Arlington Asphalt Co.

National Labor Relations Board - Board Decisions

Mar 30, 1962

136 N.L.R.B. 742 (N.L.R.B. 1962)

742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereby has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce.
[Recommendations omitted from publication.]
F. McKenzie Davison, W . J. Hardy, Sr . and W. J. Hardy, Jr.,
d/b/a Arlington Asphalt Company and District 50, United
Mine Workers of America . Case No. 5-CA-1900. March 30,
1961
DECISION AND ORDER
On October 6, 1961, Trial Examiner George L. Powell issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent 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 Intermediate Report attached hereto.
Thereafter, the General Counsel and the Union filed exceptions to
the Intermediate Report and supporting briefs. The Respondent
filed exceptions to the Intermediate Report and briefs in support of
the exceptions, and in support of the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner
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, the briefs, and the entire record in
this case and, finding merit in the exceptions, rejects the Trial Ex-
aminer's recommendation and adopts his findings and only such of
his conclusions as are consistent with this Decision and Order.
The facts were stipulated by the parties and, as supplemented by
additional testimony taken at the hearing, essentially are as follows :
On May 16, 1960, the Union, District 50, United Mine Workers, was
certified as the collective-bargaining representative for a unit of all
truckdrivers and laborers employed at Respondent's plants in and
around Arlington, Virginia.' The certification contained the usual
statutory exclusions as well as that of machine operators and plant
engineers who were covered by a contract between Respondent and
Local 77 of the International Union of Operating Engineers, herein-
after referred to as IUOE.
On May 28, 1960, the Respondent and the Union held their first
meeting for the purpose of negotiating a contract. Various contract
proposals were considered and the parties discussed the possibility of
retaliation or pressure by the Building and Construction Trades
Unions (herein called BCTU) against contractors, such as Respond-
1 Case No. 5-RC-2903 (not published in NLRB volumes)
136 NLRB No. 67.
ARLINGTON ASPHALT COMPANY 743
-ent, whose employees were represented by District 50. It was recog-
nized by the parties that such retaliation could take one or more of
three forms: (1) picketing at jobsites where such contractors were
performing work; (2) requests or threats directed at general con-
tractors subcontracting work to such contractors; or (3) refusal of
general contractors to award work to employers (such as Respondent)
whose employees are not represented by trades unions.
Further bargaining sessions were held with the parties exchanging
proposals and counterproposals in writing and by August 31, 1960,
substantial agreement had been reached on the terms of a collective-
bargaining contract, but a solution to the potential problem of re-
taliation by a trades union had not been reached. The Respondent
conditions its acceptance of the Union's proposal upon acceptance by
the Union of an indemnity clause or some other solution to the po-
tential problem of BCTU retaliation. The indemnity proposal, sub-
mitted during the bargaining session of August 31, 1960, as Respond-
ent's "Addenda No. 3," read as follows :
1. The purpose of this clause is to prevent any and all losses,
to the Party of the First Part (Respondent), directly or in-
directly caused by, Secondary Boycotts, the loss of existing or
future profits from any or all contracts the Party of the First
Part may have at this time or may secure in the future, by being
refused any or all work because of the Party of the First Part's
Membership in District 50, and because of this membership not
being permitted to work for General Contractors whose jobs are
serviced by the AF of L or the Washington Bldg. Trades Council.
2. The party of the second part (Charging Party) agrees to
indemnify the Party of the First Part against the entire purport
of Paragraph 1 above by the execution of a Surety Bond of not
less than $10,000.00.
The Union declined to accept the foregoing "Addenda," or any alter-
native solution offered by the Respondent, and no final agreement was
reached.
No further meetings were held until April 11, 1961 2 The final meet-
ing was held on April 21, 1961. The sole issue upon which the Re-
spondent and the Union could not agree was a solution which would
protect the Respondent in the event of retaliation by the BCTU.
2 There is uncontradicted testimony in the record that by mutual agreement the parties
suspended negotiations pending the prosecution , by District 50, of unfair labor practice
charges filed against a subcontractor , Corson and Gruman, and the IUE in Cases Nos.
5-CA-1866, 5-CB-428, and 5-CC-146. By letter dated April 6, 1961, District 50 ap-
pealed to the General Counsel from a refusal by the Regional Director of the Board to
issue a complaint in the designated cases Also during this interval , Colonel Davison, a
partner of Respondent , became ill and the parties awaited his recovery before continuing
at the bargaining table.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent made two alternative proposals,' which the parties dis-
cussed, after which the Respondent stated that although he did not
believe the indemnity provision was particularly satisfactory "it was
the only avenue of relief that we could see." Just as the session was
concluding, the Union indicated that it would advise Respondent
"whether those solutions or others that might occur to them would be
worth further discussions." As stipulated by the parties, "The Union
refused to agree to any offers made by Respondent which related to
the problem of possible retaliation and/or pressure by the [BCTU]
directed against Respondent. From on or about August 31, 1960, to
date, Respondent has taken and adhered to the position that any final
agreement between the parties was contingent upon acceptance by
the Union of some form of solution to the problem...."
Based upon the foregoing, the Trial Examiner found that the
Respondent had insisted, to the point of impasse, upon the inclusion
in the collective-bargaining agreement of an indemnity provision
which was designed to protect it from retaliation caused by BCTU's
dissatisfaction with District 50. Nevertheless, the Trial Examiner
was of the view that Respondent's proposal was a mandatory subject
of bargaining because it related to "wages, hours, and other terms and
conditions of employment," i.e., that a stoppage of work caused by
BCTU action would affect the employment of Respondent's em-
ployees. Accordingly, the Trial Examiner found no violation of Sec-
tion 8(a) (1) and (5) and recommended that the complaint be dis-
missed in its entirety.
Although agreeing with the Trial Examiner's conclusion that its
proposal was a mandatory subject of bargaining, the Respondent con-
tends that the Trial Examiner erred in finding that an impasse had
been reached.4 It maintains that at the conclusion of the final bar-
gaining session, District 50 indicated that it would advise the Re-
spondent whether alternative solutions to the problem suggested at
that session, or others that might occur to them, would merit further
discussion.
As to the question of impasse, we find no support for Respondent's
position in the record. In the first place, the facts as to what tran-
3Among the alternatives proposed by Respondent were (1) an oral contract with
written checkoff authorizations, and (2) a contract applicable to non-A F of L jobs only
4The Respondent also maintains that the parties had bargained on the problem of
BCTU retaliation for almost 1 year, thereby rendering the subject a bargainable one. In
support of its position, Respondent relies upon Economy Stores, Incorporated, 120
NLRB 1, where the Board found no violation of Section 8(a) (5). The Respondent thus
implies that bargaining on a nonmandatory subject automatically converts it to a manda-
tory subject of bargaining Ho ever, there was no majority holding to that effect in
that case. Nor has the Board so found in any other decision Moreover, even if such a
rule were adopted, we would not find it applicable here Thus, there is no evidence to
indicate that proposals and counterproposals were exchanged on the subject subsequent
to August 31, 1960 , rather, the evidence indicates that the parties bargained over and
agreed upon all other terms of their contract and that the problem of possible BCTU
action was merely discussed for what it was-a possible problem.
ARLINGTON ASPHALT COMPANY 745
spired during the negotiations were stipulated and, as that stipulation
reveals, "Respondent has taken and adhered to the position that any
final agreement between the parties was contingent upon acceptance
by the Union of some form of solution to the problem of possible re-
taliation and/or pressures by the building construction trades union
directed against Respondent." In the second place, although the
Union here discussed the BCTU problem when the Respondent first
raised it, it appears that on August 31, 1960, when Respondent pre-
sented its proposal in concrete form as "Addenda No. 3," the Union
rejected it and thereafter consistently refused to agree to it or any
other proposal on the subject. Accordingly, in view of the Respond-
ent's refusal to enter into a collective-bargaining agreement unless
the Union acquiesced in its proposal and the Union's equally adamant
rejection thereof, we find, in agreement with the Trial Examiner, that
an impasse had been reached.'
However, contrary to the Trial Examiner, we do not agree that
Respondent's indemnity proposal is a mandatory subject as to which
it was entitled to bargain to impasse. In N.L.R.R. v. Wooster Divi-
sion of Borg-Warner Corporation, 356 U.S. 342, the Supreme Court
sustained the Board's finding that an employer violated Section
8(a) (5) by insisting upon the inclusion of a ballot clause calling for
a prestrike vote by the employees. The Court, finding that the clause
settled no terms and conditions of employment and dealt only with the
relations between the employees and their union, held that the subject
was not mandatory. Similarly here, the Respondent's indemnity pro-
posal does not concern itself with the relations between Respondent
and its employees. Rather, it deals with Respondent's relations with
other employers and unions.
In principle, the instant case is not much different from those
involving performance bonds. Under these decisions, it is well estab-
lished that such subjects are not deemed mandatory and that an em-
ployer's insistence upon such a provision as a condition to signing an
agreement violates Section 8 (a) (5)." Likewise, a union violates Sec-
tion 8(b) (3), the corresponding refusal-to-bargain section, by insist-
ing that an employer post a performance bond as a condition precedent
to executing a collective-bargaining agreement' Thus, under these
precedents, Respondent's indemnity proposal cannot be found to be a
e As previously noted , at the final bargaining session on April 21 , 1961, Respondent
stated that although it did not believe the indemnity proposal was particularly satis-
factory, "it was the only avenue of relief that we could ace "
gJasper Blackburn Products Coiporation, 21 NLRB 1240, Dalton Telephone Company,
82 NLRB 100 ], enfd 187 F. 2d 811 ( CA. 5) ; E . A Taormina et al., d/b/a Taormina
Company , 94 NLRB 884; Cosco Products Company, 123 NLRB 766.
7 Henry V. Rabonin d/b/a Conway '' Express , 87 NLRB 972 ; Local 164 et al, Brother-
hood of Painters, Decorators and Paperhangers of America v N L RB ( A D Cheatham
Painting Co ), 126 NLRB 997, 293 F. 2d 133 (CAD C 1961), enfg 126 NLRB 997,
cert denied 368 U S 824.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mandatory subject because it, like the performance bond, is related to
security for the contracting party (the Respondent) rather than re-
lating to a benefit or security for the employees.
In reaching his conclusion that the Respondent's proposal fell into
the category of mandatory subjects, the Trial Examiner found the
foregoing precedents unpersuasive and he relied, instead, upon a
prior decision of the Board in Bausch cC Lomb Optical Company.'
In our opinion, that case is clearly distinguishable on its facts, for in
Bausch cC Lomb the contracting union was one of the employer's busi-
ness competitiors and the issue upon which the case turned was
whether a union, occupying such a status in bargaining, was qualified
to force an employer to bargain about economic matters which might
drive it out of business. Therefore, unlike the instant case Bausch c i
Lomb was concerned not with the nature of a bargaining subject, but
rather with the propriety of the union engaged in the bargaining.
There is no question here of District 50's motives or of its status as
the employees' certified representative.
Moreover, we observe that what the Respondent sought to protect
itself from was really beyond the control of District 50. Here, the
Respondent's proposal seeks to have District 50 indemnify it for
damages caused by other, noncontracting unions, as well as the actions
of other employers. Looking at the three forms of retaliation which
the parties stipulated BCTU might employ, set forth supra, District
50 has no control over the internal policies which BCTU might devise,
and District 50 has no way to prevent BCTU from implementing its
policies through specific action, whether it be in the form of picketing
the Respondent's construction sites or through threats to general
contractors. Moreover, District 50 has no control over those general
contractors who might decide not to award work to, or do business
with, the Respondent-and this would be so regardless of whether
such decisions resulted from BCTU pressure or not.9 Thus, although
the previously discussed performance bond cases involved the question
of the bargaining obligation inhering in a contracting party's breach
or failure to perform, the Respondent's proposal seeks to go even
further by demanding monetary assurance from District 50 for the
8108 NLRB 1555.
9 Cf. Local 19 , International Brotherhood of Longshoremen , AFL-CIO ( Chica(Yo Steve-
doring Co , Inc ), 125 NLRB 61, 69, where it was held that the union violated Section
8(b) (3) of the Act by its insistence upon having Chicago Stevedoring assure it that its
"work jurisdiction " clause in the contract be interpreted to include work which Wacker,
another employer , was then performing Rejecting the union's contention that this sub-
ject was "mandatory ," the Board said
The fact that the consummation of bargaining with Chicago Stevedoring was condi-
tioned by Respondent upon the furnishing of a guarantee which could come only
from Wacker , another employer , not subject to the control of Chicago Stevedoring,
is in itself sufficient reason to find that the Respondent failed to discharge its statu-
tory bargaining obligations . [ Emphasis supplied ]
ARLINGTON ASPHALT COMPANY 747
acts of third parties.10 As stated by the Board in Producers Produce
Company: '1
[T]he respondents obligation under the Act to embody its under-
standing in a binding agreement with the Union, upon request, is
not a duty which may be avoided on the ground that it would
result in the loss of customers. To hold otherwise would be to
assume authority to pass upon the wisdom of the application in a
particular case of the public policy embodied in the Act of secur-
ing stability . . . . Moreover, it is inconsistent with public policy
to hold that public duties may be set at naught because of alleged
private inconvenience claimed to exist by reason of the actions
or threatened actions of third persons.
We hasten to add, however, that we, just as the Respondent, are con-
cerned about the effects which flow from jurisdictional disputes, sec-
ondary boycotts, hot cargo agreements, and the like. And we have no
doubt but what unlawful activities of the foregoing classes could well
result in an effective curtailment of Respondent's operations. But
Congress provided, and has placed at Respondent's disposal, adequate
statutory remedies to alleviate the pressures which such activities
produce. Thus, for example, the Respondent could invoke the pro-
visions of Section 10(1), 8(b) (4), 8(e), and 303(b), and such pro-
visions would appear to provide a degree of security at least equivalent
to that which Respondent sought by its insistence upon District 50's
additional indemnification.12
Upon the basis of the foregoing, we find that Respondent's indem-
nity proposal is not a mandatory subject of bargaining as it does not
involve "wages, hours, and other terms and conditions of employment"
within the meaning of Section 8(d) of the Act. We further find that
the Respondent, on and after August 31, 1960, refused to bargain in
violation of Section 8(a) (5) and (1) of the Act by insisting upon
the inclusion of such proposal as a condition to entering into any
agreement with District 50, United Mine Workers of America, the
employees' certified bargaining representative in an appropriate unit.
"It is this fact which also renders inapposite the Trial Examiner ' s reliance upon the
Second Circuit ' s opinion in N L R B. v. Rapid Bindery, Inc , et at., 293 F. 2d 170, for
there the decision which resulted in a curtailment of work was directly within the con-
trol of one of the contracting parties
1123 NLRB 876, 907-908.
12 See , e g., Lester Morton, d /b/a Lester Morton Trucking Company v Local 20, Team-
sters, Chauffeurs , and Helpers Union, IBT , 200 F. Supp 653 Respondent ' s final argu-
ment, not treated by the Trial Examiner , is to the effect that its indemnity proposal re-
lates to the performance of work at the construction site and is therefore a mandatory
subject of bargaining , in view of the recent statutory amendments of Section 8(e) and (f).
Suffice it to say that we find no merit in this argument for Respondent is not seeking
an arrangement contemplated by either of these sections Rather, it is seeking indemnity
for the effects which such arrangements might produce if entered into by other parties.
Cf Local 164 et at., Brotherhood of Painters , etc v . N L B B , supra, footnote 7.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAw
The Board, upon the basis of the foregoing facts and the entire
record, concludes as follows :
1. F. McKenzie Davison, W. J. Hardy, Sr., and W. J. Hardy, Jr.,
d/b/a Arlington Asphalt Company, is an employer within the mean-
ing of Section 2(2) o fthe Act and is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. District 50, United Mine Workers of America is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
3. By insisting, as a prerequisite to reaching an agreement on a
contract, that the Union include therein an indemnity clause or some
like provision, the Respondent engaged in unfair labor practices in
violation of Section 8 (a) (5) and (1) of the Act.
4. The activities of the Respondent set forth above, occurring in
connection with its operations described in the Intermediate Report,
have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce
within the meaning of Section 2 (6) and (7) of the Act.
The Remedy
As we have found that the Respondent has engaged in unfair labor
practices in violation of Section 8 (a) (1) and (5) of the Act, we shall
order that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act, to remedy these
unfair labor practices. Inasmuch as the parties had agreed on all
terms of the contract except for the indemnity provision, we shall order
that, upon request of District 50, the Respondent sign a contract con-
taining all the provisions agreed upon with District 50 on August 31,
1960, excluding the indemnity provision insisted upon by the Respond-
ent. If no such request is made, it shall be ordered that the Respond-
ent, upon request of District 50, be required to bargain collectively
with District 50 with respect to the terms of a collective-bargaining
contract and if an agreement is reached to sign it. The Usadel Trophy
Manufacturers, Inc., 131 NLRB 1347.13
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, F. McKenzie
18 As Members Leedom and Fanning are of the view that the parties have not yet reached
final agreement on the terms of a contract , they would order only that Respondent bar-
gain collectively without insisting to impasse on the indemnity provision, and reduce to
writing any agreement reached . See North Carolina Furniture, Inc., 121 NLRB 41, 42.
ARLINGTON ASPHALT COMPANY 749
Davison, W. J. Hardy, Sr., and W. J. Hardy, Jr., d/b/a Arlington
Asphalt Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing, if requested to do so by District 50, to sign a con-
tract containing all the provisions agreed upon with District 50 on
August 31, 1960, excluding the indemnity provision insisted upon by
the Respondent. If no such request is made, refusing on request to
bargain collectively with the aforementioned labor organization as
the exclusive representative of the employees in the appropriate unit
with respect to rates of pay, wages, hours of work, and other terms
and conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement.
(b) In any like or similar manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to join or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining or
other mutual aid or protection or to refrain from any and all such
activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon the request of District 50, sign a contract containing
all the provisions agreed upon with District 50 on August 31, 1960,
excluding the indemnity provision insisted upon by the Respondent.
If no such demand is made, upon request of the aforementioned labor
organization, bargain collectively with it as the exclusive representa-
tive of the employees in the appropriate unit and if an understanding
is reached, embody such understanding in a signed agreement.
(b) Post at its principal places of business in and around Arling-
ton, Virginia, copies of the notice attached hereto marked "Ap-
pendix." 14 Copies of said notice, to be furnished by the Regional
Director for the Fifth Region, shall, after being duly signed by the
Respondent's representative, be posted immediately upon receipt there-
of, and maintained by it for 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that such notice is not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith.
14 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL, if requested to do so by District 50, United Mine
Workers of America, sign a contract containing all the provisions
agreed upon with the aforementioned labor organization on Au-
gust 31, 1960, without a provision requiring indemnification by
District 50, United Mine Workers of America, for possible re-
taliation by the BCTU. If no such request is made, we will,
upon request, bargain collectively with the above-named Union
for the unit described herein with respect to rates of pay, wages,
hours of work, and other terms and conditions of employment,
and if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is :
All truckdrivers and laborers employed at the Employer's
three plants at Rosslyn, Seminary Road, and Alexandria,
Virginia, excluding machine operators, plant engineers, office
clerical employees, guards, and all supervisors as defined in
the Act.
WE WILL NOT, by refusing to bargain in good faith, or in any
like or similar manner, interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to
form, join, or assist the above-named Union or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities.
F. MCKENZIE DAVIS, W. J. HARDY, Sr.
AND W. J. HARDY, Jr. D/B/A ARLING-
TON ASPHALT COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Represontative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 707 North Calvert Street, Baltimore 2, Maryland, Telephone
Number Plaza 2-8460, Extension 2100, if they have any question con-
cerning this notice or compliance with its provisions.
ARLINGTON ASPHALT COMPANY 751
INTERMEDIATE REPORT
STATEMENT OF THE CASE
On May 9, 1961, the Charging Party filed a charge against Respondent on the basis
of which the General Counsel of the National Labor Relations Board, herein called
the Board, issued a complaint on June 21, 1961, alleging, in substance, that the
Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act,
as amended, herein called the Act, by refusing to bargain in good faith with the
majority representative of Respondent's employees in an appropriate unit since
November 8, 1960, by adamantly insisting upon inclusion of a clause which is not a
mandatory subject of collective bargaining as a condition precedent to a collective-
bargaining agreement. Upon answer filed by Respondent on July 17, 1961, denying
the essential allegations of the complaint, the case was heard before the duly desig-
nated Trial Examiner on July 31, 1961.
Briefs were received from Respondent and the General Counsel on August 22, 1961.
Upon consideration of the entire record, including the briefs and the demeanor of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
F. McKenzie Davison, W. J. Hardy, Sr., and W. J. Hardy, Jr., are and have been
at all times material herein copartners doing business under the trade name and style
of Arlington Asphalt Company. Its principal place of business is in and around
Arlington, Virginia, where it is engaged in the manufacture and placement of asphalt
materials. In the course and conduct of its business operations, during the preceding
12-month period, a representative period, it received shipments of products valued
in excess of $50,000 at its places of business directly from points located outside the
Commonwealth of Virginia. During the same period, Respondent supplied goods
and services valued in excess of $50,000 to business entities which are engaged in
commerce within the meaning of the Act. I find Respondent is and has been at all
times material herein engaged in commerce within the meaning of Section 2(6) of
the Act.
II. THE LABOR ORGANIZATION
The Charging Party, District 50, United Mine Workers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ISSUES INVOLVED
1. Did Respondent insist until impasse upon inclusion of an indemnity provision
or a performance bond in a collective-bargaining contract?
2. Is it possible for a company to bargain in good faith under the Act, with a
union of its employees' choosing and at the same time seek assurances from such
union that business losses brought about by virtue of bargaining with such union
be borne by the union?
3 If not possible so to bargain initially, does an insistence upon these assurances
or an insistence upon some other solution to the problem amount to a refusal to
bargain in good faith where the parties had bargained about this issue for almost a
year?
A. The bargaining history
The following stipulation was entered into by the parties at the hearing:
District 50, United Mine Workers of America (hereinafter referred to as the
Union), F. McKenzie Davison, W. J. Hardy, Sr. and W. J. Hardy, Jr., d/b/a
Arlington Asphalt Company (hereinafter referred to as Respondent) and
Counsel for the General Counsel stipulate as follows:
Respondent's work consists of, or directly relates to pavement construction,
street and roadway and airport construction, including necessary grading and
drainage. Respondent is engaged in construction work within the construction
industry which, to the extent that the industry is organized, is represented among
others by building and construction trades unions.
The certification of the Union was exclusive of machine operators and plant
engineers who were covered by contract between Respondent and Local 77 of
the International Union of Operating Engineers (Case No. 5-RC-2903).
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about May 27, 1960, Mr. Tavaglioni, a representative of the Union,
called ^Mr Devaney, attorney for Respondent, with respect to arranging a meet-
ing for the purpose of negotiating a contract. Preliminary arrangements for a
meeting were agreed to and Mr Tavaglioni was requested to call F. McKenzie
Davison, a partner of Respondent, to arrange directly the time and place of the
meeting. The first meeting was held by the parties on or about May 28, 1960
At this meeting, the Union and Respondent representatives presented various
contract demands which were reviewed. The Union and Respondent discussed
the possibility of retaliation or pressure by building and construction trades
unions against contractors whose employees are represented by the Union.
It was recognized by both the Union and Respondent that pressure by the build-
ing and construction trades unions against such contractors could take one of
several forms:
(1) By picketing at job sites on which such contractors were performing
work.
(2) By requests or threats directed at general contractors who had sub-
contracted work to such contractors.
(3) By refusal of general contractors to award work to employers known
not to be represented by the building and construction trades unions.
The problem of such retaliation or pressure directed against non-building
and construction trades union contractors was thoroughly discussed by repre-
sentatives of the Union and Respondent, including their respective labor counsel.
No final agreement for a collective bargaining contract was reached at the meet-
ing and the Union and Respondent continued negotiations.
Further bargaining sessions were conducted with both the Union and Re-
spondent exchanging proposals and counter proposals in writing. By on or
about August 31, 1960, based on these proposals and counter proposals the
Union and Respondent had finally reached a point in negotiations where sub-
stantial agreement had been reached on the terms of a collective bargaining
contract and but for a solution to the potential problem posed by the building
and construction trades unions as discussed above a contract probably would
have been finally executed by the Union and Respondent. On or about
August 31, 1960 the Union submitted a written proposal, a copy of which is
submitted as General Counsel's Exhibit #2 and made a part hereof Respondent
submitted a proposed addendum to the Union's written proposal on this date, a
copy of which is attached to General Counsel's Exhibit IA of the formal papers
and made a part hereof. Acceptance of the Union's proposal by Respondent was
conditioned upon acceptance by the Union of the said addendum or some other
solution to the potential problem posed by the building and construction trades
union as discussed above The union declined to accept the said addendum or
any other solution offered by Respondent and no final agreement was reached.
No further contract negotiations were conducted until April 11, 1961. The
sole issue upon which the Union and Respondent were unable to agree during
this period and thereafter and which precluded and to date continues to preclude
a final agreement between the Union and Respondent was a solution which would
protect Respondent in the event of possible retaliation and/or pressures brought
by the building and construction trades unions as discussed above. The final
negotiation meeting between the Union and Respondent took place on April 21,
1961 at which time the problem of retaliation and/or pressure by the building
and construction trades union was further discussed. The Union refused to
agree to any offers made by Respondent which related to the problem of possi-
ble retaliation and/or pressure by the building and construction trades unions
directed against Respondent. From on or about August 31, 1960 to date,
Respondent has taken and has adhered to the position that any final agreement
between the parties was contingent on acceptance by the Union of some form
of solution to the problem of possible retaliation and/or pressures by the build-
ing construction trades union directed against Respondent.
The Union is and has at all times since on or about August 31, 1960 been
prepared and is willing to execute and finalize the proposal that it submitted
on that date.
It is further understood and agreed that the parties shall not, by agreeing to
this Stipulation, be prevented or foreclosed from presenting additional testimony
and evidence to supplement the facts set forth in this Stipulation.
ARLINGTON ASPHALT COMPANY 753
Addenda No. 3
As referred to in the above stipulation, Respondent proposed the following two
paragraphs be inserted in the written contract as proposed by the Charging Party
on August 31, 1960. (General Counsel's Exhibit No. 1-A.)
1. The purpose of this clause is to prevent any and all losses, to the Party of
the First Part [Respondent], directly or indirectly caused by, Secondary Boy-
cotts, the loss of existing or future profits from any and all contracts the Party
of the First Part may have at this time or may secure in the future, by being
refused any or all work because of the Party of the First Parts' Membership in
District 50, and because of this membership not being permitted to work for
General Contractors whose jobs are serviced by the AF or L or the Washington
Bldg. Trades Council.
2 The party of the second part [Charging Party] agrees to indemify the
Party of the First Part against the entire purport of Paragraph 1 above by the
execution of a Surety Bond of not less than $10,000 00.
Evidence of Pressures by AFL-CIO against Employers Dealing with District 50
The above stipulation shows that Respondent and Charging Party recognized the
probability-not just a possibility-that the building and construction trades unions
of the AFL-CIO would retaliate against employers having collective-bargaining
agreements with District 50 or bring pressures against them or the prime contractors.
Respondent undertook to introduce evidence in the record to show this real
probability.
Respondent introduced, as its Exhibit No. 1, a letter dated April 6, 1961, to the
General Counsel of the Board having reference to John F. Casey Company, Case No.
5-CA-1866 and Local 77, International Union of Operating Engineers, AFL-CIO,
Cases Nos. 5-CB-428 and 5-CC-146. In essence, the letter was an appeal to the
General Counsel from a refusal by the Regional Director of the Board to issue a
complaint in the designated cases. The letter was written by O. B. Allen, representa-
tive, District 50, U.M.W.A , who was a witness in the instant case.
The letter, briefly, told the story of how a subcontractor, Corson and Gruman,
was forced off a quarter-of-a-million dollar job on August 25, 1960, it had with
prime contractor John F. Casey Company due to pressures brought against Casey by
the Operating Engineers because Corson had a collective-bargaining agreement with
District 50, U.M.W A.
Colonel Davison, one of the partners of Respondent, credibly and without contra-
diction testified that he did the negotiating for Respondent with Charging Party, and
that starting with the first meeting and throughout all the other meetings Respondent's
need for some form of protection from the AFL-CIO building trades unions was
discussed. Finally, he said, the written addendum set out above was submitted to
the Union. This came after the above trouble Corson and Gruman had with
Casey Cox, the vice president of Corson, called him up and told him what had
happened.
Davison also credibly testified of receiving calls directly from the building trades
concerning Respondent's continued performance on particular jobs. Two of these
calls occurred in mid-1960. The first call was from a representative of the Hod
Carriers Union who "had put the heat on the general superintendent of the Turner
Construction Company." Respondent apparently was the subcontractor building
the paving area for the Government Employees Life Insurance Company Another
call took place when Respondent was paving the Lord & Taylor job under a sub-
contract from Hegeman-Harris. That time a shop steward told him his men could
not work unless they had union books. Testimony on this is-
Q Did you indicate in any way that your employees were represented by
District 50?
A. No, sir, I did not.
Q Did you indicate that your employees were receiving the wage rates which
the building trades also received?
A. Yes, sir. We have to pay the stipulated wage rate on any job that we are
on, whether it is union or non union, and it wasn't a case of wages; it was a case
of the fact that the men did not belong to the AF of L and didn't have their
union cards.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
More recently, Davison had the same type of problem on a job with George A.
Fuller Company and within 2 months of the hearing he had the same problem on a
McCloskey Company job. At the time of the hearing, Respondent had two contracts
with McCloskey with a third coming up on the new 14th Street Bridge. Respondent's
total union work at time of the hearing was "well over $300,000" and it averaged
"between nine and thirteen percent of our gross business." Davison further testi-
fied that regardless of the "heat" put on him he was able to finish out all past jobs
although he did not wish to tell how he did it.
Respondent's counsel, William B. Devaney, testified credibly in corroboration of
Colonel Davison. He prepared the proposal set out above as "Addenda No. 3"
following the conversation Davison had with Cox after Corson and Gruman had
been forced off the Casey job. He said Respondent and Charging Party had not
reached a solution to the problem caused by the building trades at a meeting on
April 11, 1961, and a meeting was set up for April 21. Colonel Davison and he
attended this latter meeting with Allen and Mr. Treherne, counsel of Charging Party.
Several possibilities of solution to the building trades discrimination were discussed
and although he did not believe the indemnity provision was particularly satisfactory
"it was the only avenue of relief that we could see." The meeting broke up on
the 21st with Treherne indicating that he would advise them later whether the
solutions discussed, or others, would be worth further discussions. The next in-
formation received was that the instant charges were filed on May 9, 1961.
Since April 21, Davison told Devaney of at least three occasions of other dis-
cussions he, Davison, had with the building trades in all of which it was indicated
that his future jobs would be picketed if he were not under contract with the
building trades. These practices were called to the attention of Congress in a letter
to Congressman Dent with copies to Congressmen Powell and Kearns. Further,
Allen told Devaney that District 50 had appeared before Congressman Pucinski's
committee in an attempt to get some legislative action which would improve the
situation posed by the building trades.
B. Positions of the parties, analysis, and conclusions'
First issue
The first issue concerns a question of fact, and, as stated earlier, is whether
Respondent insisted until impasse upon inclusion of an indemnity provision or a
performance bond in a collective-bargaining contract. The General Counsel main-
tains that Respondent did insist upon this provision although both the stipulation and
his brief refer to the fact that Respondent wanted an indemnity clause or some other
solution to the problem. Respondent maintains there was no impasse, calling atten-
tion to the very last meeting of April 21 in which other suggestions were made with
the understanding that Charging Party would consider them and get in touch with
Respondent. It appears to me that for all intents and purposes there was an impasse,
as suggested by the General Counsel. Respondent discussed the problem involved
in each one of the meetings and as of the last meeting on April 21, Devaney stated
that although he did not believe the solution brought about by the indemnity pro-
vision was particularly satisfactory "it was the only avenue of relief that we could
see." In other words the parties could come up with no other solution and Respond-
ent would not agree to a contract without a solution. That makes an impasse, as
far as I am concerned. Collective bargaining should be left to the parties as much
1 The relevant provisions of the Act, are as follows
SEC. 8. (a) It shall he an unfair labor practice for an employer-
L d 8 1 4 4 A
(5) to refuse to bargain collectively with the repre4entatives of his employees,
subject to the provisions of section 9(a)
(d) For the purposes of this section, to bargain collectively is the performance
of the mutual obligation of the employer and the repiesentotive of the employees to
meet at reasonable times and confer in good faith with respect to wages, hours, and
other terms and conditions of employment, or the negotiation of an agreement, or
any question arising thereunder, and the execution of a written contract incorporat-
ing any agreement reached if requested by either party, but such obligation does
not compel either party to agree to a proposal or require the making of a
conce, lion : . . .
ARLINGTON ASPHALT COMPANY 755
as possible. Free exchange between the employer and the representative of his
employees is necessary for a satisfying and honorable understanding. It has been
wisely said that man cannot bargain with a dictator. It likewise follows that man
cannot truly bargain with another if his efforts will be overruled or even neutralized
by his government. The only test properly available to the Government and the
one test required by the Act is that the parties bargain in good faith.
Second Issue
The second issue is the heart of this case. May an employer, in good faith, ask
the representative of its employees, to a point of impasse, for indemnification for a
loss of business which it reasonably expects to suffer by virtue of concluding the
collective-bargaining agreement? The General Counsel argues that: The indemnity
provision is not a matter relating to wages, hours, and other terms or conditions of
employment; District 50 has no control over whether Respondent loses work because
its employees chose it to represent them; and such a clause is not a mandatory
subject for collective bargaining and as such it may not be lawfully insisted upon by
Respondent as a condition precedent to the execution of any agreement. An addi-
tional factor to be considered, argues the General Counsel, is that the employees
are being penalized for exercising their rights guaranteed under the Act because had
they selected a union belonging to the AFL-CIO building trades, Respondent would
not have insisted on the indemnity provision and a contract would have been con-
summated a year ago. For support of his position, the General Counsel relies upon
N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342, May 5,
1958; and Cosco Products Company, 123 NLRB 766, April 16, 1959, enforcement
denied 280 F. 2d 905 (C.A. 5), June 30, 1960.
Respondent's theory, put in the form of a syllogism, would be as follows:
1. Any subject affecting wages, hours, and other terms and conditions of employ-
ment is a mandatory subject of bargaining under the Supreme Court's holding in
Borg-Warner, supra.
2. Curtailment of work affects wages, hours, and other terms and conditions of
employment as it involves work tenure.
3. Therefore an issue involving a curtailment of work is a mandatory subject of
bargaining and as such may be bargained to an impasse without violating Section
8(a) (5) of the Act.
The General Counsel states flatly that an indemnity provision does not involve
wages, hours, and other terms and conditions of employment. Respondent argues
that it does involve these factors, in this case. Hence, point No. 2 of the above
syllogism is the basic issue in the case. The Borg-Warner case, relied upon by the
General Counsel, involved two contract clauses which the employer insisted upon to
an impasse with the certified representative of its employees. These two clauses can
be termed "recognition" and "ballot," respectively, for identification. As to the
"recognition" clause, the employer insisted on recognizing the "Local Union" as
the sole representative of its employees notwithstanding the fact that the Board had
certified the International union as the employees' representative. Trial Examiner
Lloyd Buchanan found no bad faith on either side of the bargaining table but found
the employer guilty of a per se unfair labor practice in violation of Section 8(a)(5)
on the ground that each of the controversial clauses was outside the scope of
mandatory bargaining as defined in Section 8(d) of the Act. The Board, with two
members dissenting, adopted the recommendation of the Trial Examiner (113 NLRB
1288, 1298). In response to the Board's petition to enforce its Order, the court of
appeals set aside that portion of the Order relating to the "ballot" clause but upheld
the Board's Order as to the "recognition" clause (236 F. 2d 898). The Supreme
Court was unanimous in holding the company's insistence on the "recognition"
clause constituted a violation of Section 8(a)(5) although three of the Justices
would arrive at the decision along a different route. The route of the majority was:
The "recognition" clause . . . does not come within the definition of mandatory
bargaining. The statute requires the company to bargain with the certified
representative of its employees. It is an evasion of that duty to insist that the
certified agent not be a party to the collective-bargaining contract. The Act
does not prohibit the voluntary addition of a party, but that does not authorize
the employer to exclude the certified representative from the contract
The "ballot" clause, insisted upon by the employer, called for a prestrike secret vote
of its employees (union and nonunion ) as to the employer's last offer. As noted
641795-63-vol. 136- 49
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, the Trial Examiner and the Board majority found this to be a violation of
Section 8(a) (5) although the court of appeals disagreed. The Supreme Court, with
four Justices dissenting, agreed with the Board that the "ballot" clause did not come
within the scope of mandatory collective bargaining, as defined in Section 8(d) of
the Act, and hence the employer's insistence upon it to point of impasse violated
Section 8(a)(5) of the Act. The majority opinion held that the "ballot" clause is
not a subject within the phrase "wages, hours, and other terms and conditions of
employment" which defined mandatory bargaining. It stated.
[The "ballot" clause] . relates only to the procedure to be followed by the
employees among themselves before their representative may call a strike or re-
fuse a final offer. It settles no term or condition of employment-it merely
calls for an advisory vote of the employees. It is not a partial "no strike"
clause. A "no strike" clause prohibits the employees from striking during the
life of the contract. It regulates the relations between the employer and the
employees. [Citing cases.] The "ballot" clause, on the other hand, deals only
with relations between the employees and their unions. It substantially modi-
fies the collective-bargaining system provided for in the statute by weakening
the independence of the "representative" chosen by the employees. It enables
the employer, in effect, to deal with its employees rather than with their
statutory representative. [Citing cases.] (356 U.S. 342, 347-350.)
Now, let us go back to the second point in the above syllogism and see if an issue
involving a curtailment of work is within the phrase "wages , hours, and other terms
and conditions of employment ." If it is within the phrase it is a mandatory subject
of collective bargaining and there is no violation of the Act for the instant employer
to insist upon it to impasse. If not within the phrase , the employer must be ordered
to cease insisting upon it. First of all, let us understand just what is an indemnity
clause such as we have here. It undertakes to indemnify the employer for a loss of
profits caused by a curtailment of work resulting from boycotting action reasonably
expected from another union because this employer's employees selected District 50
to be their representative.2 The Court of Appeals for the Second Circuit has said,
Nothing affects conditions of employment more than a curtailing of work, and
such a curtailment is properly the subject of collective bargaining.3
The court there held that the employer 's decision to move its plant was not a
required subject of collective bargaining but once the decision to move was made,
Section 8(a)(5) required the employer to notify the union so that negotiators could
then consider the treatment due to those employees whose conditions of employ-
ment would be radically changed by the move. But, argues the General Counsel,
in essence, why should the employer be able to insist upon money damages from
the representative of the employees for a loss of profits not under the control of
the representative . The answer to this would seem to be that so long as the em-
ployer made money it could afford to pay employees. If it did not make money, it
would soon have no employees. It requires money to stay in business. Further-
more , I am not at all sure that the union would be justified in making the statement
that the work curtailment situation involved was wholly outside of its control.
Unions are big business and are very familiar with competitive practices among
themselves . Indeed , through voluntary associations they are attempting to reconcile
jurisdictional controversies among themselves . If they cannot resolve the com-
petitive problem to permit them to stay in business one would think the same alterna-
tives would apply to them that applies to any business , namely, they either must get
a government subsidy , merge with a successful organization , or go out of business.
Be that as it may , the issue here does not depend on control but is whether the
employer's proposal relates to "wages, hours, and other terms and conditions of
employment." As a practical matter, going back to the request by the employer for
an indemnity bond , unions themselves have bargained for and insisted upon meas-
ures which , to them , are strikingly similar to this position of the employer . In this
respect, the United Mine Workers has secured royalties from employers on coal
mined with which royalties it has created certain hospital and welfare benefits for
its members . These concessions have come in collective-bargaining agreements over
2 Samuel Gompers, while president of the American Federation of Labor, recognized
the importance of profits when he stated, "The worst crime against the working people
is a company which fails -to operate at a profit" See 78 Dun's Review and Modern
Industry No 3, p 36 (September 1961).
3 N L R B v Rapid Bindery, 48 LRRM 2658, 2663 [293 F. 2d 1701
ARLINGTON ASPHALT COMPANY 757
"wages, hours, and other terms and conditions of employment ." Likewise unions
have bargained over "unemployment benefits," "automation ," and an "annual wage"
even though the employer in the last illustration may not have steady employment
for its employees for the whole year. The employer has even been required to
bargain over a stock purchase plan it wanted to put into effect for its employees .4
The conclusion of the Supreme Court on the "ballot" clause, above, was that it would
enable
... the employer, in effect, to deal with its employees rather than with their
statutory representative.
Such a conclusion cannot be made in the instant case. The clause here is in the
area of "wages, hours, and other terms and conditions of employment." 5
Finally with respect to point number 2 of the syllogism as to whether a curtail-
ment of work affects "wages , hours, and other terms and conditions of employment,"
was there a reasonable ground for believing there would be a work curtailment.
The record, including the Corson incident by way of example, is sufficient to estab-
lish the facts that the employer would lose business-lose jobs-by executing a
collective-bargaining agreement with Charging Party. This was so apparent to the
Charging Party that it bargained with Respondent Employer for almost a year before
it decided it could not solve the problem in the way the Employer proposed. The
Employer stood to lose up to 13 percent of its business , as estimated by Davison.
But again, the question of who is to lose out is not within the jurisdiction of the
Act and not the question in issue. What I have to decide is whether the issue affects
"wages, hours, and other terms and conditions of employment," and whether it was
a reasonable demand under the circumstances of the case. The Board has said,
We do not believe it incumbent upon the Board to hold , in a situation such
as is involved here , which possesses latent dangers , that merely because the
hazards which can be anticipated have not yet been realized, the Respondent-
employer is nonetheless under a statutory duty to bargain . [Emphasis supplied.]
The Board in the same case went on to say,
it would be a pyrrhic victory for a union to have an employer accede to
[its demands ] if the result was to force the employer out of business , thereby
depriving the employees of their status as employees and the union of its func-
tion as their bargaining representative . Indeed, recognition of the mutuality of
concern that the bargaining agent, the employees, and the employer have in
the prosperity of the employer' s business is evidenced by the fact that, in a
particular industry where there is very keen competition, unions have been
known to contract for decreases in wages of employees in order to enable an
employer to combat effectively such competition.°
As stated above , the employer in the Bausch & Lomb case refused to bargain
at all with the agent of its employees on the ground it might drive it out of business.
The Board held this outright refusal to bargain was permissible . In the instant case,
the Employer and the Union recognized the danger to the Employer 's business yet
the Employer bargained in good faith with it reserving only an indemnity clause
up to a fixed amount. Am I to hold that by taking the step in narrowing the gap
between the parties that the Employer here is in a worse position than if he had not
taken the step at all? Certainly not.7
'Richfield Oil Corporation, 110 NLRB 356.
5 This is not to say that the Union here must concede or give in to the Respondent's
demand as Section 8 (d) of the Act says the obligation to bargain in good faith "does
not compel either party to agree to a proposal or require the making of a concession."
N L R.B. v. American National Insurance Co., 343 US 395
"Bausch & Lomb Optical Company, 108 NLRB 1555, 1560, 1562. The Board, in this
case, held the employer did not refuse to bargain in good faith when it flatly refused to
bargain with the union because at the time the union was selected the agent of the em-
ployees it was also a competitor in business with the employer
7 Cases such as Cosco Products Company, 123 NLRB 766, and cases cited therein are
not pertinent to this case There, the insistence upon a performance bond was found to
be a violation of Section 8(a) (5) but nowhere was it established or claimed the bond
was needed for the employer to stay in business-to keep offering job opportunities to its
employees. Finally , I find no merit in the argument of General Counsel that the em-
ployees are being penalized for exercising their rights guaranteed under the Act because
if they had selected an AFL-CIO building trades union , Respondent would not have in-
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I find that under the circumstances of this case, the "indemnity"
clause related to "wages, hours, and other terms and conditions of employment"
and was proffered by Respondent in good-faith bargaining. I will recommend the
complaint be dismissed.
Third Issue
In view of the above determination, it is unnecessary to consider what impact,
if any, the bargaining for almost a year had on deciding whether there was bargain-
ing in good faith within the meaning of the Act.
IV. COMMERCE
The activities of the Respondent set forth above, occurring in connection with
its operations described in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States.
V. THE REMEDY
It has been found that the Respondent bargained in good faith by proposing
an indemnity clause. The indemnity clause has been found to affect wages, hours,
and other terms and conditions of employment within the meaning of the Act and
as such it was a mandatory subject for collective bargaining. Accordingly, I will
recommend that the complaint be dismissed in its entirety.
Upon the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. The operations of Respondent occurred in commerce within the meaning of
Section 2(6) and (7) of the Act:
2. District 50, United Mine Workers of America is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent did not violate Section 8(a) (5) of the Act, as alleged.
RECOMMENDATION
On the basis of the foregoing findings of fact and conclusions of law, I recommend
that the complaint be dismissed in its entirety.
sisted upon an indemnity provision and a contract would have been consummated a year
ago The Act does guarantee employees the right to select their agent but it by no
means guarantees them the best possible collective-bargaining agent or contract Let me
add that by this statement I cast no aspersions on the Charging Party Indeed, its
actions in this matter show a refreshing awareness of its duty and trust to its principal,
the employees of Respondent.
Several other cases have been referred to in briefs and arguments They have been
carefully studied and found not to be applicable to the instant case For example in
E. A Taormina et al, d/b/a Taormina Company, 94 NLRB 884, cnfd 207 F. 2d 251
(C A 5, 1953), it was the totality of the conduct of the employer as found by Trial
Examiner Asher which caused him and the Board and the circuit court to find the viola-
tion of Section 8(a) (5). Local 164, Brotherhood of Painters etc (Cheatham Painting
Co ), 293 F 2d 133 (CAD C ), related to a performance bond to be posted by the
employer with no evidence that the demand related to "wages, hours, and other terms
and conditions of employment " The circuit court held that it had nothing to do with
"actual performance of work or to subsequent relations," although Judge Edgerton wrote
a comprehensive dissent Finally, the Dalton Telephone Company case, 187 F. 2d 811
(C A. 5, 1951), involved an insistence by the employer, after all substantive issues had
been agreed upon, that the union register under a provision of the Georgia Code so as
to be subject to suit on its contract This was so foreign to "wages, hours, and other
terms and conditions of employment" and interposed at a time in bargaining as to demon-
strate existence of bad-faith bargaining-not at all like the situation in the instant case
Respondent makes a point in its brief which need not be considered in view of my hold-
ing above It argues that inasmuch as the new Section 8(e) of the Act permits agree-
ments relating to performance of work at construction sites and that Section 8(f) permits
prehire contracts in the construction industry, it cannot be a violation of the Act for
Respondent to make a bargaining demand concerning the performance of work at con-
struction sites.