Associated General Contractors of America, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1970

182 N.L.R.B. 224 (N.L.R.B. 1970)

224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Associated General Contractors of America , Inc., Evans-
ville Chapter , and Member Employers of Associated
General Contractors of America , Inc., Evansville Chap-
ter and Local Union No. 90 , United Brotherhood of
Carpenters and Joiners of America , AFL-CIO
Local Union No. 1080 , United Brotherhood of Carpenters
and Joiners of - America , AFL-CIO. and Local Union
No. 90 , United Brotherhood of Carpenters and Joiners
of America , AFL-CIO. Cases 25-CA-2949 and
25-CB-754 -
April 29, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On January, 10, 1969, Trial Examiner Paul E. Weil
issued his Decision in the above-entitled proceeding,
finding that the Respondents had engaged in and were
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as amend-
ed, and recommending that they cease and desist there-
from and take certain affirmative actions, 'as, set forth
in the attached Trial Examiner's Decision. Thereafter,
the General Counsel and the Respondents filed excep-
tions and supporting briefs to the Trial'Examiner's Deci-
sion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed.:The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in these
cases, and hereby adopts the Trial ,Examiner's findings
and conclusions only to the extent consistent herewith.
The essential dispute giving rise to, these cases stems
from- conflicting territorial jurisdictional, claims. of the
Charging Party, Local 90, and Respondent Local 1080,
both of which are affiliates of the International Brother-
hood of Carpenters and Joiners of America, to represent
certain millwrights employed by member-employers of
Respondent AGC in the vicinity of Evansville, Indiana;
and the adjacent territory consisting of Posey and Van-
derburgh Counties. The record reveals that over a period
of years Local 90 has represented carpenters and mill-
wrights in the above described territory, and has been
signatory to a series of collective agreements with
Respondent AGC, the next most recent of which expired
on May 3, 1967. Respondent Local 1080, which appears
to have been created by the International solely for
the purpose of representing millwrights, has also repre-
sented millwrights of the Respondent Employers on
all construction jobs in certain parts of the States of
Kentucky and Indiana, excluding Posey and Vander-
burgh Counties, and its contract with Respondent AGC
expired on May 15, 1967.
'Negotiations for a new contract between Respondent
AGC and both locals began in March 1967 and were i
attended by a general strike in which both locals and
other building trades unions in the Evansville area partici-
pated. At a negotiations meeting on March 20, 1967,
and on several occasions thereafter, Jerry Lamb, the
representative of Respondent AGC, complained that
Local 90 had. exhibited inability to furnish qualified
millwrights, and suggested that jurisdiction of millwrights
be transferred to Respondent Local 1080. Local 90 ref-
used this proposal and notified Respondent AGC, in
writing, that it would do everything in its power to
prevent the transfer of jurisdiction. Thereafter, on April
3, 1967, Lamb met with J. C. Keown of Respondent
Local 1080 and Edward Weyler of the International
Brotherhood of Carpenters and Joiners. Lamb and
Keown jointly composed a letter to Weyler alluding
to the incompetency' of millwrights supplied through,
Local 90, and requested the International to transfer
jurisdiction over millwrights in Posey and Vanderburgh
Counties to Respondent Local 1080. Weyler acted on
the request, and on April 17, 1967, the International
notified both Local 90 and Respondent Local 1080 that
jurisdiction over millwrights in the two county area
was removed from Local 90 and awarded to Respondent
Local 1080. Local 90 has appealed the transfer of juris-
diction and its appeal is now pending before the general
convention of the International.
Subsequent to April 17, 1967, Respondent AGC unsuc-
cessfully attempted to withdraw its support of the trans-
fer of jurisdiction, and' on May 3, 1967, it entered
into a contract with Local 90 in which the unit is
described, as in the prior contracts, as including mill-
wrights in Posey and Vanderburgh counties. Thereafter,
on May 15, 1967, Respondent AGC signed a new bargain-
ing agreement with Respondent Local 1080, in which
the bargaining unit is similarly described as including,
inter alia, millwrights employed in Posey and Vander-
burgh Counties. Neither the contract with Local 90
nor the contract with Respondent Local 1080 requires
membership as a condition of employment, and both
contracts contain nonmandatory referral provisions.
Upon the foregoing, and the entire record in these
cases, the Board is of the view that it would not effectuate
the policies of the'Act to adopt the Trial Examiner's
findings of Sections 8(a)(1) and (5) and 8(b)(1)(A) viola-
tions. To the extent that a dispute has given rise to
the complaint here, it is clearly the result of an intraunion
contest between two locals of the same International
union who are competing over territorial jurisdiction.
Both Local 90 and Respondent Local 1080 are bound
by the constitution of the International Brotherhood
of Carpenters and Joiners and had ceded to the parent
organization the right to "regulate and determine all
matters pertaining to the various branches and subdivi-
sions of the trade," and have agreed that the Internation-
al's "mandates must be observed and obeyed at all
times." Local 90, having been adversely affected by
the International's award,' was given opportunity to
appeal and'that appeal is presently pending before the
general convention.
182 NLRB No. 29
ASSOCIATED GENERAL CONTRACTORS OF AMERICA
It is true that an employer, ordinarily, may not rely
upon actions of an International union resulting in a
jurisdictional realignment as between affiliated locals
and may violate the Act by withdrawing recognition
from one local and recognizing another in accordance
with such a reorganization. Nonetheless, where, as here,
the realignment is based upon sound industrial consider-
ations, the rights of employees to participate in decisions
affecting the identity of their bargaining agent must
be accommodated with the policy encouraging stable
and effective bargaining relationships.
In our opinion the shift in 'recognition in this case,
prompted by the International's jurisdictional determina-
tion, was not sufficiently offensive to employee interests
to warrant Board intervention. In the construction indus-
try, where the instant dispute arises the onsite craftsmen
are not members of a fixed and stable work force
having an identity with a specific employer. They look
to the hiring halls maintained by , unions, rather than
employers, for work opportunities. They are highly orga-
nized and rarely are involved in Board-conducted elec-
tions. Representation rights customarily accrue to the
"referring" union. There are important practical business
reasons for employers in the industry to accommodate
their labor relations practices to the practices of the
Unions operating in the industry.
These are among the considerations that bear on
statutory bargaining conceptions as they apply to this
industry. Congress has given light to these considerations
by enacting 8(f) which makes prehire agreements lawful
for this industry despite the fact they run counter to
provisions of other sections of the Act..
In this case the contracts negotiated between the
AGC and Locals 90 and 1080, though not of the type
specifically privileged under Section 8(f), See Bricklay-
ers, Local No. 3, 162 NLRB 476, and -also Dallas
Building and Construction Trades Council, 164' NLRB
938, are basically prehire in nature with respect to
future projects. Thus, the effect, basically, of AGC's
shift in recognition will result in little more than a
shift in the source of labor for these projects. Requests
for millwrights will be directed to the hiring hall adminis-
tered by Local 1080 rather than Local 90. As there
is no evidence that Local 1080 has operated or will
operate its hiring facilities on other than a nondiscrimina-
tory basis, without preference for union membership,
we must assume that qualified millwrights working out
of Local 90 will receive the same . job opportunities
as those historically working within the jurisdiction of
Local 1080.
In these circumstances, and as there is no evidence
or suggestion that the International's action was motivat-
ed by considerations other than the fostering of efficient
industrial conditions, we are not persuaded that the
record establishes that AGC, by recognizing Local 1080,
engaged in conduct having a sufficiently detrimental
effect upon employee interests to warrant a refusal
to bargain finding. For similar reasons, we disagree
with the Trial Examiner's finding that Local 1080 violated
Section 8(b)(1)(A) by accepting recognition and executing
225
a contract with AGC. Accordingly, we- shall dismiss
the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations'
Board hereby orders that the complaint herein be, and
it hereby is, dismissed.
TRIAL EXAMINER'S DECISION-
STATEMENT OF THE'CASE
PAUL E. WELL, Trial Examiner: Upon charges filed
on October 17, 1967, by Local Union No. 90, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, hereinafter called Local 90, against Associat-
ed General Contractors of America, Inc., Evansville
Chapter and member employers of Associated General
Contractors of America, Inc., Evansville Chapter,
including but not limited to member employers listed
on two pages attached to the original charges, hereinafter
jointly called AGC, and against Local Union No. 1080,
United Brotherhood of Carpenters' and Joiners 'of
America, AFL-CIO, hereinafter called Local. 1080, the.
General Counsel of the National Labor Relations Board,
by the Regional Director for Region 25, on March' 27,
1968, 'issued an order consolidating the cases and , a
complaint against both AGC and Local 1080. This com-
plaint was thereafter amended on April 24, 1968. By
the complaint the General' Counsel 'alleges that.'AGC
violated Section 8(a)(5) and (1) by withdrawing recogni-
tion of Local 90 as the representative of its millwrights
in Posey and Variderburgh Counties, Indiana, and by
affording recognition to Local 1080 as the representative
of its millwrights in those two counties. The General
Counsel further alleges that Local 1080 violated Section
8(b)(I)(A) by accepting recognition as the representative -
of the millwrights in those two counties, under the
circumstances that it knew that Local 90 was the repre-
sentative of said ,millwrights. In their duly filed answers
both Respondents -denied the commission of any unfair
labor practices and by- their answers and stipulations
entered into thereafter admitted many of the facts-upon
which the-complaint is based.
'Pursuant to notice I conducted a hearing at Evansville,
Indiana, on June 3 and 4 and August 20 and 21'; 1968,
at which all parties were represented by counsel and
participated in the hearing: Briefs filed by both Respond-
ents and the General Counsel have been carefully consid-
ered. Upon the entire record in the case, from my
observation of the witnesses and their demeanor, and
after'consideration of the briefs, I make the following: -
FINDINGS 'OF FACT
1. THE BUSINESS OF THE RESPONDENTS
It -is alleged and admitted ' that AGC is a corporation
existing for the purpose , among others, of representing
employer members in collective bargaining with various -
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations, including both Local 90 and Local
1080, and that among its members are contractors who
in the course and operation of their business annually
cause goods, and materials valued in excess of $50,000
to be delivered from other States to Indiana. AGC
and its members are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 90 and Local 1080 are each labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
Over a period of years Local 90 had represented
all carpenters and millwrights within a territorial jurisdic-
tion consisting of Evansville, Indiana, and the surround-
ing counties of Posey and Vanderburgh. Local 1080,
which is located in Owensboro, Kentucky, 35 or 40
miles from Evansville, is a millwright's local; i.e., it
appears to have been set up by the International for
the purpose of, representing millwrights only. Local 1080,
bargaining through the Lower Ohio Valley District Coun-
cil of Carpenters, of which it is a member,' has represent-
ed the millwrights- of the Employers herein2 on all con-
struction jobs in certain parts of the States of Indiana
and Kentucky excluding Posey and Vanderburgh Coun-
ties.
The contracts between AGC and Local 90 and AGC
and Local 1080 were both renegotiated in the spring
of 1967. Negotiations between Local 90 and AGC com-
menced on March 13 with the presentation by each
party of proposed changes in the prior contract. The
proposals were briefly discussed and the meeting
adjourned. At the next meeting held on March 20,
1967, Jerry Lanib, a member of the AGC negotiating
committee and a representative of the firm of Burch
& Lamb, Inc., one of the chief employers of millwrights
in the Evansville area, complained that Local 90 had
not been able to furnish qualified millwrights in the
past and proposed that Local 90 transfer jurisdiction
of millwrights to Local 1080. Local 90 refused to discuss
the proposal on the ground that it had not been placed
on the negotiating agenda at the first meeting. Lamb
made this proposal at subsequent meetings but in each
case Local 90 declined to consider the transfer of juris-
diction. On April 1 Local 90 sent a letter to AGC
stating that it did not propose to agree to let Local
1080 take over the millwright work and would do every-
thing in its power to prevent it. By May 3 the only
issue remaining between the parties was wages.
Local 90 is not a member of the Council
s Prior to 1967 the employers with which we are here concerned
were members of another association, the Associated Building Contrac-
tors of Evansville Inc , familiarly known as ABC AGC succeeded
to the responsibilities and obligations of ABC in January 1967 There
is no issue that this in any way affects the bargaining history for
our purposes
While negotiations with Local 90 were being conducted
AGC was negotiating with Local 1080. In these negotia-
tions Jerry Lamb was chairman of the AGC negotiating
committee.
It appears that AGC was engaged in negotiation of
new agreements with all of the building trades unions
in the Evansville vicinity and a general strike took
place from April 1 to about May 15. The Local 90
contract expired on May 3, the Local 1080 contract,
May 15. On May 3, Local 90 agreed to accept the
AGC wage proposal, the only issue remaining in dispute
between Local 90 and AGC, if they were assured that
the completed contract' covered millwrights in Posey
and Vanderburgh Counties. Receiving such assurances3
Local 90 agreed to sign the contract thus negotiated
and its members commenced returning to work as they
were called by the various Employers.4
The contract as it was ultimately signed continued the
same provision as the'preceding contract defining the
unit as containing, inter alia, millwrights in Posey and
Vanderburgh Counties.
On April 3 Jerry Lamb in his capacity as chairman
of the AGC negotiating committee met with Edward
Weyler, International representative of the United Broth-
erhood of Carpenters and Joiners of America,, and J.
C. Keown, financial secretary of Local 1080, and com-
posed a letter, addressed to Weyler, suggesting that
the millwrights supplied by Local 90 were incompetent
and requesting the International to transfer millwright
jurisdiction in Posey and Vanderburgh Counties to Local
1080. On April 17 Weyler, as International representa-
tive, sent letters to Local 90 and Local 1080 stating
that jurisdiction over millwrights in Posey and Vander-
burgh Counties had been removed from Local 90 and
awarded to 1080. Local 90 learned of Lamb's letter
and complained of misrepresentations in it and on April
24 the AGC, this time over the signature of its executive
director, Walther, by telegram to the International, with-
drew its support of the change of jurisdiction and request-
ed that jurisdiction remain with Local 90. On the same
day the International sent AGC a telegram stating in
essence-that the AGC letter signed by Lamb had no
influence in the jurisdictional decision. Local 90 has
subsequently carried on its appeal of the transfer or
jurisdiction and it is now pending before the general
convention of the International Union.
The situation now stands that AGC has contracts
recognizing both Local 90 and Local 1080 as the collec-
tive-bargaining representative of the millwrights. As a
practical matter it is clear that AGC is ignoring its
contract with Local 90 in this regard and it is dealing
with Local 1080 insofar as millwrights are concerned.
s To the extent that the testimony of AGC Executive Director Walther
as a whole may be construed as a denial that such assurances were
given, he is not credited His demeanor on the witness stand, his
evasiveness under cross-examination, and his penchant for answering
questions in terms of his client's position rather than factually all
serve to impair his credibility
' Not all employees resumed work immediately because 'the other
building trades unions remained on strike until May 15 when their
various contracts were signed
ASSOCIATED GENERAL CONTRACTORS OF AMERICA 227
. . The Contentions of the Parties -
The General Counsel contends that by- its withdrawal
of recognition of Local 90 as representative of the
millwrights in Posey and Vanderburgh Counties AGC
violated Section 8(a)(5) oft -the Act. Further by their
implementation of the millwrights' provisions of the
Local 1080 contract and correspondingly ignoring the
provisions of the Local 90 contract with regard to mill-
wrights, AGC in effect terminated the provisions of
the Local 90 contract with respect to millwrights without
complying with the provisions- of Section 8(d) of the
Act and violated Section 8(a)(5) of the Act. With regard
to the intervention of the International Union,the General
Counsel contends-that the fact that the employees select-
ed Local 90 as their bargaining representative does not
mean that they selected the International as their repre-
sentative merely because Local 90 is a subordinate body
of the International Union and that for the purposes
of this case they are separate entities.'
The Employer contends that this sis an internal union
matter over which the Board has not been given any
general supervision and that the AGC acted in good
faith in accordance with the mandate of the International
Union. AGC contends "There is nothing in the record
in this case showing any attempt on the part of Respond-
ent employers to impede` or interfere with in any way
their collective-bargaining relationship with any union."
Finally, the Employer points out that both contracts
are open-shop contracts and the Employer is under
no obligation to hire members of either local nor require
any employee to join either local.'
Respondent Local 1080 contends that Local 1080 did
not in any way violate the Act but that under the
International constitution giving the International the
right to "regulate and `determine all matters pertaining
to the various branches and subdivisions of the trade"
it was "effectively allowed to receive the grant of juris-
diction of millwright work in Posey and Vanderburgh
Counties." In addition Respondent Local 1080 contends
that Section 8(f) somehow protects Local 1080 in this
case. Other than the fact that Section 8(f) recognizes
a distinction between building and construction unions
and industrial unions, I confess that Local 1080's argu-
ment escapes me. Finally, Local 1080 argues carefully
and fully that it was not guilty of discrimination under
Section 8(b)(2) or 8(b)(1)(A)., However since there is
no allegation that Local 1080 was guilty of discrimination
and no such issue is before me I do not deem the
argument to be particularly pertinent to the issues in
this case.
Discussion
covering employees in an industry affecting commerce,
the duty to bargain collectively shall also mean that
no parties to such contract shall terminate or modify
such contract , unless the party desiring such termination
or modification " serves various notices, offers to meet
and bargain , and continues in full force the existing
contract for a period of time . There can be no question
that commencing on May 3 Respondent AGC had a
contract with Local 90 requiring it to recognize Local
90 as the collective -bargaining representative of its
employees doing millwright work . The record is clear,
and no one seriously contends to the contrary, that
from the time it entered into a contract with Local
1080, which covered by its terms employees doing mill-
wright work in Posey and Vanderburgh Counties, AGC
and its members have not only failed to give effect
to the provisions of its contract with Local 90 having
regard to millwrights in Posey and Vanderburgh Coun-
ties, but have contended that its contract in that regard
is no longer effective . The real issue appears to be
whether AGC is protected in this unilateral modification
of its contract withlocal 90 by the fact that the Interna-
tional intervened and awarded the disputed jurisdiction
to Local 1080.
Section 8(d) does not speak in terms of good faith.
It is a statutory requirement which must be followed
by the parties. Failure to do so has long been held
to be a violation of Section 8(a)(5) or 8 (b)(3).6 That
AGC innocently may have followed the International's
directive or may have been coerced by the exigencies
of its business to do so is irrelevant.7
While it may be true that the members of Local
90 or Local 90 as a body may be bound under the
terms of their relationship with the International and
the International's constitution to accept the withdrawal
of jurisdiction by the International there is no showing
that AGC is in any way a party to this arrangement
or is bound,in any way by the provisions of the Interna-
tional constitution . The issue rather is one of representa-
tion over which the Board has duty of exercising its
factfinding and administrative discretion This is not,
as both Respondents would seem to suggest , a jurisdic-
tional dispute in terms of the Act. AGC in this case
itself took the responsibility of terminating its historic
recognition of Local 90 as representative of millwrights
in Local 90 ' s area by acquiescing in the "demand"
of Local 1080 that it sign a contract covering the same
classifications of employees although it appears from
the record that most of the millwrights then employed
by AGC's members were members of Local 90 and
it had a contract recognizing Local 90 as their representa-
tive.
Section 8(d) contains a proviso to the following effect
"where there is in effect a collective-bargaining contract
i This argument appears irrelevant to any issue before me There
is no Section 8(a)(3) allegation What in fact the General Counsel
contends is that Local 90 pursuant to the terms of its contract with
AGC had a right to be called for millwrights employees and had the
right and duty to represent them as employees of AGC .
See Fort Smith Chair Co , 143 NLRB 514
As a matter of fact the "innocence" of AGC is not that clearly
established The impetus to the action of the International appears
to have resulted from AGC's letter signed by Lamb as the chairman
of the bargaining committee, asking that the jurisdictional change be
affected What gave rise to this letter, dictated in the presence of
the International representative to whom it was addressed, as well
as an officer of Local 1080, was not explored nor was evidence offered
as to the attempted retraction of the AGC letter by the subsequent
telegram signed by AGC's executive director
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor does it appear to me that Section 8(f) affords
either Respondent any comfort. That provision of the
Act simply relieves employers engaged primarily in the
building and construction industry from the reach of
subsections (a) and (b) of Section 8 under certain -spec-
ified circumstances, none of which are present here.
As Respondent Local 1080 points out quite correctly
both contracts entered into by AGC were valid under
Section 8(f). However it is clear that the contract with
Local 90 would have been valid in the absence of
Section 8(f). The record clearly reveals that the employ-
ees who had been doing the millwright work up to
the commencement of the strike on April 1 were members
of Local 90 or were represented by Local '90 and there
is no evidence that there was any disaffection among
them adequate to sanction the withdrawal of recognition
by the Employer. The mere fact that these circumstances
arose in the building and construction industry did not
remove the employees concerned from the protection
of the Act. I do not read 8(f) as giving employers
the right to select the bargaining agent for their employ-
ees as the AGC appears to have done here. While
Jerry Lamb may have been dissatisfied with the mill-
wrights he was using , the law does not in my opinion
give him the right to affect a change by the simple
expedient of recognizing a different union . There is
no reason to believe that Local 1080 was-capable of
supplying millwrights any more competent or agile or
any better trained than Local 90 but whether or not
it could do so AGC was not warranted in, its recognition
of 1080 by this factor.' -
- Conclusion
As I have indicated above, in my opinion AGC violated
Section 8(a)(5) both by its withdrawal of recognition
of Local 90 and the consequent unilateral modification
by it of its contract with Local 90 and by its - action
in signing a contract with Local 1080 containing provi-
sions for the representation of millwrights in Posey
and Vanderburgh Counties by that labor organization.
Both facets of the violation constitute violations of
Section 8(a)(5) and (1) of the Act, and I so find.
The 8(b)(1)(A) Allegation
The General Counsel contends that Local 1080, by
accepting recognition from AGC as the collective-bar-
gaining representative of millwrights, in the disputed
jurisdiction, violated Section 8(b)(1)(A) of the Act. There
is no real question that Local 1080's officers knew at
the time they entered into the contract with AGC of
the entire situation with regard to Local 90. The meeting
at which Weyler, Lamb, and Keown were present on
April 3 at which Lamb wrote a letter'to Weyler recom-
I I deem the relative competence of the employees represented by
Local 90 and those represented by Local 1080 irrelevant to any issue
before me For this reason I excluded evidence with regard thereto
whenever offered The record reveals that 'many if not most of the
millwrights who were employed by AGC in the Evansville area prior
to April 1, 1967, are still employed in the same capacity
mending the change of jurisdiction and the flurry of
letters and - telegrams that followed it apprised Local
1080 as well as the AGC of the fact that Local 90
persisted in its demand for continued recognition as
the millwrights ' collective -bargaining agent . It was appar-
ently common knowledge in the community and Local
1080's counsel at the hearing admitted that it was aware
of the fact that a contract had been signed with Local
90 covering that jurisdiction . The fact that Local 1080
may have felt itself bound (or perhaps rewarded) by
the action of the International - in transferring jurisdiction
to it affords it no defense under the circumstances
of this case . The Board has long held that a union
violates Section 8 (b)(l)(A) by entering into and maintain-
ing an exclusive contract with an employer when it
does not represent a free and uncoerced majority of
the unit employees .' Respondent Union' s defense , appar-
ently on the ground that the contract contained no
union-security clause , is not well taken . See Bernhard-
Altmann Texas Corporation, 122 NLRB 1289.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of 'the Respondents found to constitute
unfair labor practices as set forth in section III, above,
occurring in connection with AGC' s operations described
in section I, above , have a close , intimate , and substantial
relationship to trade, traffic , and commerce among the
several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
I have found that AGC violated Section 8(a)(5) by
its withdrawal of recognition of Local 90 and by granting
recognition to Local 1080-as collective-bargaining repre-
sentative of the millwrights in Posey and Vanderburgh
Counties and I have found that Local 1080 violated
8(b)(l)(A) by accepting recognition under the circum-
stances. The General Counsel contends that the remedy
appropriate under these circumstances includes an order
that Respondent Employers make whole the millwright
employees who lost wages as a result of the Respondent
Employers failure to honor the agreement with Local
90. It is perhaps with this demand in mind that both
Respondents dealt at length in their briefs with issues
of discrimination. I believe it is appropriate to order
that the harm done by Respondents' unfair labor prac-
tices be undone to' the extent possible. To this end
it is appropriate in my opinion that AGC should be
ordered to cease giving' effect to its contract with Local
1080, to the extent that it has to do with millwrights
in Posey and Vanderburgh Counties, and resume its
contractual relationship with Local 90 to the same extent.
I believe further that it is appropriate that Local 1080
should be ordered to cease purporting to represent mill-
wright employees in Posey and Vanderburgh Counties
" See, for example, Clement Brothers Company, 165 NLRB 698
ASSOCIATED GENERAL CONTRACTORS OF AMERICA 229
and cease enforcing or attempting to enforce its contract
to the extent that it goes to such recognition
The General Counsel appended to his complaint a
list of members of Local 90 who were purported to
be millwrights and contends that some or all of them
suffered as a result of the change Local 1080 contends
that none need have suffered, they need only have
registered with Local 1080 and if they were competent
millwrights they would have been put to work 10
The General Counsel acknowledged at the hearing
that the list of "millwrights" whom he alleges to have
suffered by reason of Respondent's unfair labor practices
is the same as a list prepared by Local 90 pursuant
to International Representative Weyler's order for a
list of all qualified millwrights who are members of
Local 90 The testimony of the Local 90 officers who
prepared the list reveals that it contains the names
of all Local 90 members who had claimed the capability
to do any millwright work whether or not they were
normally, usually, or even frequently employed in that
capacity The General Counsel made no attempt to
adduce evidence as to which employees were allegedly
available at any particular time or which jobs they
might have been sent to by Local 90 if Local 90 had
had the option This fact, especially in view of the
testimony of Lamb that not all so-called millwright mem-
bers of Local 90 were acceptable to him as millwrights,
together with evidence on the record that millwright
members of Local 1080 worked in Local 90's jurisdiction
at such time as Local 90 exercised the jurisdiction,
and, finally, in the absence of evidence whether or
not any millwrights who were members of neither Local
90 nor Local 1080 but presumably would have been
dispatched by Local 90's hiring hall had they registered
renders the entire backpay issue so conjectural as to
make it impossible to decide At the hearing I did
not see these issues as appropriate for litigation under
the allegations of the complaint before me and on more
leisurely consideration I remain convinced that this is
neither the occasion nor the forum in which such issues
should be decided The "party" affected by the unfair
labor practices committed is the local as an organization
The extent to which it has been affected appears to
be the extent to which the revenues of the Local and
of the pension, health and welfare, and other trusts
connected with employment through the Local as collec-
tive-bargaining representative have been affected by the
withdrawal of recognition In my mind this is the real
nut of the issue with regard to remedy The evidence
on the record is insufficient to determine whether in
fact any of the trusts have suffered by reason of the
fact that payments by the Employers were made to
the Trusts administered by Local 1080 and its district
counsel rather than to Local 90's However to the extent
that Local 90 suffered a loss of valid revenues by
reason of the fact that it did not operate as the hiring
hall for millwrights, clearly in my opinion it should
be made whole Accordingly, I shall recommend that
Local 1080 shall make available to the Board ' s Regional
Director for Region 25 its books and records so that
a computation may be made and that Local 1080 jointly
with AGC make whole Local 90 and the various trust
funds affected by the change to the extent necessary
With regard to the alleged loss of employment of the
Local 90 members , it appears to me that the appropriate
forum for disposition of this problem is to be found
in the grievance procedure in the contract between Local
90 and the Employer ii
Upon the basis of the foregoing findings of fact and
upon the entire record in the case I make the following
CONCLUSIONS OF LAW
1 Respondent AGC, and its members, are each
employers within the meaning of Section 2(2) of the
Act
2 Respondent Local 1080 and Charging Party Local
90 are each of them labor organizations within the
meaning of Section 2(5) of the Act
3 All practical carpenters, millwrights, piledrivers,
resilient floor layers, and all apprentices, employees
of Associated General Contractors of America, Inc ,
Evansville Chapter, and its member employers,
employed at all jobsites in Posey and Vanderburgh Coun-
ties in the State of Indiana, excluding guards, and super
visors as defined in the Act constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act
4 Local 90 has been at all times since May 15,
1967, the exclusive representative of all employees in
the aforesaid appropriate unit for the purposes of collec
tive bargaining within the meaning of Section 9(a) of
the Act
5 By withdrawing recognition on May 15, 1967, and
thereafter refusing to bargain collectively with Local
90 as the exclusive bargaining representative of its mill-
wright employees in the aforesaid appropriate unit
Respondent AGC violated Section 8(a)(5) of the Act
6 By recognizing Local 1080 as the exclusive bargain-
ing representative of its millwright employees in the
aforesaid appropriate unit Respondent AGC violated
Section 8(a)(5) of the Act
7 By accepting recognition and thereafter bargaining
for and representing the millwright employees in the
aforesaid collective-bargaining unit Local 1080 has violat
ed Section 8(b)(1)(A) of the Act
8 By interfering with, restraining, and coercing its
employees, and particularly its millwright employees,
in the exercise of the rights guaranteed in Section 7
of the Act by the actions set forth above Respondent
AGC violated Section 8(a)(1) of the Act
"' This of course ignores the fact that they would have to travel
a round trip of around 80 miles to do so and pay permit and dispatch
fees to Local 1080 for the privilege
" Art VIII I note that the grievance procedure as spelled out
therein contains no provision limiting the time within which grievances
must be submitted and provides for ultimate arbitration before a disinter
ested arbitrator
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record of the
case it is recommended that:
A. Respondent Associated General Contractors of
America, Inc., Evansville Chapter , and its member
employers , their officers , agents, successors , and assigns,
shall:
1. Cease and desist from-
(a) Refusing to bargain collectively with Local Union
No. 90 , United Brotherhood of Carpenters and Joiners
of America , AFL-CIO, as the collective -bargaining rep-
resentative of its millwright employees on jobs located
in Posey and Vanderburgh Counties, Indiana.
(b) Recognizing and bargaining with Local Union No.
1080, United Brotherhood of Carpenters and Joiners
of America , AFL-CIO, ' as the collective -bargaining rep-
resentative of its millwright employees working on jobs
in Posey and Vanderburgh Counties , Indiana, and giving
force and effect to its contract with said Local 1080
for such purposes.
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
their right to self-organization , to form labor organiza-
tions, to join or assist Local Union No . 90, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or any other labor organization , to bargain
collectively through representatives of their own choos-
ing, and to engage in other concerted activities for
the purposes of collective bargaining or other mutual
aid or protection or to refrain from any or all such
activities.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon request meet and bargain with Local Union
No. 90 , United Brotherhood of Carpenters and Joiners
of America , AFL-CIO, as the collective -bargaining rep-
resentative of its millwright employees employed on
jobs in the Posey and Vanderburgh Counties , Indiana,
area.
(b) Reinstate its contract with Local Union No. 90
to the extent that it covers said millwright employees.
(c) Withdraw and withhold recognition of Local Union
No. 1080 , United Brotherhood of Carpenters and Joiners
of America , AFL-CIO , as the collective -bargaining rep-
resentative of millwright employees in the Posey and
Vanderburgh Counties , Indiana, area.
(d) Preserve and, upon request , make available to
the Board or its agents for examination and copying
all payroll records , social security payment records,
timecards , personnel records and reports, and all records
and reports relating to payments to the trustees of
the Lower Ohio Valley Health and Welfare Trust Fund,
the Tri -State Construction Advancement Program Fund,
the Lower Ohio Valley Pension Trust Fund , the Lower
Ohio Valley Construction Industry Fund , and any other
funds to which payments were made by the Employers
by reason of the employment of millwrights in the
Posey and Vanderburgh Counties , Indiana, area.
(e) To the extent that compensation to Local 90 and
to the various pension health and welfare and other
trust funds affected by employment of millwrights in
the Posey and Vanderburgh Counties, Indiana, area
has not been affected by the transfer of funds from
the pension, health and welfare, and other trust funds
administered through Local 1080 and the Lower Ohio
Valley District Council, jointly and severally with Local
1080, make whole Local 90 and such trust funds as
are provided for in Local 90's contract with AGC.
(f) Post at the jobsites of its members as well as
at its office or offices wherever they may be found
copies of the attached notices marked "Appendix A"
and "Appendix B."12 Copies of said Appendix, on forms
provided by the Regional Director for Region 25, after
being duly signed by Respondent AGC shall be posted
by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Signed copies of Appendix B
shall be supplied by the Regional Director. Reasonable
steps shall be taken by Respondent AGC and its member
employers to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director for Region 25, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent AGC has taken to comply with
the foregoing Recommended Order.13
B. Respondent Local Union No. 1080, United Broth-
erhood of Carpenters and Joiners of America, AFL-CIO,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Accepting recognition as collective-bargaining rep-
resentative of millwright employees in the Posey and
Vanderburgh Counties, Indiana, area.
(b) Giving effect to its contract with AGC to the
extent that it covers the employment of millwrights
in the Posey and Vanderburgh Counties areas.
(c) In like or related manner restraining or coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) To the extent that compensation to Local Union
No. 90 and the various pension, health and welfare,
and other trust funds affected by employment of mill-
wrights in the Posey and Vanderburgh Counties, Indiana,
area under its contract with AGC has not been affected
by the transfer of funds from the pension, health and
welfare, and other trust funds administered through
12 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
12 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said Regional
Director, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
ASSOCIATED GENERAL CONTRACTORS OF AMERICA
Local Union No. 1080 and the Lower Ohio Valley
District Council, jointly and severally with Respondent
AGC make whole Local 90 and such trust funds as
are provided for in Local 90's contract with AGC.
(b) Preserve and, upon request, make available to
the Board or its agents for examination and copying
all records and reports relating to payments to the trus-
tees of the Lower Ohio Valley Health and Welfare
Trust Fund, the Tri-State Construction Advancement
Program Fund, the Lower Ohio Valley Construction
Industry Fund, and any other funds to which payments
were made by the Employers by reason of the employ-
ment of millwrights in the Posey and Vanderburgh Coun-
ties, Indiana, area under authority of its contract with
Respondent AGC.
(c) Post at its offices in Owensboro, Kentucky, and
at all jobsites where millwrights are employed in Vander-
burgh and Posey Counties, Indiana, copies of the
attached notice marked "Appendix B."14 Copies of said
notice, on forms provided by the Regional Director
for Region 25, after being duly signed by representatives
of Respondent Local 1080, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken
by Respondent Local 1080 to insure that said notices
are not altered, defaced, or covered by any other mate-
rial.
(d) Sign and return copies of the said notice to said
Regional Director for posting by AGC and its member
employers at all places where notices to their employees
are customarily posted.
(e) Notify said Regional Director, in writing, within
20 days from the receipt of this Decision, what steps
it has taken to comply herewith.15
See In. 12, supra
See In 13, supra
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Exam-
iner of the National Labor Relations Board and in order
to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with
Local Union No. 90, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, as the
collective-bargaining representative of our mill-
wright employees on jobs located in Posey and
Vanderburgh Counties, Indiana.
WE WILL NOT recognize and bargain with Local
Union No. 1080, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, as the collec-
tive-bargaining representative of its millwright
employees working on jobs in Posey and Vander-
burgh Counties, Indiana, and giving force and effect
231
to our contract with said Local 1080 for such pur-
poses
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their right to self-organization, to
form labor organizations, to join or assist Local
Union No. 90, United Brotherhood of Carpenters
and Joiners of- America, AFL-CIO, or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage
in other mutual aid or protection or to refrain
from any or all such activities.
WE WILL, upon request, meet and bargain with
Local Union No. 90, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, as the
collective-bargaining representative of our mill-
wright employees employed on jobs in the Posey
and Vanderburgh Counties, Indiana, area.
WE WILL reinstate our contract with Local No.
90 to the extent that it covers said millwright
employees.
ASSOCIATED GENERAL
CONTRACTORS OF
AMERICA, INC.,
EVANSVILLE CHAPTER,
AND MEMBER
EMPLOYERS OF
ASSOCIATED GENERAL
CONTRACTORS OF
AMERICA, INC.,
EVANSVILLE CHAPTER
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana
46204, Telephone 317-633-8921.
APPENDIX B
NOTICE TO ALL MEMBERS
Pursuant to the Recommended Order of a Trial Exam-
iner of the National Labor Relations Board and in order
to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our members that:
WE WILL NOT accept recognition as collective-
bargaining representative of millwright employees
in the Posey and Vanderburgh Counties, Indiana,
area.
WE WILL NOT give effect to our contract with
AGC to the extent that it covers the employment
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of millwrights in the Posey and Vanderburgh Coun-
ties area
WE WILL NOT in like or related manner restrain
or coerce employees in the exercise of the rights
guaranteed in Section 7 of the Act
WE WILL, jointly and severally with AGC make
whole Local 90 and such trust funds as are provided
for in Local 90's contract with AGC to the extent
that compensation to Local Union No 90, and
the various pension, health and welfare, and other
trust funds affected by employment of millwrights
in the Posey and Vanderburgh Counties, Indiana,
area under Local 90's contract with AGC has pot
been remedied by the transfer of funds from the
pension, health and welfare, and other trust funds
administered through Local Union No 1080 and
the Lower Ohio Valley District Council
Dated By
LOCAL UNION No 1080,
UBCJA, AFL-CIO
(Labor Organization)
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
If members have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana
46204, Telephone 317-633-8921