Associated General Contractors of California

National Labor Relations Board - Board Decisions

Jun 8, 1979

242 N.L.R.B. 891 (N.L.R.B. 1979)

ASSOCIATED GENERAL CONTRACTORS OF CALIFORNIA
Associated General Contractors of California and 46
California Counties Carpenters Conference Board,
United Brotherhood of Carpenters & Joiners of
North America, AFL-CIO and Northern California
District Council of Laborers, Laborers' Interna-
tional Union of North America, AFL-CIO. Cases
20-CA-12355 and 20-CA 12497
June 8, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On April 7, 1978, Administrative Law Judge David
G. Heilbrun issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel and the
Charging Parties' filed exceptions and supporting
briefs, and Respondent 2 filed a brief in support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The complaint alleges that Respondent-acting in
its capacity as a multiemployer bargaining represent-
ative-violated Section 8(a)(5) and (1) of the Act by
refusing to furnish the Charging Parties with re-
quested information as to the names of all AGCC
employer-members, including the open-shop em-
ployer-members who Respondent asserts are not
bound by the parties' collective-bargaining agree-
ments.
The Administrative Law Judge recommended that
the complaint be dismissed in its entirety. In so doing,
his conclusions appear totally based on attribution to
the Unions of ulterior motivations for requesting the
contested information. And such attribution is, in
turn, largely the product of speculation and conjec-
ture for the record of the hearing herein reflects no
substantial evidence in support thereof. Moreover,
the Administrative Law Judge erred in failing to ex-
amine the principal issue raised in the complaint-
whether the requested information had probable and
potential relevance to the Unions' statutory obliga-
tion to represent employees within the contractual
bargaining units-by application of well-established
principles and criteria which were approved by the
I Also referred to herein as the Unions, collectively, and as the Carpenters
and the Laborers, individually.
2 Also referred to herein as AGCC.
courts in such cases as N.L.R.B. v. Acme Industrial
Co., 385 U.S. 432 (1967), and Curriss- Wright Corpora-
lion, Wright Aeronautical Division v. .L.R.B., 347
F.2d 61 (3d Cir. 1965). For the reasons set forth be-
low, we find merit in the exceptions of the General
Counsel and the Charging Parties and conclude that
Respondent's refusal to furnish the requested infor-
mation was violative of the Act.
Respondent is a trade association which represents
firms in the building construction industry for pur-
poses, inter alia, of labor relations. It has had lengthy
collective-bargaining relationships with the Charging
Parties and, at the time the events herein arose, was
party to a 3-year collective-bargaining contract with
each of them-both contracts expiring on June 15.
1977. 3
Respondent has numerous classifications of mem-
bership which, for purposes relevant to this decision,
may be summarized as regular, specialty, joint-ven-
ture, open-shop, and open-shop specialty. As found
by the Administrative Law Judge, the AGCC-Car-
penters contract binds to its provisions all of Respon-
dent's regular, specialty, and joint-venture members.
As to the AGCC-Laborers contract, it is undisputed
that it binds, at minimum, all employer-members in
the same classifications. 4 Further, with regard to the
extent to which the operations of AGCC employer-
members are covered by the respective contracts, the
Carpenters agreement provides, in pertinent part, as
follows:
Section 9-Liability of the Parties
This Agreement is binding upon each individ-
ual employer regardless of whether or not he or
it changes the name or style or address of his or
its business.
Each individual employer, corporate or other
entity, or its successor, shall be liable under, sub-
ject to and bound by the Agreement ....
Similarly, the AGCC-Laborers contract provides, in
pertinent part, as follows:
' These contracts are referred to hereinafter as the 1974 77 contracts. Sub-
sequently. AGCC entered into further 3-year contracts with each of the
Unions which are hereinafter collectively referred to as the 1977-80 con-
tracts. Hereinafter, when references are made to contractual provisions. but
no contract date is specified, it is because the provisions discussed are iden-
tical in both the 1974-77 and 1977-80 agreements.
4The Charging Parties assert that the Laborers agreement binds "all"
AGCC members (including those in the open-shop membership categories)
and except to the Administrative Law Judge's conclusions to the contrary.
As the Administrative Law Judge, in analyzing this issue, failed to give an)
consideration to. or even mention. the contract's sec. 16(a)-which, on its
face, states that it "shall be binding upon all persons, firms, or corporations
that . . are. or dunng the term hereof become, members of the Employer" -
we give no weight to his conclusions. However. we need not and shall not
pass upon this issue as it was not fully litigated at the heanng and neither the
General Counsel nor the Charging Parties assert contract coverage ot "all"
AGCC members as a basis for establishing the relevance of the requested
information which is the subject of this litigation
242 NLRB No. 124
891
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 30-Change of Name or Style
This Agreement is binding upon each individ-
ual employer regardless of whether or not he or
it changes the name or style or address of his or
its business. Each individual employer shall give
notice in writing to said District Council of any
intent to change the name, style or address of his
or its business, or to perform business under
more than one name or style or at more than one
address, prior to the adoption of a new or differ-
ent name, style, or address, or the addition of
new names or styles or addresses, as specified
herein.
Nothing in this paragraph shall be construed
as adding to the scope of work covered by this
Agreement.
Prior to 1972, all AGCC members were concededly
bound to Respondent's contracts with the Carpenters
and Laborers, to the extent that such individual mem-
bers had employees in the job classifications covered
by those agreements. In 1972, for the first time,
AGCC established an open-shop membership classifi-
cation for general contractor members who did not
authorize it to act as their collective-bargaining repre-
sentative and who employed no personnel covered by
a collective-bargaining agreement. Subsequently, Re-
spondent established an open-shop specialty classifi-
cation for contractors other than general contractors
who met the same conditions.
Before the establishment of the open-shop mem-
bership classification, it had been Respondent's cus-
tom to supply the Unions with the complete AGCC
membership roster, as periodically supplemented by
notifications as to new members and resignations.
Starting in 1974, Respondent substituted for its full
membership list a document entitled "Membership
Roster for Collective Bargaining Purposes," which set
forth only regular, specialty, and joint-venture mem-
bers and excluded, inter alia, the open-shop and open-
shop specialty members.
Following the execution of the 1974-77 agree-
ments, Respondent nurtured the expansion of open-
shop activity by its members and prospective mem-
bers by sponsoring seminars and programs for mem-
bers and the public where advice was given pertain-
ing to the technical details of open-shop and double-
breasted operations,5 the difficulties members would
5The term double-breasted is used to describe contractors who operate
two companies, one unionized and the other nonunionized or open-shop.
Depending on the underlying facts and circumstances of each case, the em-
ployees of both constituent companies may be held to constitute a single
appropriate bargaining unit or the employees of each may be held to form
separate units. In the former case, the collective-bargaining agreement cover-
ing the employees of the unionized firm may be held to cover the employees
of the nonunion firm as well; or the employer may be ordered to bargain on
behalf of both firms with the union which had represented the unionized
have in changing their styles of operation, and the
guidelines which should be followed to assure that-
in the case of double-breasted construction-the de-
gree of separation maintained between the two opera-
tions (union and open-shop) is sufficient to avoid ap-
plication of the collective-bargaining agreement to
the nonunion enterprise. Also, AGCC established an
open-shop committee and sought to set up nonunion
employee referral, fringe benefit, and apprenticeship
programs. The Unions became aware of these AGCC
activities as well as of publications of the national
Associated General Contractors of America which,
inter alia, gave instructions on double-breasted and
open-shop operations and suggested the phasing out
of union operations and withdrawal from multiem-
ployer bargaining units. The number of AGCC open-
shop members, in seeming response to such stimulus,
increased over the years-from 10 in 1974 to approxi-
mately 60 at the time of the hearing in this case.
On December 27, 1976, the Carpenters sent Re-
spondent a letter stating, in pertinent part:
... this is a formal request that you submit to us
a roster showing the names of all members of the
AGC, including those whom you contend are
not bound by the Master Agreement negotia-
tions.
All we are seeking is a roster of contractor
members. It is very important with respect to our
contractual positions with the AGC. We feel you
have an obligation under Section 8(a)(5) of the
Labor Management Relations Act of 1947, as
amended, to supply that information in connec-
tion with current ongoing negotiations.
Then, on February 3, 1977, the Laborers and Carpen-
ters sent Respondent substantially identical letters
which-after acknowledging receipt of notifications
from AGCC containing the names of new members
and member resignations-went on to state:
Please advise if any of these members have
joined your Open Shop Division and give us a
copy of the Open Shop Division Roster so that
we can compare for ourselves. We want to know
if there has been a change of names of any of
these contractors and in what capacity they may
have joined another branch of your organization.
Later in 1977, at the beginning of contract negotia-
tion sessions, representatives of the Laborers and Car-
penters again requested AGCC to supply complete
membership rosters, stating that such information
was also needed to police better the collective-bar-
portion of such a double-breasted operation. See, for example, Don Burgess
Construction Corporation, 227 NLRB 765 (1977); R. L. Sweet Lumber Com.
pany, 207 NLRB 529 (1973). enfd. 515 F.2d 785 (10th Cir. 1975), cert. denied
423 U.S. 986.
892
ASSOCIATED GENERAL CONTRACTORS OF CALIFORNIA
gaining agreements and to enforce contractual provi-
sions governing the collection of fringe benefit contri-
butions from employers. As found by the
Administrative Law Judge, Respondent refused, and
continues to refuse, to furnish the Unions the re-
quested information.
At the hearing, and in various communications be-
tween the parties prior thereto, the Unions expressed
their need for the requested information on a broader
basis. One of their principal reasons appears to be
fear that Respondent's actions have fostered growth
in the relative number of open-shop employers and
volume of nonunion construction:5 and that. as a re-
suIt thereof, some AGC'C employer-menmbers who are
hound to AGCC's collective-bargaining agreements
with the Unions have. in whole or in part, attempted
to escape their contractual obligations hy changing
their names. styles, and corporate status and/or b\
creating double-breasted or alter cg, operations I lhe
record herein establishes that, in fact, some A(i(CC
members in open-shop membership categories tdo
share elements of common onership and common
officers with other A(iCC members who are conced-
edly bound by AGC("s contracts with the Unions,
and that AGCC has not reported these facts to the
Unions.
It is well established that, under Section 8(a)(5) of
the Act. an employer is obligated to provide a union
with requested infrmation if there is a probability
that such data is relevant and will be of use to the
union in fulfillng its statutory duties and responsibil-
ities as the employees' exclusive bargaining represent-
ative. N. L. R. B. v. Acine Indu.vtrial Co.. supla. And the
fact that the requested information may relate to em-
ployers and employees outside the represented bar-
gaining unit does not. by itself, negate its relevance."
Moreover, here one of the Union's principal purposes
in securino such information was to facilitate inqLiiry
into that very question i.e.. whether some of'
At the hearing, the (;eneral (ounsel illrodluccd nito c idence thile -car
historical ecord kepl hb the (Carpenters pension flund which lilt the
monthly I tota ltor carpenters emnpl ed i ndi reported holar workedl tor
fringe benefit contribution purposes) n consiruion coerced hs the A(i ( -
Carpenters contract It shows a generall) dleclling trend ill the nnther t
carpenters employed and similar decline in hours worked which resulted in
a diminution of pension fund conlrihbution h the coscred enlploser.
*The U ilons contend that. under the prol i.* iof ec. 9 the \(i( ( -
Carpenters contract and sec 3(0 if the A(;('(-laboerh conirct. ipri. r he
nonunion scrmelits ot double-hreasted operations .are coered b h their re-
specllve collective-hargalrlinng Igreements., andl thatl lich w iltheir intelll ill
negoti. .ng those provs isions. I adiliion Ito ti.rs tIll their bargaining linils
are eing eroded bh) the operall,ns ift dublk-hrea;lte en plers. he thlilons
also expressed concern that emplo)ers bound to their contrlact were closilng
out unionized firms while opening tie', nonunion, c.ompanies which would
proceed tt) join AGCC in open-shop merrthership categories I he I nions
contend that sees. 9 and 30. respectisely. ol their agreements serve to hind
such new. allegedly nnuniln, firms as well
C (Curtis- Wrtgh ('W rpgtltiorlt s 1 . R B Lqalt. I1,l,,iv, Br a ndld. /It . 142
NLRB 304 1963). enfd 324 I:.2d 956 (5th ('Cr.). cert delied 377 S 921
( 1964) Cf Rodnre trnd Judith .1 /ltil. dlhi o 1i 4dtlsm I/sturin ( iripu,l 2 19')
NLRB 211 1975).
AGCC's open-shop members are, in fact, bound by
the Unions' contracts and included in the represented
bargaining units.
Respondent's executive director testified that
AGCC conformed with the provisions of section 9 of
the Carpenters contract and section 30 of the Labor-
ers contract. supra, by regularly informing the Unions
as to any name, address, or business style changes
effectuated by AGCC employer-members who were
bound to the respective labor agreements. But he con-
ceded that no such reports were ever made with re-
spect to AGCC open-shop members who shared ele-
ments of common ownership and/or common officers
with firms in membership categories which were ad-
mittedly bound to the Utnions' contracts. Clearly, Re-
spondent effectively determined, entirely by itsell:
that those open-shop members were not the same em-
ploving entities as the unionized firms with which
thes, appear to have some relationship.9
lo exercise their statutory responsibilities with
respect to both contract administration and contract
negotiations- the Unions are entitled to have equal
access to the same data so that they may intelligently
evaluate the facts and. thereby, reach their own con-
clusions on whether or not to pursue remedies for
possible contract violations or to seek provisions in
the contracts under negotiation which will serve to
preserve the integrity of their respective bargaining
units and the financial stability of the contractual
fringe benefit funds which have been adversely a-
fected by the downward trend in work-based em-
plo)er contributions. Therefore, Respondent's duty to
bargain in good tailh obligates it to furnish such in-
formation to the U nions even though it maintains
that it has in estigated the applicants for AGCC's
open-shop membership classifications and has ascer-
tained thatt those admllitted to such memberships were
Respolndentl' ecutie dlrclor testified that the great mjoritls f it
rpen-sholp .and oipenll--lop specia.lt memhers hase no relatlinship swhatese
with consrtlllton filmis whlch are hound to colllecti e-bargatining agree
nellts Ad, i., to he mIllnoritl it pen-shop llembers who d has e sme
such connection, A(i('C delermilled wihout consultatiin. or the sharing o
informaltion, wth the L nions thait the degree of' ,epar.lltlin n.lltained he
ta een two w ings ot such double-breasted operations was suticienl to free the
open-shop irtlls trom any cn tractual oblhgations kInder the colleCtlie-bar
gailing greements bihnding the relried unioinized tirms
W'ilh respeil to Respondent's initial determinm;latn o,' whetlhr there s Ian
relalionlship hateser herteeil particular open-shop members and member
tbounld it labor coritracls. the record fails to establish that .ACG('( insestiga-
tillls re thorough and complete Ior. Respondent's eecutive director con-
ceded hat he onls learnled from UInion evidence at the hearing tha.t a specifi
p;air of its elploser-nlembers bore a double-breasted relationship toward
one alnother And. ireover, Respondent oIffered no explanaltion fr the licl
Ih;ll the cllectise-bargasnng membership rosters it supplied to the Carpen-
lers and Laborers cntained difflerences between them with respect to the
listigs it regular and ioint-senlture emploer-nlembers whto were represent-
ed by A(;('(C tor coliectise-hargaining purposes
I'he ahbie-niotcd factors. in our view, lend supporting weight to the
Ulnilns' csntlenti on that lt define sharpl) the ldilimesilons iot the represenlted
bahrgaining units the must know the names of both the AG('C members
concededil) hbind to their ciontr.cts nd the A(;CC('(' ienbers who Respon-
dent contenll.s .re not soI b)lnd
893
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not covered by any subsisting collective-bargaining
agreements. For, whatever the eventual merits of the
Unions' claim that their contracts are being violated
and their bargaining units unlawfully diminished,
they are entitled to the requested information under
the "discovery-type" standard enunciated in N.L.R.B.
v. Acme Industrial Co., 385 U.S. at 437, to judge for
themselves whether to press their claims in the con-
tractual grievance procedure, or before the Board or
courts, or through remedial provisions in the con-
tracts under negotiation. The Torrington Compan v.
N.L.R.B., 545 F.2d 840 (2d Cir. 1976). It is certainly
well within the statutory responsibilities of the
Unions to scrutinize closely all facets relating to the
diversion or preservation of bargaining unit work
and, therefore, they are fully warranted in any rea-
sonable probing of data concerning the exclusion of
the employees of certain AGCC members from the
bargaining units.'"
On the basis of the facts and circumstances set
forth above, we conclude that the information sought
by the Unions was relevant and necessary to their
administration of the contracts between them and the
AGCC, to the intelligent assessment of the advisibil-
ity of filing grievances or taking other remedial ac-
tion, and to the formulation of related collective-bar-
gaining proposals in the then-pending negotiations.
As, in our view, the relevancy of the requested in-
formation was established at the hearing,' there was
no justification for the Administrative Law Judge's
conjecture that the Unions' underlying purpose was
to facilitate the organizing of nonunion companies.
Even assuming, arguendo, that the Unions also de-
sired the requested information for such organization-
al use, it is well established that, where a union's re-
quest for information is for a proper and legitimate
purpose, it cannot make any difference that there
may also be other reasons for the request or that the
data may be put to other uses. Utica Observer-Dis-
patch, Inc. v. N.L.R.B., 229 F.2d 575 (2d Cir. 1956).
Accordingly, we find that Respondent's refusal to
furnish the information requested by the Unions was
violative of Section 8(a)(5) and (1) of the Act.
The Remedy
Having found that Respondent engaged in certain
unfa;r labor practices, we shall order it to cease and
'O Nl..R B v. R(kwell-Standard Corporation, Transmission and Axle Divi-
sion, Forge Division, 410 F.2d 953, 957 (6th Cir. 1969): Curtiss-Wright Corpo-
ration v. N. L.R. B. supra.
i] Even assuming, arguendo, that the information sought was not otherwise
presumptively relevant to the Unions' representation of the unit employees
under the "discovery-type" standard of N.L.R.B. v. Acme Industrial (Co.
supra, it has been clearly established on the record here that such informa-
tion was in act relevant and necessary in connection with the particular
matters then in dispute between the Unions and Respondent.
desist therefrom and to take certain affirmative action
designed to effectuate the purposes and policies of the
Act.
Accordingly, Respondent will be ordered, upon re-
quest, to furnish the Unions with the requested infor-
mation hereinbefore found relevant and necessary to
both contract administration and contract negotia-
tion: specifically, Respondent's full membership ros-
ter, including the portion which contains the names
and addresses of its open-shop and open-shop spe-
cialty members. Said roster shall be supplemented by
periodic notifications of additions and deletions
which shall be given with the same frequency as Re-
spondent has heretofore followed in notifying the
Unions of modifications in its roster of regular, spe-
cialty, and joint-venture members.
CoNlUSIONS OF LAW
I. The Respondent, Associated General Contrac-
tors of California, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. 46 California Counties Carpenters Conference
Board, United Brotherhood of Carpenters & Joiners
of North America, AFL-CIO, and Northern Califor-
nia District Council of Laborers, Laborers' Interna-
tional Union of North America, AFL CIO, are labor
organizations within the meaning of Section 2(5) of
the Act.
3. By refusing to furnish the above-named Unions
with information necessary and relevant to their ad-
ministration and negotiation of collective-bargaining
agreements with Respondent, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Asso-
ciated General Contractors of California, San Fran-
cisco, California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with 46 Cali-
fornia Counties Carpenters Conference Board,
United Brotherhood of Carpenters & Joiners of
North America, AFL-CIO, and Northern California
District Council of Laborers, Laborers' International
Union of North America, AFL-CIO, by refusing to
supply relevant information upon request.
894
ASSOCIATED GENERAL CONTRACTORS OF CAL IFORNIA
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Furnish, upon request, to said Unions its full
membership roster including the portion that lists the
names and addresses of its open-shop and open-shop
specialty members, as periodically supplemented in
the manner provided in "The Remedy" section of this
Decision.
(b) Post at its offices, and at the offices of all its
employer-members, copies of the attached notice
marked "Appendix."' 2 Copies of said notice, on forms
provided by the Regional Director for Region 20, af-
ter being duly signed by Respondent's representative,
shall be posted by Respondent and by each of its
employer-members immediately upon receipt thereof,
and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employer-members employees are
customarily posted. Reasonable steps shall be taken
by Respondent and its employer-members to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
12 In the event that this Order is enforced by a judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with 46 California Counties Carpenters Confer-
ence Board, United Brotherhood of Carpenters
& Joiners of North America, AFL-CIO, or
Northern California District Council of Labor-
ers, Laborers' International Union of North
America, AFL-CIO, by refusing, upon request.
to furnish information necessary and relevant for
the Unions' use in policing, administering, and
negotiating collective-bargaining agreements be-
tween us and the Unions.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WL WVllL, upon request. furnish the aforesaid
Unions with copies of our full membership ros-
ter.
Asso'IAIED GENERAI. CONTRA('TORS OF
CAIIFORNIA
DECISION
SIA1-FMFNT t)I ItHE CASL
DA\II) G. HEILBRtIN Administrative Law Judge: This
case was heard during January 1978. in San Francisco.
California. based on a consolidated complaint alleging that
Associated General Contractors of California. called Re-
spondent, has refused to furnish certain requested informa-
tion which is assertedly relevant to the performance of du-
ties as exclusive collective-bargaining representative for
employees working in construction trades as carpenters and
laborers by 46 California Counties Carpenters Conference
Board. United Brotherhood of Carpenters & Joiners of
North America. AFL-CIO, called Carpenters, and North-
ern California District Council of Laborers, Laborers' In-
ternational Union of North America. AFL-CIO, called La-
borers, respectively, and has thereby violated Section
8(a)(1) and (5) of the Act.
Upon the entire record, my observation of witnesses. and
consideration of post-hearing briefs, I make the following:
FINDIN(S OF FA(r AND RESULTANT CON(LL SION OF LAW
Respondent is a trade association primarily representing
contractors, and to a lesser extent other firms allied with the
construction industry.' Reflecting a lengthy collective-bar-
gaining relationship with numerous unions, Respondent is
currently party to 3-year contracts with the Carpenters and
Laborers which succeeded agreements bearing a June 15.
1977, expiration date. Respondent classifies its members as
regular, open-shop, joint-venture, honorary, specialty. lim-
ited-specialty open-shop specialty, and affiliate. Nonopen-
shop members are bound expressly or by clear implication
to at least two collective-bargaining agreements by virtue of
documentation executed during the application process.
The application form used to initiate either type of open-
shop membership is silent on the subject of collective bar-
gaining. Open-shop became an organic category of mem-
bership in 1972.
This case spins off a nationally manifesting phenomenon
that is broadly termed the open-shop movement. Several
theories are held as to impetus, status, and prospects for this
subject. It is variously attributed to a push for minority
employment in the domestic construction industry, report-
edly prohibitive costs of bidding with anticipation of em-
ploying union labor, entry of nontraditional employees into
' Respondent, a voluntary association of California employers engaged In
the building and construction industry, maintains its pnncipal headquarters
in Sacramento, California In the course and conduct of annual business
operations by Respondent's employer-members. goods and materials valued
aggregately in excess of S50.000 were purchased and received directly by
such employer-members from suppliers located outside California. I find
Respondent to be an employer engaged in commerce ithin the meaning of
Sec. 2(2). (6). and (7) of the Act. and that Carpenters and l.ablrers are each
labor organizations within the meaning of Sec 2(5).
895
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the field, and changing ethics among those aspiring to be
construction workers. The subject is of at least decade-long
evolution as indicated by trade journal articles of the late
'60s. "Open Shop Group Urges Labor Changes," Engineer-
ing News-Record. 10/24/68, p. 81 reported the 11th Annual
Convention of the Associated Builders and Contractors,
Inc. (ABC), the national association of merit (open-shop)
contractors, as then claiming 2.300 member firms in 18
States. The following year brought "The Open Shop Voice
Grows Loud and Clear." Engineering News-Record, 11/27/
69. pp. 44-46 reporting growth of ABC to 200 chapters and
the AGC's "first national open shop conference," one "pub-
licly recognizing the fact that 35 percent of its 9,000 mem-
bers operate open shop." During an address to the Sheet
Metal and Air Conditioning Contractors' National Associ-
ation, Edward J. Carlough, president of the Sheet Metal
Workers International Association, AFL-CIO, proposed
attitudinal changes, elimination of jurisdictional disputes.
and wage scale realism in the context of slackened competi-
tive position of union contractors and curtailed employ-
ment opportunities for members of his labor organization.
"Contractor Relations on Upgrade: Union Seeks 'Drastic
Changes' to Compete Against Open Shops." Air Condition-
ing, Heating & Refrigeration News, 11/8/76, pp. 5 6. The
passage of time has simply heightened awareness of this
subject, as illustrated by the feature cover story updating
status of open shop or double breasted operations, which
were thought to now constitute a "majority of all construc-
tion in the U.S." "Open Shop Construction Keeps Growing
Bigger. Getting Stronger," Engineering Newcs--Record, 10/
27/77, pp. 20-24.
Over the years following 1972, Respondent nurtured
open-shop activity in two chief ways. It unabashedly spon-
sored public programs on open-shop operations, and en-
dorsed detailed written materials that had been prepared on
the subject. In a separate vein, Respondent pressed the
California Department of Industrial Relations to approve a
"non-traditional" apprenticeship program for the develop-
ment of multiskilled, generically titled "construction work-
ers." Consistent with this general theme. Respondent fur-
nished the Union a bound membership directory styled
"Membership Roster for Collective Bargaining Purposes,"
in which neither open-shop nor open-shop specialty mem-
bers were listed. As these dynamics unfolded over several
years, various formal and informal communications passed
between Respondent and signatory unions of' this litigation.
Victor Van Bourg, attorney for the Carpenters. was advised
during negotiations for the 1974-77 contract that open shop
classifications existed: a communication that resulted in
side letter dated August 14. 1974, which addressed the is-
sue. For the Laborers. its Business Manager Sal Minerva
testified that he did not become aware of the distinction
until ' 75. Van Bourg (otherwise also ad hoc counsel to the
Laborers) filed a United States di(rict court ac!ii in ehb-
ruary 1975 in which the Carpenters. as plaintillff. alleged
exploitation of' open-shop principles by Respondent in con-
spiratorial fashion warranting damages (provable. trebled.
and exemplary) totaling $825.000().000. This action is pend-
ing before the Ninth Circuit. on appeal from dismissal. A.
end of the 1974-77 contract period neared. both unions
made unequivocal request for disclosure of all pen shop
members, pressing a position that representation of such
class of members by Respondent would be violative "of law
and our Agreement." This was declined both by inaction
and concurrent dialogue in which officials of Respondent
made known their intention to keep the open-shop roster
confidential. These charges followed in January 1977.
It is fundamental to any application of the "relevant and
necessary" doctrine relating to disgorgement of employer-
controlled information that the bargaining unit(s) involved
be clearly known. Here the consolidated complaint origi-
nally vaguely pleaded unit in terms of "certain employer-
members" employing persons in applicable craft work. This
phraseology, amended before imminent close of hearing,
seems traceable to the original charges, in which no more
descriptive statement was made than one referring to col-
lective-bargaining agreements entered into "on behalf of
[Respondent's] affiliate members." In fact, a recognition
clause with gradations of' clarity between the two descrip-
tions exists in both agreements.2 In the order of Carpenters
and Laborers, they read:
!MPI.()YIFR IMBIIRSIIII
This Agreement shall be binding upon each and every
regular, specialty and joint venture member of' the Em-
ployer expressly recognized elsewhere by the Union as
the sole and exclusive bargaining representative for
their respective members. present and future, who are
or hereafter become members] performing work under
this agreement with the same force and effects as if this
Agreement were entered into by each such member
individuailly. All such membhers of' the Employer shall
be and remain liable under this Agreement for and
during the termi hereof, irrespective of' whether such
members shall resign from the Enlmploser prior to the
expiralion date of this Arecementen and such liability
shall he dccred to have survived the termination of
said membership anid remain in force for and during
the term of this Agreement ... (Section 6.)
LUnion's Recognition of ('olleci,,e-Bargaining
Representative of' lmployer
I'he Union hereby recognizes and acktlowledges that
the Collective Bargaining Representatie of' Im:plocr
includes in its meminbership a llajoril of the indi idual
employers in the highway. geneiral building and ea\
COllStl'ruction industry. ad said iidisl tilill dIpll)ers
are performing. the greater percentage of work Ithre.
B rs onsl of such Lacts Ithe 'ioll herebl rco1ni/c,
that the ('ollxctive Bargaliniig Represenlltime el I t
t'mnployer, as herei;above refirred 1. is the cIlecti\C
bir'gaining rfcprcseltllise tor aill per.sois. firlms, or cr-
poration \ho ire now(1 otr helealter ma . become ineil-
hers of ,1n1 emClplo\r organi/lltiton that is Io, (1'r here-
ltler a1nd ria ; he signatlor) or hbound herclo of ;!
i o t lic lf. ' 1III perie l .1 o i. I l Ir ,mll l he 1I'74 77
tonllrcil\ t-lt
I
.t n l flik.' .,iJalk t'ilte on ''¢c, 121 li t. ,. .iJ
896
ASSOCIATED GENERAL CONTRACTORS OF CALIFORNIA
individual employer who is not a member of any such
employer organization, and who is or hereafter may be
listed on a membership list or roster or becomes signa-
tory hereto with respect to highway. general building
and heavy construction industry in the territory subject
to this Agreement. (Section 2A.)
The recognition clause of the Carpenters' agreement beg-
gars extensive comment. It is expressly limited to three clas-
sifications of AGC membership. each of them commonly
viewed within the industry and otherwise of plain meaning.
The language is harmonious with established membership
processing, particularly insofar as Respondent entertains
applications. classifies members, and establishes dues for-
mulae. As to dues, a basic approach of minimums and
maximums obtains, within which actual calculations of
payment is based on volume of business done. "labor over-
ride,"' and special provisions applicable only to joint ven-
tures and affiliates., The dues patterns that pertain to spe-
cialty, limited-specialty, and open-shop specialty members
are similar to their broader counterparts. Cost of member-
ship for the first two is a minimum plus hourly based labor
override: that for the third category of open-shop specialty
is volume based with a minimum. From this no ambiguity
remains and scope of the Carpenters' contract is properly
thought of as being coextensive with the three membership
classes, each of which is fully set forth in the "for collective
bargaining purposes" roster and periodically updated in
reasonable manner.
Substantially more analysis is required to fathom just
what the reecognition clause of the Laborers' contract cov-
ers by intent and effect. Sntactically abstruse, of convo-
luted composition. and at points simpls undecipherable. the
two sentences comprising section 2A cannot ield ans sure
meaning.' The oddness of phrasing is first noticed in the
term "Collective Bargaining Representative of Emplo er"
(presumably attemptedly reiterated in the same sentence b3
unexplainable addition of definite article "the"). This
quoted term is memorialized in the agreement as the object
of the Laborers' fundamental recognitional act tor purposes
of labor-management dealings. The section continues with
an awkward binding of employers "signatory or hereafter]
bound" plus those "listed on a membership list or roster."
termed in context of "'ant employer organization [emphasis
supplied]." The essential vice in the General Counsel's case
here is that open-shop members are specifically not hound
to contracts, nor are the) within the intendment of a mem-
The labor oerride acet of' membership dues s fr regular remhers "I-
1/2 cents per hour lor each man-hour Fsorked ulnder bargaining gree-
ments neoiated b AG;(']." and for open-shop letmber 5$2 per month "for
each oh site emplosee usorking 50 or more hourJ in an. one month"
r the previousls disc ussed side etter. tbrnling an integral prrt of he (ar-
penters' former contracl. stales. ier 'hai "Sections 6 and 9 (iilht 5i of the
Parties) 'f the nels negotialed Agreement hall he interpreted as appl ing
only to regular. Specialt and Joint Ventuire members of our Assoclatiin"
This characteristic is nt without some it;idalog to the reported siluiion
Iof the General (ou csel declining to issue a ctmplaint agilinsl Assisated
General (Contractors il (alitorni. Respondet here. .hen it LIitcriallk
modified subconilrilcllng phrlseoilogg of mn:lser abr igremenents hich were
unlawful Ion their face under ( ntrs// ( nIlrlt, il, ( 1, s Pllinlhtr* ' A SIM-
tiers inccal clltin , l/.(X et 421 .S 616 11 975, it step proieested h the
filing of untair labor practice charges he arious labor orginizatlins Inlud-
ing Elesen Southern (alilornial ('onierence ,I (rpenters. c,,unierpa-t lor
much oi the rest ot ('Calitrnia as (arpenlets here 1-,I c( tud (t,-,rfl/ ( it-
Iract,/r / (Cal/oru, et / 95 RRI 1540 1977).
bership listing when done expressly not for collective-bar-
gaining purposes. It would distort common meaning of as-
sociation bargaining practices were the open-shop firms to
be considered within the Laborers' bargaining unit when a
sophisticated agency relationship is rooted just oppositely.
For this reason I decline to hold that such dissembled
phraseology serves to bind all Respondent's members to the
Laborers' contract.
The Unions' quarrel with Respondent is essentially one
to be handled in the organizational forum, a point that has
received belated recognition at the highest levels with ex-
tensive publicity of the very fact that California becomes a
target area for the effort. "The Building Trades Find Team-
ster Allies." B.ine.s W eek. February 27. 1978. Respon-
dent's choice of creating and fostering its open-shop divt-
sion is an institutional matter: one that differs not in
principle from the controversial establishment several years
ago of coalition bargaining as a technique believed benefi-
cial to overall goals of the union movement. While disclo-
sure of the open-shop roster would well assist these Charg-
ing Parties. plus their higher affiliates, in research and
strategy planning, it cannot be said they have that entitle-
ment under doctrine of whether certain information is rel-
evant and necessary to fulfillment ofa representational role.
'lo grant this would smack of participating in the notorious
"top down" mode of organizing employees. Additionally,
the ease of corporate restructuring and quasimultiple use of
contractor registration procedures are legislative concerns
within the State's jurisdiction. or well suited to adjudica-
tions under NLRA Section 301. In the same sense, unsuc-
cessful efforts to legitimatize a nontraditional apprentice-
ship program does not weigh against Respondent. The
unions complain of imperfection in Respondent's ability to
ad.ise of' regular Southern California members operating
temproraril, north of defined jurisdictional boundary, and
of unnecessar exposure to. or practically entrapment with,
unintended Section 8(hl(7) prioceedings. The answer here is
still most compellingly that labor organizations must accept
minimal resposibilitl for their organizational needs. ard
improper conlduct rsulting in CP charges invariably fl-
lows some introductory comnlunication with the affected
employ er. (. BuildinK rli / (Con.tructrion Trades Countcil o
Fond Du La ( lunti. 168 N LRB 599. 606 (1967): Hqfman
v. International 4 .sn. !/ 7Tlheatrical & Stage Emplo e.s. ctc..
Local 6ll. 81 I.RRM 2759 (1972). Conenience is not
equatable with necessity. ad both Carpenters and I.abor-
ers are essentially unimpeded in their function as part to
construction industry contracts that relate onlx to Respon-
ldent's majlr traditional arm. (:. I.ocal /.?. Dcfrll 'cvt 'le -
/pt r l'ri/ing fld Graphic t m)ntlonlcoiions Lim /i. (t ilt'
OaAlod I'rs (',.. i/¢ ) 233 NI RB 994 11977). Only a la-
tent validits is present in the Lnions' protest. Their basic
Liiling i to have yet secured language within the collectise-
bargaining agreements that adequatel 3 identifies tpes orf
emplo,ers for wuhom they enlOy recigititon. When and it
suilch point Is reaLched. i wuld then e tineill to addlcsss
the h:aiti ssue here in terms ot a right to talngible extlrinsic
inlormniationl about other facets of Respondent's orginiza-
tionai structure. he (ieneral ('ounsel's brief artfull) traces
the settled principles of disclosure herc presumptile.
probable. or potcntial relesance is legitiimately show, n. I1
the last anali sis. the case beconies ntie of whether ronlunion
897
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
construction firms may purchase the administrative and
promotional services of an industry support mechanism,
without further entanglements stemming from a separately
existing labor relations function. I believe a negative answer
would overreach to the detriment of basic Section 7 rights
as preserved to employees.
Accordingly. I render a conclusion of law that Respon-
dent has not violated the Act as alleged. and issue the fol-
lowing recommended:
IRecommended Order flr dismissal omitted from publi-
cation.
898