Lewis Tree Service, Inc.

National Labor Relations Board - Board Decisions

Aug 10, 1979

244 N.L.R.B. 124 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers, Lo-
cal 1049, AFL-CIO and Lewis Tree Service, Inc.
Case 29-CB-3143
August 10, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLIO
AND TRUESI)AL.E
On April 18, 1979, Administrative Law Judge Wal-
ter H. Maloney, Jr., issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting memorandum of law, and the
Charging Party filed a brief in support of the Admin-
istrative Law Judge's Decision.
Pursuant to the provision of Section 3(b) of the Na-
tional Labor Relations Act, as amended, the National
Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, memoran-
dum, and brief and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as modi-
fied herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified,
and hereby orders that the Respondent, International
Brotherhood of Electrical Workers, Local 1049,
AFL-CIO, Hauppage, New York, its officers, agents,
and representatives, shall:
I. Cease and desist from:
(a) Proposing or executing any contract provision
with Lewis Tree Service, Inc. (Lewis), which condi-
tions the right to obtain or accrue seniority by any
Lewis employee upon membership in the Union.
(b) Insisting to impasse over the inclusion in a col-
lective-bargaining agreement with Lewis of any con-
tract proposal which confers seniority rights or any
I We shall modify the recommended Order to include affirmative remedial
language inadvertently omitted by the Administrative Law Judge. In addi-
tion, we shall substitute the Board's narrow "in any like or related manner"
injunctive language for the broad "in any other manner" injunction recom-
mended by the Administrative Law Judge, because Respondent's violations
of the Act demonstrate neither a proclivity to violate the Act nor a general
disregard for employees' fundamental statutory nghts. See Hickmott Foods.
Inc. 242 NLRB 1357 (1979). Finally, we shall modify the recommended
Order to require that Respondent send signed copies of the notice for volun-
tary posting by Lewis Tree Service, Inc.. to the Regional Director for Region
29, rather than directly to Lewis.
other rights, including bumping rights, upon any indi-
viduals other than line clearance employees employed
by Lewis on the property of the Long Island Lighting
Company, exclusive of maintenance employees, office
clerical employees, and supervisors as defined in the
Act.
(c) Enforcing any contract provision in the 1977
78 or the 1978 79 collective-bargaining agreements
with Lewis which confers seniority rights, including
bumping rights, upon any individuals other than line
clearance employees employed by Lewis on the prop-
erty of the Long Island Lighting Company, exclusive
of maintenance employees, office clerical employees,
and supervisors as defined in the Act.
(d) In any like or related manner refusing to bar-
gain in good faith with Lewis.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify Lewis in writing that Respondent will
not insist on enforcement of the above-described con-
tract provision in the 1977 78 or the 1978 79 collec-
tive-bargaining agreements with Lewis.
(b) Post at its offices and meeting halls copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 29, after being duly signed by Respon-
dent's authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees and members are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure
that such notices are not altered, defaced, or covered
by any other material.
(c) Sign and return to the Regional Director for
Region 29 sufficient copies of the attached notice
marked "Appendix" for posting by Lewis, if willing,
in conspicuous places, including all places where no-
tices to employees are customarily posted.
(d) Notify the Regional Director for Region 29. in
writing, within 20 days from the date of this Order.
what steps Respondent has taken to comply herewith.
2In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Po- ted bh Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE 10 EMPI.OYEI:S AND MEMBERS
POSTED BY ORDER OF THE
NATIONAl. LABOR RELAIIONS BOARD
An Agency of the United States Government
After a hearing at which all parties were permitted to
introduce evidence, the National Labor Relations
244 NLRB No. 21
124
ELECT'RIC WORKERS. I.OCAI 1049
Board has found that we have violated the National
l.abor Relations Act. as amended, and has ordered us
to post this notice.
WI: V\iil. NI insist to impasse during collec-
tive bargaining with Lewis Tree Service. Inc.,
that Lewis Tree Service. Inc.. agree to an 5' pro-
posal which accords seniority rights, including
bumping rights, to any' individuals who are not
employed in the Lewis line clearance bargaining
unit on the Long Island Lighting Company
property.
W'1v Wll . Nor propose or execute any contract
provision with Lewis Tree Service, Inc.. which
conditions the obtaining or accruing of seniority
by any Lewis employee upon membership in the
Union.
Wt: WIl. NOT give effect to any provision in
the 1977-78 or the 1978-79 contract with Lewis
Tree Service, Inc.. which accords seniority rights,
including bumping rights, to any individuals who
are not employed in the Lewis line clearance bar-
gaining unit on the Long Island Lighting Com-
pany property, and Wr' WvI.. notify Lewis Tree
Service. Inc., in writing, of our action in this re-
spect.
WI Wl.L NOT in any like or related manner
refuse to bargain in good faith with Lewis Tree
Service, Inc.
INTERNATIONAI. BROTIIERHOOD OF ELE(C'RI-
('Al. WORKERS, LocAt. 1049, AFL-CIO
DECISION
FINDINGSl OF FACT
I. STAIEMENI OF TIlE CASE
WALTER H. MALONEY, JR., Administrative Law Judge:
This case came on for hearing before me upon an unfair
labor practice complaint' issued by the Acting Regional Di-
rector for Region 29, and amended thereafter, which alleges
that Respondent International Brotherhood of electrical
Workers, Local 1049. AFL CIO (Union or IBEW), vio-
lated Section 8(b)(3) of the Act. More particularly,. the com-
plaint alleges that Respondent, when it engaged in collec-
tive bargaining with Charging Party Lewis Tree Company.
Inc.,. (Lewis) unlawfully insisted to impasse on nonmanda-
I The principal docket entries in this case are as follows:
Charge filed against Respondent by Lewis Tree Service, Inc.. on Decem-
ber 9, 1977: complaint issued by Acting Director. Region 29. on June 20.
1978; Respondent's answer filed on July 12. 1978: amended complaint issued
by Director, Region 29. on September 29. 1978. Respondent's answer to the
amended complaint issued on October 16, 1978: hearing held in Brooklyn.
New York, on November 15, 1978; briefs filed by the General Counsel.
Charging Party. and Respondent with me on January 2. 1979.
2 Respondent admits, and I find, that Lewis Tree Service. Inc.. is a New
York corporation which maintains ts principal place o business at Roches-
tor\ sublects of bargaining, namely whether ith collectle-
hargaining agreemenl should contain a pr'. scotn wlhich
gears seniority to union membership and u, hether the agrec-
ment should contain a property.side seniority clause: i.c..
seniority provision which accords seniority in the l.e i,
bargaining unit to certain employees of its comnpelitor. As-
plundh Tree Expert Co. (Asplundh}. .ewis and Asplundh
perform tree-trimming work for the same property owner.
namely the Long Island Lighting Compan (I.ilco). Re-
spondent claims that the first noted provision was included
by error in an earlier collective-bargaining agreement and
that it should he excused from an' wrongdoing in this re-
gard because, when the error was discovered Respondent
withdrew the proposal in subsequent negotiations .As ibr
propertuwide seniority. Respondent earnestly argues that
this proposal is a mandatory and not a permissive suhject of
hargaining. so it is at liberty to apply economic pressure to
obtain inclusion of the provision in t labor contract. I pon
these contentions, the issues herein were drawn.'
11. I ll- t NI-AIR t.AB(OR RA('I (t S A lil 1)
The Long Island Lighting Company provides electrical
service to the inhabitants of Nassau and Suffolk ('ounties in
Long Island and the fifth ward of Queens Count,. In order
to eliminate interference with its electrical lines due to the
growth of trees and underbrush. Lilco contracts with tree-
trimming companies to remove such growth from ts rights
of way. The extent and scope of these contracts must at an,
given time depend upon the amount of monec a'aillahle to
Lilco for maintenance. Since 1938 and continuing to date.
Lilco has contracted with Asplundh for tree removal. I'ntil
1975. Asplundh had the only contract of this kind on the
entire Lilco right of way. Since about 1938. Asplundh has
maintained collective-bargaining agreements with Respon-
dent which have contained co n entional union-securits anti
seniority clauses.
In 1975. l.ilco attempted to introduce a measure of com-
petition in its maintenance operation and contracted with
Tree Preservation. Inc.. to perform some of its tree-trim-
ming work, thereby relegating Asplundh to perform work
only on a portion of its right-of-way. In organizing a crew
to perform its contract for Lilco. Tree Preservation ob-
tained men from Respondent and signed a collective-hbar-
gaining agreement with Respondent similar to the As-
plundh contract.
In 1977. Tree Preservation lost its contract with ilco and
Lewis succeeded it. When Lewis began performing mainte-
nance work for Lilco in March 1977. it took over some of
the Tree Preservation employees and signed a collective-
bargaining agreement with Respondent. The agreement. ef-
fective from March 1977 until October 1977. contained the
following relevant provisions:
ter. New York. It is engaged in New York. Pennsslvana. Rhode Island. and
elsewhere in the business of tree tnmming. tree remosal. landscaping. and
related work. In the preceding ear in purchased In NeA' York direoll? trl)n
points and places outside the State o, New York gxids and materialls alued
in excess of $50.000. Accordingly. l.evis tree Serm ce. Inc.. engaged In com-
merce within the meaning of Seclion 2(2). 61. and (7) of the .Act Respondent
is a labor organization lthin the meaning ,of Seclion 2(s) of the Act
Corrections to the transcript hase been approsed and ned accordinglx
1 2
I)I(ISIONS ()F NATIONA. I.ABO()R RELATIONS BOARD
Article IX Seniority and a: Ofl
(A) I. The term bargaining unit as it appears in
this agreemIent. shall he definled as that group of mem-
hcrs (of local UInion 1049. I.B.1.W. who share a com-
mon interest in conditions of employment within the
occiupation known as line clearance and whose pri-
marv duties consist of' trimniing and clearing trees and
hrush fromn in and around electrical conductors n the
properit of' the I.ong Island Lighting Company within
the territorial jurisdiction of I.ocal [Union 1049,
I. 1. F. W .
*
(l) When it is necessary to curtail forces in an OCCu-
pational group in a seniority unit, because of lack of'
work, seniority shall govern.
((i) I. Seniority and qualification shall be recog-
nized by the amount of' service on the property of the
l.ong Island l.ighting ompany within the territorial
jurisdiction of' Local 1049. I.B.E.W.
2. The most senior qualified man shall he working
in his highest classification regardless of' contractor.
* . * * *
5. The Union shall, within thirty 30) days following
the date hereoff prepare a seniority list covering em-
ployees in the bargaining unit. Such list shall contain
the employee's name. seniority, and total length of
continuous service on the property .... The status of
an employee entering the bargaining unit after the date
of this Agreement shall be determined in like manner
by the Employer. His name. seniority, and total length
of service shall be added to the seniority list and he
and the union notified ....
7. All promotions and vacancies shall be filled by
the most senior qualified employee having the qualifi-
cation to do the job ....
8. In layoffs and recalls from layoffs. seniority shall
govern ....
9. Whenever two (2) employees have equal senior-
ity, the employee having the greater total length of'
continuous service on the ong Island Lighting Com-
pany's property shall be deemed the senior employee
for all purposes.
10. Notwithstanding anything to the contrary
herein contained, it is hereby agreed by and between
the respective parties hereto, that during the term of'
this contract, seniority for all purposes except for bene-
fits as required under Article XXII(D) "Local Union
1049 Annuity Fund," shall be defined and determined
by the amount of service an employee may have on the
property of the Long Island Lighting Company within
the territorial jurisdiction of Local 1049, I.B.E.W.
Similar provisions were found in the Asplundh and Tree
Preservation contracts.
Lewis employs about 100 men on the Lilco property.
About 60 are engaged in maintenance work not covered by
this I BEW contract and are not in olved in this dispute. In
the sulmmer of 1977 l.ewis had about 40 line clearance em-
plosees who were covered b the March October agree-
ment with Respondent. At that time. Asplundh had about
twice that number perfiOrming line clearance work on the
.ilco property under an IBEW contract.' On August 14.
1977. Iilco notified l.ewis and Asplundh that it was cutting
back on line clearance work and that, eflectie 2 weeks
from the date of notification, each would have to las off 25
percent of its line clearance employees. At that time. IL.eis
employed 40 men doing line clearance work on the l.ilco
property and Asplundh had 80 men.
On August 15, 1977, the Union prepared and gave to
l.ewis a seniority list of its employees showing dates of se-
niority beginning in 1949. It insisted that l.ewis coinpl
with the terms of its contract. which accorded seniority on a
unified basis to all line clearance men working on the ilco
property. regardless of whether the' were l.ewis or As-
plundh employees. Lewis reluctantly complied with this re-
quest and permitted Asplundh employees to bump into its
payroll.' As a result, on August 29. when the layoffs oc-
curred. Lewis did not lay off merely 10 men as originally
contemplated. It laid off 19 men in order to absorb on its
payroll 9 former Asplundh employees who had been laid
off b their employer as a result of the Lilco economs
move. lewis complains that the efftct of displacing nine of
its employees with Asplundh employees greatl damaged
its unemployment compensation rating, increased its costs
because the nine senior former Asplundh employees en-
joyed greater vacation and other benefits than did the ju-
nior men they replaced. and also caused an internal reshuf-
fling of Lewis work crews since senior men are entitled
under the contract to their pick of work locations.
Collective bargaining for a new contract began shortly
after the August layoff. Lewis was determined that it would
never again agree to any seniority provisions which re-
quired it to absorb Asplundh ernployees. while the Union
was equally insistent upon propertywide seniority. Several
meetings were held between l.ewis representatives and Re-
spondent's representatives during the months of September.
October, and November 1977. a few of which were at-
tended by Asplundh representatives. Whenever the senior-
ity issue arose. Lewis told the Union that it did not wish to
become merely a labor broker and that it would not agree
to cross-bumping (or intercompany seniority) provisions in
future contracts.
Although the March 1977 contract expired on October 1,
negotiations on a new contract dragged on into October
and November without any conclusion but without an, in-
terruption of work. By mid-October. the serv ices of a fed-
eral mediator were obtained. but he was not able to resolve
the dispute over cross-bumping. By October 27 Asplundh
had tentatively come to terms with Respondent and had
agreed to a continuation of propertywide seniority. On No-
vember 18 the Union forwarded to Lewis a written pro-
posal which contained a provision for cross-bumping with
' At the lime of the hearing Lewis still had about one-lhird of Lilco's line
clearance work and Asplundh had the other two-thirds o the work.
' No t.esis employees were eligible to bump nto he Asplundh unit be-
cause. by and large. he) were junior n seniority to Asplundh employees.
126
r t
[tl.(1 RIC WO(RKi.RS. LOCAL. 1049
other emploxers working on the I.1Ico propert\ Ile l 1nio
threatened to strike if the agreerment w as not signed hb No-
nembher 23. Bs letter of' No'eemher 22. I e is replied that it
would not agree to the provision for a multiemploer se-
niorit, unit hut would agree to cross-humping except for
foremen and employees in the T I classiicatlion. Ihe
[lnion refused to accede to this request and told .e is that.
it' it did not sign, its members would promptly cease work-
tig. inll. Ieu is wrote to the Union. stating that in light
of the strike threat it would execute the UInion's last pro-
posal. containing the above-quoted definition of bargaining
unit and seniority provisions which read. in pertinent part:
(A) Seniority rating shall be figured upon the terms'
beginning with the initial date of employment within
the seniority unit. Such seniority shall be cumulative
regardless of the contractor or contractors with whom
such seniority has been accumulated. on the property
of the l.ong Island Lighting (Company. within the terri-
torial jurisdiction of Local 1049. I.B.EW.
(2) Except as herein contained. it is the expressed
intention of the parties hereto to allow credit for past
seniority within the seniority unit and such seniority
shall he (the) basis for determining employee benefits
and any employee rights rising under this contract.
(E) When it is necessary to curtail forces in an occu-
pational group in a seniority unit, because of lack of
work. seniority shall govern.
The agreement also contained the definition ol' seniority
unit set forth above as a definition of bargaining unit. In
agreeing to execute the union proposal. Lewis stated that it
was doing so under protest and that it would file unfair
labor practice charges to contest the action of the Union in
threatening to strike in order to obtain inclusion of these
clauses in the agreement.
The contract had a duration of I year and expired Octo-
ber 1. 1978. Lewis filed charges. but before this case came
on for hearing negotiations commenced for another I-year
contract, to begin on October 2. 1978. In 1978 the Union
remained adamant that provisions in the 1977 78 agree-
ment relating to seniority and bumping be retained. In light
of allegations contained in the complaint herein to the ef-
fect that article IX(A)l was per se illegal because it
amounted to a violation of Section 8(a)(3) of the Act. the
Union was amenable to changing that provision during
negotiations for the 1978 79 agreement to read:
The term seniority unit, as it appears in this agree-
ment, shall be defined as that group of employees who
worked for one or more line clearance contractors, and
who share a common interest in conditions of employ-
ment within the occupation known as line clearance
However, the Union was not amenable to any changes in
the concept of seniority or cross-bumping. At the time of
the hearing Lewis was contemplating the execution of a
renewed agreement, under protest, utilizing the definition
set forth immediately above and containing provisions for a
propertywide seniority unit, the legality of which is at issue
in this case.
Analysis and ('onclusions
A. 77 ( hitnoe Delining Seni;rilv t ti in I'rCrn l l ton
The original clause contained in the 1977 78 agreement
betu een the parties was unlaw ful on its face because it con-
ditioned senioity upon union membership. The fact that the
contract also contains a lawful unlon-seulri ts cIIause is no
defense. since the provision in question would preclude a
new employee from accruing seniority because of nonmlem-
bership in the Union during the 30-da period that he is
lawfully entitled to work for Lewis without being a union
member. ocal U'niotn '79 of .Nas'lll ('rCount. \it orA.
Brotherhood of Painters and .lli/t 7r1rac(k. 4 H. ( I(0 i(.ar-
i11 Division of Ihe Masler Painters ,ls ocialonnt Of Xals Sl,-
Suffdl Countives. Inc.). 212 N.RB 615 1 9741. The fact that
Respondent. when faced with defending this pro\ ision in an
unfair labor practice proceeding. was willing to eliminate or
revise this clause and to agree to its revision in tfuture con-
tracts is no defense to a finding of bad-faith bargaining in
causing it to be placed in a contract in the first place. nor is
it a defense to a Board order requiring it to cease and desist
from similar conduct in the future. . , R.B s. %fhsca es -
tlc Mil . Inc.. 339 U.S. 563 (1950).
B. Insisting Lpon a Definition Senioriti 'nit to Include
Enplovees o/'.4 nother Enphnlcer
In the course of collective bargaining. either part! may
insist to impasse. including a resort to economic pressure. in
order to obtain the assent of the other part t any of' its
proposals as long as those proposals relate to wages, hours.
and terms and conditions of employ ment. With respect to
another category of provisions termed nonmandatory sub-
jects, parties are at liberty to include such items in a con-
tract without running afoul of the law as long as the agree-
ment to include such items in a contract without running
afoul of the law as long as the agreement to include them is
wholly voluntary on both sides. However. insistence to im-
passe over such provisions is bad-faith bargaining and is an
unfair labor practice warranting a remedial order by the
Board. Wooster Division of Borg- Warner Corporation .
N.L.R.B.. 356 U.S. 342 (1958).
Respondent argues that there is a long-standing tradition
to the effect that seniority among employees engaged in line
clearance on the Lilco property should be propertywide and
that the Board should honor that tradition as part of the
bargaining history of the parties. The argument is mis-
placed. For 35 years there was only one employer engaged
in tree trimming on the Lilco property. and hence there was
only one bargaining unit of tree trimmers." However. when
other employers came on the property, additional bargain-
' The 1947 contract between Asplundh and the Union. which Respondent
placed In evidence in support of its argument regarding bargaining histor.
covers "all work performed by the Employer [Asplundhl for the Long Island
Lighting Compan) S)stem on Long Island." This pre-Tfil-Hlartle? Agree-
ment equates senioriyS with continuous good standing in the Lnlon This
provision can hardl constitute bargaining histor) n light o the 1947
changes in the Act. Nowhere in this contract. or in an other contracts
executed before 1973. did the Union and Asplundh talk in terms of ans unit
other than a unit composed of Asplundh emplosees
127
I)t'FCISIONS ()1 NATIONAIl I.ABOR RELATIONS BOARI)
ing units came into being so that unitwide seniorit, and
propertswide seniorit no longer amounted to the same
thing. While the Board honors bargaining history, it can
only honor such history as it unfolds within the confines of
a bargaining unit. Respondent cannot rely upon bargaining
history in an Asplundh bargaining unit to impose multi-
employer bargaining upon some other employer who is en-
titled to limit its barganing to the wages, hours, and terms
and conditions of employment of its own employees and
not of' someone else's employees. Respondent also argues
that a provision does not become nonmandatory in charac-
ter simply because it has extra-unit seniority and cross-
bumping provisions at issue in this case. These provisions
have more than extra-unit impact. They confer intraunit
rights upon individuals who are not employed in a bargain-
ing unit whose boundaries define the obligations of the par-
ties herein. and have direct and adverse impact on unit
employees.
There is no dispute that the Union insisted to impasse in
its effort to secure the adoption of the disputed clause, both
by its general bargaining stance and by its repeated threats
to strike Lewis. Respondent's definition of seniority ex-
pands the boundaries of the bargaining unit from one lim-
ited to Lewis' employees to one which includes the employ-
ees of any other employer engaged in line clearance work
on the Lilco property, at least as to the matter of seniority.
since the definition serves to confer upon those employees
contract rights within this unit. It is well settled that the
expansion of a bargaining unit to include other employees
is a permissive but not a mandatory subject of bargaining.
An employer has no statutory obligation to discuss wages,
hours, and terms and conditions of employment relating to
employees other than those employed within a recognized
or certified bargaining unit (even if all of them are its own
employees and not, as here, employees of another em-
ployer). See Shell Oil Company and its divisions Shell Chemi-
cal Company and Shell Development Company. 194 NLRB
988 (1972). and cases cited therein. When a union insists to
impasse upon terms and conditions of employment relating
to employees outside the bargaining unit. it is, in effect,
seeking to expand the bargaining unit, and this end may be
achieved only by voluntary agreement. not by pressure or
threats of pressure. Utility Workers Union of America, AFL-
CIO and its Locals Nos. 111, etc, (Ohio Power Compan.,. 203
NLRB 230 (1973); Local 164, Brotherhood of Painters. Dec-
orators and Paperhangers of America, AFL CIO (A.D.
Cheatham Painting Company), 126 NLRB 997 (1960):
N.L. R.B. v. Southern California Pipe Trades District Council
No. 16, Plumbers, 449 F.2d 668 (4th Cir. 1971). Hence.
when Respondent threatened to strike Lewis and otherwise
demonstrated its adamant insistence on the inclusion of its
proposal relating to the seniority unit, it was attempting to
expand the scope of the bargaining unit and was thereby
engaging in bad-faith bargaining in violation of Section
8(b)(3) of the Act. I so find and conclude.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CON('I.USIONS OF LAW
Respondent. International Brotherhood of Electrical
Workers, Local 1049, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. Lewis Tree Service. Inc.. is an employer engaged in
commerce within the meaning of Section 2(2). (6), and (7)
of' the Act.
3. All line clearance employees employed by Lewis Tree
Service. Inc.. on the property of the Long Island Lighting
Company, exclusive of maintenance employees. office cleri-
cal employees. and supervisors as defined in the Act. consti-
tute a unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material herein. Respondent has been and
is the exclusive representative of employees employed in the
unit described above in Conclusion of Law number 3 for
the purposes of collective bargaining, within the meaning of
Section 9(a) of the Act.
5. By insisting to impasse upon a nonmandatory subject
of bargaining, namely that Lewis Tree Service. Inc.. include
a provision in a collective-bargaining agreement for at se-
niority unit which would grant seniority rights, including
bumping privileges, to employees of another employer who
are employed in a bargaining unit different from that de-
scribed above in Conclusion of Law number 3 and con-
cluding an agreement with Lewis Tree Service. Inc., con-
taining a provision which conditions the right to obtain and
accrue seniority upon membership in the Respondent
Union, Respondent herein violated Section 8(hb)(3) of the
Act.
6. The aforesaid unfair labor practices have a close, inti-
mate, and substantial effect on commerce within the mean-
ing of Section 2(6) of the Act.
Tmi REMFDY
Having found that Respondent has committed certain
unfair labor practices, I will recommend that it be ordered
to cease and desist therefrom and to take other actions de-
signed to effectuate the purposes and policies of the Act. I
will recommend that Respondent be ordered to cease and
desist from insisting upon or executing any contract provi-
sion which conditions the right to obtain or accrue seniority
upon union membership, that it be required to cease and
desist from insisting to impasse on any contract proposal
which confers seniority or bumping rights upon any' persons
other than employees employed in the Lewis bargaining
unit, and that it cease and desist from insisting to impasse
upon any other nonmandatory subjects of bargaining. Lew-
is and Respondent agreed to a 1977 78 contract containing
the seniority-bumping provision as a result of unlawful
pressure brought by Respondent, which contract has ex-
pired by its terms. They have further agreed to a 1978 79
contract containing the same provisions also as a result of
unlawful pressure applied by the Union. I will recommend
an order requiring Respondent to cease recognizing or giv-
ing effect to any rights and privileges which may have ac-
crued to any individual as a result of the inclusion of such
contract provision in the 1977-78 agreement. and to ex-
ecute the 1978 79 agreement without the inclusion of such
provisions. I will also require Respondent to post a notice
informing its members of their rights and of the results in
this case, and to furnish Lewis with a signed copy of that
notice which Lewis may post if it chooses.
IRecommended Order omitted from publication.
128X