Arizona District Council of Construction, Etc.

National Labor Relations Board - Board Decisions

Mar 15, 1960

126 N.L.R.B. 1110 (N.L.R.B. 1960)

1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arizona District Council of Construction , Production and Main-
tenance Laborers ; Maricopa County and Vicinity District
Council of Carpenters ; Southeastern District Council of Car-
penters ; United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local Nos . 1089, 2402 , 906, 1216, 1538, 1100,
471, 857, 2096 , 1153, 445 and 326; Millwright Machinery Erec-
tors, Local No. 1914; International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, Local
Nos. 83 and 310; International Union of Operating Engineers,
Local No. 428 ; and Operative Plasterers ' and Cement Masons'
International Association , Local Nos. 394 and 395 and Asso-
ciated General Contractors , Arizona Chapter ; Arizona Build-
ing Contractors , Building Chapter , Associated General Con-
tractors ; and Phoenix Association of Home Builders, formerly
Arizona Home Builders Association and Arizona Consolidated
Masonry and Plastering Contractors ' Association , Party to
the Contract . Case No. 21-CB-1196. March 15, 1960
DECISION AND ORDER
On August 10, 1959, Trial Examiner Eugene K. Kennedy issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel and the
Charging Parties filed exceptions to the Intermediate Report. The
General Counsel also filed a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
MEMBERS RODGERS and JENKINS took no part in the consideration
of the above Decision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter was heard in Phoenix , Arizona, on 6 hearing days between May 18
and 28, 1959 , upon a complaint issued by the General Counsel on charges filed by
126 NLRB No. 134.
ARIZONA DISTRICT COUNCIL OF CONSTRUCTION, ETC. 1111
Contractor Associations, herein called the Associations,' against various building
trade labor organizations, herein called Respondents, operating throughout the
State of Arizona.2 The Respondents were charged with violations of Section
8(b)(1)(B), 8(b)(3), and 8(d)(3) of the Act
During the course of the hearing the General Counsel's motion to strike that
portion of the complaint alleging a violation of Section 8(d)(3) was granted. The
General Counsel also made a motion to amend the complaint, alleging that "Be-
ginning or about September 29, 1958, Respondent Unions engaged in a strike against
H & J Construction Company" (herein called H & J), a member of ABC for pur-
poses of collective bargaining, at various construction sites in Phoenix, Arizona, to
compel H & J to resign its membership in ABC. This motion was granted.
A motion by Respondents to strike from the complaint charging allegations in-
volving Fiberglas Engineering and Supply Division of Owens Corning Fiberglas
Corporation and Sanders Construction Company was also granted on the basis that
there was no evidence offered with respect to these companies. The General
Counsel did not oppose this motion. Respondents' motion to dismiss the complaint
is disposed of by the findings and conclusions set forth below.
Stated in general terms, the burden of the General Counsel's case rests upon the
proposition that the Respondents struck some of the members of the Associations
for the purpose of compelling individual bargaining in violation of Section 8(b)(3),
and also for the purpose of requiring the contractors who were struck to forego their
right to have the Associations act as their bargaining representative in violation
of 8(b)(1)(B).
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTION OF THE BOARD
Each of the Associations involved is, and has been at all times material herein,
engaged in interstate commerce within the meaning of the Act It is found the
Board has jurisdiction over the subject matter of this proceeding.3
'The contracting associations involved herein are: Associated General Contractors,
Arizona Chapter, Arizona Building Contractors, Building Chapter, Associated General
Contractors : and Phoenix Association of Home Builders, Formerly Arizona Home
Builders Association ; and Arizona Consolidated Masonry and Plastering Contractors'
Association
2 The labor organizations charged with violations of the Act are • Arizona District
Council of Construction, Production and Maintenance Laborers ; Maricopa County and
Vicinity District Council of Carpenters ; Southeastern District Council of Carpenters;
United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Nos 1089,
2402, 906, 1216, 1538, 1100, 471, 857, 2096, 1153, 445 and 326; Millwright Machinery
Erectors, Local No 1914; International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local Nos. 83 and 310; International Union of
Operating Engineers, Local No 428; and Operative Plasterers' and Cement Masons'
International Association, Local Nos 394 and 395.
3 The complaint alleged and the answer admits and on that basis it is found that the
Associations' business is as follows
Members of AGC which participate in multiemployer bargaining, all of which have
places of business in the State of Arizona, in the aggregate, annually ship goods and
perform services outside the State of Arizona valued in excess of $50,000 and, in the
aggregate, annually sell goods and perform services valued in excess of $50,000 to other
Arizona enterprises which annually ship goods and perform services outside the State of
Arizona valued in excess of $50,000. Said members of AGC annually receive goods and
services valued in excess of $50,000 directly from outside the State of Arizona and from
other Arizona enterprises which annually receive goods and services valued in excess
of $50,000 directly from outside the State of Arizona.
Members of ABC which participate in multiemployer bargaining, all of which have
places of business in the State of Arizona, in the aggregate, annually ship goods and
perform services outside the State of Arizona valued in excess of $50,000 and, in the
aggregate, annually sell goods and perform services valued in excess of $50,000 to other
Arizona enterprises which annually ship goods and perform services outside the State
of Aiizona valued in excess of $50,000. Said members of ABC annually receive goods
and services valued in excess of $50,000 directly from outside the State of Arizona and
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges and the answer admits and on that basis it is found that
the Respondent Unions are labor organizations within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The record reflects it has been the custom for the parties involved to have bargain-
ing conducted between spokesmen for Respondents and representatives of the Asso-
ciations. The Master Labor Agreement executed in 1955 has, following this type of
bargaining, with the exception of wage rates and special working rules, common
provisions applicable to all of the parties involved including hiring provisions.
This agreement's expiration date was June 1, 1959.
Responsibility for negotiations on behalf of the Respondents was delegated to a
committee with a Mr. Al Williams being the chief spokesman. The record reflects
that he acted on behalf of the five basic building construction crafts in dealings with
the Associations and individual contractors at all times material herein.
Similarly a committee with a Mr. Jack Grady as chief spokesman represented
the Associations in negotiations with Respondents
Article VIII of Master Labor Agreement provides as follows:
Modification
A. It is further agreed by the parties to this Agreement that in the event the
laws, State or Federal, pertaining to Union Security are changed by Con-
gressional or legislative Amendments, Court Decisions or Government or State
Regulations or Decisions, they will immediately reopen this Agreement for
negotiations on Union Security, No-Strike, No-Lockout and Binding Arbitra-
tion clauses including Union Security.
The same agreement also contains the following provision:
Article II
Union Recognition
* * * * * *
B. The UNIONS agree to furnish such employees as may be requisitioned
by the CONTRACTORS within forty-eight (48) hours; but in the event the
UNIONS are unable to furnish such requisitioned employees within forty-eight
(48) hours, the CONTRACTORS may secure such employees from any other
sources available. The CONTRACTOR shall notify the UNION immediately
when such employees are hired.
On April 15, 1958, a letter jointly signed by representatives of the Associations
was addressed to Mr. Williams, the main spokesman for the Respondent Unions in
which, after reciting the concern of the Associations that they might be in violation
from other Arizona enterprises which annually receive goods and services valued in
excess of $50,000 directly from outside the State of Arizona.
Members of PAHB which participate in multiemployer bargaining, all of which have
places of business in the State of Arizona, in the aggregate, annually ship goods and
perform services outside the State of Arizona valued in excess of $50,000 and, In the
aggregate, annually sell goods and perform services valued in excess of $50,000 to other
Arizona enterprises which annually ship goods and perform services outside the State
of Arizona in excess of $50,000. Said members of PAHB annually receive goods and
services valued in excess of $50,000 directly from outside the State of Arizona and from
other Arizona enterprises which annually receive goods and services valued in excess
of $50,000 directly from outside the State of Arizona.
Members of ACM which participate in multiemployer bargaining, all of which have
places of business in the State of Arizona, in the aggregate, annually ship goods and
perform services outside the State of Arizona valued in excess of $50,000 and, in the
aggregate, annually sell goods and perform services valued in excess of $50,000 to other
Arizona enterprises which annually ship goods and perform services outside the State
of Arizona valued in excess of $50,000. Said members of ACM annually receive goods
and services valued in excess of $50,000 directly from outside the State of Arizona and
from other Arizona enterprises which annually receive goods and services valued in
excess of $50,000 directly from outside the State of Arizona.
ARIZONA DISTRICT COUNCIL OF CONSTRUCTION, ETC. 1113
of the National Labor Relations Act in view of the Board's Brown-Olds decision,
stated that the representatives of the Associations unanimously adopted the follow-
ing resolution which read in part:
(b) Under Article VIII of the Master Labor Agreement it is the present
intent of the industry to consider the Master Labor Agreement open on all
positions which might be subject to question by the NLRB.
Following this, four meetings were held at which the main subject for discussion
was a legal hiring practice which could be utilized by the Respondents and the
contractors .4
Negotiations with respect to the hiring hall were held on May 19, June 10, and
August 5 and 22, 1958.
The minutes of the final meeting on August 22, 1958, prior to the strikes involved,
reflected that it was the Respondents' position that the 48-hour hiring clause be
revised together with a satisfactory hiring hall arrangement, and the Respondents
felt that they were wide open for action by the NLRB under present circumstances.
In making a resolution as to the legality of Respondents' actions in striking the
contractors named in the complaint, it is necessary to determine the purpose of the
strikes which occurred in late September and early October 1958, and also whether
a strike against only part of a multiemployer unit is unlawful per se.
It is the position of the General Counsel that a purpose of the strike was aimed
at putting economic pressure on the contractors struck so that they would forego
their right to have a bargaining agent of their own choice, thus violating Section
8(b) (1) (B) and 8(b)(3) of the Act. The evidence establishes Respondents
intended to strike only contractor members of the Associations .5
The Respondents contend the purpose of the strikes was to secure a lawful hiring
arrangement which would meet the standards set by the Board, and that no unlawful
purpose actuated the strikes.
B. The strikes
Commencing in late September several contractor members of the Associations
were struck by Respondents. Respondents did not request any of these contractors
to enter into collective bargaining on an individual basis. The record reflects that
at least two of the struck contractors did not have any communication with Respond-
ents after the strike, and that the other member contractors initiated the interchange
with Respondents which will be discussed in connection with the evidence pertaining
to these strikes.
At the time of the strikes in September 1958 there were 400 to 450 contractors
who were members of Associations and approximately 1,800 individual contractors.
When the strikes commenced against the Associations' members the Respondents
had complied with the notice requirements of 8(d) of the Act with respect to con-
ducting a strike against the Associations but not with respect to the contractors who
were not members of the Associations.
The Respondents, through Williams and other credited witnesses who were uncon-
tradicted, offered evidence that in order to avoid confusion in dealing with struck
contractor Associations' members, Williams and Gray were authorized to answer
inquiries in the Phoenix area and Brown and Rennick in the Tucson area on behalf
of the Respondents.
4 The provision above quoted with respect to the 48-hour period in connection with
hiring employees is proscribed by Section 8(b) (2) and 8(a) (3) of the Act. In Local 863,
at al . (Anchor Welding & Manufacturing Company, et al.), 123 NLRB 1877, there was
a comparable contractual provision which the Board held to be illegal. It is manifest
from the record in this case the Master Labor Agreement here did not have the Mountain
Pacific safeguards. (Mountain Pacific Chapter of the Associated G eneral Contractors,
at al, 119 NLRB 883 )
It is clear in the judgment of the Trial Examiner that the intent of this provision
with respect to hiring contemplates that Respondents will be the exclusive hiring source
for the first 48 hours under the terms of the contract. As the Board said in the
Mountain Pacific case, supra:
The vice is not cured by reversion back to the employer of the hiring privilege
after the Union is unable to enjoy the power conferred upon it.
c Channen Construction Co. was also struck, but work was immediately resumed when
Respondents learned this company was no longer an Association member
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evidence With Relations to Strikes Against Individual Contractor Members
of the Associations
Murray J. Shiff Construction Co.
This contractor, a member of AGC, was struck about September 29, 1958. In
August 1958, in Shiff's office, Fred Brown, a representative of the Laborers Union,
and Lee Rennick, a representative of the Operating Engineers, asked Sluff why he
didn't use his influence with members of the AGC to accept the proposal of the
Respondents with respect to changing the master agreement relative to hiring pro-
cedures. Shiff asked to see the proposed changes but was referred to the AGC and
was never given a copy of the proposed changes by any representatives of the
Respondents. Shiff testified that on the morning of the strike he called Brown on
the telephone and that during the conversation Brown stated that if Shiff would
voluntarily resign from the AGC he would be told what the strike was about. Shiff
stated that the reason he called Brown was because he was referred to him as the
individual to talk to.
According to Brown this statement was not volunteered by him to Shiff, although
it may have been that some words along these lines were mentioned by Brown, after
being asked for information by Shiff. It seems evident that Shiff was calling Brown
in order to discuss how to get the strike terminated. Shill's claim that he didn't
know what the strike was about is rendered improbable due to the protracted nego-
tiations on this subject and because of the bulletins sent out by the AGC. Rennick's
conversation with Shiff before the strike, when he asked Shiff to use his influence
with the bargaining committee, also advances the improbability of Shiff's claimed
lack of knowledge as to the reason for the strike.
Bradley and Dysart Contractors, Inc.
This firm was a member of the AGC at all times material herein. D. M. Bradley,
one of the owners, testified that on September 17 he had a conversation with Wallace
Godfrey, a business agent for the Operating Engineers. He said they were old
friends and eventually the conversation got to the point where Bradley asked Godfrey
if there was going to be any labor troubles, and that Godfrey handed him a pamphlet
and asked Bradley to read the pamphlet at his convenience to see what he thought
of it and Godfrey, according to Bradley, stated that anyone who signed the agreement
would not have any trouble. The agreement embodied the hiring procedure pro-
posed by the Respondents. Bradley further testified that he took the paper given
him by Godfrey and he and his partner, Dysart, read it, and they were informed by
the Associations' bargaining committee that it did not conform to the NLRB so they
dropped the matter. This advice from the Associations' bargaining committee was
given to Bradley after he went to Phoenix after the start of the strike on September
24. He testified that Godfrey did not ask him to sign the agreement.
Godfrey also testified that Bradley was an old friend and that Bradley had just
got out of the hospital after a serious operation and that there was a considerable
discussion concerning Bradley's health before the conversation turned to the Re-
spondent's proposed hiring hall proposal. Godfrey's version of the conversation
coincides with Bradley's to the extent that Bradley initiated the conversation with
respect to the hiring hall arrangement. However, Godfrey's testimony is in conflict
with Bradley's to the extent that Godfrey testified that Bradley asked Godfrey for
a copy of the proposed hiring agreement, so that he could read it in more comfortable
surroundings. Godfrey's conversation with Bradley, whether Godfrey's or Bradley's
version is accepted, in the context of this record, does not spell out that Godfrey
was attempting to have Bradley sign a separate agreement. Bradley's testimony
at most establishes that Godfrey was asking for his opinion on the proposed hiring
arrangement. The conversations related by Bradley, after the strike, occurring
with Gray, an Operating Engineers' representative, support a finding that the
Respondents were striking to bring economic pressure on the Associations, so that
the proposed hiring arrangement would be accepted. Gray, according to Bradley,
told him, "Don, all I can tell you is that you come down here and try to get the
negotiations started."
It is apparent that Bradley was being informed in response as to why he was
struck that it was the desire of the Respondents to have Association negotiations
and not that Bradley sign an individual agreement with Respondents.
Copper State Construction Co.
This company, also a member of AGC, owned by Ed Oldham, Jr., and Link L.
Colvin, was struck by Respondents on or about September 24, 1958. On the evening
ARIZONA DISTRICT COUNCIL OF CONSTRUCTION, ETC. 1115
of the strike Oldham and his partner , Colvin, went to the office of Al Williams.
Bill Gray of the Operating Engineers was also present on that occasion and Oldham
testified that there he signed an agreement with Respondents after he and his
partner had executed a document stating that the AGC was no longer the bargaining
representative of Copper State Construction Co. He further testified on direct
examination that Williams stated that he did not want Copper State to resign from
the AGC because he did not want to barter individually with the contractors.
Oldham further testified that Williams stated also that he would like to have
Copper State sign the agreement proposed by Respondents . This statement at-
tributed to Williams is not credited as it is in conflict with Williams ' credited testi-
mony as well as Oldham 's testimony that Williams indicated he did not wish
individual bargaining and because of the testimony of Oldham on cross-examination
as follows.
On cross-examination a more comprehensive picture of this incident was de-
veloped . Oldham , Colvin , Williams, and Gray went to lunch and after a prolonged
general discussion either Oldham or Colvin introduced the subject of the strike
against Copper State. Either Williams or Gray told Oldham that as long as they
were members of AGC the Respondents could not negotiate or enter into a contract
with Copper State . Oldham also testified that it was he who was "pushing" the
topic of settling the strike , and that he was not told by Williams or Gray that he
would have to sign an agreement . It is clear that the reason Oldham and Colvin
approached Williams was because of the economic pressure occasioned by the
strike. It seems equally clear that the conversations after the strike started between
Oldham and Colvin with Williams and Gray support the Respondents' contentions
that the strike against some of the contractors who were members of the Associa-
tions was aimed at securing bargaining with the Associations and not for the pur-
pose of obtaining individual contracts with Associations ' contractor members.
Williams, the president and business manager of the Phoenix Building Construc-
tion Trades Council, testified that be and Gray, at Oldham's and Colvin's request,
had lunch with them. When asked what the labor trouble was about, Williams
referred them to the Associations ' negotiating committee . The next day, after a
telephone call, Oldham and Colvin came to Williams' office, and informed Williams
that they had argued with their negotiating committee and did not wish to be
represented any longer by said committee and then Williams informed Oldham
and Colvin if they would put it in writing he would negotiate with them. Williams
also denied that the strike against any of the contractors was for the purpose of
securing individual contracts with them in derogation of their right to be represented
by a collective-bargaining representative of their own choice.
Respondents ' brief in connection with Copper State advances the proposition
that under the circumstances the Respondents were obligated to negotiate with
this contractor after being informed the AGC was no longer its bargaining repre-
sentative , or the Respondents would be derelict in its collective -bargaining obliga-
tion. Although it is unnecessary to make a finding on this contention it reflects
accurately the concept that it was the owners of Copper State who were "pushing"
for individual bargaining and not the Respondents.
H & J Construction Co.
Vice President Danny Speros testified that H & J was a member of the AGC
which was struck by Respondents in the latter part of September 1958. Speros
and the two Riskus brothers, owners of the company, called Williams for an appoint-
ment and went to his office the afternoon of the strike. Speros testified Williams
said H & J was struck because the name was picked out of a hat, and that there
was not a valid contract in effect. After Williams being asked what coL.d be done
to end the strike, Williams, according to Speros, stated that if he were given a
statement in writing that H & I was no longer in the Master Labor Agreement
that there could then be a discussion as to means of ending the strike. Speros
also testified that Williams said as long as H & J was a member of the Associations
it was in no position to discuss any settlement with Respondents
John Riskus also testified substantially the same as Speros. He added, however,
the fact that it was his brother who brought up the fact that if H & J were not
Associations' member there would not be a strike problem. Thus General Counsel's
witness, John Riskus, establishes that it was H & J and not Respondents who first
advanced the subject of individual bargaining rather than through the Associations.
Williams' testimony about 'the conversation with the two Riskus brothers and
Speros adds the fact that he was told by one of them that they could not find out
anything from their negotiating committee and he reiterated that he told them
5
1116 DECISIONS OF NATIONAL LABOR 'RELATIONS ' BOARD '
that he was in no position to discuss the strike settlement with them because
the Associations' bargaining committee was the collective-bargaining representative
ofH&J.
C. Discussion of the evidence
The General Counsel stresses that the evidence demonstrates that the necessary
result of striking only a few members of a multiemployer unit imposes serve eco-
nomic pressure on these few members and that this would have a natural tendency
to cause the struck members to withdraw from the multiemployer unit, and would
be per se a violation of 8(b)(1)(B) and 8(b)(3) of the Act.
A finding that an unlawful purpose has not been proved can be based on the
evidence offered by the General Counsel alone. This finding is strengthened by
the evidence offered by Respondents.
After a failure to come to an agreement with the Associations over amending the
Master Labor Agreement opened for negotiation by the Associations, the Respond-
ents commenced a strike against some of the Associations' members. The witnesses
of the General Counsel make it clear that Respondents did not before, during, or
after the strikes seek out individual Associations' members to enter into collective-
bargaining negotiations with them. In fact the record is clear that Respondents
were extremely reluctant to enter into individual negotiations with any contractor
including Copper State. The General Counsel's evidence confirms the preference
of the Respondents to have Association rather than individual negotiations.
Two other Associations' members who were struck had no communication with
Respondents before, during, or after the strikes against them. These Associations'
members were San Xavier and Flickinger.
The foregoing evidence convincingly demonstrates that the purpose of the strikes
was not to secure individual bargaining with Associations' members, and at the
very least supports the view that the evidence presented is not sufficient to prove
that Respondents conducted the strikes against the above-named contractors to
force them to bargain individually with Respondents, and it is so found.
In light of the above finding the issue in this case is further narrowed as to
whether a partial strike against a multiemployer bargaining unit is per se a violation
of 8 (b) (i) and (3) of the Act.
Although it is settled law that the Associations' members could have all shut
down their operations when some of the members were struck by Respondents, it
does necessarily follow that a strike against only some of Associations' members
rather than against all of them is a violation of the Act. The authorities cited by
the General Counsel in support of the contention that the strikes of the Respondents
were violations of the Act do not aid in finding violations here. Personal Products
Corporation, et al., 108 NLRB 743, 227 F. 2d 409, and The Prudential Insurance
Company of America, 119 NLRB 768, involved situations where the Board found
the union was bargaining in bad faith because during the time it was negotiating
with the employer it engaged in a campaign of unprotected activities (not strikes)
which the Board found evidenced its lack of good-faith bargaining.
The distinction between the situations in those cases and the case at hand requires
no elaboration, other than to reiterate that here the parties had ended negotiations in
disagreement before the strikes commenced, and it is clear that the reason for the
strikes was to secure contractual provisions which had not been obtained by
negotiation.
The General Counsel also cites Retail Associates Inc., 120 NLRB 388, a repre-
sentation case in which the only significant issue was whether the union had with-
drawn from a multiemployer unit in good faith, and which presented considerations
unrelated to the issues here presented.
In addition to the fact there is no authority to support the proposition of the
General Counsel that a strike against only some of the members of a multiemployer
bargaining group is a violation of 8(b) ( 1) (B) and 8 (b) (3), the Act itself specifically
permits the type of concerted activities engaged in by Respondents.
Section 13 provides:
Nothing in this Act, except as specifically provided for herein, shall be con-
strued so as either to interfere with or impede or diminish in any way the right
to strike, or to affect the limitations or qualifications on that right.
In International Rice Milling Co Inc., et al. v. N.L.R.B., 341 U.S. 665, at 673,
with reference to this section, the Supreme Court said:
By #13 Congress has made it clear that . . . all. . . . parts of the Act
which otherwise might be read so as to interfere with, impede or diminish the
union 's right to strike may be so read only if such interference, impediment, or
diminution is "specifically provided for" in the Act.
WHIRLPOOL CORPORATION, MARION DIVISION 1117
The Act does not specify that a strike against some of the members of a multi-
employer bargaining unit is an exception to Section 13. Consequently this pro-
vision compels a finding that the type of strikes presented by this record are sanc-
tioned by the Act.
The analogy that suggests itself with respect to this case is a situation where a
union is unsuccessful in securing economic benefits from an employer, which the
employer lawfully resists . Simply because such action would have the natural
tendency to cause the union to be weakened in its majority status , it cannot be
assumed that the action of the employer was per se unlawful and actually aimed at
destroying the majority status of the union.6
CoNCLusioNs of LAW
1. The Associations are engaged in commerce within the meaning of the Act.
2. The Respondents are labor organizations within the meaning of the Act.
3. The Respondents have not violated Sections 8(b) (1) (B ) or 8(b ) (3) of the Act..
[Recommendations omitted from publication.]
e Because no violations of the Act have been demonstrated , it is unnecessary to make a
finding with respect to an appropriate bargaining unit.
Whirlpool Corporation , Marion Division and International
Union, United Automobile , Aircraft and Agricultural Imple-
ment Workers of America , AFL-CIO: Case No. 8-CA-1516.
March 15, 1960
DECISION AND ORDER
On July 16, 1959, Trial Examiner A. Bruce Hunt issued his
Intermediate Report in the above-entitled proceeding finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain 'affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the General Coun-
sel, the Charging Union, and the Respondent filed exceptions to the
Intermediate Report and supporting briefs and memoranda.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three' member panel [Members Rodgers, Bean, and
Fanning].
` The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no` prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions, briefs, and memoranda, and the
entire record in the case,' and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
additions and modifications
1. We agree with the Trial Examiner's finding that the Respondent
violated Section 8(a) (2) of the Act by dominating and interfering
3 The Respondent 's request for oral argument is hereby denied as the exceptions, the
briefs, and the memoranda adequately present the , issues and the positions of the parties.
126 NLRB No. 136.