Union Boiler Co.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1103 (N.L.R.B. 1986)

UNION BOILER CO. 1103
Union Boiler Company and International Brother-
hood of Boilermakers, Iron Ship Builders,
Blacksmiths , Forgers and Helpers , Local 667,
AFL-CIO. Case 9-CA-22661
30 September 1986
DECISION AND ORDER
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 26 June 1986 Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs. The Charging Party
filed an answering brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Union Boiler Company, Nitro, West Vir-
ginia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(c).
"(c) In any like or related manner interfering
with, restraining , or coercing its employees in the
exercise of the rights guaranteed by Section 7 of
the Act.
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs.
"(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
1 We do not adopt the judge 's implied finding that the Respondent's
conduct violated Sec. 8(a)(3) because the General Counsel did not allege
that the Respondent violated Sec . 8(a)(3) in any manner. The complaint
involved solely 8(aX5) and (1) allegations.
2 We have modified the recommended Order to provide the traditional
remedial recordkeeping requirements for purposes of computing the Re-
spondent's monetary liability.
The General Counsel 's exceptions urge modification of the recom-
mended Order to include a provision for a visitatonal clause authorizing
the Board, for compliance purposes , to obt in discovery from the Re-
spondent under the Federal Rules of Civil Procedure under the supervi-
sion of the United States court of appeals enforcing this Order. Under the
circumstances of this case , we find it unnecessary to include such a
clause.
We have concluded that a broad remedial order is not appropriate and
we have substituted the narrow injunctive language . See Hickmott Foods,
242 NLRB 1357 (1979). We also have modified the judge 's notice to con-
form to our Order.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT unilaterally change conditions of
employment of our employees while their employ-
ment is covered by a proper collective-bargaining
agreement with International Brotherhood of Boil-
ermakers, Iron Ship Builders, Blacksmiths, Forgers
and Helpers, Local 667, AFL-CIO.
WE WILL NOT deny regular employment to our
boilermaker employees in retaliation for their ad-
herence to the terms and conditions of a proper
collective-bargaining agreement between this com-
pany and their union.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole all our boilermaker em-
ployees for economic losses suffered in conse-
quence of our having denied them proper work as-
signments on the Monsanto Chemical Company
project in Nitro, West Virginia.
UNION BOILER COMPANY
Bruce Meizlish, Esq., for the General Counsel.
Ricklin Brown, Esq. (Bowles, McDavid, Graff & Love), of
Charleston , West Viginia, for the Respondent.
Donald G. Logsdon, Esq., of Charleston, West Viginia,
for the Union.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge. A hear-
ing in this proceeding was held at Charleston, West Vir-
ginia, on 10 April 1986, on complaint of the General
Counsel against Union Boiler Company (the Respondent
or the Company). The complaint issued on 22 January
1986, on a charge filed on 9 December 1985, by Interna-
tional Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, Local 667, AFL-CIO
(the Union or the Charging Party). The sole question to
281 NLRB No. 148
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be decided is-whether the Respondent unlawfully locked
out and denied employment to employees in violation of
Section 8(a)(1) and, (5) of-the Act. Briefs were filed after
the close of the hearingby all parties.
On the entire record and from my observation of the
witnesses I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Union Boiler Company is engaged in the building and
construction industry, constructing commercial and in-
dustrial facilities. During the 12-month period preceding
issuance of the complaint it purchased and received at its
Nitro, West Virginia facility products and materials
valued in excess of $50,000 directly from points outside
the State of West Virginia. I find that the Respondent is
an employer within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Helpers,
AFL-CIO, , and its ` Local 667, are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The facts, on which the complaint allegation of unfair
labor practices by the Respondent rest, are simple, plain,
and undisputed. Indeed the Respondent's attorney at the
hearing, as well as its management witnesses, literally ad-
mitted them all.
In fulfilling successive, separate contracts with its cus-
tomers, constructing, aId repairing industrial complexes
of all kinds, this Company uses skilled craftsmen in many
trades, such as electricians, millwrights, ironworkers,
boilermakers, etc. At the time of the events that gave
rise to this proceeding, it was bound by a contract with
each of the unions that represent these various craftsmen,
including a current contract with the Charging Party as
the bargaining representative of the boilermakers em-
ployed by the Respondent. The agreement with the Boil-
ermakers Union provided for an exclusive referral
system. Whenever the Company takes on a new contract
to do the construction work, it figures out how many
boilermakers it will need, and' asks the Union to send
them out on the job. The Union then sends out those
members who are out of work on its referral list. It was
the standard practice in the construction industry.
Among the many provisions set out in that contract was
the usual one that said that the employer must pay time
and a half in wages for more than 8 hours of work in
any single day, and for Sundays and holidays.
In November 1985 the Respondent entered into a con-
tract with Monsanto 'Chemical Company to do a substan-
tial repair job in'its plant located in Nitro, West Virginia.
In the interest of reducing its labor costs-as admitted
openly at the hearing by its representatives-the Re-
spondent spoke to the business agent of Local 667 and to
representatives of the Boilermakers International Union,
and told them it intended to have the boilermakers work
10 hours a day on that job at straight time, and never
mind any written contract provision calling for overtime.
The Union refused to agree to such a change in the-con-
tract, insisting that for overtime work, i.e., more than 8
hours in a single day, the men must be paid what the
contract called for-time and a half. With this the Re-
spondent decided-and so told the Union' s agents-it
would not permit the boilermakers to work on that job
but would instead use employees in other crafts to do the
boilermaker work. It did that. The job was started late in
November 1985 and by January 1986 it was completed.
The boilermakers were denied work, which under the
contract in effect belonged by agreement to them.
The complaint calls this denial of work to the regular
employees a lockout by the Respondent. It is as good a
description of what happened as any. The witnesses for
the Respondent said many things at the hearing, but not
one word from any of them took issue with any of the
plain facts set out above. I agree with the complaint that
it was an unfair labor practice for the Respondent to
have refused to permit these boilermakers to work. Its
reason was because they adhered to their union. Had
they come on the jobsite and said they would do 10
hours of work daily at straight time the Respondent
would have been glad to put them on. James McCor-
mick, the business agent of Local 667, was their spokes-
man; he said "No" and the members stood by the Union.
Were an employer free to ignore a proper collective-
bargaining agreement, to refuse to use its regular union-
represented workmen, to go about its business as though
the established majority represented did not exist, the
practice would do violence to the very essence of this
statute . From the days of its enactment, over 50 years
ago, its basic principle has remained unchanged: "by en-
couraging the practice and procedure of collective bar-
gaining ." This means, as it has always meant, that in
place of the economic strife and suffering that was often
present in the past, mutual understanding through the
process of negotiations and agreements brought about, at
least during the period covered by a contract agreed
upon, puts at rest all disputes by settling all conditions of
employment during that period. And certainly the rate of
payment for work performed is always one of the most
significant elements of any complete bargaining contract.
To hold, as the Respondent in the case at bar argues,
that merely because the employer advises the Union in
advance of its intent to bypass the contract, it is free to
carry on as though it had never signed the agreement,
would make a mockery of the entire law as written. It
matters not whether the conduct be,called a violation of
Section 8(a)(1), or 8(a)(3), or 8(a)(5) of the Act., By in-
sisting on unilaterally changing the terms and conditions
of employment, during the effective period of a collec-
tive-bargaining agreement, the Respondent actually, vio-
lated Section 8(a)(5). By discriminating against its' boiler-
maker employees because of their firm adherence to the
proper position of their Union, it clearly can be said to
have violated Section 8(a)(3). And by forcing them to
lose work in retaliation for their continued group action,
the Respondent can also be said to have coerced them in
their freedom to act in concert, in violation of Section
UNION BOILER CO. 1105
8(a)(1). However viewed , the Respondent's action was
an absolute unfair labor practice.
At the hearing and in its brief, the Respondent hinted
at a number of defenses , none of them meaningful. One is
that when it entered into its agreement with the Monsan-
to Chemical Company to do the work in question those
parties-Union Boiler and Monsanto-agreed that the
work would be performed under the terms and condi-
tions of a collective-bargaining agreement between the
Monsanto Chemical Company and the West Virginia
State Building and Construction Trades Council. That
contract provides that the employer may work its people
40 hours a week, 10 hours each of 4 days , and not pay
overtime for any of the work performed . Because it had
made that agreement with Monsanto Chemical, the Re-
spondent now says it had a right to insist that its employ-
ees all work under the terms of that other collective-bar-
gaining agreement and, therefore , it must be excused for
ignoring its contract with the Charging Party Union. But
the boilermakers , who were denied work because they
felt they had a right to work under the collective-bar-
gaining agreement that covered their employment, were
not employees of Monsanto Chemical, they were the em-
ployees of Union Boiler Company . The two companies-
Union Boiler and Monsanto-are not one single employ-
er; they are-and this fact could not be clearer-separate
employers . For the Respondent to say its employees
were obligated to work under the terms and conditions
of a contract that had nothing to do with them , hardly
deserves any consideration here . If Monsanto Chemical
wanted to have the work necessary to repair its plant
performed under its union contract, all it had to do was
hire employees in the various crafts and put them all to
work on its own payroll, under the direct employment of
Monsanto Chemical. It chose not to do that . Its separate
contract with another union or unions therefore had
nothing whatever to do with this case.
There was also a collateral supplemental agreement to
the National Power Generation Maintenance Agree-
ment-called the Ohio Valley Articles of Agreement-
which was also admittedly binding on the Union and the
Respondent at the time of the events. Another defense is
that a certain clause in that contract gave the Company
freedom to do what it did after informing the Bricklayers
Union of its intent . The clause in question reads as fol-
lows:
When circumstances warrant, the Contractor and
Business Manager may agree to change the regular
week to four (4) ten (10) hour shifts at the regular
straight time rate of pay. It being understood that
all other pertinent sections in the Agreement must
be adjusted accordingly.
The Respondent reads this language as meaning not
only that the Union is obligated to discuss any economic
change the employer desires to make in the contract, but
also that if the decision does not produce agreement be-
tween the parties, the employer may implement the
change it desires to make regardless of any other provi-
sion in the contract . Such interpretation is pure fantasy.
That there is a very fundamental difference between
"may" talk and "must" talk, or "may" agree and "must"
agree, calls for no comment from me. That entire clause
could as well have been left out of the contract altogeth-
er, for it is absolutely meaningless . Of course the parties
to a collective-bargaining agreement are free to change
any of its terms whenever they so wish . How many con-
tracts have been changed in midterm by the parties be-
cause of changing economic conditions? When the par-
ties so wish, there is no need for the contract to say they
"may" do so. All it represents is the continuing collec-
tive-bargaining process, which is the ultimate goal of this
statute . Nor does the collective-bargaining contract lan-
guage say the employer "must" discuss any changes de-
sired by the employer. And under the scheme of the stat-
ute, the union is not obligated, to discuss any changes
proposed during the life of a contract . Cf. Equitable Life
Insurance Co., 133 NLRB 1675, 1690 ( 1961).
Another implied defense now is that the Respondent
really did not need any boilermakers on that job because
the work was as well done by craftsmen belonging to the
other unions , those which agreed to work without over-
time pay . The fact that other craftsmen did the work of
the boilermakers will not do to alter the illegality of the
Respondent's conduct . That it was boilermaker work
that was done by others is clear enough . At the preshop
conference the Company itself listed a number of assign-
ments that had to be carried out, work to be performed
by its boilermakers . While the question was still hanging
one of the Company 's agents, its job superintendent
Goodson, asked the Local 667 business agent to send
two of its members to start working the following
Monday . The next day, still before the work on the
project was started , McCormick , the union business man-
ager, spoke to Goodson , "And I asked him how many
people-if we agreed to work the straight , the 10 hour
shift, the straight time , how many Boilermakers would
be employed on the job . He said if we run two shifts
there would be 16." Because Goodson then repeated the
men would have to work without overtime pay, those
men were never taken on.
This record does not show how many hours of work
were denied the boilermakers, but nothing could be
clearer than that there was work for them on the
project, that in the opinion of the Respondent it was
work precisely falling within their jurisdiction, and that
they were not permitted to do it.
The case at bar is precisely the same as the situation
when an employer either accepts an order for his prod-
ucts at a lower price than usual , or decides to make a
greater profit than in the past. Towards that end it tells
the officers of the union that represents its employees
they must now work for less than the regular contract in
effect calls for . The Union refuses to agree-during the
life of the contract-and the employer discharges his
workers and replaces them with outsiders. May an em-
ployer do that under the scheme of this statute? To ask
the question is to answer it.
The Respondent's brief also says, with complete incon-
sistency , that the contract with the Boilermakers
Union-called the National Power Generation Mainte-
nance Agreement-was not in effect at this particular job
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it agreed to do in the regular course of its business. As
best I understand this argument, it is that the contract is
effective at this or that job depended on the time-to-time
agreement of the parties. But its own witnesses gave the
lie to that position-to say nothing of the fact that there
is no such qualification in the written contract itself. If
the Boilermakers' contract did not apply to the Monsan-
to Chemical job, why did the Respondent's agents have
to ask the Union to agree to its modification? From the
testimony of Roger Magaw, vice president of the Re-
spondent:
Q. Is this kind of work generally include work
that's performed by the Boilermakers Union?
A. Sometimes.
Q. In this case did it include work that was to be
performed by the Boilermakers Union?
A. The case in Monsanto, in my opinion, there
was work on that job that would come under the
jurisdiction of the Boilermakers.
Q. And the Union Boiler Company is a signatory
to the National Power Generation Maintenance
Agreement?
A. Yes, we are.
Q. , And you're aware that the International
Union of Boilermakers is also signatory, are you
not?
A. Yes, I am.
Asked had the Respondent not refused to put the Boil-
ermakers to work at the Monsanto Chemical job because
they insisted on adherence to the terms of the Boilermak-
ers contract, the witness again evaded a direct answer.
Then: "The Boilermakers were not hired on that job be-
cause they refused to work pursuant to the terms and
conditions of the West Virginia Maintenance agreement
and they, further refused to modify the National Power
Generation Agreement to conform to those terms and
conditions so that they could cover their jurisdictional
network."
It was the Charging Party's National Power Genera-
tion Agreement that covered that job of the Respondent,
and none other.
THE REMEDY
The Respondent must be ordered to cease and desist
from repeating the unfair labor practices found above. It
must also be ordered to make whole those members of
Local 667 who, in the regular order of referral, would
have been sent out to work at the Monsanto Chemical
plant had the Respondent not refused to employ them.
Just how many, men would have worked there, and just
how much work was performed on this project, which
really falls within the jurisdiction of the Boilermakers
Union, I do not know. But that is a matter to be resolved
by examination of the Respondent's records and the
Union's referral books, which will be done at the compli-
ance stage of this proceeding.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent, Union Boiler Company, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers, Local
667, AFL-CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Union is now and at all times material has been
the exclusive representative of all the Respondent's boil-
ermaker employees for purposes of collective bargaining.
4. By unilaterally changing conditions of employment
of its boilermakers during the life of an effective collec-
tive-bargaining agreement with their union, the Respond-
ent has engaged in and is engaging in violation of Sec-
tion 8(a)(5) of the Act.
5. By denying regular employment to its boilermaker
employees in retaliation for their adherence to the terms
and conditions of the proper collective-bargaining con-
tract in effect, the Respondent has violated and is violat-
ing Section 8(a)(5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Union Boiler Company, Nitro, West
Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally changing conditions of employment of
its employees during the life of an effective collective-
bargaining agreement with their union.
(b) Denying regular work to its boilermaker employ-
ees in retaliation for` their adherence to the terms and
conditions of a proper collective-bargaining agreement in
effect.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
1 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
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 pur-
poses.
UNION BOILER CO. 1107
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole any of the employees in the appropri-
ate bargaining unit for any monetary benefits they may
have been denied for not being permitted to work on the
Respondent's Monsanto Chemical Company project.
(b) Post at its place of business in Nitro , West Virgin-
ia, copies of the attached notice marked "Appendix."2
21 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
Copies -of said notice, on forms provided by the Regional
Director for Region 9, after being duly signed by its rep-
resentatives, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter , in conspicuous places, including
all places where notices to employees are customarily
posted . Reasonable steps shall be taken by it to insure
that said notices are not altered , defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.