Coatings Application Co

National Labor Relations Board - Board Decisions

May 29, 1992

307 N.L.R.B. 806 (N.L.R.B. 1992)

806
307 NLRB No. 126
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Single-employer contentions are also not uncommon in Sec.
10(k) cases. See, e.g., Iron Workers District Council (Madison In-
dustries), 307 NLRB 405, 407 (1992). Contrary to our dissenting
colleague, the Union’s single-employer contention, in the factual
context of this case, appears to show no more than its desire to es-
tablish that the Employer controlling assignment of the Shoals’
work—Coatings Louisville—is the same employer with whom the
Union has a collective-bargaining agreement—Coatings Indiana, and
that thus, by contractual obligation, the work must be assigned to
employees represented by the Union. This is consistent with the
Union’s essential claim, which clearly appears to raise a work dis-
pute. In view of the scant evidence before us concerning the nature
of the Union’s contractual grievance, the single-employer contention
does not establish that this dispute is representational.
Coatings Application and Waterproofing Company
of Indiana, Inc., Petitioner and Roofers Local
106. Case 25–UC–164
May 29, 1992
DECISION ON REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On November 27, 1990, the National Labor Rela-
tions Board, by a three-member panel, granted the Em-
ployer’s request for review of the Regional Director’s
Decision and Order (relevant portions of which are at-
tached) dismissing the Employer’s petition seeking
clarification of the bargaining unit represented by the
Union because he found that the petition raised a work
assignment issue rather than a unit clarification issue.
The Employer’s petition seeks to exclude from the unit
‘‘all Coatings Application and Waterproofing Com-
pany, Inc. employees while working in the geo-
graphical jurisdiction of Roofers Local 106 that not
employed out of its Louisville, Kentucky location.’’
Having reviewed the entire record, the Board con-
cludes that the record is insufficient to show that the
Union is seeking to represent the employees that the
Employer’s petition seeks to exclude from the bar-
gaining unit. Absent this evidence of a representational
claim, the Board agrees with the Regional Director that
the petition should be dismissed.
According to the undisputed testimony of the
Union’s business manager, Bobby Williams, when he
learned of the job at the Shoals Community School, he
contacted the Employer’s secretary-treasurer, David
Murnin, and informed him that he had signed a con-
tract with the Union which covered the Shoals’ job.
Williams also told Murnin that he understood that em-
ployees from the Louisville operation were doing the
work. Murnin asked if Williams wanted to put two or
three people on the job. Williams replied that this
‘‘would not have been in compliance with the con-
tract,’’ and told Murnin he was filing a grievance be-
cause ‘‘all our people should be on the job.’’ (The Re-
gional Director incorrectly described Williams’ testi-
mony as hearsay.) According to William Reed, the
Employer’s president, the Union filed a grievance
which claimed that ‘‘we weren’t using their people.’’
There is no other evidence concerning the nature of the
Union’s grievance.
On this record, it is apparent that the Union desired
that the Employer assign the Shoals’ work to the em-
ployees it then represented and not to the Louisville
employees. This is the essence of the labor dispute
which precipitated the Union’s grievance and the Em-
ployer’s filing of its UC petition. Further, on this
record, it is apparent that the Union’s contractual con-
tention was in support of its desire for assignment of
the work to the employees it represented rather than to
the Louisville group. This evidence clearly suggests
that a work dispute is the core issue here, and just as
clearly suggests that the Union was not seeking to rep-
resent the Louisville employees. Harley-Davidson
Motor Co., 234 NLRB 1121, 1123 (1978). See gen-
erally Carey v. Westinghouse Electric Corp., 375 U.S.
261 (1964). Evidence—as opposed to speculation—of
a clear representational objective on the part of the
Union with respect to the Louisville employees is sim-
ply absent from the record.
Addressing these circumstances, our dissenting col-
league appears to espouse the principle that any claim
under a collective-bargaining agreement is inherently
representational. Such a view finds no support in case
law or the facts of this case. None of the decisions
cited in his opinion support this proposition. Indeed,
contractual claims in support of work-jurisdiction con-
tentions are routine in Section 10(k) cases. See, e.g.,
Machinists Lodge 1743 (J. A. Jones Construction), 135
NLRB 1402, 1410 (1962).1 In any event, we find on
the facts before us that the Union made it plain it did
not want the Louisville employees involved in the
Shoals’ work, and that it did want the employees it
represented to perform the work. The Union’s contrac-
tual claim must be interpreted in this context.
Accordingly, the Regional Director’s decision is af-
firmed and the petition is dismissed.
MEMBER RAUDABAUGH, dissenting.
I conclude that the Union is making a representa-
tional claim. I therefore dissent from my colleagues’
conclusion that the claim is jurisdictional. My reasons
are set forth below.
The issue in this case is whether the Union was
making the representational claim that its contract with
Coatings of Indiana covered Coatings of Louisville
(the entity performing at the Shoals’ site) or was mak-
ing only the jurisdictional claim that union personnel
should be placed on that site. I conclude that the
Union was making the former claim. To be sure, a de-
cision in favor of the Union’s claim would result in the
placing of union personnel on the Shoals’ job (through
the application of the contract’s hiring hall clause). But
807COATINGS APPLICATION CO.
1 See Laborers Local 1 (Del Construction), 285 NLRB 593, 594–
595 (1987) (accretion issue found although one union claimed that
the employee performing the assigned work should be a union mem-
ber, and both the other union and the employer ‘‘framed the issues
in terms of a work assignment dispute’’); Laborers Local 231 (C.
Iber & Sons), 204 NLRB 37, 39, fn. 1 (1973) (the Board looks at
the dominant object in determining whether there is a work assign-
ment dispute).
2 See Printing Pressmen Local 7 Chicago (Metropolitan Printing
Co.), 209 NLRB 320, 321–322, fn. 6 (1974); Laborers Local 1 (Del
Construction Co.), supra. See also Retail Clerks Local 1689 (Market
Basket Stores), 256 NLRB 548 (1981) (in which the Board found
‘‘no dispute over specific work or job tasks, but merely a dispute
over which of two unions should represent certain employees’’). Cf.
Harley-Davidson Motor Co., 234 NLRB 1121, 1123, fn. 2 (1978)
(jurisdictional dispute where a union’s damand was focused on the
disputed work as opposed to representation of the employees per-
forming the work. The union claimed, inter alia, ‘‘we are entitled
to the work and what happens to the employees is the responsibility
of the Employer’’).
3 Contrary to the claim of the majority, I am not asserting that any
claim under a collective-bargaining agreement is inherently represen-
tational. Rather, I am asserting that where, as here, the Union claims
that two entities are a single employer and that the contract covering
the one entity also covers the other, the Union has made a represen-
tational claim. A unit clarification preceeding can resolve the single
employer question and the related single unit question. The mere fact
that the Union’s claim, if found valid, would result in the hiring of
union personnel (through the operation of the contract’s hiring hall
clause) does not detract from the representational nature of the
claim.
this is a consequence of the representational claim; it
does not belie the existence of the representational
claim.
Union Business Manager Bobby Williams, in his un-
disputed testimony, admitted that the Union was claim-
ing that the contract be applied to the Shoals’ job.
Thus, in his statements to the Employer, Williams
made clear that the focus of the Union’s concern was
that the contract be applied to the Shoals’ job. Accord-
ing to Williams, upon learning of the situation at the
Shoals’ job, he contacted the Employer’s vice presi-
dent, David Murnin, ‘‘and informed him that he had
signed a contract to perform roofing work in Shoals,
Indiana, which is under our jurisdiction.’’
Further, when Murnin offered to put some of the
employees represented by the Union on the job, Wil-
liams declined the offer and responded that doing so
would not have been in compliance with the contract.
Williams then told Murnin he was filing a grievance
because ‘‘all our people should be on the job.’’ Thus,
the demand that the union personnel staff the job was
a corollary to the demand that the contract be applied.
That is, given the contract’s hiring hall provision, the
application of the contract would require the hiring of
the union personnel.1
Significantly, the Union concedes that it is claiming
that the contract should be applied to the Shoals’ job.
Thus, the Union argues that ‘‘[t]he threshold deter-
mination that must be made in this case is whether
Coatings Louisville and Coatings Indiana constitute a
single employer for purposes of being bound by the
terms of the Collective Bargaining Agreement entered
into between the Employer and the Union.’’ The
Union further describes the dispute as ‘‘regarding
whether or not Coatings Louisville is sufficiently re-
lated to Coatings Indiana for purposes of being bound
by the terms of the Collective Bargaining Agreement
entered into between Coatings Indiana and Roofers
Local 106, specifically the jurisdictional hiring provi-
sions of said Agreement.’’
In sum, the essential basis of the Union’s claim is
that the Shoals’ job is covered by its contract with the
Employer.
On the basis of the above, I conclude that the
Union’s claim that its contract with Coatings of Indi-
ana covers Coatings of Louisville presents a represen-
tational claim2 and not a jurisdictional dispute.3
APPENDIX
3. The current scope of the Union’s recognition is de-
scribed in the current four-year collective bargaining agree-
ment effective April 1, 1988 as follows:
ARTICLE I
wherever the term ‘‘Employee’’ is used herein, the
same shall be deemed to mean and refer to a person
employed by the Employer and having job classifica-
tion of or performing labor as a Journeyman Roofer,
Damp and Waterproof Worker, Apprentice or Helper.
A further provision sets forth the geographic jurisdictional
limits of the Union (several counties in Indiana, Kentucky
and Illinois). The Petitioner, Coatings Application and Wa-
terproofing Company of Indiana, Inc. (hereinafter Coatings
of Indiana), seeks clarification of the bargaining unit to ex-
clude:
all Coatings Application and Waterproofing Company,
Inc. employees while working in the geographical juris-
diction of Roofers Local 106 that are employed out of
its Louisville, Kentucky location.
Coatings of Indiana, an Indiana corporation located in
Evansville, Indiana, is engaged in the application of sprayed-
in-place polyurethane roofing, where chemicals are heated
and pressurized by proportioning equipment and forced out
through a gun to the roof, after which elastomeric water-
proofing is applied. The corporate president is Willian Reed,
who owns half of the stock. The vice-president, owner of the
remaining stock and day-to-day manager is David Cates. The
corporate secretary-treasurer, Dave Murnin, works in an of-
fice in St. Louis, Missouri (as does President Reed). Murnin
is employed by a entity by the name of Missouri Paint and
Varnish, which performs administrative and payroll services
for Coatings of Indiana for a fee of 3% of gross sales. About
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 There was hearsay testimony at the hearing that the Union busi-
ness manager, Bobby Williams, contacted Secretary-Treasurer
Murnin regarding a job being performed by Louisville employees
that Williams contended should be done by his members and that
Murnin offered to allow the Union to put 2 or 3 people on the job.
This offer was declined. Thus, there had been no interchange of em-
ployees between the two companies.
2 to 12 (the number fluctuates) roofing employees are em-
ployed and work under the supervision of Manager David
Cates and Foreman Julian Cates. David Cates does a major-
ity of the hiring, as well as all the firing, scheduling of work,
estimating, purchasing and sales. Although there is a conflict
in testimony about the beginning of the contractual relation-
ship between the Union and Coatings of Indiana, it is clear
that it has been a continuous one since at least 1975.
Coatings Application and Waterproofing Company, Inc.
(hereinafter Louisville), is a Missouri corporation with facili-
ties in Louisville, St. Louis and Atlanta. It is the employees
of Louisville that the Petitioner seeks to have clarified as ex-
cluded from the bargaining unit. Louisville is engaged in the
installation of single-ply roofing, which consists of installing
and waterproof membrane from rolls. The corporate president
is William Reed, and he owns all the stock. The corporate
secretary-treasurer is Dave Murnin and Louisville also pays
his employer, Missouri Paint and Varnish, 3% of gross sales
to perform its administrative and payroll functions. Louis-
ville’s area manager is Louis Harley, who does all the hiring,
firing and adjustment of employee complaints, as well as es-
timating, sales and purchasing. Harley sets the rates of pay
and makes promotion and layoff decisions. Louisville em-
ploys 1 foreman and 3 to 15 laborers and roofers. In the nine
years that Louisville had been in business, it has never had
any bargaining relationship with a labor organization. Louis-
ville employees do not receive hospitalization insurance, va-
cation, pension or any other benefits. Their wages range from
5 to 12 dollars per hour and raises are given at Harley’s dis-
cretion.
Although on some occasions Coatings of Indiana has per-
formed work in or near Louisville, Kentucky area, there is
no evidence that any of the employees working on those jobs
had ever worked for Louisville.1 There is no transfer or
interchange of equipment between the two companies. The
record indicates a difference in skills required of the employ-
ees, stemming from the difference in materals used and how
they are applied. As outlined above, there is no common su-
pervision or common control of labor relations, although at
the highest corporate level there is some common ownership
and two common officers and the two companies use the
same provider of payroll and administrative services.
From the record, it appears that the instant petition was
filed as a result of a claim by the Union that a job at Shoals
Community Schools was being performed by employees of
Louisville and that it should be performed by members of the
Union. This petition was not filed to determine the unit
placement of employees performing a new operation, or to
determine the unit placement of employees following a
change in the Employer’s method of operation or corporate
organization, nor is there a claim of staturory basis for exclu-
sion of employees from the unit. Therefore, unit clarification
is not appropriate. Al J. Schneider & Associates, 227 NLRB
1305 (1977). If anything, the petition is a claim by the Em-
ployer that certain work belongs to a certain group of em-
ployees (Louisville employees) and is, thus, a work assign-
ment issue not appropriately considered or resolved in a unit
clarification proceeding. The Cincinnati Gas and Electric
Company, 235 NLRB 424 (1978).
ORDER
IT IS HEREBY ORDERED that the petition filed herein be,
and it hereby is dismissed.