Local Union No. 42, Laborers

LOCAL UNION NO 42. LABORERS Local Union No. 42, Laborers International Union of North America, AFL-CIO (R & E Asphalt Service, Inc.) and Local No. 99, Congress of Inde- pendent Unions. Case 14-CP-121 August 27, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND MCCULLOCH On November 3, 1969, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled pro- ceeding, finding that the Respondent had not engaged in the unfair labor practice conduct alleged in the complaint and recommending that the complaint be dismissed in its entirety , as set forth in the attached Trial Examiner's Decision . Thereafter, the General Counsel filed exceptions to the Trial Examiner's Deci- sion and a supporting brief. The Respondent filed a brief in support of the Trial Examiner 's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Trial Examiner found that the Respondent did not violate Section 8(b)(7)(A) of the Act by picketing a paving site of the Employer on May 6, 1969, and thereafter. This finding was based on her conclusion that the Charging Union was not the lawfully recognized collective-bargaining repre- sentative for the Employer's employees during the period when the Respondent was picketing, and thus the Respondent's picketing activity was not violative of 8(b)(7)(A).' We agree that, under the provisions of Section 8(b)(7)(A), the Respondent was not prohibited from engaging in this concerted activity . Our determination rests, however, not on the ground that the Charging Union's recognition was unlawful , but on our conclu- sion that, at the time of the Respondent's picketing, a question concerning representation could have appropriately been raised under Section 9(c) of the Act. We rely on the fact, found by the Trial Examiner, that the collective-bargaining agreement in effect at that time between the Employer and the Charging ' Section 8(b)(7)(A) provides, in relevant part, that it shall be an unfair labor practice for a union to picket or threaten to picket any employer with an object of forcing an employer to bargain with a labor organization as the representative of his employees, or forcing the employ- ees to accept it as their representative "where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under Sec 9(c) of the Act 163 Union2 does not purport to cover the type of work performed by the employees employed by the Employ- er.' Moreover, the record shows that the contract was never in fact complied with.' In these circum- stances, we do not regard the Charging Union's con- tract with the Employer as one which imparts suffi- cient stability to the bargaining relationship to justify finding it a bar to the raising of a question concerning representation under Section 9(c) of the Acts Accordingly, we find in agreement with the Trial Examiner that the Respondent was free to pursue its picketing activity vis-a-vis this Employer without violating Section 8(b)(7)(A) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended the National Labor Rela- tions Board hereby adopts as its Order the Recom- mended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dis- missed in its entirety. ' This contractual arrangement was in the form of a 1-year memorandum agreement, signed by the Employer and the Charging Union, which adopted, for the period from June 7, 1968, to June 7, 1969, the terms and conditions of a contract executed between the Charging Union and an employer association known as the Midwest Contractors Associa- tion, of which the Employer was never a member ' The Employer's workforce consists entirely of unskilled laborers engaged to perform asphalt paving jobs The contract in question fails to include any job classification remotely applicable to this type of work Specifically, the agreement includes job classifications for brick layers, carpenters, painters, plumbers, plasterers, electricians, sheet metal workers, roofers, and welders in terms of wages, also, the contract is not germane The Employer paid most of its employees $4 50 per hour This is substantially higher than any of the rates required under the Charging Union's contract These reach a peak in limited instances of $4 05 per hour The only evidence of enforcement of or compliance with the contract was that the Employer had checked off initiation fees and dues for its employees allegedly pursuant to this agreement, but without written authorizatons from the employees ' See Silver Lake Nursing Home, 178 NLRB No 71 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M BOYLS, Trial Examiner: This case, based upon a charge filed on May 13, 1969, and a complaint issued on July 8, 1969, was tried before me at St. Louis, Missouri, on August 11, 1969. The complaint alleged that Respondent, Local Union No 42, Laborers International Union of North America, AFL-CIO, had violated Section 8(b)(7)(A) of the National Labor Relations Act, as amended, by picketing a construction site of R & E Asphalt Service, Inc., herein called R & E, on or about May 6, 1969, and thereafter. Respondent filed an answer in which it 185 NLRB No. 34 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied that it had engaged in the unfair labor practice alleged. Subsequent to the hearing the General Counsel filed a brief which has been carefully considered Respondent filed no brief but did file a motion to correct the official transcript of the record in a number of respects. The motion, being unopposed and appearing to have merit, is hereby granted. Upon the entire record in this case and from my observa- tion of the demeanor of the witnesses as they testified, I make the following: FINDINGS OF FACT I R & E'S BUSINESS OPERATIONS R & E is a Missouri corporation, maintaining its office and place of business at 10612 Page Boulevard in the County of St. Louis, in Missouri, where it is and at all times material herein has been engaged as an asphalt paving contractor During the year ending December 31, 1968, which is a representative period, R & E, in the course and conduct of its business operations, performed services valued in excess of $50,000, of which services valued in excess of $50,000 were performed in and for the following enterprises located in the State of Missouri: American Car and Foundry Division of ACF Industries, Inc, GEM Inter- national, Harold R Anderson Construction Co., Continental Oil Co., and Clark Oil and Refinery Corporation, each of which annually furnishes services valued in excess of $50,000 outside the State of Missouri. On the basis of the above facts, which are admitted, it is found that R & E is an employer engaged in commerce within the meaning of Section 2(2),(6),and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein Ii. THE LABOR ORGANIZATIONS INVOLVED Local Union No 42, Laborers International Union of North America, AFL-CIO, herein called Respondent Union, and Local No 99, Congress of Independent Unions, herein called the CIU, are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED VIOLATION OF SECTION 8(b)(7)(A) OF THE ACT A Issues Presented It is conceded that Respondent Union is not, and was not on May 6, 1969, when it picketed R & E's construction operations, the currently certified representative of R & E's employees.' However, R & E had been a party to contracts with Respondent Union, the last of which had a termination date of May 1, 1969 but was to continue in effect from year to year thereafter in the absence of a notice of intent to terminate from one of the parties The General Counsel contends that Respondent Union had abandoned its contracts with R & E and that the picketing was in violation of Section 8(b)(7)(A) of the Act because an object of the picketing was to force or require R & E to recognize or bargain with Respondent Union or to force or require R & E's employees to accept it as their bargaining representative despite the fact that R & E was then lawfully recognizing another labor organiza- tion , the CIU, and a question concerning representation could not then appropriately be raised under Section 9(c) of the Act. At the hearing, in defense of its picketing, Respondent Union contended that at the time of the picket- ing it had a valid, binding collective-bargaining agreement with R & E covering the employees whose work was being picketed and that a picket was placed at the jobsite because R & E had failed to live up to the agreement by making payments to the Welfare Trust and Pension Trust and by purchasing Vacation Stamps as required by the terms of the agreement Respondent Union denied that R & E was lawfully recognizing the CIU as the bargaining representative of the employees here in issue. One question presented is whether Respondent Union had abandoned its contract with R & E by the time the picketing occured. If it had not, it follows that R & E could not then be lawfully recognizing the CIU But even if Respondent Union had abandoned its contract with R & E, it does not necessarily follow that its picketing was in violation of Section 8(b)(7)(A), for even assuming that an object of the picketing was to force or require R & E to recognize or bargain with it or R & E's employees to accept it as their bargaining representative , the question still exists as to whether R & E was lawfully recognizing the CIU. B The Evidentiary Facts On December 14, 1964, R & E signed an agreement with Respondent Union, adopting all the terms of the 1963 to 1966 contract between Respondent Union and Associated General Contractors of St Louis (herein called the AGC). Upon the expiration of that contract on May 1, 1966, R & E signed another contract with Respondent Union which had been negotiated in its behalf by Site Improvement Association (herein called Site).' The new contract, by its terms, was to be effective until May 1, 1969, and was to be automatically renewed from year to year thereafter unless either party at least 60 days prior to the termination date gave notice of its intent to terminate, amend, or modify the contract. R & E did not give any timely notice of its intent to modify or terminate that agreement. I The latter contract was signed on R & E's behalf by A J Ahner, Labor Relations Consultant of the Greater St Louis Paving Contractors Association , an affiliate of Site , pursuant to specific authorization given to Abner in a power of attorney executed by R & E's president on September 19, 1966 R & E at that time was a member of the Greater St Louis Paving Contractors Association but withdrew from that organiza- tion about a year later The terms of the contract negotiated between Respondent Union and Site are identical with those negotiated between Respondent Union and the AGC, but the record does not disclose what relation, if any, existed between Site or its affiliates and the AGC Prior to May 1, 1969, the AGC and Respondent Union negotiated a new 5-year contract, effective as of May 1, 1969, but the record does not disclose whether Site and Respondent Union did the same LOCAL UNION NO 42 LABORERS 165 On June 7, 1968, while its last contract with Respondent Union was by its terms still in effect, R & E, without any notice to Respondent Union, entered into a 1-year memorandum agreement with the CIU purporting to adopt the terms of the collective -bargaining agreement between CIU and Midwest Contractors Association. The latter agree- ment provided that it would be effective from July 18, 1967, to March 1, 1969, and from year to year thereafter unless either party notified the other within 60 days before the expiration date of its desire to change the agreement R & E was never a member of the Midwest Contractors Association. Raymond Eberenz, president of R & E, testified that R & E had never complied with its contracts with Respond- ent Union to make contributions to the Welfare Trust Fund and Pension Trust and to issue Vacation Stamps for the benefit of all its employees covered by the agreement and that despite a union shop provision in the contract, none of his approximately eight employees, to his knowledge, were members of Respondent Union in June 1968. Accord- ing to Eberenz, a majority of his men in 1968 wanted to join the CIU, which Eberenz knew represented the employees of two other paving contractors, and either he or a brother of one of the workmen contacted Clark Libhart, business representative of the CIU, about that labor organi- zation representing R & E's employees. Eberenz could not remember whether he brought up the subject of represen- tation by the CIU to his employees or whether they first mentioned it to him but he testified that all except his engineer, who belonged to another Union, signed CIU cards. After signing the agreement with CIU on June 7, 1968, Eberenz started withholding initiation fees and dues from the paychecks of each employee and transmitting them to the CIU, although none of these employees had signed any checkoff card authonzing him to do so. On May 5, 1969, R & E started a paving job on Argyle Avenue at a point which happened to be in front of the residence of T. G. Harvill, one of Respondent Union's business agents. Harvill, on the following day, after observing the men and noticing that they were doing the type of work which came under the jurisdiction of his union and that they were R & E employees, checked his books and ascertained that R & E was a party to the 1966 to 1969 contract with his union . He questioned the three workmen on the job about whether they were members of Respondent Union and was told that they were not. It is not clear from the record whether, as R & E President Eberenz testified, a picket was then placed at the jobsite or whether, as Respondent Union Business Agent Harvill indicated , the picket was placed on the job after a conference on May 6 between Harvill and Eberenz in Harvill's home.' Such a conference was held in which Harvill accused Eberenz of having failed for several years to live up to that part of R & E's contract with Respondent Union which required R & E to make payments into the Welfare Fund and Pension Trust and to purchase ' The record does not disclose what legend was printed on the picket sign, but the sign was described as announcing that the picketing was for informational purposes Vacation Stamps for the employees. Eberenz stated that he was operating under a contract with the CIU and did not consider himself bound by any contracts with Respondent Union. R & E's wage rates were also discussed and Eberenz revealed that he was paying most of his employees $4 50 an hour.' At one point in the conversation Harvill warned that R & E might not be able to have materials delivered to its jobsite. The meeting ended with an understanding that the parties would meet again on the following day at the Ramada Inn. At the Ramada Inn meeting on May 7, Eberenz was accompanied by CIU's business representative Clark Lib- hart, and Harvill was accompanied by Respondent Union Business Agent Pelker and by Cecil Sims, assistant adminis- trative representative for the Eastern Missouri Laborers District Council. Eberenz had expected that Harvill would bring with him the 1966 to 1969 contract with Respondent Union to which Harvill had referred. Harvill did not bring a copy of this contract but informed Eberenz that he could see it at Respondent Union's office. Thereafter on the same day, Eberenz, accompanied by his attorney, went to Respondent Union's office and inspect- ed the 1966 to 1969 contract which Eberenz had authorized his agent, A. J. Ahner, to sign for him. On the following day, May 8, Eberenz with the assistance of his attorney, drafted and mailed to Respondent Union a letter, the body of which reads as follows: Please let this serve to advise you that the undersigned is no longer bound by any contract or agreement with your local and will not become bound by any agreement which you may subsequently enter into with the Associated General Contractors of St. Louis. We take this position based upon the premise that the only agreement which we have signed with you was an agreement for the period 1964-66 as renewed, changed and amended by your agreement of 1966- 69 negotiated with the Associated General Contractors of St Louis which latter agreement expired and termi- nated on May 1, 1969 by reason of notification served by the parties of the agreement pursuant to Article Thirteen thereof, therefore at the moment of writing this letter there is no contract or agreement between your local and either the Associated General Contrac- tors of St. Louis or the undersigned. The purpose of this notice is to advise you that we will not be bound by any agreement between the Associated General Contractor of St Louis and your local and we do not desire to enter into any agreement with your local directly. As already noted, R & E had on June 7, 1968, entered into a memorandum agreement with the CIU, to be effective until June 7, 1969, agreeing to adopt the provisions of ' This $4 50 rate was substantially higher than any of the rates required under the CiU contract, which, incidentally did not list job classifications and rates for employees doing asphalt paving work Although Respondent Union's basic wage rate (which included 20 cents an hour paid in Vacation Stamps) was $4 725 an hour , that rate plus the welfare and pension fringe benefits required under Respondent Union's contract amounted to $5 07 1/2 an hour The CiU contract did not provide for any such fringe benefits 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CIU's contract with Midwest Contractors Association. The latter contract was to remain in effect until March 1, 1969, and from year to year thereafter unless either party gave notice 60 days before the termination date of a desire to change the contract. One or both of the parties apparently did give such a notice and thereafter a new contract was negotiated which by its terms was to be in effect from July 18, 1969, to March 1, 1971. Eberenz, for R & E, and Libhart, for the CIU, signed a carbon copy of this new CIU contract, with the date May 8, 1969, appearing thereon as the date of execution. Eberenz, while at first testifying that he signed it on May 8, later testified that he could not remember when he signed it but that it was probably signed on May 8. He did not attempt to explain why he would be signing a new contract with CIU more than 2 months before the effective date of the new contract and about a month before the expiration date of his own memorandum agreement adopting the old CIU contract The picketing continued off and on from May 6 to about June 5, 1969, when it was called off as a result of Eberenz' agreement to send two of his men down to Respondent Union's office to pay dues and his agreement to make Welfare and Pension Fund payments covering these two men. Two of R & E's employees did thereafter appear and pay their dues but R & E never complied with its agreement to pay into the Welfare and Pension Funds. The General Counsel, in support of his contention that Respondent Union had abandoned its contractual relations with R & E, showed that Respondent Union never made any attempt to enforce the union security provisions of either contract; that it appointed no union steward for R & E's employees; and that prior to May 6, 1969, it made no effort to collect from R & E the Welfare Fund and Pension Trust payments required under the terms of the contracts or to require R & E to purchase Vacation Stamps as required by the contracts. Respondent Union sought to justify its inaction by explain- ing that it had only two business agents in St. Louis County to service about 500 contractors; most of these, like R & E, were small contractors having less than 10 employees and were engaged in performing small jobs lasting only a few hours or few days; it was the practice of the two business agents to try to service the employees they represented by talking to them on the job; the small contractors like R & E were hard to locate on any job because they moved from one situs to another so frequently; no union steward was appointed for R & E's operations because it was assumed that the turnover of R & E's employees was very great, as was true with other small contractors; and a steward on one job might not be on the next job R & E performed. Harvill testified that he sought to talk to Eberenz on one occasion by going to the latter's office but found that he was not in. Eberenz countered with the assertion that his office had been at the same address for about 12 years where persons having business with him can and have reached him; that he has had the same telephone number for about 12 years; and that he has carried ads in the yellow pages of the telephone directory. Eberenz further testified that during the last 4 or 5 years he has had a number of jobs lasting for at least as long as a month an that one lasted about 9 months. He testified, moreover, that most of his employees have been in his employ for a number of years. C. Analysis and Conclusions Aside from some vague hope that an employer who signs a collective-bargaining agreement will live up to its terms and thereby contribute to the maintenance of an areawide standard of wages and working conditions, one wonders why Respondent Union would bother to sign up a small contractor like R & E if, as it says, it does not have the personnel or capacity to police and enforce the terms of its contracts Despite Respondent Union's failure to appoint a union steward on any of R & E's jobs and its failure to pursue R & E and insist on it carrying out its obligations under the contract, I am not persuaded that Respondent Union ever intended to abandon its contractual relations with R & E. It is quite believable, as Harvill testified, that if he had stumbled onto R & E's men at work prior to May 6 , 1969, he would have taken the same kind of action he took on May 6 and thereafter to try to induce R & E to comply with its contractual obligations. I have no doubt that the prolonged period of dormancy by Respondent Union in servicing R & E's employees might properly have precluded Respondent Union from asserting its contracts as a bar to a representation petition.' Nevertheless, it does not necessarily follow that Respondent Union's picketing, even if it had as an object the forcing of R & E to recognize or bargain with it for the forcing of R & E's employees to select it as their bargaining representative, constituted a violation of Section 8(b)(7)(A) of the Act. In my view, such a violation has not been established because the General Counsel has not sustained his burden of proving that R & E was lawfully recognizing another labor organization during the period of the picketing. Nei- ther any CIU representative or any employee was called to testify regarding the circumstances under which the CIU became the bargaining representative of R & E's employees. Although R & E President Eberenz testified that all his employees signed CIU cards before he entered into contractual relations with the CIU, no cards were introduced to substantiate his testimony . I am convinced upon the entire record that the employees were mere pawns in his hands; that Eberenz, in signing the contract with the CIU on June 7, 1968, was acting in his own self interest, hoping to relieve himself of a continuing liability for welfare, pension and vacation benefits under Respondent Union's contract , and not pursuant to any desire expressed by his employees for a change in their bargaining representa- tive. The following circumstances support this conclusion: Eberenz testified that he could not remember whether it was he or his employees who first brought up the subject ' See Local 1098, International Hod Carriers (Bernard Card & Sons, Inc), 140 NLRB 1147, and SchaeferBody, Inc., 85 NLRB 195 LOCAL UNION NO. 42 LABORERS of representation by the CIU and whether it was he or someone else who first got in touch with the CIU about representing his employees. I am convinced from Eberenz' equivocal testimony that it was he who did so. The CIU master contract which R & E adopted for its employees did not purport to cover the type of work being performed by R & E's employees, did not provide for any wage rate as high as that R & E employees were already receiving and provided for none of the fringe benefits to which those employees were already entitled under Respondent Union's contract, thus making it highly improbable that they would voluntarily choose representation by the CIU rather than by Respondent Union. Moreover, no evidence was adduced as to any attempts by the CIU to persuade employees that membership in that union would benefit them in any way. Significant, too, is the fact that R & E, immediately upon signing the agreement with CIU, and without any written authorization from its employees, began withholding initiation fees and dues from their pay- checks and transmitting them to the CIU, in violation of Section 302 of the Labor Management Relations Act. This unlawful assistance to the CIU was still continuing at the date of the hearing and in my view, that, without more, would preclude a finding that R & E was lawfully 167 recognizing the CIU following R & E's premature renewal of its contract with CIU on May 8, 1969 (if, indeed, it was renewed on that date).' Since a preponderance of the evidence does not show that R & E was lawfully recognizing the CIU during the period when Respondent Union was picketing its jobsite, I find no support in the record for a finding that Respondent Union has violated Section 8(b)(7)(A) of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following: RECOMMENDED ORDER The complaint herein is hereby dismissed in its entirety. ' I note, incidentally, that no evidence was adduced to show that the CIU ever appointed a steward or took any other steps after the signing of the contracts to represent R & E's employees Since, in a case of this kind, the burden is on the General Counsel to show that the employer was lawfully recognizing a union other than the picketing union and that a question concerning representation could not appropriate- ly be raised at the time of the picketing, it can reasonably be argued that the General Counsel, in this respect also, laded to sustain his burden of proof