North Central Montana Bldg. & Const.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 738 (N.L.R.B. 1974)

738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North Central Montana Building and Construction
Trades Council and Sletten Construction Company.
Case 19-CP-221
December 16, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On May 28, 1974, Administrative Law Judge Joseph
I. Nachman issued the attached Decision in this pro-
ceeding . Thereafter , the Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief.
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 considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings , findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended order.
We agree with the conclusion of the Administrative
Law Judge that Respondent 's threat to picket and its
picketing of the construction site violated Section
8(b)(7)(A) of the Act. Dallas Building and Construction
Trades Council, 164 NLRB 938 ( 1967), enfd . 396 F. 2d
677 (C.A.D.C., 1968). Unlike our dissenting colleague,
we are not persuaded that Respondent 's actions did not
have a recognitional objective . Our colleague interprets
the subcontracting agreement which Respondent
sought as a disclaimer of a recognitional objective. We
do not agree with that interpretation and, in our view,
the proposed subcontracting agreement is, despite its
words disclaiming any recognition object, at best, am-
biguous in its reach of "work which the contractor does
not perform with his own employees ," and thus does
not provide a basis for finding that Respondent was not
seeking recognition by its threat to picket and picket-
ing. Accordingly , we agree with the Administrative
Law Judge that Respondent 's actions were violative of
Section 8(b)(7)(A).
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
North Central Montana Building and Construction
Trades Council, Great Falls, Montana, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
CHAIRMAN MILLER, dissenting:
The Administrative Law Judge found that Respond-
ent Council sent Sletten, the general contractor on a
construction project in Great Falls, Montana, a letter
demanding that Sletten sign an enclosed subcontract-
ing agreement; that Respondent threatened to use all
"lawful means" to protest a refusal to sign the agree-
ment; and that on and after February 7, 1974, Re-
spondent picketed Sletten at its Great Falls project with
signs protesting Sletten's refusal to sign the subcon-
tracting agreement. The Administrative Law Judge
concluded that by this conduct Respondent violated
Section 8(b)(7)(A) of the Act by threatening to picket
and picketing Sletten, with object of forcing or requir-
ing Sletten to recognize and bargain with Respondent
as the collective-bargaining representative of Sletten's
employees at a time when Respondent was not certified
as such representative, but when Sletten had lawfully
recognized other labor organizations as the representa-
tive of its employees.
The Administrative Law Judge found that Sletten
directly employs members of Operating Engineers,
Carpenters, Laborers, Plasterers, Cement Masons,
Teamsters, and Iron Workers, for whom Sletten has
recognized, bargained with, and continued its contracts
with the respective trades locals. The Administrative
Law Judge further found that Sletten does not employ
electricians, plumbers, bricklayers, sheet metal work-
ers, asbestos workers, glaziers, painters, roofers, boiler-
makers, elevator constructors, floor layers, or tileset-
ters, nor does Sletten have contracts with the respective
locals for these trades; rather, when Sletten has work
which requires the services of such trades, such work
is subcontracted to employers that employ members of
such crafts. The contract proposed by the Council for
Sletten's signature denied that the Council seeks
"recognition as the collective-bargaining representa-
tive" of Sletten's employees; by its terms, "applies only
to work which the contractor does not perform with his
own employees, but uniformly subcontracts to other
firms"; and provides that for "the aforesaid work fall-
ing within the normal trade jurisdiction of any or all
unions affiliated with the Council [Sletten] shall con-
tract or subcontract such work only to firms that are
parties to an executed, current collective-bargaining
agreement with any or all unions affiliates with the
Council."
Dallas Building and Construction Trades Council,
164 NLRB 938 (1967), this Board found an 8(b)(7)(A)
violation by a labor council which picketed to obtain a
subcontracting agreement with a general contractor
covering the "construction, alterations, painting and
repairs of any building, structure or other works within
Dallas and the surrounding area," and which contained
limitations on subcontracting with respect to "the
215 NLRB No. 130
NORTH CENTRAL MONTANA BLDG & CONSTR. 739
aforesaid work." Such language was construed as ap-
plying broadly to all subcontracting, including work
normally done by the contractor's employees. Such an
agreement was regarded as having a potentially signifi-
cant effect on the working conditions of the contrac-
tor's employees, since the council's agreement regu-
lated the conditions under which the employer could
and could not subcontract, a matter over which only
properly certified or recognized representatives of the
contractor's employees were entitled to bargain. Under
such circumstances, the contractor is entitled to reject
the demands of unions other than the certified or recog-
nized representative, and I would agree that any picket-
ing to support any such demands is for the purpose of
compelling at least partial recognition of the union
making such improper demands.
But in the instant case, the entire evidence with re-
spect to the Council's recognitional objective is the
wording of the proposed agreement itself. Unlike the
broadly worded language in the council proposal in
Dallas, I note that the wording of the Council proposal
is limited, as Respondent contends, to "work which the
contractor does not perform with his own employees,
but uniformly subcontracts to other firms." There is,
therefore, no possible effect on other employer's own
employees, and the demand cannot be found to be
recognitional, and hence unlawful, in the absence of
any evidence that the clause was intended to or was
implemented in such a way as to achieve a recogni-
tional objective not indicated by the language itself.
There being no such evidence in this record, I would
find that the General Counsel has not met the burden
of proving an improper recognitional motivation.
Consequently, I would not find the 8(b)(7)(A) violation
herein.
DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Administrative Law Judge: This pro-
ceeding, tried before me at Great Falls, Montana, on April
16, 1974, with all parties present and duly represented by
counsel, involves a complaint,' pursuant to Section 10(b) of
the National Labor Relations Act, as amended (herein the
Act), which alleges in substance that since on or about Febru-
ary 7, 1974, North Central Montana Building and Construc-
tion Trades Council (herein Respondent or Council), not
being certified, threatened to picket and picketed Sletten Con-
struction Company (herein Sletten or Company) in support
of its demand that Sletten recognize and bargain with the
Council, Sletten having theretofore recognized and bargained
with other unions, there being then no question concerning
representation, and no 8(a)(2) charge being on file, thereby
violating Section 8(b)(7)(A) of the Act. By answer Respond-
I Issued March 29, 1974 , on a charge filed February 19 and served
February 21, 1974
ent admitted certain allegations of the complaint, and at the
hearing admitted further allegations thereof, but denied the
commission of any unfair labor practice. At the conclusion of
the General Counsel's case, and again at the conclusion of all
the testimony, the General Counsel moved for summary
judgment. The motion is disposed of by this Decision. For
reasons hereafter more fully stated, I find that the evidence
fully sustains the allegations of the complaint, and recom-
mend an appropriate remedial order.
At the teal all parties were afforded full opportunity to
introduce relevant evidence, to examine and cross- examine
witnesses, to argue orally on the record, and to submit briefs
Oral argument was waived Briefs submitted by the General
Counsel and Respondent, respectively, have been duly con-
sidered. On the pleadings and evidence, including the stipula-
tions and admissions of counsel, and the entire record in the
case, I make the following
FINDINGS OF FACT2
Sletten is engaged at Great Falls, Montana, and other
places in the United States, in heavy highway and building
construction , including the construction of a police facility
for the city of Great Falls; the specific project involved in this
proceeding. Through various employer associations, Sletten
has recognized, bargained, and entered into contracts with
locals of Operating Engineers, Carpenters, Laborers, Plaster-
ers and Cement Masons, Teamsters and Iron Workers, each
of whom is a member of Respondent Council. Each of these
contracts is now current and contains provisions relating to
subcontracting. The Company does not have a contract with
electricians, plumbers, bricklayers, sheet metal workers, asbes-
tos workers, glaziers, painters, roofers, boilermakers, eleva-
tor constructors, floor layers or tile setters, each of whom is
a constituent member of the Council. Sletten employs directly
members of Operating Engineers, Carpenters, Laborers, Plas-
terers and Cement Masons, Teamsters, and Iron Workers. It
does not employ members of the other unions above men-
tioned. When Sletten has work which requires the service of
members of other unions, that work is subcontracted to em-
ployers that employ members of such crafts.
For some time it has been the practice to hold a prejob
conference between the award of a particular contract and the
commencement of the work, which is attended by a represen-
tative of the contractor and the business agent of each union
that expects its craftmen to be employed on the job. On most
such occasions an official of the Council is also present. The
contractor identifies the person who will be its project
manager and the superintendent on the job, the work that the
contractor will perform with his own employees, what work
he will subcontract and the name of the subcontractor, as well
as any peculiarities of the specific job. A written memoran-
dum of these facts, plus an addendum showing the names of
all persons in attendance at the meeting and the identity of
the organization they represent, is signed by the representa-
tive of the contractor and Building Trades Council, if he is
present. Company President Sletten admitted that such a
2 No issue of commerce or labor organization is presented The complaint
alleges and the answer admits facts which establish these elements There
being no dispute with respect thereto, I find those facts to be as pleaded
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conference was held with respect to the police facility job, but
the memorandum dealing with that job is not in evidence.
On November 27, 1973, Sletten received an unsigned and
undated letter written on the letterhead of the Council' de-
manding that Sletten sign a contract enclosed with the letter,
which Respondent claimed was intended only to obtain an
agreement permitted by Section 8(e) of the Act. The letter
additionally stated that it was not the purpose of the proposed
agreement that Sletten terminate any existing contractual or
business relationship, nor to force Sletten to recognize or
bargain with the Council, nor did the latter seek to organize
any of Sletten's employees. The letter also stated that if Slet-
ten failed or refused to sign the proposed contract the Council
would use all "lawful menas available to [it] to protest this
refusal." Under date of December 14, 1973, Sletten replied to
the Council's letter, stating that as it had collective-bargain-
ing agreements with constituent members of the Council to
which the Council was not a party, it had no duty to bargain
with the Council, and declined to do so.4
Beginning February 7, 1974, the Council picketed Sletten's
police facility job in Great Falls, Montana, with signs read-
ing:
Sletten Construction Company refuses to sign subcon-
tracting agreement with North Central Montana Build-
ing and Construction Trades Council.'
Contentions and Conclusions
Although the facts seem to indicate a clear violation of
Section 8(b)(7)(A), Respondent argues that its picketing of
Sletten did not violate that section of the Act because it did
not have the proscribed "recognition" object, and was con-
ducted only to preserve its area standards of having all em-
ployers in the industry sign the Council's usual and custom-
ary subcontracting agreement, and with no purpose of
interfering in any way with the relationship between Sletten
and the unions with which it has contracts. Whatever may be
said in support of Respondent's contentions, the question
whether Respondent's conduct violates the statutory provi-
sion involved had been foreclosed by the Board's decisions in
Dallas Building & Construction Trades Council, 164 NLRB
938 (1967), enfd. 396 F.2d 677 (C.A.D.C., 1968), and Lane-
Coos-Curry-Souglas Counties Building and Construction
Trades Council, 165 NLRB 538 (1967), enfd. 415 F.2d 656
(C.A. 9, 1968), where the Board, with subsequent court ap-
proval, considered and rejected each and every contention
advanced by Respondent here, and conluded that conduct
such as that admittedly engaged in by Respondent in the
instant case violates Section 8(b)(7)(A) of the Act.6 Respon-
7 Because Respondent admitted at the trial that if the words "recognize
and bargain" were deleted from paragraph 9 of the complaint, the allega-
tions of the paragraph would be true , and introduced no evidence to chal-
lenge its responsibility for the letter , I find, under all the circumstances, that
the letter was sent by the Council.
4 By letter dated February 13, 1974, attorney for the Council wrote
Sletten that the Union 's demand for a "no subcontracting " clause was lawful
and requested that Sletten sign the proffered contract . The record does not
indicate any further communications between the parties.
5 Although the Council contends that its aforesaid picketing was in all
respects lawful , it voluntarily suspended its picketing on February 22, 1974,
pending determination by the Board of the issues in this case.
dent 's contention that the instant case is factually distinguish-
able from those above cited, I find without merit. To the
extent that some facts may differ, I regard them as a distinc-
tion without a difference.
Accordingly, upon consideration of the entire record, and
for the reasons stated, I find and conclude that Respondent
threatened to picket and picketed Sletten with an object of
seeking recognition and bargaining as the representative of
Sletten's employees, in violation of Section 8(b)(7)(A) of the
Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Sletten is an employer engaged in commerce and in an
industry affecting commerce within the meaning of Sections
2(2),(6), and (7) and 8(b)(7)(A) of the Act.
2. Respondent Council, as well as Local 400, Operating
Engineers , Locals 3243 and 286, Carpenters, Local 273, La-
borers, Local 110, Plasterers and Cement Masons, Joint
Council No. 23, Teamsters and Locals 708 and 815, Iron
Workers, are each labor organizations within the meaning of
Section 2(5) of the Act.
3. By threatening to picket and picketing Sletten, with an
object in both instances of forcing or requiring Sletten to
recognize and bargain with Respondent as the collective-
bargaining representative of Sletten's employees, at a time
when Respondent was not certified as such representative
and Sletten had lawfully recognized the labor organizations
referred to in Conclusions of Law 2 as the collective-bargain-
ing representative of its employees, and a question concerning
representation could not be raised under Section 9(c) of the
Act, Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(b)(7)(A) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent had engaged in certain un-
fair labor practices , it will be recommended that it be required
to cease and desist therefrom and take certain affirmative
action designed and found necessary to effectuate the policies
of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER'
6 As an agent of the Board I am duty bound to follow decisions of the
Board regardless of my own views as to their correctness, until such time
as the Board changes it position, or the Supreme Court holds to the contrary.
S.N.C. Manufacturing Co., Inc., 147 NLRB 809, 821 (1964), and the cases
there cited.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
NORTH CENTRAL MONTANA BLDG. & CONSTR. 741
Respondent, North Central Montana Building and Con-
struction Trades Council, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from picketing, causing to be picketed,
or threatening to picket Sletten Construction Company,
where an object thereof is forcing or requiring said,Employer
to recognize or bargain with North Central Montana Build-
ing and Construction Trades Council as the collective-bar-
gaining representative of Sletten's employees, at a time when
it is not certified as the representative of such employees and
such employees are represented by lawfully recognized labor
organizations, and when no question concerning representa-
tion of such employees may be raised under Section 9(c) of
the Act.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Post at its business office and all places where notices
to its member labor organizations are customarily posted
copies of the attached notice marked "Appendix."8 copies
of said notice, to be furnished by the Regional Director for
Region 19 of the Board (Seattle, Washington), after being
signed by a duly authorized representative, shall be posted by
it immediately upon receipt thereof, in conspicuous places
and be maintained for 60 consecutive days thereafter. Rea-
sonable steps shall be taken by it to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Forthwith mail to the aforesaid Regional Director suffi-
cient signed copies of the aforesaid notice for posting by
Sletten Construction Company, said Employer being willing,
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes
8 In the event that the Board's Order is enforced by a Judgment ,of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
in places where notices to its employees are customarily
posted.
APPENDIX
NOTICE
To ALL MEMBERS OF NORTH CENTRAL MONTANA
BUILDING AND CONSTRUCTION TRADES COUNCIL AND TO ALL
EMPLOYEES OF SLETTEN CONSTRUCTION COMPANY
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to a Decision and Order of the National La-
bor Relations Board, and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT picket or cause to be picketed or
threaten to picket Sletten Construction Company,
where an object thereof is forcing or requiring
Sletten Construction Company to recognize or
bargain with us as the collective-bargaining repre-
sentative of its employees, at a time when we are
not certified as such representative and the em-
ployees of said employer are represented by law-
fully recognized labor organizations, and when no
question concerning representation of the em-
ployees of said employer may be raised under Sec-
tion 9(c) of the Act.
NORTH CENTRAL MONTANA
BUILDING AND CONSTRUCTION
TRADES COUNCIL