Don Mendenhall, Inc.

National Labor Relations Board - Board Decisions

Jan 18, 1972

194 N.L.R.B. 1109 (N.L.R.B. 1972)

DON MENDENHALL, INC. 1109
Don Mendenhall, Inc. and Tile Layer, Marble Mason
and Terrazzo Workers, Local No. 22, Ohio, of the
Bricklayers , Masons and Plasterers ' International
Union of America , AFL-CIO. Case 9-CA-5666
January 18, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND KENNEDY
On February 26, 1971, Trial Examiner Gordon J.
Myatt issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
to the Trial Examiner's Decision and a supporting
brief, and the Respondent filed an answering brief to
the General Counsel's exceptions.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs, and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions only to the extent
consistent herewith, but to adopt his recommended
Order.
The Trial Examiner concluded that the Respondent
did not violate Section 8(a)(1), (3), and (5) of the Act.
While we agree with the Trial Examiner's conclusion
that Respondent did not violate the Act, we do so only
for the following reasons.
As more fully set out by the Trial Examiner, the
Respondent is engaged in the installation of commer-
cial and residential floors and ceilings. In September
1967, the Respondent had a conference with the
Union's business agent, Chaney, and thereafter
executed a collective-bargaining agreement in which
the Union was recognized as the collective-bargaining
representative for all work performed by "tile layers,
marble masons and terrazzo workers, whether for
interior or exterior purposes, in any public or private
buildings" within the Union's jurisdiction. On April
30, 1968, the Respondent executed a power of
attorney authorizing an employer association to
represent it, and this association executed a collective-
bargaining agreement with a similar recognition
clause which was effective from May 1, 1968, to May
1, 1970. A contract was also negotiated between the
employer association and the Union which also
contained such a recognition clause effective May 1,
1970.
At the conference between the Union's business
agent, Chaney, and the Respondent's president,
Mendenhall, in September 1967, Chaney disclaimed
any desire to represent nonunion people then working
for Mendenhall but asked that two of those working
for the Respondent "be put" in the Union and that the
Respondent hire two members of the Union. This was
done. Thereafter Mendenhall paid the union wage
194 NLRB No. 151
scale to both union and nonunion employees but paid
health and welfare benefits only for those employees
who were members of the Union. There is nothing in
the record that shows that the Union attempted to
enforce the union-security clause in the contract with
respect to the nonunion employees or that it afforded
them any representation as the collective-bargaining
agent.
In December 1969, Mendenhall told his managers
that Respondent was suffering substantial losses and
could not compete for jobs in apartment projects or
residential work as long as it was paying the then
hourly rate to its employees. He therefore instructed
the managers to inform all employees that residential
work would be subcontracted. In February 1970,
Bach, Respondent's vice president in charge of retail
and residential sales, held a meeting of ceramic tile
and resilient floor mechanics, at which he informed
the mechanics that because of poor economic condi-
tions all ceramic tile, resilient floor tile, and soft
flooring would be contracted out after March 1, 1970.
He further informed them that the work would be
subcontracted out to those mechanics who agreed to
sign a standard installation agreement.
All of the members of the Union refused to sign the
installation agreement. They received no more em-
ployment with respect to residential work, although
they continued to get work which was regarded as
commercial or "Union" work. Those employees who
were not members of the Union and who refused to
sign the installation agreement were also laid off. On
June 1, 1970, the Union filed a charge alleging that the
Respondent had violated Section 8(a) (1) and (5) of
the Act by refusing to bargain regarding the subcon-
tracting of the work and further alleged that Respon-
dent had violated Section 8(a)(3) of the Act by
discriminating against four of its members regarding
their tenure of employment.
It is evident from these facts that, although
recognized ostensibly as the exclusive bargaining
agent for all of the Respondent's employees engaged
in the installation of ceramic tile, the Union in fact
represented only those who were its members. With
the exception of the hourly rate, the nonunion
employees in the unit received none of the benefits of
the contract, and the record is devoid of any evidence
that the Union concerned itself with their hours or
working conditions in any respect. And when the
Union filed its charge of discrimination in violation of
Section 8(a)(3), it did so only on behalf of its members
although it is obvious that the contractual rights of
nonmembers would also have been abrogated if the
Respondent had been obligated to bargain about
subcontracting the residential work.
It is equally clear from the record that the
Respondent was fully aware of the Union's intent and
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice to provide representation only to its members
and that it wholly acquiesced in that arrangement.
Indeed, the circumstances surrounding the initial
grant of recognition require the conclusion that union
representation of members only was intended from
the outset of the relationship and, the contract
language notwithstanding, that the Respondent's
initial grant of recognition was made in contem-
plation of that arrangement. That original intention
was never betrayed by the course of dealing between
the parties over more than 2 years. We conclude, from
all the circumstances, that the Union enjoyed recogni-
tion only for the limited purpose of representing its
members.
Accordingly, we must consider the alleged refusal to
bargain against this background of members-only
dealing between the parties. We conclude that, in the
context of events, the Respondent's actions cannot be
held violative of Section 8(a)(5). That section, by
reference to Section 9(a), requires as a predicate for
any finding of violation that the employee representa-
tive has been designated or selected as the exclusive
representative of the employees. It has been settled
since the early days of the Act that members-only
recognition does not satisfy statutory norms.
Although the Board has never ruled squarely on the
legality per se of a members-only contract, Max
Factor, 118 NLRB 808, the insufficiency under the
Act of such recognition has been well established.'
For that reason we dismiss the complaint insofar as it
alleges violations of Section 8(a)(5).
The remainder of the allegations contained in the
complaint are based on the refusal of the Respondent
to abide by or honor the agreement negotiated by the
employer association effective May 1, 1970. The
record discloses that the Respondent executed a
power of attorney authorizing the employer associa-
tion to act as its collective-bargaining agent on April
30, 1968, prior to the negotiation of the 1968-70
contract. The Respondent did not, however, become a
member of the association. Under the bylaws of the
association, members were required to submit a new
power of attorney before the negotiation of each new
agreement.
The Respondent did not submit a new power of
attorney prior to the negotiations leading to the
contract effective May 1, 1970; it was not a member of
the association; nor did it participate in the negotia-
tions. Under these circumstances we cannot find that
the Respondent was obligated to abide by or honor
the agreement negotiated by the employer associa-
tion. We shall therefore dismiss these allegations of
the complaint.
We are thus convinced that Respondent's activities
do not warrant finding the violations alleged. We
shall, accordingly, dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
1 See, e.g., Golden Turkey Mining Corp., 34 NLRB 743.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Trial Examiner: Upon a charge filed
on June 1 , 1970,1 by Tile Layer, Marble Mason and
Terrazzo Workers, Local No. 22, Ohio, of the Bricklayers,
Masons and Plasterers ' International Union of America,
AFL-CIO (hereinafter called the Union), against Don
Mendenhall , Inc. (hereinafter called the Respondent), the
Regional Director for Region 9 issued a complaint and
notice of hearing on July 17. The complaint was
subsequently amended on September 23. The amended
complaint alleged , inter alia, that the Respondent violated
Section 8(a)(1), (3), and (5) of the Act in the following
manner: (1) by threatening employees with layoff unless
they executed individual employment contracts in contra-
vention to an existing collective -bargaining agreement; (2)
by promising employees more work if they signed said
employment contracts; (3) by terminating or laying off
employees because they failed to sign said individual
employment contracts; (4) by refusing to abide by the terms
of the current collective-bargaining agreement and by
unilaterally changing wages, hours, and working conditions
of employees in the bargaining unit; (5) by bargaining
individually with employees without notification to or
consultation with the Union and by refusing to meet with
agents of the Union to discuss rates of pay, wages, hours,
and other terms and conditions of employment of the
employees; and (6) by refusing to execute a collective-
bargaining agreement negotiated between the Union and
an Employers' association alleged to have been authorized
to bargain for the Respondent. The Respondent's answer
denied all of the substantive allegations of the complaint
and specifically denied the commission of any unfair labor
practices.
This case was tried before me in Dayton , Ohio, on
September 28 and 29, and November 4, 5, 6, and 16. All
parties were represented by counsel and were afforded full
opportunity to be heard and to introduce relevant evidence
on the issues. Briefs were submitted by all counsel and they
have been fully considered by me in arriving at my decision
in this case.
Upon the entire record herein,2 including my evaluation
of the testimony of the witnesses, based upon my
' Unless otherwise indicated herein, all dates refer to the year 1970.
2 Examination of the official transcript reveals that it contains certain
DON MENDENHALL, INC 1111
observation of their demeanor, and upon consideration of
the credible evidence, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Respondent is an Ohio corporation engaged in the
installation of commercial and residential floors and
ceilings in the Dayton, Ohio, area. The Respondent
maintains its principal office and place of business in
Dayton. During the past 12 months the Respondent
purchased goods and materials valued in excess of $50,000
from points located outside of the State of Ohio, and caused
said goods and materials to be shipped to its principal office
and place of business in Dayton, Ohio. Upon the foregoing,
I find that the Respondent is, and has been at all times
material herein, an employer as defined in Section 2(2) of
the Act, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
U. THE LABOR ORGANIZATION INVOLVED
Tile Layer, Marble Mason and Terrazzo Workers, Local
No. 22, Ohio, of the Bricklayers, Masons and Plasterers'
International Union of America, AFL-CIO is a labor
organization within the meaning of Section 2(5) of the Act.
IlL THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent and the Union first entered into a
collective-bargaining relationship in September 1967.3 At
that time the Respondent was working on a site involving
an area school and the Union threatened to close down the
project unless the ceramic tile work was performed by its
members. Prior to the contact by the Union, the employees
installing ceramic tile for the Respondent fell into two
categories as far as union representation was concerned.
One group of employees was not represented by any union,
the other group consisted of employees who divided their
time between the installation of ceramic tile and resilient
floor tile. The latter group of employees were members of a
flooring union affiliated with the Carpenters. Chaney,
business agent for the Union, testified that he met with
Respondent's president, Mendenhall, to discuss the matter
concerning the school project. It was agreed that the
Respondent would sign a collective-bargaining agreement
and place two of its employees in the Union. It was further
agreed that the Respondent would hire two other tile
mechanics who would be referred by the Union. Menden-
hall's testimony on this point was essentially the same.
However, he testified that he informed Chaney that the
bulk of his work was "residential" or "nonunion" and the
Respondent could not compete if it had to pay union scale
for this work. According to Mendenhall, Chaney dis-
claimed any desire to include the Respondent's nonunion
minor inadvertent errors Accordingly, the official record is hereby
corrected
3 While this was the first collective-bargauung agreement with the
Charging Party Union, the Respondent had other collective-bargaining
agreements with several craft unions covering employees utilizing other
craft skills.
4 My conclusion regarding the understanding is based on the credited
testimony of Mendenhall and the fact that the Union never objected to this
employees or those employees represented by the Carpen-
ters Union.
As a result of the meeting in September 1967, the
Respondent executed a collective-bargaining agreement
with the Union. Two of its employees, Waltz and Blake,
then became union members. The Union referred two of its
members to the Respondent and they were hired. These
employees were Strine and Mills. It was apparently
understood that the Respondent would use the union
members on all ceramic tile setting jobs where the primary
or general contractor was a party to collective-bargaining
agreements with the building trades unions and when there
was no such work available the Respondent would use the
union members on its "nonunion" jobs along with the other
employees installing ceramic tile.4
The Respondent's witnesses described "nonunion" jobs
as "residential work." According to the testimony of these
witnesses, "residential work" did not indicate the type of
structure where the work was performed, but rather was the
term used todndicate work performed for contractors who
did not have collective-bargaining agreements with any of
the craft unions. In contrast, work performed for general
contractors or primary contractors who were parties to
collective-bargaining agreements with craft unions was
described as "commercial work." The Union, however,
made no such distinction between residential and commer-
cial work. According to the collective-bargaining agree-
ments introduced into evidence, the Union claimed
coverage of all work performed by "tile layers, marble
masons and terrazzo workers, whether for interior or
exterior purposes, in any public orprivate buildings" within
the Union'sjunsdiction5 Chaney testified that the Union
considered residential work to consist of a structure with no
more than two units, while commercial work would be any
structure containing more than two units.
On April 30, 1968, the Respondent executed a power of
attorney authorizing the Dayton Marble, Terrazzo and Tile
Contractors Association (hereinafter called the Employers'
Association) to act as its bargaining agent in negotiating a
collective-bargaining agreement with the Umon.6 As a
result of the negotiations in 1968 a collective-bargaining
agreement was consummated by' the Employers' Associa-
tion and the Union. This agreement was effective from May
1, 1968, to May 1, 1970. The Union sent the Respondent a
copy of the contract for signature, but the Respondent
never signed the agreement.
Although the Respondent did not sign the contract, it
nevertheless abided by the terms of the agreement as it
applied to the wages and health and welfare contributions
for union members employed by it. Other employees who
were performing ceramic tile work and were not members
of any union were paid the same hourly wage as union
members but no contributions were paid for health and
welfare benefits. Members of the flooring union were paid
practice over a 3-year period.
5 See article III of the collective-bargaining agreements entered into
evidence as G. C. Exh. 2, 4, and 5.
6 Although the Respondent executed a power of attorney to the
Employers' Association, it was not a member of this group. It was the
practice of the Union, however, to negotiate a contract with the Employers'
Association and copies of the resultant agreement were signed by all
employers who executed collective-bargaining agreements with the Union.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
according to the terms of the agreement with their union
when they performed ceramic work.
The Respondent submitted a compilation taken from its
records indicating the assignments (union or nonunion
projects) and the number of employees engaged in ceramic
tile work for the period August 1967 to June 1970. The
compilation was based not only on the Respondent's
records but also on supplemental information supplied by
Mendenhall and McCloud. The latter was the Respon-
dent's supervisor of residential installation until the last
week in March 1970. Careful cross-examination by the
counsel for General Counsel brought out certain inaccura-
cies in the compilation, but it was evident that these
inaccuracies were due to faulty memory rather than to a
deliberate attempt to mislead. Inspite of these deficiencies,
however, the exhibit clearly showed that union members
never constituted 50 percent of the work force engaged in
the installation of ceramic tile. In addition, the bulk of the
Respondent's ceramic tile work was on "nonunion"
projects and members of the Union were assigned to work
on these jobs along with nonunion employees and
employees who belonged to the flooring union.
In April 1969, union member Waltz became a supervisor
for the Respondent and he made the work assignments for
the employees engaged in ceramic tile setting. Waltz did not
vary the assignment procedure followed by the Respon-
dent, but continued to dispatch unionmen to union jobs
and both union and nonunion men to those jobs where
union affiliation was not a requirement.
In December 1969, Mendenhall called in the managers of
his retail sales departments 7 and informed them that the
Company was suffering a substantial loss in income and
would no longer be able to afford to compete in the bidding
on jobs consisting of apartment projects or residential work
based on the hourly rates paid to their employees.
Mendenhall informed the managers that the Company was
going to have to subcontract this work if it intended to stay
in business . Mendenhall assigned to the managers the job
of planning to use the present employees as subcontractors
in their own right. He instructed the managers to inform the
employees that only a few of the current mechanics would
be kept on the Company's payroll and that all of the
residential work was going to be subcontracted. None of
these plans, however, applied to Mendenhall 's commercial
departments.
In February 1970, Richard Bach, then vice president in
charge of retail and residential sales, held a meeting with
the ceramic tile mechanics and the resilient floor mechanics
in his office. Bach informed them that because of poor
economic conditions and because there appeared to be a
decided slack period in the work, the Respondent was going
to perform all residential work on a contract basis. Bach
told the employees that after March 1, all of the work,
7 The Company was divided into several departments The acoustical
department, where the employees were represented by a union, was strictly
involved in commercial sales and installation of acoustical tile. A second
department was described as the elevated floor department and was
charged with the sale and installation of raised floors under computers.
There was also a commercial flooring department where all of the
employees were represented by a union. The work of this department was
limited solely to what the Respondent described as commercial or union
work. The last department was called the residential department and
handled the sale and installation of carpeting, resilient floor covering, tile,
whether ceramic tile, resilient floor tile, or soft flooring
would be contracted out to mechanics who agreed to sign a
standard installation agreement with the Respondent. This
contract was in essence a subcontract between the
mechanic and the Respondent whereby the mechanic was
no longer an hourly paid employee but worked on a
contract basis .8
Mills and Strine told Bach that they could not operate on
this basis as the Union would not allow them to work on a
contract basis for the Respondent or any other employer.
Bach acknowledged that there would be some problems
with the ceramic tile union, but stated that he felt there
would be no problem with the flooring union. He also told
the mechanics that when the Respondent had
"commercial" or "union" work it would continue to use the
union members and they were assured of being recalled
when such work was available. Bach informed the
employees that the Respondent was giving them the first
opportunity to accept the terms of the standard installation
agreement, but if they did not, the Respondent would get
other mechanics who would be willing to provide their
services on these terms.
Bach held a second meeting with the ceramic and
resilient floor mechanics during the latter part of February.
At this meeting Bach submitted a schedule of the rates
based on footage that the Respondent proposed to pay the
mechanics who agreed to the subcontracting arrangement.
There were different prices set forth for ceramic, resilient
floor tile, and carpet mechanics. Bach stressed that the
Respondent intended to handle all of its residential work in
this fashion by March 1.
Although the new arrangement was to take effect at the
beginning of March, Strine and Mills were installing
ceramic on a project involving an apartment complex.
These two individuals were told that they would be allowed
to complete the work they were performing on an hourly
basis and then they would have to accept the standard
installation arrangement or be laid off until the Respondent
had other commercial or union jobs for them. Only two
employees were retained by the Respondent on a hourly
basis. One was primarily a ceramic mechanic and the other
a resilient floor mechanic, although, as in the case of all the
other nonmembers of the Union, these employees per-
formed work in both craft areas for the Respondent. After
Strine and Mills completed the apartment project, they
requested additional ceramic work from the Respondent.
They were told that there was no residential work available
except under the standard installation agreement , but that
they would be recalled whenever work was available on
commercial or union projects. At no time during the
discussions with the employees about the subcontracting
arrangement or after its implementation did the Respon-
linoleum , ceramic, furniture, and draperies. This department also included
the services of a professional decorator. All ceramic tile mechanics,
whether working on "residential" or "commercial jobs," were assigned
their duties by the superintendent of residential installation from the last
department.
9 The standard installation contract required the mechanic to provide
his own insurance, performance bond, equipment, guarantee of work,
hiring of additional help or assistance , and contained many other features
designed to make the mechanic an independent contractor dealing with the
Respondent.
DON MENDENHALL, INC. 1113
dent inform the Union of its intentions or discuss the
matter in any fashion with the Union.
After the subcontracting arrangement was put into effect,
McCloud, formerly superintendent of installation, executed
a standard installation agreement and became a subcon-
tractor for the Respondent. All of the members of the
Union, however, refused to sign such agreements and were
laid off in the absence of "union" work.9 Waltz was recalled
in June to work as a ceramic tile mechanic on several
commercial or union jobs. When he was so employed,
Waltz received the hourly rate under the current union
contract and all fringe benefits were paid by the
Respondent.
Prior to May 1, the Employers' association and the Umon
began negotiations for a new collective-bargaining agree-
ment. According to Chaney and Friend (the latter was a
member of the union negotiating committee), a specific
inquiry was made about the status of the Respondent by
the union representatives. They testified that the Associa-
tion's president stated that the association still had the
Respondent's power of attorney which had been signed in
1968. The president of the Association, Quinlan, and an
employer-member of the bargaining committee, Schaerer,
both testified that they could not recall telling the union
representatives that the association purported to represent
the Respondent during the negotiations. Quinlan also
testified that although the bylaws of the Association
required the members to submit a new power of attorney
before negotiations for a new agreement, this requirement
was not enforced and new powers of attorney were not
given.
A collective-bargaining agreement was ultimately negoti-
ated, although it was not reduced to writing until shortly
before the trial in this case. The new agreement was
effective from May 1, 1970, to May 1, 1972. On May 8,
however, the Union notified the Respondent by letter that
there were changes in the wage scale and the health and
welfare contributions, effective May 1, under the terms of
the new agreement. The letter indicated that the new
contract would be available in late May or early June.
On July 10, the Respondent sent letters to Strine and
Mills informing them that they were being recalled and
instructing them to report to work on July 13. Both Strine
and Mills were currently employed at their trade and did
not report. In August, Strine was recalled and put to work
on a union project for a 2-week period by the Respondent.
Whenever the union members were employed by the
Respondent on so-called "union" projects, they received
wages and fringe benefits under the terms of the current
contract negotiated by the Union and the Employers'
association.
As noted 'above the Employers' association and the
Union negotiated a new collective-bargaining agreement
for the period 1970 to 1972. During the course of these
negotiations the Union never made a request of the
Respondent to engage in the negotiations nor was the
Respondent ever served with a notice of termination of the
9 The evidence shows that nonmembers who refused to sign the
standard installation agreement were also laid off at the same time.
10 I find no need for the purposes of this decision to determine whether
the agreement entered into by the Umon and the Respondent in 1967 was
old agreement. The Union dealt exclusively with the
Employers' association. At the time of the trial herein there
had never been a demand made upon the Respondent by
the Union to sign the new agreement . However, the Union
contends that the Respondent is nevertheless obligated
under the terms of the agreement.
Concluding Findings
The General Counsel's approach is disarmingly simple,
but in my judgment fails to meet the paramount issues
involved in this case . Under the General Counsel's theory,
the Respondent was a party to a valid prehire collective-
bargaining agreement under Section 8(f) of the Act when it
signed a contract with the Union in 1967. Although the
Respondent did not sign the agreement negotiated between
the Union and the Employers' association in 1968, the
General Counsel takes the position that it was bound by the
terms of that contract because of the power of attorney
authorizing the association to bargain for it. It would follow
therefore, that when the Respondent told the ceramic tile
mechanics that all "nonunion" work would be under the
subcontracting arrangement and subsequently laid off
those mechanics who would not agree to these terms, it was
unilaterally changing the terms of an existing collective-
bargaining agreement and bypassing the bargaining
representative of its employees. In addition, the General
Counsel contends that the 1968 power of attorney was
never rescinded or revoked and the Respondent was
obligated to sign and abide by the terms of the contract
negotiated by the Employers' Association and the Union in
1970.
I find, however, that this approach overlooks the
strictures that attach to collective-bargaining agreements in
the building and construction industry under the Act.
Concededly, it cannot be persuasively argued that the
parties hereto could not enter into a valid prehire
agreement under Section 8(f). This is true inspite of the
contention of the Respondent that it is not an employer
primarily engaged in the building and construction industry
and thus not under the coverage of Section 8(f). The record
clearly indicates that the Respondent was "frequently
engaged in transitory on-the-site projects in the construc-
tion industry" and employed skilled craftsmen necessary to
accomplish this work. Zidell Explorations, Inc., 175 NLRB
No. 137. The testimony of Mendenhall, ' McCloud and
Waltz conclusively indicate that the Respondent's crafts-
men worked on housing projects, apartment complexes,
school construction and renovation, and the like. While it
may be true that a major portion of Respondent's business
consisted of the sale and installation of soft or resilient floor
tile, drapery, carpeting, and related products, including a
complete home decorating service, it is more than evident
that the Respondent was engaged in work identical to the
work traditionally performed in the construction industry.
Zidell Explorations, Inc., supra. On the basis of the above, it
is clear that there was no impediment to prevent the
Respondent and the Union from entering into a valid
prehire agreement under Section 8(f).10
Ordinarily when the-Respondent executed the power of
unlawful due to the circumstances under which it arose. The important
thing here is the recognition of the fact that the parties were able to enter
into a valid 8(f) prehere contract.
(Continued)
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attorney in 1968 authorizing the Employers' association to
bargain on its behalf, it would have been bound by the
collective-bargaining agreement resulting from those
negotiations . The facts here disclose, however, that the
Union never represented a majority of the Respondent's
employees engaged in the installation of ceramic tile. There
were four union members employed by the Respondent
(two of whom were referred by the Union and two of whom
were already on the Respondent's payroll). In addition the
Respondent utilized nonunion members and members of
the flooring union to install ceramic tile on projects where
union membership was not a prerequisite for working. Even
though the General Counsel claims that the majority of the
ceramic tile mechanics were members of the Union, the
evidence indicates that all three groups of employees (union
members, flooring union members , and nonunion employ-
ees) were used interchangeably to install ceramic tile,
except on those projects where members of other craft
unions would have engaged in a work stoppage in protest.
The record further shows that the latter projects only
constituted a small percentage of the Respondent 's ceramic
work.
There is additional evidence to support the conclusion
that the Union never sought or achieved majority status.
The discussion between Chaney and Mendenhall in 1967
clearly indicates that the Union was not interested in
making membership a requirement for employment as a
ceramic tile mechanic in the Respondent 's operation.
Rather it shows that the Union was wilting to allow the
Respondent to continue installing ceramic tile as it had in
the past as long as four of the employees were members of
the Union.
Thus when the 1968-1970 contract was negotiated and
the Union asked the Respondent to sign a copy of the
agreement , the parties were not embarking upon their first
venture into a bargaining relationship together . Rather,
they were then concerned about a renewal of the initial
contract as modified by the results of the negotiations.
Consequently , the provisions of Section 8(f) no longer
applied to their bargaining relationship. As the Board
stated in Bricklayers & Masons International Union, Local
No. 3, et al.,li:
One of the most frequently cited portions of the
legislative history of Section 8(f) reveals that the
Congress envisioned its prehire provisions as applying
only to the situation where the parties were attempting
to establish a bargaining relationship for the first time.
[Emphasis supplied.]
Since Section 8(f) no longer applied to the relationship
between the Respondent and the Union , the Respondent's
duty to 'bargain must be examined within the traditional
concepts of Section 8(a)(5) of the Act. Under these
principles the Respondent would only come under the duty
to bargain provided the Union represented a majority of
the ceramic tile mechanics. Bricklayers & Masons Interna-
tional Union, Local No. 3, supra; see also, Dallas Building
and Construction Trades Council (Dallas County Construc-
tion Employers' Assn.), 164 NLRB 938, 943. Having found
that the Union did not achieve majority status, even
though it was relieved of the burden of proving this under
8(f) in the initial agreement , I further find that the
Respondent was under no legal duty to bargain with the
Union for a renewal of that agreement . Oil Field
Maintenance Co., Inc., etc., 142 NLRB 1384, 1386-87. Nor
does the fact that the Respondent executed a power of
attorney authorizing the Employers' association to bargain
for it warrant a different conclusion. Certainly the power
of attorney .could confer no greater rights or obligations
upon the association than the Respondent possessed at the
time the power was executed.
Accordingly , I find that the Respondent was not bound
by the 1968-1970 contract negotiated between the associa-
tion and the Union, even though it abided by the terms of
that agreement with respect to wages and fringe benefits
paid to its union member employees . In these circum-
stances the Respondent was not under a duty to discuss the
subcontracting arrangement with the Union , nor was the
implementation of that arrangement a modification or
change in the terms of an existing collective-bargaining
agreement under which the Respondent was obligated. I
find, therefore, that the Respondent did not violate Section
8(a)(5) of the Act by failing to discuss the subcontracting
arrangement with the Union . I also find that the
Respondent's failure to sign the 1968 and 1970 collective-
bargaining agreements did not violate Section 8 (a)(5) as the
Union never represented a majority of the Respondent's
ceramic tile employees during the effective periods of the
contracts.
I further find that the layoff of the tile mechanics who
refused to accept the subcontracting arrangement did not
violate Section 8(a)(3). The facts show that all mechanics,
whether union members or not , were given the choice and
those who would not become subcontractors were laid off.
In these circumstances it can hardly be said that the
Respondent was motivated by antiunion animus or seeking
to discriminate against union members. Moreover, the
evidence discloses that union members were recalled and
employed periodically by the Respondent when there was
work available on union projects.
Several minor issues raised by the Respondent deserve
beef attention here . First , the artificial distinction which
the Respondent sought to establish concerning
"commercial" and "residential" work is not material to the
issues in this case . The 1967 contract and all subsequent
agreements between the Union and the Employers'
association clearly show that the Union was asserting
jurisdiction over all ceramic tile work , public or private,
performed within its geographical area . Thus the Respon-
dent's claim that the subcontracting arrangement would
not impact on the work performed by union employees is
patently without merit. Indeed , had the Union acquired
majority status at the time of the renewal of the contract,
the Respondent would have been in violation of Section
8(a)(5) of the Act.
Respondent's further argument that it did not employ
marble or terrazzo mechanics and hence had no employees
whose skills would come under the coverage of the union
agreement is also without merit . It is obvious that the
ii (Eastern Washington Builders), 163 NLRB 476, 478, enfd. 405 F 2d
469 (C.A 9).
DON MENDENHALL , INC. 1115
Union represented members who possessed skills in the
stone and brick masonry trade . Within this larger category
ceramic tile setters were but one subdivision of the kinds of
craftsmen traditionally represented by the Union . The fact
that the Respondent did not employ terrazzo or marble
masons in no way precluded the Union from representing
the ceramic tile mechanics.
On the basis of the record as a whole I find that the
General Counsel has failed to establish by a preponderance
of the credible evidence that the Respondent was under a
duty to bargain with the Union concerning the institution
of the subcontracting of the ceramic tile work or was
obligated to sign and abide by the terms of the 1968-1970
and the 1970-1972 collective-bargaining agreement negoti-
ated between the Union and the Employers' association. I
further find that the evidence fails to establish that the
Respondent violated Section 8(a)(1) and (3) of the Act by
laying off those ceramic tile employees who refused to
become subcontractors for the Respondent on nonunion
work . I therefore recommend that the complaint be
dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent Don Mendenhall , Inc., is an employer as
defined in Section 2(2) of the Act engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Tile Layer , Marble Mason and Terrazzo Workers,
Local No . 22, Ohio , of the Bricklayers , Masons and
Plasterers' International Union of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent did not violate Section 8 (a)(1), (3),
and (5) of the Act by subcontracting its ceramic tile work
on nonunion projects in March 1970 and subsequently
laying off those hourly paid employees who refused to work
on a subcontract basis . Further, the Respondent did not
violate Section 8(a)(5) of the Act by refusing to sign the
collective-bargaining agreements negotiated between the
Union and the Employers ' association in 1968 and in 1970
or by failing to discuss the subcontracting arrangement
with the Union.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case, I
recommend that the allegations of the complaint herein be
dismissed in their entirety.