Plumbers Local 597 (Songer Corp.)

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 733 (N.L.R.B. 1992)

733
308 NLRB No. 101
PLUMBERS LOCAL 597 (SONGER CORP.)
1 The judge’s reference to Boilermakers Local 394 is corrected to
Local 374.
2 Sec. 8(b)(1)(B) prohibits unions from restraining or coercing em-
ployers in the employers’ selection of their representatives for the
purpose of collective bargaining or the adjustment of grievances.
3 NLRB v. Electrical Workers IBEW Local 340 (Royal Electric),
481 U.S. 573, 589–590 (1987).
4 Member Oviatt notes that Respondent Local 597 consistently re-
fused to agree to the application of the NMA/Mod in its jurisdiction,
and that there is no evidence that Respondent Local 354 sought to
apply the NMA/Mod to the U.S. Steel project in question. Were it
not for these aspects of the case, Member Oviatt would require addi-
tional, more focused evidence of Songer payments to PEN-WEL,
Inc. (Local 354 Combined Funds), on behalf of the Local 354 mem-
bers working as piping coordinators on the Songer project in ques-
tion, as that evidence is relevant to the question of whether there
was a collective-bargaining agreement between Songer and Local
354.
5 Carpenters District Council of Dayton (Concourse Construction),
296 NLRB 492, 493 (1989).
6 Plumbers Local 198 (Delta Mechanical), 292 NLRB 806, 809
(1989).
7 Concourse Construction, supra, 296 NLRB at 493.
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of
the United States and Canada, and its Locals
No. 597 and No. 354, AFL–CIO–CLC and
Songer Corporation
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of
the United States and Canada, and its Local
No. 597, AFL–CIO–CLC and Songer Corpora-
tion. Cases 6–CB–8200 and 6–CB–8378
August 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 12, 1991, Administrative Law Judge
Peter E. Donnelly issued the attached decision. The
General Counsel and the Charging Party filed excep-
tions and supporting briefs, and the Respondents filed
answering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
We conclude, as discussed below and in agreement
with the judge, that the Respondents did not violate
Section 8(b)(1)(B) of the Act2 by filing internal union
charges, and imposing and affirming fines, against a
piping superintendent and 12 piping coordinators em-
ployed by Charging Party Songer on its U.S. Steel
project in Gary, Indiana. These individuals were dis-
ciplined for violating certain provisions of the Re-
spondent United Association’s constitution (i.e., mem-
bership oath of obligation, travel card requirements,
and prohibitions against working for employers who
do not have collective-bargaining agreements with the
United Association or an affiliated local union). Apply-
ing the Supreme Court’s decision in Royal Electric,3
the judge correctly found that the 8(b)(1)(B) complaint
should be dismissed because (1) the Respondents did
not have a current collective-bargaining relationship
with Songer on the U.S. Steel project, and (2) the Re-
spondents were not seeking to establish one.
1. Absence of a current collective-bargaining
relationship
The most recent collective-bargaining agreement be-
tween Songer and Respondent Local 597 expired in
1982, without renewal. Songer, along with about 13
other industrial contractors and about 14 International
unions, including the UA, is a signatory to the Na-
tional Industrial Maintenance Agreement (NMA). As
discussed more fully below, however, the NMA is ac-
tually applied only on a project-by-project basis, upon
agreement of both the contractor and the International
union involved in that particular project, and only for
the duration of that project. From 1982 until the start
of the events in question in 1988, Local 597 regularly
provided Songer with employees to work on various
projects under the NMA. But beginning with the mid-
1988 industrywide implementation of the Steel Mill
Modification (Mod) to the NMA, Local 597 has re-
fused to provide Songer with any employees to work
on any projects under the NMA/Mod, including the in-
stant July 1989–February 1990 U.S. Steel project. Ac-
cordingly, we find, in agreement with the judge, that
there was no current collective-bargaining relationship
between the Respondents and Songer on the U.S. Steel
project.4
2. The Respondents were not seeking to establish
a collective-bargaining relationship
The remaining question before us is whether the Re-
spondents were seeking to establish a collective-bar-
gaining relationship with Songer on the U.S. Steel
project. In this context, ‘‘seek[ing] to establish’’ a col-
lective-bargaining relationship is interpreted restric-
tively.5 It means something more specific than a
union’s desire generally to represent employees.6 For
an 8(b)(1)(B) violation to occur in the absence of an
existing collective-bargaining relationship, the evidence
must show that the union has an actual intent, not a
hypothetical or speculative one, to establish a collec-
tive-bargaining relationship with the employer in ques-
tion.7 The evidence must show that the union engaged
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Id. at 494.
9 The Mod provided, inter alia, that on steel mill maintenance, re-
pair, replacememt, renovation, or modernization projects performed
under the NMA, ‘‘wage rates shall be 90% of those set forth in the
current Labor Agreement of the affiliated Local Union where the
work is to be performed together with 100% of the fringe benefits
as recognized in [the NMA].’’
10 Under the NMA Policy Committee’s ‘‘International Participation
Policy’’ in effect at that time, if a union refused to extend the NMA
to a particular project, ‘‘thus forfeiting an opportunity to work under
the program,’’ the contractor involved was advised to assign the
work to ‘‘the next appropriate craft.’’ In the instant case, for exam-
ple, when Local 597 refused to provide pipefitters to Songer to work
under the terms of the Mod, Songer was able to assign the work to
employees represented by the Boilermakers, as ‘‘the next appropriate
craft.’’ If, however, neither an appropriate craft nor the project gen-
eral contractor could provide the manpower needed, the general con-
tractor was ‘‘then advised to award the work to any contractor, non-
union as a last resort.’’
11 On October 24, 1988, Songer filed a grievance with the NMA
Policy Committee over the continued refusal of the UA, in concert
with Local 597, to extend the NMA and the Mod to Songer projects
in Local 597’s geographical jurisdiction. The NMA provides:
(Para. 21) This Agreement shall have application only to work
location[s] agreed upon between the Company and the [UA].
. . . .
(Para. 64) Extensions for this Agreement shall be on a location-
to-location basis and shall be sought for each location.
Songer contended that the UA was in violation of the NMA by
insisting on the right to extend the NMA and the Mod on a project-
by-project basis, rather than on a location-by-location basis as ex-
pressly permitted in the NMA.
On June 27, 1989, the NMA Policy Committee held that although
the language of the NMA provides for extending the agreement on
a location-by-location basis, different international unions had ac-
in specific overt acts, such as picketing or handbilling
for recognition, soliciting authorization cards, or mak-
ing statements to an employer indicating a concrete in-
terest in representing the employer’s employees, as op-
posed to a long-term objective of organizing employ-
ees generally.8
Applying the above standards to the facts discussed
below, we find, consistent with the judge, that the
record fails to establish that the Respondents, or any
of them, engaged in any organizational efforts or other
specific overt acts that would indicate that they had an
actual intent to establish a collective-bargaining rela-
tionship with Songer. Instead, the weight of the evi-
dence discussed below tends to belie the existence of
such an effort or intent.
On April 19, 1988, shortly after the effective date of
the Mod9 to the NMA, Respondent Local 597 notified
Songer as follows:
Local Union #597 takes a very dim view of the
steel industry requesting further sacrifices of its
members through wage, shiftwork, and overtime
concessions. In spite of our holding the line on
wages and making concession [sic] through the
various Project Agreements, we find our sacrifices
have been in vain and have wrought nothing but
requests for more concessions.
Therefore, be advised and have it clearly under-
stood that Local Union #597 has no intention of
working under the auspices of the Steel Mill
Modification to the National Industrial Mainte-
nance Agreement.
According to the uncontradicted testimony of Robert
Hoover, Songer’s vice president for administration,
Local 597’s business manager, Francis X. McCartin,
told Songer officials at a meeting on October 10, 1988,
that he felt that Local 597 had done a responsible job
of holding wages in line, that the Mod was unneces-
sary for Local 597 and its members, that the timing of
the Mod’s implementation was bad, that ‘‘they were
starting to become whole again,’’ and that he felt that
the steel industry was ‘‘basically raping the working
man.’’ McCartin further told the Songer officials that
he ‘‘basically didn’t care’’ if work went to nonunion
contractors, because ‘‘that’s what organizing was
for.’’10
Also, according to Hoover, McCartin told Songer of-
ficials at this meeting that if the UA wanted to
‘‘force’’ the NMA and Mod in Local 597’s area, then
the UA could assign it to the South Bend, Indiana
Plumbers local. McCartin also told the Songer officials
that any contractor who assigned Local 597’s work to
another craft would no longer have an agreement with
Local 597, and that because Songer was using another
craft (the Boilermakers) to perform Local 597’s work,
as of the end of the month (i.e., October 1988) Songer
would no longer have any agreement with Local 597
and Local 597 would no longer accept fringe benefit
payments from Songer for members of Local 597.
A week later, on October 17, Local 597 notified
Songer as follows: ‘‘Be advised that Pipefitter, Local
Union 597, Chicago, Illinois, will not extend recogni-
tion or manpower throughout our jurisdiction to your
firm.’’
A week later, on October 24, Local 597 notified
Songer as follows:
At the meeting held on October 10, 1988, your
Company again reiterated its position that there
was no collective bargaining agreement in effect
between your Company and Local Union 597. At
that meeting we acquiesced to your position and
agreed that effective October 28, 1988 there
would be no collective bargaining agreement in
effect between Songer Corporation and Local
Union 597.
On October 31, Local 597 members stopped work
on all Songer projects being performed under the
NMA. Thereafter, the UA refused to approve Songer’s
requests for extension of the NMA and the Mod to any
of Songer’s projects in Local 597’s geographical juris-
diction, including eventually the instant July 1989–
February 1990 U.S. Steel project at Gary, Indiana.11
735PLUMBERS LOCAL 597 (SONGER CORP.)
ceptably developed various practices limiting or modifying this loca-
tion-by-location extension language, and the UA was not prohibited
from extending the agreement on a project-by-project basis, provided
that it clearly communicated such a practice to employers in advance
and thereafter consistently followed it.
12 Sheet Metal Workers Local 80 (Limbach Co.), 305 NLRB 312
(1991).
13 Member Devaney finds it unnecessary to pass on the applica-
bility of the Board’s Limbach decision to this case because, for the
reasons stated in his dissent in that case, he believes Limbach was
wrongly decided.
The internal union discipline imposed on Songer’s pip-
ing superintendent and coordinators for working on
this Gary project is the basis for the 8(b)(1)(B) allega-
tions here.
Under all the circumstances, as set forth above and
by the judge, we find, in agreement with the judge,
that the record fails to establish that the Respondents
were seeking to establish a collective-bargaining rela-
tionship with Songer on the U.S. Steel project. The
Respondents did not picket, distribute handbills, make
statements of recognitional intent, solicit authorization
cards, or otherwise demonstrate any interest in rep-
resenting employees on the project. On the contrary
Respondent Local 597 disclaimed any interest in rep-
resenting Songer employees working under the aus-
pices of the NMA/Mod, including on the U.S. Steel
project, and specifically expressed its indifference to
whether Songer assigned the work in question to non-
union employees.
Arguing that the instant case is ‘‘very similar’’ to
Limbach Co.,12 the General Counsel contends that Re-
spondent Local 597’s disclaimer should be dismissed
as a sham. We disagree and find Limbach distinguish-
able.13
In that case, the Board held, inter alia, that the re-
spondents violated Section 8(b)(4)(ii)(B) of the Act by
disclaiming interest in continuing to represent the em-
ployer’s employees, with the unlawful object of forc-
ing the employer to pressure a separate sister company
to recognize the respondents. The Board found that the
unions’ disclaimer of interest was not only for an un-
lawful secondary objective but was also not genuine.
The International union’s president there had indicated
that the unions’ disclaimer was motivated at least in
part by their desire to force the unionization of the em-
ployer’s sister company, and that the unions would re-
sume their collective-bargaining relationship with the
employer if the employer’s sister company would rec-
ognize the unions as the representative of its employ-
ees. Thus, the Board stated:
[T]he Respondents’ disclaimer is like many other
actions, such as striking and picketing, which may
be perfectly lawful if taken without a secondary
objective, but which are condemned by the Act if
done for an unlawful secondary purpose. [Id. at
315, footnote omitted.]
In the instant case, unlike in Limbach, we discern no
unlawful objective underlying the Respondents’ dis-
claimer of interest in representing Songer’s employees
under the NMA/Mod within Local 597’s geographical
jurisdiction. The Respondents simply objected to the
concessionary wage and benefit terms of the Mod and
declined to have any collective-bargaining relationship
with an employer like Songer that insisted on applying
the Mod. This does not reflect a secondary objective,
and the General Counsel does not contend that it rep-
resented a bad-faith refusal to apply a binding collec-
tive-bargaining agreement, in violation of Section
8(b)(3). The Respondents’ position is no different in
legal effect from a refusal by a construction industry
union to refer employees from its hiring hall to em-
ployers who decline to pay union scale. In short, just
as Songer exercised its lawful prerogative not to hire
Local 597-represented employees at the Gary steel mill
project and pay them at the rates desired by Local 597,
so the Respondents simply exercised their lawful pre-
rogative not to maintain a collective-bargaining rela-
tionship with Songer at that project.
Nor do we find the disclaimer a ‘‘sham’’ simply be-
cause Local 597 might be interested in representing
employees working for Songer if more favorable eco-
nomic terms were available. As noted above, under
Royal Electric and subsequent cases applying its hold-
ing, evidence of an immediate interest in organizing or
representation is necessary in order to establish the col-
lective-bargaining relationship element of an allegation
of unlawful discipline of 8(b)(1)(B) representatives.
Speculations about the Respondents’ likely conduct to-
wards Songer under different circumstances in the fu-
ture do not suffice to satisfy the Royal Electric require-
ment that there be a current recognitional objective.
Accordingly, for all the above reasons, we conclude
that the Respondents’ filing of internal union charges,
and imposing and affirming fines, against Songer’s
piping superintendent and piping coordinators did not
violate Section 8(b)(1)(B) of the Act as alleged.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Clifford E. Spungen, Esq., for the General Counsel.
Collins P. Whitfield, Esq., of Chicago, Illinois, for Respond-
ent Local 597.
Robert Matisoff, Esq. and Robert J. Henry, Esq., for Re-
spondents United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, and its Local No. 354.
Jeffrey E. Beeson, Esq., of Chicago, Illinois, for the Charging
Party.
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The NMA incorporating the Mod for steel mill work is referred
to herein as NMA-Mod.
2 All dates refer to 1989 unless otherwise indicated.
3 In years past, Songer and Local 597 had been signatories to var-
ious collective-bargaining agreements, but the last of these expired
in 1982. Since that time, there has been no formal collective-bar-
gaining relationship between Songer and Local 597 although until
the time of the present dispute in 1988, Local 597 had provided
members to work for Songer within its jurisdiction, including work
under the NMA, for U.S. Steel work at Gary, Indiana. Songer also
had made the appropriate fringe benefits payments on behalf of
Local 597.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. On
charges filed by Songer Corporation (Charging Party, Em-
ployer, or Songer) the Regional Director issued a complaint
on November 8, 1990, and subsequently a consolidated
amended complaint on April 1, 1991, alleging that Respond-
ent, United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United States
and Canada, and its Locals Nos. 597 and 354, AFL–CIO,
CLC (respectively UA, Local 597, and Local 354), violated
Section 8(b)(1)(B) of the Act by filing internal union
charges, fining, and affirming those fines against 13 super-
visor-members employed by Songer. Answers were timely
filed by Respondents. A hearing was held on July 9, 10, and
11 and August 5, 1991. Briefs have been timely filed by all
parties which have been duly considered.
I. EMPLOYER
The Employer is a Pennsylvania corporation engaged as a
contractor in the industry. During the 12-month period end-
ing May 31, 1990, the Employer, in the course and conduct
of its business operations, performed services valued in ex-
cess of $50,000 in States other than the Commonwealth of
Pennsylvania and purchased and received at its Pennsylvania
facilities products valued in excess of $50,000 directly from
points located outside the Commonwealth of Pennsylvania.
The complaint alleges, the answer admits, and I find, that the
Employer is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATIONS
The complaint alleges, the answer admits, and I find that
the Respondents are all labor organizations within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Songer, a construction contractor, is primarily involved in
the repair, maintenance, and modernization of facilities in the
steel industry. Songer is a union contractor, i.e., all of its
projects are manned by union labor. Songer is also a member
of the National Maintenance Agreement Policy Committee
Inc. (Committee), an organization comprised of 14 Inter-
national Unions, including the UA, and 14 industrial contrac-
tors. The Committee developed what is known as the Na-
tional Industrial Maintenance Agreement (NMA) establishing
common terms and conditions of employment, including pay
rates. All 14 building trades International Unions are signato-
ries, including the UA. The Steel Mill Modification (Mod)
to the NMA was adopted by the Committee’s labor section,
including the UA, in early 1988.1 The Mod was an effort to
make the NMA more attractive to steel mill owners so as to
retain the construction work in the steel industry for contrac-
tors using union crafts. The Mod had the effect of sub-
stituting the provisions of the Mod for provisions in local
contracts on steel industry projects. The key provision, and
the subject of controversy within the UA, was a provision in
the Mod that wage rates for construction work on steel mill
projects ‘‘shall be 90% of those set forth in the current Labor
Agreement of the affiliated Local Union where the work is
to be performed.’’ The Mod also provided that disputes aris-
ing under the Mod would be resolved by the Committee.
In July 1989,2 Songer contracted with U.S. Steel for the
repair and renovation of blast furnaces Nos. 13 and 4 at
Gary, Indiana. The contract contemplated a shutdown of No.
13 for 12 days and intense around-the-clock work by Songer
so as to minimize the downtime of that large capacity fur-
nace. The work on No. 4 was to start sometime later and be
accomplished on a normal schedule.
Under the terms of Songer’s bid for the work, the work
was required to be performed under the terms of the NMA-
Mod. Procedures under the NMA-Mod provide that before
the NMA-Mod can be extended to a project, the contractor
must request from the International Union an extension of
the NMA-Mod to that project. Songer made this request by
letter to the UA dated June 29. The request was denied by
the UA by letter dated July 19, despite the fact that it was
a signatory to the NMA-Mod. The apparent reason for the
UA denying the request was the fact that UA Local 597,
within whose geographical jurisdiction the work was to be
performed, opposed the Mod, notably because of the 10-per-
cent wage reduction provided therein. Local 597 had already
indicated that it would not provide manpower for steel mill
projects under the NMA-Mod. Thus Local 597 had pre-
viously made clear its opposition by letter dated April 19,
1988, from Business Manager Francis X. McCartin to Songer
wherein McCartin recites the financial sacrifices previously
made by members of Local 597 and concludes:
With these facts set forth, Local Union #597 takes
a very dim view of the steel industry requesting further
sacrifices of its members through wage, shiftwork, and
overtime concessions. In spite of our holding the line
on wages and making concession through the various
Project Agreements, we find our sacrifices have been in
vain and have wrought nothing but requests for more
concessions.
Therefore, be advised and have it clearly understood
that Local Union #597 has no intention of working
under the auspices of the Steel Mill Modification to the
National Industrial Maintenance Agreement.
This created a problem for Songer. It was obliged under
its bid and the NMA-Mod to use UA pipefitters but Local
597 was refusing to provide them.3 How, then, was Songer
to man the job with pipefitters at Gary? This problem was
brought to the attention of the Committee and it was the de-
737PLUMBERS LOCAL 597 (SONGER CORP.)
4 Some types of work were also performed by Millwright, Iron
Worker, and Laborer crafts signatories to the NMA-Mod agreement.
5 More piping coordinators were employed on the blast furnace
No. 13 project than normal because of the short 12-day downtime
available to complete the job. In addition, it appears that the job was
complex and that the skill level of the Boilermakers performing the
pipefitter work was lower and closer supervision was desirable.
6 The UA constitution provides that members leaving the geo-
graphical jurisdiction of their own Locals to work within the geo-
graphical jurisdiction of other UA Locals must deposit travel cards
with that Local to show that they are UA members in good standing.
7 Secs. 159 and 200(a) and (b) of the UA constitution.
cision of the Committee that the work be done by the closest
allied craft under the Committee’s International Participation
policy. This decision was reached as set out by memo dated
September 15, from Independent Secretary of the Committee,
Noel C. Brock, and it reads in pertinent part:
The following constitutes an official action of the
National Maintenance Agreements Policy Committee:
llllllllllllllllllllll
Bulletin No. I - 9-89-1 - National Maintenance Agree-
ment
Subject: Article I - Recognition
Non-Participation in the National Maintenance
Agreement Program
The Committee was requested to review and clarify
its policy for instances where a non-signatory Union, or
Unions, refuse to extend the National Maintenance
Agreement to specific projects.
CONCLUSION
The Committee outlined the policy that has been fol-
lowed for the past sixteen (16) years under the [NMA]
Program:
a. The affected local is requested to work under the
same terms and conditions as other crafts working
under the terms of the National Maintenance Agree-
ments.
b. When the local refuses to cover the work under
the agreement, the contractor is advised to assign the
work to the next appropriate craft.
So it came to pass that ‘‘next appropriate craft’’ was Boil-
ermakers from Local 394, Boilermakers International Union.
Members of Local 394 were employed to do the work that
normally would have been done by members of Local 597
of the UA at the No. 13 blast furnace project.4
Songer also employed and assigned to the No. 13 blast
furnace job 12 individuals designated as piping coordinators,
and 2 designated as piping superintendents to supervise the
pipefitter work being performed by boilermakers. These indi-
viduals were members of Local Unions 354 and 449 of the
UA.5
The piping coordinators were assigned various defined
areas of work responsibility during the No. 13 blast furnace
renovation. Once the work began, the record discloses that
the piping coordinators had full authority and overall respon-
sibility for the entire project in their assigned areas. They re-
ported to a piping supervisor who, in turn, was responsible
to the general piping superintendent. Songer employed six
piping coordinators on the day shift and five on the night
shift, along with one piping superintendent on each shift.
Both the piping coordinators and the piping superintendents
had the authority to discipline, assign, and transfer employ-
ees. They had the authority to adjust work grievances and
often did so although some worksite problems were resolved
by lower level general foremen or foremen under their super-
vision. The piping coordinators normally did not work but
spent their time directing the activities of the work force per-
forming the pipefitter work.
On the completion of the work at blast furnace No. 13, the
piping coordinators and Piping Superintendent Joseph
Kilkeary moved to blast furnace No. 4. While working there,
internal union charges were filed on September 5, by Local
597 against 13 individuals, 12 piping coordinators, and pip-
ing Superintendent Kilkeary, charging them with violating
the UA constitution by failing to deposit travel cards with
Local 597 when they began working within the geographical
jurisdiction of Local 597 at Gary.6 A hearing was scheduled
on these charges in Local 597’s offices in Chicago, Illinois,
but none of those charged appeared. On October 3, each of
the 13 individuals were fined $500. These fines were ap-
pealed to the UA on October 18. It was not until July 10,
1990, that the 13 individuals were advised that their appeals
would be heard on August 8, 1990. Over their request for
a postponement, a hearing was held on August 8, 1990; a re-
port thereon issued on September 27, 1990. Their appeal was
officially denied by the UA and their fines approved on Jan-
uary 7, 1991.
Other charges, alleging that the same supervisor-members
violated their UA pledge by working for a nonunion con-
tractor on work within UA’s jurisdiction7 were filed by
Local 597 on September 11 and referred to the home Locals
of the supervisor-members, i.e., Locals 354 and 449. Local
354 processed the charges relating to their members, held a
hearing on October 27, 1989, at which each of its member-
supervisors were found guilty and each fined $5000. Those
fines were appealed to the UA. A hearing thereon was held
and the fines were upheld by the UA’s general executive
Board, and the members were so advised by letter dated May
9, 1990.
Local 449 refused to accept the charges, whereupon the
UA appointed a hearing officer and the members were tried
and found guilty of the charges and fined $5000 each by the
UA.
B. Analysis and Recommendations
General Counsel and Charging Party contend that by filing
internal union charges and affirming those fines against su-
pervisor-members employed by Songer, Respondents have
violated Section 8(b)(1)(B) of the Act.
It is undisputed that the charges were filed and supervisor-
members fined as alleged in the complaint and described
above. The supervisor-members were fined for two alleged
infractions, first, for violating the UA constitution by failing
to deposit their travel cards with Local 597 when they began
working within the Local 597’s geographical jurisdiction and,
second, by working for an employer who was not a party to
a UA contract. The issue is whether or not Respondents vio-
lated Section 8(b)(1)(B) by fining the supervisor-members.
Section 8(b)(1)(B) of the Act reads:
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 NLRB v. Electrical Workers Local 340 (Royal Electric), 481 U.S.
573 (1987).
(b) It shall be an unfair labor practice for a labor orga-
nization or its agents—
(1) to restrain or coerce . . . . (B) an employer in
the selection of his representatives for the purposes of
collective bargaining or the adjustment of grievances.
The legislative history leading to the enactment of this sec-
tion discloses that it was written to protect employers by pro-
hibiting unions from forcing on employers, through coercive
action, supervisors who retained an allegiance to the Union,
thereby creating a conflict of loyalties in those supervisors
from which the union could profit. Such a result is not far-
fetched. Where the union is allowed to dictate, through coer-
cion, the selection of supervisors, such supervisors would be
faced with conflicted loyalties to the employer. In the instant
case, argues the General Counsel, the supervisor-members
would retain such an allegiance to Local 597 while at the
same time exercising supervisory responsibilities for Songer.
The Board and courts over the years have wrestled with
the language of Section 8(b)(1)(B) until the Supreme Court
spoke in the Royal Electric case.8 In that case, the Court
held: first, that Section 8(b)(1)(B) prohibits coercion by
union discipline of a supervisor-member only when that su-
pervisor-member is engaged in collective bargaining or
grievance adjustment activity; second, that the phrase ‘‘rep-
resentatives for the purposes of collective bargaining or the
adjustment of grievances’’ meant not all statutory 2(11) su-
pervisors, but only those performing the 8(b)(1)(B) duties of
‘‘collective bargaining or the adjustment of grievances’’;
third, the Supreme Court held that in order for the constraints
of Section 8(b)(1)(B) to apply, it is necessary for there to be
a collective-bargaining relationship between the employer or
the union or that the union be seeking such a collective-bar-
gaining relationship. With respect to this issue, the Supreme
Court held, in Royal Electric:
we find that the absence of a collective-bargaining rela-
tionship between the union and the employer, like the
absence of [Sec.] 8(b)(1)(B) responsibilities in a dis-
ciplined supervisor-member, makes the possibility that
the Union’s discipline of Schoux and Choate will co-
erce Royal and Nutter too attenuated to form the basis
of an unfair labor practice charge.
The Court went on to set out its rationale, stating,
First, the discipline will not affect the manner in
which employer-representatives perform grievance-ad-
justment or collective-bargaining tasks. When a union
has a collective-bargaining relationship with an em-
ployer, it may have an incentive to affect its supervisor-
member’s handling of grievance-adjustment and collec-
tive-bargaining chores. Moreover, union discipline of
employer-representatives for behavior that occurs dur-
ing performance of [Sec.] 8(b(1)(B) duties might ad-
versely affect the future performance of those duties.
. . . . But when a union has no collective bargaining
relationship with an employer, and does not seek to es-
tablish one, both the incentive to affect a supervisor’s
performance and the possibility that an adverse effect
will occur vanish. The union has nothing to gain by in-
terference with the supervisor-member’s loyalty during
grievance adjustment or collective bargaining; nor can
the employer-representative reasonably expect that he
or she will be subject to discipline for the manner in
which those duties are performed in the future. In other
words, the assumption underpinning Florida Power and
ABC—that an adverse effect can occur simply by vir-
tue of the fact that an employer-representative is dis-
ciplined for behavior that occurs during performance of
[Sec.]8(b)(1)(B) tasks—is not applicable when the em-
ployer has no continuing relationship with the Union.
The General Counsel takes the position that since the UA
is a party to the NMA-Mod, therefore Local 597, like all UA
locals, is a subordinate organization and also bound to the
NMA-Mod. However, this is not the case since the Mod
itself contemplates the possibility that the International Union
signatories, including the UA, may reject any extension of
the Mod to any project. Provisions of the Mod itself provide
that contractors shall request permission of the International
for application of the Mod to a project. Obviously, therefore,
the possibility exists that a signatory International Union
could reject the application of the Mod when requested by
a particular contractor for a particular project. When this
happens, the local craft union within whose geographical ju-
risdiction the project falls, has no contractual obligation
under the NMA Mod to provide manpower for the project.
Essentially, participation in the Mod by International Unions,
such as the UA, was optional.
This happened in the instant case, the UA rejected
Songer’s request to extend the Mod to work at the U.S. Steel
project at Gary, Indiana. In these circumstances, even assum-
ing that the UA had the authority to bind Local 597 to the
NMA-Mod, it also had the option of denying Songer’s re-
quest, in which case Local 597 would not be bound by the
NMA-Mod and there would be no collective-bargaining rela-
tionship between Local 597 and Songer. The applicable pro-
cedures under the NMA-Mod contemplate the denial of such
requests by International Unions, by providing, inter alia, for
the work in question to be performed by the next appropriate
craft. In this case, the bulk of the work pursuant to this pol-
icy was assigned by Songer to the boilermakers, whose Local
Union No. 394 manned the job.
Nor does the fact that Local 597 had provided men to
Songer under the NMA without the Mod affect this conclu-
sion. Merely furnishing men for work performed by Songer
within the geographical jurisdiction of Local 597 does not
establish a collective-bargaining relationship for the purposes
of the instant case.
The weakness in the General Counsel’s position is further
illustrated by the fact that none of the work force performing
the pipefitter work were union pipefitters; they were mostly
boilermakers. This being the case, there would be nothing for
Local 597 or the UA to gain by attempting to influence or
interfere with the supervisor-members’ allegiance to Songer
in the collective-bargaining or grievance adjustment proc-
esses since none of those supervised would be members of
Local 597. Without any pipefitters on the job, Local 597
would have no incentive to pressure UA supervisor-members
to adopt prounion positions as to grievances or collective
bargaining. See Royal Electric, supra.
739PLUMBERS LOCAL 597 (SONGER CORP.)
9 In these circumstances, it is unnecessary to decide whether the
13 members of Locals 354 and 449 were supervisors performing
8(b)(1)(B) duties as set out in Royal Electric, since, even assuming
that they are, there would be no 8(b)(1)(B) violation for the reasons
set out above.
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Nor do the facts establish that Local 597 was seeking to
establish any collective-bargaining relationship with Songer.
The last labor agreement between Songer and 597 expired in
1982. There have been no subsequent labor agreements nor
does the evidence show any organizational effort on the part
of Local 597 to seek recognition or a collective-bargaining
relationship. What Local 597 opposes is the Mod. It would
be reasonable to conclude that Local 597 wanted the Mod
and the concomitant 10-percent wage reduction contained
therein eliminated from the NMA-Mod. Therefore, the UA
refused to extend the Mod and Local 597 refused to man the
Songer job at Gary. The supervisor-members were fined in
an effort to pressure Songer to eliminate the Mod. Assuming
this had been accomplished, it is not unreasonable to assume
that Local 597 would have once again referred pipefitters to
man Songer steel mill jobs under the NMA without the Mod
within its geographical jurisdiction. It is likely, in that event,
that a collective-bargaining relationship would resume be-
tween Songer and Local 597. However, this would be the re-
sult, rather than the object, of the fines imposed herein. In
other words, even assuming, as the evidence suggests, that
the fines were imposed for the purpose of bringing pressure
to revoke the Mod, this would not bring the fines within the
concept of coercion necessary to constitute an 8(b)(1)(B) vio-
lation. Whether the revocation of the Mod is a worthy objec-
tive or not, intraunion fines designed to promote such a re-
sult do not constitute 8(b)(1)(B) violations.
In summary, I conclude that the actions of Respondents in
filing charges against and fining supervisor-members9 em-
ployed by Songer did not violate Section 8(b)(1)(B) of the
Act because, when the UA refused to extend the NMA-Mod
to Songer’s U.S. Steel Gary project, as it was privileged to
do, there was no collective-bargaining relationship with the
Respondents for that project nor does the record disclose any
effort to seek such a collective-bargaining relationship.
CONCLUSION OF LAW
Respondent has not engaged in any conduct violative of
the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The complaint is dismissed in its entirety.