Laborers International Union of North America, AFL-CIO, Local No. 282 (Hartman-Walsh Painting Company)

National Labor Relations Board - Board Decisions

Aug 11, 1982

263 N.L.R.B. 290 (N.L.R.B. 1982)

LABORERS, LOCAL NO. 282
Laborers International Union of North America,
AFL-CIO, Local No. 282 and Hartman-Walsh
Painting Company' and District Council No. 2
of the Brotherhood of Painters and Allied
Trades, AFL-CIO and Painters and Allied
Trades Local Union #1292 affiliated with Inter-
national Brotherhood of Painters and Allied
Trades. Case 14-CD-649
August 11, 1982
DECISION AND DETERMINATION OF
DISPUTE
BY Mi MBERS FANNING, JENKINS, AND
ZIMMERMAN
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by Hartman-Walsh Painting
Company, herein called the Employer, alleging
that Laborers International Union of North Amer-
ica, AFL-CIO, Local No. 282, herein called the
Laborers, had violated Section 8(b)(4)(D) of the
Act by engaging in certain proscribed activity with
an object of forcing or requiring the Employer to
assign certain work to its members rather than to
employees represented by District Council No. 2 of
the Brotherhood of Painters and Allied Trades,
AFL-CIO, herein called Painters District Council
No. 2, and by Painters and Allied Trades Local
Union #1292 affiliated with International Brother-
hood of Painters and Allied Trades, herein called
Painters Local #1292.
Pursuant to notice, a hearing was held before
Hearing Officer Stephen B. Smith on April 13,
1982. All parties appeared 2 and wvere afforded full
opportunity to be heard, to examine and cross-ex-
amine witnesses, and to adduce evidence bearing
on the issues.
Pursuant to the provisions of Section 3(b) of the
National L.abor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
ihority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
frec. from prejudicial error. They are hereby af-
ftrmed. Upon the entire record in this proceeding,
the Board makes the following findings:
I. 1111- BUSINESS OF TI lE I MPI.OYEIR
The parties stipulated, and we find, that the Em-
ployer, a Missouri corporation with its principal
place of business at 7144 North Market, St. Louis,
Missouri, is engaged in commercial and industrial
The name of the lIrployci was anlended al the hearing
2 No appearanrees were nmade, or briefs filed, on bchal of P'ainters D)is-
trlct Council No 2
263 NLRB No. 27
painting and sandblasting. During the past 12
months, which period is representative herein, the
Employer purchased paint and other equipment,
materials, and supplies valued in excess of $50,000
directly from suppliers located outside the State of
Missouri, of which paint and other equipment, ma-
terials, and supplies valued in excess of $50,000
were shipped to the Employer's St. Louis, Missou-
ri, facilities directly from points located outside the
State of Missouri. The parties also stipulated, and
we find, that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and it will effectuate the purposes of the
Act to assert jurisdiction herein.
II. THE I.ABOR O(iANIZATIONS INVOI.VED
The parties stipulated, and we find, that Painters
District Council No. 2, Painters Local #1292, and
the Laborers are labor organizations within the
meaning of Section 2(5) of the Act.
111. 1 Hif I)ISPl 1E
A. Background and Facts of the Dispute
The Employer is engaged in the business of com-
mercial and industrial painting and sandblasting.
One of the Employer's jobsites is located in New
Madrid County, Missouri, where the Employer is
acting as subcontractor to two other contractors,
Gibbs & Hill, Inc., and Flakt, Incorporated. The
jobsite is owned by Associated Electric Coopera-
tiv e. Inc., a public utility in southeastern Missouri.
The Employer has been engaged by Gibbs & Hill
for the purpose of performing finish painting work
on structural and miscellaneous steel on a construc-
tion project on the site. The Employer's contract
with Flakt involves touchup painting on the shop-
applied primer coat on the same structural and mis-
cellaneous steel. The Employer commenced work
on the Gibbs & Hill work on or about March 15,
1981, and on the Flakt work in approximately Oc-
tober 1981.
All of the Employer's employees on the New
Madrid County, Missouri, worksite are either mem-
bers of Painters Local #1292 or of Painters District
Council No. 2. The Employer has not employed
employees represented by the Laborers on either
the Flakt project or the Gibbs & Hill project.
On or about March 17, 1982, at 9 a.m., James
Russell, the Employer's superintendent on the
Gibbs & Hill project in question, entered the Em-
ployer's office trailer at the site. The Employer's
salesman, Rick Trumnm, and the Laborers shop ste-
ward, Richard Crader, were present. Crader asked
what the Employer intended to do about the labor
situation and when the Employer was going to sign
290
LABORERS, LOCAL NO. 282
a contract with the Laborers and hire laborers. Su-
perintendent Russell responded that they had no
need for a laborer. Crader replied that laborers
could carry paint hoses, paint, and paint buckets,
and perform general cleanup work. Russell testified
that he told Crader that the work in question was
painters' work. Crader stated that the Laborers
business agent, Jim Bollinger, would come to the
jobsite and picket unless the matter was resolved.
At 2 p.m. that same day, Crader and the Labor-
ers recording secretary, Ray Hasting, approached
the office trailer on the jobsite and spoke with
Trumm and Russell. Crader asked again how the
Employer intended to resolve the "problem"; i.e.,
when would they sign a contract and hire laborers.
Russell repeated his earlier response that there was
no need for a laborer on the job. Both conversa-
tions were reported to the Employer's president,
Michael Clark.
The next day Clark spoke with Business Agent
Bollinger by telephone. According to Clark's testi-
mony, Bollinger told him that the Employer was
going to have to sign a contract and hire laborers
for certain items of work. Clark also testified that
Bollinger told him that this was the way it was
done in southeast Missouri, that the Employer was
not the only one that he was making sign con-
tracts, and that the Employer would not work
without a contract. Clark advised Bollinger that
they had no need for a laborer. Clark testified that
Bollinger responded that "he guessed his men
could paint a small building then."3
At or about 2 p.m. that day Bollinger met with
Russell on the jobsite, and, according to Russell's
testimony, stated that he had spoken with Clark,
who was obviously misunderstanding him. Accord-
ing to Russell's testimony, Bollinger told Russell
that he had tried to convey the necessity to Clark
of signing a contract with the Laborers to work in
the southeast Missouri area. Russell testified that
Bollinger said that if a contract was not signed, or
"if we have not resolved the problem," picketing
would commence the following morning.
On March 19, 1982, picketing commenced. The
Laborers admits that it engaged in the picketing.
The picket signs recited that the Employer did not
have a contract with the Laborers. As a result of
the picketing, all work on the project was stopped.
None of the other trades on the site crossed the
Laborers picket line. The charges herein were filed
shortly thereafter.
3 The record fails to disclose what Bollinger meant by this last remark.
If he meant that he was claiming the painting of small buildings at the
site for laborers, we note that the Laborers later disclaimed anlly interest
in the work. See fn. 4, infram
B. The Work in Dispute
The work in dispute involves the assignment of
the following work tasks: carrying paint hoses;
general cleanup; removing paint cans; and carrying
paint cans to the worksite for Hartman-Walsh
Painting Company at the Associated Electric Co-
operative, Inc., power plant jobsite located in New
Madrid County, Missouri. 4
C. The Contentions of the Parties
The Employer contends that there is reasonable
cause to believe that Section 8(b)(4)(D) of the Act
has been violated and that there exists no voluntary
method for settling the dispute. The Employer also
contends that the factors of collective-bargaining
agreements, economy and efficiency, and its initial
assignment of the work favor an award to its em-
ployees represented by Painters District Council
No. 2 and Painters Local #1292. The Employer
further contends that, apart from the cleaning up of
painting equipment and the discarding of empty
paint cans, there is no general cleanup work to be
performed on the jobsite. Finally, the Employer
contends that one or more painters might have to
be laid off if the work is assigned to members of
the Laborers.
The Painters Unions did not file a brief but at
the hearing took essentially the same position as
the Employer.
The Laborers argues that the Board should not
proceed to a determination of dispute in this case.
It claims there is no reasonable cause to believe
that it engaged in coercive conduct within the
meaning of Section 8(b)(4)(D) of the Act, and it
argues that the picketing was lawful as it was done
solely for the purpose of informing the public that
it did not have a contract with the Employer. The
Laborers also contends that area and industry prac-
tice, the Employer's past practice, a memorandum
of agreement executed with the Employer with re-
spect to a prior jobsite, and economy and efficien-
cy of operations favor an award of the disputed
work to employees represented by the Laborers.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of the dispute pursuant to 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 parties have not agreed upon
4 Although the painting of small buildings was encompassed in the
notice of hearing issued in this matter as one of the disputed work tasks.
the Laboiers specifically disclaimed this work task at the hearing. As no
evidence was presented that this was not a valid disclaimer, we find that
this task is not in dispute and deny the Employer's request for all adjudi-
cation elf this issue on its merits.
231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a method for the voluntary adjustment of the dis-
pute.
As described above, there is testimony in the
record that the Laborers demanded that the Em-
ployer hire laborers for certain items of work,
threatened to picket if such a reassignment was not
made, and, in fact, did so picket. 5 Further, since
the threat to picket was made simultaneously with
the Laborers demand that the Employer hire La-
borers, we do not find merit to the Laborers argu-
ment that the threat to picket and the picketing
itself was solely for informational purposes. In-
stead, it appears that an object of the Laborers
threat and picketing was to force or require the
Employer to assign the disputed work to persons
represented by the Laborers rather than to those
represented by Painters District Council No. 2
and/or Painters Local #1292. Accordingly, and
without ruling on the credibility of the testimony
in issue, we are satisfied that there is reasonable
cause to believe that a violation of Section
8(b)(4)(D) had occurred. Furthermore, all parties
agree that there is no voluntary method for the pri-
vate settlement of this dispute. Under these circum-
stances, we find that it will effectuate the policies
of Section 10(k) and Section 8(b)(4)(D) of the Act
for us to determine the merits of the dispute.
Therefore, we find that this dispute is properly
before the Board.
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 factors.6 The
Board has held that its determination in a jurisdic-
tional dispute is an act of judgment based on com-
monsense and experience reached by balancing
those factors involved in a particular case.7
The following factors are relevant in making the
determination of the dispute before us:
1. Collective-bargaining agreements
The Employer has maintained collective-bargain-
ing relations for many years with both Painters
District Council No. 2 and Painters Local #1292
and has been party to a series of contracts with
those Unions, the last ones effective April 1, 1979,
In reaching the above conclusion, we find no merit to the Laborers
contention that much of the evidence supporting the conclusion is hear-
say. Although Clark's testimony as to what was said during the Russell-
Trumm-Crader conversations of March 17 and the Bollinger-Russell con-
versation of March 18 is hearsay, Russell, who was present during these
conversations, testified to the events in question.
6 N.LR.B. v. Radio & Television Broadcast Engineers Union, Local
11212 International Brotherhood of Electrical Workers. AFL-CIO [Colum-
bia Broadcasting System], 364 U.S. 573 (1961).
T International Association of Machinists Lodge No. 1743. AFL-CIO (J.
A. Jones Construcrion Company), 135 NLRB 1402 (1962).
through March 31, 1982. Both of these contracts
were in effect at the time the dispute arose. Conse-
quently, we find that their subsequent expiration is
not significant. 8 Additionally, the retroactive wage
clause in the expired contract of Painters Local
#1292 is still in effect and the Employer is still ap-
plying the terms of the expired contracts to its em-
ployees.
Contrary to the Laborers contention, these
agreements extend geographical jurisdiction over
the work in dispute to the two Painters Unions.
Thus, the Painters Local #1292 contract provides
that "[t]his Agreement shall cover the following
counties in Southeast Missouri, and shall be known
as the Southern Unit of Local Union 1292: Reyn-
olds, Iron Shannon, Carter, Wayne, Bollinger,
Cape Girardeau, Oregon, Ripley, Butler, Stoddard,
Scot, Missouri, New Madrid, Pemiscot, and Dunk-
lin," and the Employer's contract with Painters
District Council No. 2 contains broad jurisdictional
language which would appear to encompass New
Madrid County, since it "includes any county that
is awarded to District Council No. 2 Jurisdiction
by the Brotherhood of Painters and Allied Trades
AFL-CIO."
More importantly, both agreements appear to
cover the work in dispute. Thus, section 6-11 of
the Employer's contract with Painters Local #1292
provides:
The following shall be the work of painters
and job assignments shall be made to painters,
but shall not be limited to the following:
Driving of company vehicles, unloading and
stockpiling of all materials, dispersal of all ma-
terials on the job site, mixing of all materials,
applying of all materials such as, but not limit-
ed to: all adhesive compounds for wall paper
and wall coverings, all wall paper, all wall
covering, all preparations for painting, all
cleaning of tools, all preparations for wall pa-
pering or wall covering, taping and pointing of
drywall, sanding and finishing of drywall,
loosening of damp joints, topping, drywall
compound, paint, and etc. from floors, wiping
of damp paint, adhesives, and etc. from all sur-
faces, all patching in preparation for painting,
wall papering, wall covering, sealing and var-
nishing of all wood surfaces, loading and un-
loading of all tools into and from company ve-
hicles, prime and finish painting of drywall,
concrete block, walls, ceilings, door frames,
a Further, although these contracts have lapsed, Mark Slinkard, busi-
ness representative for Painters Local #1292, testified that a new agree-
ment had been negotiated and ratified by the membership. At the time of
the hearing it was not yet signed. There was no evidence as to whether a
new agreement had been negotiated with Painters District Council No. 2.
292
LABORERS, LOCAL NO. 282
doors, and all surfaces on the job site to be
painted to comply with all check-lists for the
completion of the job.
Similarly, Section 19 of the Painters District No. 2
contract provides:
Sufficient time shall be allowed to all employ-
ees covered by this Agreement on all jobs . . .
prior to quitting time to clean and put away
the tools. All other work such as taking down
scaffolds, or ladders, folding away drop cloths,
etc., shall be done on the employer's time,
and Section 27 of that agreement provides that "all
of the lawful clauses of the collective bargaining
agreement in effect in said other geographical juris-
diction and executed by the Employers of the In-
dustry and the Local Unions in that jurisdiction"
incorporate by reference, inter alia, section 6-11 of
the Painters Local #1292 agreement.
The Laborers, on the other hand, points out that
it has signed an agreement with the Employer
albeit for another jobsite. However, this agreement
is not applicable to the instant worksite and is not
useful in determining the instant work dispute.
Accordingly, we find that only the Employer's
contracts with Painters District Council No. 2 and
Painters Local #1292 are material and that those
contracts favor an assignment of the disputed work
to the employees represented by those two labor
organizations.
2. Past practice of the Employer
In the past, the Employer has always awarded
this type of work to painters who are represented
by Painters District Council No. 2 and Painters
Local #1292. There was evidence ihat on at least
one occasion the Employer hired a laborer (or la-
borers) to do some cleanup work at another work-
site. In this regard, the Laborers presented the tes-
timony of those laborers who did some cleanup
work for the Employer at a jobsite in Cape Girar-
deau, Missouri. They listed their job duties as in-
cluding general cleanup work, cleanup of paint
droppings, and cleanup work related to sandblast-
ing. One of the laborers, David Hahn, testified that
he did not see any laborer at the Cape Girardeau
site clean up paint cans, brushes, or painting equip-
ment. Further, while the Employer's president,
Clark, admitted hiring a laborer at the Cape Girar-
deau jobsite, he testified that the laborer hired
turned out to be inefficient. Thus, the evidence
shows that, with the exception of the one worksite
noted above (and then not conclusively as to either
the exact work performed or the satisfactories of
that which was performed), painters have exclu-
sively performed the work tasks of carrying paint
hoses, general cleanup, removing paint cans, and
carrying paint cans to the worksite on all of the
Employer's painting projects. Accordingly, we find
that company practice in general favors assignment
of the disputed work to employees represented by
Painters District Council No. 2 and/or Painters
Local # 1292.
3. Industry and area practice
The Laborers adduced some evidence of area
and industry practice with respect to assigning la-
borers to assist members of the Painters Unions in
the carrying of equipment and materials and clean-
ing up of paint spills and paint cans on jobsites in
southeast Missouri. However, the Employer ad-
duced other evidence that the carrying of full and
empty paint cans, as well as hoses, and general
cleanup associated with painting were duties cus-
tomarily and normally performed by painters-in-
cluding painter apprentices, who perform such
tasks as a part of their training, especially in cir-
cumstances where, as here, these duties are mini-
mal. Thus, although it appears from the evidence
that laborers have performed work in this area sim-
ilar to that in dispute, the evidence shows that
these jobs are also done by painters. Inasmuch as
area and industry practice is mixed, this factor
favors neither group of employees.
4. Skills
As both groups of employees possess the neces-
sary skills to perform the work, this factor favors
neither one.
5. Efficiency and economy of operations
There is not enough work on this job to make
the hiring of laborers economical or efficient. The
Employer's president, Clark, testified without con-
tradiction that on this particular job the work in
dispute involves tasks which take 30-60 minutes of
actual worktime each day to complete, with indi-
vidual tasks lasting only between 2-15 minutes.
Further, the record shows that most of the tasks
are incidental to, as well as integral to, the painters'
painting duties and can easily be performed in the
normal course of the painters' workday. In addi-
tion, it is more efficient, in the circumstances of
this case, for a painter to quickly clean up a spill
rather than wait until a laborer is found to do the
work. 9 Finally, Clark testified that he was required
9 A laborer would have to be found at the site. as the Employer testi-
fied without contradiction that there was not enough work to keep a la-
borer busy even for a few hours straight Thus, it would not he economi-
cal to pay a laborer for a full day's work when he would be idle for most
of the time.
293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by section 6-3 of the Painters Local # 1292 contract
to allow painters paid time to clean up equipment
and to do general cleanup. Allowing the laborers
to do cleanup work would necessarily result in the
Employer's paying its painters while they remained
idle during the cleanup time. Accordingly, we con-
clude the record establishes that the factors of effi-
ciency and economy of operations favor awarding
the work to employees represented by Painters
District Council No. 2 and/or Painters Local
#1292.
6. The Employer's assignment and preference
The Employer has assigned the disputed work,
and prefers an assignment, to employees represent-
ed by Painters District Council No. 2 and Painters
Local #1292. Accordingly, we find that this factor,
while not determinative, favors awarding the work
to employees represented by those labor organiza-
tions.
7. Job loss
Clark testified without contradiction that the
Employer would be forced to lay off one or more
of its painters in the event it had to assign any of
the work to members of the Laborers. According-
ly, this factor favors the assignment of the work to
members of Painters District Council No. 2 and/or
Painters Local #1292.
Conclusion
Upon the record as a whole, and after full con-
sideration of all relevant factors involved, we con-
clude that employees who are represented by
Painters District Council No. 2 and Painters Local
#1292 are entitled to perform the work in dispute.
We reach this concluson relying on the collective-
bargaining agreements, the Employer's past prac-
tice, economy, and efficiency of operations, the
Employer's assignment and preference, and job
loss, all of which favor an award of the disputed
work to the employees represented by Painters
District Council No. 2 and/or Painters Local
#1292. In making this determination, we are
awarding the work in question to employees who
are represented by Painters District Council No. 2
and Painters Local #1292, but not to those Unions
or their members.
Scope of Determination
The Employer contends that the award by the
Board should be broad because there is reason to
believe that the Laborers will continue to claim
such work in the future at other jobsites of the Em-
ployer. The record, however, does not support a
finding, required for the granting of a broad order,
that the dispute will necessarily extend to any
broader geographic area than the site here in-
volved. Our present determination is therefore lim-
ited to the specific site were the instant dispute
arose.
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
proceeding, the National Labor Relations Board
makes the following Determination of Dispute:
1. Employees of Hartman-Walsh Painting Com-
pany who are represented by District Council No.
2 of the Brotherhood of Painters and Allied
Trades, AFL-CIO, and/or Painters and Allied
Trades Local Union #1292 affiliated with Interna-
tional Brotherhood and Allied Trades are entitled
to perform the following work tasks: carrying paint
hoses; general cleanup; removing paint cans; and
carrying paint cans to the worksite for Hartman-
Walsh Painting Company at the Associated Elec-
tric Cooperative, Inc., power plant jobsite located
in New Madrid County, Missouri.
2. Laborers International Union of North Amer-
ica, AFL-CIO, Local No. 282. is not entitled by
means proscribed by Section 8(b)(4)(D! of the Act
to force or require Hartman-Walsh Painting Com-
pany to assign the disputed work to employees rep-
resented by that labor organization.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Laborers Interna-
tional Union of North America, AFL-CIO, Local
No. 282, shall notify the Regional Director for
Region 14, 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.
294