Laborers Local 1140 (Central States Paving)

LABORERS LOCAL 1140 (CENTRAL STATES PAVING) 739 Laborers International Union of North America, Local Union No. 1140 (Central States Asphalt Paving Co.) and George C. Rozmarin. Case 17- CP-282 , _ - 21 June 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS- On 5 December 1984 Administrative Law Judge Joel A. Harmatz issued the attached decision. The Respondent filed exceptions and a supporting brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Laborers International Union of North -America, Local- Union No. 1140, its officers, agents, successors, and assigns, shall take the action set forth in the Order. DECISION JOEL A. HARMATZ, Administrative Law Judge. This proceeding was heard by me in Omaha,,. Nebraska, on October 11; 1984, on an initial unfair labor practice charge filed on August 24, 1984, and a complaint issued on September 13, 1984, alleging that Respondent violated Section 8(b)(7)(C) of the Act by recognitional picketing of Central States Asphalt Paving Co. (Central States) without filing a representation petition. within a reasona- ble period of time. In its answer, Respondent denied that any unfair labor practices were committed. Following close of the hearing briefs were filed on behalf of the General Counsel and Respondent. On the entire record in this .proceeding, including my opportunity directly to observe the witnesses-while testi- fying and their demeanor, and after consideration of the posthearing briefs, I make the following FINDINGS OF FACT I. JURISDICTION Central States Asphalt Paving Co., a Nebraska corpo- ration, is engaged in the manufacture and, distribution of asphalt from two facilities located in Omaha, Nebraska. In the course of these operations, Respondent supplies asphalt to contractors engaged on various jobsites, in- cluding the interstate highway system, and annually pur- chases goods and services valued in excess of $50,000 di- rectly from sources located outside the State of Nebras- ka. The complaint alleges, the Respondent admitted at the hearing, and it is found that Central States is now, and at all times material has been,-an employer engaged in com- merce within the meaning g of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and it is found that Respondent is now,- and at all times material has been, a labor organization within the meaning of Sec- tion 2(5) of the Act. III. CONCLUDING FINDINGS This case turns on .whether consent on the part of an employer to negotiations with a labor organization fur- nishes a defense under Section 8(b)(7)(C) to picketing in furtherance of demands for a formal collective- bargain- ing agreement. In this connection, the parties have stipulated that commencing on July 23, 1984,1 and on various dates thereafter until September 7, a period exceeding 30 days, Respondent picketed several facilities of Central States. The objective was evident from the message on the face of the picket signs, which recited as follows. LABORERS LOCAL 1140 ON STRIKE FOR CONTRACT CENTRAL STATES ASPHALT COMPANY (This Applies To The Above Employer Only) Respondent was not the certified representative of the employees of Central States and the picketing was' unac- companied by any attempt to organize the construction laborers employed-by that firm. The status of these em- ployees as members of the Union in good standing was not a consideration underlying Respondent's action under scrutiny in this case. 2 Despite the foregoing, Re- spondent contends that it was privileged to picket in fur- therance of its contract demands , without interdict of Section 8(b)(7)(C), in that the evidence demonstrates that a collective-bargaining relationship had already existed at the time of the events here in issue. As shall be seen, there can be little quarrel with Re- spondent's observation that Central States historically looked to programs negotiated by Respondent as the source of certain benefits for its employees who were be- lieved to be members of Respondent . Also beyond ques- tion is the fact thai in the course of the instant picketing, Central States voluntarily participated in contract negoti- ations with that labor organization. ' Unless otherwise indicated all dates refer to 1984 2 Consistent with the above, there is no evidence that Respondent, at any time material, represented a majority of Respondent's employees in any relevant collective-bargaining unit. Moreover, in the circumstances, no presumption to that effect would apse from the fact that Central States some years earlier was acquired by its present owners from a con- tractor whose laborers had been organized by Respondent . The circum- stances surrounding that exchange were not clearly defined on the record and hence the issue as to whether Central States , by virtue of the Board's successorship doctrine, incurred any bargaining obligation held by the predecessor was not litigated to an extent permitting any conclusive find- ing 275 NLRB No. 110 740 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD The position maintained by•Centi•al States in the above respect might best be understood from the background of the dispute which shows that, when Central States in 1981 acquired Asphalt Paving Co., the latter was a member of the Heavy Contractors Association- Inc. (the Association), the multiemployer group representing em- ployers committed to bargain; collectively with Respond- ent and other unions in the construction trades. By virtue of this membership, Asphalt Paving was bound to the- collective-bargaining agreement negotiated with Re- spondent. - Since that takeover, Central States, though not a member of the association, has utilized construction la- borers in,connection with onsite paving work. Two of'its four employees presently serving in that capacity had worked for Asphalt Paving. Although Central States at no time conferred formal recognition on Respondent as representative of any of its employees, Central States as- sumed' that those 'previously employed' by' Asphalt Paving retained membership, in Respondent and, on that assumption, it, at'. ll times material, contributed to a trust fund,'jointly administered by'the Union and the Associa- tion through which health and welfare and pension hene= fits were provided to employees represented by Re- spondent. With respect to their =rates of pay, Central States, since engaged in federally financed maintenance work on the interstate highway system, paid all construc- tion workers the scale,provided -for in Respondent's con- tract with the Association as the prevailing wage re- quired by Federal law. = The events immediately giving rise to the picketing show that; in July 1983, Respondent and the Association executed 'a new 3-year., agreement. According "to" the credited testimony of Norman Sunderman, the president of Respondent, it was the Union's understanding 'that until the fall of 1983 Central States was a member- of the Association and hence'bound to, its collective`bargainiiig" agreement. -However, in a• telephone- conversation. with the general - manager of Central States, - Richard' O'Konski, in August 1983, Sunderman' was 'informed that' Central 'States denied both "membership in the Associa- tion and that it was otherwise bound to the aforesaid multiemployer, contract. In that conversation, however, O'Konski did indicate that Central States had been paying Respondent's wage scale and fringes. Sunderman, however, .pointed out that if Central States' was not 'a member of the Association, a formal agreement would -be required because the law bars acceptance of health and welfare 'contributions under any' other'- cifcumstances.3 O'Konski informed Sunderman he was "not' interested "in signing an agreement "at the time" but that they "might get together at a later-:date." . . I Thereafter, by'.lettei•'dated September 23,' 1983, the As- sociation informed Respondent ,that the. employer mem- bers of the Association included Central States. Subse- quently, in April 1984, •at the onset of'seasonal operations in, the' highway paving industry, Sunderman contacted The reference is to restraints, written into the Taft-Hartley Act, con- cerning employer payments -of money or other items of value to labor orgamzanons;'except under prescnbed 'conditions ` See Sec '302(c)(5) of the Act O'Konski informing him -of the content of that docu- ment. O'Konski responded that Central States never au- thorized the Association to represent it for purposes of bargaining,' nor had it ever paid dues to -that organiza- tion, and that Central States simply wast not bound to any agreement negotiated by the Association. Sunderman indicated to O'Konski that, if that were'-so, they would have to sit down and work out a collective-bargaining agreement so that the employees might receive their au- thorized benefits.4 Following this conversation, Sundernian contacted the Association in quest of further verification of the status of Central States. He was informed that' the Association's letter of September 23, 1983," was in error, and that Cen- tral States was neither a member of, nor bound • to, the Association's collective-bargaining agreement." Thereafter, Sunderman attempted unsuccessfully to reach O'Konski by telephone on two or three occasions. O'Konski admittedly neglected to return the calls. About July 15, 1984, Sunderman and an associate ap- peared at one of Central State's batch plants where fur- ther discussions were held with•O'Konski concerning an agreement. O'Konski indicated that Central States was still unprepared to sign anything, explaining he had been busy with other matters.. Sunderman • was. sympathetic, but indicated that the matter still had to be resolved. On July 19, Central States assigned construction labor- ers to work on its Interstate 80 maintenance job. It will be recalled that 4 days later, on July 23 Respondent commenced picketing. ' As matters turned out Central State's•labor difficulties on the Interstate 80 job were not limited 'to Respondent. Thus, on July 30, a week after the picketing- began, operators -represented by Local 571 of -the- International Union of Operating Engineers en- gaged''in a -work stoppage at that-site. When O'Konski informed Jim Timmins, a representative of the Operating Engineers, `that "we= have been in the process trying to get our problems straighten out" with the ' Laborers," Timmins indicated' that- Central States' problem extended to the equipment` operators 'as well "because you don't have a' contract." In consequence, even though the con- struction laborers employed by Central States were will- ing to , cross the picket line, because the operating engi- neers would not work, the project had to be shut down. Shortly'thereafter the dispute with, the Operating En- gineers was resolved when O'Konski was informed that the' Union would be satisfied with entry into a "participa- tion agreement," binding' Central States solely to' payment of'contributions'to'thd health and welfare' and fringe ben- efit 'programs 'supported by that' Union See, 'e.g , Mid- States Construction, 270 NLRB 847 (1984).' O'Konski, after 'consultation with an attorney,' agreed to-sign the Operating Engineers' standard form agreement in that-re- spect. On August 2, O'Konski approached -` a business agent for the Respondent,. Butch Schaefer, who was present -with, the picket at the Central States ;batch plant. O'Konski explained -that Central -States had resolved its problem with" the Operating Engineers by agreeing to execute a participation agreement and inquired if Re- 4 'See R Exh"2 LABORERS LOCAL 1140 (CENTRAL STATES PAVING) spondent would be willing to settle on that basis. Schae- fer indicated that he could see nothing wrong with such an approach, but that he would have to talk to his supe- nors. To facilitate matters, O'Konski drafted a proposed participation agreement; prepared from the standard form utilized by the Operating Engineers, and provided a copy to Schaefer, for transmittal to other of Respond- ent's officials. On August 3, , representatives of the. Operating Engi- neers and the Respondent held a joint meeting with O'Konski at a local restaurant. At the outset, O'Konski executed, a participation agreement with the Operating Engineers. O'Konski then presented his draft proposal to Sunderman for execution on behalf of Respondent.5 Sun- derman rejected the offer, countering with Respondent's standard form, participation agreement, as well as its6 subsisting comprehensive multiemployer agreement. As the discussions continued, O'Konski telephoned another union official who, like Sunderman, advised O'Konski that "we certainly would like to get something taken care of with you people." O'Konski then returned to the deliberations, indicating that Respondent's proposal would be considered, cautioning as follows: "Well, I'll present it to my attorney and have my attorney look at- it, but I'm not authorized to sign anything at all in this present form." O'Konski further, appealed, "I'm-trying to get this settled . . . . Leave the pickets off and consider we are still under negotiations."7 Consistent therewith, the pickets were removed that evening and did not reap- pear until August 8. On that date, in a telephone conversation with ' Busi- ness Respresentative "Butch" Schaefer, O'Konski ex- pressed curiosity as to Respondent's agreement with an- other firm, Vrana Paving Company. Later that after- noon, O'Konski met with Sunderman and Union Repre- sentatives Larry Lewis and Butch Schaefer. He was pro- vided a copy of the Vrana contract. O'Konski advised the union representatives that he was not authorized to sign "anything. like this," since it involved collective bar- gaining, but agreed to show a copy to his attorney. . Apparently communication between the parties culmi- nated with the filing of the unfair labor practice charge. giving rise to this proceeding on August 24., Before considering the defense founded on "employer assent," it is important to observe that subsection (C) of 8(b)(7) makes it 'an unfair labor practice for a labor orga- nization to engage in picketing to force or require an em-, ployer to recognize or bargain where the union is not the certified representative of the employees involved, and where picketing has been, conducted without the latter having filed a petition under Section 9(c) within a reasonable period of time not to exceed 30 days from the commencement of such picketing.6 5SeeGC Exh 3 BSee GC Exh 4 ' Previously on two occasions, both on direct and-cross-examination, O'Konski had denied using this language He subsequently admitted to the statement but qualified his reference to "negotiations" as,limited to his interest in a "participation agreement " This qualification is consid- ered immaterial to the issues presented 8 Here there is no claim, and indeed the events, including work stop- pages, would refute an assertion that the instant picketing is exempt under the informational proviso to Sec 8(b)(7)(C) which exempts that 741 In this case, there is no question that the. Union was uncertified, that its picketing was in support of demands that Central States execute a collective-bargaining agree- ment, - and that picketing continued for more than 30 days without Respondent filing an election petition pur- suant to Section 9(c) of the Act. Nonetheless, the applicability of Section 8(b)(7)(C) is drawn into question by clear evidence that the Employer willingly participated, in negotiations with the Union during the early stages of the picketing and actually pro- posed that Respondent execut' an agreement which would impact substantially on the terms of -employment of its employees. Indeed, well prior to the onset of the picketing, Central States on a voluntary basis, had recog- nized the Union as a source of significant benefits for certain of its employees. To this' extent, O'Konski, on behalf of Central States, willingly negotiated with Re- spondent while the picketing was in progress. In doing so, he understood that the pension, health, and welfare programs covered by his own proposal constituted terms and conditions of employment, and that on execution of such an agreement, Central States would be bound, for the first time, to pay these fringes on behalf of all four of its construction laborers. Respondent, relying on Santa Barbara County Building Trades, Council (Sullivan Electric Co.), -146 NLRB 1086, 1087 (1964), observes that Section 8(b)(7)(C) is.designed to "proscribe picketing having as its target forcing or re- quiring an employer's initial acceptance of the union, as the bargaining representative of his, employees." On this basis it is argued that Central States had entered a bar- gaining relationship before the picketing had endured for any unreasonable period as evidenced by O'Konski's in- dication in the fall of 1983 that he would consider enter- ing an, agreement with Respondent, ,by•. the. fact that 'the Company paid wages and benefits in, accordance with standards specified in the Union's contract, and, later, by its willfull, participation in giver . bargaining nego- tiations, going-so far' as .to propose a_ formal agreement defining _certain'. conditions, of work. ,Thus, Respondent maintains that recognition having been previously con- ferred, the picketing herein was not for initial recogni- tion but in furtherance of a contract dispute within the framework of an established bargaining relationship.9 However, even if one were to assume that Central States participated in a form of "negotiation" prior to the onset of picketing, it is apparent under the precedent that an employer's attempt,to strike ..a deal with a minority union will-not alone give rise to the type.bargaining his- tory contemplatedby Sullivan Electric, supra. Thus, Sec- which .. -," •_; . - .. . • , ... i::. ^, _ . is waged "for the purpose of truthfully advising the 'public that an employer does not employ members of,-or have a contract with, a labor organization, unless ' an` effect '- is to linclude any,individual e_m- ployed,by`any'oth'er person: ii the'course of his employment not to perform any services ,B Although it- is not entirely clear that Respondent-holds to any claim that Central States was bound, to-the multiemployer agreement, were such 'a position asserted, I'"would agree with the General Counsel that Central States' voluntary payment of union scale and fringe benefit con- tributions would not be the legal equivalent of agreement to be bound See, e g., Mid-States Construction, 270 NLRB 847 (1984), NLRB v Oper- ating Engineers Local 542.(R-,S Noonan, Inc), •331 F 2d 99, 103-104 (3d Cir 1964) 742 DECISIONS-OF NATIONAL LABOR RELATIONS BOARD tion 8(b)(7)(C) stands with several other statutory provi- sions,as pivotal to the overall scheme selected-by Con- gress to preserve the freedom of employees to register an uncoerced choice of a bargaining agent.10 In furtherance of this intent, the proscriptive scope of Section 8(b)(7)(C) outlaws "blackmail picketing" irrespective of an employ- er's assent to a bargaining relationship with a minority union. For, as has been held, were primacy accorded to such consent, "the will and choice of employees . . . would be thwarted and nullified . . . [and] the freedom of employees to make their own choice in such.matters cannot lawfully be foreclosed in this manner." Centralia Building Trades Council v. NLRB, 363 F.2d 696, 701 (D.C. Cir 1966). Indeed, any question as to the prefer- ence awarded employee choice over that of their em- ployer in such matters was plainly dispelled by the deci- sion of the Supreme Court in NLRB v. Ironworkers Local 103 (Higdon. Contracting Co.), 434 U.S. 335 (1978), where a violation of Section 8(b)(7)(C) was confirmed despite management's consent to a history of bargaining with the picketing union. As shall be seen, the Court held that absent designation by an employee majority at least at some point, assent to negotiations by the employer fur- nishes no cognizable defense under Section 8(b)(7)(C). In Higdon .the employer had recognized the union through agreements authorized by Section 8(f).11 The union pick- eted to enforce compliance therewith when the employ- er, through an alter ego, dishonored such an agreement. The Supreme Court upheld the Board's finding that the purpose of the picketing was for a recognitional,objec- tive condemned by Section 8(b)(7)(C) of the Act, even though the employer willingly negotiated and actually executed the agreement which gave rise to the picketing. In so holding, the Court observed ,that, unlike Sullivan Electric, supra, in circumstances "where the union is not and has never been the chosen representative of the ma- jority of the employees in a relevant unit," "picketing to enforce the Section 8(f) contract was the legal equivalent of picketing to acquire recognition as the exclusive agent, and Section 8(b)(7)(C) was infringed. when the union failed to request an election within 30-days." 434 U.S. at 344, 346. - Under like reasoning, since Respondent in the instant case has failed to establish that it ever obtained majority support among Central States' construction workers, its picketing in support of demands for a collective- bargain- ing agreement covering them violated Section 8(b)(7)(C) of the Act. That conclusion is warranted, on authority of Higdon, supra, despite the participation by Central States in the negotiation process, and without regard for wheth- er Section 8(f) is or is not relevant to the instant case. In this latter respect, it is noted that the rationale underly- ing the holding in Higdon is of sufficient breadth to apply with even greater vigor to minority relationships outside the construction industry. Indeed, prior to the Supreme Court's decision in that case, the Board held that picketing by an undesignated- union which was ad- dressed to an employer's repudiation of a voluntarily en- tered bargaining agreement governing employee terms within a manufacturing operation -violated Section 8(b)(7)(C). See Central Arizona District Council of Carpen- ters (Wood Surgeons), 175 NLRB 390 (1969). Accordingly, it is found that Respondent, neither being the certified representative,- nor having been the duly designated representative of a' majority of Central States' employees at any time, violated Section 8(b)(7)(C) by picketing for recognition or bargaining` during a period exceeding 30 days without filing a petition under Section 9(c) of the Act. CONCLUSIONS OF LAW 1. Central States is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean-, ing of Section 2(5) of the Act. 3. By picketing Central States, on various states be- tween July 23, -1984, and September 24, 1984, for a period exceeding 30 days, with an object of forcing or requiring Central States to bargain with the Respondent Union without being currently, certified as a representa- tive of 'Central States' employees and without a petition under Section 9(c) being filed within a reasonable period of time, Respondent engaged in unfair labor practices within the meaning of Section 8(b)(7)(C) of the Act. 4. The unfair labor practice found above constitutes an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it shall be-recommended that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed'2 ORDER The Respondent Laborers International Union of North America, Local Union No.1140, Omaha, Nebras- ka, its officers, agents, and representatives, shall 1. Cease and desist from picketing, causing to be pick- eted, or threatening to picket Central States Asphalt Paving Co., where an object thereof is to force or re- quire said employer to recognize and bargain with it as a representative of its employees in violation of Section 8(b)(7)(C) of the Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act. 10 Dallas Building Trades Council v. NLRB, 396 F 2d 677, 681 (D C Cir 1968) 11 Pursuant to Sec 8(f) of the Act, prehire agreements in the construc- tion industry are deemed legitimate for certain purposes even though en- tered before the participating labor organization establishes majority sup- port 12 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as-provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses LABORERS LOCAL 1140 (CENTRAL STATES PAVING) (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix." 3 Copies of the notice, on forms provided by the Regional. Director for Region 17, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to: ensure that the notices-are not altered, defaced, or cov- ered by any other material: (b) Notify-the Regional Director in writing within 20- days from the date of.this Order what steps the Re- spondent has taken to comply. 13 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." ' APPENDIX NOTICE To MEMBERS - POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 743 WE WILL NOT, under conditions prohibited by Section 8(b)(7)(C) of the Act, picket, cause to picket, or threaten to picket Central States Asphalt Paving Co., where an object thereof is ' to force or require said Employer to recognize- or bargain with us as a representative of its employees. - - LABORERS INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION No. 1140 I