Carpenters' District Council

National Labor Relations Board - Board Decisions

Sep 26, 1985

276 N.L.R.B. 682 (N.L.R.B. 1985)

682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters ' District Council of St. Louis, an affiliate
of the United Brotherhood of Carpenters &
Joiners of America , AFL-CIO, and Dan Ficken
Construction Company. Case 14-CB-6015
26 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND, MEMBERS
DENNIS AND JOHANSEN
On 8 February 1985 Administrative Law Judge
Elbert D. Gadsden-issued the attached decision.
The Respondent, the General- Counsel, and the
Charging, Party filed exceptions and supporting
briefs.
The National Labor Relations Board has delegat-
ed =its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the. judge's rulings, findings, 'and
conclusions and to -adopt the recommended Order
as modified.
We find merit in the General Counsel's excep-
tions concerning the failure of the judge's recom-
mended Order to remedy fully the Respondent's
unlawful refusal to accept and credit fringe benefit
contributions from Dan Ficken Construction Com-
pany and, Mueller Construction Company and the
failure to sell such fringe benefit stamps to Ficken
and Mueller. We shall modify the recommended
Order accordingly. We also agree that the judge
inadvertently cited the wrong "Letter of Under-
standing" at the beginning of part S C of his deci-
sion. The letter to which the judge refers, which
was in evidence, would, in fact, have bound•Ficken
and Mueller to the AGC collective-bargaining
agreement.
- ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Carpenters' District Council of St. Louis,
an affiliate of the United Brotherhood of Carpen-
ters and Joiners of'America , AFL-CIO, St. Louis,
Missouri , its officers , agents , and representatives,
shall take the action set forth . in the Order as modi-
fied.
1. Substitute the following for paragraphs 2(b)
and (c).
"(b) Accept and credit to the respective accounts
of Dan Ficken Construction Company and Mueller
Construction Co. all -payments, past and current,
submitted to the Respondent ' by them to purchase
medical insurance and' health and welfare stamps,
276 NLRB No. 71
and sell such fringe benefit stamps to Ficken and
Mueller.
"(c) Post at-its offices and meeting halls in St.
Louis, Missouri, copies of the 'attached notice
marked "Appendix."3 Copies of the notice, on
forms provided by the Regional Director for
Region 4, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to mem-
bers are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any
other material."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board 'has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT question the authority of Larry
Goodwin, or any other member-employers affili-
ated with Mid-East Missouri Contractors Associa-
tion' (MEMCA), because Goodwin or such other
member-employers serve as bargaining representa-
tives for MECA, and WE WILL NOT fail and refuse
to meet and bargain with MEMCA in order to
force'MEMCA affiliates to select Associated Gen-
eral -Contractors (AGC) as their bargaining repre-
sentative.
WE WILL NOT fail'and refuse to sell Dan Ficken
Construction Company and Mueller Construction
Company, or other member-employers of
MEMCA, health and welfare and fringe, benefit
stamps, in order to force them to authorize Associ-
ated General Contractors as their bargaining repre-
sentative and bind them to pay AGC wage rates in
Jefferson and Washington counties.
WE WILL NOT in any like or related manner re-
strain or coerce employees employed by the em-
ployer-members of Mid-East' Missouri Contractors
Association in the exercise and enjoyment of the
rights guaranteed them by Section 7 of the Nation-
al Labor Relations Act.
WE WILL, on request, bargain with MEMCA on
behalf of MEMCA member-employers engaged in
general construction contracting in the Missouri
counties of Jefferson, Washington, St. Francois,
CARPENTERS ST LOUIS COUNCIL (FICKEN CONSTRUCTION)
Iron, Madison, and Franklin, but not including the
city of St. Louis .and St. Louis County, which
exists for the purpose, inter alia, of representing the
employer-members -in negotiating and administering
collective -bargaining - agreements with Respondent
Carpenters' District Council (CDC) for employees
described in the appropriate unit as follows:
All carpenters and joiners employed by mem-
bers of MEMCA on jobsites located in the
Missouri counties-of Jefferson and Washing-
ton,` excluding office clerical and professional
employees , guards and supervisors as defined
in the Act, and all other employees.
WE WILL accept and credit to the respective ac-
counts of Dan Ficken Construction Company and
Mueller Construction Company all payments, past
and current, submitted to us by them to purchase
medical insurance and health and-welfare stamps,
and WE WILL sell such fringe benefit stamps to
them.Carpenters' District Council of-St. Louis, an
affiliate of the United Brotherhood of Carpenters &
JOINERS OF AMERICA, AFL-CIO
Michael ,T Jamison, Esq.', of St. Louis, Missouri, for the
General Counsel.
Morris- J. Levin,- Esq. (Levin & Weinhas), of St. Louis,
Missouri , for the Respondent.
DECISION
STATEMENT OF THE CASE
ELBERT D. 'GADSDEN,' Administrative Law Judge.
Upon charges of unfair labor practices filed on July 25,
1983; by. Dan Ficken Construction Company (Ficken or
Charging Party), against Carpenters District Council of
Greater St. Louis, an affiliate of United Brotherhood of
Carpenters & Joiners of America, AFL-CIO (Respond-
ent 'or CDC), a complaint was issued by the Regional
Director for Region 14, on behalf of the General Coun-
sel on September 8, 1983.
The amended complaint in substance alleges that since
about April 15, 1983,and continuing, Respondent has
failed and refused to meet and bargain with the exclusive
collective -bargaining representative of the employees in
the appropriate unit herein described unless Larry Good-
win ceased to act as one of Mid -East Missouri Contrac-
tors Association (MEMCA?s) designated - agents for such
purpose ; that since May 13 , 1983 and continuing to date,
Respondent has failed and refused to sell Charging Party
Ficken health and welfare-e insurance coverage ; that since
May 13, 1983, and until May 5, 1984, Respondent' has
failed and refused to sell health and . welfare benefit
stamps to Mueller Construction Company (Mueller), and`
has attempted' to cause ••Ficken and Mueller to execute
letters of understanding to Associated General Contrac-
tors (AGC), iii an attempt.to -force or require Ficken and
Mueller to join the AGC, or select it as their bargaining
repesentative , all in violation of Section 8(b)(1)(B) and
(3) of the Act. ,
683-.
The Respondent , Carpenters District Council (CDC),
filed an answer on September 16, 1983 , denying that it
has'. engaged in any' unfair labor practices as alleged in
the complaint. -
The hearing in the above matter was held before me in
St. Louis, Missouri , 'on June 5 and 6, 1984 . Briefs have
been received from the General Counsel and counsel for
the Respondent , respectively , which have been carefully
considered.
On the entire record in this case and from my observa-,
tion of the witnesses , I make 'the following
FINDINGS OF FACT
1. JURISDICTION
At all times material herein , Dan Ficken Construction
Company ,, the Charging Party, is and has been at all
times material herein a corporation duly organized
under , and existing by virtue of the laws of the State of
Missouri.
Ficken has at all times material herein maintained ' an
office and a place of business in the City of Festus, Mis-
souri, where it is engaged in business as a general con-
struction contractor:
Mid-East Missouri Contractors Association (MEMCA)
is, and has been at all times material herein, an organiza-
tion composed of employers engaged in general con-
struction contracting in the Missouri Counties of Jeffer-
son, Washington,' St.. Francois, Iron , Madison, and
Franklin , but not including the city of St. Louis and St.
Louis' County, which exists for the purpose of represent-
ing the employer-members in negotiating and administer-
ing collective -bargaining agreements with . Respondent
Carpenters' District Council (CDC).
At all times material herein , Charging Party Dan
Ficken Construction Company (Ficken); Compton Con-
struction Company (Compton); Goodwin Brothers Con-
struction Company (Goodwin ); and Mueller Construc-
tion Company (Mueller), have been , and are now, em-
ployer-members of MEMCA.
At all times material, the following named companies
are and have been corporations duly organized under,
and existing by virtue of, the laws of the State of Mis-
siouri , and are now and have been engaged in business as
general construction contractors, maintaining their office
and place of business at the address following their re-
spective names : Mueller-Desoto , Missouri ; Goodwin-
Industrial Court Drive, Crystal City, Missouri; Comp-
ton-408 Jefferson , Crystal City, Missouri.
During the 12-month period ending August 31, 1983, a
representative period , Goodwin' and Compton, at all
times material , in the course and conduct of their busi-
ness operations, purchased and caused to be transported
and delivered to their aforedescribed respective business
addresses , construction materials and other goods and
materials valued in- excess of $50,000 each , which goods
and materials valued in excess of $50,000 were transport-
ed and delivered to their respective places of business in
Missouri , directly from points located outside the State
of Missouri.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the Respondent's answer does
not deny, and I find that members of MEMCA, includ-
ing employer-members Compton and Goodwin are now
and have been at all times material , employers engaged
in commerce within the meaning of Section.2(6) and (7)
of the Act.
The 'complaint alleges, the answer admits, and I find
that Respondent, Carpenters District Council of St.
Louis, affiliated with United Brotherhood of Carpenters
and Joiners of America, AFL-CIO is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
Respondent admits that at all times the following
named persons occupied positions following their respec-
tive ^ names, and have been and are now supervisors
and/or agents of the employers within the meaning of
Section 2(11) of the Act: Larry D. Compton, chairman
of the board, and chairman-MECA; Larry W. Goodwin,
president and vice chairman-MEMCA; David F.
Mueller, president-Mueller; Daniel E. Ficken, president-
Ficken.
At all times material, the following named persons oc-
cupied positions following their respective names, and
have been and are now agents of Respondent , acting on
its behalf, within the meaning of Section 2(13) of the
Act: Ollie W. Langhorst, executive secretary-treasurer,
and Leonard Terbrock, business representative.
The parties stipulated that the following employee-
members of MEMCA constitute a unit appropriate for
the purpose of collective bargaining within the meaning
of Section 9(b) of the Act:
All carpenters and joiners employed by members of
MEMCA on jobsites located in the Missouri coun-
ties of Jefferson and Washington, excluding office
clerical and professional employees, guards and su-
pervisors as defined in the Act, and all other em-
ployees.
The parties further stipulated that since 1972 and con-
tinuing to date, Respondent (CDC) has been the desig-
nated exclusive collective-bargaining representative of
the employees in the unit described above; and that Re-
spondent and MEMCA have entered into successive col-
lective-bargaining agreements. The MEMCA agreement,
which is a subject of controversy herein , was effective
May 1; 1980, to April 30, 1982, and it provided that it
shall be automatically renewed for additional periods of
1 year each, from year to year, unless . at least 60 days
prior to termination of the original term, or any subse-
quent 1-year term, either party gives the other party
written notice of its intention to terminate, modify, or
amend the agreement.
The parties also stipulated that-James Watson, business
representative of Respondent, acted on behalf of Re-
spondent and was its agent within the meaning of Sec-
tion 2(13) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Since 1972 Mid-East Missouri Contractors Association
(MEMCA) is, and has been at all times-material, a multi-
employer collective-bargaining association, to which ex-
clusive bargaining rights have been assigned and in
which membership is held by the following construction
contractor-employers:
Dan Ficken Construction Company (Ficken)
Goodwin Brothers Construction Company (Good-
win)
D. F Mueller Construction Company (Mueller)
L. D. Compton Construction Company (Compton)
Kenneth Staat Construction Company -(Staat)
Bridwell Construction Company (Bridwell)
D. F. Mueller Construction Company (Mueller) had
assigned bargaining rights to MEMCA until May 1984
when Dave Mueller withdrew the bargaining rights from
MEMCA. Construction by MEMCA members is per-
formed essentially in the Missouri counties of. Madison,
Lincoln, Iron, St. Francois, Washington, and Jefferson,
and since 1972 each member contractor has entered into
successive contracts with Respondent Union (CDC), the
most recent of which was a 2-year contract effective
May 1, 1980, to April 30, 1982. As a result of Respond-
ent's (CDC) failure to give timely notice of its desire to
terminate or amend the contract, the contract by its
terms was extended for 1 year to April 30, 1983.
Although Respondent has had a bargaining relation-
ship with MEMCA, it has also been a party to successive
collective-bargaining agreements with Associated Gener-
al Contractors (AGC), also a multiemployer bargaining
association . AGC initially claimed the jurisdiction of the
Missouri counties of St. Charles, Lincoln, Jefferson,
Franklin, Warren, St. Louis County, and St. Louis City.
Approximately 5 years ago, AGC added Iron, Reynolds,
Washington, and St. Francois Counties to its jurisdiction,
resulting in some additional jurisdictional overlapping,be-
tween AGC and MEMCA. Respondent's agreements
with the two bargaining associations contained similar
wage terms until about April 30, 1982.
The contract between Respondent. and AGC effective
May 1, 1980, to April 30, 1983, provided for a third-year
increase of $1.20, which on Apnl 30, 1982, resulted in a
differential of a $1.20 with the rate paid by MEMCA
members during the extended contract (May "1, 1982-
April 30, 1983) with Respondent. MEMCA nevertheless
agreed to bargain with Respondent between May 1,
1982, and December 31, 1983, for. a contract for the year
May 1, 1982, to April 30, 1983.1
B. Dual Assignment of Bargaining Rights and
Disputed Expiration of the MEMCA Contract
The record shows that Goodwin Brothers assigned its
bargaining . rights to MEMCA in 1975 (G.C. Exh. 9),
I The above facts set forth are undisputed and are not in conflict in the'
record
CARPENTERS ST LOUIS COUNCIL (FICKEN CONSTRUCTION)
which since has been maintained to the present date.
However, on October 31, 1980, Goodwin Brothers, in
unrestricted language (G.C. Exh. 10) authorized AGC to
bargain for Goodwin
Ina letter dated November 4, 1980, AGC Manager
Hamilton notified Respondent (CDC) that Goodwin had
designated AGC its bargaining agent and had signed sig-
nature sheets to the 1980-1983 contract between AGC
and Respondent. Respondent did not question or grieve
Goodwin's assignment to the AGC:
During the hearing, Larry Goodwin and the manager
of AGC, Joe Hamilton, - testified that the Goodwin
Brothers' bargaining authorization was given to AGC for
a major project Goodwin had in St. Louis County, and
that Goodwin abided by the AGC contract when work-
ing in St. Louis City and St. Louis County, but it would
abide by the MEMCA contract when working in Jeffer-
son or Washington Counties.
At the hearing Respondent produced a letter dated
February 26, 1982 (R. Exh. 3), notifying MEMCA that
since their mutual contract would expire May 1, 1982,
while all other labor agreements would not expire until
May 1, 1983 , Respondent desired to commence negotia-
tions for an agreement for the year May 1, 1982, through
April 30, 1983. However, undisputed testimony of Larry
Langhorst, executive secretary-treasurer of Respondent
(CDC), established that Respondent's letter was not de-
livered to MEMCA. The letter was addressed to Larry
Compton, P. O. Box 95, Festus, Missouri, which address
is separated by one side of the street from the other side
of the street on which MEMCA's office is located in
Crystal City, Missouri. The letter was returned March 10
1982, marked "Incorrect Address." Respondent (Langh-
orst) enclosed the returned letter in a letter to MEMCA
(Compton) dated March 11, 1982, advising that Respond-
ent's office had misfiled MEMCA's'card but Respondent
was awaiting MEMCA's call to negotiate a contract. No
response was received from MEMCA.
Meanwhile, on May 4, 1982, Respondent proposed
amending its contract with MEMCA but in a reply letter
dated May 7, 1982, MEMCA rejected the proposal. In-
stead, MEMCA proposed a 2-year contract with no in-
crease in wages and advised Respondent of its availabil-
ity on May 12, 1982, for discussion on its proposal. The
parties nevertheless met May" 3 or 4, 1982, at Theadore's
Cafe in Festus, and MEMCA's chairman , Compton, told
Respondent (Langhorst) its belated misdirected notice of
March 1 , 1982 to negotiate a 1-year contract was not
timely transmitted and, by virtue of the language in arti-
cle XV, p. 33 of the contract, the 1980-,1982 contract
was extended for 1 year after the expiration date of the
contract until April 30, 1983.
MEMCA and Respondent met several times in negoti-
ation sessions in-early May 1982 but were unable to
reach an agreement . On''May 7 or 10, 1982; Respondent
proceeded to picket jobsites of MEMCA and jobsites of
other member 'contractors including Goodwin Brothers
and L. D. Compton. MEMCA members immediately ini-
tiated legal proceedings for injunctive relief and Re-
spondent (CDC) -withdrew the pickets 3 days later.
Respondent contends its untimely notice (letter' of
March 1, 1982) to MEMCA was due to Postal Service
685
failure to -deliver the notice to - MEMCA on the other
side of the street, thereby excusing it from delayed deliv-
ery and resulting in termination of the contract on April
30, 1982. MEMCA maintained that the contract by
virtue of its language was extended to -April 30, 1983
The parties nevertheless met between May 1982 and Jan-
uary 1983 and discussed an agreement to supplement the
1980-1982 contract but they, were unsuccessful in reach-
ing an agreement, because MEMCA wanted to retain the
'$1.20 wage differential between the MEMCA extended
agreement and the 1980-1983 agreement between the Re-
spondent and AGC. Respondent rejected MEMCA's
offer to pay the AGC contract rate if the $1 20 differen-
tial were maintained when working on projects of $3
million or less.
Since the extended 1982-1983 agreement was ap-
proaching expiration, both Respondent and MEMCA ex-
changed notices to terminate the agreement.
Compton undisputedly testified that during a telephone
conversation on March 7, 1983, to schedule a negotiating
meeting , Respondent's secretary-treasurer, Langhorst,
said it might not be a good idea for Respondent to meet
with MEMCA because Larry Goodwin was serving as a
MEMCA bargaining representative, and if Langhorst
bargained with Goodwin, it might jeopardize Respond-
ent's position. In a letter of the same date (March 7,
1983), MEMCA (Compton) notified Respondent (CDC)
it was ready to meet and discuss a new contract., Subse-
quently, MEMCA Chairman Compton and Goodwin
(who had purchased the shares of his brother, Steve
Goodwin) met with Respondent's secretary-treasurer,
Langhorst, Jim Watson, and their business agent, Larry
Terbrock on March 18, 1983, to, discuss a new agree-
ment.
During the March 18 meeting, Langhorst;,stated, as he
had previously stated during a prior telephone conversa-
tion on March 7, that he felt "our negotiating committee
may jeopardize our position in upcoming litigation" -"that
maybe it was not a good idea for me to attend the meet-
ing," since Goodwin Brothers had their bargaining rights
with AGC and he had been successful in obtaining a
contract with AGC. The parties nevertheless negotiated
without reaching an agreement . They discussed the $1 20
differential in the outer counties which was lower than
the rate in the Metropolitan St. Louis district.
Compton credibly testified without dispute that he
called Respondent at least every 30 days between April
14 and July 1983 to schedule a negotiating-meeting, but
Respondent (Langhorst) often said it could not find its
appointment book and that its. time was pretty much
filled up with other negotiating meetings.
In a letter dated July 6, 1983, from Compton to Re-
spondent, MEMCA pointed out that-it had been working
16 months without an agreement and urged a negotiating
meeting within 10 days.
When the parties met again on April 14, 1983, at
which time Goodwin was not present , no agreement was
reached. However, according to Compton's credited tes-
timony, Langhorst told him when he (Langhorst) was
ready to talk to him again he (Langhorst ) would let him
know . On cross-examination Compton acknowledged
686' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that MEMCA knew during late April and May 1983 that
Respondent was negotiating for some 40 or 50 contracts
with AGC on behalf of the Homebuilders Association of
St. Louis and the St. Louis Area Independent Builders
(involving some 3 to 400 employees) because the AGC's
contracts with them were to expire May 1, 1983. The
parties stipulated that MEMCA and Respondent did not
have any face-to-face negotiating meetings between April
15 and August 15, 1983, although they had telephone dis-
cussions during that period. The charges herein were
filed on July 25, 1983, and the parties met for negotia-
tions on August 15, 1983.
Although the records show that Goodwin authorized
its bargaining rights to the AGC in October 1980, Good-
win paid the AGC wage rate only when it was working
in St. Louis and St.-Louis County, Missouri, and it paid
the MEMCA wage rate-when it worked in Jefferson and
Washington Counties, as Goodwin testified he had ad-
vised the AGC at the time of the assignment in October
1980. As early as May 1982 Respondent knew that
Goodwin was not paying AGC wage rates when it was
not working in St . Louis City and St. Louis County. Re-
spondent admits that it knew but said' it did, nothing be-
cause of the disputed extension of the. 1980-1982 contract
with-MEMCA. However, in May 1983, when Respond-
ent was approaching conclusion of contract negotiations
with AGC, Respondent sent a letter (G.C. Exh. 11) to
Goodwin advising that Goodwin's bargaiiiing rights as-
signment to the AGC covered Iron, Madison, Reynolds,
St. Francois, Washington, Lincoln, and Jefferson Coun-
ties; and that Goodwin was expected to comply with the
AGC wage rates when working in any of those counties.
Compton undisputedly testified herein that Goodwin
Brothers has never notified MEMCA it was terminating
its bargaining relationship with MEMCA, and that in
fact Goodwin's bargaining rights remain with MEMCA.
In a grievance letter dated August 18, 1983, Respond-
ent again advised Goodwin about complying with the
AGC wage rates ' of the newly executed AGC contract
of May 11, 1983, and referred the grivance to a three-
member board-of AGC for investigation , hearing, and
decision. Respondent also requested Goodwin to name
its representative for arbitration. Not receiving- a reply
from Goodwin, Respondent sent another letter dated
August 29, 1983, urging Goodwin to designate its repre-
sentative for arbitration.
C. Did Respondent Attempt to Coerce Ficken and
Mueller to Reassign Their Bargaining Rights from
MECA to the'AGC?
A document entitled "Letter df Understanding for St.
Louis Areas Building Contractors" dated April 22, 1983,
was sent by Respondent to Ficken and Mueller Con-
struction companies, respectively. The letter of under-
standing contained the following language:
I, - agree that in the event negotiations
have not been completed between the Carpenters'
District Council of Greater St.- Louis and the bar-
gaining units , we agree to work past the expiration
date of the current labor -management agreement of
April 30, 1983 while agreement is being negotiated.
We further agree that we will pay wage and fringe
benefit increases retroactive to May 1, 1983.
I also agree to accept the balance of the terms of
the labor agreement which shall be determined by
negotiation with the Mid-East Missouri Contractors
Association. -
If Ficken and Mueller- had signed the above letter of
understanding they, in effect, would have been binding
their respective companies to the new contract agreed
upon' by Respondent and the AGC. Ficken and Mueller
not having been members of, and not having reassigned
their bargaining rights to AGC, disregarded the letters of
understanding since their bargaining rights remained' as-
signed to MEMCA. " •
In a letter dated July 1, 1983,(G.- Exh. 20) benefits
plans administrator of Carpenters -Health and' Welfare
Trust Fund of St. Louis, Howard, Martin , advised Ficken
and Mueller that their payments for health- and welfare
benefits for May, June, and July 1983, received May 10,
1983, will be held until July 15, 1983, pending notifica-
tion from Respondent that Ficken and Mueller had
signed the required letter of understanding. Otherwise,
the benefit payments will be returned to Ficken and
Mueller as unacceptable. - -
Neither Ficken nor Mueller had previously experi-
enced any problems with Respondent accepting their
benefit payments for health 'and welfare insurance.
Ficken immediately attempted to contact -Respondent
(Langhorst) and Martin to inquire why their payments
were not acceptable. He was referred to Martin's assist-
ant, "Bob," who informed him he would ` be , back in
touch with him. Later Bob called Mrs. Ficken, wife of
Dan Ficken, and - advised her that Respondent had in-
structed the Health and Welfare Trust Fund not to
accept payments from Ficken because -Ficken did not
have a signed contract or letter of understanding with
Respondent. Having discarded the April 22, 1983, letter
of understanding, Ficken called the business agent,
Watson, and requested a copy of the April 22 letter of
understanding. Watson delivered a copy, of the letter of
.understanding to Mrs. Ficken and requested her-to sign
it but she refused to do so. Watson then- left a copy of
the AGC's recently negotiated wage rates with Mrs.
Ficken. Since neither •Ficken nor Mueller desired to
withdraw their bargaining nights from MEMCA, they al-
tered the letter of understanding to read that they would
accept whatever agreement "was reached as "shall be de-
termined by -negotiations with the Mid-East Missouri
Contractors- Association," and they mailed the altered
letter to Respondent. -
In a letter dated July 8, 1983, (G.C. Exhs. 2 and 3), Re-
spondent advised Ficken and 'Mueller that their altered
letters of understanding were unacceptable as altered,
and that in the absence of a signed unaltered letter-of un-
derstanding, Respondent could-not accept 'their health or
benefit insurance payments. Ficken and Mueller's checks
were returned to them by Martin in a letter dated July
18, 1983 (G.C. Exh. 23), advising that their payments
were not acceptable without letters of understanding and
that their insurance coverage" had ceased"-or will 'termi-
nate July 31, 1983. '^`"
CARPENTERS ST. LOUIS COUNCIL (FICKEN CONSTRUCTION)
Ficken wrote a letter dated July 20, 1983 (G.C Exh.
24), acknowledging receipt of Martin's July 18 letter and
the return of his benefit payments from Respondent.
Hence, both Martin and Respondent had informed
Ficken that his benefit payments were not acceptable in
the absence of a signed unaltered letter of understanding.
Ficken returned his insurance check to Respondent for
$552, stating that he would hold all persons or entities
liable for any money damages he sustains as a result of
his insurance payments not being accepted.
Respondent did not respond to Ficken's July 20 letter,
and Ficken filed unfair labor practice charges with the
Board against Respondent on-July 25, 1983. On August
1, 1983, Ficken forwarded his regular benefit premium
for $552 to Respondent for the August-October 1983
quarter.
In a letter dated August 18, 1983 (G.C. Exhs. 26 and
30), Respondent (Langhorst) informed Ficken and
Mueller that the letter of understanding dated April 22,
1983, had been transmitted to them as a result of a cleri-
cal error, and that the letters as well as Respondent's
letter of July 8, 1983, should be disregarded. Respond-
ent's letter continued as follows:
The reason why health & welfare and benefit
contributions cannot be accepted from you is that
neither of you or the contractors association of
which you are a member has had a contract with
our union since the old agreement expired on April
30, 1983. The Labor Law expressly prohibits pay-
ment by an employer or acceptance by any benefits
fund of any monies to health & welfare or related
benefit funds in the absence of a written contract
between the union and the employer.
Until there is a contract 'in -force and effect be-
tween the Union and you or the association of
which you are a member, no payments, can be ac-
cepted from you by the benefits fund.
Ficken responded by letter dated August 23, 1983, no-
tifying Respondent he considered Respondent's August 8
letter an insult to his intelligence and that he did not be-
lieve the clerical explanation to be credible. Instead,
Ficken said, he interpreted Langhorst and Martin's letter
as an attempt to coerce Ficken to change bargaining
agents from MEMCA to AGC, and Respondent's recent
(August 18) letter was simply an attempt by Respondent
to cover up its primary intent to coerce him (Ficken) to
switch bargaining agents from MEMCA to the AGC.
Respondent replied by letter dated August 29, 1983
(G.C. Exh. 28), stating that, irrespective of Ficken's sus-
picion, the reasons for not accepting Ficken's payments
as set forth in Respondent's letters of April 22 and July
8, 1983, were correct; that Respondent was not trying to
force Ficken to change, its membership or bargaining
rights assignment 'from MECA to the AGC; and 'that
benefit' payments cannot- be accepted from Ficken in the
absence of a contract or letter of understanding between
Ficken and Respondent.
About May 5, 1984, Mueller withdrew its bargaining
rights assignment from MECA and signed a contract
with Respondent providing the same wages as provided
687
in the contract between the AGG and Respondent
Ficken has not signed a contract with Respondent and
has not withdrawn its bargaining rights from MECA.
Respondent continues' to refuse to accept benefit pay-
ments from Ficken.
D. Analysis and Conclusions
The complaint alleges that Respondent violated Sec-
tion 8(b)(1)(B) and (3) of the Act by questioning the au-
thority of. Larry Goodwin, of Goodwin Brothers, to
serve as a bargaining representative of MEMCA, and
failing and refusing to meet and bargain with MEMCA
from April 14 to August 15, 1983, in an effort to force
MEMCA members to designate AGC as their bargaining
representative. -
As to whether Respondent failed and refused to bar-
gain with MEMCA because Larry Goodwin was a
member of MEMCA's bargaining committee, the evi-
dence shows that Goodwin Brothers assigned its bargain-
ing rights to MEMCA on April 21, 1975. The assign-
ment contained no' restrictions or qualifications and
stated that the -authorization shall remain in effect until
written notice was given to the contrary
Subsequently, on October 31, 1980, Goodwin Brothers
authorized AGC to bargain 'on its behalf as follows:
We hereby reaffirm and ratify your appointment
and designation by the undersigned, to operate
through your authorized officers and committees, as
our sole and exclusive negotiating and collective
-bargaining agent and representative, with power to
act and contract'on our behalf, operating as a multi-
employer association, group or unit, for all matters
in connections with, or relating' to, labor negotia-
tions and collective bargaining . . . .
This organization shall remain in effect- during all
contract negotiations once started until their consu-
mation and also thereafter until' written notice to
you. to the contrary has been received by you.
.Goodwin Brothers also signed the signature sheets to
.the AGC 1980 to April 30, 1983 contract Neither of the
above bargaining authorizations has been rescinded or
withdrawn by Goodwin. Nor has Goodwin's ratification
of the AGC 1980-1983 contract been rescinded. During
the period April 14 to August 15, 1983, AGC had bar-
gaining jurisdiction in St. Louis City and St. Louis
County, and both MEMCA and AGC had bargaining ju-
risdiction in the counties of Washington and Jefferson,
Missouri. The wage rates of the MEMCA 2-year (1980-
4982) contract was the same as • the wage rates for the
first 2 years of the AGC 3-year (1980-1983) contract.
However, at the end of the first 2 years (May 1, 1982) of
the AGC contract, the wage rates-by terms of the con-
tract-increased $1.20 and resulted in a $1.20 differential
with the wage rates of the MEMCA contract. The
MEMCA contract was extended an additional year by
language in the 2-year contract because Respondent de-
faulted iii giving timely notice to MEMCA that it de-
sired to amend or'terminate the agreement.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consequently, a major part of the dispute in the instant
case arises _ out of .the above-described dual bargaining
rights assignment of Goodwin and, the fact that the 2-
year contract between Respondent and MEMCA expired
on April 30, 1982, and the 3-year (May 1, 1982-April 30,
1983) contract between Respondent and AGC imple-
mented, in accordance with its terms, a $1.20 increase on
May 1, 1982. However, owing to the untimely notice by
Respondent to MEMCA of its desire to amend or termi-
nate its contract with MEMCA, the terms and wage
rates of the 1980-1982 contract between them were ex-
tended for 1 year, until April 30, 1983. Prior to May 1,
1982, both contracts and all prior contracts adopted by
acclamation by Respondent and MEMCA provided for
the same wage rates in all geographical jurisdictions.
Subsequent to April 30, 1982, Goodwin with its dual
bargaining authorizations, to MEMCA and AGC, contin-
ued to pay the same 1980-1982 wage rates under. the
MEMCA agreement when its employees worked in
Washington and Jefferson Counties, and paid the new
$1.20 increased wage rates under the AGC agreement
when its employees worked ; in St. Louis City or St.
Louis County. Goodwin also continued to .purchase
health and welfare benefit stamps for its employees under
the AGC agreement dunng the extended period.
Although, Respondent (CDC) maintained that the
1980-1982 contract had expired and was not extended as
MEMCA maintained, Respondent nevertheless agreed to
bargaining with MEMCA to negotiate a 1-year contract.
Meanwhile, subsequent to April 30, 1982, Goodwin was
paying its employees working in Jefferson County $1.20
less than the AGC contract provided for its, members
employees. Goodwin maintained that the $1.20 wage dif-
ferential was justified because Goodwin was bound by
the MEMCA contract when its employees worked in
Jefferson and Washington Counties, whereby it was
bound to pay the additional $1.20 wage differential under
the AGC contract when its employees worked in St.
Louis City or St. Louis County.
The parties (MEMCA and Respondent) met in negoti-
ations between May 1982 and January 1983 but were not
successful in resolving the $1.20 wage differential issue,
or agreeing upon a 1-year contract. During a telephone
conversation about March 7 or 17, 1983, Respondent
(Langhorst) expressed reservations 'to MEMCA (Comp-
ton) about bargaining with. MEMCA 's bargaining com-
mittee, on which Larry 'Goodwin served, since AGC
also held bargaining rights for Goodwin Construction
Company and Respondent already had an executed con-
tract with AGC.
Respondent (Langhorst) reiterated its concern dunng
the March 18,:19 ' 83 negotiating session with MEMCA
about Goodwin serving as a bargaining representative
for •MEMCA, but the parties nevertheless negotiated
without reaching an agreement . When the parties met on
April 14, 1983, Respondent again expressed its concern
about the dual bargaining representation of Goodwin,
who was not present. Respondent's Langhorst told
MEMCA's Compton when he (Langhorst) was ready to
talk to MEMCA again , he would let Compton know.
Langhorst testified that the latter, statement by him
meant that he would be tied up in negotiations on behalf
of AGC employers and the evidence of record seems to
support his explanation in this regard However, Langh-
orst's subsequent conduct raises some questions about the
credibility of his explanation It is true that for several
weeks subsequent to the parties April 14 negotiating
meeting, Respondent (Langhorst) was engaged in negoti-
ations for some 40 or 50 contracts on behalf of 127 AGC
employers and their collective 3,000 to 4,000 employees
until about May 11, 1983. There were no negotiating ses-
sions with MEMCA during that period.
However, on May. 12, 1983, Respondent notified
MEMCA by letter that it had concluded its negotiations
with AGC-and it was ready to meet and negotiate with
MEMCA. The letter also stated that Goodwin had as-
signed its bargaining rights to AGC and, therefore, Re-
spondent had already reached an agreement (AGC) with
Goodwin; that the agreement covered Iron, Madison,
Reynolds, St. Francois, Washington, Lincoln, and Jeffer-
son Counties; and that Goodwin was expected to comply
with the AGC • wage rates whenever working in any of
those counties.
During subsequent telephone discussions MEMCA
told Respondent it needed the $1.20 wage differential in
the outer counties to remain competitive with nonunion
contractors, since the economic costs in those areas were
comparable to those of Metropolitan St. Louis. Langh-
orst testified without dispute that he explained the reason
for the uniform wage rates which Respondent negotiated
for' 21 counties on behalf of 127 employers involving
some 8000 employees of AGC, as opposed to 12-
member-employers of MEMCA; and that he has never
known of a wage rate exception for any employer. In
any event, MEMCA and Respondent did not engage in
face-to-face negotiations between April 14 and August
15, 1983, although they held telephone discussions during
that period.
In a letter dated July 6, 1983, MEMCA (Compton) ad-
vised Respondent (Langhorst) that MEMCA had been
working 16 months without a new agreement and urged
Respondent to schedule a negotiating meeting within 10
days. A negotiating meeting not having been scheduled,
MEMCA, filed a charge with the Board in the instant
case on July 25, 1983. In a letter dated August 8, 1983,
Respondent directed Goodwin to comply with the wage
rates of the newly executed AGC contract effective May
11, 1983-April 30, 1986, and pursuant to the AGC con-
tract, ' referred the grievance to a. three-member AGC
board for investigation, hearing, and decision. Respond-
ent also requested Goodwin to name its representative
for arbitration. Receiving no response from Goodwin,
Respondent sent Goodwin a letter-August 29, 1983,
urging Goodwin to designate its representative for arbi-
tration.
MEMCA's Compton credibly testified that he called
Respondent (Langhorst) at least once every 30 days be-
tween April 14 and August 15, 1983, to schedule a nego-
tiating meeting but Langhorst often said he could not
find his appointment book, or,-that his time was fully oc-
cupied with negotiations on behalf of AGC employers.
On cross-examination Compton acknowledged MEMCA
knew Respondent was tied up,.in negotiations during late
CARPENTERS ST LOUIS COUNCIL (FICKEN CONSTRUCTION)
April- and early May 1983 on behalf of the some- 127-
member-employers of AGC, ` the Home Builders Associa-
tion of St . Louis, and St. Louis Area Independent Build-
ers, because contracts for those employers - expired May
1, 1983. • . -
Conceding as the undisputed evidence has established
that Respondent was fully occupied in other negotiations
from ' April 15 through May 11, 1983 , it is particularly
noted that Respondent offered no evidence to justify
why it did not schedule a negotiating meeting in re-
sponse to MEMCA' s May , June , and July telephone re-
quests , and also MEMCA's July 6 written request, until
August 15 , 1983, after Ficken filed charges 'with the
Board on July 25 , 1983. -
Instead of meeting and negotiating with MEMCA
during May, June, July, and early August 1983, as
MEMCA had requested and Respondent was statutorily
obligated to do, Respondent again reminded Goodwin in
a letter dated May 13 , 1983, that Goodwin had assigned
its bargaining rights to AGC, and the letter described the
geographic jurisdictions those rights covered with AGC.
The letter did not advise Goodwin that Goodwin had
withdrawn its bargaining rights with MEMCA, which
Goodwin ' had not done , and Respondent 's letter of Feb-
ruary 23 , 1983 (G .C. Exh. 5), to MEMCA indicates Re-
spondent knew MEMCA also held unrescinded bargain-
ing rights for Goodwin by the fact that it sent Goodwin
a copy of its notice - td amend the current MEMCA con-
tract. ,
1. Respondent did not violate the Act by filing and
-t - processing•a grievance against Goodwin
Although the language in Goodwin's AGC bargaining
authonzation and the AGC signature sheets, signed by
Goodwin, is -unconditional and 'unrestricted, Goodwin
contends it was Goodwin's intent at the time of his au-
thorization (October 31, 1980), that the AGC agreements
would apply to Goodwin, only when Goodwin was
working in St. Louis City and County. AGC's manager,
Joe Hamilton, acknowledged that subsequent to May 1,
1982, AGC did apply the AGC contract rates as Good-
win maintains since the $1.20 wage differential occurred
at that time as a result of the AGC wage increase. In
other words, after the occurrence of the wage rate dif-
ferential, Respondent knew as early as May 1982 that
Goodwin 'was not paying the AGC wage rate in the
outer counties, and 'Respondent picketed -Goodwin and
other MEMCA contractors about May 10,'1982, until
Goodwin instituted legal- proceedings to restrain 'the
picketing. 'Three days .later the `picketing ceased and the
lawsuit was withdrawn.
The only evidence ` Goodwin and MEMCA offered in
support of their contention that Goodwin had an under-
standing 'with AGC and/or Respondent to pay the
MEMCA rate when working' in the outer' counties is
Goodwin's own testimony' that it was Goodwin's inten-
tion at the` time of authorization at id signing the AGC
agreement that it would pay the lesser rate ; the testimo-
ny of AGC Manager; Hamilton that Goodwin actually
paid the lesser rate in- the outer 'counties after May 1,
1982, of which fact Respondent knew; and that Respond-
ent did-not file a grievance to enforce the AGC rate
689
until mid-1983 But such evidence,- in my Judgment, does
not establish that AGC or Respondent ever verbally
agreed' or gave approval to Goodwin to pay the -lesser
rate. This is especially true in view of the explicit lan-
guage of Goodwin's AGC authorization and signed
agreements.
The General Counsel argues that since Respondent did
not file a grievance against Goodwin until May 1983; it
should be inferred from the duration of such failure and
silence that Respondent acknowledged it had an under-
standing with Goodwin, and that Respondent approved
Goodwin's paying $1.20 less wage rate than the AGC
rate when it worked in counties other than St. Louis
City and County. However, I do not find that Respond-
ent's failure to file the grievance earlier implied such a
conclusion. In fact the evidence demonstrates that Good-
win's failure to pay the AGC wage rate in the outer
counties did not necessarily have the blessings of Re-
spondent. Respondent's efforts in negotiations in May
1982 and January 1983 to have MEMCA and Goodwin
pay the $1.20 wage differential in the outer counties, and
the fact that Respondent picketed Goodwin in May 1982
over the wage dispute, certainly would constitute proba-
tive evidence of Respondent's disapproval of the practice
by Goodwin.
The evidence suggests that Respondent was quite con-
cerned during the May 1982-April 30, -1983 period, as
Respondent argues, about the consequences of not com-
plying with, and not enforcing the "most favored na-
tions" clause of the AGC contracts. That clause in es-
sence provides:
If Respondent enters into an agreement with any
employer for work in areas covered by the agree-
ment upon more favorable terms to such other em-
ployer than are embodied in- the AGC contract,
such more favorable terms are'" required to be made
immediately available to all the' employers who are
signatory to and covered by the AGC contract.
Thus, while Goodwin did not pay the AGC wage rate
when working in Washington and Jefferson Counties
during May 1982-April 1983, the evidence does not es-
tablish 'that Goodwin did so as an 'AGC-approved -prac-
tice, in the face of the clear and binding language of
Goodwin's bargaining authorization - to' AGC and the
AGC wage agreements. However, even if in fact it were
the initial intent of Goodwin to pay less' than the AGC
wage rate in the outer counties, or even if Goodwin was'
permitted to engage in such a de facto practice by de-
fault of AGC and Respondent, I am unaware of any au-
thority 'which would now estop Respondent -or AGC
from grieving, to enforce the written AGC bargaining
authonzation and agreements against Goodwin. Nor am
I able to separate Respondent's legitimate right to en-
force compliance with the AGC documents from Good-
win's claimed inferential and unsubstantiated oral under-
standing it claimed to have had to pay lower rates. -
After reviewing all of the evidence from every dimen-
sion most favorable to Goodwin and MEMCA, Good-
win appears to be just as bound by'the AGC bargaining
authorization and agreements as it is'by the MEMCA au-
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thorization and agreements. Correspondingly, if similar
circumstances existed with MEMCA, I fail to see any
reason why Respondent. would not be able to enforce
Goodwin's MEMCA bargaining authorization and wage
agreements against Goodwin, since Goodwin gave bar-
gaining authorization to both bargaining agents
(MEMCA and AGC) and it either signed or ratified con-
tracts negotiated by each of them. Under the circum-
stances in this case I find that it would be highly specula-
tive to find that Respondent's grievance was filed to
force Goodwin to withdraw its bargaining rights from
MEMCA in favor of AGC. But even if such a finding
were made, I fail to see how it would preclude Respond-
ent from enforcing the AGC agreements against Good-
win to comply.
Accordingly, in view' of the foregoing evidence and
reasons, I find that Respondent did not violate Section
8(b)(1)(B) of the Act by filing and processing a grievance
against Goodwin Brothers Construction Company to en-
force the latter's compliance with its signed , AGC au-
thorization and wage agreements.
Since Goodwin has-a right to be represented by two
bargaining representatives, if it so elects, I find, in con-
junction with Respondent's failure and refusal to meet
and negotiate with • MEMCA, infra, that Respondent's
questioning Larry Goodwin's authority to serve as a bar-
gaining representative for MEMCA also constituted a
violation of Section 8(b)(1)(B) and (3) of the Act.
2. Respondent failed and refused to meet.and
bargain with MEMCA
Respondent denie s that it failed and refused to meet
and negotiate with MEMCA during the period April 15
to August 14, 1983, because Larry Goodwin served as a
bargaining representative for MEMCA Even though the
evidence shows Respondent was actually tied up in
AGC and other negotiations from April 15 to May 11,
1983, when the newly negotiated AGC agreement was
executed, Respondent nevertheless failed to meet or
schedule a negotiating meeting during late May or
during June, July, and early August, in response to a
MEMCA's request in each of those months for a meet-
ing. The mere failure of Respondent to schedule such a
meeting , as requested, may not ipso facto • demonstrate
evidence of it bad-faith failure and refusal to do so. How-
ever, when such failure for 4 months is considered in
conjunction with Respondent's total conduct in this case,
,a motive for its failure to meet and bargain with
MEMCA becomes more apparent. ,
More specifically,' Respondent repeatedly told
MEMCA's bargaining representatives about its reserva-
tions to meet and bargain with MEMCA because Larry
Goodwin, a signatory to the AGC agreements, was a
bargaining representative for MEMCA. Such repeatedly
expressed reservations. by Respondent can only be inter-
preted as a reluctance of Respondent to meet and negoti-
ate with MEMCA, 'and, a subtle challenge to Larry
Goodwin's right and authority to be represented by two
bargaining agents : But 'the story does not end there. Re-
spondent refused to accept payments for benefit insur-
ance from two contractors whose bargaining rights and
.contracts were executed exclusively with "MEMCA.
Hence, a comprehensive evaluation of Respondent's re-
luctance to meet and negotiate with MEMCA, is de-
ferred, until the evidence of Respondent's refusal to
accept . benefit payments from ;MEMCA contractors
(Ficken and Mueller) is considered, infra.
3. Respondent attempted to force Ficken and
.Mueller to sign AGC agreements and/or to
authorize AGC as their agent
In this regard, the record shows that on April 22,
1983, Respondent took time during its other negotiations
to send letters of understanding to Ficken and Mueller
Construction companies, seeking to have them agree in
writing to pay the wage and fringe benefit increases of
the newly executed AGC agreement, retroactive to May
1, 1983 It is noted that neither Ficken nor Mueller had
assigned bargaining rights to AGC, and Respondent was
aware that the bargaining rights of both companies were
assigned to MEMCA. When Ficken and Mueller failed
to respond to the letter of understanding, the administra-
tor of the Carpenters' Health and Welfare Fund
(Howard Martin) informed both companies on July 1,
1983, that their May, June, and July payments to the
fund would not be accepted after July 15,_1983, unless
Respondent notified him that Ficken and Mueller had
signed the letter of understanding. Upon Ficken's inquiry
of the reason for not accepting the payments, Martin in-
formed him Respondent had advised him (Martin) not to
accept Ficken's payments unless he (Ficken) had signed
the letter of understanding or-an AGC contract. Martin
urged Ficken's wife to sign the letter of understanding
but she declined to do so, and Martin left a copy of the
'recently negotiated AGC wage rates with her.
Although Ficken and Mueller subsequently altered the
letter of understanding-limiting their acceptance to-any
agreement reached by "MEMCA and Respondent-Re-
spondent rejected the letters as altered and advised them
that their benefit payments will not 'be accepted without
a signed AGC contract or - letter of understanding.
Ficken and Mueller's benefit payment checks were re-
turned to them July 18, 1983, with a letter advising that
their benefit insurance coverage will terminate July 31,
:1983.
Respondent contends the letters of understanding sent
to Ficken and Mueller were transmitted to them as a
result of office clerical error, since such letters are cus-
tomarily.sent to all contractors who have not signed a
contract or letter of understanding with AGC. However,
it is particularly noted that during' the period April 22
and July 18, 1983, Respondent•made a diligent effort to
have Goodwin pay the AGC_ wage rates outside the St.
Louis metropolitan area, and to -have Ficken and Mueller
sign letters of understanding to pay AGC wage rates in
all. geographic jurisdictions covered by the AGC agree-
ment , some of which jurisdictions (Washington and Jef-
ferson) were also covered by MEMCA. ,
Ficken's inquiries about the letter of understanding af-
forded Respondent an early opportunity to explain that it
was .transmitted in error, if in fact it had been, but Re-
spondent made no such explanation in its" letters to
Ficken dated April 22 and July. 8, 1983. Instead, during
CARPENTERS ST LOUIS COUNCIL (FICKEN CONSTRUCTION) 691
the interim period April 14, to August 15, 1983, Re-
spondent made a great effort to have Ficken and Mueller
sign the letter of understanding . Having failed to induce
Ficken or Mueller to. sign- the letter , Respondent an-
nounced the rejection of their health and welfare benefit
payments in his letter to them of July 18, 1983. Under
these circumstances, I am persuaded that Respondent's
contention that the letter was transmitted to Ficken and
Mueller in error is not truthful and is therefore discredit-
ed.
Respondent argues that it is prohibited by Section
302(c)(5)(B) of the Act from accepting benefit payments
from Ficken and Mueller in the absence of a signed con-
tractor signed letter of understanding by them.
Section 302(b)(1) of the Act provides: " It shall be un-
lawful for any, person to request, "demand, receive, or
accept, or agree to receive or accept, any payment, loan,
or delivery of any money or other thing of value prohib-
ited by Section (a)."
Subsection (c) of the same section provides that the
above section shall not apply in situations as follows:
The provisions of this section shall not be appli-
cable . . . (5) with respect to money or other thing
of value paid to a trust fund established by such
representative, for the sole and exclusive benefit of
the employees of such employer , and their families
and dependents (or of such employees , families, and
dependents jointly with the employees of other em-
ployers making similar payments , and their families
and dependents): Provided, That (A) such payments
are held in trust for the purpose of paying , either
from principal or income or both, for the benefit of
employees , their families and.dependents, for medi-
cal or hospital care, pensions on retirement or death
of employees , compensation ' for injuries or illness
resulting from occupational activity or insurance to
provide any of the foregoing , or unemployment
benefits or life insurance , disability and sickness in-
surance, or accident insurance ; (B) the detailed basis
on which such payments. are to be made is specified in
a written agreement with the employer, and employees
and employer are equally represented in the admin-
istration of such fund , together with such neutral
persons as the representatives of the employers and
the representaive of employees may agree upon and
in the event the employer and employee groups
deadlock on the - administration of such fund and
there are no neutral , persons empowered to break
such . deadlock , such agreement provides that the
two groups shall agree on an impartial umpire to
decide such dispute . [Emphasis added.]
In support of its argument , Respondent cites Mine
Workers Health & Retirement Funds v. Robinson, 455 U.S.
562 (1982). However ,` it is noted that there , the court was
determining whether the beneficiaries of parties to a col-
lective-bargaining agreement , which increased the health
benefit eligibility requirements for a certain class of bene-
ficiaries payable out of a Section 302 trust fund, are
bound by the collective -bargaining agreement even
though the increase is discriminatory against another
class of beneficiaries, because the eligibility requirements
were arbitrarily and capriciously executed . The court
held that the beneficiaries were bound by the agreement.
Although the language of Subsection (c)(5) exempts
from the prohibition of Section 302(b)(1), moneys paid
"to a trust fund established by such representative -for the
sole and exclusive benefit of the employees of such em-
ployer," Respondent herein relies on the language of
Subsection (c)(5)(B) which provides : "`the detailed basis
on which such payments are to be made is specified in a
written agreement with the employer ." In doing so, Re-
spondent contends, since the extended May 1, 1982-
April 30, 1983 contract between Respondent and
MEMCA expired April 30, 1983, no written agreement
existed between Respondent and MEMCA and, there-
fore, Respondent was prohibited by Section 302(b)(1)
from receiving benefit payments from Ficken and
Mueller . . In all probability, Respondent 's contention
would be correct if "written agreement" means only the
collective-bargaining agreement or a contract between
the parties.
However, as the General Counsel argues , "written
agreement" by language in the Act is not specifically
confined to the collective-bargaining agreement or con-
tract between the parties, but obviously is plainly broad
enough and does in fact expressly include a "trust agree-
ment," which is written , as the one which exists between
Respondent and the MEMCA employers , for r the benefit
of employees. In Hinson v. NLRB, 428 F.2d 133 (8th Cir.
1970), cited by the General Counsel , the court, in reject-
ing an employers contention that Section 302 of the Act
prohibited the employer from continuing contributions to
a trust fund, said:
There is a fatal gap in petitioner 's chain of rea-
soning , and it lies in his first link . The reference in
Sec. 302(c)(5)(B) to a "written agreement with the
employer" does not comprehend solely a collective
bargaining . agreement to the exclusion of any other
possible written agreement . A trust fund agreement
separate and apart from the collective bargaining
agreement would surely satisfy the statutory prereq-
uisite., See Doyle v. Shortman , 311 F.Supp. 187
(S.D.N.Y., March 3,,1970). Here, Article XX of the
expired collective bargaining contract refers to a
"Trust Agreement" in existence into which health
and weflare benefit contributions were to be made.
Article XXIV refers to an agreement of August 7,
1964, which established the "Meat Cutters Local
576 and Employer 's Kansas and Missouri Pension
Plan." Petitioner certainly agreed to these separate
trust fund agreements , not only because they are in-
corporated by reference into the collective bargain-
ing contract itself, but. also because he made contri-
butions under each agreement from the date he pur-
chased Hen House Market No . 3 to the date -the
subsisting collective bargaining contract expired on
February 3. We-believe that the two separate trust
fund agreements in this case satisfy the requirement
of Sec. 302(c)(5)(B) for a "written agreement with
the employer," even after termination of the collec-
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive bargaining agreement on February, 3, 1968.
Hinson, supra at 139.
See also -Wayne's Dairy, 223 NLRB 260 (1976); and
Producers Dairy Delivery v. Pension Fund, 654 F.2d 625
(9th Cir. 1981).
Section 5.06 of 1980-1982 collective-bargaining agree-
ment between Respondent and MEMCA labeled "Pen-
•sion Fund," pages 9 and 10, provides in pertinent part as
follows: "The" reporting, payment and administration of
such contributions shall be governed by the trust agree-
ment creating the CARPENTERS' PENSION TRUST FUND OF
ST. Louis"
Thus, the above language of the collective-bargaining
agreement appears to support the General Counsel's ar-
gument that a trust agreement existed between Respond-
ent and MEMCA. Since the language of this section
does not indicate when or how that agreement, termi-
nates and no evidence was adduced at the trial indicating
its termination, it may be, reasonably inferred therefrom
that the trust agreement -is ' viable. The fact that Ficken
and Mueller continued to pay benefit funds to Respond-
ent even after the contract between them expired, seems
to suggest that as long as the employer paid the premi-
ums, the beneficiaries of the -trust agreement.were cov-
ered. I therefore conclude and-find that the trust agree-
ment between MEMCA and Respondent did not expire
on April 30, 1983, when the extended contract between
them expired. Under these circumstances, the evidence is
clear that Respondent was not prohibited by Section 302
of the Act, nor by expiration of the extended contract,
from accepting the benefit payments from Ficken and
Mueller.
Consequently, based on the foregoing evidence, I find
that Respondent's expressed reservations about bargain-
ing with MEMCA- while Larry Goodwin served as a
bargaining representative for MEMCA was an obvious
manifestation of its frustration over having to bargain
with one member of the committee (Goodwin) on whose
behalf it had negotiated and ultimately executed an
agreement with another` employers association (AGC). In
all probability, such frustration of Respondent contribut-
ed to its reluctance and delay in scheduling ' a meeting
and bargaining with MEMCA after May 11, 1983.
Having delayed scheduling a meeting with MEMCA
and having failed in its efforts to have Ficken and
-Mueller sign a letter of understanding, Respondent then
intensified the pressure-by _ rejecting their payments for
health and welfare benefit funds. It is obvious that Re-
spondent resorted to these progressively coercive meas-
ures in an effort to force 'Ficken and Mueller to sign a
contract or letter of understanding with AGC. Such a
signed letter would have bound Ficken and Mueller to
pay the AGC wage rate when working in the counties of
Jefferson, Washington, and St. Louis and St. Louis City;
and/or to force Ficken and Mueller to assign their bar-
gaining rights to AGC, as' Mueller eventually did.
By engaging in the above-de'scnbed conduct, Respond-
ent has violated Section 8(b)(1)(B) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES.
UPON COMMERCE
The activities of Respondent set - forth in section III,
above , occurring in connection with the operations of
the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic,
and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free'flow of commerce.
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(1)(B)
and (3) of the Act, I shall 'recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Because of the character of the unfair labor practices
herein found , ' the recommended Order will provide that
Respondent cease and desist from or in any like or relat-
ed manner interfering with , restraining , or coercing em-
ployees in the exercise of their rights guaranteed by Sec-
tion , 7 of the Act. NLRB v. Entwistle Mfg. Co., 120 F.2d
532, 536 (4th Cir. 1941).
On the basis of the above findings of fact and upon the
entire record of this case , I make the following
CONCLUSIONS OF LAW
1. Employer Goodwin Construction Company is, and
'has been at all times material, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Employer Compton Construction Company is, and
has been. at all times material an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
3. Mid-East Missouri Contractors Association
(MEMCA) is, and has been at all times material a multi-
employer bargaining agent for general construction con-
tractors.
4. Associated General Contractors (AGC) is, _and has
been at all times material a multiemployer bargaining
agent for general construction contractors. .
5. Respondent Carpenters' District Council of St.
Louis, an affiliate of the United Brotherhood of Carpen-
ters &.Joiners of America, AFL-CIO is, and has been at
all times material a labor organization within the mean-
ing of Section 2(5) of the 'Act.
6. By questioning the authority of Larry Goodwin to
serve as a bargaining ' representative for MEMCA and
failing and refusing to meet and bargain with MEMCA
from April 14 to August 15, 1983, Respondent has violat-
ed Section 8(b)(1)(B) and (3) of the Act.
. 7. By failing and refusing to sell Ficken and Mueller
health and welfare and benefit insurance stamps, Re-
spondent has violated Section 8(b)(1)(B) of the Act.
8 The aforesaid unfair labor practices affect. commerce
within the meaning ' of Section "2(6) and (7) of the Act.
CARPENTERS ST. LOUIS COUNCIL (FICKEN CONSTRUCTION)
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed"
ORDER
The Respondent, Carpenters' District Council of St.
Louis, an affiliate of the United Brotherhood of Carpen-
ters & Joiners of America, AFL-CIO, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Questioning the authority of Larry Goodwin to
serve as a bargaining representative for MEMCA, and
failing and refusing to meet and negotiate (bargain) with
MEMCA , in an effort to force MEMCA members to
select AGC as their bargaining representative.
(b) Failing and refusing to sell Ficken and Mueller
health and welfare and benefit insurance stamps, in order
to force MEMCA members to select AGC as their bar-
gaining agent and to comply with AGC wage rates.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request meet and bargain collectively with
MEMCA for a contract on behalf of its members and if
an agreement is reached embody such agreement in a
written contract signed by the parties.
' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
Poses.
693
(b) Accept and credit to the respective accounts of
Ficken and Mueller all payments, past and current, sub-
mitted to Respondent by them for the purchase of health
and welfare and benefit stamps.
(c) Distribute to all MEMCA contractors and post in
the office of the Respondent , located at 1401 Hampton
Avenue, St. Louis, Missouri, and mail a copy of the
notice to MEMCA, located at Crystal City, Missouri, the
attached notice marked "Appendix." s Copies of the
notice, on forms provided by the Regional Director for
Region 14, after being signed by Respondent 's authorized
representative , shall be posted by it immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to mem-
bers and employees are customarily posted . Reasonable
steps shall be taken by Respondent to ensure that said
notices are not altered , defaced, or covered by any other
material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that allegations in the com-
plaint be dismissed insofar as they allege violations of the
Act not found herein.
If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."