Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local No. 478, AFL-CIO (J. L. Manta, Inc.)

PLASTERERS' LOCAL NO. 478 Operative Plasterers' and Cement Masons' Interna- tional Association of the United States and Canada, Local No. 478, AFL-CIO and J. L. Manta, Inc. and International Brotherhood of Painters and Allied Trades of the United States and Canada, Local No. 427, AFL-CIO. Case 19-CD-380 September 28, 1982 DECISION AND ORDER QUASHING NOTICE OF HEARING BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by J. L. Manta, Inc., herein called the Employer, alleging that Operative Plas- terers' and Cement Masons' International Associ- ation of the United States and Canada, Local No. 478, AFL-CIO, herein called the Plasterers or Local 478, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees represented by International Brother- hood of Painters and Allied Trades of the United States and Canada, Local No. 427, AFL-CIO, herein called Local 427. Pursuant to notice, a hearing was held before Hearing Officer Shellie R. Hoffer on March 26 and April I and 2, 1981. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. 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 reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding. the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer is an Illinois corporation engaged in the ap- plication of fire protective coating material at units I and 4 of the Washington Public Power Supply System (herein called the WPPSS) at the Hanford Federal Nuclear Reservation in the State of Wash- ington. During the past year, a representative period, the Employer realized gross revenues in excess of $500,000, and, during the same period, 264 NLRB No. 24 caused in excess of $50,000 worth of goods and materials to be shipped directly to it from outside the State of Washington. The parties also stipulat- ed, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Accordingly, we find that it will ef- fectuate the purposes of the Act to assert jurisdic- tion herein. II. THE l ABOR ORGANIZATIONS INVOILVED The parties stipulated, and we find, that Local 478 and Local 427 are labor organizations within the meaning of Section 2(5) of the Act. 111. THE DISPUTE A. Background and Facts of the Dispute WPPSS contracted with Atkinson/Wright-Schu- chart-Harbor (AWSH), a joint venture, to perform the civil work on two adjacent nuclear plants, units 1 and 4, at the Hanford Federal Nuclear Reserva- tion in Richland, Washington. AWSH subcontract- ed the fire protectant coating work, the work in dispute herein, to the Employer in March 1980. In April 1980, the Employer assigned the disputed work to employees represented by L ocal 427. Shortly thereafter, the Employer's vice president. Jon Ginder, and Superintendent and Project Man- ager Lynn Nelson were approached by Vernon Foss, business representative for Local 478. Foss requested that the work be assigned to employees represented by his union. When Ginder and Nelson declined his request, Foss stated that he would have to go to the Impartial Jurisdictional Disputes Board (IJDB). However. Foss took no action at that time. The fireproofing work continued to be per- formed by employees represented by Local 427. In approximately January 1981, Local 478 again claimed the fireproofing work. When the Employ- er again denied Local 478's demand, Local 478 submitted the dispute to the IJDB. On February 10, 1981, AWSH and Manta both received copies of a letter dated February 3, 1981, from the IJDB.' The letter stated that the IJDB would be considering the jurisdictional dispute on February 12, and requested that a full description of the work in dispute be sent to the IJDB by Feb- ruary 11, 1981. The actual hearing was not held until February 19, 1981.2 On February 20. the A corp, of the letier was also sent to 'WPPSS 2On February 10. AWSH .contacted the IJDB by telephone and tele- gramn, Iqucsting that the hearing be postponed ill order that AWSH could comply h th the IJDB"s request for information On February 11I AWSHI sent a letter to the IJDB. pro,.iding the requested infiormation and again requesting a postponement of the hearing The Employer. (Continuwd 171 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IJDB sent letters, inter alia, to the Employer and AWSH, indicating that the IJDB had awarded the work in dispute to the Operative Plasterers' and Cement Masons' International Association. In early March 1981, after AWSH and the Em- ployer had received copies of the IJDB decision, Foss went to speak with Ginder and Nelson about the decision. Foss raised the possibility of the same employees (i.e., those represented by Local 427) continuing the work, but carrying Local 478's cards as well as those of Local 427. Foss informed Ginder and Nelson that he would speak with the International about this possibility. The next day, Foss called Nelson to say that the International had rejected the proposed plan. Subsequently, Ray- mond Shiprack, the Plasterers International repre- sentative for the Midwest, called Mike Pepper, AWSH's labor relations manager, and requested that AWSH compel the Employer to abide by the IJDB decision. According to Pepper, Shiprack stated that "he didn't want to have to shut the place down, to put pickets up." Pepper subsequent- ly informed the Employer of Shiprack's statements. The Employer filed an 8(b)(4)(D) charge on March 6, 1981. B. The Work in Dispute The work in dispute is the application of fire- proofing material at WPPSS units I and 4 at the Hanford Federal Nuclear Reservation in Richland, Washington. C. The Contentions of the Parties Local 478 contends that the Employer is bound by the IJDB award of February 20, 1981, to award the work in dispute to employees represented by Local 478 because of the Employer's contractual relationship with AWSH and WPPSS. Local 478 further contends that the Board should in any event award the work in dispute to employees rep- resented by Local 478 because of collective-bar- which was aware of AWSH's request fior a postponement and submission of information, made no attempt to contact the IJDB at this time. The Employer's vice president, Jon Ginder, testified that he learned from James Shay, the Painters director of jurisdiction, on February 17 that the hearing had been rescheduled to February 19. The same day, the Employer sent a telegram to the IJDB, stating that the Employer had been informed by AWSH and WPPSS of the jurisdictional dispute, and that the Employer had not been informed of its involvement by an), of the parties. On February 18, the Employer's attorney sent a telegram to the IJDB, stating that the Employer had not received notice of the hear- ing, and that the Employer was not bound by the IJDB. The same day, Ginder sent a second telegram, indicating, inter alia, that the Employer had not been formally notified of the February 19 hearing; that the Em- ployer intended to be represented by a company representative upon re- ceipt of formal notice: and that the Employer requested that the Febru- ary 19 hearing be rescheduled in order to allow the Employer to make a proper presentation. As noted above, the hearing was held on February 19. Neither AWSH nor the Employer was ever formally notified of the rescheduling of the hearing to that date gaining agreements, company and industry prac- tice, skills and experience, and economy and effi- ciency of operations. The Employer contends that it is not bound by the IJDB award because it is not contractually ob- ligated to follow IJDB decisions. The Employer further contends that, even if it had agreed to be bound by IJDB determinations, the procedures in this case were so defective that the Employer was denied due process. The Employer contends that the Board should therefore determine the dispute and award the work to employees represented by Local 427, because of skills and experience, the Employer's past practice, area and industry prac- tice, and collective-bargaining agreements. Local 427 contends that the Employer and Local 427 are not bound by IJDB proceedings, and that the Board should award the work in dispute to em- ployees represented by Local 427. D. Applicability of the Statute Before the Board may proceed with a determina- tion of dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. With respect to (1) above, the record reveals that the Plasterers International representative for the Midwest, Raymond Shiprack, called AWSH to request that AWSH compel the Employer to abide by the February 20, 1981, IJDB decision, and assign the work in dispute to employees represent- ed by Local 478. In support of his demand that the Employer reassign the fireproofing work, Shiprack stated that "he didn't want to have to shut the place down, to put pickets up." Accordingly, we find that reasonable cause exists to believe that Local 478 violated Section 8(b)(4)(D) of the Act. With respect to (2) above, we find, for the rea- sons stated herein, that all of the parties to the in- stant dispute are parties to the IJDB, that the dis- pute was submitted for determination to the IJDB, and that the IJDB has issued an award. The Employer's contract with AWSH provides in relevant part: 12) Labor Agreements. Subcontractor [Employ- er] shall comply with all the provisions of any collective bargaining agreements executed by the Contractor [AWSH] or on Contractor's behalf, specifically including the provisions of any such agreements providing (a) for the as- signment of work or the settlement of jurisdic- tional disputes, (b) for the adjustment of any 172 PLASTERERS' LOCAL NO. 478 other disputes or grievances, (c) for hiring and union security and (d) for the making of pay- ments under health and welfare or other fringe benefit plans, to the full extent that the terms and provisions of such agreements can legally be applied to the work. In the event of a jurisdictional dispute be- tween or among crafts affecting the work, Subcontractor shall comply with the Contrac- tor's directions with respect thereto, and, if so directed, shall (a) cooperate in the submission of said dispute to the National Joint Board for the Settlement of Jurisdictional Disputes3 or a similar voluntary board, or (b) take necessary steps to secure a determination of such dispute by the National Labor Relations Board. In either case, Subcontractor shall bear all costs in connection with such proceedings and shall comply with any determinations rendered therein. AWSH is a member of the Hanford Contractors Association (HCA), a multiemployer trade associ- ation representing various contractors at the Han- ford site. On September 17 and November 14, 1980, respectively, AWSH signed HCA's Hanford Site Agreement with Local 478 and Local 427. 4 That agreement, which covers all construction work at the Hanford Federal Nuclear Reservation, requires the use of the IJDB for the resolution of disputes. Thus, article XXVII provides as follows: Jurisdictional Disputes The parties hereto agree that all jurisdiction- al disputes over division of work with crafts affiliated with the Building and Construction Trades Department AFL-CIO, will be as- signed and settled in accordance with the pro- cedural rules and regulations of the Impartial Jurisdictional Disputes Board under the Plan for Settlement of Jurisdiction Disputes in the Construction Industry, effective June 1, 1977, or any successor plan. 3 The National Joint Board, which was dissolved in 1973, was the im- mediate predecessor of the IJDB. 4 The Handord Site Agreement which AWSH signed with Local 427 differs slightly front the version of that agreement AWSH signed with Local 478. The variance is not material here. The jurisdictional disputes' clauses are identical. By virtue of section 12 of its agreement with AWSH (see above) the Employer is bound to col- lective-bargaining agreements entered into by AWSH. Therefore the Employer is bound to the Hanford Site Agreements signed by AWSH with Local 478 and Local 427. Since article XXVII of the agreement provides that jurisdictional disputes are to be submitted to the IJDB it follows that the Employer is bound to follow IJDB procedures.5 We further find that Local 478 and Local 427 are bound to abide by the IJDB's rules and proce- dures for the settlement of jurisdictional disputes, since they are signatories to the Hanford Site Agreement; as well as members of the Building and Construction Trades Department, AFL-CIO, and signatories to the agreement creating the IJDB. We find, therefore, that all parties to this dispute are bound to a voluntary method for the resolution of this dispute through the procedures established by the IJDB. Accordingly, we shall quash the notice of hear- ing issued herein. ORDER It is hereby ordered that the notice of hearing issued in this proceeding be, and it hereby is, quashed. I The Employer's commitment. as set forth in its contract with AWSH, is not limited, as the Employer argues. to collective-bargaining agreements entered into prior to the execution of its contract with AWSH. Rather, as can be seen from the language in the first sentence of sec 12 entitled "Labor Agreements." it includes "any" collective-bar- gaining agreements executed by AWSH. The Employer further argues that the provision entitled "Labor Agree- ments" applies only to contracts with crafts actually employed by it. First, as noted above, AWSH did sign the Hanford Site Agreement with Local 427 which represents the painters employed by the Employer. Second, there is no such limitation in the provision Further, at a common situs, such as this, the agreement between AWSH and Local 478 obligating AWSH to submit jurisdictional disputes involving that local to the IJDB can only be read as compelling the Employer, by operation of the "Labor Agreements" section in its agreement with AWSH, to submit all disputes involving Local 478 to the IJDB. Thus. all parties to the in- stant dispute are bound to the IJDB procedures To the extent that the Employer may be urging that the second para- graph of art. 12 indicates that the Employer is not bound to follow IJDB procedures we find no merit in this contention. As discussed above, the first paragraph binds the Employer by virture of its obligation to comply with the collective-bargaining agreements executed by AWSH. There is nothing in the second paragraph which is inconsistent with or modifies this provision. The Employer further argues that it is not bound by IJDB proceedings because of certain procedural flaws which the Employer claims constitut- ed a denial of due process. Such arguments must be addressed to the IJDB itself, since the Board has no jurisdiction over such proceedings. 173