley told Heritage that if
the extra employees represented by the Carpenters
were not removed from the floor the Decorators would
put up a picket line and shut down the show.
Based on the above, we find reasonable cause exists
to believe that the Decorators engaged in conduct
which violated Section 8(b)(4)(D) of the Act. There is
no contention and we find that no agreed method for
voluntary adjustment of the dispute exists within the
meaning of Section 10(k) of the Act. Accordingly, we
find that the dispute is properly before the Board for
determination.
E. The 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. Certifications and collective-bargaining
agreements
Neither union has been certified by the Board to
represent the employees of Heritage. There is a collec-
tive-bargaining agreement between the Carpenters and
Texas Convention Services Association, a multiem-
ployer association of which Heritage is a member. This
contract covers shop work performed by the Heritage.
It also refers to the
erecting, installing and dismantling on show site
of displays manufactured or refurbished by the
Employer where the skills, knowledge and exper-
tise of the Carpenter/Millmen are required.
Carpenter/Millmen will receive the same rate of
pay at the showsite as is paid in the plant.
The contract also provides the following:
The parties agree to exclude from jurisdiction the
following work. Plumbing, electrical and the re-
moving of built-up display crates in display areas;
transportation; painting; and sign and pictorial
preparation.
This contract was in effect from November 5, 1985,
through July 31, 1988, with a ‘‘memorandum and
agreement’’ modifying the terms and extending them
through August 14, 1992. Carpenters contends that this
memorandum extended the contract to include the
overflow work at issue. One provision of the memo-
randum states:
4. Show Site Employees—Only those hired
through the hall. $12.00 per hr plus $2.22
Fringes—Journeyman.
This is the only arguable reference to the work at
issue.
Decorators does not have a written collective-bar-
gaining agreement with Heritage. Decorators Business
Manager Paschal Roberts testified that he had a verbal
agreement with Heritage’s president, M. H. H. (Dutch)
Antonisse, ‘‘to work your people whether we have a
signed agreement or not.’’ According to Roberts,
Antonisse agreed to continue using the employees rep-
resented by the Decorators just as it had in the past,
i.e., that these employees would provide all the part-
time labor Heritage needed to install conventions ‘‘all
over the city of Dallas and Fort Worth.’’ Roberts stat-
ed that Antonisse agreed to this in a telephone con-
versation late in 1982 or early in 1983, and again in
1985, shortly after a November 6, 1985 letter from
Roberts to Antonisse asking Antonisse to sign a con-
tract. Antonisse testified that Heritage’s predecessor, I
& M Displays, Inc., and the Decorators had a contract
until 1980 or 1981 to exclusively use employees rep-
resented by the Decorators for trade show work in Dal-
las, but the parties have not had a written contract
since then. Antonisse denied any later verbal agree-
ment with Roberts to use the Decorators as an exclu-
sive source for overflow work although he stated that
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Decorators contends and Wine testified that the show rules
require that the independent contractors such as Heritage use em-
ployees represented by the Decorators for overflow work. At the
hearing, the Decorators’ counsel cited the show rule which states,
‘‘Full-time employees of exhibiting companies may erect and display
their own displays.’’ Wine explained that the contractors may use
their own full-time regular employees but if overflow employees are
needed they must be employees represented by the Decorators.
(Freeman’s collective-bargaining agreement with the Decorators for-
bids subcontracting that would result in the loss of employment to
employees represented by the Decorators.) He testified that Freeman
has a preference for the employees represented by the Decorators be-
cause it has a contract with the Decorators. Byford testified that, ‘‘I
don’t recall a show rule that says you have to use decorators.’’
We need not resolve the meaning of the show rules. The employ-
ees awarded the work will be in the employ of Heritage, not Free-
man Decorating Company, and, therefore, it is the preference and
collective-bargaining agreement of Heritage and not of Freeman that
are relevant factors in the award of the work.
the parties have agreed on wages and how to handle
checkoff.
From the above, we find that, although the Car-
penters’ contract arguably covers the work at issue, the
memorandum does not clearly show that this work is
indeed covered by the contract. No evidence was pre-
sented that Heritage has agreed to use the employees
represented by the Carpenters exclusively for the over-
flow work at issue. Indeed, Heritage had in the past
used employees represented by the Decorators to per-
form the work. There is no evidence that the Car-
penters protested these assignments as a violation of its
collective-bargaining agreement. As to the contention
that the Carpenters’ agreement was modified in 1989
to cover the overflow work, the Carpenters does not
cite any provision in the modified agreement, and we
find none, that supports that contention.
The undisputed evidence shows that Heritage and
the Decorators have an oral arrangement as to what
wage rates the employees referred by the Decorators
are to be paid and for checkoff. There is, however, no
undisputed evidence that Heritage has agreed to use
these employees exclusively for the work at issue.
The Decorators and Carpenters each has an arguable
claim that it has an agreement which covers the work.
Without passing on the validity of these claims, we
find that it is clear that neither has an agreement with
Heritage which establishes that it has an exclusive
right to the overflow work. Therefore, we find that this
factor does not favor the award of the work to either
group of employees.
2. Company preference, current assignment, and
past practice
Steve Byford, Heritage’s operations manager, testi-
fied that Heritage does not ‘‘really have preference
rather than on an individual basis.’’ Antonisse testified
that Heritage wanted the right to select which em-
ployee group it would use based on its judgment as to
the skills required to perform the job. Antonisse testi-
fied that the employees represented by the Carpenters
are more qualified, especially with regard to the ability
to do the more skilled labor, while the employees rep-
resented by the Decorators are able to do the less
skilled ‘‘pipe and drape’’ part of the business.
As noted above, Heritage’s April 4, 1991 assign-
ment originally was to the employees represented by
the Carpenters, and the carpenters did the work for
about 1 hour. After the Decorators made its protest and
threat to picket, Heritage removed the carpenters from
the job. According to Langley, Fain then ordered em-
ployees from the Decorators.
Byford testified that ‘‘most of the time’’ in his 7
years’ tenure with Heritage it has used employees rep-
resented by the Decorators for the overflow convention
work in the Dallas-Fort Worth area. He further testi-
fied that the April 4, 1991 assignment was the first
time Heritage used the employees represented by the
Carpenters for this overflow work, ‘‘the first time we
actually got them from the hall.’’
In view of the above, we find that Heritage has not
expressed a clear-cut preference for either group of
employees.2 Heritage’s original assignment of the work
in dispute favors the employees represented by the
Carpenters, but since Heritage abandoned that assign-
ment after about 1 hour, the weight of that assignment
is reduced. Finally, the evidence summarized above in-
dicates that Heritage has used predominantly, if not ex-
clusively, the employees represented by the Decorators
for overflow work in the Dallas-Fort Worth area until
the April 4, 1991 incident. Employer past practice
strongly favors the award of the disputed work to em-
ployees represented by the Decorators.
3. Area and industry practice
As noted above, Heritage’s past practice has been to
use employees represented by the Decorators predomi-
nantly for overflow work in the Dallas-Fort Worth area
and, with one exception, exclusively for overflow work
in the Dallas Convention Center. Herb Kratz, executive
secretary of the Carpenters, testified that one of Herit-
age’s competitors, Giltspur Display, has called on the
Carpenters hiring hall for overflow workers. He stated
that the Carpenters has sent some employees to the
Dallas Convention Center for Giltspur but did not re-
call how many. According to Langley, the Carpenters
has supplied employees for overflow work a ‘‘very
few times’’ over the years in the Dallas-Fort Worth
area. Edward Almond, business representative for the
Carpenters, testified that about half of the 200 journey-
men on the hiring hall’s work list had done installing
and dismantling work at trade shows ‘‘all around,’’
listing Dallas, Las Vegas, Chicago, and New York.
Antonisse testified that he assumes that Heritage has
called the Carpenters before for overflow trade show
work but he had not done so personally. He recalled
821PAINTERS LOCAL 756 (HERITAGE DISPLAY)
3 We reject the Carpenters’ assertion in its brief that the two
unions’ relative wage rates are relevant in the award of the work.
See, e.g., Painters Local 91 (Frank M. Burson), 265 NLRB 1685,
1687 (1982); Mailers Local 17 (S. Rosenthal & Co.), 265 NLRB
1052, 1055 fn. 10 (1982). Neither do we find merit to the Car-
penters’ argument that its current representation of Heritage’s regular
shop employees favors an award of the work in dispute to employees
it represents.
an incident in 1987 where the Decorators caused a
shutdown of a Home Center Show because one of Her-
itage’s competitors used employees represented by the
Carpenters.
In its brief, the Carpenters states that ‘‘[a]lthough
Painters [Decorators] have the predominate amount of
jurisdiction in the Dallas area, it is by no means a
complete jurisdiction.’’ The above testimony indicates
that the Carpenters has correctly described the Decora-
tors’ share of the disputed work in the Dallas-Fort
Worth area as ‘‘predominate.’’ The testimony on in-
dustry practice fails to show that either party predomi-
nates. We, therefore, find that the factor of area prac-
tice favors employees represented by the Decorators
but that the factor of industry practice favors neither
group of employees.
4. Relative skills
Both the employees represented by the Decorators
and the employees represented by the Carpenters pos-
sess the requisite skills for performing the work in dis-
pute. Both have apprenticeship programs that include
training in installing and dismantling trade show exhib-
its. The journeymen of each union have completed the
respective union’s program and each union also refers
employees in its apprenticeship program. The Decora-
tors also refers temporary permit workers who have
not been part of the apprenticeship program.
It is undisputed that Heritage has not had any prob-
lem with the skill of the journeymen or apprentices of
the Decorators it has used in the past. Heritage has had
problems with the skill level of the permit workers.
Byford testified that in the preceding 24 months the
Decorators has supplied permit workers who were un-
familiar with the job. However, Heritage has not com-
municated to the Decorators any discontent with these
employees. On the other hand, it appears that the
Decorators attempts to accommodate Heritage’s re-
quests for whatever employees the Decorators has
available. According to Langley, the Decorators has
had skilled employees available for its daily calls from
1982 until the present.
Antonisse testified that the employees represented
by the Carpenters are more competent than the em-
ployees represented by the Decorators, especially with
regard to the highly skilled part of installing and dis-
mantling work, such as custom design exhibits and
very large exhibits. However, in describing what he
considered the lesser skill level of the employees rep-
resented by the Decorators, he referred only to the per-
mit employees, i.e., those employees who have not re-
ceived the training of the journeymen and apprentices.
The Decorators attempts to accommodate Heritage’s
requests for employees of whatever specified skill
level. Decorators’ secretary, Carla Grady, testified that
on all occasions Heritage has requested employees
since 1982 the Decorators had skilled employees avail-
able. Further, it appears that Heritage has not had
much experience using the employees represented by
the Carpenters for overflow work and therefore could
not testify as to the comparative skill level of those
employees. Thus, Byford stated that because these em-
ployees represented by the Carpenters only performed
the work in dispute for about 1 hour on April 4, 1991,
it was difficult to compare the skill level of the two
groups of employees.
Based on the above, we conclude that both groups
have the skill to perform the work in dispute and that
this factor does not favor an award of the work to ei-
ther group of employees.
5. Economy and efficiency of operations
Many of the employees represented by the Decora-
tors have full-time jobs elsewhere. Byford and Bassey
testified that this sometimes causes a problem with
how many consecutive days an employee referred by
the Decorators can work and that Heritage prefers that
an employee continue until the job is completed. Al-
though Antonisse testified that he has never had any
problem with employees represented by the Carpenters
finishing a job, his testimony fails to show that he has
had any experience with employees represented by the
Carpenters doing overflow work. Langley testified that
the employees represented by the Decorators can ar-
range to be off their regular jobs for up to 3 weeks.
She also stated that most of Freeman’s out-of-town ex-
hibits are done by employees who also work as fire-
men and that they adjust their schedules to travel with
the exhibits. In addition, as noted above, the Decora-
tors’ attempts to comply with Heritage’s requests for
specific employees which presumably could include re-
questing an employee available for a certain duration
or employees who do not have other full-time employ-
ment.
The evidence does not establish whether employees
represented by the Carpenters for overflow work have
been able to work until the job is completed.
We find this factor favors neither group of employ-
ees.3
6. Job impact
Roberts testified that if the employees represented
by the Carpenters began doing overflow work at the
Dallas Convention Center this would cause 50 employ-
ees represented by the Decorators to lose their jobs
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 As noted in Carpenters Local 1711 (Builders Assn. of Eastern
Ohio), 207 NLRB 406, 409 (1973), the Board is reluctant to disturb
area practice absent some compelling reason and an employer’s as-
signment alone does not amount to such a compelling reason.
over the course of a year. In calculating this figure,
Roberts included the loss of employment to these em-
ployees not only if Heritage started to use employees
represented by the Carpenters but if Heritage’s com-
petitors also started using the employees represented
by the Carpenters. Roberts explained that the competi-
tors would follow suit if Heritage began to use em-
ployees represented by the Carpenters for overflow
work.
Since the work in dispute is overflow work requiring
a temporary expansion of Heritage’s work force and
not involving individuals regularly employed by Herit-
age, there is no loss of jobs involved—the only ques-
tion is which group of employees will be assigned this
extra work. Therefore, we find that this factor favors
neither group of employees.
Conclusions
After considering all the relevant factors we con-
clude that employees represented by the Decorators are
entitled to perform the work in dispute. The record
shows that both Heritage’s past practice and area prac-
tice favor the employees represented by the Decora-
tors. The factor of assignment slightly favors the em-
ployees represented by the Carpenters but especially in
view of the short duration of that assignment—about
1 hour—we find that that factor is outweighed by past
and area practice.4 In making this determination, we
are awarding the work to employees represented by the
Decorators, not to the Union or its members. The de-
termination is limited to the controversy that gave rise
to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the fol-
lowing Determination of Dispute.
Employees of Heritage Display Group of Houston,
Inc., represented by Sign Painters, Decorators and
Paintmakers, Union No. 756, are entitled to perform
the overflow work related to the preparation, erection,
dismantling, and preparation for shipment of exhibits
at trade shows, conventions, fairs, and like or related
activities in the Dallas, Texas area.