PSM Steel Construction

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 1302 (N.L.R.B. 1992)

1302
309 NLRB No. 185
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The facts set forth are based on the underlying administrative in-
vestigation and PSM’s postappeal brief with supporting documenta-
tion. For purposes of this decision, we have assumed that PSM’s as-
sertions are accurate. Contrary to PSM’s assertion that the Regional
Director erred in failing to hold a hearing, we note that Regional Di-
rectors are vested with authority to dismiss petitions without holding
a formal hearing when the Regional Director finds that there is not
reasonable cause to believe that a question concerning representation
affecting commerce exists. See Board’s Rules and Regulations Secs.
102.63 and 102.71.
2 Although Local 825 filed an 8(a)(5) charge, it was dismissed be-
cause the unit consisted of a single employee.
3 Unless otherwise indicated all subsequent dates are in 1990.
4 Charges filed with respect to this threat to picket were dismissed.
5 The petition actually asserts that picketing occurred on June 4.
However, other documents in the file, including PSM’s brief, indi-
cate that there was only a threat to picket on that date.
6 The petitioned-for unit description is:
All construction employees employed by the Employer for the
installation of steel floors and roof decking and the installation
of studding, including welding and related services excluding all
other employees, supervisors, guards, officers, clerical employ-
ees and other statutory exclusions.
7 The letter stated that Local 825,
has never requested that the employer recognize Local 825 as
the representative of a bargaining unit comprised of ‘‘all con-
struction employees’’ as described in the petition, nor does
Local 825 seek to represent the employees in such a bargaining
unit.
8 In a prior unfair labor practice case, Operating Engineers Local
825 (PSM Steel Construction), Cases 22–CC–1131 and 22–CP–383,
the Regional Director concluded that the object of Local 825’s June
4 threat to picket was to obtain an 8(f) contract in a stable one-per-
son unit. Accordingly, the Regional Director refused to issue com-
plaint alleging a violation of Sec. 8(b)(7)(C). PSM appealed this de-
PSM Steel Construction, Inc., Employer-Petitioner
and District Council of Northern New Jersey,
International Association of Bridge, Structural
and Ornamental Iron Workers and Inter-
national Union of Operating Engineers, Local
Union No. 825. Case 22–RM–673
December 16, 1992
DECISION ON REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
The issue is the continued validity of Albuquerque
Insulation Contractor, 256 NLRB 61 (1981), following
our decision in John Deklewa & Sons, 282 NLRB
1375 (1987), enfd. sub nom. Iron Workers Local 3 v.
NLRB, 843 F.2d 770 (3d Cir. 1987), cert. denied 488
U.S. 889 (1988). Albuquerque Insulation held that a
union’s request that an employer sign an 8(f) agree-
ment does not support the processing of a RM petition
pursuant to Section 9(c)(1)(B) of the Act. We hold that
the decision in Albuquerque Insulation retains its va-
lidity after Deklewa. Accordingly, for the reasons stat-
ed here, we affirm the Regional Director’s decision ad-
ministratively dismissing the instant petition.
Facts1
From 1984 to 1989 PSM Steel Construction, Inc.
(PSM or the Employer) employed a single operating
engineer pursuant to its 8(f) contract with Local 825,
International Union of Operating Engineers. In June
1989 the engineer was laid off and the 1987–1990 con-
tract with Local 825 was terminated midterm by letter
of August 23, 1989.2 Since 1989, all work, including
the work of the former operating engineer, has been
performed by four ironworker employees. PSM has
had two successive 8(f) contracts with the Iron Work-
ers. The second of these contracts terminated June 30,
1990.3
By letter of June 4, Local 825 threatened to picket
PSM for an 8(f) agreement at a jobsite run by a gen-
eral contractor whose agreement with Local 825 re-
quired that subcontractors agree to perform work pur-
suant to the terms and conditions of the Local 825
contract. PSM was dismissed from the job in response
to the threatened picketing.4
In early November, the Iron Workers sent PSM a
copy of the successor 8(f) Iron Workers’ contract and
asked that PSM sign it. Based on this request that it
sign a successor 8(f) contract, as well as the threatened
picketing on June 4,5 PSM filed a RM petition on No-
vember 23, seeking an election in a unit of all con-
struction employees.6
By letter to the Regional Director dated December
3, Local 825 disclaimed interest in representing a unit
of all construction employees of PSM.7 On December
19, after gathering the above-recited facts, the Regional
Director dismissed the petition based on his conclusion
that no union has requested to represent a unit of all
construction employees and that the unit described in
the petition does not track the historical units in either
of the expired contracts. The Regional Director also
noted that Local 825 had expressly disclaimed rep-
resenting employees in the petitioned-for unit. No evi-
dence of a contrary intention was presented.
We granted the Employer’s request for review on
January 3, 1992, because of the substantial issues pre-
sented. Having considered the matter fully, we affirm
the Regional Director’s dismissal on the basis set forth
below.
Analysis
A. Coextensiveness of Demands with Petitioned-
for Unit
Even assuming that Operating Engineers Local 825
is demanding that PSM recognize it and sign a succes-
sor 8(f) contract, we find that Local 825 seeks recogni-
tion in a unit that would consist of employees who
performed work covered by its previous contract rather
than a unit composed of all the Employer’s construc-
tion employees.8 A RM petition will be processed if
1303PSM STEEL CONSTRUCTION
termination. However, the Regional Director’s finding was upheld on
appeal. PSM also asserts that Local 825 has forwarded a successor
8(f) contract for signature. This request, similarly, covers a stable
one-person unit.
9 Bowman Transportation, 142 NLRB 1093, 1094–1095 (1963)
(one of the requirements for processing a petition in a RM proceed-
ing is that a union must have claimed representative status in the
unit covered by the petition); Westinghouse Electric Corp., 129
NLRB 846, 847 (1960) (same).
10 PSM claims that it has not received a copy of the disclaimer
and that, in any event, it does not trust Local 825. We note that a
Regional Office document indicates that the Regional Office for-
warded the disclaimer to PSM’s attorney. More importantly, PSM
does not present any evidence that would indicate a contrary inten-
tion on the part of Local 825. PSM asserts that Local 825 forwarded
a 1990–1993 8(f) contract for signature. However, this contract
would cover the one-man unit historically represented and does not
indicate an intention contrary to the disclaimer.
it seeks an election in the unit for which there has
been a demand for recognition.9 Local 825 disclaimed
any interest10 in the petitioned-for unit consisting of all
construction employees, and has not engaged in any
conduct inconsistent with such a disclaimer. Accord-
ingly, as to Local 825, we agree with the Regional Di-
rector’s conclusion that there has been no demand in
the petitioned-for unit.
With respect to the Iron Workers, PSM asserts that
it assigned the work formerly performed by the engi-
neer to an ironworker, and its entire work force cur-
rently consists of four ironworker employees. PSM as-
serts that the Iron Workers has forwarded a successor
8(f) contract for signature. The evidence reflects that
such a contract would cover ‘‘the claimed, recognized
and assigned’’ work jurisdiction as set forth in the con-
tract including the ‘‘erection and construction of all
. . . steel . . . structures or parts thereof.’’ (Art. IV,
agreement between District Council of Northern New
Jersey Iron Workers and Structural Steel and Ornamen-
tal Iron Association of Virginia, the Associated Gen-
eral Contractors of New Jersey, the Building Contrac-
tors Association of New Jersey, and Rigging Contrac-
tors of New Jersey for the period July 1, 1984, to June
30, 1987.) Accordingly, it appears that the petitioned-
for unit, ‘‘[a]ll construction employees employed by
the Employer for the installation of steel floors and
roof decking and the installation of studding, including
welding and related services’’ would consist solely of
ironworkers who would be covered by the contract
sought by the Iron Workers. We therefore conclude
that the RM petition covers the unit in which PSM
claims a demand for recognition has been made by the
Iron Workers.
B. Request to Sign 8(f) Contract as Support for
RM Petition
Since we have determined that the Iron Workers’
claim is coextensive with the petitioned-for unit, the
question is whether there has been a ‘‘claim’’ for rec-
ognition sufficient to support a RM petition. Our con-
clusion must necessarily reflect an analysis of the post-
Deklewa validity of Albuquerque Insulation, supra.
1. Statutory mandate
Section 9(c)(1)(B) provides in relevant part:
Whenever a petition shall have been filed . . . .
. . . .
by an employer, alleging that one or more . . .
labor organizations have presented to him a claim
to be recognized as the representative defined in
section 9(a) . . . the Board shall [process the peti-
tion].
Section 9(a) provides in relevant part:
Representatives designated or selected for the pur-
poses of collective bargaining by the majority of
the employees in a unit appropriate for such pur-
poses, shall be the exclusive representatives of all
the employees in such unit for the purposes of
collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions
of employment.
In Albuquerque Insulation the Board held that a
union’s request that an employer sign an 8(f) contract
did not constitute a claim for recognition as a majority
representative pursuant to Section 9(a) of the Act. Ini-
tially the Board noted that the language of Section
9(c)(1)(B) literally requires that a RM petition be sup-
ported by a union claim of majority. Because there
was no request for 9(a) majority status, the petition
was dismissed.
This basis for the holding in Albuquerque Insulation
remains valid following the decision in Deklewa.
Deklewa held that parties who enter into an 8(f) agree-
ment will be required by virtue of Section 8(a)(5) and
Section 8(b)(3) to comply with the agreement during
its term, in the absence of a Board-conducted election
where employees vote to change or reject their bar-
gaining representative. 282 NLRB at 1377, 1385.
However, following expiration of an 8(f) agreement,
the union enjoys no presumption of majority status and
either party may repudiate the 8(f) bargaining relation-
ship. Id. at 1377–1378.
Deklewa noted that modification of the law of 8(f)
relationships, so as to apply Section 8(a)(5) and Sec-
tion 8(b)(3) implicated Section 9(a) of the Act as well.
Deklewa rejected the contention of some parties that
would vest an 8(f) union with full 9(a) status. Id. at
1384–1385. Rather, Deklewa conferred a limited 9(a)
status on an 8(f) signatory union as follows:
The enforceable Section 9(a) status we confer
on signatory unions is also only coextensive with
the bargaining agreement that is the source of its
exclusive representational authority. Beyond the
operative term of the contract, the signatory union
1304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 282 NLRB at 1386 fn. 45. See also fn. 47 of Deklewa regarding
the processing of RM petitions predicated on the fact that the em-
ployer ‘‘is signatory to an 8(f) agreement.’’
12 Following enactment of the Taft-Hartley amendments, the Board
began asserting jurisdiction over the construction industry. See, e.g.,
Carpenters (Wadsworth Bldg. Co.), 81 NLRB 802, 804 fn. 6 (1949),
enfd. 184 F.2d 60 (10th Cir. 1950), citing Carpenters Local 74
(Watson’s Specialty Store), 80 NLRB 533 (1948), enfd. 181 F.2d
126 (6th Cir. 1950), affd. 341 U.S. 707 (1951); Ozark Dam Con-
structors, 77 NLRB 1136 (1948).
13 In discussing reform in representation proceedings, the Senate
Report indicates these concerns:
The one-sided character of the Board’s rules [in not allowing
employer petitions] has been defended on the ground that if an
employer could petition at any time, he could effectively frus-
trate the desire of his employees to organize by asking for an
election on the first day that a union organizer distributed leaf-
lets at his plant. It should be noted that this may be a valid argu-
ment for placing some limitation upon an employer’s right to
petition, but it is no justification for denying it entirely. The
committee has recognized this argument insofar as it has point,
by giving employers a right to file a petition but not until a
union has actually claimed a majority or demanded exclusive
recognition. It should be observed that this amendment, like the
amendment doing away with disparity of treatment on employee
petitions, does not impair the Board’s discretion to dismiss peti-
tions by employers where the existence of an outstanding collec-
tive agreement or some other special condition makes an elec-
tion at that time inappropriate.
S. Rep. No. 105 on S. 1126, 80th Cong., 1st Sess. at 11, 1 Leg.
Hist. 417 (LMRA 1947).
14 In Albuquerque Insulation, 256 NLRB at 63, the Board stated:
Thus, the Act contemplates that a union which is not presently
majority representative may decide when or whether to test its
strength in an election by its decision as to when or whether to
request recognition or itself petition for an election. This is im-
portant because, under Section 9(c)(3) and Section 8(b)(7)(B), a
Board-conducted election has the effect of barring any further
election or recognitional picketing for a full year. Until the
union makes such a move, it is free to organize without the im-
position of an election and, in accordance with Section
8(b)(7)(C), it may engage in recognitional picketing for a rea-
sonable period of time not to exceed 30 days prior to filing for
an election; an employer confronted with such picketing may pe-
tition for an election to force the issue. Thus, once the union
seeks recognition as majority representative, the election proc-
ess—with its potential risks and rewards—may be invoked by
either side. But, until that time, an employer may not attempt
to short-circuit the process or immunize itself from recognitional
picketing by obtaining a premature election.
15 Employer petitions based on recognitional picketing do not
short-circuit the election process. On engaging in recognitional pick-
eting, the union has indicated a present recognitional object. Elec-
Comm, Inc., 298 NLRB 705 (1990) (representational picketing—
whether for an 8(f) or 9(a) contract—constitutes a present demand
for recognition pursuant to Sec. 9(c)(1)(B)). This holding is predi-
cated on the premise that picketing for an 8(f) contract is legally in-
distinguishable from picketing for a 9(a) contract. Id. at 706 fn. 5;
Laborers Local 1184 (NVE Constructors), 296 NLRB 1325 (1989),
enfd. 934 F.2d 1084 (9th Cir. 1991). We note that there was no re-
cognitional picketing in this case.
Member Raudabaugh does not agree with Elec-Comm, insofar as
that case teaches that picketing for an 8(f) contract will support a
RM petition. Irrespective of whether a union is picketing for an 8(f)
contract or (as in the instant case) simply asking for an 8(f) contract,
acquires no other rights and privileges of a 9(a)
exclusive representative. Unlike a full 9(a) rep-
resentative, the 8(f) union enjoys no presumption
of majority status on the contract’s expiration
. . . . At no time does it enjoy a presumption of
majority status, rebuttable or otherwise, and its
status as the employees’ representative is subject
to challenge at any time.
282 NLRB at 1387 (footnotes omitted). Accordingly,
as the limited 9(a) status is coextensive with the con-
tract and does not survive contract expiration, a
postexpiration request for a successor 8(f) agreement
cannot qualify literally under the language of the stat-
ute as a claim of majority status.
2. Legislative policy
PSM argues that the Board should entertain its peti-
tion because Deklewa ‘‘sought to achieve labor stabil-
ity as well as to protect employee free choice by al-
lowing elections under Section 9(c) to occur at the ex-
piration of Section 8(f) contract.’’ In fact, Deklewa
provides for election petitions ‘‘only after the [8(f)] re-
lationship has been established and is operational.’’11
However, PSM is correct in pointing to our concern
for balancing the interests of labor stability and em-
ployee free choice in selecting their bargaining rep-
resentatives. In determining what policies best achieve
this result, we are guided by the legislative history of
Section 9(c)(1)(B) which was added to the Act in
1947. This was prior to the Board’s assertion of juris-
diction over the construction industry12 and prior to
the 1959 addition of Section 8(f) to the Act. Before the
addition of Section 9(c)(1)(B), employer petitions were
not available except on competing claims made by two
labor organizations. In amending the Act to permit em-
ployer petitions, Congress sought to prevent employers
from utilizing such petitions as a means to undermine
employee free choice. Accordingly, after rejecting var-
ious alternatives, Congress enacted the requirement
that an election be held only if there was a majority
claim,13 and this requirement was not modified on the
enactment of Section 8(f). As the Board observed in
Albuquerque Insulation,
There is good reason for this result. The Sec-
tion 9(c)(1)(B) requirement that an employer may
secure an election only if a claim is made by a
party that it is the majority representative of the
employees was placed in the statute to prevent an
employer from precipitating a premature vote be-
fore a union has the opportunity to organize. [Em-
phasis in original.]
256 NLRB at 63 (citations omitted). Albuquerque Insu-
lation was squarely predicated not only on the plain
language of Section 9(c)(1)(B) of the Act but also on
the underlying legislative policy.14 Deklewa does not
alter this basic legislative concern.15 Moreover, we
1305PSM STEEL CONSTRUCTION
the critical fact in both situations is that the union is not seeking rec-
ognition as the majority Sec. 9 representative. Thus, under the lan-
guage of Sec. 9(c)(1)(B) and Sec. 9(a), there is no basis for process-
ing a RM petition.
However, in Member Raudabaugh’s view, picketing for an 8(f)
contract is cognizable under Sec. 8(b)(7). That section limits picket-
ing for a recognitional object. Unlike Sec. 9(c)(1)(B) and Sec. 9(a),
the section is not limited to claims for Sec. 9 majority recognition.
Member Raudabaugh expresses no view on whether a union can
picket for a full 30 days for an 8(f) contract. See NVE Constructors,
supra.
16 In Stockton Roofing Co., 304 NLRB 699 (1991), the Board
(Member Raudabaugh dissenting) held that a union’s petition for an
election could be supported by a showing of interest consisting of
an expired 8(f) contract. Id at 701. This holding is fully consistent
with our holding today and in no way conflicts with the congres-
sional concern for premature elections. The ‘‘showing of interest’’
requirement for union petitions is a purely administrative device uti-
lized to determine whether the Board’s resources should be ex-
pended to hold an election. By contrast, the requirement of a demand
for recognition as a majority representative, which is mandated in
Sec. 9(c)(1)(B) cannot be altered by the Board in an effort to in-
crease its efficiency and effectiveness. Rather, the Board must inter-
pret the statutory requirement consistent with its underlying purpose.
note that were we to entertain employer petitions based
on a mere request that an 8(f) contract be signed, Sec-
tion 8(f) would retain little, if any, viability. A union
would have to organize prior to making such a request
or face a possible election defeat. This was not the in-
tent of Congress in its creation of Section 8(f).16
Conclusion
The Regional Director administratively dismissed
PSM’s petition. For the reasons we have articulated,
we affirm the dismissal of the petition.