International Union Of Operating Engineers, Local 18

OPERATING ENGINEERS LOCAL 18 (COOKSON INC) International Union of Operating Engineers, Local 18 and Ben Cookson, Inc Case 8-CP-301 November 25 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On July 13 1988 Administrative Law Judge Robert T Wallace issued the attached decision The Respondent filed exceptions and a supporting brief and the Charging Party filed an answering brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel 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 i and conclusions2 and to adopt the recommended Order as modified ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent International Union of Operating Engi neers Local 18 its officers agents and representa tives shall take the action set forth in the Order as modified 1 Substitute the following for paragraph I 1 Cease and desist from picketing causing to be picketed or threatening to picket Ben Cookson Inc where an object thereof is forcing or requir ing the employer to recognize or bargain with it as the representative of its employees in violation of Section 8(b)(7)(C) of the Act 2 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 797 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT picket cause to be picketed or threaten to picket Ben Cookson Inc when an object of the picketing is forcing or requiring the employer to recognize or bargain with us as the representative of its Employees in violation of Sec tion 8(b)(7)(C) of the Act INTERNATIONAL UNION OF OPERAT ING ENGINEERS LOCAL 18 Paul C Lund Esq for the General Counsel William I Fadel Esq (Wuliger Fadel & Beyer) of Cleve land Ohio for the Respondent Union Roger L Sabo Esq (Millisor & Nobtl) of Columbus Ohio for the Charging Party DECISION STATEMENT OF THE CASE ROBERT T WALLACE Administrative Law Judge On charges filed by Ben Cookson Inc (the Contractor) on June 4 1987 a complaint issued on July 16 1987 and the case was tried by me at New Philadelphia Ohio on September 10 1987 The basic issue is whether the Union which had a prehire relationship with the Con tractor violated Section 8 (b)(7)(C) of the National Labor Relations Act by picketing at a jobsite of the Contractor following termination of a collective bargaining agree ment Based on the entire record including my observation of the witnesses and after due consideration of briefs filed by all parties I make the following FINDINGS OF FACT i We find the Supreme Court s holding in NLRB v Iron Workers Local 103 (Higdon Contracting) 434 U S 335 (1978) to be controlling here In Higdon the Court held that when an uncertified union pickets with a re cognitional purpose for more than 30 days without filing a petition under Sec 9(c) with the Board such picketing is violative of Sec 8(b)(7)(C) of the Act That is exactly what the Respondent did here The Respondent which was never certified under Sec 9(c) as the representative of Ben Cookson Inc s employees picketed Ben Cookson Inc with a recogni tional object and no petition for certification under Sec 9(c) was filed within 30 days from the date the picketing began Because we find Higdon controlling here we do not rely on the judge s finding that pick eting to force a contractor to enter a prehire agreement constitutes pick eting for an unlawful objective 8 Because the complaint did not allege an 8(b)(1) violation and it was not litigated we do not adopt the judge s conclusion that the Respond ent s conduct violated Sec 8(b)(1) It is admitted and I find that the Contractor is an em ployer engaged in commerce within the meaning of Sec tion 2(2) (6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act The Contractor an Ohio corporation engaged in heavy excavation construction and based in New Phila delphia has been signatory to a series of 3 year Section 8(f) collective bargaining agreements with the Union since the mid 1960s The Union has never been certified as the bargaining representative of its employees and no representation petitions have been filed with the Board 291 NLRB No 127 798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The last agreement between the Contractor and the Union expired on April 30 1986 1 Prior to its expiration the Union sent a letter to the Contractor stating that it was exercising its right to modify amend and/or termi nate the contract and requesting that the Contractor meet with it to discuss terms of a new agreement The letter was not acknowledged and no meeting was held prior to the expiration date No further communication took place until July 25 when Union Business Agent Dave Lumbatis visited the Contractors office Its president Ben Cookson Jr was not there so he informed Cookson s son Vice President Ben Cookson III that the Union had just succeeded in negotiating a new standard agreement with the OCA of fective retroactively to May He briefly explained some changes including the sanctioning of a supplemental Job Recovery agreement providing sharply reduced hourly rates on any privately financed project where costs do not exceed $15 million and on leaving he promised to return with the exact text of the agreements as soon as they were punted Lumbatis did not return until January 30 1987 Mean while the only work performed by the Contractor was for agencies of the State of Ohio On those jobs it paid prevailing wage rates that basically correspond to union scales in the standard contract It drew on the Union s hiring hall for an average of six heavy equip ment operators per month between May 1 and December 3 1986 It remitted dues and fringe benefit payments to the Union for those workers During that period howev er it began to train and use as operators some long term employees who were not members of the Union No work was performed from December 3 1986 through approximately May 5 1987 During his visit on January 30 Lumbatis left with Ben Cookson III copies of the standard and short form agree ments and also a copy of the agreement providing job re covery rates Cookson III told him that his father was on an extended vacation in Florida and was the only one who had authority to sign any agreement Lumbatis said he understood and suggested that Cookson and his dad look over the agreements to see if there was anything they couldn t live with Lumbatis returned on February 6 March 20 April 28 and May 1 and on each occasion he was advised that Ben Cookson Jr had not returned from Florida No sig nificant discussion of the Lontracts took place 2 On May 4 Lumbatis again visited the office and this time Cookson Jr was there Lumbatis had heard that the Contractor was low bidder ($1397 000) for a site prepa ration job in connection with a $25 million private con struction project (New Towne Mall) near New Philadel phia Aware that the Contractor had been using non union operators he was especially interested in having 1 For many years the Contractor had been signatory to standard agreements with the Union through its assignment of bargaining rights to the Ohio Contractors Associat on (OCA) In 1983 it revoked that assign ment and in lieu thereof on Apnl 20 1984 it executed a so-called short form collective bargaining agreement under which it agreed to abide by terms negotiated by the OCA 2 On March 20 and in response to Lumbatis inquiry whether he had had a chance to review the documents Cookson III responded No work at the mall done solely by union operators and he urged Cookson Jr to sign immediately The latter how ever begged off stating that he did not yet have a writ ten agreement with the promoters and he told Lumbatis to check back later In fact by prearrangement the excavation contract was signed on the following day and work began at once 3 A weekly average of 11 heavy equipment opera tors were used on the job and of those 5 were obtained from the hiring hall and the remainder were longtime employees who were not affiliated with the Union and who received on the job training In submitting its bid and in paying the operators the Contractor used the job recovery rates in the supplement to the standard agree ment and it remitted to the Union dues and fringe bene fit payments for operators obtained from the hiring hall based on payment of those lower rates On May 8 Lumbatis made another brief visit to the office Cookson Jr declined to discuss the contracts or say when if ever he would sign Lumbatis regarded him as being bullheaded On May 13 having learned that job recovery rates were being paid Lumbatis returned and told Cookson Jr that those rates were not applicable because the total cost of the New Towne project far exceeded the $1 5 million cap Cookson replied that the only way he could have obtained his New Towne contract was by quoting the lower rates and he indicated he might sign a short form agreement if he could continue to pay those rates In subsequent meetings on May 21 22 and 26 Lumbatis reiterated the Union s view that the job recovery supple ment was not applicable and urged Cookson to sign promising that if he did so the Union would not demand retroactive payment of normal rates Cookson remained noncommittal saying he needed time to decide Finally on June 1 the Contractor sent a letter to the Union reading as follows As you are aware we have no labor agreement with your Union We had met with your Union to discuss a possible agreement to cover the [New Towne Mall] project for the craft of Operating En gineers You have continued to insist that your standard agreement in effect between the Ohio Con tractors Association and your Union would apply to this project We have offered to work this project under the terms of your so called market job recovery agreement Since you have refused to do this this is to advise as follows We no longer intend to negotiate with your Union for the terms of any labor agree ment We will not bargain with your Union unless and until it is designated by an appropriate unit of employees in a National Labor Relations Board conducted election On June 3 1987 the Union commenced picketing the project with signs bearing the legend 3 Some preliminary work had been performed by the Contractor in April OPERATING ENGINEERS LOCAL 18 (COOKSON INC) 799 IUOE Local 18 upon the 8(f) contract s expiration the signs ON STRIKE tory union will enjoy no majority presumption and Ben Cookson Inc either party may repudiate the 8 (f) relationship The Not Bargaining signatory employer will be free at all times from In Good Faith any coercive union efforts including strikes and NO CONTRACT picketing to compel the negotiation and/or adop tion of a successor 8(f) agreement The pickets also distributed handbills which stated inter alia that Ben Cookson Inc was working non Union and refuses to bargain in good faith with the Operating Engineers All but one of the operators obtained from the hiring hall left the project when picketing began That individ ual and all the Contractors nonunion operators remained on the job The picketing continued until July 10 when it ceased Analysis I find the picketing to be in violation of Section 8(b)(7)(C) of the Act 4 as charged Admittedly the Union was never certified under Section 9(c) as the rep resentative of the Contractors employees and no peti tion for such certification was filed within 30 days from when the picketing began In fact the Union does not claim that it picketed in order to obtain a Board super vised election Instead it contends that its right to strike/picket derives not from Section 8(b)(7) but from voluntary recognition under Section 9(a) and the Con tractors subsequent failure to live up to the bargaining obligation arising from such recognition In reasoning to that position the Union concedes that historically its relationship with the Contractor was based solely on successive agreements entered into pur suant to Section 8(f) of the Acts and that the last such agreement expired on April 30 1986 Also it does not dispute a basic finding of the Board in the Deklewa case (decided February 20 1987)6 that * Sec 8(b)(7)(C) reads in pertinent part as follows (b) It shall be an unfair labor practice for a labor organization (7) to picket any employer where an object thereof is forc ing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative unless such labor organization is currently certified as the repre sentative of such employees Indeed even prior to Deklewa picketing to force a con tractors acceptance of a prehire agreement was held un lawful in the Noonan case 7 and the same result obtained in Higdon8 in which the Court relied on the following legislative history Congress was careful to make its intention clear that prehire agreements were to be arrived at vol untarily and no element of coercion was to be ad matted into the narrow exception being established to the majority principle Representative Barden an important House floor leader on the bill and a con feree introduced as an expression of legislative intent Senator Kennedy s explanation the year before of the voluntary nature of the prehire provi sion Mr Kennedy I shall answer the Senator from Florida as follows-and it is my intention by so an swenng to establish the legislative history on this question It was not the intention of the committee to require by section 8(f) the making of prehire agreements but rather to permit them nor was it the intention of the committee to authorize a labor organization to strike picket or otherwise coerce an employer to sign a prehire agreement where the majority status of the union had not been estab lished The purpose of this section is to permit vol untary prehire agreements 105 Cong Rec [daily ed ] 18128(1959) 2 Leg Hist 1715 The House Conference Report similarly stressed that [n]othing in such provision is intended to authorize the use of force coercion strikes or pick eting to compel any person to enter into such pre hire agreements H R Rep No 1147 86th Cong 1st Sess 42 (1959) 1 Leg Hist 946 The Union however points out that the Contractor did not issue its repudiation letter until June 1 1987 well after expiration of the contract on April 30 1986 and citing Deklewa fn 53 which reads (C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picket ing Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this sec tion 8(b) Sec 8(f) permits an employer engaged primarily in the construction industry to make a collective bargaining agreement without any showing that the contracting union represents a majority of its employees Such contracts are usually called pre hire agreements although they need not be negotiated before a construction employer hires his workforce Painters Council 48 (Orange Belt) Y Kashak 774 F 2d 985 988 (9th Cir 1985) 6 John Deklewa & Sons 282 NLRB 1375 1386 (1987) We do not mean to suggest that the normal pre sumptions would not flow from voluntary recogni tion accorded to a union by the employer of a stable work force where that recognition is based on a clear showing of majority support among the unit employees e g a valid card majority Island Construction Co 135 NLRB 13 (1962) That is nothing in this opinion is meant to suggest that unions have less favored status with respect to con Operating Engineers Local 542 (R S Noonan) 142 NLRB 1132 (1963) enfd 331 F 2d 99 (3d Cir 1964) cert denied 379 U S 889 (1964) 8 NLRB v Iron Workers Local 103 (Higdon Contracting) 434 U S 335 349 fn 10 (1978) See also Jim McNeff Y Todd 461 U S 260 (1983) 800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD struction industry employers than they possess with respect to those outside the construction industry It contends that during the interval the 8(f) relationship converted into one under Section 9(a) by virtue of vol untary recognition 9 Deklewa also recognizes (fn 41) that the party assert ing the existence of a 9(a) relationship has the burden of proof I find that the Union has failed to meet that burden No card check ever took place and the only other showing of majority status offered by the Union is its claim that the Contractor by its own admissions obtained all of its operating engineer work force prior to repudiation from the Union s exclusive hinng hall referral system The employees referred to employment by Local 18 have demonstrated their willingness of support of its bargaining representative by making themselves available for work exclusively through the Union s hiring hall The operating engineer employees re ferred to [the Contractor] are not members of the Union by virtue of a union security clause con tamed in any collective bargaining agreement but have voluntarily by their own acts selected [the Union] as their bargaining representative The assertion that the Contractor obtained all its heavy equipment operators through the Union s hiring hall is not in accord with my findings here But even if true that circumstance is not persuasive See Deklewa supra at 1383-1384 in which the Board cites Authorized Air Conditioning Co v NLRB 606 F 2d 899 906 (9th Cir 1979) for the proposition that union membership is not always an accurate barometer of union support 10 Having failed to establish majoritanan status of the Union any recognition accorded it by the Contractor was insufficient to create a binding bargaining obligation In consequence it is plain that the picketing was con ducted for an unlawful objective i e to force the Con tractor to enter into a prehire agreement CONCLUSIONS OF LAW I find that Respondent Union violated Sections 8(b)(7)(C) and 8(b)(1) of the Act in the particulars and for the reasons stated above I further find that the viola tion has affected and unless permanently enjoined will continue to affect commerce within the meaning of Sec tion 2(6) and (7) of the Act No need is shown for impo sition of a visitatonal clause On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed'I ORDER The Respondent International Union of Operating En gineers Local 18 its officers agents and representatives shall 1 Cease and desist from (a) Picketing causing to be picketed or threatening to picket Ben Cookson Inc or any other contractor in order to induce them to sign a prehire agreement under Section 8(f) of the Act (b) In any like or related manner engaging in conduct here found unlawful 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Post at its business office in Akron Ohio copies of the attached notice marked Appendix 12 Copies of the notice on forms provided by the Regional Director for Region 8 after being signed by the Respondents Union 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 Union to ensure that the notices are not altered defaced or covered 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 Union has taken to comply 9 The Union also states that the Contractor Having failed to repudi ate upon expiration of its collective bargaining agreement waived any rights it may have had with regard to repudiation [under the ration ale of Deklewa] My careful reading of that case reveals no basis for that statement 10I note that the standard agreement between the Union and OCA contains a union security clause See it Exh 10 pars 8-9 Where such a provision is in effect it operates to compel new employees to join the union because union membership is the puce for obtaining a job Preci son Stripping Inc Y NLRB 642 F 2d 1144 1148 (9th Cir 1981) 11 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 put poses 12 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 Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board