Building Contractors Association of Rockford, Inc.

National Labor Relations Board - Board Decisions

Oct 4, 1962

138 N.L.R.B. 1405 (N.L.R.B. 1962)

BUILDING CONTRACTORS ASSN. OF ROCKFORD, INC., ETC. 1405
Building Contractors Association of Rockford , Inc.; Gund
Graham Co.; Anderson Bros. Contractors ; Shappert Engineer-
ing Company ; V & E Construction Co.; Security Building
Company, Inc.; P. W. Clark Excavating Company; Sjostrom
& Sons, Inc.; Northwestern Illinois Contractors Association;
Northwest Steel Construction Company; Rockford Blacktop
Construction Co.; Chas. Ind Co.; The Holm -Page Company;
Linden & Sons, Inc.; Gust G. Larson & Sons, Inc.; John Fridh
& Sons, Inc.; Rockford Steel Building Company; Belvidere
Construction Co.; E. B . Davis Excavating Co.; Everett R. Estes
and Henry W. Vetterly, a partnership , d/b/a Estes & Vetterly
Contractors ; Gregory Anderson Co.; Scandroli Construction
Co.; Herschel Robert Landolt and Jim Keilbeck , a partner-
ship d/b/a Landolt & Keilbeck ; Rockford Excavating Co.;
Rockford Industries, Inc.; H . H. Mass Construction Co.; R. T.
Madden , Inc.; Ryan Inc.; Janisch Hagerty, Inc.; Richard
Main Co.; Sjostrom Paving Co .; Preston Construction Co.,
Inc.; Edwin Hogan & Sons; Beloit Pipe & Dredge Company;
J. P. Cullen & Son, Inc.; Einar Nelson , Inc.; Freeport Black-
top Construction Company and Local 150, International Union
of Operating Engineers , AFL-CIO, Charging Party. Cases
Nos. 13-CA-3707-1,13-CA-3707-5,13-CA-3707-6,13-CA-3707-7,
13-CA-3707-9, 13-CA-3707-11, 13-CA-3707-13, 13-CA-3707-16,
13-CA-3707-18, 13-CA-3707-19, 13-CA-3707-20, 13-CA-3707-24,
13-CA-3707-28, 13-CA-3707-31, 13-CA-3707-32, 13-CA-3707-44,
13-CA-3707-48, 13-CA-3707-51, 13-CA-3707-56, 13-CA-3707-57,
13-CA-3707-62, 13-CA-3707-66, 13-CA-3707-74, 13-CA-3707-76,
13-CA-3707-84, 13-CA-3707-85, 13-CA-3937-1, 13-CA-3937-2,
13-CA-3937-3, 13-CA-3937-4, 13-CA-3937-5, 13-CA-3937-6, 13-
CA-3937-8, 13-CA-3937-9, 13-CA-3937-11, 13-CA-3937-12, and
13-CA-3937-13. October 4, 1962
DECISION AND ORDER
On August 24, 1961, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel and Charging Party filed exceptions
to the Intermediate Report together with supporting briefs. Briefs
in support of the Intermediate Report and in reply to those of the
General Counsel and Charging Party were filed on behalf of certain
Respondents. A motion to dismiss a brief in support thereof and in
138 NLRB No. 143.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support of the Intermediate Report were filed on behalf of other
Respondents.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record
herein, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner, with the following additions.
The principal issue here is whether the Respondents' suspension of
operations was discriminatorily motivated or was justified and moti-
vated by special economic considerations of the type set forth in the
Betts Cadillac case.' The material facts may be summarized as
follows :
Building Contractors Association of Rockford, Inc., herein called
BOAR, is a nonprofit corporation whose members constitute a volun-
tary association of general contractors and subcontractors engaged in
commercial, institutional, and residential construction within a nine-
county area in Illinois. Northwestern Illinois Contractors Asso-
ciation, herein called NICA, is also a nonprofit corporation whose
members constitute a voluntary association of general contractors and
subcontractors engaged in the construction of roads, bridges, and high-
ways in the same nine-county area. Named as Respondents are BCAR,
NICA, 28 members of either or both of these associations, and 7 non-
members.
Local 150, International Union of Operating Engineers, AFL-CIO,
herein called Local 150, has negotiated collective-bargaining agree-
ments for about 25 years covering operating engineers employed by
members of the associations. During this period NICA took the lead
in negotiating the agreements with Local 150 because its members
employed the majority of operating engineers. Conversely, BOAR
took the lead in negotiating the agreements with the Laborers' union
because its members employed the majority of laborers. NICA would
sign an agreement with Local 150 covering the operating engineers
employed by the NICA members and BCAR would sign a separate
agreement with Local 150 adopting the wage rates, working conditions,
and terms of employment negotiated by NICA for the employment
of operating engineers. The same type of adoption was followed
by NICA as to the agreements negotiated by BCAR with the Laborers'
union. The wage rates established by these agreements have been
I The Charging Party and the Respondents have requested oral argument. These re-
quests are hereby denied because the record, the exceptions , and the briefs adequately
present the issues and the positions of the parties
2 We note that the Trial Examiner states in his Intermediate Report, section III, B,
that Merle Drager did not serve on the BCAR committee because of illness . This is in
error because Drager testified that he participated in the April 29 and the May 6 negotia-
tion sessions between the BOAR and the Local 150 committees.
8 Betts Cadillac Olds, Inc., et at., 96 NLRB 268.
BUILDING CONTRACTORS ASSN. OF ROCKFORD, INC., ETC. 1407
customarily adopted as the union scale in the construction industry
in the Rockford area. In 1960, Local 150 demanded for the first time
that NICA and BCAR negotiate separate agreements for operating
engineers employed by their respective members.
On January 12, 1960, James P. Crane, president of Local 150,
notified the associations that their concurrent contracts would
expire April 30, 1960, and he requested negotiations. The first nego-
tiation session between the NICA and the Local 150 committees was
held on March 2, 1960. Discussion was limited to reaching agreement
and drafting provisions with respect to changes in working conditions
and regulations. Negotiation sessions between these same committees
were also held on April 5 and 15 and May 6. Agreement was reached
at subsequent sessions on all provisions except wages and the term
of the contract.
Business Agent Martin announced at the April 5 negotiation ses-
sion between the Local 150 and NICA committees that he desired to
avoid haggling on the subject of wages, and he requested the NICA
committee to make their best and final offer. NICA proposed a 3-year
agreement with successive annual increases of 15 cents, 10 cents, and 10
cents per hour. Martin proposed a 2-year agreement for 15 cents and
10 cents per hour, but he rejected the 3-year proposal without first sub-
mitting it to the district membership for a vote. A membership
meeting was held the next day and the district membership voted to
reject both proposals and to adhere to its original demand of a 2-year
agreement with successive annual increases of 25 cents and 20 cents
per hour.
At the April 15 negotiation session between the NICA and the Local
150 committees, Business Agent Martin announced that the district
membership had rejected the proposals made at the prior session. In
attendance at this session were Forest Ritzman and William Anderson,
members of Local 150. During this session, either Ritzman or Ander-
son stated, "If we don't get this contract settled, we won't be work-
ing.... You know what happens when Chicago has come into this
picture before, and that's what's going to happen again." Martin
also stated, "And you know what happens when Chicago gets into the
picture."
It may be noted here that Local 150 had called strikes against the
Respondents in 1953 and 1954. Each of these strikes lasted about 2
weeks and were called after the agreements had expired and the parties
were negotiating for new agreements. As a result of these strikes the
members suffered damages, delays in construction work, and extra
costs.
The first negotiation session between the Local 150 and BCAR com-
mittees was held April 29. Full agreement was reached with respect
to changes in working rules and conditions. As to wastes. the BCAR
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee merely affirmed the final offer made by the NICA commit-
tee on behalf of both associations.
At the May 6 negotiation session between the NICA and the Local
150 committees, Martin stated that his hands were tied and that
negotiations were now in the hands of the Chicago office. Martin fur-
ther stated, you know what happens when Chicago takes over." In
reply to what he meant by this statement, Martin explained that when
Chicago took over the 1954 negotiations they had a long strike. Martin
also stated, "I guess I am all done. I personally don't want a
strike. . . . But you might as well know, most of the men want a
strike and with Chicago's insistence you will have a strike, whether we
like it or not."
Martin advised the BCAR committee at the May 6 negotiation ses-
sion that the district membership would accept the agreements reached
on working conditions, but that it had rejected the proposals on wages.
Martin further advised that all wage proposals must be submitted to
the Local 150 membership ; and that the Chicago office would take over
negotiations if the parties could not agree at this meeting.
The associations sent a letter, dated May 9, 1960, to Local 150
stating that they were faced with a strike at any moment despite
the fact that the members of Local 150 had continued to work after
the agreement had expired; and that, because the agreement had ex-
pired and because an impasse has been reached in wage negotiations,
the members were unable to know their labor costs and were placed in
an impossible economic position to bid on new jobs. The letters fur-
ther stated that, under the conditions of an impending strike, the mem-
bers could not assure their customers that once work was commenced,
it would be completed. The letters gave notice that, under the fore-
going circumstances, effective May 12,1960, and continuing until April
30, 1961, there would be wage increases of 15 cents and 10 cents; and
that, if the Local 150 members reported for work under these condi-
tions, such action would be construed not only as acceptance of a con-
tract, but also an agreement to be bound by such contract covering
wage scale and other terms and conditions previously agreed to in
collective-bargaining negotiations.
Local 150 replied to the May 9 letter by telegram, dated May 10.
Each association was advised that Local 150 rejected the proposals;
that Local 150 had directed its members to report for work as usual on
May 12, and on every other day; and that it was prepared to meet with
the committees at a mutually convenient time and place.
William Howard, chairman of the NICA committee, telephoned Lo-
cal 150 President Crane on May 11. Howard asked Crane a series of
questions relating as to how much time they could expect to continue
to work uninterrupted without a contract. Crane's "continuous an-
swer" was no guarantee of any time. Howard then asked Crane if he
BUILDING CONTRACTORS ASSN. OF ROCKFORD, INC., ETC. 1409
would guarantee that Local 150 would not strike for 30, 60, or 120 days,
or give any guarantee of continued work. Crane would give him no
such assurances.4
Each association sent a telegram to President Crane on May 11
requesting Local 150 to agree to an extension of the expired agree-
ment for a period of 120 days pending further negotiations for a new
agreement. The telegrams pointed out that the nature of the con-
struction contracts, undertaken by the members of the association
involved, required assurance of the continued and uninterrupted work
by the members of Local 150.
On May 13, each association addressed separate but identical let-
ters to President Crane and other Local 150 officials summarizing the
status of the negotiations and the substance of the correspondence of
May 9, 10, and 11. Each association noted that it had not received
any reply to its request for the 120-day extension of the expired
agreement. It was pointed out that because of Local 150's failure
to give any assurance whatsoever of any continued and uninterrupted
work, and because a work stoppage could be resorted to at any time
by Local 150, the members were unable to assure owners of a com-
pletion date for any project, nor could they guarantee to the owners
that once work was commenced they could continue uninterrupted
until its completion. It was further pointed out that a work stoppage
which occurs on a construction project once in progress submits the
contractor to serious economic loss and threatens the lives, safety,
and welfare of the public. Local 150 was notified that, for the fore-
going reasons, it had become necessary for the association members
involved to temporarily suspend, as of 5 a.m., Monday, May 16, 1961,
all operations requiring the employment of operating engineers until
a collective-bargaining agreement covering wages and working con-
ditions was reached with Local 150. Having received no reply to
the telegrams of May 11 and the letters of May 13 with respect to
an extension of the expired agreements pending further negotiations,
and having received no assurances from Local 150 not to call a strike
for a definite period of time, the Respondents suspended operations
as noted in the May 13 letter.
At the time of the lockout the Respondents had started or were
about to start various construction jobs costing about $60,000,000.
Included in this amount was about $20,000,000 in road and bridge
construction. Several of the Respondents testified without contra-
diction as to the public hazards involved in the event of a quickie
4 We disagree with our dissenting colleague 's assertion that Crane in a telephone con-
versation with Howard assured Respondents of at least 30 days' strike notice. Our find-
ing, which is exactly the same as that of the Trial Examiner who observed the witnesses,
is based upon Howard 's testimony that Crane refused to give any assurances We note,
moreover, that contrary to Crane's testimony that the membership would first have to vote
a strike, the strike set for August 1 was not one which the membership had previously
voted to call.
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike and the potential damages that could result therefrom. They
pointed out the danger and inconvenience to the public that would
result from a quickie strike while detours were in use, and while
bridges and overpasses were under construction. They pointed out
the need of continuous concrete pours and the necessity for continuous
operations in the construction of bridges, overpasses, and roads. They
estimated substantial amounts of losses that this type of construc-
tion work would entail should Local 150 call a quickie strike.
All negotiations after May 16 were conducted through a mediator.
Various proposals, including settlement of the dispute by arbitration,
were made at these sessions. On June 27, Local 150's attorney sent
telegrams to the associations rejecting certain proposals made on
June 20. The telegrams asserted that Local 150 had given the Re-
spondents written and oral assurances that they would not engage in
a quickie strike, and that, if at any time in the future the employees
desired to strike, this would occur only after a vote of the membership
and thereafter they would be given more than reasonable notice of
such intentions. The telegrams further asserted that, although a
strike at any time was remote, the Union would in any event protect
against loss of life, limb, and property.
The associations, by telegrams and followup letters, dated July 1,
advised Local 150 that this was the first assurance that they had re-
ceived and that therefore operations would be resumed July 5, 1960,
with the same wage rates prevailing when the agreements expired
April 30.
Local 150, by telegrams, dated July 1, notified the associations that
the operating engineers had been locked out; that the Respondents
could recall the operating engineers to active employment any time
they desired; and that the Respondents were obligated to recall them
unconditionally. Local 150 also advised the associations that there
would be a strike on August 1, 1960, if the parties had not reached
an agreement by that time.
Operations were resumed July 5. Thereafter, the parties signed
3-year agreements, effective July 18, providing for successive annual
increases of 20 cents, 171/2 cents, and 171/2 cents per hour.
As stated, the principal issue here is whether the Respondents' sus-
pension of operations with the resulting lockout of the operating en-
gineers was discriminatorily motivated or was for reasons recognized
in Betts Cadillac, supra, as justifying such action. In our view, the
record will not support a finding that the Respondents were motivated
by any unlawful design, but to the contrary, establishes the legitimacy
of Respondents' action.
In the Betts Cadillac case, supra, some 19 respondent automobile
dealer employers were charged with violating the Act by closing down
their service departments when two members of their employer asso-
BUILDING CONTRACTORS ASSN. OF ROCKFORD , INC., ETC. 1411
ciation were struck. The primary reason given by the Respondents
for closing down their service departments was to avoid tying up
customers ' cars in an incomplete state of repairs . Stressing this pri-
mary reasoning , the Board held that the respondents had justified
the shutdowns and has not violated the Act. The Board adopted the
Trial Examiner's statement ( 96 NLRB 268, 286) that:
An employer is not prohibited from taking reasonable measures,
including closing down his plant, where such measures are, under
the circumstances , necessary for the avoidance of economic loss
or business disruption attendant upon a strike . This right may,
under some circumstances , embrace the curtailment of operations
before the precise moment that the strike has occurred.... The
nature of the measures taken, the objective , the timing , the reality
of the strike threat, the nature and extent of the anticipated dis-
ruption, and the degree of resultant restriction on the effective-
ness of the concerted activity , are all matters to be weighed in
determining the reasonableness under the circumstances , and the
ultimate legality, of the employer's action.
The question , thus, is whether Respondents ' action in the circum-
stances of this case meets the test of reasonableness . We think that
it does.
First, the record establishes that in 1953 and again in 1954 Local
150 under circumstances similar to those present here struck the Re-
spondents . These strikes caused the Respondents to suffer financial
losses. Secondly, statements made by Local 150 representatives during
the bargaining sessions gave clear warning to the Respondents- that
unless Local 150's terms were met Local 150 would strike again. Third-
ly, it was testified without contradiction that a quickie strike by Local
150 would cause substantial losses to Respondents. The need for the
continuous pouring of concrete and the necessity for continuous op-
erations in the construction of bridges , overpasses , and roads, once a
phase of such an operation is underway , are obvious . Highly impor-
tant, too, is the uncontroverted testimony that a quickie strike would
not only inconvenience the public , but would create serious dangers
to the health and safety of the public . In these circumstances, it was
not unreasonable for the Respondents to seek some assurance from
Local 150 that the operating engineers would not call a quickie strike,
but would give at least 30 days' notice of any intended strike action.
Such assurance was not forthcoming . In light of Local 150's failure
to give any assurance of continued work, the Respondents ' justified
belief that a strike was imminent, the unusual losses which the Re-
spondents would suffer in the event of a quickie strike, and the dangers
662353-63-vol. 138-90
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the public's health and safety engendered by such a strike, we think
Respondents' decision to suspend operations clearly reasonable.
Under all these circumstances, we find that the suspension of opera-
tions was not discriminatorily motivated, and we shall dismiss the
complaint in its entirety.5
[The Board dismissed the complaint.]
MEMBER BROWN, dissenting :
I dissent from the dismissal of the complaint in this case.
The Board, with court approval, has heretofore held that, absent
.special circumstances, an employer may not lock out his employees
during bargaining in aid of his bargaining position. At the same
time, it has recognized that lockouts are permissible to safeguard
against unusual operational problems or hazards or economic loss
where there is reasonable ground for believing that a strike is
imminent .6
Applying these guideposts, I cannot accept my colleagues' finding
,of a "justified belief" by Respondents when they locked out their
operating engineers that a quickie strike was imminent. Strikes
may have taken place in 1953 and 1954, as found by the Trial Exam-
iner, but there were no strikes in the years which followed and it
has not been found that even those strikes were sudden ones, called
without any notice. And while a strike was mentioned during the
bargaining negotiations of 1960, the record shows that Local 150's
last words on the subject before the lockout were of assurance against
.a sudden strike. Thus, its telegram of May 10 advised Respondents
that Local 150 members had been directed to report for work as
usual on May 12, and on every other day, and that the Union was
prepared to meet and continue bargaining as it had been doing since
the contract's termination. In addition, the record shows that on
May 11, when Chairman Howard of the NICA committee telephoned
President Crane of Local 150 and asked for at least 30 days' notice
of any intended strike action, Crane's reply was that any strike vote
would have to be taken at a regular monthly meeting, that the next
,such meeting was to be held on the first Wednesday in June, and that
a 30 days' notice would be given in the event of a strike vote. No-
where is it contended that any more time than this was necessary
to safeguard against all consequences of a strike? Howard did not
deny that Crane made such a statement. While it did not constitute
6In view of our dismissal of the complaint on the merits as to all Respondents, we find
It unnecessary to adopt or pass upon the Trial Examiner's findings as to lack of jurisdic-
tion over certain Respondents who were not members of either association.
6 See, for example, Quaker State Oil Refining Corporation, 121 NLRB 334, enfd. 270
'F. 2d 40 (C.A. 3) ; Utah Plumbing and Heating Contractors Association and its Members,
126 NLRB 973, enfd. 294 F. 2d 165 (CA. 10)
° Significantly, the shutdown, when it came, took but 5 days
BUILDING CONTRACTORS ASSN. OF ROCKFORD, INC., ETC. 1413
the specific guarantee sought by Howard, it did give the Respond-
ents assurance that a strike certainly was not an imminent event.
Moreover, the Respondents' past experiences in negotiating with the
Union should have further assured them that the Union did not
lightly regard its responsibilities. In 1953 and 1954, the Union did
not go out on strike until there had been more than 4 months of
negotiations. In the light of such background, I fail to see where,
with no more than four bargaining meetings with Respondent NICA
and two meetings with Respondent BCAR, the Respondents had any
reason to anticipate a sudden strike in the present situation. Nor,