Iron Workers Local 75 (Defco Construction)

National Labor Relations Board - Board Decisions

Feb 29, 1984

268 N.L.R.B. 1453 (N.L.R.B. 1984)

IRON WORKERS LOCAL 75 (DEFCO CONSTRUCTION)
International Association of Bridge, Structural, Re-
inforcing and Ornamental Iron Workers, Local
Union No. 75, AFL-CIO and L. G. Lefler, Inc.,
d/b/a Defco Construction. Case 28-CB-1782
29 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On December 3, 1982, Administrative Law
Judge Clifford H. Anderson issued the attached de-
cision. Thereafter, the General Counsel filed excep-
tions and the Respondent filed cross-exceptions and
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
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I In dismissing the complaint, we note that the General Counsel failed
to prove by a preponderance of the evidence that the Respondent sought
to enforce a contract clause which would have designated the Employ-
er's representatives for collective bargaining. Accordingly, we do not
pass on the principles of Clyde Taylor Co., 127 NLRB 103 (1960), nor do
we adopt the judge's discussion of Masters Mates & Pilots (Cove Tankers
Corp.), 224 NLRB 1626 (1976).
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge:
This case was tried before me in Phoenix, Arizona, on
September 28, 1982, pursuant to a complaint and notice
of hearing issued by the Regional Director on August
25, 1982, based on a charge filed by L. G. Lefler, Inc.,
d/b/a Defco Construction (the Charging Party or the
Employer) against International Association of Bridge,
Structural, Reinforcing and Ornamental Iron Workers,
Local Union No. 75, AFL-CIO (Respondent or the
Union), on April 28, 1981.
The complaint as amended at the hearing alleges that
Respondent restrained and coerced the Employer in the
selection of its representatives for purposes of collective
bargaining or adjustment of grievances by maintaining
and prosecuting a civil action in the United States Dis-
trict Court for the District of Arizona, thereby violating
Section 8(b)(1)(B) of the National Labor Relations Act.
Respondent filed an answer admitting certain portions of
the complaint but essentially denying the conduct attrib-
268 NLRB No. 222
uted to it and further denying that it had in any manner
violated the Act as alleged.
FINDINGS OF FACT
All parties were given full opportunity to participate
at the hearing,' to introduce relevant evidence, to exam-
ine and cross-examine witnesses, to argue orally, and to
file posthearing briefs.2 Upon the entire record herein,
including a brief from the General Counsel, I make the
following findings of fact. 3
1. JURISDICTION
The Employer is an Arizona state corporation engaged
in the building and construction industry. Its principal
place of business is in Tucson, Arizona. During relevant
times, the Employer has enjoyed an annual gross volume
of business in excess of $500,000 and has annually pur-
chased and received in the State of Arizona goods from
suppliers located outside the State of a value in excess of
$50,000.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
The Union at all relevant times has represented em-
ployees employed in the ironworkers craft in the State of
Arizona. The Employer has at relevant times been en-
gaged in commercial and industrial construction and the
construction management business. With the single ex-
ception noted, infra, the Employer has never employed
ironworker employees and, as of the time of the hearing,
had no intention to do so in the future. The Employer
regularly subcontracts ironworkers' work on its con-
struction projects.
Certain employers in the steel fabrication and erection
industry in Arizona formed an informal association
which in or around 1969 evolved into the Arizona Steel
Field Directors Association (in each case the Associa-
tion). The Association negotiated successive contracts
with the Union covering the ironworker employees of
authorizing member-employers for the periods, 1965-
1970, 1970-1974, 1974-1977, 1977-1980, and 1980-1982.
Both the 1977-1980 and the 1980-1982 contracts have
grievance and arbitration clauses which provide, inter
alia, for the processing of grievances and arbitrations on
I While the complaint and the subsequent order scheduling hearing
were served on all parties, only the General Counsel appeared at the
hearing. The Employer's principal participated as a witness.
s Counsel for the General Counsel stated at the hearing that counsel
for Respondent had informed her that he intended to file a brief in the
matter. Accordingly, I set the maximum time permissible under the
Board's Rules and Regulations for the submission of posthearing briefs.
No request for an extension of time to file briefs was made by any party.
Only counsel for the General Counsel submitted a brief.
' The findings herein where not otherwise indicated are based on ad-
missions in Respondent's answer or on uncontested credible testimonial
or documentary evidence.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behalf of she contracting employers by representatives of
the Association. The Employer has never been a member
of the Association nor has the Employer ever authorized
the Association to bargain with the Union on its behalf.
In 1968 the Employer briefly employed ironworkers
on a Tucson construction project. The Union and the
Employer entered into agreement which the Employer's
admitted agent signed on June 7, 1968. That agreement
adopted the then current 1965-1970 contract between
the Union and the Association. That agreement con-
tained the following provision:
SECTION 21. Grievance Procedure
Any dispute as to the proper interpretation of
this Agreement, in all matters other than craft juris-
diction, shall be handled in the first instance by a
representative of the Union and the Employer and
if they fail to reach a settlement within forty-eight
(48) hours it shall be referred to the Industrial
Council, Inc., by the aggrieved party. The Industri-
al Council, Inc., shall arrange a meeting of a Board
of Arbitration to be composed of two (2) Employer
representatives, two (2) Union representatives, and a
fifth member selected by the Board who shall have
no business or financial connections with either
party. The decision of the Board of Arbitration
shall be handed down within forty-eight (48) hours
after the selection of the fifth member and the deci-
sion of the Board of Arbitration shall be final and
binding upon both parties.
The Board of Arbitration shall have jurisdiction
over all questions involving the interpretation and
application of any section of this Agreement. It
shall not, however, be empowered to handle negoti-
ations for a new agreement, changes in the wage
scale, or jurisdictional disputes.
The 1965-1970 contract stated at section 24 that the col-
lective-bargaining agreement
. . .shall continue in full force and effect until July
31, 1970, and from year to year thereafter, unless at
least sixty (60) days' notice has been given in writ-
ing by either the Employer or the Union of a desire
to change or modify the terms of this Agreement
prior to July 31, 1970, or July 31 of any subsequent
year.
After about a month, the Employer ceased to employ
ironworkers. At the same time the Employer ceased ap-
plying the terms of the contract. It has never applied or
attempted to apply the contract to its subcontractor's
employees.
There is conflicting evidence concerning whether the
Employer received notice of an intention to terminate
the agreement from the Union. L. G. Lefler testified that
the Union never gave the Employer notice of an inten-
tion to terminate the agreement. The memorandum and
order of District Judge Earl H. Carrol, cited and dis-
cussed in detail, infra, notes that the Employer had sub-
mitted in that case the affidavit of the Employer's then
vice president, Thomas L. Roos Jr., the agent who
signed the agreement with the Union. The decision of
the court notes that Roos asserted that the Union gave
the Employer notice of its intent to modify the contract
in May 1970. There is no dispute that the Employer did
not meet and bargain with or sign another agreement
with the Union at any time. Nor has the Employer en-
tered into agreements of any kind with the Union's Inter-
national.
B. The Union's Lawsuit
About September 1980 the Union filed a petition to
compel arbitration in the United States District Court for
the District of Arizona, naming the Employer as defend-
ant. The suit alleged that the Employer and the Union
had been at all relevant times bound to a collective-bar-
gaining agreement,4 that the Employer was failing and
refusing to pay wages and trust contributions as provided
by the contract, and that the Employer was otherwise
violating the contract by, inter alia, refusing to process
the Union's grievances or take them to binding arbitra-
tion despite the Union's demand that it do so. The Union
by its suit sought an order compelling the Employer to
. . . immediately cease its refusal to submit the dis-
pute regarding its failure to abide by and/or comply
with the collective-bargaining agreement, and
[submit] all other disputes with respect to the inter-
pretation and application thereto, to binding aribi-
tration.
Other than the petition and the court's decision, the
record is devoid of testimony of substantive documents
concerning the litigation. On May 4, 1982, Federal Dis-
trict Court Judge Earl H. Carrol issued his memorandum
and order (CIV 80-806 PHX-EMC). Judge Carrol's
order granted the Employer's Motion for Summary
Judgment and dismissed the petition. In essence Judge
Carrol ruled that any automatic renewal of the 1965-
1970 agreement had been prevented when the Union no-
tified the Employer in May 1970 of its intent to change
or modify the contract. The court found this notification
to be tantamount to giving a notice of termination. The
court found as a matter of law that the contract termi-
nated on July 31, 1970, and was not in effect thereafter.
Given that the contractual violations alleged by the
Union occurred after the expiration of the contract, the
judge ruled the petition to compel arbitration should be
dismissed and so ordered.
As of the time of the hearing herein, no motion for re-
consideration, notice of appeal, or request for extension
of time for filing of notice of appeal had been filed by
any party to Judge Carrol's order. Thus the court's
4 The Union's petition asserted that a copy of the collective-bargaining
agreement was attached to the petition and incorporated by reference as
Exh. A. The copy of the petition introduced into evidence by the Gener-
al Counsel had no attachment Exh. A. Lefler testified that, while served
with a copy of the petition in October 1981, the copy he received did not
have an attachment. He further testified that he assumed but was not sure
that the exhibit reference was to the 1965-1970 Association contract
which the Employer adopted in 1968. The copy of the 1965-1970 Asso-
ciation contract received into the record as G.C. Exh. 3 is marked on its
cover as Exhibit A.
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IRON WORKERS LOCAL 75 (DEFCO CONSTRUCTION)
memorandum and order may now be regarded as final
and no longer susceptible to timely appeal. 5
C. Analysis and Conclusions
1. The theory of the General Counsel
Extensive colloquy with counsel for the General
Counsel at the hearing, and consideration of her post-
hearing brief, reveals that the General Counsel's case
may be divided into three parts. First is the argument
that the Union in filing its lawsuit had an object prohibit-
ed by Section 8(b)(1)(B) of the Act. Second is the argu-
ment that the filing and maintenance of the lawsuit,
standing alone, constitutes restraint and coercion within
the meaning of Section 8(b)(1)(B) of the Act and is not
otherwise sheltered under what has become known as
the Clyde Taylor 4 doctrine. Third is the issue of an ap-
propriate remedy, if any, given that the lawsuit was dis-
missed and the time for appeal passed. I will deal with
these issues separately. 7
2. Did the Union's lawsuit have an object
prohibited by Section 8(b)(1)(B) of the Act?
Counsel for the General Counsel argues that if a union
seeks to compel an employer to accept contractual provi-
sions for the selection of management designees on arbi-
tration boards, which representatives are not of the em-
ployer's choosing, the union violates Section 8(b)(1)(B)
of the Act, Plumbers Local 525 (Federated Employers of
Nevada), 135 NLRB 462 (1962). She further argues that a
union that insists that an employer designate its griev-
ance adjustment representatives in accordance with a
contract to which that employer is not a party also vio-
lates Section 8(b)(l)(B) of the Act, citing Masters, Mates
& Ptlots (Cove Tankers Corp)., 224 NLRB 1626 (1976),
enfd. 575 F.2d 896 (D.C. Cir. 1978). The cases cited sup-
port the General Counsel's assertions. It follows there-
fore that if the Union's suit herein had as an object the
binding of the Employer to an agreement to which it
was not a party and which provided for the selection of
grievance and/or arbitration representatives not of its
own choosing, then its object is impermissible under Sec-
tion 8(b)(1)(B) of the Act.
Turning to the Union's lawsuit, it is not clear from the
evidence offered at trial what particular contract the
Union was asserting in its petition as binding on the Em-
ployer. The General Counsel argues on brief:
Although it is unclear which collective-bargain-
ing agreement supposedly supports the Petition (TR
24), both the 1977-1980 and the 1980-1982 [Asso-
ciation] agreements provide for an Arizona Labor
a See Federal Rules of Appellate Procedure Secs. I(a), 3(a), 4(aXl),
and 4(aX5). While counsel for the General Counsel asserted at the hear-
ing that counsel for Respondent had informed her he was considering ap-
pealing the decision of the court, I find that statement, as of the time of
the instant hearing, was not susceptible to consummation.
I Clyde Taylor Co., 127 NLRB 103 (1960), and its progeny.
I Any arguments concerning the substantive effects of the period of
time between the Union's filing of the lawsuit and the filing of the
charge, i.e., over 6 months, and the time limits contained in Sec. 10(b) of
the Act, were waived by the Union when it failed to raise them before
me. Sunrise Hospital Medical Center, 254 NLRB 1377, 1379 fn 6 (1981).
Management Committee, composed of representa-
tives from both the Respondent and [the Associa-
tion], to hear grievances at a prearbitration level
(GCX 6, 7, Sec. 21). The unmistakable language of
these agreements indicates that this committee,
whose composition and selection is not of [the Em-
ployer's] choosing, has the authority to adjust griev-
ances. The [Association] representatives on the
committee represent the various employers and, ac-
cordingly, are clearly encompassed in the language
of Section 8(a)(1)(B) regarding employer representa-
tives for the adjustment of grievances.
The complaint alleges and the answer denies that the
Union's suit sought as a remedy the Employer's compli-
ance with an Association contract subsequent to the
1965-1970 Association agreement. It is thus clear that
the General Counsel is arguing that the Union's lawsuit
had as its goal the declaration by the court that a recent
Union-Association contract was binding on the Employ-
er. I agree with the General Counsel that, if this was the
object of the petition, the Union has violated Section
8(b)(l1)(B) of the Act as alleged. Turning to the facts of
the case, however, I reject her argument concerning the
identity of the contract which was the object of the
Union's petition.
For several reasons I am convinced that the only fair
inference possible on this record is that the Union was
attempting in its lawsuit to bind the Employer to the
terms of the 1965-1970 Association agreement separately
adopted by the Employer in 1968. First, an examination
of analysis of Judge Carrol makes it clear that the
Union's theory, albeit rejected by the court, was an auto-
matic renewal theory, i.e., that the 1965-1970 contract,
by its terms, renewed itself and was therefore in effect
after 1970 as between the Employer and the Union.
Automatic renewal would but bind the parties to the old
contract. Thus, the Union's asserted contract in its peti-
tion must have been the 1965-1970 Association agree-
ment adopted by the Employer in 1968. The 1965-1970
Association agreement did not provide for the adoption
of other agreements. The Employer at no time assigned
its bargaining rights to the Association nor had it ever
signed another agreement with the Union. Thus there is
no plausible theory or argument that the Union was at-
tempting by its petition to compel arbitration under the
terms of any other contract including recent Association
contracts.
Second, the Union's petition to compel arbitration re-
ferred by its terms to a specific contract and noted it was
attached as "Exhibit A." The 1965-1970 agreement intro-
duced into evidence by the General Counsel was marked
"Exhibit A" without explanation. The Employer's princi-
pal testified that he assumed that the Union was seeking
to bind the Employer to the 1965-1970 agreement. The
language of the petition and the court's order considered
together support this conclusion.
Third, and perhaps most importantly, counsel for the
General Counsel bears the burden of proof on each ele-
ment of her case. The evidence of this issue, noted
above, favors a finding the contract was the 1965-1970
Association agreement. The contrary interpretation of-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fered by counsel for the General Counsel, on facts which
she concedes on brief are "unclear," is simply without
evidentiary foundation. The General Counsel cannot suc-
cessfully argue that what may only with charity be
called "uncertainty" on this issue is sufficient to sustain
her argument given the burden of proof she bears.8
Having found that the Union sought to compel the
Employer to submit to arbitration under the terms of the
1965-1970 Association agreement, it is appropriate to ex-
amine that contract's language concerning grievance and
arbitration. The only relevant language in the 1965-1970
Association agreement is section 21, quoted in full,
above. That language provides that the employers bound
by the agreement including, by its 1968 adoption, the
Employer, select their own representatives for grievance
and arbitration processing. The only exception under this
contract is that the parties will use the Industrial Coun-
cil, Inc. to arrange meetings between union and employ-
er representatives. I do not regard such a facilitation
service as falling within the intendments of Section
8(b)(1)(B) of the Act. Thus the attempt of the Union to
force the Employer into arbitration under the 1965-1970
Association agreement did not include any contractual
restriction on the Employer's selection of its representa-
tives.
Given that the 1965-1970 Association contract does
not force the employer, properly or improperly, to ap-
point representatives not of its choosing within the mean-
ing of Section 8(b)(l)(B) of the Act, it seems clear that
the General Counsel's above-cited cases are distinguish-
able and the Union did not have an impermissible object
in filing its suit. This is so because, irrespective of the
motive, good faith, or actual or arguable merit of Re-
s The General Counsel asserts an adverse inference should be drawn
against the Union for its failure to comply with the General Counsel's
subpoena duces tecum. That subpoena sought, inter alia, the pleading in
the lawsuit. I will not draw an inference that Exhibit A, presumably at-
tached to the Union's original pleading, was a document other than the
1965-1970 Association agreement because the Union failed to comply
with the subpoena. First, the original pleadings including the petition
itself are a matter of public record and are in the custody of the court.
As such, they are equally available to all parties to this case. Second, the
General Counsel's subpoena does not indicate it was served on counsel
for the Union consistent with the requirements of the Board's Rules and
Regulations Sec. 102.111(b). Third, even where an adverse inference is
otherwise proper, it is permissive and not mandatory. Such an inference
should not strain the bounds of logic. Here, there is no reason to believe
that the Union's failure to produce a document available to all parties,
viewed in the context of the Union's general refusal to appear or partici-
pate at all at the hearing, should compel a finding that the missing "Ex-
hibit A" was a recent Association contract.
spondent's suit, the suit could not result in depriving Re-
spondent of its right to choose its own 8(bX)(1)(B) repre-
sentatives. Thus, the Union did not violate Section
8(b)(l)(B) of the Act.
3. Conclusion
Having found that the Union's suit did not have an
object of influencing the Employer's representatives for
purposes of collective bargaining or grievance and arbi-
tration handling, it is unnecessary to address the other
arguments of the General Counsel concerning the Clyde
Taylor issue or the issue of appropriate remedy. Without
an object proscribed by Section 8(bXI)(B) of the Act, no
violation is sustainable, whatever the merits on the Gen-
eral Counsel's remaining arguments. Accordingly, I will
make no findings with respect to the remaining conten-
tions of the General Counsel.
Having found the Union at no time sought to restrict
the Employer's selection of its representatives within the
meaning of Section 8(b)(1)(B) of the Act, I find the
Union's actions herein did not violate the Act. Accord-
ingly, I shall dismiss the complaint.
On these findings of fact and the entire record, I make
the following
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Union did not restrain or coerce the Employer
in the selection of his representatives for the purposes of
collective-bargaining or adjustment of grievances by
filing a petition to compel arbitration in the United States
Federal District Court for the District of Arizona.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommended
ORDER9
The complaint shall be and it hereby is dismissed in its
entirety.
9 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 pur-
poses.
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