Sheet Metal Workers, Local 2

National Labor Relations Board - Board Decisions

Feb 1, 1973

201 N.L.R.B. 568 (N.L.R.B. 1973)

568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers International Association Local
No. 2, AFL-CIO and Farmer & Sipes, Inc. d/b/a
Rain-Flow of Kansas City. Case 17-CP-131
February 1, 1973
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND
PENELLO
On October 3, 1972, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding . Thereafter , General Counsel filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings , findings, and
conclusions of the Administrative Law Judge as
modified herein and to dismiss the complaint in its
entirety.
We agree with the ultimate conclusion of the
Administrative Law Judge that the General Counsel
has not established that Respondent has violated
Section 8 (b)(7)(A) of the Act, but for the reasons
here recited.
The complaint alleges that the Respondent in May
1972 engaged in recognitional picketing at a con-
struction project where the Employer , Charging
Party here , had lawfully recognized District 50,
United Allied Technical Workers of America and
Canada as the representative of its employees, and "a
question concerning the representation of said
employees under Section 9(c) of the Act could not
appropriately be raised" within the meaning of
Section 8(b)(7)(A).
To support the allegation the General Counsel
introduced into evidence an agreement between
Rain - Flow and District 50. This is a one-page
document dated October 1, 1971, with an Appendix
"A" specifying hourly wage rates as of " 10/1/71" for
gutter journeymen , gutter helpers , and apprentices. It
adopts the terms of an existing contract-effective
November 3, 1970, to November 2, 1972-between
District 50 and the United Contractors Council.'
The Administrative Law Judge dismissed on the
Rain-Flow became a member of the Council in October 1971
Appendix B, entitled "Supplemental Agreement ," also executed October 1,
1971, lists certain exceptions from the existing contract with the Council,
including the definition of the workday as starting and ending an hour
earlier, deletion of various apprenticeship obligations , elimination of a
provision to deduct part of the health and welfare payments from employee
holiday and vacation benefits . etc The 8-day union -security provision for
newly hired employees and the exclusion of "office and clerical employees,
professional employees and guards and supervisors" from the bargaining
theory that in the construction industry a contract
creates no presumption of majority such as would
bar a rival petition or satisfy the final clause of
Section 8(b)(7)(A). We do not reach that issue in this
case inasmuch as the contract , as administered,
shows a lack of stability in the bargaining relation-
ship and would not, in our view , prevent a question
concerning representation being raised under Section
9(c) of the Act. Accordingly, we shall dismiss on this
ground alone.2
The manner of applying the contract with District
50 was described by the testimony of Rain-Flow's
president, Farmer. Though served, District 50 did
not appear at the hearing. Farmer testified that at the
time of hearing there were eight employees , of whom
"four or five" were members. Concerning their
compensation he testified that all full-time employees
work on a piecework basis except for hanging
downspouts, but that part-time employees-"most of
them college personnel"-are hourly paid, at less
than contract scale . He stated that the contract rate
would be paid "if they were in the Union. Part are
and part are not."3 Farmer admitted that part-time
employees do some guttering work and that the
contract by its terms applies to all employees listed in
Appendix A, but in his view part-time employees are
casuals rather than gutter helpers or gutter journey-
men. He explained the piecework rate as based on a
specific sum per lineal foot of gutter produced from a
mobile fabricating unit , a pay basis that means no
overtime is paid; also that District 50 has no
objection to how employees are paid "as long as they
are paid what the union contract calls for per hour
on a weekly basis." No signed memorandum
regarding this arrangement was offered. Farmer also
testified that employees receive no compensation
from the time of reporting to the warehouse until
they get to the job, or for the time after they leave a
job until they arrive at the warehouse. A former
employee testified that he averaged 10 hours a day
under the piecework system; the other employee
witness testified that he averaged more than 8 hours
a day.
Thus, the contract has not been applied at all to
nonmembers and, as to members, significant con-
tractual provisions have not been implemented,
without objection by District 50. These include the
hourly rates of pay set out in Appendix A, which
unit are among the provisions of the contract not excepted
2 See Local Union No 42, Laborers International Union of North America,
AFL-CIO (R 8i E Asphalt Service, Inc), 185 NLRB No 34 ; Emanuel
Birnbaum and John W Jones d/bla Silver Lake Nursing Home , 178 NLRB
478.
3 Rain -Flow is located in Kansas City, Kansas , a right-to-work State
The picketing occurred at a Missouri jobsite . Employee Loomis testified
that he was told by the Company that he could join the Union but did not
have to "in Kansas "
201 NLRB No. 88
SHEET METAL WORKERS , LOCAL 2 569
have been supplanted by piecework rates for fabri-
cating and installing guttering; the provisions for
compensation for overtime after an 8-hour day
and/or a 40-hour week; the provision that all time
spent driving the company truck from the shop to the
job will be done within the working day and paid for;
and the provision specifying that "All wage rates not
herein provided for shall be determined and estab-
lished by collective bargaining . . . . Schedule of
wage rates shall be attached hereto and made part of
this agreement." We conclude that at the time of
Respondent's picketing a question concerning repre-
sentation could appropriately have been raised under
Section 9(c) of the Act, hence under Section
8(b)(7)(A) the Respondent was not prohibited from
engaging in this concerted activity.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
The picketing was stopped when Respondent received notice of the
filing of the charge
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This
proceeding, under Section 10(b) of the National Labor
Relations Act, as amended, was teed pursuant to due
notice on July 20, 1971, at Kansas City, Missouri.
The original charge was filed on May 19, 1972. The
amended charge was filed on June 7, 1972. The complaint
in this matter was issued on June 9, 1972. The issues
concern whether or not Respondent has violated Section
8(b)(7)(A) of the Act.
All parties were afforded full opportunity to participate
in the proceeding. Beefs have been filed by the General
Counsel and the Respondent and have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The facts are based on the credited testimony of Fred
Farmer , Jr. Farmer & Sipes , Inc., d/b/a Rain-Flow of
Kansas City, the Employer herein , is a Kansas corporation
engaged in the building and construction industry, fabri-
cating and installing guttering , with its principal place of
business at Kansas City, Kansas. The Employer in the
course and conduct of its business annually purchases
materials and supplies valued in excess of $50 ,000 directly
from outside the State of Kansas. Based on the foregoing,
it is concluded and found that the Employer is now, and at
all times material herein has been , an employer engaged in
commerce within the meaning of Section 2 (6) and 2(7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The facts are based on the pleadings and admissions
therein . Sheet Metal Workers International Association
Local No. 2, AFL-CIO, the Respondent , is now , and at all
times material herein has been , a labor organization within
the meaning of Section 2(5) of the Act . It is so concluded
and found.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The question presented in this case is whether the
Respondent, Sheet Metal Workers International Associa-
tion Local No. 2, AFL-CIO, violated Section 8(b)(7XA) of
the Act , by picketing the Employer , Farmer & Sipes, Inc.,
d/b/a Rain-Flow of Kansas City, on May 4, 5, 8, and 9,
1972.
The facts are undisputed that ( 1) the Employer is
engaged in the building and construction industry in the
fabrication and installation of guttering, (2) the Employer
since on or about May 3, 1972, and continuing to date, has
been engaged in fabricating and installing metal guttering
at a project at the Tiffany Manor Construction site located
on NW. 80th Terrace, Kansas City, Missouri, (3) the
Employer , at all times material herein , employed certain
employees performing fabrication and installation of metal
guttering at the aforesaid project, (4) the Respondent on
May 4, 5, 8, and 9, 1972, picketed the Employer and caused
said Employer to be picketed at said project; and (5) the
Respondent , at the time of such picketing , was not the
certified or recognized collective -bargaining representative
of the employees of the Employer.
The facts are undisputed that at the time of said
picketing Respondent's pickets carried signs bearing the
following legend:
NOTICE TO THE PUBLIC
THIS NOTICE IS ADDRESSED ONLY TO THE
GENERAL PUBLIC AND NOT TO ANY EMPLOY-
ER OR EMPLOYEES SHEET METAL WORK
BEING PERFORMED ON THIS JOB BY
RAIN-FLOW of Kansas City
IS NOT BEING DONE BY BUILDING TRADES
SHEET METAL WORKERS THE SAID EMPLOY-
ER DOES NOT HAVE A BARGAINING CON-
TRACT WITH THE BELOW NAMED LABOR
ORGANIZATION AND AS A RESULT THEREOF,
THE PREVAILING RATES OF PAY & CONDI-
TIONS FOR SHEET METAL WORKERS ARE
NOT BEING MET BY SAID EMPLOYER!
SHEET METAL WORKERS LOCAL NO. 2,
of Kansas City and Vicinity A.F.L.-C.I.O.
The facts also reveal that the Respondent had sent a
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
registered letter to the Employer on January 21, 1972, to Very truly yours,
the following effect:
January 21, 1972 Robert J. Dye
Mr. Fred Farmer, Jr. Rain Flow of Kansas City 8004 Business Manager
1/2 Leavenworth Road Kansas City, Ks. 66109 Sheet Metal Workers' Union No. 2
CERTIFIED MAIL NO. 633911 RJD:dh
Certified Mail No. 633911
Dear Sir:
The undersigned Sheet Metal Workers' Local No. 2 of
Kansas City and Vicinity, AFL-CIO, claims jurisdic-
tion of sheet metal work in Wyandotte and Johnson
Counties in Kansas. Also Jackson, Cass, Platte and
Clay Counties in Missouri. You are presently perform-
ing such gutter work in these counties.
The members of this organization, who are employed
in sheet metal work in the Greater Kansas City area
presently receive a $8.22 1 /2 per hour basic wage rate
plus other fringe benefits . We have been investigating
the wage rates of your employees who are performing
sheet metal work in the aforesaid Counties. We find
that your said employees are being paid rates below
union scale for sheet metal workers and that they have
less favorable working conditions.
We, herewith, advise you that this Labor Organization
intends to use picket signs and otherwise publicize to
the general public that your company does not have a
contract with this union, for the sole purpose of letting
the general public know that your company is main-
taining substandard wage rates and working conditions
for the persons performing sheet metal work on this
aforesaid project.
We wish to make it entirely clear to your company that
this Labor Organization is not making any demands on
your company. This Union is not claiming to represent
any of your employees. We are not, in any way,
requesting or demanding that they join our Umon or
that you, in any way, seek to interfere with the rights of
your employees to decide upon what Union, if any,
they desire to have represent them.
Our picketing is in now way intended , nor is it an
attempt, to induce or encourage any of your employees,
or employees of any other employer, to engage in
refusal to work, transport or otherwise handle or work
on any goods, materials, etc. We are not requesting or
encouraging any employees to cease performing, or to
refuse to perform any services. The said picketing is not
intended to interfere with any of the work, deliveries or
any other activity at your project.
We again state that we desire only to exercise the right
of this labor organization to publicize the fact that your
company does not have a collective bargaining agree-
ment with this Union , covering the wages, hours and
other conditions of employment of the persons per-
forming sheet metal work on your project and for the
sole purpose of letting the general public know that as a
result thereof , your company is maintaining sub-stand-
ard wage rates and working conditions for the persons
performing sheet metal work on your said project.
i
In addition to the foregoing there is disputed evidence as
to whether Respondent , by its agents, had written other
letters to the Employer and had had oral conversations
with officials of the Employer and employees of the
Employer bearing upon its motivation for said picketing.
Further, there is dispute as to a conversation that occurred
between one of Respondent's agents and an official of
another Employer , and as to the bearing such conversation
might have as to revealing the motive and object of such
picketing.
The General Counsel alleges and contends that the
picketing involved in this proceeding was for unlawful
objects . Thus the General Counsel 's complaint alleged in
effect that Respondent's picketing was with the object
thereof being (1) to force or require the Employer to
recognize and bargain with the Respondent as collective-
bargaining representative of the employees of the Employ-
er, or (2) to force or require said employees to accept or
select the Respondent as their collective-bargaining repre-
sentative.
I do not find it necessary to determine whether or not
Respondent's picketing was for the objects contended by
the General Counsel . Essential to the General Counsel's
contention of conduct violative of Section 8(bx7)(A) is the
establishment that such picketing occurred "where the
employer has lawfully recognized in accordance with this
Act any other labor organization and a question concern-
ing representation may not appropriately be raised under
Section 9(c) of the Act." i
The General Counsel has not sustained his burden of
proof with respect to this essential part of the elements of
proof . It is , therefore, not necessary to determine the
"objects" of the picketing otherwise.
The General Counsel 's complaint alleges that "The
Respondent engaged in the activity described in paragraph
5 above , where the Employer has, in accordance with the
Act, lawfully recognized District 50, United Allied and
Technical Workers of America and Canada as the
representative of certain employees of the Employer
(including those referred to above in paragraph 4(b)) for
collective bargaining purposes, and a question concerning
the representation of such employees under Section 9(c) of
the Act could not appropriately be raised at the time of
such activity."
The facts reveal that the Employer and District 50,
United Allied and Technical Workers of America and
Canada, entered into a collective-bargaining agreement on
October 1, 1971. Such collective-bargaining agreement (1)
provided in effect that the Employer recognized District 50
as the exclusive collective-bargaining representative of the
employees involved in the work picketed in this proceeding
and (2) consisted of a written agreement as to terms and
Quoted from Sec. 8 (b)(7)(A) of the Act.
SHEET METAL WORKERS , LOCAL 2 571
conditions of employment of such employees. The facts
submitted (1) raise a question as to whether in practice the
parties have construed the contract to cover all employees
properly in the appropriate bargaining unit and (2) raise a
question as to whether in real effect said contract has been
construed as a "members only" contract. As indicated, it is
not necessary to resolve such issue in this case.
The facts reveal that the Employer herein is engaged in
the building and construction industry. Such an employer
is permitted by law (Sec. 8(f) of the Act) to enter into a
collective-bargaining agreement with a labor organization
even though "the majority status of such labor organiza-
tion has not been established under the provisions of
Section 9 of this Act prior to the making of such
agreement." For such reason, there is no presumption that
the collective-bargaining agreement entered into on Octo-
ber 1, 1971, by the Employer and District 50 was an
agreement entered into at such time as District 50 had an
established majority status within the meaning of Section 9
of the Act. No evidence has been offered otherwise to
establish that District 50 was in fact the representative of
the majority of the employees in the appropriate collective-
bargaining unit at the time the October 1, 1971, contract
was executed. Section 8(f) of the Act further provides "that
any agreement which would be invalid, but for clause (1) of
this subsection,2 shall not be a bar to a petition filed
pursuant to Section 9(c) or 9(e)."
The General Counsel cites Local No. 8280 United Mine
Workers of America Leatherwood No. 1 Mine of Blue
Diamond Coal Company, et al., 166 NLRB 271, and
Laborers 1298, AFL-CIO (Roman Stone Construction Co.),
153 NLRB 659, as supporting his contention that the
validity of the recognition of District 50 and the collective-
bargaining agreement between Rain-Flow and District 50
cannot be attacked because of Section 10(b) and the
absence of a timely charge. The Leatherwood case is
distinguishable from the instant case in that the Leather-
wood case does not involve the building and construction
industry. The Board in the Leatherwood case does use
language to the effect that it considered itself controlled by
its decision in the Roman Stone case that the term "lawfully
recognized" in Section 8(b)(7)(A) was meant to include all
bargaining relationships immune from attack under Sec-
tion 8(b)(7)(A) of the Act.
2 Such clause refers to the fact that the failure of establishment of
majority status of the labor organization under Sec. 9 of the Act does not
make unlawful such building and construction industry collective-bargain-
ing agreements.
3 Considering the facts of Roman Stone and the Board's language in
Roman Stone and Leatherwood, I do not interpret those cases as meaning
that the Board contemplated that an 8 (f) collective-bargaining agreement
wherein a union was lawfully recognized is immune from attack . Assuming
General Counsel's interpretation of such cases, it is clear that the clear
The Roman Stone case is distinguishable from the instant
case in that the pleadings revealed no denial of lawful
recognition of the union involved in the bargaining
relationship with the Employer . Further, it is noted that the
bargaining relationship in Roman Stone commenced in
1950 before the event of the permissive 8(f) Building and
Construction prehire agreements . Thus, the presumption
existed of a valid majority designated union being
accorded recognition.
I am persuaded that the Board's decisions in R. J. Smith
Construction Co., Inc., 191 NLRB No.. 135, and Ruttman
Construction Company, 191 NLRB No. 136, are controlling
in the instant case and that in the Building and Construc-
tion Industry there is no presumption that a contract in
and of itself creates a presumption that the Union is the
majority designated exclusive bargaining representative.3
Considering the foregoing , it is clear , and I conclude and
find that the General Counsel has not established that a
question concerning representation could not appropriate-
ly have been raised under Section 9(c) of the Act at the
time of the complained of picketing . It follows that the
General Counsel has not established that Respondent has
violated Section 8(b)(7)(A) of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Farmer & Sipes , Inc., d/b/a Rain-Flow of Kansas
City, is an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. Sheet Metal Workers International Association
Local No. 2, AFL-CIO, is and has been at all times
material herein , a labor organization within the meaning of
Section 2(5) of the Act.
Upon the basis of the above findings of fact , conclusions
of law, and the entire record , and pursuant to Section 10(c)
of the Act , I hereby issue the following recommended:
ORDER4
The complaint in this proceeding is dismissed in its
entirety.
language of the R. J. Smith and Rudman cases would constitute an
overruling thereof , at least sub silentio.
4 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
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.