Catalytic, Inc.

National Labor Relations Board - Board Decisions

Jul 16, 1974

212 N.L.R.B. 471 (N.L.R.B. 1974)

CATALYTIC, INC 471
Catalytic, Inc. and Local 542, International Union of
Operating Engineers , AFL-CIO, Petitioner. Case
4-RC-10462
July 16, 1974
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
PENELLO
On October 17, 1973, the Regional Director for
Region 4 issued a Decision and Direction of Election
in the above-entitled proceeding, in which he rejected
the Employer's contract-bar contention and directed
an election in the Petitioner's requested unit of all
operating engineers and operators, maintenance and
service men on construction and heavy equipment
used in plant maintenance, repair, and renovation
employed by the Employer at the Getty Oil Company
plant in Delaware City, Delaware. Thereafter, in ac-
cordance with Section 102.67 of the National Labor
Relations Board Rules and Regulations, as amended,
the Employer, supported by the Building and Con-
struction Trades Department, AFL-CIO,' filed a re-
quest for review of the Regional Director's Decision
on the grounds, inter alia, that he erred in failing to
find that the Petitioner's parent (herein referred to as
the Operating Engineers), has bargained on a mul-
tiunion basis for all maintenance employees of the
Employer and that the instant petition must be dis-
missed because the Operating Engineers had not ef-
fectively withdrawn from multiunion bargaining with
respect to the employees involved. The Petitioner filed
opposition to the request for review.
On December 18, 1973, the National Labor Rela-
tions Board, by telegraphic order, granted the request
for review and stayed the election pending decision on
review.
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 considered the entire record in this
case with respect to the issues under review, and
makes the following findings:
The Employer advanced as a bar to the instant
petition the existing agreement, entitled "General
Presidents' Project Maintenance Agreement By Con-
tract" (hereinafter PMA), between the Employer and
13 International unions including the Operating Engi-
neers.2 The Regional Director concluded, however,
that as the PMA was not signed by the Operating
Engineers, it did not meet the requirements of Appala-
chian Shale Products Co., 121 NLRB 1160, for the
purpose of barring an election herein.
The Employer and BCTD assert that the record
supports a finding that the Operating Engineers has
been part of a multiunion relationship in negotiations
with the Employer with regard to its plant mainte-
nance employees, that the Operating Engineers has
not effectuated a timely and effective withdrawal
from the established multiunion relationship, and that
the Petitioner is bound by the actions of the Operating
Engineers with regard to the representation of the
employees herein sought and may not, therefore,
maintain a petition to represent them in a separate
unit at this time. We find merit in these contentions.
Prior to 1956, the plant maintenance industry was
dominated by nonunion subcontractors and employ-
ers whose maintenance employees were represented
by industrial unions. The Employer, at this time, was
engaged exclusively in construction work and was
party to collective-bargaining agreements with num-
erous construction locals in the area. In 1956, howev-
er, the Employer had received a commitment for a
maintenance contract at the Getty refinery on the
contingency that it could negotiate a labor agreement
with "a lessening set of conditions than apply to con-
struction-in other words, if the working conditions
were not as strong or as costly as construction condi-
tions." The Employer approached the various con-
struction trades Internationals here involved in hopes
of securing such an agreement on the theory that they
would be willing to negotiate directly, without their
locals, in return for the increased and nonseasonal
employment opportunities a successful agreement
might bring.
On September 17, 1956, the Employer and the pres-
idents of the 13 International unions entered into their
first PMA, for a 1-year term renewable from year to
year, absent 60-day notice by either party to negotiate
changes or terminate. The purposes of the agreement
were set forth in its preamble-
Whereas, the Contractor is engaged in the busi-
ness of continuous plant maintenance, repair and
Z International Association of Heat and Frost Insulators and Abestos
Workers. Bricklayers. Mason and Plasterers International Union of Amen-
ca. Union Brotherhood of Carpenters and Joiners of America, Laborers'
International Union of North America , International Brotherhood of Paint-
ers and Allied Trades, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States and Canada,
International Iron Ship Builders , Blacksmiths , Forgers and Helpers, Opera-
tive Plasterers and Cement Masons International Association , Sheet Metal
Workers International Association, International Brotherhood of Teamsters,
Chauffeurs. Warehousemen and Helpers (herein referred to as the Team-
sters ), International Union of Operating Engineers , International Associa-
1 Herein called the BCTD It requested and was granted permission to file tion of Bridge. Structural and Ornamental Iron Workers All of these
a brief as amicus curiae in support of the Employer's request for review International Unions, except the Teamsters, are members of the BCTD
212 NLRB No. 65
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
renovation . . and this work is of importance to
the Unions herein listed, and it being recognized
there is an essential difference in the conditions
required to perform this type of work, the Unions
herein listed with the Contractor wish to enter
into an agreement for their mutual benefit cover-
ing work of this nature. Whereas, the Unions
have in their membership throughout the area
members competent and qualified to perform the
work of the Contractor. . . . Whereas, in order
to insure relative equity and uniform interpreta-
tion and application, the Unions wish to establish
and administer said Collective Agreement in
concert, each with the other, and all with the
Contractor. Whereas, the Contractor and the
Unions desire to mutually stabilize wages, hours
and working conditions. . . . It is therefore,
agreed by the undersigned Contractor and
Unions in consideration of the mutual promises
and convenants contained herein that the project
agreement be made.. . .
The agreement further provided that maintenance
employees were to be secured from the hiring halls of
the various locals with which the Employer had col-
lective-bargaining agreements and that each employ-
ee was to be paid at a wage rate equal to the rate
appearing in the construction agreement between the
Employer and that employee's local union.'
Ongoing administration of the PMA was delegated
by the presidents of the 13 International unions to a
General Presidents' Committee (hereinafter GPC)
which was comprised of one representative for each
International president. Pursuant to this delegation,
the GPC negotiated revisions in the agreement in 1960
and 1970, by which time the PMA concept had prov-
en successful, to the extent that approximately 100
other employers had entered into similar arrange-
ments with the International unions involved.
By 1971, however, as construction rates increased,
many employers operating under the PMA found
themselves subject to increasing competition, and, un-
der pressure for remedial action, the GPC, on Febru-
ary 8, 1971, met with the General Presidents, who
authorized GPC to take "any feasible action neces-
sary to retain and expand" the PMA concept. On
March 31, 1971, the GPC, with the concurrence of the
Operating Engineers representative, unanimously
adopted a resolution to amend the 1970 PMA by
eliminating the requirement that maintenance rates
equal construction rates and providing, in its stead,
that maintenance rates would be determined on the
basis of a percentage of the construction rates. That
percentage was left undetermined but, in the interim,
a freeze on maintenance rates was instituted on 27
maintenance projects across the country. The
Employer's Getty project was not immediately affect-
ed, but after consultation with area officials and the
international representatives, the GPC, on January 6,
1972, frozen wages at the Employer's maintenance
operation for the period January 1, 1972, to January
1, 1973.
In the summer of 1972, it appears, the BCTD au-
thorized the GPC to modify the PMA so that the
freeze on maintenance rates equalled 90 percent of the
applicable construction rate, with such "90% parity"
to be maintained thereafter. The GPC instituted this
modification which, in turn, was approved by the
BCTD, sitting in executive session, on November 28,
1972. The Operating Engineers participated in the
meeting. The revised PMA, with an effective date of
March 1, 1973, was thereupon offered to and signed
by the Employer Although the Operating Engineers
has not signed the revised agreement, Petitioner has,
at all times material herein, continued to operate un-
der the terms of the revised agreement. The record,
furthermore, is devoid of any indication that the Op-
erating Engineers has at anytime taken affirmative
steps to withdraw from the multiunion group
We think the record amply supports the conclusion
that the PMA was a collective venture in which the
participating Internationals, in the words of the PMA
itself, agreed "to establish and administer said Collec-
tive Agreement in concert, each with the other, and all
with the contractor." Therefore, our determination
must consider the degree to which the actions of the
parties to that agreement conform to the standards we
have established for withdrawal from anoint bargain-
ing relationship. In this respect, we note that it has
long been our policy to hold the parties to the results
of the joint negotiation in the absence of an effective
withdrawal, i.e., one which is both timely and un-
equivocal.'
As the record indicates, the decision to adopt a
"90% parity" wage rate to cover maintenance work
was the outgrowth of two earlier decisions in which
Operating Engineers representatives participated.
The first, the February 8, 1971 delegation to the GPC
to take "any feasible action necessary to retain and
expand" PMA, clearly envisioned further action on
the part of the GPC to accomplish the stated goals of
the delegation. Pursuant to that delegation, the GPC,
J In return for the payment of construction wage rates the agreement ° See, e g . The Evening News Association , Owner and Publisher of The
eliminated , inter aha , many " fringe wages" normally appearing in construc - Detroit News," 154 NLRB 1494 ( 1965) See also international Union ofOperat-
tion agreements and thus helped to overcome the competitive advantage ing Engineers, Local 525, AFL-CIO (Clark Oil & Refining Corporation), 185
enjoyed by the nonunion employers and industrial unions NLRB 609 (1970)
CATALYTIC, INC 473
again joined by a representative of the Operating En-
gineers, froze maintenance wages on several projects
across the country. The first indication of discontent
within the Operating Engineers presumably did not
surface until the subsequent GPC determination to
include Employer's operations in the number of pro-
jects where maintenance rates would be frozen. How-
ever, during this period the participating Operating
Engineers locals continued to perform maintenance
work at the frozen rate.
The freeze was further acknowledged, from the out-
set, to be but an interim step designed to pave the way
for a revision of PMA whereby maintenance rates
were to be determined on the basis of a percentage of
the applicable construction rate. When the BCTD on
November 28, 1972, approved the revision of PMA
which set maintenance rates at the "90% parity" fig-
ure, the Operating Engineers participated in that deci-
sion. Once again, although the Operating Engineers
did not agree with that decision, its participating lo-
cals continued to perform the maintenance work but,
this time, at the 90-percent wage rate.5
In our view, the 1973 PMA was the outcome of an
ongoing process beginning with the decision, in Feb-
ruary 1971, to remedy the inadequacies of the then-
existing agreement. Because the Operating Engineers
voluntarily participated in that process, including its
participation in the November 28, 1972, decision to
approve the current agreement, and because Peti-
tioner, the beneficiary of that agreement, continued,
at all times material herein, to operate under its terms,
we conclude that there has been no clear and unequiv-
ocal withdrawal from the joint negotiations. We find,
therefore, that the Petitioner is precluded from seek-
ing separate representation of the employees in the
unit sought at this time.' Accordingly, we shall dismiss
the petition.
ORDER
It is hereby ordered that the petition in this case be,
and it hereby is, dismissed.
ty of GPC to alter the wage provisions of the PMA The arbitrator issued his
award, adverse to Petitioner , on October 30, 1972 We view Petitioner ' s filing
of the grievance as further evidence of its operation under, and adherence
to. the extant multiunion bargaining relationship with the Employer
During this period the Petitioner filed a grievance . contesting the author - 6 In view of our disposition herein , we find it unnecessary to reach other
contentions made by the Employer and the BCTD