North Central Montana Bldg. and Const. Trades Council

176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North Central Montana Building and Construction Trades Council and Sletten Construction Company. Case 19-CP-221 January 13, 1976 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On December 16, 1974, the National Labor Rela- tions Board issued its Decision and Order I in the above-entitled proceeding, finding that the Respon- dent had engaged in and was engaging in unfair la- bor practices in-violation of Section 8(b)(7)(A) of the National Labor Relations Act, as amended, and or- dering that it cease and desist therefrom. On May 30, 1975, the Board notified the parties that it had decid- ed, sua sponte, to zeconsider its decision and invited the parties to submit statements of position or sup- plemental briefs with respect to the violation of Sec- tion 8(b)(7)(A) of the Act and the Board's prior deci- sion in Dallas Building & Construction Trades Council, 164 NLRB 938, enfd. 396 F.2d 677 (C.A.D.C., 1968). On June 6, 1975, the United States Court of Appeals for the District of Columbia Cir- cuit remanded the proceeding to the Board for fur- ther consideration' of_ the entire matter pursuant to joint motion of the Board and the Respondent. Thereafter the Respondent and the Charging Party filed statements of position with the Board. Upon further request of the Board that the parties file state- ments of position with respect to the effect of the United States Supreme Court's decision in Connell Construction Company, Inc. v. Plumbers Local 100, 414 U.S. 616 (1975), Respondent filed a supplemen- tal statement and the General Counsel filed a state- ment of position? 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 reconsidered its decision in light of the entire record and the statements of position and has decided to dismiss the complaint essentially for the reasons stated by former Chairman Miller in his dissenting opinion. The Administrative Law Judge found that Re- spondent Council sent Sletten, the general contractor t 215 NLRB No 130 (1974) (Chairman Miller dissenting). 2 After time for filing statements of position had expired, the Charging Party submitted a request to file an additional citation relating to the Con- nell, supra, issue In the absence of any opposition thereto, the Charging Party's request is hereby granted on a construction project in Great Falls, Montana, a letter demanding that Sletten sign an enclosed sub- contracting agreement; that Respondent threatened to use all "lawful means" to protest a refusal to sign the agreement; and that on and after February 7, 1974, Respondent picketed Sletten at its Great Falls project with signs protesting Sletten's refusal to sign the subcontracting agreement. The Administrative Law Judge concluded that by this conduct Respon- dent violated Section 8(b)(7)(A) of the Act by threat- ening to picket and picketing Sletten with an object of forcing or requiring Sletten to recognize and bar- gain with Respondent as the collective-bargaining representative of Sletten's employees at a time when Respondent was not certified as such representative, but when Sletten had lawfully recognized other labor organizations as the representatives of its employees. We disagree. Sletten employs directly members of Operating Engineers, Carpenters, Laborers, Plasterers, Cement Masons, Teamsters, and Iron Workers, for whom Sletten has recognized, bargained with, and contin- ued its contracts with the respective trades locals. Sletten does not employ electricians, plumbers, bricklayers, sheet metal workers, asbestos workers, glaziers, painters, roofers, boilermakers, elevator con- structors, floor layers, or tilesetters, nor does Sletten have contracts with the respective locals for these trades; rather, when Sletten has work which requires the service of such trades, such work is subcontracted to employers that employ members of such crafts. The contract proposed by the Council for Sletten's signature denies that the Council seeks "recognition as the collective-bargaining representative" of Sletten's employees; by its terms, "applies only to work which the contractor does not perform with his own employees, but uniformly subcontracts to other firms"; and provides that for "the aforesaid work falling within the normal trade jurisdiction of any or all unions affiliated with the Council [Sletten] shall contract or subcontract such work only to firms that are parties to an executed, current collective-bargain- ing agreement with any or all union affiliates with the Council." In Dallas Building and Construction Trades Council, 164 NLRB 938 (1967), this Board found an 8(b)(7)(A) violation by a labor council which picket- ed to obtain a subcontracting agreement with a gen- eral contractor covering the "construction, altera- tions, painting and repairs of any building, structure or other works within Dallas and the surrounding area," and which contained limitations on subcon- tracting with respect to "the aforesaid work." Such language was construed as applying broadly to all subcontracting, including work normally done by the 222 NLRB No. 26 NORTH CENTRAL MONTANA BLDG. AND CONST. TRADES COUNCIL contractor's employees. Such an agreement was re- garded as having a potentially significant effect on the working conditions of the contractor's own em- ployees, since the council's agreement regulated the conditions under which the employer could and could not subcontract, a matter over which only properly certified or recognized representatives of the contractor's employees were entitled to bargain. Un- der such circumstances, the contractor is entitled to reject the demands of unions other than the certified or recognized representative, and any picketing to support any such demands is for the purpose of com- pelling at least partial recognition of the union mak- ing such improper demands. But in the instant case, the entire evidence with respect to the Council's recognitional objective is the wording of the proposed agreement itself. Unlike the broadly worded language in the council proposal in Dallas, the wording of the Council's proposal is limit- ed, as Respondent contends, to "work which-the con- tractor does not perform with his own employees, but uniformly subcontracts to other firms." 3 There is, therefore, no possible effect on other employers' own employees, and the demand cannot be found to be recognitional, and hence unlawful, in the absence of any evidence that the clause was intended to or was implemented in such a way as to achieve a recogni- tional objective not indicated by the language itself.4 There being no such evidence in this record, the Gen- eral Counsel has not met the burden of proving an improper recognitional motivation. Consequently, we shall dismiss the complaint.' 3 Contrary to-our dissenting colleague, we find that the proposed contract clause is neither ambiguous on its face nor in its application. On its face the clause applies to "work which the contractor does not perform with his own employees but uniformly contracts out to other firms." There is nothing ambiguous about this Should ajurisdictional dispute arise, as contemplated by Member Jenkins, the machinery of Sec. 10(k) of the Act is available to resolve the dispute. Once the work is assigned to a particular craft, it will then be clear whether the work must be performed by Sletten's own employ- ees or by individuals not employed by Sletten and therefore clear whether the work falls within or outside the purview of the proposed agreement. ' In Dallas, supra, the court stated (fn. 8): In this connection, the Board points out that its holding is really a fairly narrow one. Of course, only picketing is prohibited to the Council as a means of obtaining the union signatory contract. Moreover, even picket- ing is permissible if the coverage of the proposed contract is limited to the type of work which is never performed by the general contractors' own employees. [Emphasis supplied.] 5 The complaint alleges a violation of Sec 8(b)(7)(A). It does not allege a ORDER 177 It is hereby ordered that the complaint herein be, and it hereby is, dismissed. MEMBER JENKINS, dissenting: In the Board's earlier opinion in this case, I ex- pressed the view that the proposed subcontracting agreement "does not provide a basis for finding that Respondent was not seeking recognition by its threat to picket and picketing," and that Respondent's ac- tions were violative of Section 8(b)(7)(A). I am still of that view. My disagreement with the majority stems from the interpretation it gives the limiting language of the Council's proposal, wherein it purports to limit the effect of the proposed agreement to "work which the contractor does not perform with his own employees, but uniformly subcontracts to other firms." Whereas the majority views such language as precluding any possible effect on employees employed by the Charg- ing Party, in my view, as expressed earlier, such lan- guage is, at best, ambiguous and thus does not pro- vide a basis for dismissing the complaint. The ambiguity arises from the fact that the Charg- ing Party employs tradesmen whose work overlaps with other trades whose members are not employed by the Charging Party, or with whom it has no con- tracts. For example, Sletten employs members of the Laborers, but has no contract with the Plumbers. Yet these trades frequently dispute work and, in such in- stances, the contract clause proposed by Respondent could or might relate to work which Sletten itself could or might choose to perform. Thus Respondent's proposal would have a potentially sig- nificant effect on the working conditions of the Charging Party's own employees, and thus runs afoul of Section 8(b)(7)(A). -Dallas Building and Construc- tion Trades Council, 164 NLRB 938 (1967), enfd. 396 F.2d 676 (C.A.D.C., 1968).6 In consideration of the above, I would therefore adopt the findings of the Administrative Law Judge and find that Respondent has violated Section 8(b)(7)(A) of the Act as alleged. violation of Sec. 8(b)(4). Accordingly, the Board concludes that Connell is inapplicable to the facts of this case 6 In this regard it is significant to me that the collective-bargaining agree- ments between Sletten and the craft unions representing his employees al- ready contain subcontracting clauses.