Lathers Local No. 42

National Labor Relations Board - Board Decisions

Mar 11, 1976

223 N.L.R.B. 37 (N.L.R.B. 1976)

LATHERS LOCAL NO. 42
Lathers Local No. 42 of the Wood Wire and Metal
Lathers International Union and Lathing Contrac-
tors Association of Southern California, Inc.' Case
31-CB-1655
March 11, 1976
DECISION AND ORDER
On June 17, 1975, Administrative Law Judge Rich-
ard D . Taplitz issued the attached Decision in this
proceeding . Thereafter, Respondent filed exceptions
and a supporting brief , and the General Counsel filed
a motion to correct the Decision and a brief in oppo-
sition to Respondent 's exceptions.
The Board , having determined to hold oral argu-
ment on the issue of whether a performance bond is
a mandatory subject of bargaining, directed a hear-
ing before it on February 4, 1976 , for that purpose.
Participating therein were the parties and the follow-
ing amici curiae: Building and Construction Trades
Department , AFL-CIO; Building Contractors Asso-
ciation of New Jersey ; and National Coordinating
Committee for Multiemployer Plans . Briefs were
filed by the parties and the Committee . In addition,
the Building and Construction Trades Department,
AFL-CIO, filed as part of its presentation an article
in the January 22, 1976, issue of Engineering
News-Record which is entitled "Recession haunts
construction as industry challenges mount."
The Board has considered the record and the at-
tached Decision in light of the exceptions , briefs, the
magazine article , the motion,' and the oral argument,
and has decided to affirm the rulings , findings, and
conclusions of the Administrative Law Judge, and to
adopt his recommended Order as modified herein.
The Administrative Law Judge correctly found
that Respondent violated Section 8(b)(3) of the Na-
tional Labor Relations Act by insisting that any
agreement reached by the Association be signed indi-
vidually by its employer-members.
The Administrative Law Judge also properly
found that Respondent violated Section 8(b)(3) of
the National Labor Relations Act by insisting to the
point of impasse on an increase in the size of perfor-
mance bond to be required from the employers in the
Association .3 Although Respondent as well as the
Committee and the Building and Construction
1 Herein called the Association.
2 We hereby grant the General Counsel 's motion to correct the Decision.
The corrections are incorporated therein.
7 The bond in question "guarantees," inter ada, "payment of wages, con-
tributions for Health and Welfare Plans , Pension Plan , Lathing Institute
Trade Promotion Plan, Vacation Plan, [and] Apprenticeship Plan ...."
37
Trades Department, AFL-CIO, concede that the
Board and the courts have consistently held since
1940 that performance bonds are not a mandatory
subject of bargaining,4 they contend that the Board
should depart from this well-established principle
mainly on the ground that the enactment of the Em-
ployee Retirement Income Security Act of 1974
(ERISA) 5 requires the Board to do so. In this con-
nection, they argue that the policy of ERISA with
respect to regulating the funding of employee benefit
plans and the policy of the National Labor Relations
Act with respect to the scope of the duty to bargain
must be accommodated to each other.
The opponents of the "accommodation" argument
take the position that there is nothing in ERISA or
its legislative history to warrant a reversal of the
Board's historic doctrine that performance bonds do
not constitute a mandatory subject of bargaining. We
agree. Accordingly, as indicated above, we adopt the
finding of the Administrative Law Judge that perfor-
mance bonds are outside the scope of mandatory
bargaining.
However, for reasons given below, we disagree
with the finding of the Administrative Law Judge
that Respondent and the Association had otherwise
reached full agreement and that Respondent should
be ordered to execute a contract in the form of the
Memorandum of Agreement that accompanied the
Association's August 16, 1974,6 letter to Respondent.
Following a meeting of its members held on Au-
gust 25, Respondent notified the Association that
they had rejected the Association's "proposal"; i.e.,
the Memorandum of Agreement which the Associa-
tion sent to Respondent on August 16. The Associa-
tion was also informed of Respondent's counterpro-
posals which, in addition to reiterating the demand
for signatures by all the employees in the Associa-
tion, required (1) restriction of the Association's busi-
ness to what was known as "i}ail-on work" and (2)
"fringe benefit reports on a weekly basis, accompa-
nied with a certified cashier's check." As there is no
evidence of a subsequent resolution of the foregoing,
we find, contrary to the Administrative Law Judge,
that the parties did not reach full agreement "on [all]
the issues that Respondent could lawfully insist on."
Therefore, we shall not adopt the Administrative
Law Judge's remedy which orders the execution of
the Memorandum of Agreement. We shall modify
his Order and notice accordingly.
4 See Covington Furniture Mfg. Corp., 212 NLRB 214 (1974), enfd. 514
F.2d 995 (C.A. 6, 1975), and the cases cited therein . See also Local 264,
Laborers International Union of North America (J. J. Dalton and Owen Glover
d/b/a D & G Construction Co.), 216 NLRB 40, enfd . 529 F.2d 778 (C.A. 8,
1976).
5 P.L. 93-406, 93 Cong., H.R. 2, September 2, 1974.
6 All dates below refer to 1974.
223 NLRB No. 8
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER DECISION
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 as modified
below and hereby orders that the Respondent, Lath-
ers Local No. 42 of the Wood Wire and Metal Lath-
ers International Union , Los Angeles, California, its
officers , agents, and representatives , shall take the
action set forth in the said recommended Order, as
modified herein:
1. Delete paragraph 2(a) and reletter the subse-
quent paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
CHAIRMAN MURPHY and MEMBER JENKINS, concur-
ring:
The bond which the Respondent Union demanded
that the Association agree to went beyond securing
payment of wages and fringe benefits earned by em-
ployees of the Association 's member employers. The
bond included, among other matters , payments to an
industry promotion fund . Payments for such purpos-
es are not part of the terms and conditions of em-
ployment concerning which the statute requires em-
ployers to bargain with unions representing the
employees. Consequently , Respondent violated the
Act in insisting to impasse on the bond, and on this
ground alone we concur in the violation of Section
8(bX3) found by our colleagues.
In other respects , we agree with our colleagues'
disposition of the remaining issues in the case.
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard at Los Angeles, California, on April 21 and
22, 1975. The charge was filed on August 29, 1974, by
Lathing Contractors Association of Southern California,
Inc., herein called the Association . The complaint issued
on January 31, 1975,' alleging that Lathers Local No. 42 of
the Wood Wire and Metal Lathers International Union,
herein called Respondent or the Union , violated Section
8(b)(3) of the National Labor Relations Act, as amended.
Issues
The primary issues are whether Respondent refused to
bargain with the Association in violation of Section 8(b)(3)
of the Act by:
1. Insisting that any agreement reached with the Associ-
ation in collective bargaining for a new agreement be
signed individually by employer-members of the Associa-
tion.
2. Insisting to the point of impasse that the size of a
performance bond to be required by employer-members of
the Association be increased from $1,000 to $3,000 or
more.
All parties were given full opportunity to participate, to
introduce relevant evidence , to examine and cross-examine
witnesses , to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify you that:
WE WILL NOT insist that any agreement
reached with Lathing Contractors Association
of Southern California, Inc., be signed individu-
ally by the employer-members of that Associa-
tion.
WE WILL NOT insist to impasse on an increase
in the size of a performance bond to be required
from the employer-members of said Association.
WE WILL NOT in any like or related manner
refuse to bargain in good faith with that Associ-
ation.
LATHERS LOCAL No. 42 OF THE WOOD WIRE
AND METAL LATHERS INTERNATIONAL UNION
FINDINGS OF FACT
1. THE BUSINESS OF THE ASSOCIATION AND THEIR
EMPLOYER-MEMBERS
The Association is an incorporated employer association
with its principal place of business at Van Nuys, Califor-
nia. Its membership is comprised of approximately 16
firms engaged in the "nail-on" (wood lath residential) con-
struction business . It exists, in part, for the purpose of ne-
gotiating, executing, and administering multiemployer col-
lective-bargaining agreements on behalf of its
employer-members with the collective-bargaining represen-
tative of their employees , including the Respondent.
The employer-members of the Association annually, in
the course and conduct of their business operations, collec-
1 During the course of the hearing , General Counsel moved to amend the
complaint in certain particulars . There was no objection and the motion was
granted. By motion dated April 24, 1975, the General Counsel moved to
withdraw its amendment so that the complaint would stand as originally
issued on January 31, 1975. No objection to the motion has been heard. The
motion is hereby granted.
LATHERS LOCAL NO. 42 39
tively derive gross revenues in excess of $500 ,000 and col-
lectively purchase goods and materials valued in excess of
$50,000 directly from suppliers located outside the State of
California.
The Association is, and at all times material herein has
been, the designated spokesman and authorized multiem-
ployer collective-bargaining representative for its employ-
er-members.
Respondent , through its employer -members, is, and at
all times material herein has been , an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act .2
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events
1. The history of bargaining
Respondent and its predecessor unions 3 have had a col-
lective-bargaining relationship with the Association for
more than 20 years . Respondent is, and at all times materi-
al herein has been , the exclusive collective-bargaining rep-
resentative of the employees employed by the Association's
members at their respective jobsites in the following unit,
which is appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
All employees of the Association's members in the
classifications of journeyman lather and apprentice,
excluding all office clericals , guards and supervisors as
defined in the Act.
The Association and Respondent (and its predecessor
unions) have been parties to a series of collective-bargain-
ing agreements covering employees in that unit . One such
contract was effective May 2, 1968, and was by its terms in
effect until April 24, 1973. By a memorandum of under-
standing dated April 23, 1973, that contract, with certain
modifications , was extended to April 30, 1974. Under the
contract the Union recognized the Association as the sole
and exclusive bargaining representative for its members
and the parties agreed that the contract was binding on
each and every member of the Association with the same
force and effect as if the contract were entered into by each
member individually. The contract provided that each
member of the Association was to deposit a $1,000. bond to
guarantee payment of wages , fringes, and the like. In the
alternative the Association was permitted to post a blanket
bond.
2 The above findings are based on Respondent 's admissions in its answer
to the complaint and on a stipulation entered into on the record.
On September 1, 1971, Lathers Locals 42, 42A, 81, and 252 were merged
by their International union . The merged entity was designated by the Inter-
national as Local 42. By a memorandum signed April 23, 1973, the Associa-
tion and Respondent agreed that Respondent was to recognize Local 42 to
be the successor local of Locals 42A, 81, and 252 with power to represent
members of the merged locals for the purposes of collective bargaining.
The 1968 contract, as well as the memorandum of agree-
ment that extended the contract until April 30, 1974, were
executed by the Association and Respondent. The individ-
ual members of the Association were notified of the execu-
tion of the extension agreement by a letter from the Re-
spondent which enclosed a copy of the "Memorandum of
Understanding."
2. The Association
When an employer desires membership in the Associa-
tion, it must fill out an application form which states that it
will abide by the bylaws of the Association. All of the ap-
proximately 16 employer-members of the Association
signed such an application. The bylaws state in part:
Each and every member shall recognize the Associa-
tion, its counsel, and each of its duly-selected labor
committees as the member's exclusive bargaining rep-
resentatives for negotiating, reaching, agreeing to
abide by, and/or signing any and all collective-bar-
gaining agreements with labor unions.
The bylaws provide that any member who engages in such
conduct individually shall be subject to liquidated dam-
ages.
The Association furnishes Respondent with a monthly
list showing the current members of the Association. With
regard to negotiations for a new contract, Respondent
asked for a letter from the Association showing current
members. The Association sent such a letter on March 13,
1974, listing 16 companies that were current members of
the Association in good standing. Respondent never asked
for any additional proof as to who were members of the
Association and there is no evidence in the record to indi-
cate that Respondent ever questioned the Association's
claim that it was authorized by its members to both negoti-
ate and execute collective -bargaining contracts.
3. Negotiations for a new contract and related
correspondence
On January 2, 1974, in anticipation of the April 30, 1974,
expiration date of the contract, Respondent sent the Asso-
ciation a letter giving "Notice to open Negotiations to
modify, amend or make changes in the Agreement." The
letter made a number of proposals relating to wages and
conditions of employment. It also contained the following
language:
Please take notice that Lathers Local No. 42 does not
intend to execute a Labor Agreement with your Asso-
ciation on behalf of your members . Lathers Local No.
42 will recognize you as the bargaining Representative
for your members, but any Agreement reached will
have to be executed individually by your members.
The letter was signed by Melvin W. Umphenour , chairman
of the negotiating committee.4
By letter dated January 22, the Association replied to
° The parties stipulated that Umphenour is business manager and chief
spokesman for Respondent's negotiating committee. It was further stipulat-
ed and I find that Umphenour is an agent of Respondent.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's letter of January 2, 1974. In that letter the
Association proposed a number of contract changes. In
addition, the letter stated:
You are hereby notified that this Association is the
sole and exclusive bargaining agent for its members,
and, as provided in its by laws, "Each and every mem-
ber shall recognize the Association, its counsel, and
each of the duly-selected labor committees as the
member's exclusive bargaining representatives for ne-
gotiating, reaching, agreeing to abide by, and/or sign-
ing any and all collective-bargaining agreements with
labor unions."
You are hereby specifically directed to instruct your
negotiating committee members and Union officials
to refrain from any act, direct or otherwise, such as
contact with our individual members, which might be
construed as efforts to entice them to circumvent or
violate the by laws of this Association by negotiating
separately with , or signing an agreement with, the
Union.
The letter was signed by Victor Saleeby, the Association's
executive secretary.
By letter dated January 28, 1974, Eugene Miller,
Respondent's attorney, wrote to the Association in part as
follows:
Please be advised that Lathers Local No. 42 will not
attempt to negotiate individually with the members of
your association , however, Lathers Local No. 42 does
have the right to insist that any agreement that is
reached after negotiation with your association be evi-
denced by the signatures of the individual members of
your association. As you have been previously notified
by letter dated January 2, 1974, Local No. 42 does not
intend to execute an Association Agreement with you.
In my opinion , this action by Local No. 42 is lawful
and proper under Federal law.
Respondent and the Association met to bargain over the
terms of a new collective-bargaining agreement on or
about February 6, 1974. They met again for the same pur-
pose on February 20, March 13 and 25, and April 8 and 18,
1974. By letter dated April 30, 1974, Respondent notified
the Association that Respondent's members had voted to
terminate the contract effective May 17, 1974. The letter
gave 15 days' notice of intention to terminate . The parties
met again for further negotiations on May 6, 1974. By tele-
gram dated May 20, 1974, Respondent gave the Associa-
tion a 15-day notice that a strike would be called. Another
meeting was held on May 22, 1974. On about June 4, 1974,
Respondent began a strike against the employer-members
of the Association which continued until March 1975. The
parties continued negotiations at meetings on July 3 and
10, 1974, and a final meeting was held on August 7, 1974.
At a number of these meetings , Respondent reiterated its
position that it would not sign an agreement with the Asso-
ciation, but would require the members to sign individu-
ally. 5
3 Respondent's business manager , Umphenour, made statements to that
effect on a number of occasions, including the meetings on July 3 and
The course of negotiations changed at a meeting on July
10, 1974. At that meeting Respondent demanded that the
Association accept the terms and conditions of the collec-
tive-bargaining agreement which Respondent had entered
into with Lathing and Metal Furring Contractors Associa-
tion of California , Inc., another multiemployer bargaining
representative . That agreement provided for a $3,000 per-
formance bond for employers who had less than 10 em-
ployees and a $5,000 bond for employers with more than
10 employees . At the July 10 meeting Respondent demand-
ed that such bonds be posted by the employer -members of
the Association. Victor Saleeby, the Association's executive
secretary , refused to agree to the new bonding proposal
and stated that the $1 ,000 bond was adequate . He pointed
out that there had never been a loss under the existing
arrangement, that he felt that the $5,000 bond was negoti-
ated by the other association for the purpose of keeping
small contractors from starting business on their own, and
that the state required the contractors to have a separate
$2,000 bond . At this meeting Respondent also insisted that
the members sign individual agreements.
On or about July 16, 1974, the Association submitted
proposals regarding a new contract to Respondent. By let-
ter dated July 29, 1974, Respondent rejected those propos-
als and sent a copy of the Lathing and Metal Furring Con-
tractors Association as a ccunterproposal.
At a meeting on August 7, 1974, the Association agreed
to accept the Metal Furring agreement with certain stipula-
tions.
By letter dated August 16, 1974, the Association in-
formed Respondent:
The Association has agreed to accept the total Lath-
ing and Metal Furring Contractors Agreement, sub-
ject to modifications we agreed to in our meeting of
August 7, 1974, and subject to continuation of the As-
sociation Blanket Bond . This bond has been in force
for over 17 years, during which time no lather has
suffered any loss of a claim due to default by the
bond-including periods when there were over 50 em-
ployees covered under the bond and during periods of
high employment and volume of work.
Although the bonding provision is a non-mandatory
subject of bargaining the Association is willing to re-
tain it in the new Agreement provided it is retained in
the manner and amount as specified in our prior
Agreement.
The letter was accompanied by a proposed memorandum
of agreement under which the Lathing and Metal Furring
Contractors Association contract was to be followed ex-
cept for a change in the names of the parties; a change in
contract language allowing for a phone call as certain no-
tice "under extenuating circumstances"; a provision for
employer-trustee representation ; deletion of certain lan-
August 7 , 1974. Also , on a number of occasions Raymond C . Haley and
Moses Cho, who were members of Respondent 's negotiating committee,
told Saleeby that they didn ' t know why they were meeting because Um-
phenour had no intention of signing any agreement with the Association.
LATHERS LOCAL NO. 42
guage concerning a joint conference board; and a substitu-
tion of the bonding requirements set forth in the old con-
tract 6
Respondent had a meeting with its membership on Au-
gust 25, at which time the Association's proposal was re-
jected. Later the same day, the Association's execu-
tive secretary, Victor Saleeby, called Respondent's
secretary-treasurer, Gilbert R. Tellis,7 on the telephone.
Tellis told Saleeby that Respondent had turned down the
Association's proposal . Tellis said Respondent would allow
the Association to have the $1,000 bond only if the em-
ployer-members of the Association limited their business to
"nail-on" work 8 and agreed to other restrictions with re-
gard to fringe benefit payments . Tellis also said that Re-
spondent would require the employer-members to sign in-
dividually.
By letter dated August 26, 1974, Respondent notified the
Association that Respondent's membership had rejected
the Association's proposals. The letter went on to state that
the members had voted to send back the following propos-
als:
Restricting the Lathing Contractors Association of
Southern California, Inc. to Nail-On work only.
6 The "Memorandum of Agreement" reads as follows:
MEMORANDUM OF AGREEMENT
This Agreement , made and entered into this 5th day of June, 1974, by
and between Lathers Local No. 42 of the Wood , Wire and Metal Lath-
ers International Union, AFL-CIO, hereinafter referred to as the
"Union" and the Lathing Contractors Association of Southern Califor-
nia, Inc ., hereinafter referred to as the "Association" on behalf of its
members, hereinafter referred to as the "Employer".
Wmvess : The Employer agrees to be bound by all the terms and
conditions of the Labor Agreement , hereinafter referred to as "Agree-
ment" negotiated by and between the Union and the Lathing and Met-
al Furring Contractors Association of California , Inc., subject to the
following provisions:
1. The Agreement is hereby amended to substitute the Lathing Con-
tractors Association of Southern California , Inc., in each reference to
Lathing and Metal Furring Contractors Association of California,
Inc.
2. Article V, Section 10, second sentence of the Agreement , is hereby
amended to read : "Under extenuating circumstances, a phone call to
the Union on the day the job starts will be adequate notice."
3. Article VII, Section 8, (Trust Funds ) of the Agreement is hereby
amended to provide for Employer Trustee representation by the As-
sociation on a basis mutually agreeable to the Union, the Associa-
tion, and the Lathing and Metal Furring Contractors Association of
California, Inc.
4. Article XI , Section 2 , (Joint Conference Board) of the Agreement is
hereby amended to delete "each month on the First Monday of each
month" and substitute "when necessary."
5. Article XII , (Bonding) of the Agreement is hereby amended by sub-
stituting the provisions of Article XI of the prior Agreement between
the Union and the Association.
The foregoing Agreement was executed this - day of - 1974.
LATHING CONTRACTORS LOCAL 42 OF WOOD, WIRE AND
ASSOCIATION OF METAL LATHERS' INTER-
SOUTHERN CALIFORNIA NATIONAL UNION, AFL-CIO
r Tellis is secretary-treasurer of Respondent and was a member of
Respondent's negotiating committee . It was stipulated and I find that he is
an agent of Respondent.
& Lathing work is performed either by a nailing or tie-on method. The
employer-members of the Association performed both types of work and,
according to the credible testimony of Saleeby , the employer-members
could not accept that type of limitation on their business.
41
Fringe benefit reports on a weekly basis, accompanied
with a certified cashiers check.
The third proposal was as per the letter dated 1-28-74
from Mr. Eugene Miller. (Copy enclosed.)
The letter was signed by Moses A. Cho and Gilbert R.
Tellis, members of Respondent's negotiating committee.
The attachment was a copy of the letter quoted above
which was sent by Respondent's attorney stating that Re-
spondent would not execute an agreement with the Associ-
ation and would insist on the signatures of individual
members.
The strike continued after that date. Sometime in August
or September 1974, the Association's board of directors
agreed not to press liquidated damage claims against em-
ployer-members who signed individual contracts.9 A num-
ber of the employer-members did sign individual contracts
with Respondent.
The Association has never agreed to Respondent's pro-
posals that the employer-members sign the contract, that
the bond be increased, or that the work of the employer-
members be restricted.
B. Analysis and Conclusions
1. The results of the bargaining
As is set forth in detail above, the parties engaged in a
number of negotiating sessions . The last meeting was on
August 7, 1974. Thereafter, there were exchanges of corre-
spondence and telephone communication. At the August 7,
1974, meeting the Association agreed, with certain stipula-
tions, to accept the Metal Furring agreement that had been
proposed by Respondent. In its letter to Respondent of
August 16, 1974, the Association stated that it accepted the
Metal Furring Contractors Agreement subject to modifica-
tions the parties had agreed to in their meeting of August 7,
1974, and also subject to continuation of the bonding pro-
vision in the old contract. The proposed memorandum of
agreement that accompanied the August 16, 1974; letter set
forth the details of the proposal. In addition, the Associa-
tion had not changed its position that the Association,
rather than the employer-members, should sign the con-
tract. When Tellis' conversation with Saleeby of August 25
is considered together with Respondent's letter to the Asso-
ciation of August 26, 1974, it appears that the only objec-
tion Respondent had to the Association's proposed "Mem-
orandum of Agreement" related to Respondent's insistence
on an increase in the bond (or in the alternative, a re-
striction of work provision) and the signing of the contract
by the employer-members rather than by the Association.
Thus, as of August 26, 1974, those were the only issues left
unresolved and, except for them, agreement had been
reached as was set forth in the "Memorandum of Agree-
ment" accompanying the Association's August 16, 1974,
letter to Respondent. At the very latest, by August 26,
1974, the parties had reached a total impasse on the subject
of bonding and signature.
9 According to the credible testimony of Saleeby, that decision was made
based on the opinion by the board of directors that the employer-members
could not otherwise survive.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Respondent's insistence that the employer-members
and not the Association execute a collective-bargaining
contract
As found above, the Association is the designated
spokesman for and authorized multiemployer collective-
bargaining representative for its employer -members. The
Union represents the employees of the employer-members
of the Association in an appropriate multiemployer unit.
The Association and the Union have engaged in bargain-
ing in that multiemployer bargaining unit for some 20
years. Both before and after the expiration of the last con-
tract, Respondent and the Association continued to bar-
gain in that multiemployer unit. Neither the Union nor the
Association has ever attempted to withdraw from the mul-
tiemployer bargaining unit and whatever bargaining obli-
gations exist between Respondent and the Association are
keyed to that unit.
The employer-members of the Association have, through
their membership applications and the bylaws of the Asso-
ciation, authorized the Association to bargain for them and
to execute any agreement that is reached. The bylaws pro-
hibit the employer-members from acting individually in
those regards. The past practice of the parties, at least since
the 1968 contract, has been for the Association to sign con-
tracts.
Respondent has agreed to, and in fact has engaged in,
substantial multiemployer bargaining with the Association.
At the same time , however, it has adamantly insisted that
any agreement reached be executed by the employer-mem-
bers of the Association individually, and it has also insisted
that it will sign no contract with the Association. In a mul-
tiemployer bargaining situation, a union has a right to ob-
tain reasonable assurances with regard to who is bound by
the contract and who is not. In some situations, particular-
ly where the authority of an association to bind its employ-
er-members is in question , a union may have a legitimate
interest in obtaining the signatures of the employer-mem-
bers on the contract. That is not the situation in the instant
case . The credited testimony and the documentary evi-
dence in the record establish that the employer-members
have authorized the Association to bind them to a collec-
tive-bargaining contract. The Union has never questioned
that authority. It has demanded a list of the employer-
members of the Association and that list was furnished by
the Association. If bound by the contract, it would have
demanded that the employer-members, as well as the Asso-
ciation, sign the contract . Instead , the Union has ada-
mantly refused to sign any contract with the Association.
The Union has taken this position in spite of the fact that
its bargaining obligations in the multiemployer unit runs to
the Association and not to the individual employer-mem-
bers. Section 8(d) of the Act provides that the duty to bar-
gain includes the obligation to execute a written contract
incorporating any agreement reached if requested by either
party. By demanding that the employer-members of the
Association sign an agreement while at the same time in-
sisting that it will not sign any agreement with the Associa-
tion, Respondent is undermining the multiemployer unit in
which it has a duty to bargain. Such conduct is completely
inconsistent with the requirement of the Act that the
Union bargain in good faith . I therefore find that, in the
circumstances set forth above , Respondent violated Sec-
tion 8(b)(3) of the Act by insisting that any agreement
reached with the Association be signed individually by the
employer-members of the Association . Cf. Local No. 42,
International Association of Heat and Frost Insulators and
Asbestos Workers (Delaware Contractors ' Assn .), 193 NLRB
504 (1971), enfd . in pertinent part 469 F.2d 163 (C.A. 3,
1972).
3. The bond
As is set forth above, Respondent demanded to the point
of impasse that the employer-members of the Association
post an increased performance bond, or that in the alterna-
tive they limit the type of work that they do, report fringe
benefits on a weekly basis, and pay with certified cashiers
check. Respondent cannot lawfully require bargaining
about a performance bond or an increase in an existing
bond. That is a nonmandatory subject of bargaining.
N.L.R.B. v. International Hod Carriers Building and Com-
mon Laborers Union of America, Local 1082, 384 F.2d 55
(C.A. 9, 1967); N.L.R.B. v. Wooster Division of Borg-War-
ner Corporation, 356 U.S. 342 (1958). When Respondent
insisted to the point of impasse on increasing the perfor-
mance bond, it violated Section 8(b)(3) of the Act. Respon-
dent cannot defend on the ground that it offered an alter-
native to the bonding provision. The alternative would
have required the employer-members of the Association to
limit the type of business they engaged in. The demand was
sufficiently unrealistic to warrant the conclusion that it was
raised as a ploy to obtain the bond. The law relating to
mandatory subjects of bargaining would be meaningless if
a union were permitted to force an employer to choose
between acceptance of a demand on a nonmandatory sub-
ject and an alternative that the union knows the employer
cannot live with.
The parties to this proceeding entered into the following
stipulation on the record:
In the event that the Administrative Law Judge should
determine as a result of these hearings that Respon-
dent has refused to bargain with Charging Party and/
or has withdrawn recognition from Charging Party as
the bargaining representative of its employer-mem-
bers, the parties agree that the Administrative Law
Judge be empowered to add to and incorporate in his
remedial order a separate provision interdicting Re-
spondent from bargaining in bad faith by insisting to
impasse on the size of the performance bond to be
required from employer-members of Charging Party.
Based on the above stipulation, and independently or the
evidence in the record, I find that Respondent violated
Section 8(b)(3) of the Act by insisting to impasse on an
increase in the size of a performance bond to be required
from the employer-members of the Association.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, as set forth in section III,
LATHERS LOCAL NO. 42
above, occurring in connection with the business opera-
tions of the Association and its employer-members set
forth in section I, above, have a close , intimate , and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(3) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
As found above, by August 26, 1974, Respondent and
the Association had reached a final understanding and
agreement as is set forth in the "Memorandum of Agree-
ment" accompanying the Association's August 16, 1974,
letter to Respondent, with two exceptions. The first excep-
tion related to Respondent 's insistence on an increased
performance bond to be posted by the employer-members
or, in the alternative, an agreement to limit the work per-
formed by the Association members. As found above, the
alternative was merely a lever used by Respondent in con-
nection with its demand for the increased bond.
Respondent 's insistence on the bonding provision to point
of impasse was an unfair labor practice . Respondent could
not lawfully require agreement on that demand as a condi-
tion for the execution of an agreement. The second excep-
tion related to the Union 's insistence that the individual
employer-members of the Association sign an agreement.
The Union's action in that regard undermined the estab-
lished multiemployer bargaining unit and was violative of
Section 8(b)(3) of the Act. Respondent could not lawfully
refuse to sign a contract because of a lack of agreement on
that issue. Other than those issues over which Respondent
could not lawfully require bargaining, the parties had
reached a full and complete understanding on the terms of
a collective-bargaining agreement on August 26, 1974. The
complaint does not allege that Respondent unlawfully re-
fused to execute an agreed-on contract with the Associa-
tion and the General Counsel has not requested a remedy
therefor . However, a meaningful decision requires a reme-
dy that will truly put the parties in the position they would
have been but for the unfair labor practices. Respondent
violated the Act by insisting on execution of a contract by
the individual employer-members of the Association. It
further violated the Act by insisting to impasse on an in-
creased performance bond. Respondent's conduct serious-
ly undermined the multiemployer bargaining unit. The par-
ties had reached full agreement on the issues that
Respondent could lawfully insist on. To effectively remedy
Respondent's conduct in unlawfully undermining the mul-
tiemployer bargaining unit, it is necessary to order Respon-
dent to execute a contract with the Association incorporat-
ing the agreement it reached with the Association on all
issues necessary for a collective-bargaining agreement, ex-
cept for those unlawfully insisted on by Respondent.1° I
10 In H. K. Porter Company, Inc. v. N. L. R. B., 397 U .S. 99 (1970), the
43
shall therefore recommend that Respondent be ordered to
execute the "Memorandum of Agreement" accompanying
the Association's August 16, 1974, letter to Respondent.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. The Association and its employer- members are em-
ployers engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
3. The Association is the designated spokesman for an
authorized multiemployer collective-bargaining representa-
tive for its employer-members.
4. Respondent is the exclusive collective-bargaining rep-
resentative of the employees employed by the Association's
members at their respective jobsites in the following unit
which is appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All employees of the Association' s members in the
classifications of journeyman lather and apprentice,
excluding all office clericals, guards and supervisors as
defined in the Act.
5. By insisting that any agreement reached with the As-
sociation be signed individually by the employer-members
of the Association, Respondent has engaged in unfair labor
practices in violation of Section 8(b)(3) of the Act.
6. By insisting to impasse on an increase in the size of a
performance bond to be required from the employer-mem-
bers of the Association, Respondent has engaged in unfair
labor practices in violation of Section 8(b)(3) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire, record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER "
Lathers Local No. 42 of the Wood Wire and Metal Lath-
ers International Union, its officers, agents , and represen-
tatives , shall:
1. Cease and desist from:
United States Supreme Court held that the Board cannot compel agreement
when the parties themselves are unable to reach an agreement . However,
that is not the situation in the instant case . The parties here had reached full
agreement on their own accord except for matters relating to Respondent's
unlawful demands . When an agreement is reached by the parties, the Board
does have power to order a respondent to execute a contract incorporating
that agreement . H. J. Heinz Company v. N.L.R. B., 311 U.S . 514 (1941);
Enterprise Association of Steam, Hot Water, Hydraulic, Sprinkler, Pneumatic
Tube, Ice Machine and General Pipefitters of New York and Vicinity, Local
No. 638, United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada, AFL-CIO (H V &
A C Contractors' Association, Inc.), 170 NLRB 385 (1968).
11 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.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Insisting that any agreement reached with Lathing
Contractors Association of Southern California, Inc., be
signed individually by the employer-members of that Asso-
ciation.
(b) Insisting to impasse on an increase in the size of a
performance bond to be required from the employer-mem-
bers of that Association.
(c) In any like or related manner refusing to bargain in
good faith with that Association.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Upon request of that Association, execute the
"Memorandum of Agreement" that accompanied that
Association's August 16, 1974 letter, as is set forth in the
section of this Decision entitled "The Remedy."
(b) Post at its business office and meeting halls copies of
the attached notice marked "Appendix." t Copies of said
12 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
notice , on forms provided by the Regional D rector for
Region 31, after being duly signed by its authorized repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reason-
able steps shall be taken by the Union to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Mail to the Regional Director for Region 31 signed
copies of the aforesaid notice for posting by Lathing Con-
tractors Association of Southern California, Inc., and its
employer-members, if said Association and its employer-
members are willing, in places where notices to employees
are customarily posted.
(d) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps it has taken to
comply herewith.
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"