Rainbow Security Systems, Inc.

National Labor Relations Board - Board Decisions

Jul 14, 1980

250 N.L.R.B. 610 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Steelworkers of America, Local 12970 and
Rainbow Security Systems, Inc. and Nitec
Paper Corporation. Case 3-CD-517
July 14, 1980
DECISION AND ORDER QUASHING
NOTICE OF HEARING
BY MlMBI;RS JENKINS, PINFI.1O, AND
TRUI:SDAI.-
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Rainbow Security Systems,
Inc., herein called Rainbow, on November 15,
1979, alleging that United Steelworkers of Amer-
ica, Local 12970, herein called Steelworkers, had
violated Section 8(b)(4)(D) of the Act by engaging
in certain proscribed activities with an object of
forcing or requiring Nitec Paper Construction,
herein called Nitec, to assign certain work to em-
ployees represented by Steelworkers rather than to
the unrepresented guards of Rainbow.'
Pursuant to notice, a hearing was held before
Hearing Officer Reva W. Betha on January 14, 16,
and 17, 1980. All parties appeared at the hearing
and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to
adduce evidence bearing on the issues. Thereafter,
Rainbow, Steelworkers, and Nitec filed briefs.
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 reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
I. THE BUSINESS OF ITHE EMPLOYERS
The parties stipulated, and we find, that Nitec is
a New York corporation having its principal place
of business at 4001 Packard Road, Niagara Falls,
New York, where it is engaged in the manufacture
of paper products. During the 12 months preceding
the hearing, Nitec purchased from points located
outside New York State, and received delivery at
its 4001 Packard Road, Niagara Falls, New York,
location, materials valued in excess of $50,000.
The parties stipulated, and we find, that Rain-
bow is a New York corporation having its princi-
pal place of business at 717 Main Street, Niagara
i 'jarnllca Io1, a R;ainho, temploycc alssigncd lo0 ork at Nilec, 'ras
pcrnillted to nltr\'llCe al thi hearing onl hchalf of Ihe Inrcprc.elllcd
(,uard, of Rainhow Securil. Syutenr , Inc
Falls, New York, where it is engaged in providing
security services. During the 12 months preceding
the hearing, Rainbow provided services for Nitec
for an amount in excess of $50,000. During the
same period, Rainbow purchased and received de-
livery at its 717 Main Street, Niagara Falls, New
York, place of business materials valued in excess
of $10,000, such as uniforms, which originated out-
side the State of New York. Accordingly, we find
the Employers are engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
that it will effectuate the purposes of the Act to
assert jursidiction herein.
I1. THE. I.ABOR ORGANIZA I ION INVOI.VED
The parties stipulated, and we find, that Steel-
workers is a labor organization within the meaning
of Section 2(5) of the Act.
111. THE I)ISPUITE
A. Background and Facts of the Dispute
At all times since Nitec began operating the Ni-
agara Falls mill complex in 1974, it has had a col-
lective-bargaining relationship with Steelworkers
covering its production and maintenance employ-
ees.2 For approximately the past 5 years, Nitec has
had successive 1-year contracts with Rainbow for
the performance of security services at its Niagara
Falls location. Their most recent contract was ex-
ecuted August 1, 1979. Pursuant to that agreement,
Rainbow had provided Nitec with about 24 secu-
rity guards and 28 mobile inspections per week.
Rainbow's guards wear uniforms, but are un-
armed. There are no educational prerequisites for
being hired by Rainbow as a guard, but after hire
the guards are given a 12-hour training course,
taught by a local college professor.
Nitec has its own fire brigade and a fire chief
who are members of the bargaining unit represent-
ed by Steelworkers. The fire brigade members per-
form various bargaining unit jobs, and are called
upon to extinguish fires whenever they occur. The
fire chief performs no production work, but instead
maintains the sprinkler system, fire extinguishers,
and various hoses throughout the mills, and trains
the fire brigade in extinguishing fires.
At the time of the hearing, Rainbow supplied
Nitec with four guards on each shift. One of the
guards was stationed at the front gate, and one at
the back gate, of the No. 1 mill; one was temporar-
ily assigned to the No. 2 and No. 3 mills; and one
was a roving guard. The roving guard started at
- Nltc',, prcdecc,,or. , Ccllu Product ,,. Ic., and Kimberly Clark Clor-
poattorln also had colleclivc-h; rg;,tnlng relationlhips with the prcdecc',-
sor olI Stlclworkcrs
250 NLRB No. 106
UtNITII) ST't'I.WORKFRS O)F AMF'RICA
the front gate, walked through all of the mills to
the back gate, and then replaced the guard at the
back gate. The latter guard then became a roving
guard, made a round through the mills, and then
replaced the guard at the front gate. The roving
guard wore around his neck a cylindrical clock
that contained a tape which advanced with the
time. As he made his rounds, he stopped at each of
52 stations placed around the mills, where he in-
serted a key into the clock which imprinted a
number on the tape. The roving guard made one
complete round per hour, as required by Nitec's in-
surance carrier.
The roving guard watched for fires, safety haz-
ards, vandalism, theft, and employee rule infrac-
tions such as sleeping on the job or being in stor-
age areas without authorization. If he discovered a
fire, he reported it to the front gate guard who
then called the fire chief and notified supervision.
If he discovered any other kind of disturbance, he
reported it by telephone to supervision. It is this
position which is the focus of the present dispute.
In July 1979, Steelworkers and Nitec began ne-
gotiations for a new collective-bargaining agree-
ment. On July 12, 1979, Steelworkers submitted a
"docket" of 32 bargaining proposals. Item 23 read,
"Replace the present security guards with Local
12970 members. Method of Placement to be
Agreed on by the Union and Company." On July
19, Nitec and Steelworkers held their first bargain-
ing session. According to Gus Hein, Nitec's indus-
trial relations manager, Steelworkers representa-
tive, Joseph Sparacio, stated that all 32 issues were
items that the Union had to have and that if he had
to he would "take everybody to the street." Ac-
cording to Sparacio, he said "If we didn't have
these 32 proposals, then we would have to apply
some economic pressure."
Sometime between July 19 and July 31, Nitec of-
fered to grant the Steelworkers what it designated
as the "fire watch," i.e., the work performed by
the roving guard, if Steelworkers would agree to
contractual language which Nitec sought concern-
ing "freezing" employees into certain jobs. Steel-
workers indicated its willingness to accept this
offer, but also that it still had some objections to
the phrasing of the job-freezing language. Both
Hein and James Conti, Steelworkers president, tes-
tified that they felt substantial agreement had been
reached on these issues before the employees
struck at midnight on July 31.
The strike was ratified by a strike vote at a union
meeting on August 1. At this time there were still
10 or 12 bargaining issues unresolved, including
wages, pensions, holidays, job freezing, and the as-
signment of security work. On August 4, the par-
ties met for the first time after the strike began and
reached agreement on some of the outstanding
issues. At this time, Steelworkers agreed to accept,
without significant changes, Nitec's prestrike offer
to grant Steelworkers the fire watch in exchange
for Nitec's proposed language on job freezing. The
parties, however, did not reach agreement on the
remaining issues until August 9. On August 10, the
employees ratified the collective-bargaining agree-
ment and the strike ended. That contract specifical-
ly provides that the fire watch will be performed
by bargaining unit employees.
By letter dated August 17, Nitec informed Rain-
bow that in "the near future" Nitec would have to
reduce Rainbow's guard force by four employees
and that the roving guards performing the fire
watch would be replaced by Nitec employees be-
cause Nitec had agreed in its new contract with
Steelworkers to assign this work to employees rep-
resented by Steelworkers in order "to obtain a
needed item to keep the plant running." At the
time of the hearing, however, this contract provi-
sion had not been implemented and Rainbow em-
ployees continued to perform the fire watch work,
apparently pending an agreement between Steel-
workers and Nitec as to which unit employees
would perform this work and what their exact
duties were to be.
B. The Work in Dispute
The work in dispute is the fire watch at Nitec's
4001 Packard Road, Niagara Falls, New York, lo-
cation.
C. Contentions of the Parties
Steelworkers contends that there is no reasonable
cause to believe that it has violated Section
8(b)(4)(D) and that, therefore, the dispute is not
properly before the Board and the notice of hear-
ing should be quashed. It argues that there is no
clear showing that it threatened, coerced, or re-
strained Nitec with an object of forcing it to assign
the fire watch work to employees represented by
it. In this regard, it asserts that the strike was over
economic demands, not the work assignment, and
that the parties voluntarily agreed to bargain over
the issue and substantial agreement had been
reached prior to the strike. In the event the Board
should find the dispute is properly before it, Steel-
workers contends the fire watch is not a guard po-
sition as defined in the Act, and that the work
should be assigned to employees represented by it
based on area practice and on practice under
Nitec's predecessor, Kimberly-Clark.
Rainbow contends that there is reasonable cause
to believe that Section 8(b)(4)(D) has been violat-
611
I)ECISIO)NS OF NAIIO()NAL L.ABOR RELATIONS BOARD
ed. Rainbow asserts that Steelworkers stated it
would "hit the road" over its contract demands,
was "adamant" over its demand for the security
work, and tied the disputed work to the job-freez-
ing issue. It also contends that the matter of the
disputed work was still unresolved at the time of
the strike and that it was only after Nitec "gave"
Steelworkers the fire watch position that the strike
was settled. Additionally, Rainbow argues that, be-
cause Steelworkers request for security work was a
nonmandatory subject of bargaining, it was unlaw-
ful for Steelworkers to bargain over this issue to
impasse and strike. With respect to the merits of
the dispute, Rainbow argues that because security
work is involved the work in dispute should be
awarded to its employees.
In its brief and at the hearing Nitec has contend-
ed that the dispute is properly before the Board. It
asserts that Steelworkers applied improper pressure
by using the guard issue to attempt to make man-
agement drop the job-freezing issue. Additionally,
with respect to the merits, Nitec argues that the
work in dispute should be awarded to the unrepre-
sented employees of Rainbow based on the factors
of efficiency and economy of operation.
At the hearing the unrepresented guards of Rain-
bow took the position that an award of the disput-
ed work to them would assure adequate security
for Nitec, and that an award to employees repre-
sented by Steelworkers would leave some of the
unrepresented guards unemployed.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the
Act, it must be satisfied that there is reasonable
cause to believe that Section 8(b)(4)(D) has been
violated, and that the parties have not agreed upon
a method for the voluntary adjustment of the dis-
pute. For the reasons set forth below, we conclude
that the instant dispute is not properly before the
Board.
As noted above, at the beginning of negotiations
with Nitec, Steelworkers made a generalized threat
that it would apply "economic pressure" or "take
everybody to the street" in support of its 32 pro-
posed contract items, one of which was that em-
ployees represented by it be assigned all of the se-
curity work performed by Rainbow. Soon thereaf-
ter, the parties engaged in negotiations over this
issue. Nitec offered to assign the fire watch posi-
tion to employees represented by Steelworkers if
Steelworkers would accept its proposal on job
freezing, an item which Nitec considered necessary
to keep the plant operating. Contrary to Rainbow's
assertion, there is no evidence that Steelworkers
tied the job-freezing issue to the fire watch issue; to
the contrary, the evidence shows that it was Nitec
which linked the two issues by offering the fire
watch position in exchange for Steelworkers ac-
ceptance of the job-freezing language.
Prior to the commencement of the strike, Steel-
workers indicated its willingness to accept Nitec's
offer, subject only to minor modifications, and the
offer was still on the table when the strike began.
At no time did Steelworkers threaten to strike over
the security work issue alone. Furthermore, during
the August I union meeting which led to the strike
vote there was no mention of this issue. At the first
post-strike bargaining session Steelworkers agreed
to Nitec's proposal without any significant changes.
Subsequently, Nitec signed a collective-bargaining
agreement with Steelworkers assigning the fire
watch to unit employees.
Based on the foregoing, and the record as a
whole, we find that there is insufficient evidence to
support a conclusion that reasonable cause exists to
believe that Steelworkers sought to force or re-
quire Nitec to assign the work in dispute to em-
ployees represented by it through means proscribed
by Section 8(b)(4)(D) of the Act. In this regard, al-
though Steelworkers did make a generalized strike
threat with respect to all 32 of its proposed con-
tract items at the beginning of negotiations, we find
that in the particular context of this case such a
threat does not establish reasonable cause to be-
lieve that Steelworkers violated the Act. As noted
above, Steelworkers never threatened to strike
over the assignment of the security work alone.
Furthermore, after the generalized threat Nitec and
Steelworkers engaged in bargaining over numerous
issues, including the work assignment issue. Nitec
itself presented offers on the issue, and there was
considerable movement in both parties' positions. It
is especially noteworthy that it was Nitec itself that
first specifically proposed that unit employees per-
form the fire watch3 and that it admittedly did so
in order to obtain Steelworkers acceptance of its
job-freezing proposal, an item Nitec considered ex-
tremely important. This bargaining resulted in sub-
stantial agreement between the parties on the work
assignment issue prior to the strike. In these cir-
cumstances, we cannot reasonably conclude that
the initial generalized strike threat coerced Nitec
into assigning the fire watch to its unit employees.
The facts here clearly demonstrate that Nitec's
proposal to assign the fire watch to unit employees,
rather than being the result of coercion, was used
by Nitec during the course of give and take in col-
a As noted habove. in its initial list of propiosed contract items Steel-
workers sought all security work It is clear that Steelworkers itself did
not at any time propose that only the fire watch work be reassigned
hl2
LINITIF.l) S[F-FI.W()RKtRS ()F A-MIt-RlC
lective bargaining as a device to gain a concession
from Steelworkers on another issue deemed by
Nitec to be of far greater significance to it.
Furthermore, we cannot find that an object of
the subsequent strike was to force or require Nitec
to assign the work in dispute to the unit employees.
Thus, although immediately prior to the strike
Nitec and Steelworkers were apart on numerous
other issues, it is clear, based on the testimony of
their respective negotiators, that they had reached
substantial agreement on the assignment of the fire
watch work as of that time. Moreover, the work
assignment issue was never mentioned at the strike
vote meeting and there is no evidence that Steel-
workers at any time during the strike engaged in
any conduct indicating that it was striking even in
part because of the work assignment issue.4 Final-
' The instantl case is clearly distinguishahle from those calssr inlsolslg
demands for work assigilmentl made in the cOll(cxlt of lcglldlallOll, 1 r a
demand for a cnlltract 'Ahere the thlard hai, fi)llld rllsonable .1%C t. I
believe Ihal Sec 8(h)(4}(D) has been iolbetrd See, c g . Inticnaltirli[ I1
,,ni .r.lrIn Mi Wac hiIm anrd 1ts Lo cal l4ge V ,' 63 n. lla n Rtl ShilS D)l
tnunthri. Iee 1 157 Ni RH 1121 (1966). In, ernutilola l Iq grll'lphi al I nml.
ly. we note that the provision of the parties' collec-
tive-bargaining agreeement concerning the fire
watch work is substantially the same as that agreed
upon by them before the strike.
In view of the particular facts herein, we con-
elude that there does not exist reasonable cause to
belie've that Steelworkers has violated Section
8(b)(4)(D) of the Act and that the instant dispute is
not properly before the Board. Accordingly, we
shall quash the notice of hearing issued herein.
ORDER
It is hereby ordered that the notice of hearing
issued in this proceeding be, and it hereby is,
quashed.
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