219 N.L.R.B. 1233 (N.L.R.B. 1975)

Asbestos Workers, Local 84

National Labor Relations Board - Board DecisionsAug 25, 1975

219 N.L.R.B. 1233 (N.L.R.B. 1975)

ASBESTOS WORKERS , LOCAL 84 1233 International Association of Heat and Frost Insulators and Asbestos Workers , Local No. 84 , AFL-CIO and A C and S, Inc. and International Association of Heat And Frost Insulators and Asbestos Work- ers, Local No. 44 , AFL-CIO. Case 8-CD-302 shipped directly across various state lines. Accord- ingly, we find, as the parties have stipulated, that A C and S is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. August 25, 1975 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing a charge filed by A C and S, Inc., also re- ferred to herein as the Employer, alleging that Inter- national Association of Heat and Frost Insulators and Asbestos Workers, Local No. 84, AFL-CIO, herein called Local 84, 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 employees represented by Local 84 rather than to employees represented by International Association of Heat and Frost Insula- tors and Asbestos Workers, Local No. 44, AFL-CIO, herein called Local 44. Pursuant to notice, a hearing was held before Hearing Officer Terry J. Koozer on May 6, 1975, in Cleveland, Ohio. The Employer and Local 84 ap- peared at the hearing and were afforded full opportu- nity to be heard, to examine and cross-examine wit- nesses, and to present evidence bearing on the issues. Local 44 did not appear at the hearing and has taken no position in this case. Therefore, the Employer and Local 84 filed briefs. 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 rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. The Board has considered the entire record in this case and hereby makes the following findings: 1. THE BUSINESS OF THE EMPLOYER A C and S, Inc., is a Delaware corporation en- gaged in specialty contracting , including insulation, and maintains offices in Cleveland , Ohio, and in other locations throughout the United States. Annu- ally, in the course and conduct of its business, the Employer receives goods valued in excess of $50,000 If. THE LABOR ORGANIZATIONS The parties stipulated, and we find, that Local 84 and Local 44 are labor organizations within the meaning of Section 2(5) of the Act. 111. THE DISPUTE A. The Work in Dispute The work in dispute consists of the work of me- chanic (job foreman) I for A C and S, Inc., at the Columbus and Southern Ohio Electric Company Conesville Generating Station worksite, Conesville, Coshocton County, Ohio. B. Background and Facts of the Dispute The Employer maintains an office in Columbus, Ohio. As a member of the Columbus, Ohio, Insula- tors Association (herein called the Columbus Associ- ation) the Employer is party to that association's col- lective-bargaining agreement with Local 44. The Employer for a number of years also maintained an office in the Akron, Ohio, area, within Local 84's geographical jurisdiction, but has not done so since 1969. However, until September 1974, A C and S was a member of the Master Insulators Association of Akron, Ohio, hereinafter also referred to as the Ak- ron Association, and a party to that association's col- lective-bargaining agreement with Local 84, effective from July 1, 1973, to June 30, 1974. Upon expiration of this Akron agreement, an eco- nomic strike ensued, during which negotiations for a new agreement continued. Representatives of A C and S attended all 16 bargaining sessions and partici- pated in the Akron Association's caucuses. At no time did any A C and S representative indicate that the Employer's participation was limited to that of an observer. On September 27, 1974, the Akron As- sociation and Local 84 completed negotiations for a new collective-bargaining agreement, which was rat- ified by the Local's membership on September 29, 1974. The next day A. G. Klein, the Employer's rep- resentative at the last several bargaining sessions, wrote to Clifford Spaid, president of the Akron Asso- 1 The record shows that this position is akin to a working foreman and is not supervisory within the meaning of the Act 219 NLRB No. 194 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ciation, and stated that A C and S was withdrawing from the association, effective immediately. The let- ter further noted that A C and S did not maintain an office within the geographical jurisdiction of Local 84, "as required by [Local 84's] Constitution and By- Laws." A copy of the letter was mailed to Local 84. Thereafter, Local 84' s business agent sent A C and S a "Memorandum of Agreement," which is custom- arily executed by contractors who perform work within Local 84's geographical jurisdiction but are not members of the Akron Association and do not maintain an office in the Akron area. Representa- tives of both A C and S and Local 84 signed the "Memorandum of Agreement," which states: I, the undersigned employer, not a party to the original negotiations for an Agreement between the Master Insulators' Association of Akron, Ohio, and the International Association of Heat and Frost Insulators and Asbestos Workers Lo- cal No. 84 of Akron, Ohio, dated the 1st day of July 1974, attached hereto, agree to be bound by all the provisions of that Agreement including wages, fringe benefits, working conditions, con- ditions of employment, settlements of disputes and all other provisions contained therein. The above-referred-to collective-bargaining agree- ment provides, in pertinent part, that: Employers may send a Mechanic (job foreman) on any one operation within the jurisdiction of another local union, but cannot bring a Mechanic (job foreman) into an area where he is already bound by a collective bargaining agreement. [Em- phasis supplied.] The record, however, establishes that the practice followed by Local 84 was to allow "outside contrac- tors," i.e., those employers who signed the "Memo- randum of Agreement" rather than the contract be- tween the Akron Association and Local 84, to send one mechanic (job foreman) from another local to each project. In October 1974, A C and S sent employee Harold Casterline, a member of Local 44, to work as me- chanic (job foreman) on a job within Local 84's geo- graphical jurisdiction. In February 1975, Casterline was again sent as mechanic (job foreman) on a pro- ject at the Conesville Power Plant in Coshocton County, Ohio. Thereafter, on February 14, 1975, pur- suant to a provision of the contract between it and the" Akron Association, Local 84 filed a grievance with the trade board 2 concerning Casterline's work- ing on the Conesville project. The trade board heard 2 The trade board is compnsed of six members , three representatives from the Akron Association and three from Local 84. the grievance on February 24, 1975, and issued a unanimous decision on March 14, 1975, in which it found that A C and S was bound by the collective- bargaining agreement between the Akron Associa- tion and Local 84 and had violated that agreement by sending a mechanic (job foreman) from Local 44 to work on the Conesville job, The Employer did not participate in the trade board proceeding and refused to abide by the award. Thereafter, by letter dated March 14, 1975, Local 84, through its attorney, ad- vised the Employer that In the event A C & S Inc. [sic] chooses to violate the Trade Board's Decision, Local 84 will seek either Court enforcement of the award or pursue the remedies available to it under the contract, which may include withdrawing its services from A C & S Inc. [sic] The instant charge, as amended, alleging that Lo- cal 84 violated Section 8(b)(4)(ii)(D) of the Act, was filed April 4, 1975.3 C. Contentions of the Parties Local 84 contends that no reasonable cause exists to believe that a violation of Section 8(b)(4)(D) of the Act has occurred. On the merits, Local 84 contends that the work in dispute should be assigned to em- ployees represented by it on the grounds that A C and S is bound by the collective-bargaining agree- ment between the Akron Association and Local 84, and, consequently, by the trade board decision. The Employer contends that, by threatening in the March 14 letter to withdraw its services from A C and S. Local 84 has violated Section 8(b)(4)(ii)(D) of the Act. With respect to the merits of the dispute, A C and S contends that the disputed work should be assigned to its employees represented by Local 44 on the basis of Local 84's past practice of allowing "out- side contractors" to staff each project within Local 84's geographical jurisdiction with one mechanic (job foreman) from another local. As mentioned above, Local 44 has taken no posi- tion in this proceeding. D. Applicability of the Statute Before the Board may proceed to a determination 3 Local 84 filed a charge on December 23, 1974, in Case 8-CA-8828, alleging that the Employer violated Sec 8(a)(5) of the Act by refusing to sign the contract negotiated between it and the Akron Association. This charge was dismissed by the Regional Director for Region 8 on February 24, 1975. on the grounds that by executing the "Memorandum of Agree- ment" Local 84 "waived its right to object to the Employer's withdrawal from the Association and its subsequent refusal to sign the contract negoti- ated between the Union and the Association ." No timely appeal from the Regional Directors action was taken. ASBESTOS WORKERS , LOCAL 84 1235 of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated, and (2) there is no agreed-upon method for the voluntary adjustment of the dispute. As to (1), above, Local 84 contends that it made no unlawful threat because "[T]here can be no question that the Union [Local 84] had the right to suspend work or strike if the parties to the [collective-bargain- ing agreement] refused to abide by the Trade Board decision." We find no merit to this contention. Al- though there are many instances in which a labor organization has the right to strike, it is well settled that a threat to strike to force assignment of disputed work in circumstances such as those presented here violates Section 8(b)(4)(D) of the Act. Inasmuch as Local 84's March 14 letter to the Employer contained a clearly stated threat to withdraw services if A C and S refused to abide by the trade board award and assign the disputed work to employees represented by that Union, we find reasonable cause exists to believe that Section 8(b)(4)(D) of the Act has been violated. As to (2), above, the parties stipulated, and we find, that no agreed-upon method exists for the vol- untary adjustment of the dispute to which all three parties are bound. Accordingly, we find 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 disputed work after giving due consideration to various relevant factors, including the following: 1. Certification and collective-bargaining agreements The parties stipulated that "[t]here are no prior 10(k) determinations or Board certifications on this dispute." Both Local 84 and the Employer, however, apparently contend that the central issue in this pro- ceeding is whether or not Local 84 acquiesced in the Employer's withdrawal from the Akron Association and whether, therefore, A C and S is an "outside contractor," vis-a-vis Local 84. We agree with Local 84's preliminary contention that the Employer's withdrawal from the Akron As- sociation on September 30, 1974, after contract nego- tiations were completed, was not timely. Local 84 further contends that the "Memorandum of Agree- ment" was executed by mistake, relying on the fact that that document, as quoted above, inaccurately stated that A C and S was not a party to the negotia- tions for the contract between the Akron Association and Local 84. Accordingly, Local 84 urges us to find that by executing the "Memorandum of Agreement" Local 84 did not waive its objection to the Employer's attempted withdrawal from the associa- tion and that the Employer was not an "outside con- tractor" but was bound by the association contract. We find no merit to this latter contention. There is no evidence in the record that at the time the Employer and Local 84 executed the "Memoran- dum of Agreement" Local 84 still considered the Employer bound to association membership or that it viewed A C and S any differently than it did other "outside contractors" who signed the "Memorandum of Agreement." In the absence of such evidence, we find that by executing the "Memorandum of Agree- ment" Local 84 acquiesced in the Employer's other- wise timely withdrawal from the Akron Association. We further find that Local 84 thereby conferred upon A C and S the status of an "outside contractor" entitled to send one mechanic (job foreman) from another local union to work within Local 84's geo- graphical jurisdiction. Accordingly, we find that this factor favors awarding the disputed work to employ- ees represented by Local 44. 2. Employer and industry practice It appears from the uncontradicted testimony of Richard Burgess, branch manager of the Employer's Columbus, Ohio, office, that during the term of the collective-bargaining agreement between Local 84 and Akron Association, which expired in June 1974 and to which A C and S was signatory, the Employer sent employees from Columbus to work on jobs in Local 84's geographical area.4 As discussed above, the record establishes that it is customary for "outside contractors" who sign the "Memorandum of Agreement" with Local 84 to send one mechanic (job foreman) from another local to each project. Accordingly, we find that the factors of Employer and industry practice favor awarding the work in dispute to employees represented by Local 44. 3. Skills, efficiency, and economy Although Branch Manager Burgess testified that 4 This practice was the subject of a trade board proceeding against A C and S in 1971 , the result of which, according to the minutes of the trade board meeting, was an agreement that A C and S would "man all work in Akron territory with Akron men." Inasmuch as this agreement was made at a time when A C and S was not an "outside contractor," we find it does not conflict with our conclusion that employer practice favors award of the disputed work to employees represented by Local 44 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "the men we have to manage the job is very impor- tant, especially if we are going outside the area that we normally operate in," there is no evidence in the record that employees represented by Local 44 are more highly qualified to perform the work of me- chanics (job foremen) than employees represented by Local 84 or that it is more efficient or economical for the Employer to have one group of employees per- form the disputed work rather than the other. We therefore find this factor inconclusive in making our determination. 4. Effect on employment No evidence was presented at the hearing as to the effect on employment, if any, of an award of the disputed work either to employees represented by Local 84 or to those represented by Local 44. Ac- cordingly , we give no weight to this factor in award- ing the work in dispute. 5. Employer preference The record clearly establishes that the Employer would prefer to assign the disputed work to employ- ees represented by Local 44. This factor, while not determinative , tends to favor an award of the work to employees represented by that Local. Conclusion Upon the record as a whole, and after full consid- eration of all relevant factors involved, we conclude that the A C and S employees who are represented by Local 44 are entitled to perform the work in dis- pute. We reach this conclusion upon the basis of the Employer's status as an "outside contractor" vis-a- vis Local 84, Employer, and area practice, and the Employer's preference. Accordingly, we shall de- termine the dispute before us by awarding the disput- ed work at the Columbus and Southern Ohio Electric Company jobsite, Conesville, Coshocton County, Ohio, to the Employer's employees represented by Local 44, but not to that Union or its members. 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: 1. Employees employed by A C and S, Inc., who are represented by International Association of Heat and Frost Insulators and Asbestos Workers, Local No. 44, AFL-CIO, are entitled to perform the work of mechanic (job foreman) for A C and S, Inc., at the Columbus and Southern Ohio Electric Company Conesville Generating Station worksite, Conesville, Coshocton County, Ohio. 2. International Association of Heat and Frost In- sulators and Asbestos Workers, Local No. 84, AFL- CIO, is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require A C and S, Inc., to assign any such disputed work to employees who are represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Associ- ation of Heat and Frost Insulators and Asbestos Workers, Local No. 84, AFL-CIO, shall notify the Regional Director for Region 8, in writing, whether it will refrain from forcing or requiring the Employer, by means proscribed in Section 8(b)(4)(D), to assign the work in dispute to employees represented by that labor organization rather than to employees repre- sented by Local 44.