Associated General Contractors of California, Inc.

National Labor Relations Board - Board Decisions

Sep 23, 1975

220 N.L.R.B. 540 (N.L.R.B. 1975)

540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Associated General Contractors of California, Inc.;
and Engineering and Grading Contractors Associa-
tion of California, Inc. and Associated Independent
Owner Operators , Inc. and Teamsters Local Union
Nos. 94, 137, 150, 216, 287, 291, 315, 386, 431, 439,
490, 533, 624, 684, 890, 912, 980, International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America , and Heavy , Highway,
Building and Construction Teamsters Committee
for Northern California , Parties to the Contracts
Associated General Contractors of California, Inc.;
and Engineering and Grading Contractors Associa-
tion of California , Inc. and California Dump Truck
Owners Association and Teamsters Local Union
Nos. 94, 137, 150, 216, 287, 291, 315, 386, 431, 439,
490, 533, 624, 684, 890, 912, 980, International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, and Heavy, Highway,
Building and Construction Teamsters Committee
for Northern California , Parties to the Contracts
Associated General Contractors of California, Inc.;
the Building Industry Association of California,
Inc.; and the Engineering and Grading Contractors
Association, Inc. and Associated Independent Own-
er Operators, Inc. and California Dump Truck
Owners Association and Joint Council of Teamsters
No. 42; Teamsters, Chauffeurs, Warehousemen and
Helpers Local 87; Sales Drivers and Dairy Employ-
ees Local 166 ; Chauffeurs, Teamsters and Helpers
Local 186; General Truck Drivers , Warehousemen
and Helpers Local 235; Teamsters and Warehouse-
men Local 381 ; Building Material and Dump Truck
Drivers Local 420; General Truck Drivers , Chauf-
feurs and Helpers Local 692 ; Truck Drivers, Ware-
housemen and Helpers Local 898; and General
Teamsters , Chauffeurs, Warehousemen and Help-
ers Local 982, all affiliated with International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, Parties to the Con-
tracts . Cases 20-CA-9442, 20-CA-9565,
20-CA-9810, and 20-CA-9811
September 23, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On May 6, 1975, Administrative Law Judge Rich-
ard D. Taplitz issued the attached Decision in this
proceeding. Thereafter, the parties filed exceptions
and briefs were filed by Respondents, the Parties to
the Contracts, the Charging Parties, and the General
Counsel and an answering brief was filed by South-
ern California Employers.
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 with minor modifications
the rulings, findings, and conclusions of the Adminis-
trative Law Judge to the extent consistent herewith.'
ORDER
A. Associated General Contractors of California,
Inc.; and Engineering and Grading Contractors As-
sociation of California, Inc.; their officers, agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Bargaining with Heavy, Highway, Building
and Construction Teamsters Committee for North-
ern California; or Teamsters Local Union Nos. 94,
137, 150, 216, 287, 291, 315, 386, 431, 439, 490, 533,
624, 684, 890, 912 , or 980, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, as the representative of the employ-
ees of their employer-members who were covered by
the collective -bargaining agreement known as the
Master Agreement entered into on September 23,
1971, between said Employers and said Unions, un-
less and until said Unions have demonstrated their
exclusive majority representative status pursuant to a
Board-conducted election.
(b) Maintaining, enforcing , or giving effect to the
1974 contract which has been executed between
those Employers and those Unions covering said em-
ployees or to any extension, modification, or renewal
of said contract , unless and until said Unions have
demonstrated their exclusive majority representative
status pursuant to a Board -conducted election.
(c) Entering into any collective-bargaining con-
1 The Administrative Law Judge 's recommended Order fails to attach
proper significance to the fact that the parties had previously entered into
valid collective -bargaining agreements and that the signatory Unions have
acquired a certain status as the incumbent bargaining representatives of the
employees here involved. By recommending that Respondents now be affir-
matively required to withdraw and withhold recognition from the northern
and southern California Unions, the Administrative Law Judge has ordered
Respondent to refrain from doing a permissible act under Board law; name-
ly, to represent employees in matters arising under the existing terms and
conditions of employment . All that is required is that Respondents refrain
from bargaining and entering into collective -bargaining agreements until
the question concerning representation has been resolved. Our Order will so
provide In view of this determination herein , we deem it unnecessary to
rely on nor do we pass on the Administrative Law Judge's analysis of the
application of Sec . 8(f) of the Act to succeeding collective -bargaining agree-
ments as discussed in fn. 9 of his Decision.
220 NLRB No. 93
ASSOCIATED GENERAL CONTRACTORS 541
tract at a time when a real question concerning repre-
sentation has been raised.
(d) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
the rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action to effectu-
ate the policies of the Act:
(a) Set aside their existing collective -bargaining
contracts with said Unions.
(b) Post at their offices, and at the offices of all the
employer-members of said Associations, copies of
the attached notice marked "Appendix A."2 Copies
of said notice , on forms provided by the Regional
Director for Region 20, after being duly signed by
said Employers' authorized representatives , shall be
posted by said Employers and by each of their em-
ployer-members immediately upon receipt thereof,
and be maintained by them for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by said Employers
and their employer-members to insure that said no-
tices 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 said Employers have taken to comply
herewith.
B. Associated General Contractors of California,
Inc.; The Building Industry Association of Califor-
nia, Inc .; and The Engineering and Grading Con-
tractors Association , Inc.; their officers , agents, suc-
cessors, and assigns , shall:
1. Cease and desist from:
(a) Bargaining with Joint Council of Teamsters
No. 42, or Teamsters Local Union Nos. 87, 166, 186,
235, 381, 420, 692, 898, or 982,' as the representative
of the employees of their employer-members who
were covered by the collective-bargaining agreement
known as the Southern California Master Labor
Agreement entered into on May 19, 1968, as amend-
ed, between said Employers and said Unions, unless
and until said Unions have demonstrated their exclu-
sive majority representative status pursuant to a
Board-conducted election.
(b) Maintaining, enforcing , or giving effect to the
1974 contract which has been executed between
those Employers and those Unions covering said em-
ployees or to any extension , modification , or renewal
of said contract , unless and until said unions have
demonstrated their exclusive majority representative
status pursuant to a Board-conducted election.
(c) Entering into any collective-bargaining con-
tract at a time when a real question concerning repre-
sentation has been raised.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action to effectu-
ate the policies of the Act:
(a) Set aside their existing collective-bargaining
contracts with said Unions.
(b) Post at their offices, and at the offices of all the
employer-members of said Associations, copies of
the attached notice marked "Appendix B."4 Copies
of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
the said Employers' authorized representatives, shall
be posted by said Employers and by each of their
employer-members immediately upon receipt there-
of, and be maintained by them for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by said Em-
ployers and their 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 said Employers have taken to comply
herewith.
2 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."
3 The full names of these Unions are set forth in the caption above.
4 See In 2, supra
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT bargain with Heavy, Highway,
Building and Construction Teamsters Commit-
tee for Northern California,•or Teamsters Local
Union Nos. 94, 137, 150, 216, 287, 291, 315, 386,
431, 439, 490, 533, 624, 684, 890, 912, or 980,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
as the representative of the employees of our
employer-members who were covered by the
collective-bargaining agreement known as the
Master Agreement entered into on September
23, 1971, between ourselves and said Unions,
unless and until said Unions have demonstrated
their exclusive majority representative status
pursuant to a Board-conducted election.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT maintain, enforce, or give effect
to the 1974 contract which has been executed
between ourselves and those Unions covering
said employees or to any extension, modifica-
tion, or renewal of said contract , unless and un-
til said Unions have demonstrated their exclu-
sive majority representative status pursuant to a
Board-conducted election.
WE WILL NOT enter into any collective-bar-
gaining contract at a time when a real question
concerning representation has been raised.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce employees in
the exercise of the rights guaranteed to them in
Section 7 of the Act.
WE WILL set aside our existing collective-bar-
gaining contracts with said Unions.
ASSOCIATED GENERAL CONTRACTORS OF
CALIFORNIA, INC.
ENGINEERING AND GRADING CONTRACTORS
ASSOCIATION OF CALIFORNIA, INC.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT bargain with Joint Council of
Teamsters No. 42, or Teamsters Local Union
Nos. 87, 166, 186, 235, 381, 420, 692, 898, or 982
as the representative of the employees of our
employer-members who were covered by the
collective-bargaining agreement known as the
Southern California Master Labor Agreement
entered into on May 19, 1968, as amended, be-
tween ourselves and said Unions, unless and un-
til said Unions have demonstrated their exclu-
sive majority representative status pursuant to a
Board-conducted election.
WE WILL NOT maintain, enforce, or give effect
to the 1974 contract which has been executed
between ourselves and those Unions covering
said employees or to any extension, modifica-
tion, or renewal of said contract , unless and un-
til said Unions have demonstrated their exclu-
sive majority representative status pursuant to a
Board-conducted election.
WE WILL NOT enter into any collective-bar-
gaining contract at a time when a real question
concerning representation has been raised.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed to them in
Section 7 of the Act.
WE WILL set aside our existing collective-bar-
gaining contracts with said Unions.
ASSOCIATED GENERAL CONTRACTORS OF
CALIFORNIA, INC.
THE BUILDING INDUSTRY ASSOCIATION OF
CALIFORNIA, INC.
THE ENGINEERING AND GRADING
CONTRACTORS ASSOCIATION, INC.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard at San Francisco, California, on February 6
and in Los Angeles, California, on February 19, 1975. The
charge in Case 20-CA-9442 was filed on August 7, 1974,
by Associated Independent Owner Operators, Inc. The
charge in Case 20-CA-9565 was filed on September 19,
1974, by California Dump Truck Owners Association. An
order consolidating those two cases and a complaint there-
on issued on November 27, 1974, alleging that Associated
General Contractors of California , Inc. (herein called
AGC); and Engineering and Grading Contractors Associa-
tion of California , Inc. (herein called Engineering Contrac-
tors Association)(herein jointly called the Northern Cali-
fornia Employers), violated Section 8(a)(2) and ( 1) of the
National Labor Relations Act, as amended , by entering
into and maintaining certain collective -bargaining con-
tracts with the Unions whose names are set forth as parties
to the contracts in the above captions for Case
20-CA-9442 and 20-CA-9565 (those named Unions are
herein collectively called the Northern California Unions).
The charge in Case 20-CA-9810 (formerly
21-CA-12829) was filed on July 11, 1974, by Associated
Independent Owner Operators, Inc. The charge in Case
20-CA-9811 (formerly 21-CA-13021) was filed on Sep-
tember 23, 1974, by California Dump Truck Owners Asso-
ciation . An order consolidating those two cases and a com-
plaint thereon issued on September 27, 1974, alleging that
AGC; Building Industry Association of California (herein
called the Building Association ); and Engineering Con-
tractors Association (herein jointly called the Southern
California Employers) violated Section 8(a)(2) and (1) of
the Act by entering into and maintaining certain collective-
bargaining contracts with the Unions whose names are set
forth as parties to the contract in the above captions for
Cases 20-CA-9810 and 20-CA-9811 (those Unions are
jointly referred to herein as the Southern California
Unions).
On December 23, 1974, the General Counsel of the
Board issued an Order Transferring Cases in which Cases
21-CA-12829 and 21-CA-13021 were transferred from
Region 21 to Region 20 and renumbered 20-CA-98 10 and
20-CA-9811, respectively. By order dated January 7, 1975,
Cases 20-CA-9442, 20-CA-9565, 20-CA-9810, and
ASSOCIATED GENERAL CONTRACTORS
20-CA-9811 were consolidated and scheduled for hearing.
Issues
The primary issues are: (1) whether the Northern and
the Southern California Employers violated Section 8(a)(2)
and (1) of the Act by entering into and maintaining collec-
tive-bargaining agreements with the Northern and South-
ern California Unions, respectively, where such contracts
were executed after the Board ordered mail ballot elections
based on decertification petitions and before the elections
were completed; (2) whether the construction industry
provisions contained in Section 8(f) of the Act preclude the
finding of such violations.
All parties were given full opportunity to participate, to
introduce relevant evidence , to examine and cross -examine
witnesses , to argue orally, and to file briefs . Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel, the Associated Independent Owner Op-
erators, Inc., the California Dump Truck Owners Associa-
tion, all the Northern California Unions except Locals 94
and 533, the Southern California Employers, and the
Southern California Unions.
Upon the entire record of the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
AGC and the Engineering Contractors Association (the
Northern California Employers in Cases 20-CA-9442 and
20-CA-9565) as well as the AGC, the Building Associa-
tion , and the Engineering Contractors Association (the
Southern California Employers in Cases 20-CA-98 10 and
20-CA-9811) each maintain offices in the State of Califor-
nia. Each is a voluntary association of employers engaged
in the building and construction industry. Each exists for
the purpose , inter alia , of representing its employer-mem-
bers in negotiating and administering collective-bargaining
agreements with various labor organizations . During the 12
months immediately preceding issuance of the complaints,
each had employer-members located in California who in
the aggregate purchased and received goods valued in ex-
cess of $50 ,000 from suppliers located outside of Califor-
nia. The Northern California Employers, the Southern Cal-
ifornia Employers , and their employer-members are, and
each is, an employer engaged in commerce and in opera-
tions affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
Teamster Local Union Nos. 94, 137, 150, 216, 287, 291,
315, 386, 431, 439, 490, 533, 624, 684, 890, 912, 980, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (herein called the
Northern California Local Unions); and Heavy, Highway,
Building and Construction Teamsters Committee for
Northern California (herein called the Teamsters Commit-
tee) are, and each is, a labor organization within the mean-
ing of Section 2(5) of the Act.
543
Joint Council of Teamster No. 42 (herein called Joint
Council No. 42); Teamsters, Chauffeurs, Warehousemen
and Helpers Local 87; Sales Drivers and Dairy Employees
Local 166; Chauffeurs, Teamsters and Helpers Local 186;
General Truck Drivers, Warehousemen and Helpers Local
235; Teamsters and Warehousemen Local 381; Building
Material and Dump Truck Drivers Local 420; General
Truck Drivers, Chauffeurs and Helpers Local 692; Truck
Drivers, Warehousemen and Helpers Local 898, and Gen-
eral Teamsters, Chauffeurs, Warehousemen and Helpers
Local 982; all of whom are part of the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (these local unions are herein called
the Southern California Local Unions), are, and each is, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events
1. Background
The Northern and Southern California Employers are
contractors in the construction industry. The work that
they do requires the use of dump trucks and other vehicles.
This case is primarily concerned with the drivers of those
dump trucks and other vehicles. The drivers fall into two
separate classifications. One of those are driver-employees
who are employed by their employers in a traditional em-
ployer-employee relationship. It is undisputed that they are
employees within the meaning of the Act. The other group
are owner-operators who operate their own vehicles. There
has been a longstanding dispute and a substantial amount
of litigation concerning whether these owner-operators are
employees of the employer or are self-employed indepen-
dent contractors.
2. The Northern California situation
For some years prior to 1971, the AGC and the Engi-
neering Contractors Association, on behalf of their em-
ployer-members , have recognized and bargained with the
Teamsters Committee, which bargained on behalf of itself
and on behalf of the Northern California Local Unions, as
the exclusive collective-bargaining representative of the
employees of the employer-members performing work
within the jurisdiction of Northern California Local
Unions. The Northern California Employers have been
parties to a series of collective-bargaining agreements with
the Northern California Unions covering those employees.
On February 26, 1971, A. R. Cramer, an individual,
filed a timely petition with the Board in Case 20-RD-721
seeking to decertify the Northern California Local Unions
as the exclusive collective-bargaining representative of the
employees of the employer-members of Northern Califor-
nia Employers performing work within the jurisdiction of
the Northern California Local Unions. The petition sought
an election in a bargaining unit of construction industry
drivers under the so-called Northern California Master
Agreement covering northern and central California. The
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition, when filed, related to the 1968 Master Agreement
which expired in June 1971. The petition was subsequently
amended so as to cover a 1971 Master Agreement 1 which
was in effect at the time of the hearing on the decertifica-
tion petition.
On September 23, 1971, the Northern California Em-
ployers and Northern California Unions entered into a
new contract entitled Heavy, Highway, Building and Con-
struction Teamsters of Northern California Master Agree-
ment . The contract was executed on January 5, 1972, and
by its terms was effective from June 16, 1971, until June 15,
1973. Thereafter, the contract, with certain modifications,
was extended from June 16, 1973, until June 15, 1974. The
1971 contract and the extension included within their cov-
erage both driver-employees and owner-operators.
After the filing of the decertification petition in Case
20-RD-721, a hearing was conducted. At that hearing,
there were conflicting contentions as to whether or not the
owner-operators were employees within the meaning of the
Act. The Board issued its Decision on January 17, 1973,
reported at 201 NLRB 311, holding that the owner-opera-
tors were employees within the meaning of the Act, that
they were entitled to participate in an election, and "that a
question affecting commerce exists concerning the repre-
sentation of the employees of the Employers within the
meaning of Sections 9(c)(1) and 2(6) and (7) of the Act."
The Board also stated that there were other issues that
had not been fully litigated and remanded both cases for
further hearing on those issues . A second hearing was con-
ducted in June 1973. On March 5, 1974, the Board issued a
.Supplemental Decision and Direction of Election in Case
20-RD-721, which is reported at 209 NLRB 363. That de-
cision resolved a number of questions raised by the peti-
tion 3 and directed an election by mail ballot in a unit that
1 Prior to the execution of that contract, a number of charges were filed
On July 21, 1971, while the decertification petition was being processed, the
Teamsters Committee filed a charge in Case 20-CA-6899 alleging that the
Northern California Employers refused to bargain in good faith . On August
3, 1971, the Acting Regional Director for Region 20 notified the Teamsters
Committee that he was refusing to issue a complaint . He stated that the
decertification petition had been filed , that a notice of hearing thereon had
issued , that a question concerning representation existed , and that under
such circumstances a refusal of the employers to negotiate was not a viola-
tion of Sec . 8(aX5) of the Act. On July 23, 1971, the AGC filed a charge in
Case 20-CB-2523 alleging that Northern California Unions violated Sec.
8(bXIXA) of the Act by striking to force the AGC to bargain with those
unions at a time when a real question concerning representation existed.
Similar charges were filed by the California Dump Truck Owners on August
5, 1971, in Case 20-CB-2529. On August 9, 1971, the Acting Regional Di-
rector for Region 20 refused to issue complaint in Case 20-CB-2523. He
stated that under the particular circumstances of that case it had not been
established that the Union's conduct violated Sec. 8(bXIXA) of the Act. The
same conclusion was reached with regard to Case 20-CB-2529. In both
cases, the refusal to issue complaint was appealed to the General Counsel
and the appeals were denied.
2 The Decision related to both the Northern California petition in Case
20-RD-721 and a similar decertification petition in Case 21-RD-1008
which had to do with the Southern California Employers and Southern
California Unions.
3 Some of the Board 's findings were : That the community of interest
between the employee-drivers and the owner-operators was such that they
should be included in the same unit for the purpose of the decertification
election ; that the owner-operator clause now extends to jobsite and nonjob-
site work ; that employees of certain contractors who were not members of
employer associations (known as "short formers ") should be excluded from
the unit ; that overlying carriers who supply owner-operators to contractors
included, among others, owner operators who performed
jobsite or nonjobsite work. As set forth in an unpublished
Supplemental Decision and Direction of Election dated
April 22, 1974, the election was ordered in the following
unit:
All employees of employer-members of Associated
General Contractors of California, Inc., the Engineer-
ing and Grading Contractors Association, and the
Northern California Home Builders Conference who
were covered by the collective-bargaining agreement
known as the Master Agreement entered into on Sep-
tember 23, 1971, between the above -mentioned associ-
ations and Heavy, Highway, Building and Construc-
tion Teamsters Committee for Northern California on
behalf of Teamsters Local Unions Nos. 94, 137, 150,
216, 287, 291, 315, 386, 431, 439, 490, 533, 624, 684,
890, 912, and 980, but excluding all other employees
including guards, watchmen, and supervisors as de-
fined in the Act.
While Region 20 was in the process of preparing eligibil-
ity lists pursuant to the Board's Order and before any mail
ballots had been sent to the employees, the Northern Cali-
fornia Employers entered into new collective-bargaining
contracts with the Northern California Unions. Contracts
were entered into on July 15, 1974, which by their terms
were effective from June 16, 1974, until June 15, 1977. The
unit in the new contracts include the same employees of
the Northern California Employers who had been covered
in the Master Agreement entered into on September 23,
1971.4
The new contracts contain union-security clauses which
require union membership within 8 days following the
commencement of employment, except for owner-opera-
tors who perform offsite work. Such owner-operators are
required to join the Union within 31 days after hire.
The Northern California Employers and the Northern
California Unions have maintained and given force and
effect to the new agreements.
Region 20 of the Board has treated the charges in this
case as "blocking charges" that have precluded further
processing of the representation case.
3. The Southern California situation
For many years prior to 1971, the Southern California
Employers, acting on a multiassociation, multiemployer
basis, have recognized and bargained with Joint Council
No. 42. That Union has bargained on behalf of itself and
on behalf of the Southern California Local Unions as the
exclusive bargaining representative of the employees of the
are not Joint-employers with the contractors; and that the following employ-
ees are eligible to vote: "in addition to those employees in the unit who were
employed during the payroll period immediately preceding the date of this
Decision and Direction of Election, all employees in the unit who have been
employed during the 30 calendar days immediately preceding the date of
this Decision and Direction of Election or who have been employed for 240
hours or more during the 365 calendar days immediately preceding such
date "
The Northern California Home Builders Conference was a party to the
1971 Master Agreement and the employees of its members are included in
the unit in which the Board has ordered an election. That Conference is not
a party in the instant unfair labor practice cases.
ASSOCIATED GENERAL CONTRACTORS
employer-members performing work in a number of driver
and related classifications at construction jobsites in areas
within the jurisdiction of the Southern California Local
Unions . The bargaining unit has also included employees
at warehouses , shops, and yards provided or set up to han-
dle work in connection with a job. The Southern California
Employers have been parties to a series of collective-bar-
gaining agreements with the Southern California Unions,
covering those employees .5
On February 26, 1971, Neal Hecker and James E. Bays
filed a timely petition with the Board in Case 21-RD-1008
seeking to decertify the Southern California Local Unions
as the exclusive collective-bargaining representative of
those employees . The Petitioners sought an election in a
bargaining unit under the so-called Southern California
Master Labor Agreement between the Southern California
Employers and the Teamster Local Unions. That agree-
ment covered the southern area of California with the ex-
ception of San Diego County.
Hearings in Case 21-RD-1008 Were held in Los Angeles,
California , between September 7 and October 12, 1971. As
is set forth above , the Board issued its decision in Cases
21-RD-1008 and 20-RD-721 on January 17, 1973. The
Board held that the owner-operators were employees with-
in the meaning of the Act , that they were entitled to partic-
ipate in an election , and "that a question affecting com-
merce exists concerning the representation of the
employees of the Employers within the meaning of Sec-
tions 9(c)(l), and 2 (6) and (7) of the Act." The Board re-
manded both cases for further hearing on other issues. Fur-
ther hearings in Case 21-RD-1008 were held in Los
Angeles in April 1973, and on March 5, 1974, the Board
issued a Supplemental Decision and Direction of Election
which is reported at 209 NLRB 366. That decision resolved
a number of questions raised by the petition 6 and directed
! The employees covered by these agreements were : A-frame or Swedish
Crane, or Similar Type of Equipment Driver , Bootman , Cement Distributor
Truck , Driver of Vehicle or Combination of Vehicles or 2 axle, 3 axle or
more axles, Driver of Oil Spreader Truck , Driver of Transit Mix Truck Less
than 3 yards , Driver of Transit Mix Truck 3 yards or more, Pipeline and
Utility Working Truck Drivers, Ross Carrier Dnver -hiway , Traffic Control
Pilot Car , Slurry Truck Driver, Truck Greaser and Tireman , Truck Mount-
ed Power Broom , Truck Repairman , Dumpcrete Trucks Less than 6-1/2
yards Water Levels , Dumpcrete Trucks 6-1/2 yards Water Levels and Over,
All Off-highway Equipment within Teamsters Jurisdiction , Forklift Driver,
Fuel Truck Driver, PB and Similar Type Trucks when performing work in
Teamsters jurisdiction, Truck Repairman Helper , Truck Repairman-Weld-
er, Warehousemen and Teamster, Warehousemen -Clerk Water Truck - 2
axles Water Truck - 3 or more axles , Welder , Working Truck Driver, Winch
Truck Driver.
6 Some of the Board 's findings were : that the appropriate unit for the
election was the contract unit, which consisted of both owner -operators and
employee-drivers covered by the contract ; that employees employed by
"short formers" whether owner -operators or employee -drivers, were not eli-
gible to vote ; that overlying carriers were not joint employers with the con-
tractors ; that the Southern California Unions and Southern California Em-
ployers have by contract limited covered work to jobsite work and therefore
only those owner-operators who have performed such jobsite work are eligi-
ble to vote ; that the hauling of rock , sand , gravel , and asphaltic concrete is
not covered by the contract and that the time spent engaged therein by
owner-operators should not be counted toward eligibility for voting; and
that the following employees are eligible to vote ; "in addition to those em-
ployees in the unit who were employed during the payroll period immedi-
ately preceding the date of this Decision and Direction of Election, all
employees in the unit who have been employed during the 30 calendar days
545
a mail ballot election. The only owner-operators who were
to be permitted to vote in that election were those who had
performed jobsite work. The election was ordered in the
following unit:
All employees of employer-members of the Southern
California Chapter of the Associated General Con-
tractors of America, the Building Industry Association
of California, Inc., and the Engineering and Grading
Contractors Association, Inc. covered by the collec-
tive-bargaining agreement known as the Southern Cal-
ifornia Master Labor Agreement entered into on May
19, 1968, as amended, between the Employers and
Joint Council of Teamsters, No. 42 and Teamsters Lo-
cal Union No. 87, and other recognized bargaining
agents but excluding all other employees, including
guards, watchmen, and supervisors as defined in the
Act.
Pursuant to the Board's order, Region 21 of the Board
prepared a voter eligibility list. On June 14, 1974, the Re-
gion mailed ballots to the voters. The ballots were to be
returned by July 31, 1974, and counted on August 1, 1974.
On July 1, 1974, which was after the mail ballots had
been sent to the employees and before the ballots had been
returned to the Region and counted, the Southern Califor-
nia Employers and the Southern California Unions entered
into a new collective-bargaining agreement' The contract,
which includes within its coverage owner-operators who
perform jobsite work, is by its terms effective from July 1,
1974, to June 15, 1977. The unit in the new contract in-
cludes the same employees of the Southern California Em-
ployers who had been covered in the preceding contract.
The new contract contains a union-security clause which
requires union membership within 8 days following the
commencement of employment.
The Southern California Employers and the Southern
California Unions have maintained and given force and
effect to the new agreement.
Region 20 of the Board has impounded the ballots which
have been mailed to it and has treated the charges in this
case as "blocking charges" that have precluded further
processing of the representation case.
B. The Midwest Piping Line of Cases
In Midwest Piping and Supply Co., Inc., 63 NLRB 1060
(1945), the Board enunciated the doctrine that an employer
has a duty to remain neutral in the face of conflicting
claims for representation by rival unions. The Board held
that an employer violated the Act by recognizing and bar-
gaining with one union where another union had presented
a real representation claim and a representation proceed-
ing was pending before the Board. In Shea Chemical Cor-
poration, 121 NLRB 1027 (1958), the Board elucidated the
Midwest Piping doctrine by holding:
immediately preceding the date of the Decision and Direction of Election or
who have been employed for 240 hours or more during the 365 calendar
da4s immediately preceding such date."
In addition to the Southern California Employers, this contract was
also signed by the Underground Contractors Association , an organization
that is not a party to these proceedings.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We now hold that upon presentation of a rival or con-
flicting claim which raises a real question concerning
representation , an employer may not go so far as to
bargain collectively with the incumbent (or any other)
union unless and until the question concerning repre-
sentation has been settled by the Board . This is not to
say that the employer must give an undue advantage
to the rival union by refusing to permit the incumbent
union to continue administering its contract or pro-
cessing grievances through its stewards . We further
find that a real question concerning representation
was raised here by the Oil Workers' petition, support-
ed as it was by an adequate administrative showing of
interest ... .
The Employers and the Unions contend that the show-
ing of interest on which the decertification petitions were
based was inadequate . However, the Board has consistent-
ly held that a showing of interest is an administrative mat-
ter which is not subject to litigation . In The Sheffield Corpo-
ration , 108 NLRB 349 (1954) the Board held: "it has long
been established that all phases of the question concerning
a petitioner's showing of interest is an administrative mat-
ter not subject to collateral attack. . . ." In N.L. R.B. v.
J. I. Case Company, 201 F.2d 597 (C.A. 9, 1953), the Court
of Appeals for the Ninth Circuit stated: "The practice of
treating the substantiality of the petitioning union's show-
ing of interest as a matter of administrative concern, only,
has undergone no change since Taft-Hartley . Congress was
of course familiar with this practice ; and the legislative
history of the Labor-Management Act of 1947 contains no
indication of a purpose to change or interfere with it."
The Board , in its Decision and Order in the related rep-
resentation cases (20-RD-721 and 21-RD-1008, reported
at 201 NLRB 311) held that a question concerning repre-
sentation had been raised in both cases . Implicit in that
finding was its administrative determination that both de-
certification petitions were based on an adequate showing
of interest . Such an administrative determination is not
subject to litigation and is not subject to review by an Ad-
ministrative Law Judge.
The Board has recently reaffirmed its Midwest Piping
doctrine. In Kay Jay Corporation d/b/a McKee's Rocks
Foodland, 216 NLRB No. 166, (1975), the Board detailed
its rationale , holding:
At the heart of the Midwest Piping doctrine is the fact
that "Congress has clothed the Board with the exclu-
sive power to investigate and determine representa-
tives for the purposes of collective bargaining. In the
exercise of this power , the Board usually makes such
determination , after a proper hearing and at a proper
time , by permitting employees freely to select their
bargaining representatives by secret ballot." 3 The core
of the Midwest Piping doctrine is therefore the essence
of simplicity. When rival unions attempt to obtain rec-
ognition from an employer, a question concerning rep-
resentation is thereby raised . Since the employees have
a right under the Act to a free and untrammeled
choice, the employer is barred from making the choice
for his employees by recognizing one of the competing
unions .6
Another aspect of the Midwest Piping doctrine is
that it is strictly construed. Thus, in Playskool, Inc., a
Division of Milton Bradley Company, 195 NLRB 560
(1972), the Board stated that "contrary to the Trial
Examiner, this Board has never established any nu-
merical percentage as a condition precedent to estab-
lishing the existence of a question concerning repre-
sentation . In fact, the sole requirement necessary to raise
a question concerning representation within the meaning
of the Midwest Piping doctrine, as modified by the
Board, is that the claim of the rival union must not be
clearly unsupportable and lacking in substance." [Em-
phasis supplied.]
The thrust of the doctrine, therefore, is that a sup-
portable claim by a rival union will trigger the applica-
bility of the doctrine, so that, from that point on, the
employer is prohibited from preferring one union to
another. It is clear that the intent of the Board is to
preserve the Section 7 rights of employees to de-
termine freely their agents for collective bargaining.
Congress has invested the Board with the responsibil-
ity for determining the collective-bargaining agent of
employees by free elections. Unless the Midwest Piping
doctrine is construed strictly, the intent of Congress is
frustrated.
51d at 1070.
'Cf. Linden Lumber Div, Summer & Co. v. N L R B., 95 S.Ct. 429
(1974). The Supreme Court has recently reaffirmed the principle that
a Board-conducted election is the preferred method for choosing a
bargaining representative . This principle is itself the heart of the Mid-
west Piping doctrine.
The above cases deal with conflicting claims of labor
organizations. However, the Board has unequivocally stat-
ed that the same criteria should be applied to situations
involving a decertification petition. In Teleautograph Corp.,
199 NLRB 892 (1972), the Board held that an employer did
not have a duty to bargain after a decertification petition
had been filed. In clarifying the law with regard to the
impact of a decertification petition, the Board held:
We would, however, note that the decertification
petition, supported by an adequate showing of inter-
est, as the Regional Director here properly found in
the representation case, raised a question concerning
representation. In Shea Chemical Corporation, 121
NLRB 1027, the Board established the rule that when
a real question concerning representation has been
raised by the filing of a petition by a rival union that
..an employer may not go so far as to bargain collec-
tively with incumbent (or any other) union until the
question concerning representation has been settled
by the Board." The same rule should be applied where
a real question concerning representation has been
raised by the timely filing of a decertification petition.
As in the case of a petition filed by a rival union, the
incumbent union may still continue to administer its
contract and process grievances, and the rule does not
apply in situations where, because of contract bar, cer-
tification year, inadequate showing of interest, or any
other established reason, the decertification petition
ASSOCIATED GENERAL CONTRACTORS 547
does not raise a real representation question.
A number of Courts of Appeals have looked with disfa-
vor on the Board's Midwest Piping, doctrine. In Inter-Island
Resorts, Ltd., d/b/a Kona Surf and Hotel, 201 NLRB 139,
142, fn. 12 (1973), enforcement denied 507 F.2d 411 (C.A.
9, 1974), the Board found a violation of the Midwest Piping
doctrine where a company granted recognition to one
union in the face of a representation petition filed by an-
other union. In acknowledging its differences with some of
the United States Courts of Appeals, the Board stated:
To the extent that such finding may be in conflict
with the decisions of certain of the United States
Courts of Appeals, see, e.g., N.L.R.B. v. American
Bread Co., [411 F.2d 147 (C.A. 6)]; N.L.R.B. v. Air
Master Corporation, 339 F.2d 553 (C.A. 3); N .L.R.B. v.
North Electric Company, 296 F.2d 137 (C.A. 6); N.L.R.
B. v. Indianapolis Newspapers, Inc., 210 F. 2d 501 (C.A.
7); and N.L.R.B. v. Modine Manufacturing Company,
453 F.2d 292 (C.A. 8), we respectfully disagree and
adhere to our view until such time as the U.S. Su-
preme Court has passed on the matter. Unlike the
views expressed in the conflicting court decisions, we
do not believe that our decision herein discourages
voluntary recognition nor interferes with the stability
of lawfully established bargaining relationships. Rath-
er, we believe that, in the present circumstances, the
purposes and policies of the Act require that the issue
of representation be decided by the employees, in a
manner attended by the safeguards of the Board's
election machinery. We can perceive of no policy con-
sideration which overrides the need to protect the Sec-
tion 7 rights of employees from the type of employer
assistance demonstrated by this record.
In refusing to enforce the Board's Order the Ninth Cir-
cuit Court of Appeals cited a number of courts of appeals
cases which had disagreed with the Board.8 The court not-
ed the Board's disagreement with the courts of appeals and
stated (507 F.2d 411 at 412):
The Board's position reflects its belief that the pur-
poses and policies of the National Labor Relations
Act require that the issue of representation be decided
by the employees in a manner attended by the safe-
guards of the Board's election machinery. However,
based upon the record before us indicating that the
Inter-Island's recognition of the ILWU was based
upon a clear demonstration of majority support, we
conclude that the Board's need to preserve the integri-
ty of its election machinery must yield to the rights of
the Kona Surf employees to select and bargain
through their own representatives.
In Suburban Transit Corp. and H.A.M.L. Corporation v.
N.L.R.B., 499 F.2d 78, 82-83 (C.A. 3, 1974), cert . denied 87
LRRM 3294 (1974), the Third Circuit Court of Appeals
held:
The Board's conclusion that Suburban violated §
8(a)(1), (2), and (3) of the Act was based primarily on
its finding that the decertification petition filed by
Manga and the representation petition filed by the
Teamsters (supported by authorization cards) raised a
real question concerning representation and that,
therefore, Suburban's execution of a new contract
with UTU, containing a union security provision,
when Suburban had knowledge of those petitions, was
an unfair labor practice under the doctrine of Midwest
Piping & Supply Co., 63 NLRB 1060 (1945). The
Board recognized that this finding conflicts with our
decision in NLRB v. Swift & Co., 294 F.2d 285 (3d
Cir. 1961), where this court held that the mere filing of
a representation petition by a competing union does
not create a real question of representation so as to
prevent an employer from entering into an agreement
with the previously certified union, but the Board felt
constrained to follow its own law on this point. We, in
turn, are constrained to follow Swift and, therefore,
hold that the Board's determination that the real ques-
tion of representation existed at the time of the renew-
al agreement between Suburban and UTU is not sup-
ported by substantial evidence.
In the instant case, the Board had already ordered elec-
tions at the time the new contracts were signed. In the
Southern California case, the mail ballots had already been
sent to the employees. In the Northern California case, the
eligibility list was being prepared. The execution of the
contracts at those critical dates was a most serious interfer-
ence with the Board's election procedures. In addition, the
impact of Section 8(f) of the Act, as discussed below, must
be considered with regard to the criteria underlying the
courts of appeals holdings.
An Administrative Law Judge is bound by the Board's
interpretation of the Act until the Supreme Court has spo-
ken to the contrary. The Board law, as is set forth above, is
clear. The Northern California and the Southern California
employers entered into contracts with Northern and South-
ern California unions, respectively, after the Board had
found that a real question concerning representation had
been raised and after the elections had been ordered. Un-
less it can be shown that Section 8(f) of the Act prevents
the finding of a violation or that some other circumstances
exist that would make application of the Midwest Piping
doctrine inappropriate, the Board law dictates the finding
that the Northern and the Southern California employers
violated Section 8(a)(2) and (1) of the Act as alleged in the
complaint.
8 The court referred to: N.L.R.B. v. Peter Paul, Inc., 467 F. 2d 700, 702
(C.A. 9, 1972); see Playskool, Inc. v. N.L.R.B, 477 F.2d 66, 70 (C.A. 7,
1973); Modine Manufacturing Co., Inc. v. N.L.R.B., 453 F.2d 292, 295 (C A.
8, 1971); N.L.R.B. v. Air Master Corp., 339 F.2d 553, 557 (C.A. 8, 1964);
Suburban Transit Corp. v. N. L. R. B., 499 F.2d 78, 80 (C.A. 3, 1974); Amen-
can Bread Company v. N L.R.B., 411 F.2d 147, 155-56 (C.A. 6, 1969); see
also, International Ladies Garment Workers v. N.L.R.B, 366 U.S. 731, 739-
740 (1961).
C. The Application of Section 8(f) of the Act
All the Employers involved in this proceeding are en-
gaged primarily in the building and construction industry.
The Unions , who are parties to the contracts , are labor
organizations in which building and construction employ-
ees are members . Section 8(f) of the Act, under certain
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances, permits such employers and such unions to
enter into prehire contracts even where the majority status
of such unions has not been established. Section 8(f) of the
Act reads:
It shall not be an unfair labor practice under sub-
sections (a) and (b) of this section for an employer
engaged primarily in the building and construction in-
dustry to make an agreement covering employees en-
gaged (or who, upon their employment, will be en-
gaged) in the building and construction industry with
a labor organization of which building and construc-
tion employees are members (not established, main-
tained, or assisted by any action defined in section
8(a) of this Act as an unfair labor practice) because (1)
the majority status of such labor organization has not
been established under the provisions of section 9 of
this Act prior to the making of such agreement . .
Provided further, That any agreement which would be
invalid, but for clause (1) of this subsection, shall not
be a bar to a petition filed pursuant to section 9(c) or
9(e).
Section 8(f) of the Act recognizes the peculiar problems
inherent in the construction industry. It allows contracts in
that industry even where a majority of the employees have
not authorized the Union to represent them. However, it
also provides those employees with a vehicle for disa-
vowing a union where they see fit to do so. The second
proviso of Section 8(f) provides that the contract shall not
be a bar to a petition filed pursuant to Section 9(c) of the
Act. One part of Section 9(c) provides for decertification
petitions. The election provision is a vital part of Section
8(f). In nonconstruction industry situations, an employer
may lawfully contract with a union only where the employ-
ees have authorized the Union to represent them. As is set
forth in detail above, there is a conflict between the Board
and a number of courts of appeals concerning procedures
to be followed when recognition is granted in a rival union
situation or where a decertification petition has been filed.
The Board has held that, where a petition based on an
adequate showing of interest has been filed, the representa-
tion question must be decided by the employees in a man-
ner attended by the safeguards of the Board's election ma-
chinery. In N.L.R.B. v. Inter-Island Resorts, supra, the
Ninth Circuit Court of Appeals disagreed with the Board
on the ground that the Union recognized by the Employer
had clearly demonstrated its majority support even without
the election. The court held that the need to preserve the
integrity of the Board's election machinery must yield to
the rights of the employees to select and bargain through
their own representatives. It is noted, however, that the
court was dealing with a case where the employer was not
in the construction industry or subject to Section 8(f). That
logic has no application in a situation where the employees,
pursuant to Section 8(f) of the Act, are covered by a con-
tract in circumstances where they have not authorized the
Union to represent them. In such circumstances, the only
means that the employees have to express their desire for
representation is through the election machinery. Where,
as here, the contract contains a union-security clause re-
quiring membership in the Union as a condition of em-
ployment the right of the employees to be heard concern-
ing their desire for representation must be given the most
serious consideration. In the instant case , the Southern
California Employers interfered with the processing of the
election at a very critical stage . The contract was signed
after mail ballots had been sent to the employees and be-
fore the date upon which the ballots were to be returned
for counting. The Northern California Employers inter-
fered with the election process while the eligibility lists
were being prepared pursuant to the Board's Direction of
Election. Under these circumstances, the Employers and
Unions' reliance on Section 8(f) of the Act as a defense to
what would otherwise be a violation of the Board's Mid-
west Piping doctrine is misplaced. To the contrary, the
"construction industry" Section 8(f) elements of this case
indicate that it is factually distinguishable from N.L.R.B. v.
Inter-Island Resorts, supra. The reservations that the Ninth
Circuit Court of Appeals had in that case toward the
Board's Midwest Piping doctrine are not relevant to the
particular facts of the instant case. In the instant case,
there is no way for the employees to express their desires
for representation except through the Board's election pro-
cesses.9
d. Policy Considerations
The Employers and the Unions contend, in substance,
that it would be unconscionable for the Board to make
findings that would deprive thousands of employees of
their collective-bargaining rights over a prolonged period
of time.
The Employers and the Unions cannot successfully con-
tend that the employees are being improperly denied their
right to engage in collective bargaining, because the very
question in issue in the underlying representation cases is
whether or not the employees desire to engage in collective
9 General Counsel argues in his brief that the right of an employer to
enter into an 8(f) contract applies only to an initial recognition situation and
not to a contract renewal . Bricklayers & Masons International Union Local
No. 3, and Frank S. Llewellyn, Secretary, 162 NLRB 476 (1966), enfd. 405
F.2d 469 (C.A. 9, 1968); Barwise Sheet Metal Co., Inc, A Division of Airtron,
Inc, etc,, 199 NLRB 372 (1972). The cases cited by the General Counsel are
inapposite in that they deal with refusal-to-bargain situations rather than
unlawful assistance.
The brief of the Northern California Unions places reliance on N L R.B.
v. David F Irvin, and James B McKelvy, d/b/a The Irvin-McKelvy Co., 475
F. 2d 1265, 1270 (C.A. 3, 1973) for the proposition that the Midwest Piping
doctrine does not apply to employers in the construction industry. That case
is distinguishable on its facts. There the court held that an employer could
bargain with a rival union for a new 8(f) contract after expiration of a prior
8(f) contract with another union , but in that situation no petition for an
election had been filed.
The Employers and the Unions contend, in substance, that, under Sec.
8(f) of the Act, they are insulated from the provisions of Sec 8(a)(2). How-
ever , Sec 8(f) provides that a construction industry contract with a union
that does not have a majority status is lawful only where the Union is "not
established, maintained , or assisted by any action defined in Section 8(a) of
this Act as an unfair labor practice." The General Counsel's theory of the
case is not that a contract was entered into with a union that failed to
represent a majority. It is that the contract was entered into at a time when
a real question concerning representation had been raised . Under the
Board's Midwest Piping doctrine, a violation would occur in such circum-
stances whether or not the contracting union represented a majority and
execution of the contract would, under Board law, be an "action defined in
Section 8(a) of this Act as an unfair labor practice."
ASSOCIATED GENERAL CONTRACTORS 549
bargaining . The representation cases are based on decerti-
fication petitions and the basic questions to be resolved are
whether the employees want the Unions to represent them
or whether they want to be unrepresented . The Employers
and the Unions are in a poor position to complain about
the delay in the final determination of this issue where it
has been their own conduct in executing the collective-
bargaining contracts that has blocked further processing of
the election proceedings.
For the reasons set forth above, I find that the Northern
California Employers and the Southern California Em-
ployers have violated Section 8(a)(2) and (1) of the Act by
entering into , maintaining, and enforcing the 1974 con-
tracts with the Northern and Southern California Unions
respectively. 10
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Northern California and the South-
ern California Employers and the Northern and Southern
California Unions set forth in section III, above , occurring
in connection with the operations of the Northern Califor-
nia and Southern California Employers described in sec-
tion I , above, have a close , intimate , and substantial rela-
tion to trade , traffic , and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Northern California and the
Southern California Employers have engaged in certain
unfair labor practices , I shall recommend that they be or-
dered to cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of the Act.
Having found that the Northern California and the
Southern California Employers have violated Section
8(a)(1) and (2) of the Act by executing, maintaining, and
enforcing the 1974 contracts with the Northern California
and Southern California Unions, respectively, while there
was a real question concerning representation , I shall rec-
ommend that the Northern California and Southern Cali-
fornia Employers be ordered to withdraw and withhold
recognition from the Northern and Southern California
Unions, respectively , and cease and desist from giving ef-
fect to the contracts which have been executed or to any
extension , modification , or renewal thereof , unless and un-
til said Unions shall have demonstrated their exclusive ma-
jority representative status pursuant to a Board -conducted
election . Nothing in this recommended Order is to be con-
strued as requiring or permitting the varying or abandon-
ing of wages , hours, seniority, or other employee benefits
contained in the contracts.
In their briefs, the Charging Parties requested an Order
requiring the Northern California and Southern California
Employers to reimburse all employees for all moneys paid
to the Unions as dues and initiation fees since the execu-
10 In view of these findings , the renewed motion of the Southern Califor-
nia Unions for summary judgment is denied.
tion of the 1974 contracts. In some cases involving conflict-
ing claims for recognition, the Board has ordered dues
reimbursement , e.g. Inter-Island Resorts, 201 NLRB 139,
enforcement denied 507 F.2d 411 (C.A. 9, 1974); Irvin-Mc-
Kelvy Co., 194 NLRB 52, enforcement denied 475 F.2d
1265 (C.A. 3, 1973). In others, reimbursement has not been
ordered, e.g. Suburban Transit, 203 NLRB 465, enforce-
ment denied 499 F.2d 78 (C.A. 3, 1974); Peter Paul, Inc.,
185 NLRB 281, enforcement denied 467 F.2d 700 (C.A. 9,
1972). In the instant case, I do not believe that a reimburse-
ment order would be appropriate. The Unions are the ones
who have benefited from any unlawful exaction of dues.
However, the Unions are not respondents in this proceed-
ing, but are merely parties to the contract. They cannot be
required to reimburse dues. It is highly likely that some of
the employees who joined the Unions after the execution
of the 1974 contracts joined because they wanted to do so
and not because they were required to do so under the
union-security clause . I believe that a reimbursement order
covering all employees who joined the Union after execu-
tion of the 1974 contract would create a windfall for those
employees who joined voluntarily, would require no repay-
ment by the Unions, and would be an undue burden on the
Respondent-Employers.
CONCLUSIONS OF LAW
1. The Northern California Employers, the Southern
California Employers and their employer-members are,
and each is, an employer engaged in commerce and in op-
erations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Northern California Unions and Southern Cali-
fornia Unions are, and each is, a labor organization within
the meaning of Section 2(5) of the Act.
3. By entering into, maintaining, and enforcing a 1974
contract with the Northern California Unions while there
was a real question concerning representation the North-
ern California Employers engaged in unfair labor practices
within the meaning of Section 8(a)(2) and (1) of the Act.
4. By entering into, maintaining, and enforcing a 1974
contract with the Southern California Unions while there
was a real question concerning representation, the South-
ern California Employers engaged in unfair labor practices
within the meaning of Section 8(a)(2) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER "
A. Associated General Contractors of California, Inc.;
1 In the event no exceptions are filed as provided by Sec. 10246 of the
Rules and Regulations of the National Labors Relations Board , the find-
ings, conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Engineering and Grading Contractors Association of
California, Inc.; their officers , agents , successors , and as-
signs, shall:
1. Cease and desist from:
(a) Recognizing or bargaining with Heavy , Highway,
Building, and Construction Teamsters Committee for
Northern California; or Teamster Local Union Nos. 94,
137, 150, 216, 287, 291, 315, 386, 431, 439, 490, 533, 624,
684, 890 , 912, or 980 12 as the representative of the employ-
ees of their employer-members who were covered by the
collective-bargaining agreement known as the Master
Agreement entered into on September 23, 1971, between
said Employers and said Unions , unless and until said
Unions have demonstrated their exclusive majority repre-
sentative status pursuant to a Board -conducted election.
(b) Maintaining, enforcing, or giving effect to the 1974
contract which has been executed between those Employ-
ers and those Unions covering said employees or to any
extension , modification , or renewal of said contract, unless
and until said Unions have demonstrated their exclusive
majority representative status pursuant to a Board-con-
ducted election.
(c) Entering into any collective -bargaining contract at a
time when a real question concerning representation has
been raised.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Withdraw and withhold all recognition from said
Unions as the representative of said employees , unless and
until said Unions have demonstrated their exclusive major-
ity representative status pursuant to a Board -conducted
election.
(b) Set aside their existing collective -bargaining con-
tracts with said Unions.
(c) Post at their offices and at the offices of all the em-
ployer-members of said Associations , copies of the at-
tached notice marked "Appendix A."13 Copies of said no-
tice , on forms provided by the Regional Director for
Region 20, after being duly signed by said Employers' au-
thorized representatives, shall be posted by said Employers
and by each of their employer-members, immediately upon
receipt thereof , and be maintained by them for 60 consecu-
tive days thereafter , in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by said Employers and
their employer-members to ensure that said notices are not
altered , defaced , or covered by any other material.
(d) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
12 The full names of these Unions are set forth in the caption above.
13 In the event that the Board 's 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."
said Employers have taken to comply herewith.
B. Associated General Contractors of California, Inc.;
the Building Industry Association of California, Inc.; and
the Engineering and Grading Contractors Association,
Inc.; their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Recognizing or bargaining with Joint Council of
Teamsters No. 42, or Teamsters Local Union Nos. 87, 166,
186, 235, 381, 420, 692, 898, or 982,14 as the representative
of the employees of their employer-members who were
covered by the collective-bargaining agreement known as
the Southern California Master Labor Agreement entered
into on May 19, 1968, as amended, between said Employ-
ers and said Unions, unless and until said Unions have
demonstrated their exclusive majority representative status
pursuant to a Board-conducted election.
(b) Maintaining, enforcing, or giving effect to the 1974
contract which has been executed between those Employ-
ers and those Unions covering said employees or to any
extension, modification, or renewal of said contract, unless
and until said Unions have demonstrated their exclusive
majority representative status pursuant to a Board-con-
ducted election.
(c) Entering into any collective-bargaining contract at a
time when a real question concerning representation has
been raised.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Withdraw and withhold all recognition from said
Unions as the representative of said employees, unless and
until said Unions have demonstrated their exclusive major-
ity representative status pursuant to a Board-conducted
election.
(b) Set aside their existing collective-bargaining con-
tracts with said Unions.
(c) Post at their offices and at the offices of all the em-
ployer-members of said Associations, copies of the at-
tached notice marked "Apendix B."15 Copies of said no-
tice, on forms provided by the Regional Director for
Region 20, after being duly signed by the said Employers'
authorized representatives, shall be posted by said Employ-
ers and by each of their employer-members, immediately
upon receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by said Employers
and their employer-members to ensure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
said Employers have taken to comply herewith.
14 The full names of these Unions are set forth in the caption above.
15 See In. 13.