Plumbers Local 66 (Tri-State Mechanical)

PLUMBERS LOCAL 66 (TRI-STATE MECHANICAL) Plumbers and Steamfitters Local Union No. 66 of the United Association of Journeymen Pipetting Industry of the United States and Canada, and William J. Herrig, Business Manager of Local 66/Board of Trustees' Representative for Funds and Tri-State Mechanical Contractors, Ltd. (Dubuque Area Chapter, Mechanical Contrac- tors Association of Iowa, Inc.). Case 33-CB- 2040 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On a charge filed 7 November 1983 and an amended charge filed 9 December 1983 by Tri- State Mechanical Contractors, Ltd., the General Counsel of the National Labor Relations Board issued a complaint on 13 December 1983 alleging that the Respondents violated Section 8(b)(3) and (1)(A) of the National Labor Relations Act by causing the fringe benefit fund to refuse contribu- tions for unit employees from certain companies. On 5 March 1984 all parties including the Gener- al Counsel filed a stipulation of facts and a motion to transfer proceedings to the Board. The parties waived a hearing and an administrative law judge's decision and submitted the case directly to the Board for findings of fact, conclusions of law, and a decision and order. On 31 July 1984 the Board granted the parties' motion, approved the stipulation, and transferred the proceeding to the Board. The Respondents, the General Counsel, and the Charging Party each filed a brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION Tri-State Mechanical Contractors, Ltd. is a member of the Dubuque, Area Chapter, Mechanical Contractors Association of Iowa, Inc. The Associa- tion consists of approximately seven companies lo- cated throughout six counties in northeastern Iowa. The companies are in the mechanical contracting business performing plumbing, heating, cooling, re- frigeration, and process piping type work. By its component members the Association annually im- ports goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Iowa and annually derives gross revenue 583 in excess of $50,000 from performing services for customers located outside the State of Iowa. The Respondents admit and we find that the Associa- tion is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent Plumbers and Steamfitters Local Union No. 66 of the United Association of Jour- neymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada is a labor organization within the meaning of Section 2(5) of the Act. Respondent William J. Herrig is the business manager of Respondent Local 66 and its agent within the meaning of Section 2(13)'of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that the Respondents vio- lated Section 8(b)(3) of the Act by unilaterally al- tering terms and conditions of employment of unit employees working for Association members that have not signed interim agreements with Local 66. Specifically, the complaint alleges that the Re- spondents refused to allow the fringe benefit trust funds to 'accept health and welfare, pension, lost time, and education fringe benefit contributions tendered by the nonsignatory Association members on behalf of unit employees. The complaint also alleges that the Respondents violated Section 8(b)(1)(A) of the Act by failing fairly to represent those unit employees who were adversely affected by the refusal to accept fringe benefit contributions. A. Facts Local 66 and the Association have been parties to a series of working agreements covering all plumbers and steamfitters employed by the Asso- ciation's members, including, among others, Tri- State. The most recent agreement was in effect by its terms from 14 June 1982 through 30 April 1983. The agreement set forth the Association members' fringe benefit contribution requirements on behalf of unit employees to various local funds, the na- tional pension fund, and the local pension fund. In March and April 1983 the Association and Local 66 met on various occasions to bargain about a successor agreement. On 29 April 1983 the par- ties exchanged final offers. The Association's bar- gaining committee advised Local 66's representa- tives that, as impasse had been reached, the Asso- ciation's final offer would be implemented. On 2 May 1983 Local 66 commenced a strike against all the Association members. Since then three of the members have executed interim agreements with Local 66. As of the-date the stipulation was signed, the strike was still in effect against four Association 287 NLRB No. 60 584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD members that had not signed interim agreements or a successor agreement. The nonsignatory employ- er-members continued to operate during the strike, employing both unit employees who were not par- ticipating in the strike and permanent striker re- placements. Since 1971 the Association members have made contributions for the local fringe benefit funds di- rectly to the American Trust & Savings Bank of Dubuque, Iowa, the legal custodian of the local funds. Local 66's business manager, William J. Herrig, is-the representative and agent for the local funds for all unit employees. Beginning on 17 June 1983 Herrig rejected fringe 'benefit contributions from the Association's nonsignatory members for work performed after the strike began. On 19 June 1983 Herrig instructed the bank not to accept any further ,contributions from the nonsignatory mem- bers. The local fringe benefit contributions the non- signatory members tendered have been rejected for the period from 1 May 1983 to at. least the date the stipulation was signed. During the same period, contributions from Association members that have, executed interim agreements have been accepted. Subsequent to the complaint's issuance, contribu- tions by the Association's nonsignatory members to the national pension fund were not accepted as of 1 January 1984. The Respondents do not exercise control over the national pension fund. The joint committee overseeing the local trust funds did not provide instructions to Herrig re- garding the acceptance or rejection of the Associa- tion members' contributions. It is undisputed that the Respondents acted without the Association's approval and that the Respondents did so, because nonsignatory'ihembeis have not signed agreements with Local 66 and because Local 66 is on strike against the nonsignatory members:' ' . Article IV of the expired working agreement' (to- gether with a ' separate local pension fund agree- ment) sets forth the Association, members' contribu- tion requirements to the fringe benefit funds. The contributions to the local funds tendered by the Association's nonsignatory members were in the amounts scheduled in the working agreement and have been returned by the Respondents and the funds' custodian. During contract negotiations both sides proposed changes in article IV. Local 66's 12 April counterproposal included increases in contri- butions to the health and welfare and the local pen- sion funds. The Association's 29 April final offer on article IV proposed changing only the require- ment for posting a surety bond. B. The Parties' Contentions The General Counsel and the Charging Party contend that the Respondents violated Section 8(b)(3) of,the Act by rejecting fringe benefit contri- butions tendered on behalf of unit employees work- ing for the Association's nonsignatory members., The General Counsel contends that Respondent Herrig was acting as an agent of Local 66 for pur- poses of causing the rejection of remittances the nonsignatory members tendered. The General Counsel and the' Charging Party argue that the Re- spondents' rejection of the,, tendered contributions constitutes a unilateral change in employee benefits, and that-as the employee -benefits are mandatory bargaining, subjects, the Respondents' changes con- stitute a refusal to bargain collectively with the As- sociation in violation of Section 8(b)(3). The Respondents contend that the refusal to accept local fringe benefit contributions after the strike began does not constitute a unilateral, change in employment conditions, but instead constitutes a legitimate exercise of economic pressure in further- ance of its ongoing strike. The' Respondents con- tend that' Local 66 did' not intend a permanent change in unit employees' working-conditions, but aimed thoughout the contract negotiations to main- tain the local fringe benefits. The Respondents argue that the refusal to accept contributions con- stitutes a means to assist its bargaining goals, rather than a bargaining goal itself, and a , means to pre- vent the nonsignatory members from using the fringe benefits to obtain an economic advantage and to attract employees to work during the strike' The Respondents maintain that the 'evidence fails to show that Local 66 engaged in' bad'.faith bar- gaining, bu't' to the contrary, shows that it contin- ued to seek agreement. The General Counsel further contends "that Re- spondent Local' 66 breached its duty of fair repre- sentation to the unit employees affected by its re- fusal to,, accept the fringe benefit contributions ten- dered on their behalf. The General Counsel argues that Local 66 discriiinatorily rejected the contri- butions because the employees exercised their Sec- tion 7 right to work behind' picket lines. The Charging Party adds that Local 66 discriminatorily denied benefits to unit employees who have not joined Local' 66. The Respondents, maintain that the duty of fair representation necessarily permits some form of discrimination against some workers because bar- gaining involves a union's attempt to achieve the best possible agreement for the largest number of workers. The Respondents argue that the rejection of the fringe benefit contributions was part of a PLUMBERS LOCAL 66 (TRI-STATE MECHANICAL) lawful bargaining strategy to obtain a favorable contract for all unit employees and not part of a scheme to punish employees for working during the strike. The Respondents also argue that any in- terference with employees' rights is minimal be- cause the affected employees could obtain the ben- efits elsewhere or the nonsignatory contractors could provide equivalent benefits. C. Discussion The sole allegations of the complaint are that the Respondents violated Section 8(b)(3) of the Act by unilaterally changing unit employees' terms and conditions of employment and violated Section 8(b)(1)(A) of the Act by failing fairly to represent unit employees.' For the following reasons, we find that the General Counsel has failed to prove the complaint allegations. The Respondents2 have rejected and caused the rejection of fringe benefit contributions made on behalf of unit employees working for the Associa- tion's nonsignatory members, and the Respondents acted unilaterally, without approval of the Associa- tion or its constitutent members. In taking such ac- tions, the Respondents presumably denied the af- fected employees the fringe benefits for which the contributions were tendered. In rare instances in which unions have been able to effectuate a unilat- eral change in terms and conditions of employ- ment, the Board has found the union's conduct to violate Section 8(b)(3), just as similar conduct by employers would violate Section 8(a)(5).3 Nonethe- less, we find that the actions taken by the Respond- ents do not constitute a unilateral change in terms and conditions of employment violative of Section 8(b)(3) of the Act. The Supreme Court's decisions in NLRB v. In- surance Agents International Union, 361 U.S. 477 (1960), and NLRB v. Katz, 369 U.S. 736 (1962), are dispositive of the issue presented here. In Insurance ' While the complaint alleges that both Respondents violated Sec 8(b)(1)(A) of the Act by failing fairly to represent unit employees, the General Counsel argues that Local 66 violated this section but makes no contention that Herrig violated this section 2 The Respondents do not contend, and the evidence would not sup- port the contention, that Herrig was acting as a representative of the ben- efit trusts rather than as the agent of Local 66 The thrust of the Re- spondent's contentions is that Herrig took the actions he did to further Local 66's bargaining position in negotiations with the Association As Herrig's actions were taken to accomplish Local 66 objectives, we find that Herrig was acting as Local 66's agent NLRB v Laborers Local 1140, 577 F 2d 16, 21 (8th Cir 1978), cert denied 439 U S 1070 (1979) a See Teamsters Local 334 (Halle Bros), 253 NLRB 1090 (1981), enf denied 670 F 2d 855 (9th Cir 1982), Communications Workers Local 1170 (Rochester Telephone), 194 NLRB 872 (1972), enfd 474 F 2d 778 (2d Cir 1972), Painters New York District Council 9 (Westgate Painting), 186 NLRB 964 (1970), enfd 453 F 2d 783 (2d Cir 1971), cert denied 408 U S 930 (1972) Accord Associated Home Builders of Greater East Bay, Inc v NLRB, 352 F 2d 745 (9th Cir 1965) This issue was discussed but left unresolved by the Supreme Court in NLRB v Insurance Agents Inter- national Union, 361 U S 477, 496 fn 28 (1960) 585 Agents, while negotiations for a successor contract were underway, the employees took part in harass- ing tactics, including refusal to solicit new business, follow reporting procedures, or perform customary office duties, reporting late at district offices, en- gaging in "sit-in mornings," leaving as a group at noon, not attending certain conferences, and pick- eting and leafletting. The Court held that the Board erred in finding the union to be bargaining in bad faith in violation of Section 8(b)(3) solely because it used tactics designed to exert economic pressure during the course of negotiations. The Court admonished the Board that it lacked author- ity to regulate through the good-faith bargaining requirement imposed via Section 8(b)(3) the eco- nomic weapons a union may use to support its bar- gaining position. The Court also rejected the notion that the union's tactics violated Section 8(b)(3) as a unilateral setting of terms and condi- tions of employment. It explained: There was no indication that the practices that the union was engaging in were designed to be permanent conditions of work. They were rather means to another end. 361 U.S. at 496 fn. 28. Two years later in NLRB v. Katz, the Court af- firmed the Board's holding that, even in the ab- sence of subjective bad faith, an employer violated its duty to bargain under Section 8(a)(5) of the Act when it unilaterally made changes in terms and conditions of employment under negotiation, in- cluding changes in wages and sick leave policy. The Court explained that an employer's unilateral setting of terms and conditions of employment during negotiations so as to obtain the terms that it desires frustrates the statutory objective of estab- lishing work conditions through bargaining, as such actions tend to foreclose discussion of the issues about which the unilateral changes were made. The court of appeals had relied on Insurance Agents in denying enforcement of the Board's order. The Supreme Court distinguished Insurance Agents on the basis that the union's partial-strike tactics in that case were designed to put pressure on the em- ployer to come to terms with the union negotiators and did not foreclose discussion of any issue. 'The teachings of Insurance Agents and Katz make clear that the Respondents' rejection of benefit fund contributions does not constitute a unilateral change in terms and conditions of employment. The Union did not reject benefit fund contributions because its objective in negotiating a new contract was to cease having the employers contribute to benefit funds. It did not desire to do away with benefit fund contributions as a condition of em- 586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployment. Rather, the Respondents rejected the contributions as a "means to another end," Insur- ance Agents, 361 U.S. at 496 fn. 28, a way to press sure the nonsignatory employers to come to terms with the Union's negotiators. Thus, the Respond- ents' rejection of benefit fund contributions did not tend to frustrate bargaining by foreclosing discus- sion on the issue of benefit fund contributions. Rather than falling within the category of conduct that the Court found violated in Katz, i.e, unilateral change, the Respondents' actions are distinguish- able for precisely the same reasons that Katz found the union's conduct in Insurance Agents distinguish- able.4 - Moreover, that the Respondents' conduct may seem harsh does not justify finding it to violate Section 8(b)(3). As the Court in Insurance Agents stated, in concluding that Section 8(b)(3) does not empower the Board generally to regulate economic weapons that may be employed by unions: "It may be that the tactics used here deserve condemnation, but this would not justify attempting to pour that condemnation into a vessel not designed to hold it." 361 U.S. at 496 (fn. omitted). Accordingly, we find that the Respondents' con- duct did not violate Section 8(b)(3) of the Act. We also find, for the following reasons, that the Respondents did not violate the duty of fair repre- sentation. A union breaches its duty of fair repre- sentation if it takes action in its representative ca- pacity against unit employees for irrelevant, invidi- ous, or unfair reasons. Miranda Fuel Co., 140 NLRB 181 (1962), enf. denied 362 F.2d 172 (2d Cir. 1963). The Respondents' refusal to accept ben- efit contributions made on behalf of employees working for the Association's nonsignatory mem- bers apparently had the effect of depriving non- strikers of their benefits. The Respondents contend, however, that their actions did not breach the duty of fair representation to nonstriking employees be- cause in negotiations for a new agreement a union is necessarily permitted some form of discrimina- tion against some employees it represents. Obviously a union has the authority to negotiate and to make concessions and distinctions that will serve the best interests of all employees the union represents. In Glass Bottle Blowers Local 149 In cases in which unions have been found to have made unilateral changes in violation of Sec 8(b)(3), see fn 3, supra, the actions taken im- posed terms or conditions of employment that the unions desired to be permanent and were not merely taken as a means of imposing economic pressure in support of a negotiating position Also, in certain cases the actions were taken while the contract between the parties was in midterm and negotiations over a successor contract had not begun See Halle Bros (institution of vision care program ), Rochester Telephone (barring unit em- ployees from acting as temporary supervisors), Westgate Painting (limit on number of rooms to be painted in a week), Associated Home Builders (limit on number of shingles to be laid in an 8-hour day) (Anchor Hocking), 255 NLRB 715 (1981), the Board, applying Ford Motor Co. v. Huffman, 345 U.S. 330 (1953), in a duty of fair representation case, stated: Thus, not every act of disparate treatment is proscribed by Section. 8(b)(1)(A) of the Act, but only those which, because motivated by hostile, ' indivious, irrelevant, or unfair consid- erations, may be characterized as, arbitrary conduct. The Court in Ford Motor . Co., supra at 337-338, stated: Any authority to negotiate derives its princi- pal strength from a delegation to the negotia- tors of a discretion to make such concessions and accept such advantages as, in the light of all relevant considerations, they believe will best serve the interest of the parties represent- ed. . . . Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employ- ees and classes of employees. The mere exist- ence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to com- plete good faith and honesty of purpose in the exercise of its discretion. - - Compromises on a temporary basis, with a view to longrange advantages, are natural inci- dents of negotiation. These principles are equally applicable to both the tactics and substance of bargaining. In the instant case, there is no indication that the Respondents rejected and caused the rejection of benefit contributions in order to punish nonstrikers. Instead, they took these actions to apply additional economic pressure on the Association's nonsigna- tory members in support of its strike. The Re- spondents took these actions in an attempt to achieve at least a satisfactory bargaining agreement for the benefit of all unit employees. Thus, the ac- tions do not constitute invidious or arbitrary con- duct.5 In addition, the strike, as well as the actions 6 Compare Red Ball Motor Freight, 157 NLRB 1237 (1966), enfd 379 F 2d 137 (D C Cir 1967), in which a union was held to have violated its duty of fair representation when, for political reasons, it pledged to place at the bottom of the seniority list employees from one of two merged fa- cilities Unlike that case, here there is no indication that the Respondents' refusal to accept benefit fund contributions was motivated by a desire to favor one group of employees over another PLUMBERS LOCAL 66 (TRI-STATE MECHANICAL) 587 taken to support it, was not intended or designed to be permanent . Thus, the adverse effects of the actions on nonstrikers are natural incidents of nego- tiations; they are compromises of a temporary nature with a view to long-range advantages to the whole unit. Accordingly, we find that the Re- spondents did not violate Section 8(b)(1)(A) of the Act by failing fairly to represent unit employees.6 As we found that the complaint's allegations are without merit, we shall dismiss the complaint. CONCLUSIONS OF LAW 1. Dubuque Area Chapter, Mechanical Contrac- tors Association of Iowa, Inc. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) the Act. 2. Respondent Plumbers and Steamfitters Local Union No. 66 of the United Association of Jour- neymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and 6 The Respondents do not contend that the pendency of the strike nar- rowed or extinguished their duty to represent fairly the nonstriking em- ployees of the nonsignatory employers. We, therefore, find it unnecessary to address the questions raised by such cases as Capitol-Hustings Co. v. NLRB, 671 F.2d 237 (7th Cit. 1982). See Service Electrical Co., 281 NLRB 633 (1986); cf. Schmidt-Tiago Construction Co., 286 NLRB 1316 (1987); Corson & Gruman Co., 284 NLRB 1303 (1987). Marbro Co., 284 NLRB 1303 (1987). In any event, as indicated above, we find that the Respondents' conduct did not breach the duty of fair representation. Canada is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent William J. Herrig is an agent of Respondent Local 66 within the meaning of Sec- tion 2(13) of the Act. 4. Respondent Local 66 is the collective-bargain- ing representative of certain employees of the members of the Association in the following appro- priate unit: All plumbers and steamfitters employed by members of the Dubuque Area Chapter, Me- chanical Contractors Association of Iowa, Inc. 5. By rejecting and causing the custodian of the trust funds to reject local fringe benefit contribu- tions tendered on behalf of unit employees by As- sociation members which have not signed interim agreements against which Respondent Local 66 is on strike, Respondent Local 66 and its agent Herrig have not violated Section 8(b)(3) of the Act by unilaterally changing employees' working con- ditions. 6. By the above actions, Respondent Local 66 and Respondent Herrig have not violated Section 8(b)(1)(A) of the Act by failing fairly to represent unit employees. ORDER The complaint is dismissed.