International Association Of Bridge, Structural And Ornamental Iron Workers, Local No 55, Afl-Cio

National Labor Relations Board - Board Decisions

Dec 20, 1988

292 N.L.R.B. 28 (N.L.R.B. 1988)

28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International Association of Bridge, Structural and
Ornamental Iron Workers , Local No 55, AFL-
CIO and The Lathrop Company Case 8-CD-
415
December 20, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 30, 1985, the National Labor Re-
lations Board issued a Decision and Determination
of Dispute in Case 8-CD-408 1 On March 25,
1986, the Regional Director for Region 8 issued a
complaint and notice of hearing alleging that the
Respondent, International Association of Bridge,
Structural and Ornamental Iron Workers, Local
No 55, AFL-CIO (Iron Workers), violated Sec
tion 8(b)(4)(n)(D) of the National Labor Relations
Act Subsequently, Iron Workers filed an answer
admitting in part and denying in part the allega
tions of the complaint, submitting affirmative de
fenses, and requesting that the complaint be dis
missed
On May 30, 1986, the General Counsel filed a
Motion for Summary Judgment and supporting
brief with exhibits attached The General Counsel
contends that by filing a grievance against the
Charging Party, the Lathrop Company (Lathrop),
and a suit to compel arbitration of the grievance,
and by maintaining the grievance and suit after the
Board awarded the disputed work to Christen's
employees represented by Sheet Metal Workers,
Iron Workers violated Section 8(b)(4)(ii)(D) of the
Act The General Counsel also argues that the
pleadings raise no issues of fact requiring a hearing
On June 10, 1986, the Board issued an order trans-
ferring the proceeding to the Board and a Notice
to Show Cause why the motion should not be
granted Iron Workers filed a response opposing
the General Counsels motion and contending that
the filing of a grievance to enforce a contractual
subcontracting clause and the maintenance of the
grievance and suit to compel arbitration of the
grievance in the face of a 10(k) determination is not
an unfair labor practice Lathrop filed a memoran
dum in support of the General Counsel's motion
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three-
member panel
1 276 NLRB 1200 (1985) The Board awarded the disputed work to
employees of Fred Christen & Sons Company (Christen) represented by
Sheet Metal Workers International Association Local Union Nos 107
and 6 (Sheet Metal Workers)
For the reasons set forth below, we deny the
General Counsel's Motion for Summary Judgment
and dismiss the complaint 2
Lathrop was the construction manager for work
to be performed for the Whirlpool Corporation
Lathrop employed no employees at the site and its
function was to award contracts for construction
work to the lowest responsible bidder At all rele-
vant times, Lathrop had a collective bargaining
agreement with Iron Workers which required it to
subcontract work to employers who employ Iron
Workers represented employees Nevertheless,
Lathrop awarded siding and decking work to
Christen, which had a collective-bargaining agree-
ment with Sheet Metal Workers and did not use
Iron Workers represented employees
On or about May 21, 1985, Iron Workers re
quested implementation of the grievance proce
dure, alleging that Lathrop violated the subcon
tracting provision of its agreement Lathrop and
Christen filed 8(b)(4)(ii)(D) charges against Iron
Workers for filing the grievance The Regional Di
rector dismissed the charges because the filing of a
grievance alone, without picketing or threat of
picketing, does not constitute force or coercion
within the meaning of Section 8(b)(4)(D)
On learning of the grievance, Sheet Metal Work-
ers threatened to picket if Lathrop reawarded the
contract On June 3, 1985, Lathrop filed an
8(b)(4)(D) charge against Sheet Metal Workers in
Case 8-CD-408 A 10(k) hearing was held based
on the charge against Sheet Metal Workers The
Board found reasonable cause to believe that Sheet
Metal Workers' threat to picket violated Section
8(b)(4)(D) and awarded the work to employees of
Christen represented by Sheet Metal Workers
On August 13, 1985, before the issuance of the
Board s 10(k) determination, Iron Workers filed
suit in district court to compel Lathrop to arbitrate
the May grievance
On March 25, 1986, the General Counsel issued
the instant complaint alleging that by filing the
grievance and the suit to compel arbitration of the
grievance, and by maintaining the grievance and
the suit since August 13, 1985, Iron Workers had
violated Section 8(b)(4)(u)(D) of the Act Iron
Workers admits that it filed and maintained the
grievance and suit, but denies that this is a viola
tion of the Act
2 Contrary to her colleagues Member Cracraft would remand this case
in order to determine what remedy the Respondent is seeking by invok
mg the grievance procedure and filing the suit in district court to compel
arbitration of the grievance Thus at this point in the proceeding she
finds it unnecessary to pass on Carpenters Local 33 (Blount Bros) 289
NLRB 1482 (1988) a case in which she did not participate
292 NLRB No 7
IRON WORKERS LOCAL 55 (LATHROP CO)
The facts of the instant matter closely parallel
those of Blount Bros 3 in which we found that a
union could lawfully file and pursue a grievance
against an employer for breach of contract in cir
cumstances where there was no conflict between
the contract claim and the 10(k) determination
Blount , the general contractor for a construction
project , was signatory to an agreement with Local
33 which provided that Local 33 would perform
all scaffold erecting work for the project The
agreement also provided that Blount would not
subcontract any work covered by the agreement to
an employer not having a contract with Local 33
Blount, however, subcontracted masonry work to
Anastasi whose employees were not represented by
Local 33 Anastasi employees erected the scaffold
ing for the masonry work Local 33 filed a griev
ance against Blount for violation of the agreement's
subcontracting clause and subsequently demanded
arbitration Thereafter, 10(k) proceedings were ini-
tiated on behalf of Blount where it was claimed
that Local 33 had stopped working on the project
in violation of Section 8(b)(4)(D) The Board
awarded the disputed work to Anastasi's employ-
ees, but Local 33 maintained its breach of contract
claim against Blount
The General Counsel issued a complaint alleging
that Local 33 had violated Section 8(b)(4)(ii)(D) by
pursuing its grievance against Blount in contraven
tion of a prior 10(k) determination An administra
tive law judge agreed with the General Counsel
and found that Local 33's arbitration claim was a
mere extension of the work dispute which the
Board had earlier decided in the 10(k) proceeding
The judge further noted that Blount was a neutral
employer with no direct control over the work as-
signment at issue and thus Local 33 had coercively
enmeshed a neutral employer in a work dispute
In reversing the judge, we found as follows
While the Board determined in the 10(k) pro-
ceeding that the employees of Anastasi were
entitled to perform the disputed work, the
3 Carpenters Local 33 (Blount Bros) supra
29
Board did not consider the issue of whether
Blount, in subcontracting this work to Anas-
tasi , thereby had breached its contract with
Local 33 and, if so, whether Local 33 is enti-
tled to a remedy for that breach Thus, we
find that the Board's 10(k) decision precludes
Local 33 from forcing the use of employees it
represents on the disputed scaffolding work,
but does not preclude Local 33 from asserting
its contract rights against Blount, including
possible money damages for breach of con-
tract
(Id at 1484) We further noted that Blount was not
a neutral employer unlawfully enmeshed in a work
dispute because "Blount, while in a contractual re-
lationship with Local 33, had control of the work
which it ultimately subcontracted " Ibid
Similarly, in the instant matter, while the Board
determined in the 10(k) proceeding that the em-
ployees of Christen were entitled to perform the
disputed work, the Board did not consider the issue
of whether Lathrop, in subcontracting this work to
Christen, thereby had breached its contract with
Iron Workers and, if so, whether Iron Workers is
entitled to a remedy for that breach Thus, the
Board's 10(k) determination precludes Iron Work-
ers from forcing the use of Iron Workers represent-
ed employees on the disputed work, but does not
preclude Iron Workers from asserting its contract
rights against Lathrop Furthermore, Lathrop is
not a neutral employer coercively enmeshed in a
work dispute because it had control of the work it
ultimately subcontracted Because Iron Workers'
contract action against Lathrop will have no effect
on Christen's assignment of the disputed work, we
find that the grievance and suit to compel arbitra-
tion do not amount to unlawful coercion Accord-
ingly, we deny the General Counsel's Motion for
Summary Judgment and dismiss the complaint
ORDER
The General Counsel's Motion for Summary
Judgment is denied and the complaint is dismissed