International Association Of Bridge, Structural And Ornamental Iron Workers, Local No 55, Afl-Cio

28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Association of Bridge, Structural and Ornamental Iron Workers, Local No 55, AFL- CIO and The Lathrop Company Case 8-CD- 415 December 20, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 30, 1985, the National Labor Re- lations Board issued a Decision and Determination of Dispute in Case 8-CD-408 1 On March 25, 1986, the Regional Director for Region 8 issued a complaint and notice of hearing alleging that the Respondent, International Association of Bridge, Structural and Ornamental Iron Workers, Local No 55, AFL-CIO (Iron Workers), violated Sec tion 8(b)(4)(n)(D) of the National Labor Relations Act Subsequently, Iron Workers filed an answer admitting in part and denying in part the allega tions of the complaint, submitting affirmative de fenses, and requesting that the complaint be dis missed On May 30, 1986, the General Counsel filed a Motion for Summary Judgment and supporting brief with exhibits attached The General Counsel contends that by filing a grievance against the Charging Party, the Lathrop Company (Lathrop), and a suit to compel arbitration of the grievance, and by maintaining the grievance and suit after the Board awarded the disputed work to Christen's employees represented by Sheet Metal Workers, Iron Workers violated Section 8(b)(4)(ii)(D) of the Act The General Counsel also argues that the pleadings raise no issues of fact requiring a hearing On June 10, 1986, the Board issued an order trans- ferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted Iron Workers filed a response opposing the General Counsels motion and contending that the filing of a grievance to enforce a contractual subcontracting clause and the maintenance of the grievance and suit to compel arbitration of the grievance in the face of a 10(k) determination is not an unfair labor practice Lathrop filed a memoran dum in support of the General Counsel's motion The National Labor Relations Board has delegat ed its authority in this proceeding to a three- member panel 1 276 NLRB 1200 (1985) The Board awarded the disputed work to employees of Fred Christen & Sons Company (Christen) represented by Sheet Metal Workers International Association Local Union Nos 107 and 6 (Sheet Metal Workers) For the reasons set forth below, we deny the General Counsel's Motion for Summary Judgment and dismiss the complaint 2 Lathrop was the construction manager for work to be performed for the Whirlpool Corporation Lathrop employed no employees at the site and its function was to award contracts for construction work to the lowest responsible bidder At all rele- vant times, Lathrop had a collective bargaining agreement with Iron Workers which required it to subcontract work to employers who employ Iron Workers represented employees Nevertheless, Lathrop awarded siding and decking work to Christen, which had a collective-bargaining agree- ment with Sheet Metal Workers and did not use Iron Workers represented employees On or about May 21, 1985, Iron Workers re quested implementation of the grievance proce dure, alleging that Lathrop violated the subcon tracting provision of its agreement Lathrop and Christen filed 8(b)(4)(ii)(D) charges against Iron Workers for filing the grievance The Regional Di rector dismissed the charges because the filing of a grievance alone, without picketing or threat of picketing, does not constitute force or coercion within the meaning of Section 8(b)(4)(D) On learning of the grievance, Sheet Metal Work- ers threatened to picket if Lathrop reawarded the contract On June 3, 1985, Lathrop filed an 8(b)(4)(D) charge against Sheet Metal Workers in Case 8-CD-408 A 10(k) hearing was held based on the charge against Sheet Metal Workers The Board found reasonable cause to believe that Sheet Metal Workers' threat to picket violated Section 8(b)(4)(D) and awarded the work to employees of Christen represented by Sheet Metal Workers On August 13, 1985, before the issuance of the Board s 10(k) determination, Iron Workers filed suit in district court to compel Lathrop to arbitrate the May grievance On March 25, 1986, the General Counsel issued the instant complaint alleging that by filing the grievance and the suit to compel arbitration of the grievance, and by maintaining the grievance and the suit since August 13, 1985, Iron Workers had violated Section 8(b)(4)(u)(D) of the Act Iron Workers admits that it filed and maintained the grievance and suit, but denies that this is a viola tion of the Act 2 Contrary to her colleagues Member Cracraft would remand this case in order to determine what remedy the Respondent is seeking by invok mg the grievance procedure and filing the suit in district court to compel arbitration of the grievance Thus at this point in the proceeding she finds it unnecessary to pass on Carpenters Local 33 (Blount Bros) 289 NLRB 1482 (1988) a case in which she did not participate 292 NLRB No 7 IRON WORKERS LOCAL 55 (LATHROP CO) The facts of the instant matter closely parallel those of Blount Bros 3 in which we found that a union could lawfully file and pursue a grievance against an employer for breach of contract in cir cumstances where there was no conflict between the contract claim and the 10(k) determination Blount, the general contractor for a construction project, was signatory to an agreement with Local 33 which provided that Local 33 would perform all scaffold erecting work for the project The agreement also provided that Blount would not subcontract any work covered by the agreement to an employer not having a contract with Local 33 Blount, however, subcontracted masonry work to Anastasi whose employees were not represented by Local 33 Anastasi employees erected the scaffold ing for the masonry work Local 33 filed a griev ance against Blount for violation of the agreement's subcontracting clause and subsequently demanded arbitration Thereafter, 10(k) proceedings were ini- tiated on behalf of Blount where it was claimed that Local 33 had stopped working on the project in violation of Section 8(b)(4)(D) The Board awarded the disputed work to Anastasi's employ- ees, but Local 33 maintained its breach of contract claim against Blount The General Counsel issued a complaint alleging that Local 33 had violated Section 8(b)(4)(ii)(D) by pursuing its grievance against Blount in contraven tion of a prior 10(k) determination An administra tive law judge agreed with the General Counsel and found that Local 33's arbitration claim was a mere extension of the work dispute which the Board had earlier decided in the 10(k) proceeding The judge further noted that Blount was a neutral employer with no direct control over the work as- signment at issue and thus Local 33 had coercively enmeshed a neutral employer in a work dispute In reversing the judge, we found as follows While the Board determined in the 10(k) pro- ceeding that the employees of Anastasi were entitled to perform the disputed work, the 3 Carpenters Local 33 (Blount Bros) supra 29 Board did not consider the issue of whether Blount, in subcontracting this work to Anas- tasi, thereby had breached its contract with Local 33 and, if so, whether Local 33 is enti- tled to a remedy for that breach Thus, we find that the Board's 10(k) decision precludes Local 33 from forcing the use of employees it represents on the disputed scaffolding work, but does not preclude Local 33 from asserting its contract rights against Blount, including possible money damages for breach of con- tract (Id at 1484) We further noted that Blount was not a neutral employer unlawfully enmeshed in a work dispute because "Blount, while in a contractual re- lationship with Local 33, had control of the work which it ultimately subcontracted " Ibid Similarly, in the instant matter, while the Board determined in the 10(k) proceeding that the em- ployees of Christen were entitled to perform the disputed work, the Board did not consider the issue of whether Lathrop, in subcontracting this work to Christen, thereby had breached its contract with Iron Workers and, if so, whether Iron Workers is entitled to a remedy for that breach Thus, the Board's 10(k) determination precludes Iron Work- ers from forcing the use of Iron Workers represent- ed employees on the disputed work, but does not preclude Iron Workers from asserting its contract rights against Lathrop Furthermore, Lathrop is not a neutral employer coercively enmeshed in a work dispute because it had control of the work it ultimately subcontracted Because Iron Workers' contract action against Lathrop will have no effect on Christen's assignment of the disputed work, we find that the grievance and suit to compel arbitra- tion do not amount to unlawful coercion Accord- ingly, we deny the General Counsel's Motion for Summary Judgment and dismiss the complaint ORDER The General Counsel's Motion for Summary Judgment is denied and the complaint is dismissed