Local 264, Laborers

40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 264, Laborers International Union of North America and J. J. Dalton and Owen Glover, d/b/a D & G Construction Co. Case 17-CB-1301 January 6, 1975 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On .August 13, 1974, Administrative Law Judge Herman Corenman issued the attached Decision in this proceeding. Thereafter, Respondent, Charging Party, and Intervenor, Builders Association of Kansas City, filed exceptions and supporting briefs, and the Charging Party filed a reply 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 briefs and has decided to affirm the rulings, findings, and conclusions, of the Administrative Law Judge' and to adopt his recommended Order as herein modified. The Administrative Law Judge concluded that Respondent did not violate Section 8(b)(1)(B) of the Act, as alleged in the complaint, because the Charging Party made no timely objection to that part of Respondent's contract proposal designating the Builders Association of Kansas City, the Intervenor herein, as the Charging Party's representative in the administration of the collective-bargaining agree- ment.2 However, the Charging Party did object to participating in the Laborers Industry Advancement Fund, which fund is administered by a committee appointed by the Intervenor Association . For the reasons stated by the Administrative Law Judge, Respondent's insistence on the Charging Party's participation in the Industry Advancement Fund violated Section 8(b)(3). However , as participation in the fund included the Charging Party's designation of the Association as its collective-bargaining repre- i The Administrative Law Judge's disposition of the issue of the timeliness of the service upon Respondent of the charge herein is supported by our decision in Glacier Lincoln-Mercury, 189 NLRB 640, 643 (1971) 7 We find no merit in the Charging Party's contention that it did object to being represented generally by the Intervenor in the administration of the agreement. Its objections were specifically limited to those matters we find herein to be nonmandatory subjects of bargaining . We do not regard the letter of protest sent by Charging Party after signing the agreement as creating an effective objection to such representation. 3 Metropolitan District Council of Philadelphia and Vicinity of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (McCloskey and Company), 137 NLRB 1583 (1962). We note that although Respondent , by its threat of picketing the job, apparently involved the general contractor to some extent in bringing the Charging Party to agree to Respondent's demands, the complaint does not sentative for the purposes encompassed in the administration of such fund, and as such designation was part of the action the Charging Party was forced to take by Respondent's threat of picketing, we find that Respondent's conduct also violated Section 8(b)(1)(B).3 We agree with the Administrative Law Judge that Respondent violated Section 8(b)(3) of the Act by insisting to impasse upon certain items that are not mandatory subjects of bargaining.4 In adopting the Administrative Law Judge's finding that the Labor- ers Administrative Expense Account is a nonmanda- tory subject of bargaining we recognize that it is not part of the Laborers Industry Advancement Fund, the latter being a nonmandatory subject under cases cited by the Administrative Law Judge. We recognize further that the moneys deposited in the Adminis- trative Expense Account, unlike those of the Industry Advancement Fund, are used to administer provi- sions of the collective-bargaining agreement concern- ing terms and conditions of employment which are mandatory subjects of bargaining. But such a tangential connection with terms and conditions of employment is insufficient to make a mandatory subject of bargaining out of a formula for employer payments into a fund to be used by the employer's own representative in administering the agreement. An employer's financial arrangements for compen- sating or reimbursing its collective-bargaining repre- sentative is not a matter of employer-employee relations. It is a matter only of the relations between the employer and its representative. Such relations are presumptively outside the scope of mandatory bargaining.5 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 as modified below and hereby orders that Respondent, Local 264, Laborers International Union of North America, Kansas City, Missouri, its officers, agents, allege that Respondent violated any of the provisions of Sec 8(b)(4) of the Act, and no party has contended that any such violations have been litigated. Similarly, while certain specific acts have been alleged and found to constitute per se violations of Sec. 8(b)(3), it is not alleged or contended that Respondent's conduct constituted an overall refusal to bargain in good faith. Charging Party's argument that Respondent violated Sec. 8(b)(1)(B) by spurning Charging Party's request to delay signing an agreement until its attorney could discuss certain provisions with Respondent's representative would have been more pertinent to an allegation of overall bad-faith bargaining, in our view, than to an additional violation of Sec. 8(b)(1)(B) in the circumstances of this case. 4 N.L. R. B. v. Wooster Division of Borg- Warner Corporation, 356 U.S 342 (1958). 5 Cf. N.L.R.B. v Borg-Warner, supra at 350. 216 NLRB No. 4 LOCAL 264, LABORERS 41 and representatives, shall take the action set forth in the said recommended Order, as modified herein: 1. Add the following as paragraph 1(b): "Restraining or coercing J. J. Dalton and Owen Glover, d/b/a D & G Construction Co. in the selection of its representative for the purposes of collective bargaining." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. examine witnesses, to argue orally on the record, and to file briefs. Briefs filed by the Charging Party, the Respondent, and the Intervenor have been carefully considered. Upon the .basis of the entire record including my observation of the witnesses and their demeanor and the briefs submitted, I make the following: FINDINGS OF FACT 1. COMMERCE AND JURISDICTION APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT by threat of picketing or in any like or related manner restrain or coerce J. J. Dalton and Owen Glover, d/b/a D & G Construction Co., in the selection of its represent- atives for the purposes of collective bargaining. WE WILL NOT refuse to bargain with J. J. Dalton and Owen Glover, d/b/a D & G Construction Co., by insisting on and forcing it to post a performance bond or to make payments for the account of the Laborer's Administrative Expense Account or the Laborer's Industry Advancement Fund, or any like or related program that is not a mandatory subject of bargaining. WE WILL reimburse J. J. Dalton and Owen Glover, d/b/a D & G Construction Co., for all moneys, if any, paid for the aforesaid perfor- mance bond or the aforesaid funds. LOCAL 264, LABORERS INTERNATIONAL UNION OF NORTH AMERICA DECISION STATEMENT OF THE CASE HERMAN CoRENMAN, Administrative Law Judge: The instant charge was filed on April 16, 1974, served by registered mail on April 17, 1974, and received by Local 264, Laborers International Union of North America, herein called the Respondent, on April 18, 1974. An amended charge was filed on May 24, 1974. The com- plaint, issued on May 31, 1974, alleges that the Respondent has violated Section 8(bXIXB) and (3) of the National Labor Relations Act, herein called the Act. The case was heard before me at Kansas City, Kansas, on June 25, 1974, and all parties appeared by counsel and participated in the hearing. The parties were given full opportunity to present evidence, to examine and cross- At all times material herein, the Charging Party, J. J. Dalton and Owen Glover d/b/a D & G Construction Co., were engaged as a concrete subcontractor on the Willow Creek Construction project in Kansas City, Missouri, involving the construction of 500 apartments in an area comprising 40 acres, by Price Brothers Mortgage Compa- ny, the general contractor. Price Brothers annually receives and ships into and from the States of Missouri and Kansas materials and products valued in excess of $50,000. The Charging Party furnished materials and services to Price Brothers in 1973 valued in excess of $50,000. The parties have agreed, and I find, that at all times material herein, the Charging Party and Price Brothers were engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 264, Laborers International Union of North America, herein called the Respondent or the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Respondent Union is party to a collective-bargain- ing agreement with a multiemployer group who are represented by and/or are members of the Builders Association of Kansas City, herein called the Association. Price Brothers, the general contractor on the Willow Creek project in Kansas City, Missouri, is not a member of the Association but is signatory to the collective-bargaining agreement between the Association and the Respondent. The agreement is printed in a blue book and is often referred to as the "Blue Book." On October 16, 1973, and for some time theretofore, Dalton, the Charging Party, had been engaged in supply- ing, pouring, and finishing concrete on the Willow Creek project under subcontract from Price Brothers, the general contractor. On October 16, 1973, Dalton employed four laborers on the project, all of whom were members of the Respondent Union. On the afternoon of October 16, 1973, Respondent Union's field representative, Columbus Sump- ter, visited the Willow Creek project. He checked to see if the laborers were in good standing with the Respondent Union. He also called on Joseph Dalton, the concrete subcontractor, and asked him to sign a contract stipulation with the Respondent Union. Sumpter didn't have a copy of the contract stipulation with him but he told Dalton that 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he would return the next day to have Dalton sign the contract.' Dalton's attorney, Mr. Stanford C. Madden, was formerly employed by the Association, and he had some familiarity with the contract between the Respondent and the Association . Dalton testified that on the evening of October 16, 1973, he called Attorney Madden about the contract. Madden suggested eliminating the $1,000 security performance bond and the 3 cents per hour before Dalton signed the contract. On the evening of October 16, Union Field Representa- tive Sumpter phoned Mr. Dale Ludlum, superintendent of the Willow Creek project, who agreed to set up a meeting for the following morning at the Willow Creek project office between Mr. Sumpter, himself, Mr. Price,2 and Mr. Dalton. When Sumpter came to the project office on the morning of October 17, 1973, Price called Dalton to the office to discuss the matter. According to Dalton's credible testimony, Mr. Price started asking Sumpter what was required to have the matter resolved . Sumpter replied that all that was necessar- y was for Dalton to sign the "yellow stipulation agree- ment." Dalton objected to posting the $1,000 bond. Sumpter told Dalton that in his case the performance bond would be $500 instead of $ 1,000. When Dalton objected to paying the 3 cents per hour, Sumpter told him it must remain in the agreement . Sumpter stated that Union Business Manager Jarrett had sent him out to get the contract stipulation signed. Dalton testified credibly that he suggested that the matter wait so that he and his lawyer, Mr. Madden, could call at the union office the next morning and talk to Mr. Jarrett. Mr. Sumpter would not agree to this. He told the group consisting of Price, Dale Ludlum, and Dalton that he had been sent out to get the contract signed or he would have to put a banner on the job .3 At this juncture, Price, Ludlum, and Dalton retired to another room where they tried to contact Attorney Madden without success. Price told Dalton that he could not afford to have the job shut down. Price told Dalton he would have to sign the contract or be "fired off the job." Dalton told Price he would sign the contract under protest. The three, Dalton, Ludlum, and Price, then returned to Sumpter in the office . Dalton testified credibly that there he again asked Sumpter if he and his lawyer could not come down to the union office the next day and try to work out something with Business Manager Jarrett. Sumpter said, "No, I was sent out to either put a banner up or get this contract signed ." 4 Faced with this threat of a banner placed on the job unless he signed the contract stipulation, Dalton signed but said in the presence of Price, Ludlum, and Sumpter, "I want it understood that I am signing this under protest." Dalton further testified credibly, with substantial corrob- oration from Price, that just prior to his decision to sign, Sumpter said, "If I don't sign it, he will put a picket up and r Sumpter testified that he left a blank copy of the contract stipulation in quadruplicate with Dalton on the afternoon of October 16 as Dalton wanted to confer with his attorney in the matter. 2 It was important to Price to settle the matter as his contract with the Respondent Union contained a subcontractor's clause providing that subcontractors on the jobsite were required to have a contract with the Respondent for laborers in their employ on thejobsite. he said, `Yes, I will.' You'll have a picket out here if I don't sign it." Sumpter left with the signed contract stipulation and Price, Ludlum, and Dalton resumed their work. The contract requirements set forth in the "Blue Book" to which Dalton, on advice of counsel, objected are designated by counsel for the General Counsel and by counsel for the Charging Party as nonmandatory subjects of bargaining. They may be found at article VIII of the "Blue Book" (G.C. Exh. 3). Each employee is paid 1 cent per hour by the employer to the Association (Laborer's Administrative Expense Account) and 2 cents per hour is payable for each employee to the account of the Associa- tion (Laborer's Industry Advancement Fund). The purpose of this 1-cent contribution is to assist the Association in partially defraying the costs of furnishing the management's share in the establishment , administra- tion, and enforcement of these programs and toward the Association's costs in time and effort in establishing and maintaining all the records provided for in this agreement. The 2 cents per hour for each employee shall be credited by the depositary to the account of the Association (Laborer's Industry Advancement Fund), such fund to be administered by a committee appointed by the Associa- tion. This fund is created in general to train and improve the efficiency of workmen and to improve general conditions and relationship of the construction industry as a whole, which shall include, but not be limited to, industrial relations, public relations, labor relations, safety, and any other function which is designed to advance and promote the interests of the building industry generally. With the signing of the contract stipulation, Dalton began paying the depositary, Traders National Bank, for the various fringe benefits set forth in article VIII of the "Blue Book," the amounts specified, such as for welfare, pensions, and vacations, but made no payments designated for the I cent to the account of the Association (Laborer's Administrative Expense Account) or 2 cents to the account of the Association (Laborer's Industry Advancement Fund). But in December 1973, when the Respondent Union refused to pay one of Dalton 's laborers his vacation money until the 3 cents was paid to the two above funds, 1 cent per hour for one fund, and 2 cents per hour for the other, Dalton began paying the 3 cents per hour to be allocated to the two funds so that the vacation money would be paid to his employees. Dalton, however, has not posted the $500 performance bond to guarantee the payment of wages and fringe benefit contributions re- quired by article VIII of the "Blue Book." The Issues The issues are as follows: 1. Does the 6-month limitation imposed by Section 10(b) of the Act require that this case be dismissed? 3 Price corroborates Dalton's testimony that on this occasion , Sumpter threatened to close down the job that day if the contract were not signed by Dalton. Sumpter's testimony that he made no threat to picket or put a banner on the job is not credited. 4 The above quote is from the credible testimony of Dalton, with substantial corroboration from Price who was also present at this conversation. LOCAL 264, LABORERS 2. Did the Respondent Union violate Section 8(b)(IXB) and (3) in forcing Dalton to sign the contract stipulations by means of Sumpter's threat to picket and close down the construction project if the contract stipulation was not signed by Dalton? A. The 10(b) Issue Section 10(b) of the Act provides in pertinent part "that no complaint shall issue based on any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom the charge is made." Section 102.112 of the Board's Rules and Regulations authorizes service of papers by a party on other parties, among other means by registered mail. Section 102.113 of the Board's regulations provides that the date of service shall be the day the matter served is deposited in the United States mail or is delivered in person, as the case may be. In computing the time from such date, the provisions of Section 102.114 apply. Section 102.114 of the Board's Rules and Regulations provides in pertinent part that: "In computing any period of time prescribed or allowed by these rules, the day of the act, event, or default after which the designated period of time begins to run is not to be included, .. . In the instant case, the alleged unfair labor practices occurred on October 17, 1973. The unfair labor practice charge was filed with the Board's Regional Office at Kansas City, Kansas, on April 16, 1974, deposited in the United States registered mail by the Regional Office on April 17 and delivered to the Union on April 18, 1974. It follows, according to Section 102.114 of the Board's Rules and Regulations, that the date of October 17, 1973, is not counted in computing the 6 months. In that case, the limitation period begins to run on October 18, 1973, and the last day of the 6-month period is April 17, 1974. As the charge was filed on April 16, 1974, and served on April 17, 1974, by registered mail (that is, deposited in the United States mail on that date), the service is timely even though the mail did not reach the Union's office till April 18, 1974. 1 find therefore that the charge was timely filed and served within the meaning of Section 10(b) of the Act. See Koppers Co., 163 NLRB 517 (1967); Luzerne Hide and Tallow Company, 89 NLRB 989 (1950). B. The Alleged 8(b)(1)(B) Violation The General Counsel's complaint alleges in substance that the Respondent Union by threatening to picket Dalton unless he signed a contract stipulation to be bound by the collective-bargaining agreement (Blue Book) be- tween the Association and the Respondent Union, thereby violated Section 8(b)(1)(B) of the Acts There is no evidence, however, in the record to support this allegation. Dalton made no objection on October 16 or 17 to the fact that the Association was the employer-representative in the 5 The contract stipulation in essence obligates the signing employer to be bound by all the provisions of the "Blue Book." 6 Sec. 8(b)(1)(B) of the Act provides that it shall be an unfair labor practice for a labor organization or its agents to restrain or coerce an employer in the selection of his representatives for the purposes of collective 43 administration of the collective-bargaining agreement (Blue Book) and he did not refuse to sign the contract stipulation for that reason. I find that Dalton was not restrained or coerced by the Union in the selection of the Association as his representative for the purposes of collective bargaining or the adjustment of grievances. I will therefore recommend that the 8(b)(1)(B) allegation in the complaint be dismissed. C. The 8(b)(3) Allegation There is substantial and credible evidence to substantiate the 8(b)(3) allegation of the complaint.? I find on the basis of the testimony of Dalton and Price that Sumpter, an agent of the Respondent Union, on October 17, 1973, by threats of strike action, forced Dalton to sign the contract stipulation, notwithstanding Dalton objected to the $1,000 or $500 cost-performance bond and the 1-cent and 2-cent payments to the Laborer's Administrative Expense Ac- count and the Laborer's Industry Advancement Fund whose purpose I have noted earlier in this Decision. It is now well established by Board and court decisions that these two funds and the performance bond do not fall within the meaning of wages, hours, and working condi- tions, and for that reason are not mandatory subjects of bargaining. Although these subjects may properly be placed on the bargaining table as permissive subjects of bargaining, and they may be voluntarily agreed to, it is impermissible to force agreement on these contract provisions by picketing, threats of picketing, or other coercive means. See, e.g., International Hod Carriers, Building and Common Laborers Union of America, Local #1082 (E. L. Boggs Plastering Co.), 384 F.2d 55 (C.A. 9, 1967), enfg. 150 NLRB 158 (1966); Plasterers Local 739 (Arnold M. Hansen), 157 NLRB 823 (1966); Sheet Metal Workers Local 80 (Turner-Brooks Inc.), 161 NLRB 229 (1966); Southern California Pipe Trades District Council No. 16, of the United Association (Aero Plumbing Co.), 167 NLRB 1004 (1967); also id. at 184 NLRB 398 (1970); United Slate, Tile & Composition Roofers Local No. 36 (Roofing Association of So. California), 172 NLRB 2248 (1968); Carpenters District Council of Detroit (Excello Dry Wall Co.), 145 NLRB 663 (1964). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the operations of J. J. Dalton and Owen Glover, d/b/a D & G Construction Co., described 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. bargaining or the adjustment of grievances r Sec. 8(b)(3) of the Act provides that it will be an unfair labor practice for a labor organization or its agents to refuse to bargain collectively with an employer, provided it is the representative of his employees subject to the provisions of Sec. 9(a). 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that the Respondent Union violated Section 8(bX3) of the Act by insisting on and forcing the signing of a contract stipulation requiring the posting of a performance bond and the payment of money to the account of the Association (Laborer's Administrative Account) and (Laborer's Industry Advancement Fund) by J. J. Dalton and Owen Glover, d/b/a D & G Construction Co., it is recommended that the Respondent Union cease and desist from insisting on these items. In order to restore the parties to the status quo ante it is recommended that the Respondent Union be ordered to return any sums of money paid by Dalton for a bond or into the funds above mentioned. Such payment shall bear interest at the rate of 6 percent per annum. Upon the basis of the foregoing findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. J. J. Dalton and Owen Glover, d/b/a D & G Construction Co., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent, Local 264, Laborers International Union of North America, is a labor organization within the meaning of Sections 2(5) and 8(bX3) of the Act. 3. At all times material herein, Respondent Union has been the exclusive bargaining representative for the unit of laborers employed by J. J. Dalton and Owen Glover, d/b/a D & G Construction Co., within the meaning of Section 9(a) of the Act. 4. By threats of picketing to force the signing of a contract stipulation requiring J. J. Dalton and Owen Glover, d/b/a D & G Construction Co.'s payment of a performance bond and to a Laborer's Administrative Expense Account and a Laborer's Industry Advancement Fund, and by insisting on such payments , the Respondent Union has violated Section 8(bX3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent Union has not violated Section 8(bx1XB) of the Act. s 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. 9 At the time of the hearing the Charging Party had not paid the Upon the foregoing 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: ORDERS The Respondent Local 264, Laborers International Union of North America, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain in good faith with J. J. Dalton and Owen Glover, d/b/a D & G Construction Co., by insisting on and forcing said Charging Party's posting a performance bond or making payments for the benefit of the Laborer's Administrative Expense Account or the Laborer's Industry Advancement Fund. 2. Take the following affirmative action to effectuate the purposes of the Act: (a) Return, or cause to be returned, all moneys J. J. Dalton and Owen Glover, d/b/a D & G Construction Co., has paid into the aforesaid funds or in connection with the posting of a performance bond .9 (b) Post in conspicuous places in Respondent Union's business offices, meeting halls, and all places where notices to members are usually posted , copies of the attached notice marked "Appendix." 10 Copies of said notice, to be furnished by the Regional Director for Region 17, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained for 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Forthwith mail copies of said notice to the said Regional Director after said copies have been signed as provided above for posting by D & G Construction Co., if they so agree, at places where they customarily post notices to laborers in their employ. (d) Notify the Regional Director, in writing, within 20 days from the receipt of this Decision , what steps Respondent Union has taken to comply therewith. IT IS FURTHER ORDERED that the 8(b)(1)(B) violation alleged in the complaint is dismissed. performance bond. 10 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."