Catalytic, Inc.

CATALYTIC, INC 471 Catalytic, Inc. and Local 542, International Union of Operating Engineers, AFL-CIO, Petitioner. Case 4-RC-10462 July 16, 1974 DECISION ON REVIEW AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND PENELLO On October 17, 1973, the Regional Director for Region 4 issued a Decision and Direction of Election in the above-entitled proceeding, in which he rejected the Employer's contract-bar contention and directed an election in the Petitioner's requested unit of all operating engineers and operators, maintenance and service men on construction and heavy equipment used in plant maintenance, repair, and renovation employed by the Employer at the Getty Oil Company plant in Delaware City, Delaware. Thereafter, in ac- cordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, as amended, the Employer, supported by the Building and Con- struction Trades Department, AFL-CIO,' filed a re- quest for review of the Regional Director's Decision on the grounds, inter alia, that he erred in failing to find that the Petitioner's parent (herein referred to as the Operating Engineers), has bargained on a mul- tiunion basis for all maintenance employees of the Employer and that the instant petition must be dis- missed because the Operating Engineers had not ef- fectively withdrawn from multiunion bargaining with respect to the employees involved. The Petitioner filed opposition to the request for review. On December 18, 1973, the National Labor Rela- tions Board, by telegraphic order, granted the request for review and stayed the election pending decision on review. 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 entire record in this case with respect to the issues under review, and makes the following findings: The Employer advanced as a bar to the instant petition the existing agreement, entitled "General Presidents' Project Maintenance Agreement By Con- tract" (hereinafter PMA), between the Employer and 13 International unions including the Operating Engi- neers.2 The Regional Director concluded, however, that as the PMA was not signed by the Operating Engineers, it did not meet the requirements of Appala- chian Shale Products Co., 121 NLRB 1160, for the purpose of barring an election herein. The Employer and BCTD assert that the record supports a finding that the Operating Engineers has been part of a multiunion relationship in negotiations with the Employer with regard to its plant mainte- nance employees, that the Operating Engineers has not effectuated a timely and effective withdrawal from the established multiunion relationship, and that the Petitioner is bound by the actions of the Operating Engineers with regard to the representation of the employees herein sought and may not, therefore, maintain a petition to represent them in a separate unit at this time. We find merit in these contentions. Prior to 1956, the plant maintenance industry was dominated by nonunion subcontractors and employ- ers whose maintenance employees were represented by industrial unions. The Employer, at this time, was engaged exclusively in construction work and was party to collective-bargaining agreements with num- erous construction locals in the area. In 1956, howev- er, the Employer had received a commitment for a maintenance contract at the Getty refinery on the contingency that it could negotiate a labor agreement with "a lessening set of conditions than apply to con- struction-in other words, if the working conditions were not as strong or as costly as construction condi- tions." The Employer approached the various con- struction trades Internationals here involved in hopes of securing such an agreement on the theory that they would be willing to negotiate directly, without their locals, in return for the increased and nonseasonal employment opportunities a successful agreement might bring. On September 17, 1956, the Employer and the pres- idents of the 13 International unions entered into their first PMA, for a 1-year term renewable from year to year, absent 60-day notice by either party to negotiate changes or terminate. The purposes of the agreement were set forth in its preamble- Whereas, the Contractor is engaged in the busi- ness of continuous plant maintenance, repair and Z International Association of Heat and Frost Insulators and Abestos Workers. Bricklayers. Mason and Plasterers International Union of Amen- ca. Union Brotherhood of Carpenters and Joiners of America, Laborers' International Union of North America , International Brotherhood of Paint- ers and Allied Trades, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, International Iron Ship Builders , Blacksmiths, Forgers and Helpers, Opera- tive Plasterers and Cement Masons International Association , Sheet Metal Workers International Association, International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers (herein referred to as the Team- sters ), International Union of Operating Engineers , International Associa- 1 Herein called the BCTD It requested and was granted permission to file tion of Bridge. Structural and Ornamental Iron Workers All of these a brief as amicus curiae in support of the Employer's request for review International Unions, except the Teamsters, are members of the BCTD 212 NLRB No. 65 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD renovation . . and this work is of importance to the Unions herein listed, and it being recognized there is an essential difference in the conditions required to perform this type of work, the Unions herein listed with the Contractor wish to enter into an agreement for their mutual benefit cover- ing work of this nature. Whereas, the Unions have in their membership throughout the area members competent and qualified to perform the work of the Contractor. . . . Whereas, in order to insure relative equity and uniform interpreta- tion and application, the Unions wish to establish and administer said Collective Agreement in concert, each with the other, and all with the Contractor. Whereas, the Contractor and the Unions desire to mutually stabilize wages, hours and working conditions. . . . It is therefore, agreed by the undersigned Contractor and Unions in consideration of the mutual promises and convenants contained herein that the project agreement be made.. . . The agreement further provided that maintenance employees were to be secured from the hiring halls of the various locals with which the Employer had col- lective-bargaining agreements and that each employ- ee was to be paid at a wage rate equal to the rate appearing in the construction agreement between the Employer and that employee's local union.' Ongoing administration of the PMA was delegated by the presidents of the 13 International unions to a General Presidents' Committee (hereinafter GPC) which was comprised of one representative for each International president. Pursuant to this delegation, the GPC negotiated revisions in the agreement in 1960 and 1970, by which time the PMA concept had prov- en successful, to the extent that approximately 100 other employers had entered into similar arrange- ments with the International unions involved. By 1971, however, as construction rates increased, many employers operating under the PMA found themselves subject to increasing competition, and, un- der pressure for remedial action, the GPC, on Febru- ary 8, 1971, met with the General Presidents, who authorized GPC to take "any feasible action neces- sary to retain and expand" the PMA concept. On March 31, 1971, the GPC, with the concurrence of the Operating Engineers representative, unanimously adopted a resolution to amend the 1970 PMA by eliminating the requirement that maintenance rates equal construction rates and providing, in its stead, that maintenance rates would be determined on the basis of a percentage of the construction rates. That percentage was left undetermined but, in the interim, a freeze on maintenance rates was instituted on 27 maintenance projects across the country. The Employer's Getty project was not immediately affect- ed, but after consultation with area officials and the international representatives, the GPC, on January 6, 1972, frozen wages at the Employer's maintenance operation for the period January 1, 1972, to January 1, 1973. In the summer of 1972, it appears, the BCTD au- thorized the GPC to modify the PMA so that the freeze on maintenance rates equalled 90 percent of the applicable construction rate, with such "90% parity" to be maintained thereafter. The GPC instituted this modification which, in turn, was approved by the BCTD, sitting in executive session, on November 28, 1972. The Operating Engineers participated in the meeting. The revised PMA, with an effective date of March 1, 1973, was thereupon offered to and signed by the Employer Although the Operating Engineers has not signed the revised agreement, Petitioner has, at all times material herein, continued to operate un- der the terms of the revised agreement. The record, furthermore, is devoid of any indication that the Op- erating Engineers has at anytime taken affirmative steps to withdraw from the multiunion group We think the record amply supports the conclusion that the PMA was a collective venture in which the participating Internationals, in the words of the PMA itself, agreed "to establish and administer said Collec- tive Agreement in concert, each with the other, and all with the contractor." Therefore, our determination must consider the degree to which the actions of the parties to that agreement conform to the standards we have established for withdrawal from anoint bargain- ing relationship. In this respect, we note that it has long been our policy to hold the parties to the results of the joint negotiation in the absence of an effective withdrawal, i.e., one which is both timely and un- equivocal.' As the record indicates, the decision to adopt a "90% parity" wage rate to cover maintenance work was the outgrowth of two earlier decisions in which Operating Engineers representatives participated. The first, the February 8, 1971 delegation to the GPC to take "any feasible action necessary to retain and expand" PMA, clearly envisioned further action on the part of the GPC to accomplish the stated goals of the delegation. Pursuant to that delegation, the GPC, J In return for the payment of construction wage rates the agreement ° See, e g . The Evening News Association, Owner and Publisher of The eliminated , inter aha, many "fringe wages" normally appearing in construc - Detroit News," 154 NLRB 1494 ( 1965) See also international Union ofOperat- tion agreements and thus helped to overcome the competitive advantage ing Engineers, Local 525, AFL-CIO (Clark Oil & Refining Corporation), 185 enjoyed by the nonunion employers and industrial unions NLRB 609 (1970) CATALYTIC, INC 473 again joined by a representative of the Operating En- gineers, froze maintenance wages on several projects across the country. The first indication of discontent within the Operating Engineers presumably did not surface until the subsequent GPC determination to include Employer's operations in the number of pro- jects where maintenance rates would be frozen. How- ever, during this period the participating Operating Engineers locals continued to perform maintenance work at the frozen rate. The freeze was further acknowledged, from the out- set, to be but an interim step designed to pave the way for a revision of PMA whereby maintenance rates were to be determined on the basis of a percentage of the applicable construction rate. When the BCTD on November 28, 1972, approved the revision of PMA which set maintenance rates at the "90% parity" fig- ure, the Operating Engineers participated in that deci- sion. Once again, although the Operating Engineers did not agree with that decision, its participating lo- cals continued to perform the maintenance work but, this time, at the 90-percent wage rate.5 In our view, the 1973 PMA was the outcome of an ongoing process beginning with the decision, in Feb- ruary 1971, to remedy the inadequacies of the then- existing agreement. Because the Operating Engineers voluntarily participated in that process, including its participation in the November 28, 1972, decision to approve the current agreement, and because Peti- tioner, the beneficiary of that agreement, continued, at all times material herein, to operate under its terms, we conclude that there has been no clear and unequiv- ocal withdrawal from the joint negotiations. We find, therefore, that the Petitioner is precluded from seek- ing separate representation of the employees in the unit sought at this time.' Accordingly, we shall dismiss the petition. ORDER It is hereby ordered that the petition in this case be, and it hereby is, dismissed. ty of GPC to alter the wage provisions of the PMA The arbitrator issued his award, adverse to Petitioner , on October 30, 1972 We view Petitioner's filing of the grievance as further evidence of its operation under, and adherence to. the extant multiunion bargaining relationship with the Employer During this period the Petitioner filed a grievance . contesting the author - 6 In view of our disposition herein , we find it unnecessary to reach other contentions made by the Employer and the BCTD