Lathers Local No. 42Download PDFNational Labor Relations Board - Board DecisionsMar 11, 1976223 N.L.R.B. 37 (N.L.R.B. 1976) Copy Citation 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" Copy with citationCopy as parenthetical citation