Local Union No. 42, Laborers

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 163 (N.L.R.B. 1970)

LOCAL UNION NO 42. LABORERS
Local Union No. 42, Laborers International Union
of North America, AFL-CIO (R & E Asphalt
Service, Inc.) and Local No. 99, Congress of Inde-
pendent Unions. Case 14-CP-121
August 27, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND MCCULLOCH
On November 3, 1969 , Trial Examiner Fannie M.
Boyls issued her Decision in the above-entitled pro-
ceeding, finding that the Respondent had not engaged
in the unfair labor practice conduct alleged in the
complaint and recommending that the complaint be
dismissed in its entirety , as set forth in the attached
Trial Examiner 's Decision . Thereafter , the General
Counsel filed exceptions to the Trial Examiner ' s Deci-
sion and a supporting brief . The Respondent filed
a brief in support of the Trial Examiner 's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three -member
panel.
The Trial Examiner found that the Respondent
did not violate Section 8 (b)(7)(A) of the Act by
picketing a paving site of the Employer on May
6, 1969 , and thereafter . This finding was based on
her conclusion that the Charging Union was not
the lawfully recognized collective-bargaining repre-
sentative for the Employer's employees during the
period when the Respondent was picketing, and thus
the Respondent 's picketing activity was not violative
of 8(b)(7)(A).'
We agree that, under the provisions of Section
8(b)(7)(A), the Respondent was not prohibited from
engaging in this concerted activity . Our determination
rests, however , not on the ground that the Charging
Union 's recognition was unlawful , but on our conclu-
sion that, at the time of the Respondent's picketing,
a question concerning representation could have
appropriately been raised under Section 9(c) of the
Act. We rely on the fact , found by the Trial Examiner,
that the collective-bargaining agreement in effect at
that time between the Employer and the Charging
' Section 8(b)(7)(A) provides, in relevant part , that it shall be an
unfair labor practice for a union to picket or threaten to picket any
employer with an object of forcing an employer to bargain with a labor
organization as the representative of his employees, or forcing the employ-
ees to accept it as their representative "where the employer has lawfully
recognized in accordance with this Act any other labor organization
and a question concerning representation may not appropriately be raised
under Sec 9(c) of the Act
163
Union2 does not purport to cover the type of work
performed by the employees employed by the Employ-
er.' Moreover, the record shows that the contract
was never in fact complied with.' In these circum-
stances, we do not regard the Charging Union's con-
tract with the Employer as one which imparts suffi-
cient stability to the bargaining relationship to justify
finding it a bar to the raising of a question concerning
representation under Section 9(c) of the Acts
Accordingly, we find in agreement with the Trial
Examiner that the Respondent was free to pursue
its picketing activity vis-a-vis this Employer without
violating Section 8(b)(7)(A) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended the National Labor Rela-
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders
that the complaint herein be, and it hereby is, dis-
missed in its entirety.
' This contractual arrangement was in the form of a 1-year memorandum
agreement, signed by the Employer and the Charging Union, which
adopted, for the period from June 7, 1968, to June 7, 1969, the terms
and conditions of a contract executed between the Charging Union
and an employer association known as the Midwest Contractors Associa-
tion, of which the Employer was never a member
' The Employer's workforce consists entirely of unskilled laborers
engaged to perform asphalt paving jobs The contract in question fails
to include any job classification remotely applicable to this type of
work Specifically, the agreement includes job classifications for brick
layers, carpenters, painters, plumbers, plasterers, electricians, sheet metal
workers, roofers, and welders in terms of wages, also, the contract
is not germane The Employer paid most of its employees $4 50 per
hour This is substantially higher than any of the rates required under
the Charging Union's contract These reach a peak in limited instances
of $4 05 per hour
The only evidence of enforcement of or compliance with the contract
was that the Employer had checked off initiation fees and dues for
its employees allegedly pursuant to this agreement, but without written
authorizatons from the employees
' See Silver Lake Nursing Home, 178 NLRB No 71
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FANNIE M BOYLS, Trial Examiner: This case, based
upon a charge filed on May 13, 1969, and a complaint
issued on July 8, 1969, was tried before me at St. Louis,
Missouri, on August 11, 1969. The complaint alleged that
Respondent, Local Union No 42, Laborers International
Union of North America, AFL-CIO, had violated Section
8(b)(7)(A) of the National Labor Relations Act, as amended,
by picketing a construction site of R & E Asphalt Service,
Inc., herein called R & E, on or about May 6, 1969,
and thereafter. Respondent filed an answer in which it
185 NLRB No. 34
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied that it had engaged in the unfair labor practice
alleged. Subsequent to the hearing the General Counsel
filed a brief which has been carefully considered Respondent
filed no brief but did file a motion to correct the official
transcript of the record in a number of respects. The
motion, being unopposed and appearing to have merit,
is hereby granted.
Upon the entire record in this case and from my observa-
tion of the demeanor of the witnesses as they testified,
I make the following:
FINDINGS OF FACT
I R & E'S BUSINESS OPERATIONS
R & E is a Missouri corporation, maintaining its office
and place of business at 10612 Page Boulevard in the
County of St. Louis, in Missouri, where it is and at all
times material herein has been engaged as an asphalt paving
contractor During the year ending December 31, 1968,
which is a representative period, R & E, in the course
and conduct of its business operations, performed services
valued in excess of $50,000, of which services valued in
excess of $50,000 were performed in and for the following
enterprises located in the State of Missouri: American Car
and Foundry Division of ACF Industries, Inc, GEM Inter-
national, Harold R Anderson Construction Co., Continental
Oil Co., and Clark Oil and Refinery Corporation, each
of which annually furnishes services valued in excess of
$50,000 outside the State of Missouri. On the basis of
the above facts, which are admitted, it is found that R
& E is an employer engaged in commerce within the
meaning of Section 2(2),(6),and (7) of the Act and that
it will effectuate the policies of the Act to assert jurisdiction
herein
Ii. THE LABOR ORGANIZATIONS INVOLVED
Local Union No 42, Laborers International Union of
North America, AFL-CIO, herein called Respondent
Union, and Local No 99, Congress of Independent Unions,
herein called the CIU, are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED VIOLATION OF SECTION
8(b)(7)(A) OF THE ACT
A Issues Presented
It is conceded that Respondent Union is not, and was
not on May 6, 1969, when it picketed R & E's construction
operations, the currently certified representative of R &
E's employees.' However, R & E had been a party to
contracts with Respondent Union, the last of which had
a termination date of May 1, 1969 but was to continue
in effect from year to year thereafter in the absence of
a notice of intent to terminate from one of the parties
The General Counsel contends that Respondent Union
had abandoned its contracts with R & E and that the
picketing was in violation of Section 8(b)(7)(A) of the
Act because an object of the picketing was to force or
require R & E to recognize or bargain with Respondent
Union or to force or require R & E's employees to accept
it as their bargaining representative despite the fact that
R & E was then lawfully recognizing another labor organiza-
tion , the CIU, and a question concerning representation
could not then appropriately be raised under Section 9(c)
of the Act. At the hearing, in defense of its picketing,
Respondent Union contended that at the time of the picket-
ing it had a valid, binding collective-bargaining agreement
with R & E covering the employees whose work was
being picketed and that a picket was placed at the jobsite
because R & E had failed to live up to the agreement
by making payments to the Welfare Trust and Pension
Trust and by purchasing Vacation Stamps as required by
the terms of the agreement Respondent Union denied
that R & E was lawfully recognizing the CIU as the
bargaining representative of the employees here in issue.
One question presented is whether Respondent Union
had abandoned its contract with R & E by the time
the picketing occured. If it had not, it follows that R
& E could not then be lawfully recognizing the CIU
But even if Respondent Union had abandoned its contract
with R & E , it does not necessarily follow that its picketing
was in violation of Section 8(b)(7)(A), for even assuming
that an object of the picketing was to force or require
R & E to recognize or bargain with it or R & E's employees
to accept it as their bargaining representative , the question
still exists as to whether R & E was lawfully recognizing
the CIU.
B The Evidentiary Facts
On December 14, 1964 , R & E signed an agreement
with Respondent Union, adopting all the terms of the
1963 to 1966 contract between Respondent Union and
Associated General Contractors of St Louis (herein called
the AGC). Upon the expiration of that contract on May
1, 1966, R & E signed another contract with Respondent
Union which had been negotiated in its behalf by Site
Improvement Association (herein called Site).' The new
contract, by its terms, was to be effective until May 1,
1969, and was to be automatically renewed from year
to year thereafter unless either party at least 60 days
prior to the termination date gave notice of its intent
to terminate, amend, or modify the contract. R & E did
not give any timely notice of its intent to modify or terminate
that agreement.
I The latter contract was signed on R & E's behalf by A J Ahner,
Labor Relations Consultant of the Greater St Louis Paving Contractors
Association , an affiliate of Site , pursuant to specific authorization given
to Abner in a power of attorney executed by R & E's president on
September 19, 1966 R & E at that time was a member of the Greater
St Louis Paving Contractors Association but withdrew from that organiza-
tion about a year later The terms of the contract negotiated between
Respondent Union and Site are identical with those negotiated between
Respondent Union and the AGC, but the record does not disclose what
relation, if any, existed between Site or its affiliates and the AGC
Prior to May 1, 1969, the AGC and Respondent Union negotiated
a new 5-year contract, effective as of May 1, 1969, but the record
does not disclose whether Site and Respondent Union did the same
LOCAL UNION NO 42 LABORERS 165
On June 7, 1968, while its last contract with Respondent
Union was by its terms still in effect, R & E, without
any notice to Respondent Union, entered into a 1-year
memorandum agreement with the CIU purporting to adopt
the terms of the collective -bargaining agreement between
CIU and Midwest Contractors Association. The latter agree-
ment provided that it would be effective from July 18,
1967, to March 1, 1969, and from year to year thereafter
unless either party notified the other within 60 days before
the expiration date of its desire to change the agreement
R & E was never a member of the Midwest Contractors
Association.
Raymond Eberenz, president of R & E, testified that
R & E had never complied with its contracts with Respond-
ent Union to make contributions to the Welfare Trust
Fund and Pension Trust and to issue Vacation Stamps
for the benefit of all its employees covered by the agreement
and that despite a union shop provision in the contract,
none of his approximately eight employees, to his knowledge,
were members of Respondent Union in June 1968. Accord-
ing to Eberenz, a majority of his men in 1968 wanted
to join the CIU, which Eberenz knew represented the
employees of two other paving contractors, and either he
or a brother of one of the workmen contacted Clark Libhart,
business representative of the CIU, about that labor organi-
zation representing R & E's employees. Eberenz could
not remember whether he brought up the subject of represen-
tation by the CIU to his employees or whether they first
mentioned it to him but he testified that all except his
engineer, who belonged to another Union, signed CIU
cards. After signing the agreement with CIU on June
7, 1968, Eberenz started withholding initiation fees and
dues from the paychecks of each employee and transmitting
them to the CIU, although none of these employees had
signed any checkoff card authonzing him to do so.
On May 5, 1969, R & E started a paving job on Argyle
Avenue at a point which happened to be in front of the
residence of T. G. Harvill, one of Respondent Union's
business agents. Harvill, on the following day, after observing
the men and noticing that they were doing the type of
work which came under the jurisdiction of his union and
that they were R & E employees, checked his books and
ascertained that R & E was a party to the 1966 to 1969
contract with his union . He questioned the three workmen
on the job about whether they were members of Respondent
Union and was told that they were not.
It is not clear from the record whether, as R & E
President Eberenz testified , a picket was then placed at
the jobsite or whether, as Respondent Union Business Agent
Harvill indicated , the picket was placed on the job after
a conference on May 6 between Harvill and Eberenz in
Harvill's home.' Such a conference was held in which
Harvill accused Eberenz of having failed for several years
to live up to that part of R & E's contract with Respondent
Union which required R & E to make payments into
the Welfare Fund and Pension Trust and to purchase
' The record does not disclose what legend was printed on the picket
sign, but the sign was described as announcing that the picketing was
for informational purposes
Vacation Stamps for the employees. Eberenz stated that
he was operating under a contract with the CIU and
did not consider himself bound by any contracts with
Respondent Union. R & E's wage rates were also discussed
and Eberenz revealed that he was paying most of his
employees $4 50 an hour.' At one point in the conversation
Harvill warned that R & E might not be able to have
materials delivered to its jobsite. The meeting ended with
an understanding that the parties would meet again on
the following day at the Ramada Inn.
At the Ramada Inn meeting on May 7, Eberenz was
accompanied by CIU's business representative Clark Lib-
hart, and Harvill was accompanied by Respondent Union
Business Agent Pelker and by Cecil Sims, assistant adminis-
trative representative for the Eastern Missouri Laborers
District Council. Eberenz had expected that Harvill would
bring with him the 1966 to 1969 contract with Respondent
Union to which Harvill had referred. Harvill did not bring
a copy of this contract but informed Eberenz that he
could see it at Respondent Union's office.
Thereafter on the same day, Eberenz, accompanied by
his attorney, went to Respondent Union's office and inspect-
ed the 1966 to 1969 contract which Eberenz had authorized
his agent , A. J. Ahner, to sign for him. On the following
day, May 8, Eberenz with the assistance of his attorney,
drafted and mailed to Respondent Union a letter, the
body of which reads as follows:
Please let this serve to advise you that the undersigned
is no longer bound by any contract or agreement
with your local and will not become bound by any
agreement which you may subsequently enter into with
the Associated General Contractors of St. Louis.
We take this position based upon the premise that
the only agreement which we have signed with you
was an agreement for the period 1964-66 as renewed,
changed and amended by your agreement of 1966-
69 negotiated with the Associated General Contractors
of St Louis which latter agreement expired and termi-
nated on May 1, 1969 by reason of notification served
by the parties of the agreement pursuant to Article
Thirteen thereof, therefore at the moment of writing
this letter there is no contract or agreement between
your local and either the Associated General Contrac-
tors of St . Louis or the undersigned.
The purpose of this notice is to advise you that
we will not be bound by any agreement between the
Associated General Contractor of St Louis and your
local and we do not desire to enter into any agreement
with your local directly.
As already noted, R & E had on June 7, 1968, entered
into a memorandum agreement with the CIU, to be effective
until June 7, 1969, agreeing to adopt the provisions of
' This $4 50 rate was substantially higher than any of the rates required
under the CiU contract, which, incidentally did not list job classifications
and rates for employees doing asphalt paving work Although Respondent
Union's basic wage rate (which included 20 cents an hour paid in Vacation
Stamps) was $4 725 an hour , that rate plus the welfare and pension
fringe benefits required under Respondent Union's contract amounted
to $5 07 1/2 an hour The CiU contract did not provide for any such
fringe benefits
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIU's contract with Midwest Contractors Association. The
latter contract was to remain in effect until March 1,
1969, and from year to year thereafter unless either party
gave notice 60 days before the termination date of a desire
to change the contract. One or both of the parties apparently
did give such a notice and thereafter a new contract was
negotiated which by its terms was to be in effect from
July 18, 1969, to March 1, 1971. Eberenz, for R & E,
and Libhart, for the CIU, signed a carbon copy of this
new CIU contract, with the date May 8, 1969, appearing
thereon as the date of execution. Eberenz, while at first
testifying that he signed it on May 8, later testified that
he could not remember when he signed it but that it
was probably signed on May 8. He did not attempt to
explain why he would be signing a new contract with
CIU more than 2 months before the effective date of
the new contract and about a month before the expiration
date of his own memorandum agreement adopting the
old CIU contract
The picketing continued off and on from May 6 to
about June 5, 1969, when it was called off as a result
of Eberenz' agreement to send two of his men down to
Respondent Union's office to pay dues and his agreement
to make Welfare and Pension Fund payments covering
these two men. Two of R & E's employees did thereafter
appear and pay their dues but R & E never complied
with its agreement to pay into the Welfare and Pension
Funds.
The General Counsel, in support of his contention that
Respondent Union had abandoned its contractual relations
with R & E, showed that Respondent Union never made
any attempt to enforce the union security provisions of
either contract; that it appointed no union steward for
R & E's employees; and that prior to May 6, 1969, it
made no effort to collect from R & E the Welfare Fund
and Pension Trust payments required under the terms
of the contracts or to require R & E to purchase Vacation
Stamps as required by the contracts.
Respondent Union sought to justify its inaction by explain-
ing that it had only two business agents in St. Louis
County to service about 500 contractors; most of these,
like R & E, were small contractors having less than 10
employees and were engaged in performing small jobs lasting
only a few hours or few days; it was the practice of
the two business agents to try to service the employees
they represented by talking to them on the job; the small
contractors like R & E were hard to locate on any job
because they moved from one situs to another so frequently;
no union steward was appointed for R & E's operations
because it was assumed that the turnover of R & E's
employees was very great, as was true with other small
contractors; and a steward on one job might not be on
the next job R & E performed. Harvill testified that he
sought to talk to Eberenz on one occasion by going to
the latter's office but found that he was not in. Eberenz
countered with the assertion that his office had been at
the same address for about 12 years where persons having
business with him can and have reached him; that he
has had the same telephone number for about 12 years;
and that he has carried ads in the yellow pages of the
telephone directory. Eberenz further testified that during
the last 4 or 5 years he has had a number of jobs lasting
for at least as long as a month an that one lasted about
9 months. He testified, moreover, that most of his employees
have been in his employ for a number of years.
C. Analysis and Conclusions
Aside from some vague hope that an employer who
signs a collective-bargaining agreement will live up to its
terms and thereby contribute to the maintenance of an
areawide standard of wages and working conditions, one
wonders why Respondent Union would bother to sign
up a small contractor like R & E if, as it says, it does
not have the personnel or capacity to police and enforce
the terms of its contracts Despite Respondent Union's
failure to appoint a union steward on any of R & E's
jobs and its failure to pursue R & E and insist on it
carrying out its obligations under the contract, I am not
persuaded that Respondent Union ever intended to abandon
its contractual relations with R & E. It is quite believable,
as Harvill testified, that if he had stumbled onto R &
E's men at work prior to May 6 , 1969, he would have
taken the same kind of action he took on May 6 and
thereafter to try to induce R & E to comply with its
contractual obligations.
I have no doubt that the prolonged period of dormancy
by Respondent Union in servicing R & E's employees
might properly have precluded Respondent Union from
asserting its contracts as a bar to a representation petition.'
Nevertheless , it does not necessarily follow that Respondent
Union's picketing , even if it had as an object the forcing
of R & E to recognize or bargain with it for the forcing
of R & E 's employees to select it as their bargaining
representative , constituted a violation of Section 8(b)(7)(A)
of the Act.
In my view, such a violation has not been established
because the General Counsel has not sustained his burden
of proving that R & E was lawfully recognizing another
labor organization during the period of the picketing. Nei-
ther any CIU representative or any employee was called
to testify regarding the circumstances under which the
CIU became the bargaining representative of R & E's
employees . Although R & E President Eberenz testified
that all his employees signed CIU cards before he entered
into contractual relations with the CIU, no cards were
introduced to substantiate his testimony . I am convinced
upon the entire record that the employees were mere pawns
in his hands; that Eberenz , in signing the contract with
the CIU on June 7, 1968, was acting in his own self
interest, hoping to relieve himself of a continuing liability
for welfare , pension and vacation benefits under Respondent
Union 's contract , and not pursuant to any desire expressed
by his employees for a change in their bargaining representa-
tive . The following circumstances support this conclusion:
Eberenz testified that he could not remember whether it
was he or his employees who first brought up the subject
' See Local 1098, International Hod Carriers (Bernard Card & Sons,
Inc), 140 NLRB 1147, and SchaeferBody, Inc., 85 NLRB 195
LOCAL UNION NO. 42 LABORERS
of representation by the CIU and whether it was he or
someone else who first got in touch with the CIU about
representing his employees. I am convinced from Eberenz'
equivocal testimony that it was he who did so. The CIU
master contract which R & E adopted for its employees
did not purport to cover the type of work being performed
by R & E's employees, did not provide for any wage
rate as high as that R & E employees were already receiving
and provided for none of the fringe benefits to which
those employees were already entitled under Respondent
Union's contract, thus making it highly improbable that
they would voluntarily choose representation by the CIU
rather than by Respondent Union. Moreover, no evidence
was adduced as to any attempts by the CIU to persuade
employees that membership in that union would benefit
them in any way. Significant, too, is the fact that R &
E, immediately upon signing the agreement with CIU,
and without any written authorization from its employees,
began withholding initiation fees and dues from their pay-
checks and transmitting them to the CIU, in violation
of Section 302 of the Labor Management Relations Act.
This unlawful assistance to the CIU was still continuing
at the date of the hearing and in my view, that, without
more, would preclude a finding that R & E was lawfully
167
recognizing the CIU following R & E's premature renewal
of its contract with CIU on May 8, 1969 (if, indeed,
it was renewed on that date).'
Since a preponderance of the evidence does not show
that R & E was lawfully recognizing the CIU during
the period when Respondent Union was picketing its jobsite,
I find no support in the record for a finding that Respondent
Union has violated Section 8(b)(7)(A) of the Act.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act,
there is hereby issued the following:
RECOMMENDED ORDER
The complaint herein is hereby dismissed in its entirety.
' I note, incidentally, that no evidence was adduced to show that
the CIU ever appointed a steward or took any other steps after the
signing of the contracts to represent R & E's employees Since, in
a case of this kind, the burden is on the General Counsel to show
that the employer was lawfully recognizing a union other than the picketing
union and that a question concerning representation could not appropriate-
ly be raised at the time of the picketing, it can reasonably be argued
that the General Counsel, in this respect also, laded to sustain his
burden of proof