Hartz-Kirkpatrick Construction Co., Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1972

195 N.L.R.B. 863 (N.L.R.B. 1972)

HARTZ-KIRKPATRICK CONSTRUCTION CO., INC. 863
Hartz-Kirkpatrick Construction Co., Inc . and Lower
Ohio Valley District Council of Carpenters , United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO and Associated General Contractors of
America , Evansville Chapter , Inc., Party to the Con-
tract . Case 25-CA-4090-1
March 14, 1972
DECISION AND ORDER
Pursuant to notice a trial was held before me in Owens-
boro , Kentucky , where the parties were present , represented
by counsel , afforded full opportunity to be heard , to present
evidence and oral argument , cross-examine witnesses and file
briefs . Briefs were filed by all the parties on September 20,
1971.
Upon consideration of the entire record herein , including
the briefs filed with me, and specifically upon my observation
of each witness appearing before me , I make the following:
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
On November, 10, 1971, Trial Examiner Thomas F.
Maher issued the attached Decision in this proceeding.
Thereafter, General Counsel filed exceptions and a sup-
porting brief, and Respondent filed an answering brief.
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, conclusions2 and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
Hartz-Kirkpatrick Construction Co., Inc., Owensboro,
Kentucky, its officers, agents, sucessors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.
' The Trial Examiner found that Section 10(b) of the Act does not pre-
clude a finding of violation of Section 8(a)(5). As Respondent has not filed
exceptions to the Trial Examiner's findings, we adopt this particular finding
pro forma.
' The Trial Examiner found that Respondent's refusal to sign the mul-
tiemployer contract previously negotiated was not violative of Section
8(a)(5) because: (1) after an impasse in multiemployer bargaining any party
may timely withdraw from such bargaining and an impasse had occurred
here; and (2) the Union acquiesced in Respondent's withdrawal from the
multiemployer bargaining unit and in its desire to negotiate on a single-
employer basis . The Board rests its decision on the second ground relied on
by the Trial Examiner; it deems it unnecessary to pass on the first ground.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER, Trial Examiner: Upon a charge filed
on January 4, 1971, by Lower Ohio Valley District Council
of Carpenters, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, herein interchangeably called the
District Council or the Union, against Hartz-Kirkpatrick
Construction Co., Inc., Respondent herein, the Regional Di-
rector for Region 25 of the National Labor Relations Board,
herein called the Board, issued a complaint on behalf of the
General Counsel of the Board on May 27, 1971, alleging a
violation of Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended (29 U.S.C. Sec. 151, et seq.),
herein called the Act. In its duly filed answer Respondent,
while admitting certain allegations of the complaint, denied
the commission of any unfair labor practice.
1. THE BUSINESS OF THE RESPONDENT
Hartz-Kirkpatrick Construction Co., Inc., Respondent
herein, is a Kentucky corporation with its place of business
at Owensboro, Kentucky, where it is engaged in the business
of general construction. During the past 12-month period
Respondent, in the course and conduct of its business, per-
formed services valued in excess of $50,000 in States other
than the Commonwealth of Kentucky. It is admitted and,
upon the foregoing stipulated facts, I conclude and find that
the Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
It is admitted and I accordingly conclude and find that the
District Council and its constituent Locals 601, 1341, 694,
and 1814 are each labor organizations within the "leaning of
Section 2(5) of the Act.
III. THE ISSUES
1. The effect of Section 10(b) upon a contemporaneous
violation of the Act established by a substantial amount of
outdated evidence.
2. Bargaining impasse as justification for withdrawal from
multiemployer bargaining.
3. Individual bargaining as union approval of employer
withdrawal from multiemployer bargaining.
4. The effect of failure to allege a specific violation upon the
finding of such a violation.
IV. THE UNFAIR LABOR PRACTICES
A. Facts
Labor relations matters generally in the construction in-
dustry in and around Owensboro , Kentucky , and neighbor-
ing Indiana are administered in behalf of employers by the
Associated General Contractors , Evansville Chapter, re-
ferred to hereafter as the AGC. Similarly , the several craft
unions are represented by district councils , one of which is
the Charging Union , Lower Ohio District Council of Carpen-
ters , comprising , as noted above, Locals 601 , 1341, 694, and
1814 of the Carpenters.
From February 1965 until December 1970 , a considerable
time after the events giving rise to this proceeding , Respond-
ent was a member of the AGC. In negotiations leading to the
execution of the contract between the AGC and the District
Council in 1967 James L. Lovelace, Respondent's vice presi-
dent , played an integral part as a member of the organiza-
tion 's negotiating team , and his signature appears among the
members of the employers' representatives signing the agree-
ment on May 12, 1967.
In anticipation of the May 1970 expiration of the AGC's
agreement with the District Council a negotiating team was
activated early in the year and held a number of strategy
meetings preparatory to formal bargaining . Lovelace was
again a member of the AGC's negotiating team , attended the
195 NLRB No. 154
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preliminary meetings, and was among those AGC representa-
tives who first met with the District Council representatives
on February 6, 1970.
As had been anticipated by the AGC representatives, the
demands of the Union were considered to be excessive and
were vigorously protested. Among the changes sought was an
improvement of the ratio between foremen and journeymen
carpenters, 2 hours' pay for reporting to a job and not being
put to work, 4 hours' pay when any work at all is done after
reporting, 8 hours guaranteed for any workday, and a union
dues checkoff provision in the contract. Wage demands were
not made at the first meeting.
At this meeting the employers, quite apart from their vary-
ing opposition to the demands made upon them as a negotiat-
ing team, were unanimous in their opposition to the demand
for the dues checkoff, Lovelace leading the opposition to it.,
In fact, according to the Union's business representative, Wil-
liam C. Moseley, "he objected to everything we put on the
floor"; and the AGC' executive director, Randolph Walther,
described Lovelace's opposition to the checkoff as having
been expressed "far back before the end of the previous year,
even before we got into the year of contract determination."
From the Union's point of view the checkoff provision was
equally significant. Thus District Council Representative
Moseley credibly quoted the Council's executive secretary, J.
C. Keown, spokesman at the negotiating sessions, as having
stated that "the Council had to have the dues checkoff provi-
sion in order to have a contract."'
At the next bargaining session , March 20, Lovelace and the
other members of the AGC bargaining committee continued
their adamant opposition to the dues checkoff provision and
the Union representatives were equally insistent that it be
included. The meeting ended on an unsettling note with the
parties agreeing to little except to reconvene on March 31,
1970. On that date after preliminary caucuses by each side,
the business of the meeting consisted of long and fruitless
discussion concerning the inclusion of the checkoff provision,
Keown, in behalf of the Union, stating that if by April they
had the working conditions and everything else they wanted
but no checkoff the Union would not sign the contract. In
reply for the employers Lovelace stated that "if by the 1st of
April if the employees had wages that suited them, working
conditions that suited them and everything else and it was
agreeable and if dues checkoff was still in the contract, that
Hartz-Kirkpatrick would not be a party to it." Whereupon
the meeting broke up and it was mutually agreed "that there
seemed to be no point to schedule further meetings at this
time but that either party would meet at the call of the other
party."'
From this date no one representing Respondent par-
ticipated in the negotiations. During at least part of this
period a strike was in progress. Negotiations resumed at some
undetermined date after March 31, without benefit of Lovela-
ce's participation, and a contract which contained the dis-
puted checkoff clause was signed on May 26, 1970, effective
retroactively from April 1, 1970. No representative of Re-
spondent appears among signatories to this contract. During
this period and eleven days before the execution of the con-
' The findings herein are based upon the substantially undisputed tes-
timony of Lovelace, Randolph Walther, executive director of the AGC
Local Chapter, and William C. Moseley, business representative of the
District Council and an officer of Local 1341.
' Lovelace substantiated this fact, quoting Keown to the effect that if the
contract did not have a dues checkoff provision the Union would not sign
it.
' The credited testimony of Lovelace, corroborated by Business Repre-
sentative Moseley.
tract Respondent, under the signature of its Secretary-
Treasurer Frank Hartz, sent the following letter, dated May
15, 1970, to the AGC:
Associated General Contractors
of America, Inc.
Evansville Chapter
1204 First Avenue
Evansville, Indiana 47710
Attention: Mr. Randolph H. Walther,
Executive Director
Gentlemen:
This is to advise you that, effective immediately,
Hartz-Kirkpatrick Construction Co., Inc. hereby termi-
nates the authority of Associated General Contractors of
America, Inc., Evansville Chapter, to negotiate with any
labor organization on behalf of Hartz-Kirkpatrick Con-
struction Co., Inc.
This company does not intend to be bound by the
terms of contracts between Associated General Contrac-
tors of America, Inc., Evansville Chapter, and any labor
organization executed subsequent to this date.
On the same date Hartz sent letters to the District Council
and Locals 1341, and 1080, each identical to the other and
reading as follows:
Gentlemen:
This is to advise you that Hartz-Kirkpatrick Con-
struction Co., Inc. has this day terminated the authority
of Associated Building Contractors of Owensboro, Inc.
and Associated General Contractors of America, Inc.,
Evansville Chapter, to negotiate with any labor organi-
zation on behalf of Hartz-Kirkpatrick Construction Co.,
Inc.
This company does not intend to be bound by the
terms of contracts between Associated Building Con-
tractors of Owensboro, Inc. or Associated General Con-
tractors of America, Inc., Evansville Chapter, and any
labor organization executed subsequent to this date.
Hartz-Kirkpatrick Construction Co., Inc., is ready
and willing to negotiate for a contract covering wages,
working conditions and other terms and conditions of
employment, provided that a majority of our employees
employed in your craft signify a desire to be represented
by your organization. For this purpose, we offer to meet
with your representatives on Friday, May 22, 1970, at a
mutually agreeable time and place.
Please notify us as to whether you will accept this offer
to negotiate.
Respondent admits that since the expiration of the 1967-70
AGC contract it does not pay carpenters in its employ the
wage rates and fringe benefits contained in the newly ex-
ecuted AGC contract nor does it follow its hiring procedure.
Following the execution of the AGC contract in May Busi-
ness Representative Moseley arranged a meeting with Re-
spondent and on June 20 visited with Lovelace at his office.
Moseley took out the then-executed AGC contract and pre-
sented it to Lovelace for inspection. Lovelace was not asked
to take any action with regard to the contract and after
looking through it stated that he was not then "in a position
to make any counterproposal or anything in this matter." On
this indefinite note the meeting ended. At the suggestion of
Union Executive Secretary Keown Moseley set up a second
meeting with Lovelace for June 28. This meeting took place
with Lovelace at his office, with Frank Hartz present for at
least part of the meeting. Hartz asked Moseley what he had
to offer them and Moseley presented him the AGC contract.
He looked at it, handed it back, and told Moseley the Union
was asking too much money. A heated argument ensued the
climax of which was Hartz' statement, "I'll die and go to hell
HARTZ-KIRKPATRICK CONSTRUCTION CO., INC. 865
before I sign that contract." What followed is best described
in Moseley 's testimony at the trial:
Then he said, I have something to offer you and I said,
I will listen. I took notes of it and he said, we will give
the men a 20 cent raise with no fringes, nothing and that
they would strike out the foreman' s clause and that they
didn't think that nobody had a right to tell supervision
of the Company how many men to have, where to put
them, when they designated, when they needed a fore-
man or a superintendent and a few other things that I
can't recollect everything that was said. I told Mr. Frank
Hartz I will take this back and present it to the Council
and Mr. Keown read it and immediately turned it down.
Q. Do you recall anything else that you said at this
time in response to that proposal?
A. No not right off hand I don't. I told him just as
quick as I found out something about it, that I would
notify him, personally and then when it was turned
down, why I called out there and Mr. Frank Hartz
wasn 't in the office.
Q. Do you recall any discussion about whether or not
the proposal would be acceptable?
A. I told him that I didn't think that the proposal that
he presented would be acceptable because I didn't think
it was in my power or Mr. Keown's power to deviate
from the contract that we had negotiated with the AGC.
On cross-examination Moseley elaborated:
Q. Do you recall at any one of these meetings that you
have testified about, making a proposal to Hartz-Kirkpa-
trick that if they would sign the agreement which had
been executed by AGC of Evansville and the District
Council that the Union would agree, number one, not
have any picket lines on projects unless, by the Carpen-
ters Union, and number two, that there would be no
work stoppages, on the part of Carpenters because of
jurisdictional disputes?
A. Yes.
Q. You did make that proposal.
A. Yes sir.
Neither of these two provisions offered by Moseley appeared
in the AGC contract; and, when asked at the trial if he was
offering something to Hartz-Kirkpatrick that he had not off-
ered to the AGC of Evansville, he replied that he was.
Moseley presented Lovelace's proposal to Keown who de-
cided that he would not deviate from the AGC contract.
Moseley transmitted this decision to Lovelace and asked for
another meeting. Lovelace refused, stating that they were
then "too busy bidding contracts to talk about it."
Thereafter on or about July 8 Moseley, in the company of
Pete Howell, assistant business agent of the District Council,
met John Kirkpatrick, Respondent's president, at the jobsite
of the nearby Henderson County School. It was Moseley's
uncontradicted testimony' that in response to his request of
Kirkpatrick was not called as a witness to deny the conversation at the
school site credibly attributed to him by Moseley. Respondent, without
specifically denying that the conversation took place, seeks to imply as much
by showing that the contract to construct the Henderson County School was
not executed until August 31, 1970. There is nothing in the record, however,
to refute the likelihood that some work may have commenced before the
formal signing of the documents.
Moreover, the contract in evidence indicates that specifications and draw-
ings for the construction project had been prepared as early as June 29,
1970. And Moseley, testifying concerning the meeting at the jobsite, stated
that "they were down there laying it off and getting ready to start digging
and set a few forms ." I am not prepared to view Moseley's observation of
what may well have been preliminary preparations as the beginnings of a full
scale construction job. It could just as well have been some activity as-
sociated with the bidding which culminated in the August 31 contract.
Respondent to sign the agreement Kirkpatrick stated to them
that Respondent was in no position to sign a contract with
them, and that when their other union contracts expired it did
not intend to sign any others. On the following day the Union
commenced picketing the school construction site. Mean-
while, on July 9 or 10, Moseley called Lovelace and stated
that they, meaning the Union, did not want Lovelace to
prepare a contract containing counterproposals for the pur-
pose of presenting them to the Union membership, as Love-
lace had previously indicated he would do. Instead, Moseley
suggested, if the Respondent would sign the original AGC
contract the District Council would then agree not to honor
picket lines other than their own and would not engage in
work stoppages caused by jurisdictional disputes. Lovelace
agreed to consider this offer but there was, in fact, no further
conversations between the parties.'
B. Analysis and Conclusions
1. The timeliness of the complaint
Substantially all of the incidents and transactions detailed
herein occurred before July 4, 1970. This date begins the
6-month period immediately preceding the January 4, 1971,
filing of the charge in this matter and forms the basis for
Respondent's contention that the limitation of Section 10(b)
of the Act' precludes consideration of the merits of the Com-
plaint . While it is obvious that the several AGC meetings
which formed the basis for Respondent's withdrawal of its
bargaining authority from the AGC occurred outside the
so-called 10(b) period, as did the two June meetings with the
Union representative in Respondent's office, nevertheless, the
July 8 meeting which I find to have taken place at the school
construction site (supra) was equally as significant to the
bargaining relationship as were the others . Related as this
most recent meeting is to what transpired earlier I am guided
by the terms of the Supreme Court's Decision in the Bryan
Manufacturing case.' These earlier incidents and transactions
most certainly shed light upon and provide explanation for
what occurred at the July 8 meeting and to the telephone
conversation of the day following. For this reason I shall give
full consideration to all of the facts found herein.
Moreover, and quite apart from any findings with respect
to the July 8 conversations, it is settled law that a refusal to
bargain, persisted in after having been made , constitutes a
continuing violation of a continuing obligation to bargain! If,
therefore, it should be found herein that prior to the period
of limitation an obligation to bargain existed and that a
refusal to comply had occurred, it follows by application of
established principles that the obligation continues into the
six-month period preceding the filing of the instant charge
and that the refusal continues also.
Upon either theory, therefore, I conclude and find that
Section 10(b) of the Act does not preclude a finding of a
violation of Section 8(a)(5) upon the facts found herein.
Accordingly I find neither conflict of evidence nor denial of the meeting.
' This telephone conversation is the uncontradicted testimony of Love-
lace which I credit.
In pertinent part Section 10(b) provides:
That no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with
the Board...
Local Lodge No. 1424, International Association of Machinists [Bryan
Manufacturing Co.], v. N.L.R.B. 362 U. S. 411. See also : Southern Wipers,
Inc., 192 NLRB No. 135; E. L. Jones Dodge, Inc., 190 NLRB No. 136.
' Hy-Land Furniture, Inc., 180 NLRB No. 57.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The timeliness of the legal withdrawal from association
bargaining
Presented for determination by the facts of this case is
whether there has been a legal and timely withdrawal of an
employer from previously established multiemployer or as-
sociation bargaining. If, then, it can be shown that Respond-
ent's withdrawal from the AGC was either ineffectual legally
or was untimely, then its subsequent conduct which cul-
minated in a refusal to bargain with the District Council
would constitute a violation of Section 8(a)(5).
McAnary and Welter, Inc., 115 NLRB 1029, continues to
be' the cornerstone of an individual employer's rights and
obligations in multiemployer bargaining. Thus it is stated
(115 NLRB at 1031):
A unit limited to employees of the employer becomes
appropriate if the employer manifests its intention to
withdraw from multiemployer bargaining and to pursue
an individual course of action at an appropriate time.
Two subsidiary problems emerge from a statement of this
well-established rule: (1) what constitutes an intent to with-
draw from multiemployer bargaining and to pursue an in-
dividual course of action, and (2) what constitutes an appro-
priate time.
a. The intent to withdraw
It is clear that by May 15, 1970, Respondent was no longer
a part of the AGC bargaining mechanics . To begin with,
Lovelace, Respondent's representative on the AGC bargain-
ing committee, physically absented himself from the scene
after March 31, having at that meeting stated categorically
Respondent's determination not to sign the contract contain-
ing the disputed checkoff provision demand of the employer
committee by the District Council representatives. It was at
this time that bargaining came to a halt and a strike ensued.
During the pendency of the strike and before the resump-
tion of bargaining Respondent specifically withdrew its bar-
gaining authority from the AGC (supra) and notified the
District Council and its constituent locals of its action and of
its determination not to be bound by future bargaining or by
any resulting agreement (supra). General Counsel's charac-
terization in his brief of Respondent's action as a "flurry of
letters" does not detract in any way from the obvious conclu-
sion that Respondent had thereby manifest to all concerned
its intent not to be represented henceforth by the AGC or to
be bound by any agreement it would make with the District
Council. This notification to all parties of the intent to with-
draw I conclude and find to have been given on May 15, 1970,
b. The timely withdrawal
A definition of what constitutes a "timely withdrawal"
suffers from confusing authority. In McAnary and Welter
Inc., supra, the employer did not withdraw until after the
agreement had been negotiated and after actual signing by
one of its own corporate officers. This the Board held to be
untimely. On the other hand, in the recent decision of the
Board in Spun-Jee Corp and The James Textile Corp., 171
NLRB no. 64, it considered a situation similar to the instant
one in that the withdrawal of an employer from association
bargaining was accompanied by the Employer's continuing
claim of the economic distress that would result to it-from the
contract demands being made upon the association by the
Union. Here the Board found "that unusual circumstances
existed with justified [the Employer's] withdrawal from the
This case was most recently relied upon in Southwestern Colorado
Contractors Assn., 153 NLRB 1141. See also The Kroger Co., 148 NLRB
569.
Association ... and that this withdrawal, although ordinarily
to be deemed untimely because occurring after the com-
mencement of association-wide negotiations, nevertheless
here was valid and effective."
More recently, in Plumbers and Steamfitters Union No.
323, 191 NLRB No. 121, the Board has recognized the legal
effect of an impasse and resulting strike. It affirmed a holding
of the Trial Examiner that a union did not violate Section
8(b)(3) by executing a contract with one employer member of
a multiemployer bargaining association after the association
bargaining had commenced and had proceeded to be an im-
passe and strike. In this cited case the Board affirmed the
Examiner 's reliance upon an earlier decision , Ice Cream,
Frozen Custard Industry Employees, et al. and Ice Cream
Council, 145 NLRB 865. In that case employers engaged in
multiemployer bargaining with the Union, in the course of
which an impasse in bargaining occurred and a strike re-
sulted. During the strike the Union signed individual agree-
ments with a number of the employermembers of the bargain-
ing association, which agreements differed substantially from
the agreement being sought in association bargaining. Find-
ing that the execution of such individual contracts did not
relieve the union of its obligation to bargain with the associa-
tion, the Board, considering the nature of the withdrawals,
approved them in the following language (145 NLRB at 870):
As for the employers who the Trial Examiner found
signed separate contracts with the Union in October
1961, there is no evidence to indicate that the Union
restrained or coerced them into revoking their selection
of the Council as their representative. It appears that
they signed the contracts voluntarily, pursuant to under-
standings reached between them and the Union during
an impasse in the negotiations prior to the June 2-3
meeting. It further appears that these understandings
were initiated by the employers themselves when they
approached the Union and requested the Union to bar-
gain with them individually. We find that by thus invit-
ing and entering into separate understandings with the
Union, these employers effectively revoked their desig-
nation of the Council as their representative and, with
the agreement of the Union, withdrew from multiem-
ployer bargaining. In a situation such as this, where there
has been a breakdown in negotiations leading to an im-
passe and a resultant strike, an employer, if he so chooses
and the union agrees, is not precluded from voluntarily
withdrawing from a multiemployer unit. [Emphasis
added]
And as if to emphasize this designation of an impasse and
strike as a salient factor of a timely withdrawal the Board also
approved without comment the Trial Examiner's reliance
upon the Ice Cream Council decision (supra) in Shamrock
Systems, Inc., 155 NLRB 1120, to find untimely a withdrawal
accomplished during a strike but where no impasse had oc-
curred in the bargaining.
Elsewhere in the reports of Board decisions instances of
member withdrawal from multiemployer bargaining have
been considered with varying results. Thus in Johnson Sheet
Metal, Inc., 179 NLRB No. 104, a withdrawal which oc-
curred after negotiations had began was held to be untimely,
with the implicit suggestion that a lack of consent by the
Union was the determinant. In The John J Corbett Press,
Inc., 163 NLRB 154, the Board affirmed the Trial Examiner's
finding that an individual employer-member's withdrawal
from a multiemployer association had not been timely when
he did so midway in the negotiations . In considering the
reasoning of the employer in support of its action the Exam-
iner, without subsequent to comment thereon by the Board,
HARTZ-KIRKPATRICK CONSTRUCTION CO., INC.
noted as to the possible legal effect of impasse (163 NLRB at
157):
And no claim of impasse was put in issue or litigated, but
if the contrary could be said to have been the case, the
evidence clearly shows that no true impasse ever devel-
oped over the Union's pension proposal or otherwise.
Thus the Board by its affirmance of the Examiner appears
again to suggest impasse as a determinant of the timeliness
of a withdrawal. Similarly, in Service Roofing Company, 173
NLRB 321, the Board affirmed the Trial Examiner's finding
that an employer, by reserving his right to withdraw from
multiemployer bargaining if not satisfied with the resulting
contract made during the negotiations, did not unequivocally
withdraw from multiemployer bargaining . The Examiner
considered the impasse features lurking in the case, expressly
stating that it was unnecessary to make findings with respect
to timeliness because "the record indicates a temporary cessa-
tion of negotiations ... rather than an 'impasse,""' citing
John J. Corbett Press Inc., supra. The Board agreed with the
Examiner's analysis of this issue, equating the absence of
"unusual circumstances" that would justify an otherwise un-
timely withdrawal with its decision in Spun-Jee, supra, where
the Board had most recently reaffirmed that "unusual cir-
cumstances" could establish the timeliness of withdrawal. As
the Examiner had viewed the lack of impasse as being a lack
of unusual circumstances, and as the Board by its footnote
comment has underlined this absence of a critical unusual
circumstances, it would follow that the Board thereby recog-
nizes an impasse as a determinant of the validity of an em-
ployer's withdrawal from multiemployer bargaining.
This foregoing summary of representative holdings in the
area of withdrawal from association bargaining suggests a
degree of confusion not conducive to hornbook application of
basic principles. On the contrary there is every reason to
suggest that an ad hoc application of the "timeliness of with-
drawal" factor be fitted to the peculiar circumstances of case
involved.
A synthesis of the cases at hand compels the conclusion
that a withdrawal which follows an impasse in bargaining is
timely; prescinding for the moment any consideration of the
need for the union's approval of such action. Thus, to summa-
rize, in Corbett Press, supra, the Board, although finding no
impasse, suggests by implication that the existence of an im-
passe would have justified the withdrawal. In a later case,
Service Roofing, supra, the Trial Examiner suggests in a foot-
note that had an impasse existed when the withdrawal oc-
curred it would have been timely; and the Board, in a footnote
of its own, agreed by saying, not that there was no impasse,
but that there was no "unusual circumstances," making spe-
cific reference to its earlier decision in Spun-Jee, supra, where
it had spelled out the characteristics of "unusual circum-
stances" justifying a withdrawal. Upon a consideration of the
foregoing interrelated concepts endorsed by the Board I am
persuaded that the only logical implication to flow from this
is a recognition that an impasse in multiemployer bargaining
is the sort of unusual circumstance that would legally justify
an individual employer member of such multiemployer bar-
gaining in effectively withdrawing from it in what would be
deemed timely fashion.
Relating this principle to the facts herein it would appear
that what transpired on and after March 31, 1970, constituted
an impasse.
"Whether a bargaining impasse existed is a matter of judg-
ment. The bargaining history, the good faith of the parties in
negotiations, the length of the negotiations, the importance of
the issue or the issues as to which there is disagreement, the
11 173 NLRB at 323 and fn. 8.
867
contemporaneous understanding of the parties as to the state
of negotiations are all relevant factors to be considered in
deciding whether an impasse in bargaining existed." Taft
Broadcasting Co., 163 NLRB 475 , 478. Here there is no claim
that any of the parties had not bargained in good faith and
the history of past bargaining which had culminated in the
earlier 1967 contract would belie any such suggestion.
Among its demands for the new contract the District Council
wanted certain changes from the previous contract , including
call-in pay, foreman journeyman ratio improvement , higher
wages , and the disputed dues checkoff clause . The employers,
from their first strategy meeting through each of the bargain-
ing sessions to and including March 31, adamantly refused to
accept these demands . With these critical issues still un-
resolved both parties left the March 31 meeting agreeing only
that no agreement could be reached and setting no date for
resumption . At this time the strike was called.
By the Board 's standards as defined in Taft Broadcasting,
supra, and by any reasonable application of recognized ter-
minology this was an impasse . I realize , of course , that by
May 26 a contract had been negotiated and executed in behalf
of the remaining members of the AGC. This , however, in no
way detracts from a finding that an impasse existed earlier,
for "an impasse is no less an impasse because the parties were
closer to an agreement than previously , and a deadlock is still
a deadlock whether produced by one or a number of signifi-
cant and unresolved differences in positions ." Taft Broadcast-
ing Co., supra. Upon all of the foregoing , therefore, I con-
clude and find that beginning on March 31, 1970 , and at least
until May 15 , 1971, when Respondent withdrew from the
AGC its authority to represent it, an impasse in bargaining
existed.
Concluding as I have that an impasse in bargaining is
sufficient to establish the timeliness and effectiveness of a
withdrawal of an employer for multiemployer bargaining and
upon my findings that an impasse existed when Respondent
withdrew its bargaining authority from the AGC I therefore
conclude and find that Respondent , by its notification on May
15, 1970 , to all parties , effectively and timely withdrew from
the bargaining scene and was not thereafter obligated to par-
ticipate as part of the multiemployer group.
It is important in such a finding as I have made that,
according to the cases , (supra, pp. 11-14) the District Coun-
cil has acquiesced in Respondent 's action . I am aware, of
course, that upon receipt of Respondent 's notification of
withdrawal the District Council and its constituent locals
dispatched a telegram to Respondent protesting its action.
The telegram read as follows:
Your firm sent a letter to the following organizations
dated May 15, 1970.
Millwright Local 1080.
Laborers Local 1392.
Plumbers and Pipefitters 633.
Carpenters Local 1341.
Lower Ohio Valley District Council of Carpenters.
Operating Engineers Local 181.
Ironworkers Local 103.
We are not informed of any labor organization to
whom you sent this form letter.
Be advised that your withdrawal of authority of ABC
[sic] of Owensboro , Inc., AGC of America , Inc., Evans-
ville Chapter , to negotiate with these labor organizations
in your behalf, is untimely, illegal , and in bad faith. To
illustrate your lack of good faith and real absence of
intent to bargain is your letters to Plumbers & Pipefitters
633, with whom you have never contracted and Operat-
ing Engineers 181, with whom you are bound separate
agreements , which do not expire at least one year from
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this date. In short, we charge your company with a
blatant, illegal and immoral refusal to bargain in good
faith. Be further informed in behalf of Carpenters, Mill-
wrights, Laborers and other labor organizations affi-
liated with the Owensboro Building and Construction
Trades Council to whom you have sent these form letters
that we do indeed represent a substantial majority of
your employees in each craft. Be further advised that
despite your illegal activities you will shortly be con-
tacted to arrange a series of negotiations for new labor
agreements with the labor unions with whom you have
bargained in the past. Your suggested date of Friday,
May 22, 1970 is rejected, but we will contact your com-
pany in the next 5 days to arrange mutual agreement as
to date, times and places for collective bargaining to
recommence.
Be further advised that unfair labor practice charges
are being prepared and will be filed shortly against you
alleging various violations of the labor Relations Act.
K. C. Keown, President,
Owensboro Building and
Construction Trades Council
I am also aware, however, and I have so found, that on two
occasions in June 1970 a representative of the District Coun-
cil met with Respondent and sought to negotiate a contract.
Were this contract being urged as the one that had been
executed in behalf of the AGC members then the visits would
emphasize a persistence on the District Council's part to win
back Respondent into the fold, an effort, in effect, to abrogate
its withdrawal. On the contrary, however, when Moseley of
the District Council proferred Lovelace and Hartz the ex-
ecuted AGC contract he went further. By his own testimony
he affirmed that the Union would agree to not have any picket
lines on the project unless they were Carpenters' Union pick-
ets and that there would be no work stoppages on the part of
the Carpenters because of jurisdictional dispute. These two
terms, he testified, were not contained in the AGC contract.
Not only is this what it is admitted to be-bargaining for
different terms and conditions-but more important to the
issue at hand it demonstrates the District Council's willing-
ness to bargain in this separate manner . And by this willing-
ness it thereby demonstrates its acceptance of the Respond-
ent's separate bargaining status and explicitly approves it and
the withdrawal by which it was accomplished. By these cir-
cumstances I thereby conclude and find that, its telegraphic
protestations to the contrary notwithstanding, the District
Council approved the timely withdrawal by Respondent of its
bargaining authority from the AGC.
3. Bargaining between Respondent and the District
Council
On June 20 and again on June 28 Representative Moseley
met with Lovelace and Hartz, as previously noted. Moseley
has described the substance of these meetings (supra); the
District Council, offering Respondent the terms of the AGC
contract, agreed further, as has been previously noted, not to
engage in any further picketing of Respondent in support of
contract demands of other unions, and not to engage in juris-
dictional strikes; two items that had not been offered to any
of the signers of the AGC contract." Respondent, after stat-
ing outright a refusal to accept the terms of the AGC contract
("I will die and go to hell before I sign that contract"),
proposed specifics such as a 20-cent raise, elimination of the
" Moseley's testimony on this subject adequately describes the offer
being made and has been quoted supra.
foreman's clause, "and a few other things that I can't recol-
lect." Moseley agreed to present these proposals to the
Union's secretary, Keown, but gave little hope for their ac-
ceptance. As Moseley anticipated, the proposals were not
acceptable to Keown who would not go beyond the terms of
the AGC agreement. Regardless of whatever tortured lan-
guage may have been used to explain these sessions, this was
collective bargaining , and it was for a contract between the
District Council and the Respondent that differed, by the
terms presented, from the AGC agreement.
Wher then Moseley met with Hartz at the Henderson
County School site on July 8 his request for a further meeting
on the contract was but an effort to continue the bargaining
then in progress. By its refusal on that date, July 8, to there-
after meet with the District Council and by its stated deter-
mination to "go non-union ," and by its subsequent phone
conversation reaffirming its stand, Respondent thereby effec-
tively rejected further bargaining, and I so conclude and find.
4. The appropriate unit
The unit of employees alleged in the Complaint to be ap-
propriate for the purposes of bargaining is:
All practical carpenters, pile drivers, resilient floor
layers, and apprentices employed by Evansville Chapter
Employer members, including Respondent, within the
territorial jurisdiction of the Union's Constituent Local
described in par. 3 above, exclusive of all other em-
ployees and all supervisors as defined in the Act ...
At the trial before me it was stipulated that the unit was an
appropriate one, the parties reserving "the right to litigate the
question of whether the Respondent is properly included
within that unit." Respondent's clarification of this exception
was that "Respondent was not a member of the bargaining
unit as such" (Emphasis added), a clarification not disputed
in the record.
It is clear from the findings and conclusions made to this
point in the Decision that Respondent's employees were not
members of the above quoted bargaining unit on July 8, 1970,
the date upon which it refused to bargain further with the
District Council. Respondent had effectively withdrawn from
multiemployer bargaining on May 15, and the District Coun-
cil, by pursuing negotiations on an individual basis in June
and July, had approved this new individual status and
thereby implicitly approved the withdrawal from the mul-
tiemployer bargaining.
The District Council continued to represent the employees
of Respondent, no defense of lack of majority status having
been made. In such a posture it is obvious that in the negotia-
tions engaged in during June and July 1970 it was these
employees of Respondent, and no others, concerning whom
the parties were bargaining.
Because it is axiomatic that the employees of a single em-
ployer constitute the optimum bargaining unit, it clearly fol-
lows that this would be true here with respect to a unit of
Respondent's employees, except for one technicality. There is
no allegation in the Complaint that Respondent has ever
refused to bargain with respect to employees in such a unit.
It will be noted, however, that the parties' agreement by
stipulation with the bargaining unit alleged in the Complaint
is shrouded with a modium of uncertainty that approaches
equivocation, and permits of any interpretation of the unit
question that would be appropriate to the occasion. Be that
as it may, however, the substance of the basic dispute in the
case cannot be overlooked; that the Respondent did or did
not withdraw from multiemployer bargaining.
No one would seriously contend that the reward for with-
drawal from bargaining in a multiemployer unit would be the
relief from bargaining at all. Even if this were legally possible,
HARTZ-KIRKPATRICK CONSTRUCTION CO., INC.
which it is not, the contemplation of the parties, and certainly
of the Union, was that bargaining in some smaller bargaining
unit was to be desired. Because the very thrust of the issues
here are directed to this conclusion, and because the conten-
tions for and against it were vigorously advanced throughout
the trial and in the briefs filed with me, it is reasonable to
conclude as I do that the total issue, including the legality of
each of the two unit options, was fully litigated. As I conclude
and find, then, that there has been full litigation of the legal
acceptability of one of two appropriate units, the stipulated
one or the traditionally appropriate single employer one, it is
my further conclusion that failure to allege the appropriate-
ness of the single employer bargaining unit in the complaint
does not bar a finding herein that such a unit is, in fact,
appropriate. 12
Upon all of the foregoing, therefore, I conclude and find
the following to be an appropriate unit of employees for the
purposes of collective bargaining:
All practical carpenters, pile drivers, resilient floor lay-
ers, and apprentices employed by Respondent, exclusive
of all other employees and all supervisors as defined in
the Act.
5. Conclusions
Upon the foregoing I have found that Respondent timely
withdrew from the AGC its bargaining authority and thereby
withdrew from multiemployer bargaining; that it thereafter,
as an individual employer, engaged in bargaining negotiations
with the District Council in June and July 1970, at the Dis-
trict Council's request, thereby demonstrating the latter's
assent to the Respondent's newly established bargaining ar-
rangement and the single employer bargaining unit emerging
from it; that Respondent, on July 8, 1970, refused to bargain
further with the Respondent in a bargaining unit which I
have found appropriate; that Respondent stated on July 8,
1970, that it would not sign any contract and would there-
after "go non-union"; and that it has since that date con-
tinued its stated determination not to bargain with the Dis-
trict Council. Upon these findings, summarized above, I
accordingly conclude and find that Respondent, by the total-
ity of its conduct and by its specific refusals on July 8 and
thereafter, has refused to bargain collectively with the repre-
sentative of its employees in a unit which I have found to be
appropriate for such purposes, thereby violating Section
8(a)(5) of the Act, and has interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1).
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with its business operations
described in section I, above, has a close, intimate, and sub-
stantial 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.
" "A review of the record shows that at no time during the hearings was
there any misunderstanding as to what was the basis of the Board's com-
plaint." N.L.R.B. v. Mackay Radio and Telegraph Co., 304 U.S. 333, 350.
"The Board ... has an obligation to decide material issues which have been
fairly tried by the parties even though they have not been specifically
pleaded." American Boiler Manufacturers Association v. N.L.R.B., 404 F.2d
547, 556 (C.A. 8).
VI. THE REMEDY
869
I have found that Respondent has refused to bargain with
the representative of its employees in a bargaining unit found
to be appropriate by refusing to continue further negotiations.
I shall recommend that Respondent cease and desist from
such conduct. Affirmatively I shall recommend that Re-
spondent resume collective bargaining with the District
Council and if agreement is reached that it embody such an
agreement in writing. I shall also recommend that it post
appropriate notice of its compliance with this order.
Upon the foregoing findings of fact and conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:"
ORDER
Hartz-Kirkpatrick Construction Co., Inc., its officers,
agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain with Lower Ohio Valley District
Council of Carpenters, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, as the exclusive repre-
sentative of the employees in the following unit found to be
appropriate for the purposes of collective bargaining:
All practical carpenters, pile drivers, resilient floor lay-
ers, and apprentices employed by the employer, Hartz-
Kirkpatrick, exclusive of all other employees and all
supervisors as defined in the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees or unlawfully discriminating
against them in the exercise of rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action which it is deemed
will effectuate the policies of the Act.
(a) Upon request, resume collective bargaining with the
aforementioned labor organization concerning hours, wages,
and other terms and conditions of employment in behalf of
its employees in the bargaining unit found to be appropriate
and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Owensboro, Kentucky, facility the notice
attached hereto as "Appendix."" Copies of said notice, on
forms provided by the Regional Director for Region 25, shall,
after being duly signed by the Respondent, be posted immedi-
ately upon receipt thereof in conspicuous places, and be main-
tained by it for a period of 60 consecutive days. Reasonable
steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify said Regional Director in writing, within 20 days
from the receipt of the Trial Examiner's Decision, what steps
it has taken to comply herewith."
" In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions and Recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.
" In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board," shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
" In the event that this Recommended Order is adopted by the Board
and after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 25, in writing, within 20 days from
the date of this Order what steps the Respondent has taken to comply
herewith."
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL bargain with Lower Ohio Valley District
Council of Carpenters, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, as the exclusive
bargaining representative of all our practical carpenters,
piledrivers , resilient floor layers , and apprentices em-
ployed at our Owensboro, Kentucky, facility excluding
all other employees and all supervisors as defined in the
National Labor Relations Act, as amended.
WE WILL NOT in like or related manner interfere with,
restrain, or coerce any of you or unlawfully discriminate
against any of you in your exercise of your rights guaran-
teed by the National Labor Relations Act.
All of you, our employees, are free to remain, or
become, to withdraw from, or refrain from becoming
members of Lower Ohio Valley District Council of Car-
penters, United Brotherhood of Carpenters and Joiners
of America, AFD-CIO, or any of its Constituent Locals,
or any other labor organization,
Dated By
HARTZ-KIRKPATRICK
CONSTRUCTION CO.,
INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced, or
covered by any other material . Any questions concerning this
notice or compliance with its provisions may be directed to
the Board 's Office, 614 ISTA Center, 150 W Market Street,
Indianapolis , Indiana 46204, Telephone 317-633-8921.