North Central Illinois Laborers' Council

NORTH CENTRAL ILLINOIS LABORERS' COUNCIL North Central Illinois Laborers' District Council and Laborers' International Union of North America, AFL-CIO, Local #362 and Laborers' International Union of North America, AFL-CIO, Local #996 and The Associated General Contractors of Illinois. Cases 38-CB-567, 38-CB-568, and 38-CB-571 June 26, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On March 29, 1974, Administrative Law Judge Wellington A. Gillis issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 considered the record and the at- tached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondents, North Central Illinois La- borers' District Council, Peoria, Illinois; Laborers' In- ternational Union of North America, AFL-CIO, Local #362, Bloomington, Illinois; and Laborers' In- ternational Union of North America, AFL-CIO, Lo- cal # 996, Roanoke, Illinois, their officers, agents, and representatives, shall take the action set forth in the said recommended Order. 11 as amended on December 17, 1973, by the General Counsel for the National Labor Relations Board, hereinafter re- ferred to as the Board, against North Central Illinois Labor- ers' District Council, hereinafter referred to as the Council, Laborers' International Union of North America, AFL- CIO, Local #362, hereinafter referred to as Local #362, and Laborers' International Union of North America, AFL-CIO, Local #996, hereinafter referred to as Local #996, alleging violations of Section 8(b)(3) and (1)(A) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and upon an answer and amend- ed answer timely filed by the Respondents denying the com- mission of any unfair labor practices. All parties were represented by counsel, and were afford- ed full opportunity to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argument. Subsequent to the close of the hearing and within the extension of time authorized for filing, timely briefs were submitted by counsel for all parties. Upon the entire record in this case, and from my observa- tion of the witnesses and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of testi- mony" (Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496), I make the following: Findings and Conclusions I THE BUSINESS OF THE EMPLOYER The Associated General Contractors of Illinois is a trade association of contractors engaged in constructing highway, heavy, municipal, or utility projects, with its principal office located in Springfield, Illinois. It is engaged in the business, inter alia, of negotiating and executing collective-bargaining contracts on behalf of its employer members. Among the approximately 170 employer members of the Associated General Contractors is R. A. Cullinan and Son. During the immediate 12-month period, R. A. Cullinan and Son purchased cement, steel, and equipment valued in excess of $250,000, which materials were received in various counties within Illinois by R. A. Cullinan and Son directly from points outside the State of Illinois. Upon these facts I find that the Associated General Contractors of Illinois and its employer members are now, and at all times material herein have been, individually and collectively, employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act.' II THE RESPONDENT LABOR ORGANIZATIONS DECISION STATEMENT OF THE CASE WELLINGTON A. GILLIS, Administrative Law Judge: This case was tried before me on January 8, 1974, at Peoria, Illinois, and is based upon charges filed on November 1, 1973, by the Associated General Contractors of Illinois, hereinafter referred to as the AGC or the Employer, upon the consolidated complaint issued on November 19, 1973, The parties admit, and I find, that North Central Illinois Laborers' District Council, and Local #362 and Local #996, Laborers' International Union of North America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. Associated General Contractors ofAmenca, Inc., Evansville Chapter, et al, 182 NLRB 224; Local Union No. 103, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, et al, 190 NLRB 741. 212 NLRB No. 3 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 111 THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The issue presented by the pleadings herein is whether the Respondents violated Section 8(b)(3) of the Act by insisting, as a precondition to entering into an agreement with the AGC, that the AGC agree to support and urge approval of the terms reached before the construction industry stabiliza- tion committee and to relinquish its right to protest any of the terms of the collective-bargaining agreement before the CISC. B. The Facts Over a period of many years the AGC and the Respon- dent Council have been parties to a contractual relation- ship. The most recent collective-bargaining agreement, effective from April 1, 1969, until April 1, 1972, and execu- ted on the one hand by the District Council and its affiliated Local unions, and, on the other by contractors in Highway Districts 3 and 4, affiliates of AGC of Illinois, covers work in Highway Districts 3 and 4, and recognizes the Union as the exclusive collective-bargaining representative with re- spect to wages, hours, and other working conditions for all laborers and watchmen employed by the Employer in the Illinois counties of Ford, Hancock, McDonough, Hender- son, Knox, Henry, Western Half of Stark, Marshall, Eastern Half of Stark, Iroquois, Kankakee, Livingston, Woodford, and McLean.2 In March 1972 negotiations for a new contract com- menced, and, on or about May 11, 1972, the Respondent and certain of the associations having agreed to the terms of a contract, the Respondent conferred with the craft board under the construction industry stabilization commit- tee as to approval of the proposed wage rates.3 The follow- ing September 25, 1972, the CISC notified those concerned that it would approve wage increases lower than those sub- mitted by the parties. On October 6, 1972, all of the employ- er associations agreed to the wage rates that had been approved by CISC, and a new contract and wage rates was then submitted to CISC. It appears that subsequent to this, Richard Curren, direc- tor of labor relations for the AGC, made inquiries of the CISC concerning the appropriateness of the wage rates. Learning that the craft board had acted on the wage rates without certain pertinent information, Curren registered a protest with the CISC. As a result, the following May 1973, the parties were notified that approval of certainjob classifi- cations contained in the contract was being withheld. In June 1973, the Respondent demanded premium pay for certain job classifications and simultaneously threatened to strike. The Respondent was enjoined by the Federal court ] In addition to Respondent Locals #362 and #996, Local unions affiliat- ed with the District Council include Local # 1393, Local # 991, Local # 538, Local #852, Local #641, Local #757, Local #751, and Local #862 Each of these Local unions is listed as having jurisdiction in one or more of the counties specified. i As elaborated on hereinafter , in the construction industry any contract negotiated must be approved by the CISC The latter organization has set up a number of craft boards to advise and assist from striking over terms that had not been approved by CISC. In August 1973, the CISC ordered the parties to negotiate a new collective-bargaining agreement. Thereaf- ter, on October 16, 1973, pursuant to the AGC's request, the parties met. This was followed by a second meeting on October 29, 1973, with Curren and Attorney Stuart Cohen representing the AGC, and Attorney J. F. Souders and Henry Gauwitz, business manager of Respondent Council, along with other Local representatives, present for the Respondents. Gau- witz asked Curren what his position was with respect to the contract that had been agreed to and what were the Employer's demands. Curren stated that the Employer wanted either an entirely separate document or an adden- dum to the contract, his preference being the former. At this point, the parties went through each and every article of the agreement, with Curren objecting in some respect to virtual- ly all of the provisions as written. Following this discussion, and with disagreement still existing between the parties on many items, the Union advised the Employer that whatever agreement was reached the Employer would have to agree to support it before the CISC and to not protest it to the CISC. The Respondent admitted at the hearing that this was insisted upon by the Union as a precondition to any agree- ment on a contract. Although the parties subsequently met at the Federal Mediation offices in Peoria on November 8, 1973, with the Union making an offer to settle an existing strike against AGC contractors, there has been no further contract negot,►- ations between the parties since the October 29, 1973, meet- ing. Analysis and Conclusions I find, contrary to the assertion of the Respondents, that the historical unit as reflected in the most recent contract, is an appropriate unit, namely, all laborers and watchmen, excluding guards, professional employees, and supervisors within the meaning of the Act, employed within the geo- graphical territory of the District Council in the following Illinois counties: Ford, Hancock, McDonough, Henderson, Warren, Knox, Henry, Stark, Marshall, Iroquois, Kankak- ee, Livingston, Woodford, and McLean. Inasmuch as the AGC has, over a period of many years, been a party to the contract with the Respondent Council, if not present during negotiations, the fact that the CISC recognized the existence of a bargaining relationship be- tween the two by honoring the AGC's protest of the terms of the agreement previously submitted by the Respondents for approval, and that, at the time of the alleged violation herein, the AGC was in the course of bargaining with the Respondent and recognized by the Respondent, I find, con- trary to the assertion of the Respondent, that the AGC was, and is, a proper bargaining representative, and as such, as admitted by counsel for the Respondent, entitled to be a party to any new collective-bargaining agreement that may be negotiated to replace the expired contract. Turning to the narrow issue, the question presented is whether insisting, as a precondition to entering into a collec- tive-bargaining agreement with the AGC, that the latter agree to support and urge approval of the terms reached NORTH CENTRAL ILLINOIS LABORERS' COUNCIL before the CISC and to relinquish its right to protest any of the terms of the agreement before the CISC, constitutes a refusal to bargain within the proscription of Section 8(a)(5) of the Act. In short, the question is whether the subject matter of such a demand is a mandatory subject of bargain- ing. I find that it is not. In so finding, one must first look to the purpose and status of the construction industry stabilization committee. Pursuant to the Economic Stabilization Program, by Execu- tive Order 11588, the CISC was established for the purpose of stabilizing wages in the construction industry and "to assure generally conformance of any increase in any wage or salary in the construction industry to the provisions of the Order." Such order provides for the creation of craft dispute boards, comprised of representatives of labor and industry, to assist in resolving wage disputes and, subject to review by CISC, to pass on the acceptability of negotiated wage increases. In order to review a contract to determine whether negotiated wage rates are acceptable the contract- mg parties are required to submit the contract with support- ing data to the appropriate craft dispute board. CISC procedures provide the parties with the opportunity to sub- mit to the board "written data, views, or arguments" relative to the issues concerning the wage rates. The CISC may review the craft dispute board's decision on its own initia- tive or in cases where the craft dispute board cannot agree on the acceptability of the negotiated wages. The CISC has the authority to require the submission of data it deems appropriate, and the parties, at the discretion of the CISC, may file statements setting forth their views and submit written data and arguments pertinent to the issues. The distinction drawn between mandatory and nonman- datory subjects of bargaining arises from the language of Section 8(d) of the Act which requires parties "to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employ- ment...... In the landmark Borg-Warner case 4 the Su- preme Court, applying Section 8(a)(5) and Section 8(d), stated that Read together, these provisions establish the obligation of the employer and the representative of its employees to bargain with each other in good faith with respect to "wages, hours, and other terms and conditions of em- ployment. . . . The duty is limited to those subjects, and within that area neither party is legally obligated to yield. . . . As to other matters, however, each party is free to bargain or not to bargain, and to agree or not to agree. Further applying the logic of the Court's reasoning, since it is lawful to insist upon matters within the scope of manda- tory bargaining and unlawful to insist upon matters with- out, the question here is whether the agreement not to protest insisted upon by the Respondents is a subject within the phrase "wages, hours, and other terms and conditions of employment," and, specifically, whether such agreement 4 N.L.R B v. Wooster Division of Borg-Warner, 356 U.S. 342 (1958) 13 "sets forth a term or condition of employment or regulates the relation between the employer and its employees." 5 An agreement that the Employer relinquish its right to protest terms of an agreement before the CISC does not, in itself, set forth a term or condition of employment or regu- late the relation between an employer and its employees, and thus, cannot be held to be a mandatory subject of bargaining. While a protest before the CISC may have some effect upon wages, this does not convert an agreement to relin- quish a right to protest, a nonmandatory matter, into a mandatory subject of bargaining. Further, as the CISC is under mandate to monitor the terms and conditions of col- lective-bargaining contracts in the construction industry and to determine whether such terms are acceptable and noninflationary, an agreement by parties to such a contract to withhold information in this regard and to merely urge support and approval of the terms reached would, in my opinion, contravene the Federal Wage Stabilization policy. Such an agreement, I find, is outside the scope of mandatory subjects of collective bargaining. Finally, under the policies and procedures of the CISC, the AGC has the legal right to present its views and, in doing so, to protest the terms of a contract, a right similar to the right to institute a lawsuit or to file an unfair labor practice charge. These rights are not subject to the collective-bar- gaining process, and, by insisting on conditioning entering into an agreement with the AGC upon the latter's agree- ment to support and urge approval of the terms reached before the construction industry stabilization committee and to relinquish its right to protest any of the terms of the agreement before the CISC, I find that the Respondents engaged in an unfair labor practice within the meaning of Section 8(b)(3) of the Act 6 Upon the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondents, North Central Illinois Laborers' District Council, Laborers' International Union of North America, AFL-CIO, Local #362, and Laborers Interna- tional Union of North America, AFL-CIO, Local #996, are labor organizations within the meaning of Section 2(5) of the Act. 2. Associated General Contractors of Illinois, and its em- ployer members, are employers engaged in commerce with- in the meaning of Section 2(6) and (7) of the Act. 3. All laborers and watchmen, excluding guards, profes- sional employees and supervisors within the meaning of the Act, employed within the geographical territory of the North Central Illinois Laborers' District Council in the Illi- nois counties of Ford, Hancock, McDonough, Henderson, Warren, Knox, Henry, Stark, Marshall, Iroquois, Kankak- ee, Livingston, Woodford, and McLean, constitute a unit 5 International Union of Operating Engineers, Local Union No. 12, et al, 187 NLRB 430 6 Although alleged in the complaint, the General Counsel at no time ar- gued that such conduct also constitutes a violation of Sec 8(b)(1)(A) of the Act. I find that it does not. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. North Central Illinois Laborers' District Council and its affiliated Local Unions, including Laborers' Internation- al Union of North America, AFL-CIO, Local #362 and Local #996, at all times material herein, has been, and is, the exclusive bargaining representative of the employees in the aforesaid appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment. 5. By insisting on conditioning entering into an agree- ment with the AGC upon the latter's agreement to support and urge approval of the terms reached before the construc- tion industry stabilization committee and to relinquish its right to protest any of the terms of the collective-bargaining agreement before the CISC, a nonmandatory subject of bargaining, the Respondent Unions have, since October 29, 1973, engaged in unfair labor practices within the meaning of Section 8(b)(3) and Section 2(6) and (7) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. IV THE EFFECT UPON COMMERCE OF THE UNFAIR LABOR PRACTICES The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Associated General Contractors of Illinois as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY It having been found that the Respondents have engaged in certain unfair labor practices, it is recommended that they cease and desist therefrom and that they take certain affirmative action which is necessary to effectuate the poli- cies of the Act. Upon the foregoing facts, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER7 The Respondents, North Central Illinois Laborers' Dis- trict Council, and Laborers' International Union of North America, AFL-CIO Local #362 and Local #996, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to bargain with Associated General Con- tractors of Illinois on behalf of the laborers and watchmen in the appropriate unit, by insisting, as a precondition of entering into a collective bargaining agreement, that the AGC agree to support and urge approval of the terms reached before the construction industry stabilization com- mittee and to relinquish its right to protest any of the terms of the agreement before the CISC. (b) In any like or related manner refusing to bargain with Associated General Contractors of Illinois. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Post at the Respondent North Central Illinois Labor- ers' District Council's business offices and meeting places, and at the business offices and meeting places of Respon- dent Local #362 and Respondent Local #996, Laborers' International Union of North America, AFL-CIO, copies of the attached notice marked "Appendix." 8 Copies of the notice on forms provided by the Officer-in-Charge of Sub- Region 38, shall, after being duly signed by an authorized representative of each of the Respondents, be posted, as aforesaid, immediately upon receipt thereof and maintained for at least 60 consecutive days thereafter. Reasonable steps shall be taken by each of the Respondents to ensure that said notices are not altered, defaced, or covered by any other material. (b) Promptly, upon receipt of copies of said notice from the Officer-in-Charge, return to him signed copies for post- ing by Associated General Contractors of Illinois, and its employer members, their being willing, in places where no- tices to employees are customarily posted. (c) Notify the Officer-in-Charge for Sub-Region 38, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. It is recommended that the 8(b)(1)(A) allegation of the complaint be dismissed. 7 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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 8 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively by insist- ing as a precondition to entering into a collective-bar- gaining agreement with the Associated General Contractors of Illinois, that the latter agree to support and urge approval of the terms reached before the con- struction industry stabilization committee and to relin- quish its right to protest any of the terms of the agreement before the CISC. WE WILL NOT, in any like or related manner, refuse to bargain with Associated General Contractors of Illi- nois. NORTH CENTRAL ILLINOIS LA- BORERS' DISTRICT COUNCIL (Labor Organization) NORTH CENTRAL ILLINOIS LABORERS' COUNCIL 15 Dated By (Representative) (Title) Dated By (Representative) (Title) Dated By This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning (Representative) (Title) this notice or compliance with its provisions may be direct- ed to the Board's Office, Savings Center Tower, 10th Floor, LABORERS' INTERNATIONAL Peoria, Illinois 61602, Telephone 309-673-9312. UNION OF NORTH AMERICA, AFL-CIO, LOCAL #996 (Labor Organization) LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, LOCAL #362 (Labor Organization)