General Teamsters Local Union No. 324, Etc.

National Labor Relations Board - Board Decisions

Apr 29, 1960

127 N.L.R.B. 488 (N.L.R.B. 1960)

488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Teamsters Local Union No. 324, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America and Cascade Employers Association , Inc. Case No.
36-CB-230. April 29, 1960
DECISION AND ORDER
On December 30, 1959, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a brief in support of such
exceptions. The Charging Party filed a brief in support of the Inter-
mediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings,' conclu-
sions, and recommendations.2
' Under the circumstances herein , and inasmuch as the remedy would be the same, we
do not find it necessary to decide , as did the Trial Examiner , whether Local 324's strike
of May 12 against Builders constituted a violation of the Act.
2 We agree with the Trial Examiner that Local 324 's execution of individual contracts
with Corvallis and Builders in the context of the Respondent 's strike activity constituted
violations of Section 8(b) (1) (B ) and 8 ( b) (3) of the Act. The record establishes that
the contract with Corvallis would not have been executed but for the precarious economic
position in which that Company was placed as a result of the Union 's strike of May 11,
1959 , and the subsequent events which that strike triggered . These intervening events-
the lockout and consequent strike-cannot , under the circumstances herein , serve to in-
sulate the Union 's unlawful demand for an individual contract from the actual execution
of such contract . Builders' capitulation , under the threat of financial disaster resulting
from the renewed operation of Corvallis , its principal competitor , while Builders re-
mained idle, followed by 1 day the Union 's request for an individual contract . In addi-
tion , the record permits no escape from the fact that the sum of the tactics employed by
Local 324 was in implementation of a design to drive a coercive wedge between the
Association and employers it represents with the object of compelling the employers to
abandon the Association as their collective -bargaining representative and to substitute
individual for group bargaining . The execution of the individual agreements , occurring
in this context , does not meet the Act's requirements of good-faith bargaining.
.
We do not adopt the view of the Trial Examiner , as expressed in footnote 9 of the
-Intermediate Report, that Retail Associates , Inc., 120 NLRB 388, and Anderson Litho-
graph Company, Inc , et al, 124 NLRB 920, are dispositive of the issue concerning
Builders ' alleged withdrawal from the Association . Builders ' withdrawal from the
'Association appears to have been motivated by a desire to establish the appropriateness
of a unit limited to Builders ' employees, for purposes of a pending decertification petition
`filed liq its employees . We therefore construe Builders' withdrawal from the multi-
employer unit as contingent upon the decertification of the Union . As that contingency
did not occur, we find that the withdrawal was ineffective.
127 NLRB No. 55
GENERAL TEAMSTERS LOCAL UNION NO. 324, ETC. 489
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, General Teamsters Local
Union No. 324, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, its officers, agents, successors,,
and assigns, shall :
1. Cease and desist from :
(a) In any manner restraining or coercing any employer who is a.
member of Cascade Employers Association, Inc., or any other em-
ployer, in the selection of the said Association, or any other person,
group, corporation, organization, or association, as a representative
for the purposes of collective bargaining or the adjustment of
grievances.
(b) Refusing to bargain collectively with the said Association with
respect to the wages, hours, and other terms and conditions of em-
ployment of employees in the appropriate unit.
(c) Giving effect to the individual contracts which it executed with
Corvallis Sand and Gravel Co., on July 5, 1959, and Builders Supply
Co., on July 6, 1959, or any modification, continuation, extension, or
renewal thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the above-named As-
sociation, with respect to the wages, hours, and other terms and con-
ditions of employment of employees in the unit found to be appro-
priate for bargaining purposes, and, if agreement is reached, embody
the terms in a signed contract.
(b) As hereafter set forth, post copies of the notice attached hereto
marked "Appendix." 3 Copies of said notice, to be furnished by the
Regional Director for the Nineteenth Region of the National Labor
Relations Board, shall, after being duly signed by an official represen-
tative of the Union, be posted by the said Union at its business office
and customary membership meeting places, including all places where
notices to members are customarily posted, immediately upon receipt
thereof and be maintained by it for a period of 60 days thereafter.
Reasonable steps shall be taken by the Union to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Furnish to the said Regional Director for the Nineteenth
Region of the Board signed copies of the said notice attached hereto
marked "Appendix" for posting by the employer-members of Cascade
Employers Association, Inc., if such employers are willing, in places
were notices to their employees are customarily posted.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order"
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Nineteenth Region of
the Board, in writing, within 10 days from the date of this Decision
and Order, what steps it has taken to comply herewith.
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF EMPLOYERS
Wiio ARE MEMBERS OF THE CASCADE EMPLOYERS ASSOCIATION, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that :
WE WILL bargain collectively, upon request, with Cascade Em-
ployers Association, Inc., with respect to the wages, hours, and
other terms and conditions of employment of employees of the
members of the above-named Association in the unit described
herein, and, if agreement is reached, embody the terms in a signed
contract. The bargaining unit is:
All truckdrivers and helpers, levermen, truck mechanics
and helpers, lift jitney and carrier drivers, warehousemen
(including parts and tool men), greasers and tire men, ex-
cluding office, clerical employees, and supervisors, as defined
in the Act.
WE WILL NOT in any manner restrain or coerce any employer
who is a member of, or represented by, Cascade Employers As-
sociation, Inc., or any other employer, in the selection of the said
Cascade Employers Association, Inc., or any other person, group,
corporation , organization , or association , as a representative for
the purposes of collective bargaining or the adjustment of
grievances.
WE WILL NOT give effect or enforce or attempt to enforce our
individual contract with Corvallis Sand and Gravel Co., dated
July 5, 1959, or our separate contract with Builders Supply Co.,
dated July 6, 1959, since the aforesaid companies are members
of the above-named Association, and the employees of the named
companies are components of the bargaining unit described above.
GENERAL TEAMSTERS LOCAL UNION No.
324, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN & HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
GENERAL TEAMSTERS LOCAL UNION NO. 3 2 4, ETC. 491
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before the duly designated
Trial Examiner in Portland, Oregon, on August 27-28, 1959, on complaint of the
General Counsel and answer of General Teamsters Local Union No. 324, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
herein called the Union. The issues litigated were whether or not the Union violated
Section 8(b)(1)(B) and 8(b)(3) of the Act, by certain conduct which occurred
in the course of negotiations between the Union and Cascade Employers Association,
Inc., herein called the Association, on or about May 11, 1959.
Upon the entire record, and from my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE ASSOCIATION
The Association is an Oregon nonprofit corporation, with its principal place of
business in Portland, Oregon.' It exists, inter alia, for the purpose of representing
its employer-members who engage in the ready-mix concrete business in negotiating
collective-bargaining agreements with various labor organizations, including the
Union, who are representatives of the employees of the Association's members.
Member-employers of the Association, engaged in nonretail operations, annually
do a volume of business in excess of $1,000,000 and ship more than $50,000 worth
of goods from the State of Oregon to points outside Oregon, and from the State of
Washington to points outside that State.
Upon the pleadings and the record as a whole, I find that the Association, at all
times pertinent hereto, was an employer within the meaning of Section 2(2) of the
Act, and engaged in commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issue
It is the contention of the General Counsel that the Union restrained and coerced
two member-companies of the Association to bypass the Association, their freely
chosen and duly designated bargaining representative in an appropriate multiemployer
bargaining unit, and to sign individual contracts with the Union, thereby violating
Section 8(b)(1)(B) and 8(b)(3) of the Act.
The Union denies the commission of the alleged unfair labor practices.
B. Background; composition of the Association, Corvallis, and Builders; the multi-
employer unit; the history of bargaining in the multiemployer unit
There is no conflict in the testimony as to the basic facts of this proceeding. These
undisputed facts are set forth in the following summary.
The Association was formed in the year 1946 and was composed of approximately
a dozen companies engaging in the sand, gravel, and ready-mix concrete business in
the Salem-Corvallis, Oregon, area. Among the original members were two com-
panies with which we are especially concerned herein; Corvallis Sand and Gravel
Co., referred to as Corvallis, and Builders Supply Co., referred to as Builders. Both
companies have their principal place of business at Corvallis, Oregon. Shortly after
its formation, the Association and the Union entered negotiations, and ultimately
agreed upon a contract covering wages, hours, and working conditions of the men
employed by the Association's members in the aforementioned industry. Thereafter,
as contracts expired, a committee of the Association met with a committee of the
Union, and a new contract was agreed upon in negotiations.
1 Cascade Employers Association, Inc., Is successor to another employer group named
Associated Concrete Products, Inc. This was merely a change in name and has no legal
effect on the rights and duties of the parties to this proceeding. This entity Is referred
to as the Association in this report.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The appropriate unit for which the parties bargained was composed of the em-
ployees of the Association members engaged in the industry in the Salem-Corvallis
area in a multiemployer unit described as follows:
All truckdrivers and helpers, levermen, truck mechanics and helpers, lift jitney
and carrier drivers, warehousemen (including parts and tool men), greasers and
tire men, excluding office, clerical employees, and supervisors, as defined in
the Act.
During the period 1946 to the present, Pat Blair, manager of the Association,
was the principal negotiator for the Association, and various officers of the Union,
including Ward Graham, its secretary, composed the Union's committee, and rep-
resented the employees.
Builders' membership was continuous in the Association, so it was always bound
by these contracts. Corvallis became a member of the Association in 1946 but for
a period of 2 years, ending in 1956, it dropped its membership in the Association
and executed a separate contract for its employees with the Union.
The most recent contract between the parties was a 3-year agreement which
became effective on January 1, 1956, and expired by its terms on December 31,
1958.2 The agreement lists the names of the employers who were covered by the
agreement and for whom the Association bargained. At the time this contract
was negotiated, Corvallis was not a member of the Association, but some months
prior to July 26, 1956, Corvallis resumed membership in the Association and with
the consent of all parties, its name was added to the list of employers covered by the
Association-Union agreement. Further, on July 26, 1956, the Association, on
behalf of Corvallis, and the Union executed a supplemental agreement which
covered certain employees of Corvallis who did not fall within the classifications
set out in the contract of January 1, 1956. Thereafter Corvallis and the Union
enforced both of the aforementioned contracts.
C. The 1959 multiemployer negotiations
As the termination date of the contract, December 31, 1958, approached, both
the Union and the Association gave timely notice to the other of their respective
desires to change the terms of their expiring agreement. In this connection, it
should be noted that the Union sent identical notices to all the members of the
Association including Corvallis and Builders. The parties then began negotiations
fors new contract.
The first meeting was held on December 1, 1958. The Association was repre-
sented by Blair, manager of the Association; Staatz of River Bend Sand and Gravel
Co.; Lindahl of Valley Concrete Co.; and Morgan of Walling Sand and Gravel Co.
The Union was represented by a group of its officers, some of whom played key
roles in the controversy as it later developed. These officers, composing the union
committee were: Ward Graham, its secretary, and Business Agents Harland D.
Kelly and Peter Winger. Another Business Agent, Tomlinson, and Holmes of the
Teamsters Joint Council were on the negotiating committee but their roles are of
lesser importance.
The committee met and negotiated in four meetings in the month of December
1958, three or four in January 1959, and thereafter the committees met on prac-
tically a weekly basis. In these negotiations the Association represented both
Corvallis and Builders as well as its other members, and it is undisputed that all
these meetings were conducted, as they had been in the past, on a multiemployer-
union basis for the multiemployer unit set forth above. It should also be noted
that it is undisputed that the Union during this period raised no question concerning
the propriety of the multiemployer unit, or made any objection to the negotiating
on that basis.
D. The status of multiemployer negotiations on May 11; the picketing
at Corvallis and Builders
It is undisputed that by Friday, May 8, the parties had discussed and reached
agreement on many of the 'subjects covered in their expiring contract. This docu-
ment dealt with the following subjects: union security, discharge, holidays, hours,
wages and classifications, calltime, expenses away from home, payday, wage claims,
vacations, pension fund, termination of employment, adjustment of grievances, and
duration of the agreement. The parties were still in disagreement as to the amount
of a wage increase. At the meeting of May 8, the representatives of the parties
2 General ,Counsel's Exhibit No. 2 In evidence.
GENERAL TEAMSTERS LOCAL UNION NO. 324, ETC. 493
agreed that the Association representatives would draft a "package" proposal, which
would include a wage raise, submit it to the Union's representatives, who in turn
would submit it to the union membership.
On Monday, May 11, the Association was in the process of mimeographing its
proposal which had not yet been submitted to the Union, when the Union initiated
picketing at the plant of Corvallis.
John Gallagher, Jr., testified credibly, and his testimony is not controverted, that
on Monday morning, May 11, 1959, about 9 a.m., Union Representatives Kelly and
Winger came to his office. The three were well acquainted, having dealt on labor
matters through the years. Kelly presented a contract, which is set forth hereafter,
to Gallagher and asked Gallagher to sign it Gallagher told Kelly that, as Kelly
well knew, the company was a member of the Association, and that the Association
was representing the company in the current negotiations and that Kelly would
have to discuss the terms of any contract with Pat Blair and the Association's
negotiating committee. Kelly replied that the Union was no longer dealing with the
Association; that from now on it was dealing with the individual company. Gal-
lagher replied the company was still a member of the Association and that Kelly
would still have to bargain with that organization. Kelly told Gallagher that he,
"had better think it over pretty seriously," and that he would call Gallagher back
at noon for an answer. The union representatives then retired, leaving the contract
with Gallagher. He noticed that it had been -signed by Ward Graham, secretary of
the Union. This contract 3 read as follows:
The undersigned agree to the following changes in the 1959, 1960, 1961, 1962
Sand & Gravel Agreement between the Teamsters Local 324 and the following
employers:
1. Wages-25¢ an hour January 1, 1959 to be added to the wage scale that
was being paid in the contract which expired December 31, 1958. 25¢ an hour
January 1, 1960. 25¢ an hour January 1, 1961 in all classifications. Agree-
ment to expire March 31, 1962.
2. Add Veterans Day as a paid holiday.
3. Add 3 weeks vacation after 15 years of employment.
4. Add pro-rated vacation clause.
5. Add truck and trailer to classifications with low-boy and semi-trailer..
6. Health & Welfare Oregon Teamsters Employers Trust-$11.35 January 1,
1959 to June 1, 1959. $15.00 plan for hours worked in May.
7. Continue 10¢ Pension Plan January 1, 1959.
For the Employer: For the Union:
--------------------------------- Signed WARD GRAHAM, Sec'y.
At noon, Kelly phoned Gallagher and asked him if he was prepared to sign the
contract. Gallagher again told Kelly that the company was a member of the Asso-
ciation, which was bargaining for it on the multiemployer basis. Kelly said, "That's
too bad," and hung up. At 12:30 p.m., the Union Agents Kelly and Winger appeared
at the main gate of Corvallis with a picket banner which said, "On Strike." They
placed the picket banner near the main gate. Immediately upon the appearance
of the picket banner and the union representatives, the employees of Corvallis pre-
pared to stop work, some stopped immediately, and others finished the tasks in hand.
Kelly and Winger, with the picket banner, remained at the gate of the plant
throughout the remainder of the afternoon. By nightfall all employees of the
company had struck. The picketing continued thereafter, and the employees of
Corvallis did not work from that date until July 6, 1959.
On the next morning, May 12, the strike spread to the plant of Builders. John
W. Ash, Jr., the owner of that company, testified credibly and without contradiction
that on that morning he reached his plant about 8 a.m. and noticed that a group
of his employees were on the sidewalk talking with Union Agents Kelly and Winger.
When 8 a.m., their starting time arrived, the employees stayed outside the gate, and
did not report for work. About 10 a.m., that morning, Ash saw one of the
employees of Corvallis at the gate of his plant with a picket sign which read, "Unfair
to Teamsters Local 324." This sign was removed, however, after its appearance on
that date. Thereafter, the employees of Builders did not report for work until
approximately 4:30 p.m. on July 6.
It should also be noted that at the hearing the Union stipulated that it conducted
picketing at Corvallis beginning on May 11, 1958, but refused to so stipulate as
8 General Counsel's Exhibit No. 9 In evidence.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Builders. Also, no demand for a separate contract was made or asked of Builders
prior to the time its employees stopped work.
It is also undisputed that no pickets appeared, or were placed at any plant of
other members of the Association, at or around these dates.
E. The reaction of the Association; the lockout, its termination, and the picketing
of all employers
On May 11 and 12, when the picketing at Corvallis and Builders occurred, those
companies immediately notified the Association. On May 13, the negotiating com-
mittee of the Association held a meeting and decided to support the plants that
were being struck, on the basis that a strike against one was a strike against all. A
few days later, all the employer-members of the Association met and decided to,
close their plants in support of the companies which had been struck. However,
all the members of the Association could not suspend operation at the same time
because of contract commitments. It was then decided that as each company could,
it would suspend operations. Thereafter, the members of the Association, as cir-
cumstances permitted, notified their employees that because of the strike at some
plants of the Association they were temporarily suspending operations. This lock-
out had extended to the plants of all members by May 19.
Meanwhile, on May 13, 1959, the negotiating committee of the Association sub-
mitted its package proposal pursuant to the agreement of the meeting of May 8.
Thereafter, contemporaneous with the picketing at Corvallis; the strike at Builders;
and the lockout of employees at the plants of the Association, the negotiating com-
mittee of the Association and the committee of the Union continued to meet.
Also, at approximately this time, on May 18, the Association invoked the processes
of the Board by filing the original charge herein, which was later amended on June 9
,On May 21, the committees of the parties met and on this occasion, Graham,
secretary of the Union, notified the Association that the Union had held a meeting
of its members and that the employees had turned down the package proposal of
the ,Association. The principal objection was the question, of wages. The Union
then reinstated its original demand for a 35-cent an hour pay raise. The parties
were also at odds on the question of whether the welfare fund would be administered
by the Union or by the Association.
On June 1 the parties met again, and on this occasion the employers reaffirmed
their offer of May 13 in its entirely, and some of the employers' committee stated
that they did not think the package proposal had been presented to the men by the
Union in a fair manner. They stated that they wished to see the offer resubmitted
to the men.
On this date also, the Association decided to end its lockout, and its members
notified their employees to return to work. However, at this point, the Union and
the Operating Engineers Union both initiated picketing at all plants of the Associa-
tion's members. This picketing had continued until the date of hearing.
,On June 4 the parties met again and the union representatives stated that they
might be agreeable to the package proposal if the Union was granted a 25-cent an
hour increase effective January 1, 1959, an additional 15-cent increase as of May 1,
1959, and an additional 5 cents as of September 1, 1959. The question of how the
health and welfare fund would be administered was also at issue, as well as a change
in vacations, a proposal which seemed to enter and leave the negotiations
On June 16, another meeting of the committees was held at which practically
every member of the Association was represented. According to Blair, whose testi-
mony is not contradicted, at this meeting the conferees tentatively reached an agree-
ment on all issues except the one on union security. As to that, Mr. Carney, attorney
for the Union, and Blair, representative of the Association, agreed to make an effort
to draft some language on that subject which would meet the requirements of the
Act. One other issue was also unresolved; that was the question as to what would
happen if a contract was agreed upon, in view of the fact that the Operating
Engineers were also operating picket lines at the plants of the Association.
On June 19 another meeting took place between Blair, representing the Associa-
tion, and Carney, Holmes, Graham, and Tomlinson, representing the Union At this
meeting they made a draft of all the proposals that had been agreed upon. Blair
submitted a draft in regard to union security with which Carney disagreed on minor
points. It was agreed that the proposal would be redrafted and a copy submitted.
On the next day, June 20, Blair drafted a complete copy of the proposed agree-
ment; this included the health and welfare provision, and a wage provision giving
employees an increase of 25 cents per hour for 1959, 15 cents for 1960, and a re-
GENERAL TEAMSTERS LOCAL UNION NO. 324, ETC. 495
opening for wages in 1961. Copies were sent to Graham and Carney on the 23rd .4
One other question was unresolved-what disposition the parties would make of
charges which the Association had filed against the Union before the Board.
F. The capitulation of Corvallis and Builders
John Gallagher, Sr., is the president and majority stockholder of Corvallis. He
is 84 years of age and for many years had left the active management of the business
in the hands of his son, John Gallagher, Jr., mentioned previously. Mr. Gallagher,
Sr., testified that a day or two prior to July 5, 1959, he decided to end the strike at
his plant. He called an acquaintance, Red Wages, an official of the Operating
Engineers Union, and asked Wages to tell Graham, secretary of the Union, that
he was ready to sign a contract and have the men go back to work. He asked Wages
to arrange a conference with Graham, and asked Wages to tell Graham to have a
contract ready for his signature when they would meet. The senior Gallagher and
Graham met at Corvallis, Oregon, and Gallagher and Graham entered into the
following contract: 5
The undersigned agree to the following changes in the 1959, 1960, 1961,
1962 Sand & Gravel Agreement between Teamsters Locals 324 and the follow-
ing employer:
1. Wages-25¢ an hour January 1, 1959 to be added to the wage scale that
was being paid in the contract which expired December 31, 1958. 200 an hour
January 1, 1960. 200 an hour January 1, 1961 in all classifications. Agreement
to expire March 31, 1962.
2. Add Veterans Day as a paid holiday.
3. Add 3 weeks vacation after 15 years of employment.
4. Add pro-rated vacation clause.
5. Add truck and trailer to classification with low-boy and semi-trailer.
6. Health & Welfare Oregon Teamster Employers Trust-$15.50 plan to
be paid in July.
7. Continue 100 Pension Plan January 1, 1959.
For the Employer: For the Union:
Corvallis Sand & Gravel Co. WARD GRAHAM
JOHN GALLAGHER, Pres.
Gallagher, Sr., testified that he signed the contract for two reasons: (1) he was
concerned about the welfare of some of his longtime employees, and (2) the com-
pany was losing money at the rate of $500 to $1,000 per day because of the picket-
ing, which at that time had been continuous for approximately 60 days.
Gallagher, Sr., also testified that on a prior occasion, some 8 years previous to
the present strike, he had stepped into a strike situation at his company and had
settled the controversy with the Union. His actions, in regard to the two strike
situations, were his only participation in the conduct of labor relations of the com-
pany. He also said, that he understood the pickets were placed at Corvallis, when
his son refused to sign a separate contract with the Union. He was aware of his
company's membership in the Association, and had taken no steps to withdraw
the company from the Association. Nevertheless, he believed he was entirely free
to sign a contract with the Union for his company. As soon as he signed the
contract, the pickets at Corvallis were removed, and on the next morning his plant
resumed full-scale operations.
Shortly thereafter the capitulation of Builders took place. James W. Ash, Jr.,
the owner of Builders, testified that on Sunday, July 5, Graham called Ash at his
home and asked him to come to the hotel in Corvallis for a talk. Ash accepted
the invitation. When he arrived at the hotel he found Graham and Winger, and
the Operating Engineers' representatives, Wages and Jacobs. Graham told Ash
that Corvallis had signed a contract with the Union and he asked Ash if he wanted
to have his plant back in operation. Ash said that he would like that. Graham then
said, "Well, all you've got to do is sign this," and handed to Ash a contract which
Graham had previously signed. This contract was in the same terms as that signed
by the senior Gallagher Ash demurred and pointed out that the wage increase
was in excess of that which had been accepted as a basis of settlement in the last
negotiating session. Graham replied that this was the contract that Gallagher had
'This proposal is General Counsel's Exhibit No 7 in evidence, a contract entitled
"Commercial Rock Products Industry."
6 General Counsel's Exhibit No 10 in evidence.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed, and that Gallagher would have given the Union anything it asked for. Ash
said he would have to think it over. However, on the next day, when he observed
,that Corvallis had resumed operations, he signed the contract.
In his testimony Ash explained that he could not afford not to sign the contract
when his competitors were operating.° He said that before the picketing began
his sales ran at a rate of $10,000 per week; during the strike they ran at a rate of
$2,000 per week.
Upon the execution of these agreements, both Corvallis and Builders resumed
full-scale operations, though the strike of the Union continued at all other plants
of the Association's members.
G. The offer of individual contracts to other members of the Association
A few days later, on June 8, Union Agents Winger and Kelly went to the office of
George A. Lindahl, an officer of Central Paving Company and Valley Concrete
Company, both members of the Association, and both of whom were being picketed
at that time. They presented a copy of the contract signed by Corvallis to him
and told him that they would like to see him sign a similar contract, and that if
he did so Central Paving Company and Valley Concrete Company would be per-
-mitted to resume operations. Lindahl refused to sign. At about the same date,
Winger and Kelly also approached Clarence Feller, owner of Commercial Sand
and Gravel, another Association member, and offered his company the same propo-
sition. Feller likewise refused to sign.
H. Final meetings of the parties in the multiemployer bargaining
On July 24, representatives of the parties again met and in this meeting, Crosby,
.of the Union, assured Blair, of the Association, that if Blair would recommend that
his members withdraw the various charges they had filed against the Union, that
he would be inclined to request his members to cross the Operating Engineers'
picket line. This seemed to dispose of all issues between the parties.
However, when representatives of the parties again met on August 1, 1959,
Graham stated that the Union would have to have a wage increase in the third
year of the proposed contract, instead of the wage-reopener, previously discussed.
Shortly thereafter, the meeting was adjourned and that was the status of negotia-
tions at the time of the hearing.
1. The decertification proceeding at Builders
One other facet of the coduct of the parties merits exposition here.
It is undisputed that on May 21, 1959, certain employees of Builders filed a
petition with the Regional Office of the Board requesting the decertification of the
Union and Engineers Local No. 701 as their bargaining representative. The
Regional Director assigned the petition to Robert Wiener for investigation. He
requested Builders to supply information as to the names and classifications of its
employees and certain other information bearing on the question of interstate
commerce.
In the course of his investigation, Wiener suggested that Ash write the following
letter in order to permit his employees to have a decertification election. On May
26, 1959, Ash wrote to the Association, attention of Blair, who was still acting as
-representative of Builders, the following letter, with a carbon copy to the Union:
DEAR SIR: Please be advised that it is our desire to withdraw from the multi-
employer bargaining unit of the Cascade Employer's Association with regard
to the negotiation with Teamsters Local 324 effective this date.
Yours truly,
BUILDERS SUPPLY COMPANY,
By JOHN W. ASH, Jr.
On June 17, 1959, the Regional Director dismissed the petition in the proceeding,
stating the following:
As a result of the investigation, it appears that, because the labor organizations
named in your decertification petition (Hoisting & Portable Engineers Local
701; Teamsters Local Union 324) are not covered by an agreement with the
employer named herein for the units described, within the meaning of Section
9 A second competitor at Corvallis, Consor, was not a member of the Association and not
-here involved.
GENERAL TEAMSTERS LOCAL UNION NO. 324, ETC. 497
9(a) of the Act, further proceedings are not warranted at this time. I am
therefore dismissing the petition in this matter.
Copies of the Regional Director's letter were set to the Union and Engineers
Local 701, to attorneys for the Union, and to Pat Blair, representative of the
Association.
Concluding Findings
Upon the undisputed evidence, I find that the Union has committed the unfair
labor practices alleged in the complaint, thereby violating Section 8(b)(1)(B) and
8(b)(3) of the Act.
The undisputed evidence establishes that for many years the Association and the
Union bargained on the basis of a multiemployer appropriate unit. In the year
1959, bargaining for a new contract was initiated on the same basis with the same
committee representing the parties. It appears that this was progressing fruitfully
when the Union embarked on the course of conduct alleged in the complaint. In
the light of all the evidence, it is clear that the purpose and intent of the Union
in this course of conduct was to destroy the multiemployer unit and to rid itself
of the Association, as the representative of the employers. This is clearly seen
from- (1) The demand of Kelly to Gallagher, Jr., that he sign the separate contract
before noon; (2) the immediate picketing of Corvallis when Gallagher, Jr., refused
to sign ; (3) Kelly's undisputed statement to Gallagher, Jr., that henceforth the
Union would not deal with the Association but only with individual companies;
and (4) Kelly's disregard of Gallagher, Jr.'s, protest that the company was bargain-
ing through the Association in the multiemployer negotiations.
From the evidence, it appears that the Union chose Corvallis as the initial ob-
jective of its scheme because of two factors in the relationship of Corvallis with the
Association. These were: (1) Corvallis had for a period of time, some years
before, left the Association; and (2) on a prior occasion Gallagher, Sr., had settled
a strike with the Union. Upon the signing of the separate contract by Gallagher,
Sr., in the instant situation, the Union's scheme reached fruition and was fully
disclosed in the successive offers of the same contract to Builders, Valley Concrete
Co., and Commercial Sand and Gravel Co. If all of these companies had signed
separate contracts, the individual companies would have been shorn of their freely
chosen representative, the multiemployer appropriate unit destroyed, and the
Association excluded from all future bargaining. This purpose was fully achieved
in the case of Corvallis and Builders for those companies admittedly bowed to the
economic coercion of the Union; abandoned their chosen representative and signed
a separate contract with the Union. Surely, in the light of that evidence, those
companies were coerced and restrained in the choice of their bargaining representa-
tive in violation of Section 8(b) (1) (B).
It is equally clear, that this conduct of the Union constituted a refusal to bargain
in violation of Section 8(b)(3) of the Act. That the term "collective bargaining"
encompasses the duty to bargain "in good faith" has been stated in too many cases,
to need repetition here. How then must we assess the good faith of union repre-
sentatives, who sit at a bargaining table conducting fruitful negotiations with a
representative of employers, on the basis of a multiemployer unit, in accordance
with a long history of such bargaining, and who then leave the meeting and initiate
steps to destroy the multiemployer unit , and to deprive the individual employers
of the services of their freely chosen representative? Upon the undisputed evi-
dence, I find that the Union by "going behind the back" of the Association, demand-
ing a separate contract from Corvallis, and supporting that demand by a strike, has
failed in its duty to bargain in good faith with the Association as the representative
of the employers in the duly constituted appropriate unit and has violated Section
8(b)(3) of the Act.
I also find that the Union committed a second offense of the same section by its
strike at Builders and its coercion of that company to sign a separate contract 7
Upon the undisputed evidence, I also find that Corvallis signed an individual con-
tract with the Union on July 5, and that Builders signed a similar contract on July 6.
The evidence establishes and I find that these contracts were the direct effect of the
unfair labor practices of the Union found above. It is well-settled law that a
contract obtained as a result of an unfair labor practice may not be used as the basis
of advantage to the violator of the Act. Therefore, the Trial Examiner finds upon
the entire record that the separate contracts executed by the Union with Corvallis
7Elliott v. Local Union No . 4 9, of the Sheet Metal Workers ' Association, et al. (New
Mexico Sheet Metal Contractors Association , Inc.), 122 NLRB 1192.
560940--61-vol. 127-33
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and with Builders are void and of no force and effect .8 In making this finding, I am
mindful of the fact that both parties are before the Board in this proceeding, Cor-
vallis and Builders, through the Association , their duly constituted bargaining repre-
sentative in an appropriate multiemployer unit, who is the Charging Party herein,
and the Union , who is the Respondent.9
Certain arguments advanced by the Union in its defense have been considered'
and rejected by the Trial Examiner in making the decision set forth above. Some
of the contentions warrant mention here.
One such argument is based on the fact that on July 3, Gallagher , Sr., requested
Graham of the Union to meet with him. The Union lays emphasis on the fact that
Gallagher, Sr ., asked for this meeting and that the Union did not seek out Gallagher,
Sr. I can attach no significance to this fact , for Gallagher , Sr.'s action was the
direct result of and a capitulation to the Union 's demand of May 11. The contract
demanded on May 11, and the contract signed on July 5, are practically identical.
That Gallagher , Sr., delayed his capitulation for a period of time does not change
the culpability of the Union as established on May 11; on that date the unfair labor
practices were consummated , by the Union 's unlawful demand , and its coercive
picketing that supported its demand . On that date the violation of the Act by the
Union was complete, and neither the Union nor Gallagher could undo the viola-
tion by later conduct.
The Union bases a second argument on the letter of Ash to the Association, dated
May 26 , in which Ash stated that Builders withdrew from the multiemployer bar-
gaining unit . This letter must be related to the context in which it was written. It
was written in the course of the decertification proceeding before the Board, of which
the Union had notice . This proceeding was dismissed on the ground that Builders
was a member of the multiemployer unit , and Builders ' employees were only a frac-
tion of the total employees in the total multiemployer unit. Of this decision, which
reaffirmed the existence and apropriateness of the multiemployer unit , the Union had
notice. I cannot credit the Union 's claim, under these circumstances , that Ash's
letter of May 26, either misled the Union in its later dealing with Builders, or gave
it the right to deal with Builders, as it did. Especially , is this true when the un-
disputed evidence is that at all times Ash informed the union agents that the As-
sociation was Builders ' representative in the multiemployer negotiations.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union set forth in section III, above , occurring in connec-
tion with the operations of the Association, and its members , 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 obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Union has violated Section 8(b)(1)(B) and 8 ( b)(3) of
the Act, I shall recommend that it cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding , I make the following:
CONCLUSIONS OF LAW
1. General Teamsters Local Union No. 324, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America, is and has been, at
all times material to this proceeding , a labor organization within the meaning of
Section 2 ( 5) of the Act.
2. Cascade Employers Association , Inc., and its members are and each of them is
an employer within the meaning of Section 2 ( 2) of the Act.
8 Sdme employers in the early days of the Act used the device of individual contracts of
employment with employees in an effort to avoid their duty to bargain with the freely
chosen representative of their employees Such contracts have been uniformly condemned
by the Board , and declared void The individual contracts here have the same unlawful
purpose , and must be similarly condemned See John S. Doane Company , 63 NLRB 1403
, That Corvallis and Builders are still members of the Association , and their employees
still a portion of the multlemployer unit are • (1) Undisputed facts in this proceeding,
and (2 ) indisputable facts under existing Board decisions . See Retail Associates, Inc.,
120 NLRB 388 , Anderson Lithogi aph Company , Inc, at at , 124 NLRB 920
ARISTA SERVICE, INC. 499
3. All employees of the members of the above-named organization in the unit,
hereafter described , excluding all other employees of such members, and super-
visors as defined in the Act, constituted at all times pertinent hereto a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act. The unit is described as follows:
All truckdrivers and helpers , levermen , truck mechanics and helpers, lift jitney
and carrier drivers, warehousemen ( including parts and tool men ), greasers and tire
men, excluding office, clerical employees, and supervisors , as defined in the Act.
4. The Union is and has been, at all times material to this proceeding, the ex-
clusive representative of all the employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
5. By restraining and coercing employers in the selection of the Association as
their representative for the purposes of collective bargaining , as found above, the
Union has engaged in unfair labor practices within the meaning of Section
8(b)(1)(B ) of the Act.
6. By refusing to bargain collectively with the Association, as found above, the
Union has engaged in unfair labor practices within the meaning of Section 8(b)(3)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Arista Service , Inc. and Local 1, Amalgamated Lithographers
of America. Case No. O-CA-6503. April 09, 1960
DECISION AND ORDER
On December 21, 1959, Trial Examiner Vincent M. Rotolo issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent
had not engaged in certain other alleged unfair labor practices and
recommended that the complaint be dismissed as to these allegations.
Thereafter the Respondent and the General Counsel filed exceptions
and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, the exceptions,
and the briefs, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner, with the following modifications.
'We agree with the Trial Examiner for the reasons set forth in the Intermediate
Report that Gabriel Swart was a supervisor , as defined in Section 2(11) :of the Act, in
the Respondent 's plant. We , therefore , deem it unnecessary to and do not determine
whether or not Swart , even if not a supervisor , nevertheless was an agent of the Respond-
127 NLRB No. 66.