Intl. Union of Operating Engineers (Tri-County Assn.)

National Labor Relations Board - Board Decisions

Nov 9, 1967

168 N.L.R.B. 173 (N.L.R.B. 1967)

INTL. UNION OF OPERATING ENGINEERS (TRI-COUNTY ASSN.) 173
International Union of Operating Engineers, Local
Union No. 12 (Tri-County Association of Civil En-
gineers and Land Surveyors ) and Thomas B.
Flynn. Case 31-CB-180
November 9, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On August 2, 1967, Trial Examiner David F.
Doyle issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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 attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following
modifications.
In dissenting from our finding that Respondent
violated Section 8(b)(3), our colleague relies, in
part, upon his view that the Association was bound
to honor the Union's second vote, as it voiced no
protest when told one would be taken. We view the
facts differently. While not mouthing the words "we
protest," the Association's representative, Flynn,
remarked that perhaps the first vote just didn't suit
the Union. Furthermore, Flynn testified without
contradiction that he immediately notified the mem-
bers of the Association of the Union's intent to take
a second vote, asking each to be prepared to decide
if they would accept such a vote. Following the
second vote, all agreed not to accept it. We do not
view this as a "mutual agreement" to rescind "any
final agreement prior to the second employee
vote. "I
The dissent takes the position that the memoran-
dum agreement of September 12 was final and
clear, and the embodiment of the parties' total un-
derstanding, and in any event the ]Board is
precluded from considering the intent of the parties
as evidenced by their contract. We cannot agree. A
clause containing a contingency makes the terms of
that clause precisely that - contingent. Here the
contingency was a vote, which was taken, the
results of which were communicated to the As-
sociation, and upon which it acted in reliance. The
contingency fulfilled, the understanding between
the parties then became final and clear, but not be-
fore. Even assuming, arguendo, that the contract
herein was not a contingent one, it is well settled
that the Board may properly evaluate contractual
provisions against the background of bargaining
negotiations in determining contractual intent.2
As we agree with the Trial Examiner that, upon
the completion of the first vote, the contract terms
became defined with certainty, we find that the
parties reached an understanding on or about Sep-
tember 16, 1966, the day on which Union
Representative Whisman told Flynn the results of
the vote and the Association, relying upon
Whisman's assurances, put the retroactive wage in-
creases into effect. As it is precisely at that point
that we find final agreement was reached as to that
term of employment, we shall modify the Trial Ex-
aminer's Recommended Order and Notice.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent, In-
ternational Union of Operating Engineers, Local
Union No. 12, its officers, agents, and representa-
tives, shall take the action set forth in the Trial Ex•-
aminer's Recommended Order, as herein modified:
1. Delete paragraph 1 of the Trial Examiner's
Recommended Order and substitute therefor the
following:
"1. Cease and desist from refusing to reduce to
writing the understanding reached on or about Sep-
tember 16, 1966, as the representative of its mem-
I Our dissenting colleague excerpts portions of the Trial Examiner's
Decision in an attempt to show that the Trial Examiner found the
memorandum agreement of September 12, 1966, to have been a final
agreement embodying the parties' total understanding. The excerpts are,
however, taken out of context Continuing after the last full sentence of
the excerpt- "The memorandum of agreement settled that with certainty
- the 15 cents per hour would go into the pension fund or to the men in
wages, dependent upon a vote of the majority of the employees involved.
It is undisputed that the Union conducted an election in accordance with
the memorandum of agreement and that the men voted to receive the 15
cents per hour in wages. Upon the completion of that vote, every term of
the contract was defined with certainty . .." [Emphasis supplied.] We
agree with the Trial Examiner.
2 See, for example, C & C Plywood Corporation, 148 NLRB 414;
Kennecott Copper Corporation (Chino Mines Division), 148 NLRB
1653, as to both of which our dissenting colleague was in agreement.
3 We specifically disavow as extraneous and of doubtful validity the
Trial Examiner's conclusions that-unlawful threats were made and that the
Respondent did not respect the rights of, deal fairly with, or accord good
faith to, the employees it represents.
168 NLRB No. 27
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bers employed by Tri-County Association of Civil
Engineers and Land Surveyors, including a provi-
sion to pay the increase of 15 cents per hour to em-
ployees, in the form of wages-rather than paying
same into the Respondent's pension fund."
2. Delete paragraph 2(a) of the Trial Examiner's
Recommended Order and substitute therefor the
following:
"(a) Upon request, reduce to writing the un-
derstanding reached on or about September 16,
1966, with Tri-County Association of Civil En-
gineers and Land Surveyors, with regard to paying
the employees in the appropriate unit an increase in
wages rather than paying same into the Respond-
ent's pension fund."
3. Substitute for the Notice attached to the Trial
Examiner's Decision marked "Appendix," the at-
tached Notice marked "Appendix."
MEMBER BROWN , dissenting:
I subscribe fully to the views of my colleagues ex-
pressed in footnote 3 of this Decision. However, I
would reverse the Decision of the Trial Examiner
and dismiss the complaint herein. While the Act
requires a union, negotiating a collective-bargaining
agreement, to reduce to writing any agreement
reached, upon request; I note that here, on Sep-
tember 12, 1966, the parties did carefully reduce
their understanding to writing, sign it and execute
an agreement which purported to be their "total
understanding."4
I view the later controversy between the parties
as nothing more than a dispute over the meaning of
a clause which was part of a fully operative con-
tract; one in which the Association took the posi-
tion that the disputed clause provided for a single
vote on the "wage versus pension" question which
would be determinative of the manner in which the
increased compensation would be paid, and the
Union maintained that the clause allowed the em-
ployees, at any time during the contract period, to
decide that they would, from that point on, receive
the 15-cent increase as a contribution to the pension
fund rather than as wages. Thus, the Union, even if
wrong in its position, can be guilty only of failure to
abide by a contract obligation, and not failure to live
up to a bargaining obligation under the Statute. The
record is devoid of evidence of bad faith. The
Union was doing no more than placing an in-
terpretation on the contract most favorable to it,
having previously executed a "total understand-
ing." Under these circumstances, the Board is not
the place for the resolution of this dispute.
Alternatively, even if I were to accept my col-
leagues' view- that despite-the completeness and
specificity of the existing written documents, the
parties by their conduct disclosed a mutual intent to
consolidate into a single contract the totality of their
understanding including the method of payment
chosen by the employees, or that only a tentative
decision was reached on September 12, contingent
upon and completed by the first vote-on this
record I would also have to find that by its conduct
the Association thereafter. accepted the Respond-
ent's interpretation that a second vote was per-
missible. For, when the Respondent advised the
Association that such a vote would be forthcoming,
no protest was expressed to indicate that the first
vote had been conclusive and definitive or that
under the Association's interpretation of the agree-
ment a furthgr vote would be meaningless. It was
only when the vote was not to its liking that the As-
sociation advanced the interpretation now es-
poused. Indeed, it is clear from the Trial Ex-
aminer's Decision that the members of the Associa-
tion decided to take this position only after the
second vote had been held and after they had been
informed of the results of this vote. In these circum-
stances, I would have to find the Board's F. W.
Means & Co.5 Decision controlling and hold that by
mutual agreement the parties had rescinded any
final agreement prior to the second employee vote.
Accordingly, as the parties by their subsequent con-
duct vitiated any understanding previously reached,
the Union, by its failure to submit a written contract
embodying a clause reflective of the outcome of the
first vote, did not violate Section 8(b)(3) of the Act.
'
As correctly found by the Trial Examiner, "on September 12, 1966,
the representatives of the Union and the Association reached a complete
agreement as evidenced by the memorandum . . of that date. [T]he
parties had agreed to continue the terms of the expiring contract with
three additional benefits .. There was nothing indefinite about
the increase in pay The memorandum agreement settled that with
certainty "
5 157 NLRB 1434, 1437.
APPENDIX
NOTICE TO ALL MEMBERS OF THE INTERNATIONAL
UNION OF OPERATING ENGINEERS, LOCAL
UNION No. 12, AND EMPLOYEES OF EMPLOYER
MEMBERS OF TRI-COUNTY ASSOCIATION OF
CIVIL ENGINEERS AND LAND SURVEYORS
Pursuant to an Order of the National Labor Rela-
tions Board and in order to effectuate the policies of
the National Labor Relations Act, as arrlended, we
hereby notify our members that:
After a trial in which all parties had the chance to
give evidence, the National Labor Relations Board
has found that we violated the law on and after Sep-
tember 16, 1966:
By refusing to reduce to writing the un-
derstanding, made final by the first employee
vote, that the 15-cent increase agreed upon on
September 12, 1966, for the contract period
September 1, 1966, to August 31, 1967, would
be paid to employees in the appropriate unit in
the form of wages and not as contributions to
the Operating Engineers pension fund.
INTL. UNION OF OPERATING ENGINEERS (TRI-COUNTY ASSN.) 175
WE WILL NOT insist that the 15-cent-per-
hour increase be paid as a contribution to the
Operating Engineers pension fund.
NOTE: This notice in no way requires a change
in the current contract effective from September 1,
1967.
INTERNATIONAL UNION
OF OPERATING EN-
GINEERS , LOCAL UNION
No. 12
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If members or employees have any question con-
cerning this notice or compliance with its provi-
sions, they may communicate directly with the
Board 's Regional Office , 10th Floor , Bartlett Build-
ing, 215 West 7th Street, Los Angeles , California
90014 , Telephone 688-5850.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID F . DOYLE, Trial Examiner: This proceeding,
with all parties represented by counsel, was heard by me
at Santa Barbara, California , on June 1, 1967, on com-
plaint of the General Counsel and answer of the Re-
spondent.
The complaint dated April 11, 1967, was based on a
charge filed by Thomas B. Flynn , manager , Tri-County
Employers Association (herein the Association) on
November 30, 1966 . The complaint alleged in substance
that International Union of Operating Engineers, Local
Union No . 12 (herein the Union) had violated Section
8(b)(3) of the Act by refusing and failing to bargain with
the Association . In its duly filed answer the Union denied
the commission of unfair labor practices . At the hearing
counsel for the parties were afforded full opportunity to
be heard , to examine and cross-examine witnesses, to in-
troduce , evidence bearing on the issues , to argue the is-
rally upon the record, and to file briefs andsues o lly'-
proposed findings. The General Counsel has filed a
scholarly brief which has been carefully considered. At
the hearing the Union did not present any evidence and
has not filed a brief herein . At the close of the evidence at
the hearing , counsel for the Union called the Trial Ex-
aminer 's attention to a case which he claimed was per-
tinent to the issues herein.
Upon the entire record in the case and upon my obser-
vation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE ASSOCIATION
At the hearing counsel placed in evidence a written
stipulation executed by a representative of the Union, the
Association, and the General Counsel, which states the
following concerning the business of the Association:
Tri-County Association of Civil Engineers and
Land Surveyors, herein called the Association, has
been , at all times material herein , an unincorporated
association of employers performing engineering and
surveying services in Ventura, Santa Barbara, and
San Luis Obispo Counties California. The Associa-
tion engages in, and represents its member firms in,
the negotiation of collective-bargaining agreements
on a multi-employer basis with a labor organization
in the counties referred to above. Annually, in the
course and conduct of their business operations, the
Association' s members collectively perform services
valued in excess of $50,000 for firms within the State
of California, which firms in turn annually make sales
directly to, and perform services directly for,
customers and firms located outside the State of
California valued in excess of $50,000. Annually, in
the course and conduct of their business operations,
the Association' s members collectively purchase and
receive goods and materials valued in excess of
$50,000 from firms located in the State of California,
which firms in turn purchased and received those
same goods and materials directly from suppliers
located outside the State of California. The Associa-
tion and its members are now, and have been at all
times material herein , employers engaged in com-
merce and in an industry affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the stipulated facts, I find that the
Association and its members are, and have been at all
times material herein, employers engaged in commerce
and in an industry affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Upon all the evidence in the case I find that the Union
is a labor organization within the meaning of Section 2(5)
of the Act, and that Orville J. Whisman , Turney Powers,
and William Begley are authorized representatives of the
Union in the events hereinafter related.
III. THE UNFAIR LABOR PRACTICES
At the hearing , the General Counsel produced five wit-
nesses and some documentary evidence which composed
his case . The Union offered no witnesses , being content
to rest its case on the record developed by the General
Counsel and cross-examination by union counsel.
Undisputed Facts
It is undisputed that on or about October 15, 1964, the
Union was selected by a majority of the employees in the
unit described below in a secret-ballot election conducted
by the Board and thereafter on or about October 26,
1964, the Regional Director (Region 21 ) certified the
Union as the exclusive collective-bargaining representa-
tive of the employees in the unit.
The appropriate unit is described as follows:
All employees of Tri-County Association of Civil
Engineers and Land Surveyors employed in field sur-
vey crews, including chiefs of party, instrument men,
chainmen and field apprentices ; excluding all office
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clerical employees , draftsmen , engineers , architects,
watchmen , guards, and supervisors as defined in the
Act:
After the Union's certification the Union and the As-
sociation met and bargained. These meetings resulted in
an agreement in the year 1964 which agreement was reaf-
firmed in 1965 and which expired on August 31, 1966. It
is undisputed that on August 19, 1966, the Union held a
meeting of its members employed by the employers be-
longing to the Association for the purpose of authorizing
the Union and certain officials thereof to negotiate a new
contract with the Association to replace the contract ex-
piring on August 31.' At this meeting the membership
authorized a union negotiating team of which the union
business agent , Orville J. Whisman, was chairman.
The Oral Testimony
Thomas B Flynn, manager of the Association,
testified credibly and without contradiction to the
sequence of events which make up this controversy
between the Union and the Association. He said that on
August 15, representatives of the Union and the Associa-
tion met at the Association's offices. Representing the
Union were Whisman, chairman, and Union Officials
Ojeda and Powers. Representing the Association were
Flynn and the representatives of two member-employers,
Grant and Martin. At the start of negotiations, Whisman
announced that the union membership had met and voted
his committee full authority to negotiate and to execute a
contract on behalf of the employees. The first meeting of
the representatives of the parties was fruitful so they met
again in a series of meetings. The final meeting took place
at the Union's office in the city of Ventura on September
12. At this final meeting Whisman, Ojeda, and Powers
represented the Union, and Flynn alone represented the
Association. At this meeting, the parties found that they
were in agreement on all terms of the collective-bargain-
ing contract. However, one point was to be decided by a
vote of the employees in the unit. The Association had
agreed to pay a 15-cent-per-hour increase for all em-
ployees covered by the collective-bargaining agreement.
The Association wanted this money to be paid directly to
the employees in the form of wages while the Union, on
the other hand, wanted the Association Employers to pay
this money into the Operating Engineers pension fund. At
that time the Association Employers were already paying
15 cents per hour per employee into the pension fund and
the Union wanted them to pay an additional 15 cents per
hour to match the 30-cent-per-hour contribution made by
the employers in Los Angeles County with whom the
Union had contracts. After discussing this difference, the
representatives of the Association and the Union agreed
to a compromise of the situation by agreeing to submit the
matter to the employees in the unit, to decide by majority
vote whether they wanted the 15-cent increase paid to
them in wages or paid into the pension fund. This agree-
ment which was executed at this meeting by the parties
reads as follows: (G.C. Exh. 3.)
MEMORANDUM OF AGREEMENT BETWEEN
THE INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 12 AND THE TRI-COUNTY
ASSOCIATION OF CIVIL ENGINEERS AND
LAND SURVEYORS.
The Contract now in effect between the above
named parties, including the 1966 addendum shall be
extended one year to August 31, 1967, with the fol-
lowing agreement on modifications:
1. The employers offer a 15 cent per hour wage
increase for the period September 1, 1966 through
August 3 1, 1967 in all classifications. If the em-
ployees of the employers of the Association by
majority vote wish the wage increase to be applied as
payments into the Operating Engineers Pension
Fund, the Association employers agree to so do.
2. The Association will contract for benefits
under their current insurance plan to match im-
proved current benefits of the Operating Engineers
Health and Welfare Fund. Effective as soon after
September 1, 1966 as possible, in no event later than
December 1, 1966.
3. 2 Weeks vacation after 2 years. $10.00 per day
subsistance. Language clarifications on non-cost
items as agreed. Sept. 12, 1966
(Initiated T.F. - O.J.W.)
This constitutes the total understanding between the
parties.
/s/ O.J. Whisman
Union Representative
/s/ Thomas B. Flynn
Association Representative
Dated this 12 September 1966.
Flynn testified that he insisted that the language limit-
ing the vote to "the employees of the employers of the as-
sociation" be specific because one of the union negotia-
tors had threatened they would have union members not
in the appropriate unit vote on the proposition. Whisman
told Flynn at the end of this meeting that the Union would
allow the members a fair vote on the proposition and that
it would be presented to them without any recommenda-
tion pro or con by the union negotiating committee.-
The Employees Vote to Take the 15 cents as Wages
Employees Schwann , Peyton , Hill, and Acquistapace
testified to what occurred at two meetings conducted by
the Union on the subject of whether the 15-cent increase
would be put into wages or into the Operating Engineers
pension fund . These employees testified in a fair and
forthright manner and their testimony is uncontradicted
in this record . I credit the entire testimony of each of the
named witnesses . While there are small variations in
minor details in their versions of what occurred at these
meetings , the important facts are amply established.
Employee Harry M . Peyton , who appears to have been
1 All dates in this section of this Decision are in the year 1966 unless
specified otherwise.
INTL. UNION OF OPERATING ENGINEERS (TRI-COUNTY ASSN.) 177
an active participant at the first meeting, testified that a
meeting was called by the Union a few days after Sep-
tember 12 for the purpose of deciding whether the in-
crease would to into wages or into the pension fund.
Whisman , the chairman of the negotiating committee,
presided at this meeting which was held at the union hall
in Ventura. He explained that the meeting was called to
decide whether the 15-cent increase would be paid to the
men in wages or be paid into the pension fund . Whisman
asked for a standing vote. Peyton objected and asked for
a secret ballot, but Whisman replied that a secret ballot
wasn't necessary and that it would take too long. A stand-
ing vote was then taken and approximately two-thirds of
the members present voted to put the money into wages.
Peyton estimated that about 25-30 members, all in the
appropriate unit, participated in this election.
Employee Schwann also explained the way the vote
was conducted. After Whisman explained the purpose of
the meeting and the vote , an appropriate motion was
made from the floor and then Whisman asked for the per-
sons to stand who were in favor of the 15 cents per hour
being put into wages. Those members in favor rose and a
head count was taken. Then Whisman asked the persons
to stand who were in favor of putting the 15 cents into the
pension fund. A head count of these members was also
taken. The result was in favor of having the money put
into wages.
According to Schwann, Whisman said later that he was
unhappy about the results of the vote. Whisman said that
the officials of the Union thought it would be better to put
the money in the pension fund than into wages and that
Whisman was unhappy at the result of the voting.
The Association Puts the Agreement into Effect
On the day after the meeting, according to the
testimony of Flynn, manager of the Association,
Whisman phoned him and told Flynn the results of the
voting, and that he would bring the completed contract to
Flynn's office later in the week for Flynn's signature.
Flynn immediately notified the members of the Associa-
tion of the result of the employees' vote and told them
that the new contract between the Union and the As-
sociation was complete except for the actual exchange of
signed contracts . Flynn explained that the wage increase
was retroactive, so he wished the members to pay the
new wage rate at the next payday and gave notice so they
could compute the retroactive amounts of pay. The mem-
bers of the Association began paying the employees the
new rate of pay at the next payday.
ployees in the unit for the purpose of having the
employee-members vote again on whether the 15 -cent in-
crease should go into the pension fund or into wages. Ac-
cording to the employees , Whisman also presided at this
meeting. He stated that the first vote was invalid because
no "Nay" votes had been taken. According to employee
Acquistapace, William Begley, secretary of the Union, in
a speech to the men told them that if they didn't vote to
put the 15 cents into pension fund, to make their contribu-
tions to the fund equal to the contribution of members in
the Los Angeles area, that the men should leave the
Union and negotiate for themselves; that the Union
would return their initiation fees to them and the Union
would stop representing them. Employee Peyton quoted
Begley as saying that the large membership in the Los
Angeles area would not be dictated to by their small
group and if they failed to vote in favor of putting the
money into the pension fund Begley would carry back a
recommendation to the Union that their initiation fees be
refunded and the men be put out of the Union. A discus-
sion on the floor followed this and one of the employees
asked, "If the men persisted, and took the 15 cents in
wages, what would happen to the sums of money they had
already contributed to the pension fund?" The union offi-
cials replied, "That is wiped out. Its all gone." A ballot
was then distributed to each employee. One of the ballots
in evidence reads as follows:
INTERNATIONAL UNION OF OPERATING
ENGINEERS
LOCAL UNION NO. 12
I accept Contractor's offer [ ]
I reject Contractor's offer [ ]
A tally of ballots was announced as 20 in favor of the
pension fund , and 11 against the pension fund.
The Union Submits its New Contract
Approximately in mid-October, Whisman called Flynn
and told him that the employees had voted "the other
way, to accept the money as pension payment" and he
would be out the first of the week with contracts. A few
days later he presented a contract to Flynn. This contract
which embodies terms of the expired contract is in
evidence and has the following provision:
Pension Fund
The Union Repudiates the Contract and Has a Second
Meeting of Employees; the Union's Coercive Tactics
Flynn testified that Whisman never brought the
completed contracts to him for his signature as he had
promised. On or about September 28, Powers, district
representative of the Union and a member of the negotiat-
ing committee, called at Flynn's office while Flynn was
out. Flynn phoned Powers at Ventura the next day to see
what Powers wanted. Powers told Flynn that the Union
was going to have another vote of the employees on the
wage question because the first vote had not been by
secret ballot. Flynn remarked that perhaps the first vote
didn't suit the Union. It is undisputed that approximately
a week later the Union called another meeting of the em-
A pension fund known as the Operating Engineers
Pension Trust has been established by certain em-
ployers and the Union by an Agreement and
Declaration of Trust dated December 13, 1960. The
Employers agreed to abide by said Agreement and
Declaration of Trust and further to make payments
to the fund , of 15 cents per hour for each hour
worked by (or paid) each employee under this Agree-
ment , excluding travel time . Participation of the em-
ployers in said Trust shall be for the duration of this
Agreement and any renewals or extension thereof, or
for the period workmen are employed under the
terms of this Agreement. Effective November 1,
1966 the 15 cents shall be increased to 30 cents and
will be applicable in the same manner as the 15 cents.
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After reading this, Flynn told Whisman that he felt that
this contract was not the contract agreed upon. In his
opinion they had a complete contract when Whisman
notified him that the men had voted in favor of putting the
money into wages; that in reliance on the information he
had called a meeting of the employer -members of the As-
sociation and had advised them to go ahead and pay the
new wage scale , and to prepare to pay the retroactive
wages under the new scale . Flynn also told Whisman that
when he was told that the Union was going to seek a new
election on the wage question , he informed the Em-
ployers that they should decide whether they wanted to
take the position that they already had a contract, or ac-
cept a modified contract . Flynn testified also that he was
informed by the Employers that after the second meeting
the men had complained to the Employers that they
hadn ' t had a fair chance to vote . The question was
presented in such a fashion that they had only one way to
vote and the employees felt that both the spirit and the
letter of the agreement had not been carried out . In con-
sequence of this, Flynn told Whisman that the Associa-
tion refused to sign the new agreement and took the posi-
tion that it already had a complete agreement providing,
among other things, for the payment of the increase of 15
cents per hour to be paid to the employees in wages.
Late in October , Flynn and a member of the Associa-
tion named Woodyard met with Whisman , Powers, and
Begley of the Union . Among other things Flynn brought
up the form of the ballot at the second vote . Whisman re-
marked that if the men , "hadn ' t voted ` yes' in this elec-
tion , the Union would have made out another ballot."
Begley , toward the close of the meeting finally told the
Association representatives that their choice was, "to
either go along with the pension fund or face economic
action."
Flynn filed the charge against the Union on November
30, 1966.
It is undisputed that although the disagreement
between the Union and the Association has continued
there has been no strike action taken by the Union. Also,
the Employers are paying the 15 cents per hour in
question into an escrow fund at the present time.
Concluding Findings
As noted previously the Union offered no evidence
contrary to that offered by the General Counsel. From
thir undisputed evidence it is clear that on September 12,
1966, the representatives of the Union and the Associa-
tion reached a complete agreement as evidenced by the
memorandum of agreement executed and signed on that
date . On September 12 the parties had agreed to continue
the terms of the expiring contract with the three addi-
tional benefits to be afforded to the employees. These
benefits were : ( 1) 2 weeks' vacation after 2 years and $10
per day subsistence ; (2) an increase in benefits under the
current insurance plan of the Operating Engineers Health
and Welfare Fund; and (3 ) an increase in pay for the em-
ployees of 15 cents per hour. There was nothing in-
definite about the increase in pay . The memorandum of
agreement settled that with certainty - the 15 cents per
hour would go into the pension fund or to the men in
wages, dependent upon a vote of the majority of the em-
ployees involved . It is undisputed that the Union con-
ducted an election in accordance with the memorandum
of agreement and that the men voted to receive the 15
cents per hour in wages. Upon the completion of that
vote , every term of the new contract was defined with
certainty - the complete agreement was evidenced by the
expired contract and the memorandum of agreement
which modified the expired agreement in the three par-
ticulars, ( 1) vacation ; (2) increase in Health and Welfare
benefits; and (3) 15-cent increase in wages.
It is clear from the evidence that the Union was not
pleased with the first vote of the employees . The reason
for the Union 's displeasure is not disclosed in the trans-
cript of these proceedings , but it is clear that in the second
meeting the union officers threatened the employees with
expulsion from the Union and forfeiture of the moneys
the employees had paid into the pension fund in prior
years, if the employees did not vote to put the 15-cent in-
crease in the pension fund . These were oppressive and
coercive conditions that forced the men to change their
vote . This conduct does not comply with the recognized
obligation of unions to deal fairly and honestly and in
highest good faith with the employees for whom the
Board has certified their representative rights. This
second vote under the circumstances existent here does
not change in any way the contractual obligation of the
Union to execute the contract to which it had agreed,
when asked to do so by the Association.
The Union has also demonstrated bad faith in the ef-
forts to force the men to repudiate the first vote. In the
evidence are indications of several captious grounds for
the Union 's conduct ; that no "nay" votes were taken at
the first meeting ; that the vote was not secret; and finally
that the larger membership in Los Angeles would not
countenance the action of the smaller group in this ap-
propriate unit . Further , the wording of the ballot and the
threats of the union officers evince an utter disregard of
the rights of the employees here involved, and also of the
rights of the Association, to whom the union representa-
tives had promised a fair election on the alternatives to be
presented to the employees.
Upon all the evidence I find that the Union has violated
Section 8 (b)(3) as alleged in the complaint.2
At the close of the hearing herein counsel for the Union
made reference to Operating Engineers Local Union No.
3, AFL-CIO (California Association of Employers), 123
NLRB 922. At one point in that Decision the Board
pointed out in a footnote3 that the relationship of unions
to employers and to employees whom the union
represents is not limited by the common law rules of
agency . The Trial Examiner is not persuaded that the
reference in the cited case can be accepted as authority
exculpating the Union in this case.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Union set forth in section III,
above , occurring in connection with the operations of the
Associaticn , described in section I, above , have a close,
intimate , and substantial relationship to trade , traffic, and
2 Glass Workers Union No 1220 (Industrial Conference Board), 162
NLRB 168, Los Angeles Mailers' Union No 9 (Dow Jones & Company,
Inc), 155 NLRB 684
1 Fn 19
INTL. UNION OF OPERATING
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Union has engaged in unfair
labor practices, it will be recommended that the Union
cease and desist therefrom and that it take certain affir-
mative action designed to effectuate the policies of the
Act.
Having found that the Union , as the certified represen-
tative of the employees of the Association in the unit
described above, engaged in collective bargaining with
the representatives of the Association, and agreed upon
the terms of a contract governing wages, hours, and con-
ditions of employment of the said employees , including a
term whereby the said employees would be paid an in-
crease of 15 cents per hour as wages, and thereafter hav-
ing found that the Union refused to execute a contract, as
previously agreed to , the undersigned will recommend
that the Union be required , upon request by the Associa-
tion , to execute and sign the aforementioned contract.
Upon the basis of the above findings of fact and upon
the entire record in the case I make the following:
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, Local
Union No. 12, is a labor organization within the meaning
of Section 2(5) of the Act.
2. The employees of the member-employers of Tri-
County Association of Civil Engineers and Land Sur-
veyors in the unit described below is a unit appropriate
for the purpose of collective bargaining within the mean-
ing of Section 9(b) of the Act.
The appropriate unit is:
All employees of Tri-County Association of Civil
Engineers and Land Surveyors employed in field sur-
vey crews, including chiefs of party, instrument men,
chainmen and field apprentices; excluding all office
clerical employees, draftsmen, engineers , architects,
watchmen, guards, and supervisors as defined in the
Act.
3. The Union has been since October 26, 1964, and at
all times thereafter the exclusive collective-bargaining
representative of all the employees in the unit described
above for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
4. By refusing on or about October 5, 1966, and at all
times thereafter to execute the labor contract with the As-
sociation to which the Union had previously agreed, in-
cluding the payment of an increase in wages of 15 cents
9 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
ENGINEERS (TRI-COUNTY ASSN.) 179
per hour to the employees in the form of wages, the
Union has engaged in , and is engaging in, unfair labor
practices within the meaning of Section 8(b)(3) of the Act,
as amended.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclu-
sions of law and upon the entire record in the case I
recommend that International Union of Operating En-
gineers, Local Union No. 12, its officers, agents, and
representatives, shall:
1. Cease and desist from refusing to execute the col-
lective-bargaining agreement agreed to on September 12,
1966, as the representative of its members employed by
Tri-County Association of Civil Engineers and Land Sur-
veyors.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Upon request, execute the labor agreement with
the Association agreed to on September 12, 1966, includ-
ing the provision to pay the increase in wages to the em-
ployees in the form of wages.
(b) Post at its business office in Santa Barbara and Los
Angeles, California, copies of the attached notice marked
"Appendix."4 [Board's Appendix substituted for Trial
Examiner's.] Copies of said notice, on forms provided by
the Regional Director for Region 31, after being duly
signed by the Union's representative, shall be posted by
the Union immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by the Union to insure that said notices are not
altered, defaced, or covered by any other material. The
Union shall also sign copies of the notice which the Re-
gional Director shall make available for posting at the
business places of the members of the Association, each
being willing.
(c) Notify the Regional Director for Region 31, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.5
IT IS FURTHER RECOMMENDED that, unless on or before
20 days from the date of receipt of this Trial Examiner's
Decision and Recommended Order, the Union notify
said Regional Director in writing that it will comply with
the foregoing recommendations, the National Labor
Relations Board issue an order requiring the Union to
take the action aforesaid.5
and Order "
5 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
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