Intl. Assn. of Bridge, Etc., Loc. Un. No. 28

National Labor Relations Board - Board Decisions

Aug 1, 1975

219 N.L.R.B. 957 (N.L.R.B. 1975)

INTL. ASSN . OF BRIDGE , ETC., LOC. UN. NO. '28 957
International Association of Bridge , Structural and
Ornamental Ironworkers , Local Union No. 28 and
Virginia Association of Contractors , Inc. Case 5-
CB-1554
August 1, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 28, 1975, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed an answering brief and a supplement to that
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: The Virginia
Association of Contractors, Inc., herein called VAC, the
Association, or the Charging Party, filed a charge on July
8, 1974,' alleging that the International Association of
Bridge , Structural and Ornamental Ironworkers, Local
Union No. 28, herein called Local 28, the Union, or Re-
spondent, violated Section 8(b)(3) of the Act by insisting to
impasse on the inclusion of provisions in a contract gov-
erning wages and working conditions of foremen and gen-
eral foremen whom the Charging Party insists are supervi-
sors within the meaning of the Act.
The original complaint in this matter was issued by the
Acting Regional Director on October 3, and was amended
on October 4 and again on October 9. The complaint
alleges in addition to the standard jurisdictional and com-
merce allegations, that Respondent, since May 3, refused
to bargain with the Charging Party by demanding the in-
clusion of clauses concerning wages and assignment of
foremen and general foremen as a condition precedent to a
new contract and by bargaining to impasse and engaging
in a strike which ran from July 5 to September 6 in support
of said demands.
Respondent's answer denies that foremen and general
foremen are supervisors within the meaning of the Act,
that Respondent has been requested to bargain, and that it
had in any way violated the Act. Affirmatively, Respon-
dent stated that the parties have consummated a collective-
bargaining agreement including foremen, that the strike
was precipitated by the Charging Party's refusal to bargain
in good faith (concerning which it filed a charge with the
Board) and not by any issue over foremen, and that the
Association has voluntarily bargained concerning wages,
hours, and working conditions of foremen and general
foremen with Respondent as well as with other building
and construction industry unions. Further, Respondent al-
leges that the Association has filed similar charges against
Respondent in the past and later withdrawn the charges
(this was stipulated) and that an investigation by the Re-
gional Director showed that the Charging Party had volun-
tarily bargained over the issues here and that despite this,
the Office of Appeals had directed the issuance of a com-
plaint against Respondent to build a record. Additionally,
the answer alleges that the Charging Party had insisted on
bargaining over a nonmandatory subject of bargaining, the
"industry and advancement clause" and that agreement
was reached on both this and the foremen clause as non-
mandatory subjects of bargaining and both were included
in the final contract.
During the hearing of this matter, which was held on
November 7, in Richmond, Virginia, Respondent amended
its answer to admit the jurisdictional allegations of the
complaint. The parties were afforded full opportunity to
appear, to examine and cross-examine the witnesses, and
to argue orally. Additionally, all parties have filed briefs
which have been fully considered.
On the basis of the evidence, I have concluded that the
General Counsel has not established by competent evi-
dence that the foremen and general foremen exercise true
supervisory authority. Therefore not being supervisors,
bargaining concerning their wages, etc., is a mandatory
bargaining subject contrary to the complaint allegations.
Additionally I have concluded that the cause of the strike
which initiated after July 5, was not a failure of the parties
to reach agreement over inclusion or exclusion of the
foremen's clause . It is clear that the parties engaged in hard
bargaining and sought to use whatever pressures and levers
they could on each other to gain their ends and one of
these levers used by the Charging Party was its opposition
to inclusion of a foremen's clause . I will therefore dismiss
this complaint in its entirety.
On the entire record of this case, including my evalua-
tion of the reliability of the witnesses based on the evidence
received , I make the following:
Unless specifically stated otherwise , all events herein occurred during
1974.
219 NLRB No. 122
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. COMMERCE FINDINGS AND UNION STATUS
whichever party in the order of the contract clauses.
Union Business Agent Bunting stated that the only way
they were allowed to negotiate was on an item -by-item ba-
sis and that they had to adhere to this or not to negotiate at
all. He stated that the Union made clear to the VAC that
agreement on contract items was tentative only and contin-
gent on the wage package . This concept of the bargaining
was confirmed by Mr. Bruno, who added that whatever
was finally agreed to in negotiations had to be ratified by
the union membership . Further confirming the Union's po-
sition, Mr. Bruno said that the Association stated that un-
less the parties agreed on all the contract parts there would
not be a contract.
Negotiation meetings were thereafter held on May 7, 16,
and 30. It was not until the May 30 meeting that some
discussion was had regarding pay rates and travel zone
pay. Also at the meeting and at the previous ones, the
Charging Party stated it did not wish any clauses concern-
ing foremen and general foremen to be included in the
contract and the Respondent replied on several occasions
that it did not consider foremen and general foremen to
truly be supervisors . At the May 30 meeting , Rushing,
speaking for the Association, told the Union, according to
Bruno, that, if they did not believe the foremen and general
foremen were supervisors , they had better get a lawyer, but
if they got Jay J. Levit (counsel for Respondent) they
"would have a strike for sure probably." A fifth meeting
was held on June 14 and a sixth meeting on June 19.
The Association had been writing an okay beside those
items on which it felt agreement had been reached and at
the succeeding meeting providing an updated copy of the
contract with ok's to the Union. There were occasions
when the Union disputed whether agreement had been
reached on some of the items or not.
By the June 19 meeting , some agreements had been
reached, but still open were wages, travel pay, foremen dif-
ferential , the foremen clause, contract length , and pension
and welfare fund. Either at that meeting or at the following
meeting on June 25 , the pension and welfare funds' issue
was settled. During the June 25 meeting , Union Business
Agent Bunting told the Association that, if there was no
contract by July 5, the Union would strike, since they
would have been without a contract for a month, and there
was no agreement on wages and zone pay. Bruno testified
that the Association and the companies knew on June 25
that there would be a strike. During this meeting, accord-
ing to Bruno, Rushing said that unless the Union dropped
the foremen clauses there probably would be a strike. Fol-
lowing an Association caucus at the June 25 meeting, the
Association offered to put the foremen clauses in the con-
tract if the Union would accept the same zone pay as was
in the previous contract. This offer was immediately reject-
ed by the Union.
The eighth meeting took place on July 2. Bruno testified
that prior to the meeting the Association caucused and it
was stated that they were going to resolve all issues but
were not going to put the foremen into the contract, but at
the same point said they were not going to take a strike.
The conflicts in this statement were not explained. He testi-
fied that when the meeting started the Union made some
new proposals including deletion of the industry advance-
The Association is a Virginia corporation with members
who are engaged as iron and steel erection contractors. The
Association exists for the purpose of negotiating and enter-
ing into collective -bargaining agreements on behalf of its
members with various labor organizations including Re-
spondent. Annually members of the Association purchase
and receive in interstate commerce , directly from points
located outside the Commonwealth of Virginia , materials
and supplies valued in excess of $50,000.
The parties agree and I find that the Association and its
member companies are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
The parties agree and I find, that Local 28 is a labor
organization within the meaning of Section 2 (5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Facts
VAC and Local 28 had previously agreed to a contract
running from June 6, 1972, until June 5, 1974. This con-
tract, among other things , contained article 1 (c), an agree-
ment that the Union agreed they would require all employ-
ers to sign this agreement covering working conditions with
Local 28 before furnishing them men , with the exception of
companies which had written International agreements,
and a section providing for the employment of foremen
and other sections which provided for their working condi-
tions and pay, establishing that foremen were to receive 35
cents per hour more than journeymen, and general fore-
men 35 cents per hour in addition thereto. Also included in
the contract was an industry advancement clause , section
8, which provided that all the employers were to pay I cent
per hour for each employee covered by the agreement into
an advancement fund which went to the VAC to support
its activities in behalf of the construction industry. These
are the clauses which came into contention as "nonmanda-
tory subjects of bargaining" during the negotiations which
commenced on May 3, 1974, for the renewal of this con-
tract, with the foremen 's clauses being the principal item of
discussions.
On May 3 , the VAC, represented by James Rushing as
its principal spokesman and negotiator , assisted by J. Ar-
thur Bruno and various contractor members of VAC's ne-
gotiating team, commenced meeting with the members of
the Union's negotiating team lead by Local 28's business
agent , Robert C. Bunting , who was the principal spokes-
man and negotiator for the Union.
At this first meeting, the two parties exchanged lists of
proposed changes in the old contract. According to Mr.
Bruno (Mr. Rushing was not present and did not testify in
this proceeding) with this exchange of lists of proposed
changes, the parties merely made sure at this first meeting
that each side understood the changes sought by the other.
According to Bruno, at subsequent meetings the parties
would then start going through the original contract item
by item and taking up whatever changes were proposed by
INTL. ASSN. OF BRIDGE , ETC., LOC. UN. NO. 28 959
ment clause , Section 1 (c), and an increased wage scale with
varying new higher rates for contracts of 1, 2, and 3 years.
The Association then caucused and decided that they
would see if they could trap the Union into making a state-
ment that inclusion of foremen clauses was necessary for a
contract. According to Bruno, when they came back,
Rushing asked Bunting whether he was insisting that fore-
men and general foremen be included in the contract as
essential to its signing and that when Bunting replied yes,
Rushing said that is all we have to know, the meeting is
adjourned.
Bunting stated that the question did not have "general
foremen" in it and that after he responded saying they
were an essential part of the contract, he asked Rushing
when they were going to have another meeting and the
only thing he got from Rushing was that the meeting was
over and they were leaving. As they were leaving the meet-
ing, Bunting told his union committee that he tried to tell
Rushing , before Rushing left, that the foremen clauses
were as essential to the Union as the industry advancement
clause was to the Association.
Bruno admitted that wages and travel pay were the gut
issues of the whole negotiations and that there was no
question about that even at the time the Association broke
off the negotiations on July 2. He later attempted to mod-
ify this statement by saying that wages and travel pay were
the main things for the Union but that elimination of fore-
men clauses was the Association's principal issue.
The strike began on July 5 or 6 and lasted until Septem-
ber 6 , when agreement was finally reached between the
parties. According to the Union, there were only 3 or 4
days when picketing occurred, and that was at only 3 or 4
establishments of the 16 who are members of the Associa-
tion.
The first meeting after the strike was on July 22. At that
meeting the Association said it wanted the Union to drop
its new proposals and come back to what it originally sug-
gested. The Union said it would not do so. The-same thing
happened at the July 29 meeting with the Association ac-
cusing the Union of bad faith unless it went back to its
previous offers. On August 19, some changes were made in
the proposals by the parties, with the Association charging
that in the end the Union's position was more extreme than
it had been previously.
At the meeting of September 6, an International union
representative named Cooney was present with the union
negotiating team but Bunting remained as the Union's
spokesman. According to Bruno, Cooney said he wanted
the companies to understand that the foremen and general
foremen were going to stay in the contract and he was sure
this position was legal. According to Bunting, Cooney told
Rushing that he might as well get off the foremen "kick"
that he used as a lever in negotiations and get down to the
basis of wages and travel pay.
The Association caucused and according to Bruno, he
told Rushing that if they did not give in on the foremen
and general foremen they were never going to end the
strike. Rushing said that they could not continue the strike
and talked about why the N.L.R.B. was taking so long on
deciding their charge. The caucus decided that they had to
resolve the contract that day, because they could not con-
tinue the strike, and so they made another offer to the
Union which included the foremen and general foremen
clauses . However, the parties did not come to agreement at
this meeting. Bunting testified that during this meeting
Rushing told him that the Union would have to agree to a
contract termination date of April 30, 1977, or else the
strike could continue through Christmas. This date would
be a common contract termination date for all the craft
unions with contracts with VAC.
On the evening of September 6, Bunting called Bruno
and said that perhaps they did not get together that day
because they did not understand the travel pay provisions.
They then discussed the provisions and -Bunting said that
he had misunderstood what had been said and with that
new understanding they could have a contract if the Com-
pany was still in agreement with the rest of the contract
offer, Bruno said he would have to call the people and Jim
Rushing. He did so and then called Bunting back that eve-
ning and told him that they did have a contract, that Bunt-
ing could come by the office on Monday or Tuesday and
they would go over it and sign it.
B. Evidence of Supervisory Indicia
Frederick Weisensale, the president of Liphart Steel
Company, Inc., herein called Liphart, testified that Liphart
has approximately 75 employees in the office and shop and
that the journeyman complement of ironworkers ranges
anywhere from 5 to 20.
He testified that Liphart had three - foremen who had
been with them for 3, 9, and 12 years, and that. as the
contract provides, they were always on a guaranteed 40-
hour basis since they were foremen continuously..-Before a
new job starts the foremen are taken to the jobsite where
he and the foremen go over the job requirements and the
blueprints to see what equipment is needed and determine
how many men are needed to perform the work. Within
that range, the foremen call the Union and hire journey-
men. When they report to work Liphart foremen tell the
journeymen what material to unload, where to put it, and
direct the job as to what to erect and where. Weisensale
said that his, foremen are in full charge of discipline, and, if
the journeymen do not perform as the foreman directs, the
foreman has the authority to fire them and hire a replace-
ment . Additionally, Liphart's three foremen have trucks
for their own use, drive them from home to the job, and
haul their equipment. They regularly do not perform man-
ual work on the job, but do so when they are shorthanded
or when less than a full crew of journeymen are employed.
He agreed that what the foreman does in telling the men
how to perform jobs, comes from the foreman's reading of
the drawings or blueprints or instructions that are given to
him. Although the foreman could fire the whole gang if he
wished, he would probably discuss it with Weisensale who
more than likely would agree.
Mr. Weisensale agreed that Liphart's manner of opera-
tion and the trust it reposes in its foremen is. hot-typical of
the manner in'which the other -companies would. operate.
In most companies, a_man would be a journeyman one day
and a foreman the next and the authority of such foremen
to hire or fire might be completely different from the au-
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thority Liphart granted its foremen.
He stated that the authority of the foremen which he
recounted was only for Liphart and he did not know what
the situation was on an industrywide basis.
In regard to the alleged supervisory status of foremen
the General Counsel called Local 28's business agent, Rob-
ert Bunting, under Rule 43 (b) of the Federal Rules of Civil
Procedure . Bunting, who had been a journeyman and a
foreman at various times during his career, testified that
foremen and general foremen are selected by the contrac-
tors from the workmen on the job and it is the foreman's
responsibility to push the job along, and try to get it com-
pleted . All journeymen and foremen are supposed to be
able to read and interpret blueprints . From what the blue-
print calls for and from any instructions from the contrac-
tors or his supervisors , the foreman tells the men what iron
to put up and in what sequence and where to construct it.
He denied that foremen effectively recommend discipline
or discharge, stating that they merely make a recommenda-
tion which is acted on independently by the contractor or
the contractor's supervisor . In cases where there is less than
a full crew of six journeymen, the foreman usually works
with tools . As an example of his ineffectiveness in recom-
mending discharge , he stated that one day while acting as a
foreman he recommended a journeyman be fired and when
the journeyman saw the contractor , the contractor made
him a foreman on a different job.
According to Bunting , the foreman 's authority over the
two or six ironworkers is to see that they keep on working.
He follows the blueprints or drawings given to him by the
supervisors or contractors along with their instructions
which he relays to the jorneymen. The supervisor or con-
tractor wants facts from the foreman when he recommends
discipline and then the contractor makes his own indepen-
dent determination , not accepting the foreman 's recom-
mendation automatically . According to Bunting, the fore-
men are referred to as pushers or strawbosses or leadmen
on the job and the present contract refers to "foremen or
pushers."
The Union offered testimony that in other construction
trades the same category of employees are variously re-
ferred to as pushers, strawbosses , or master mechanics and
have approximately the same authority. It was stipulated
that the Association has signed other contracts with this
Union and has current contracts with other unions in
which foremen and general foremen are included under the
contract provisions.
The Union pointed particularly to the erratic nature of
this employment in that a man could be a journeyman one
day, a foreman the following day, and a journeyman on the
third day . According to Respondent 's figures, there are ap-
proximately 486 ironworkers in its jurisdictional area and
there may be 2 or 3 general foremen employed at any one
time and maybe 60 to 70 foremen employed, but these
figures vary from day to day and the persons who hold
those positions also vary from day to day.
The pay differential of 35 cents per hour translates into a
4.4-percent differential as of 12 / 1 /74 which will decline to
3.6 percent by the end of the current contract.
Bunting stated that on occasion a company would give a
foreman a safety code which he is expected to enforce and
generally a foreman is supposed to watch out for various
safety violations.
In regard to grievances he said that probably the only
thing that would ever be alleged against a foreman would
be that he was pushing the men too hard and, if this oc-
curred, the steward would go to the foreman and attempt
to work out the difficulty, in the same manner he would do
if there was a dispute between two journeymen.
C. Analysis and Conclusion
The complaint alleged and the answer specifically de-
nied and placed in issue the question of whether foremen
and general foremen are supervisors within the meaning of
the Act. Therefore it was incumbent on the General Coun-
sel to prove this allegation in order to demonstrate that
bargaining about foremen and general foremen is a non-
mandatory subject of bargaining. If they are not supervi-
sors within the meaning of the Act, then they would fall
within the bargaining unit and it would be perfectly proper
to bargain over their wages and working conditions to im-
passe.
The first question to be answered therefore is whether
the evidence adduced has demonstrated that foremen and
general foremen are supervisors within the meaning of the
Act. The Act defines a supervisor as "any individual hav-
ing authority, in the interest of the employer, to hire, trans-
fer, suspend , lay off, recall , promote , discharge , assign, re-
ward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively to
recommend such action , if in connection with the fore-
going the exercise of such authority is not of a merely rou-
tine or clerical nature, but requires the use of independent
judgment."
It would appear from the description of the duties that
the principal questions are whether , in recommending dis-
cipline or discharge , the foreman is making effective rec-
ommendations and in directing employees whether he is
using independent judgment or whether his authority is of
merely a routine or clerical nature.
If we were to base this decision solely on Mr.
Weisensale 's description of the responsibilities given to
Liphart's three foremen , it would appear that they effec-
tively recommend discharge or discipline and we would
conclude that they are supervisors within the meaning of
the Act. However, as Mr. Weisensale stated, the authority
given to Liphart's three foremen is not typical of that in the
industry and is based on the fact that these three men have
worked for Liphart for periods of 3, 9, and 12 years and the
authority granted them is consonant with his trust in their
judgment earned over that long period of time. Even at
Liphart the number of men to be hired for any particular
operation is set in consultation between these foremen and
Weisensale in laying out the job and determining how
many men and what equipment is needed and the foremen
orders journeymen from the Union within those limits. In
directing employees' work, it is interpretation of the blue-
prints as to what is required in order to build the structure
being erected . In essence, a journeyman may become a
foreman but in either capacity he is supposed to know how
to read blueprints. As a foreman he reads the blueprints
INTL. ASSN . OF BRIDGE , ETC., LOC. UN. NO.28 961
and instructs the men as to what pieces of steel are to be
put up where and in what order. This knowledge is gained
from reading the blueprints or getting instructions from a
supervisor or the contractor . He may tell a particular jour-
neyman to do a particular job or if he has less than a full
crew he may do parts of the job himself and direct others
to do other parts. His assignments to them may be on the
basis of his knowledge of their particular skills or just on
the basis that certain jobs need to be done and so he splits
up the duties between the men . He is also supposed to
enforce any codes of safety given him by the contractor
and again this may be a commonsense thing.
Both of these actions in directing the men or enforcing a
safety code would appear to be mainly ministerial func-
tions as would reporting infractions of such code or not
following orders to do certain jobs . There appears to be no
independent judgment exhibited in parceling out work that
is dictated by instructions and blueprints . As Bunting stat-
ed when recommending discipline or discharge which he
did as a foreman on occasions , the contractor or his super-
visor is interested primarily in the facts of the case on
which the recommendation is based and the contractor or
supervisor then makes an independent judgment on the
facts as to whether to follow a recommendation or do
something entirely different. Therefore, setting Liphart
aside , it appears that the recommendations made are not
consistently effective recommendations since they may or
may not be followed only after independent investigation
by the supervisor or contractor.
In essence then, the only evidence which would indicate
a use of independent jugment and effective recommenda-
tion by foremen was at one company, which according to
the testimony , was an anomaly among the 16 companies
who are members of VAC and contract with Local 28. The
remainder of the evidence demonstrates that the foremen
act within a very limited sphere in giving instructions to
employees, bounded by the blueprints and instructions
from the contractor or his supervisor. Any recommenda-
tions made by the foreman with regard to discipline or
discharge, are adjudged independently by the contractor.
Therefore there is no competent evidence to demonstrate
that the vast bulk of the foremen are anything more than
pushers or strawbosses and consequently not supervisors
within the meaning of the Act because they appear not to
be able to effectively recommend discharge or discipline
and their authority appears to be routine and not requiring
the use of independent judgment.
The general foreman, who is employed when there are
five or more crews of foremen and journeymen , is an addi-
tional layer on top of the foremen , but at the same time, he
is employed only on the basis of a mathematical formula.
He would parcel out to the crews the jobs to be done in the
same way that a foreman would parcel out the jobs to his
crew. He reads the blueprints and, together with the fore-
man, sets up what is to be done . Although his is a layer
above the foreman, there is no evidence to suggest that he
has any more responsibility to effectively recommend ac-
tion or exercises independent judgment than do the fore-
men.
On the basis of the evidence received , I conclude that it
has not been demonstrated that the foremen and general
foremen as a class come within the intendment of the word
supervisor as defined by the Act. Therefore, since the avail-
able evidence does not demonstrate that the foremen and
general foremen occupy a position other than a strawboss
or pusher and does not conclusively show that they are
supervisors within the meaning of the Act, it follows that
they would be unit employees and covered by any bargain-
ing agreement as members of the bargaining unit and bar-
gaining for their wages , etc., is a mandatory subject of bar-
gaining contrary to General Counsel's allegations,
necessitating dismissal of the complaint.
However, since others may differ in their view of the
nature of the duties of the foremen and general foremen, I
will proceed to discuss the other matters encompassed by
the complaint, assuming, arguendo, that foremen fall within
the Act's category of supervisors.
The complaint alleges that the Union demanded as a
condition precedent to a contract, the inclusion of
foremen's clauses and that by so demanding to impasse
and engaging in a strike, the Union violated Section 8(b)(3)
of the Act.
It is clear from the evidence that the Association consis-
tently took the position, except for the June 25 and Sep-
tember 6 meetings , that it did not want any clauses regard-
ing foremen and general foremen in the contract,
contending that as supervisors such clauses were nonman-
datory bargaining subjects which it wished excluded from
the contract. However, the evidence adduced falls short of
showing that inclusion of such clauses either was a condi-
tion precedent to a contract or was the cause of the strike.
The General Counsel, during the trial of this matter, modi-
fied his position to say that seeking inclusion of these
clauses was part of the motive for the strike, and took the
position that a mixed motive still violated the Union's bar-
gaining duties.
It is clear that in a number of the bargaining sessions,
the Association repeated that it did not want foremen and
general foremen included under the terms of the contract,
yet when it suited it, the Association offered to put fore-
men and general foremen into the contract in exchange for
the Union's agreement to keep travel pay at the same rate
as it had been in the previous contract. This offer was de-
scribed by Bruno, as an Association "gambit." At the same
time, Bruno acknowledged that the parties spent a pro-
tracted time on wages and travel pay and that those two
subjects were "the guts of the bargaining." Bruno later
tried to turn the thrust of this admission, by stating that
was the guts of the bargaining as far as the Union was
concerned, while the Association's main point was exclud-
ing foremen and general foremen from the contract. This
statement appears to me to be an afterthought and one that
I really do not credit. Even if one were to credit it, it admits
that the Union's strike motivation was economic and not
based on the foremen issue.
Bruno went on to testify that the companies were hurting
badly and decided, by September 6, that they were going to
come to a contract no matter what, including putting fore-
men and general foremen into the contract in order to stop
the strike.
Counter to this testimony, we have the fact that on Sep-
tember 6, during negotiations, Rushing, for the Associa-
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion , told Bunting that unless the Union agreed to a com-
mon contract termination date for all craft unions of April
30, 1977, that the strike could go on until Christmas. This
statement is undenied . Similarly agreement was not
reached at the September 6 meeting because of a misunder-
standing on economic provisions which was cleared up that
evening.
As to the cause of the strike , Bruno testified that the
Association knew as of June 25 there was going to be a
strike and Bunting testified uncontradictedly that the
Union told the Association that unless there was a contract
by July 5 there would be a strike since the Union would
have gone 30 days beyond the termination of the contract
without a new contract and that the issues of wages and
travel pay would have to be resolved if they were to reach
a new contract.
From all the testimony it is clear that hard bargaining
took place with both sides using whatever levers and pres-
sures they could to force the other to their views . For in-
stance , the Union testified that around the time of the
strike and during the strike it was unable to conduct any
pension or welfare business because company trustee
members were never present for any such meetings, con-
tending that they had other business to perform . Similarly,
the Association claimed that the revised pay demands of
July 2 were an attempt by the Union to force the VAC to
capitulate to its demands.
Considered as a whole it appears that the Association
was using the foremen clauses issue as a lever to attain a
better bargaining position with the Union . Its attempts to
use this lever to hold travel pay to its previous level was
quickly rejected by the Union since, according to the
Union, the increase in travel pay and wages were the main
issues it had before it, not keeping the foremen and general
foremen clauses in the contract.
The dispute as to what Cooney said highlights the differ-
ences in approach between the Association and the Union.
The Association contended that Cooney said inclusion of
the foremen 's clauses was a necessity for a contract and
with the Union replying that all Cooney said was that the
Company should get off that "kick" and quit trying to use
it as a lever to better their position on wages and travel
pay.
Basically the General Counsel hinges this case on the
reply of Bunting to Rushing at the July 2 meeting. The
intended entrapment here , and the cutting off of any fur-
ther explanation by Bunting appears not to be real bar-
gaining in good faith , but an effort to gain a lever to force
bargaining on the Association 's terms . Bunting testified
that he intended to tell Rushing that they wanted foremen
and general foremen in the contract in the same manner
that Rushing wanted his industry advancement clause in
the contract.
Viewing all the evidence, I cannot find that the foremen
and general foremen clauses were the hinge on which the
contract rested or were a condition precedent to having a
contract . If there were any condition precedent, it was
agreement in regard to wages and travel pay. Similarly, I
could not find a violation of Section 8(b)(3) on the basis
that one of the things left undecided at the time the Union
went out on strike , was whether these clauses concerning
foremen and general foremen would be included in the
contract . The strike was for certain definite economic rea-
sons which were pointed out to the Association prior to the
strike and not for the reasons that the Association wanted
the strike to be called for.
In summary , I believe the parties engaged in hard bar-
gaining with attempts to use whatever levers and pressures
each could find to force the other side to its point of view.
Use of the processes of the Board as a lever to seek an
economic advantage in bargaining does not impress me as
genuine bargaining . I find that the foremen and general
foremen clauses were not a condition precedent for the
Union to agree to a contract and that this was not an im-
passe issue which precipitated or prolonged the strike.
Consequently, I would dismiss the complaint in its entirety.
On the basis of the foregoing findings and conclusions, I
hereby issue the following recommended:
ORDER2
The complaint and charge in this matter are hereby dis-
missed on the basis that the allegations of the complaint
have not been proven.
2 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
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.