Local 103, Ornamental Iron Workers

National Labor Relations Board - Board Decisions

Jun 7, 1971

190 N.L.R.B. 741 (N.L.R.B. 1971)

LOCAL 103, ORNAMENTAL IRON WORKERS
Local Union No . 103, International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, and its agent Charles Tremper and As-
sociated General Contractors of America , Evansville
Chapter , Inc. Case 25-CB-973
June 7, 1971
DECISION AND ORDER
On October 1, 1970, Trial Examiner Robert E. Mul-
lin issued his Decision in the above-entitled proceeding,
finding that the Respondents had engaged in and were
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that they cease and desist
therefrom, and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. There-
after, the Charging Party and the Respondents filed
exceptions to the Decision. The Respondents also filed
a brief in support of their exceptions, and the General
Counsel filed a brief in support of the Decision.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, only to the extent they are consistent
with the following.
The Trial Examiner found that the Charging Party,
Associated General Contractors of America, Evans-
ville Chapter, Inc.,' and the Respondent Union, Local
Union No. 103, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO,'
had for some years written into their collective-bar-
gaining agreements a provision requiring the submis-
sion of jurisdictional disputes to the National Joint
Board for the Settlement of Jurisdictional Disputes.
Through affiliation with their respective parent organi-
zations, Associated General Contractors, Inc. (AGC),
and the International Union, both the Charging Party
and the Respondent Union were represented on the
National Joint Board and were bound by its decisions.
The parties' latest bargaining agreement, which by its
terms expired on March 31, 1970, contained such a
provision.
In September 1969, the National Joint Board was
dissolved, and the Charging Party notified the Re-
spondents that the AGC and its local chapter would
not be a party to any agreement establishing a new joint
board. Consistent with this position, neither the Evans-
ville Chapter nor its parent organization agreed to par-
Also referred to herein as Evansville Chapter
Also referred to herein as Local 103
741
ticipate in the Interim Joint Board, which was formed
in the latter part of 1969 to replace the defunct board.
However, upon dissolution of the National Joint Board
the Charging Party attempted to open discussions on
the organization of a local facility to settle jurisdic-
tional disputes, but the Respondents spurned such
overtures, indicating that the International Union
would not permit participation in an area board.
Shortly after formal negotiations on a new contract
began in February 1970, and at all times subsequent
thereto, the Respondents rigidly demanded that any
new agreement contain a provision for submission of
jurisdictional disputes to the Interim Joint Board or the
present National Joint Board, which was created in
early 1970 as its replacement. The Charging Party re-
plied that it was unwilling to agree to continuation of
the identical jurisdictional dispute provision because
the AGC was not a party to the Interim Joint Board
and would not recognize its successor. However, as
more fully set forth in the Trial Examiner's Decision,
the Charging Party throughout the course of negotia-
tions was willing to enter into agreement upon the
formation of an alternative jurisdictional disputes
procedure and offered several counterproposals, all of
which were summarily rejected by the Respondents.
Upon expiration of the bargaining agreement the Re-
spondent Union struck the Evansville Chapter's em-
ployer members, and at the time of the hearing the
work stoppages were still in effect. Following com-
mencement of the strikes the parties met in an effort to
resolve their differences, but, as it had done before,
Local 103 adamantly insisted upon the inclusion of the
same jurisdictional disputes provision in the new agree-
ment. In sum, the record amply supports the conclu-
sion reached by the Trial Examiner that the Respond-
ents insisted to the point of impasse and resorted to a
strike to secure agreement that jurisdictional disputes
be resolved by submission to the National Joint Board.
Based on these facts, the Trial Examiner further con-
cluded that the Respondent Union restrained and co-
erced the Charging Party in the selection of its repre-
sentative for purposes of collective bargaining and the
adjustment of grievances within the meaning of Section
8(b)(1)(B) of the Act. The Respondent Union has ex-
cepted to this conclusion, and we find merit in these
exceptions.
The Trial Examiner's conclusion that Local 103 vi-
olated the Act is predicated on his finding that the
subject of jurisdictional dispute settlement mechanisms
is a nonmandatory one. It seems to us that there are few
matters more properly the subject of collective bargain-
ing than the method of resolving those disputes. We do
not view the demand in this case as involving an em-
ployer's selection of his representative for purposes of
collective bargaining, for the function of any group
designated to resolve such jurisdictional disputes is not
190 NLRB No. 145
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to negotiate on behalf of the parties before it but is more
in the nature of an umpire or a knowledgeable arbitra-
tion panel to consider only certain types of problems.'
It is in this respect that prior Board cases finding viola-
tions of Section 8(b)(1)(B) are distinguishable from the
instant situation. The cases cited by the Trial Examiner
in support of his concluding findings concerned either:
(a) demands that a company which was a member of
and had designated one association discontinue that
agency relationship and instead affiliated with a differ-
ent employer organization and grant it full authority to
represent and bind the company for purposes of collec-
tive bargaining or the handling of grievances; or, (b)
demands for provisions found to be nonmandatory sub-
jects of bargaining such as industry promotion funds.
Indeed, the only case mentioning in any way a de-
mand comparable to that in the present case contains
a specific reservation on the point in issue . In Federated
Employers of Nevada, Inc., 135 NLRB 462, the Board
adopted Trial Examiner's Marx's statement4 that the
interpretation of Section 8(b)(1)(B) as including within
its scope union action to coerce the company to accept
contractual provisions for the selection of management
designees not of their choice
is not intended to imply that coercion to compel
an employer to select or agree to an "umpire"
... is within the reach of Section 8(b)(1)(B). I do
not pass on such a situation, confining my holding
to a case where, as here, a labor organization seeks
to compel an employer to accept management
designees, who are not of the employer's choosing,
as instruments for the resolution of grievances.
Obviously, coercion of an employer in his selection of
a representative for bargaining purposes or for such
purposes as the handling of all grievances is a matter
' Contrary to the implication of the Trial Examiner's fn. 12, it is quite
customary for parties in collective bargaining to exercise their equal voices
by agreeing in advance that a particular person or body shall resolve disa-
greements which may arise in the future
' Footnote 8, 135 NLRB at 471, which is the page cited by the Trial
Examiner herein
Our dissenting colleagues misread the facts of the cited case There the
joint committee and board of arbitration which were under consideration
were at all times except the ultimate stage bipartite bodies, being composed
of two members designated by an association of which the employers were
not members and two designated by the union , and those bodies were to be
authorized to act for the nonmembers in the full gamut of issues that might
arise, with an impartial umpire in the final stage In significant contrast, here
the Joint Board is tripartite at all times and includes an impartial chairman.
Further, any determination is by a tripartite body consisting of the impartial
chairman and disinterested union and employer members, i e , no regular or
alternate member may participate in any case in which the trade union or
company of which he is an officer or representative is a party to the dispute,
but any union or employer not directly represented may designate a repre-
sentative to participate in the discussion of the specific case An appeals
board consists of an impartial umpire and disinterested union and employer
members not affiliated with any party to the particular case under review
And, as noted above in the text, the matters which may be considered are
most limited and could be described as disputes which involve three parties
and which cannot be resolved by the agents of those parties in collective
bargaining
which is prohibited by the statute. But, as set forth
above, the matter in issue here is not of that nature.
Although we conclude, contrary to the Trial Exam-
iner, that the subject of a mechanism for the resolution
of jurisdictional disputes is a mandatory subject of bar-
gaining, and as such one upon which a party may insist
to impasse and for which it may engage in a strike,' we
agree that in the circumstances of this case the Re-
spondent Union violated 'Section 8(b)(3). This is so
because the subject, being a bargainable matter, is one
upon which Local 103 was obligated to enter negotia-
tions with an open mind. Here, it is clear, the Respond-
ent Union had a fixed, inflexible position and was rig-
idly unwilling to consider seriously any possible
alternatives to its proposal that such disputes be sub-
mitted to the National Joint Board. Such an attitude is
clearly contrary to the duty to bargain in good faith and
is thus unlawful.
In view of the above, we shall dismiss the complaint
insofar as it alleges a violation of Section 8(b)(1)(B) and
sustain the allegation that the Respondents violated
Section 8(b)(3).
CONCLUSIONS OF LAW
1. Associated General Contractors of America,
Evansville Chapter, Inc., and its members, are employ-
ers and are engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Local Union No. 103, International Association of
Bridge , Structural and Ornamental Iron Workers,
AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act, and Charles Tremper is its
agent , within the meaning of Section 2(13) of the Act.
3. All journeymen ironworkers and apprentices em-
ployed by the employer members of AGC, Associated
General Contractors of America, Evansville Chapter,
Inc., within the territorial jurisdiction of Local 103,
exclusive of all other employees of said employers and
all supervisors, constitute a unit appropriate for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Local 103, at all times material herein, has been,
and is, the exclusive representative of all employees in
the aforesaid appropriate unit for the purposes of col-
lective bargaining with respect to rates of pay, wages,
hours of employment, or other conditions of employ-
ment.
5. By refusing to bargain with Associated General
Contractors of America, Evansville Chapter, Inc., on
the ways and means by which jurisdictional disputes
are to be resolved the above-named Respondents have,
since February 11, 1970, engaged in unfair labor prac-
' NL.R B. V Wooster Division of Borg-Warner Corporation, 356 U S
342, 349
LOCAL 103, ORNAMENTAL IRON WORKERS
tices within the meaning of Section 8(b)(3) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that the Respondents violated Section
8(b)(3) it will be recommended that the Respondents be
ordered to cease and desist from such conduct and take
certain affirmative action in order to effectuate the poli-
cies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Local Union
No. 103, International Association of Bridge, Struc-
tural and Ornamental Iron Workers, AFL-CIO, its
officers, agents, and representatives, and the Respond-
ent, Charles Tremper, its business agent, shall:
1. Cease and desist from:
(a) Refusing to bargain with Associated General
Contractors of America, Evansville Chapter, Inc., on
behalf of the journeymen ironworkers and apprentices
in its territorial jurisdiction who are employed by em-
ployer members of the aforesaid Evansville Chapter,
excluding all other employees and supervisors, with
regard to the resolution of jurisdictional disputes.
(b) In any like or related manner refusing to bargain
with Associated General Contractors of America,
Evansville Chapter, Inc.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) The Respondent Union shall notify Associated
General Contractors of America, Evansville Chapter,
Inc., in writing, that it will not refuse to bargain with
it, and that it will not refuse to bargain on the resolu-
tion of jurisdictional disputes.
(b) Post at the Respondent Union's business offices
and meeting places, within its territorial jurisdiction,
copies of the attached notice marked "Appendix A."6
Copies of said notice, on forms provided by the Re-
gional Director for Region 25, after being duly signed
by a representative of Local 103 and by the Respondent
Tremper, shall be posted by the Respondent Union
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. Reasonable steps shall be taken
In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "POSTED BY ORDER
OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD "
743
by the Respondent Union to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Promptly after receipt of copies of the said notice
from the Regional Director, return to him signed
copies for posting by Associated General Contractors
of America, Evansville Chapter, Inc., and by all the
employer members of the Evansville Chapter named in
"Appendix B," if they be willing, at their places of
business, including all places where notices to em-
ployees are customarily posted.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps the Respondents have taken to comply here-
with.
MEMBER JENKINS AND KENNEDY, dissenting in part:
We agree with our colleagues that the Respondent
Union violated Section 8(b)(3) of the Act by taking and
maintaining throughout the course of negotiations a
fixed position with regard to its demand that all juris-
dictional disputes be submitted to the National Joint
Board for final disposition. However, although finding
that the Respondent Union resorted to such conduct,
including a strike against all employer members of the
Evansville Chapter in order to compel acceptance of
the Joint Board, upon which neither the Evansville
Chapter nor the AGC had any representatives, our
colleagues nevertheless conclude that the Respondent
Union did not violate Section 8(b)(1)(B). This is so, we
are told, because the submission of disputes to the Joint
Board is a mandatory subject of bargaining. We do not
agree.
In the circumstances of this case we find it unneces-
sary to decide whether the subject is a mandatory one
for bargaining because the Act itself, in Section
8(b)(1)(B), clearly proscribes the conduct engaged in
here where the object is "to restrain or coerce ... an
employer in the selection of his representatives for the
purposes of collective bargaining or the adjustment of
grievances" (emphasis supplied). To avoid the plain
meaning of this section it would be required of us to
draw a distinction between the selection of representa-
tives for purposes of collective bargaining or adjusting
grievances and the selection of representatives for the
limited purpose of adjusting jurisdictional disputes, al-
though it is clear Congress made no such differentia-
tion. Moreover, we are not persuaded that there exists,
within the purview of Section 8(b)(1)(B), a rational
basis for making such a distinction for in each instance
the conduct so proscribed inheres in the attempt to
compel by restraint or coercion the designation of rep-
resentatives not of the employer's own choosing re-
gardless of whether the subject matter of the grievance
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be characterized as limited to "only certain types of
problems" or otherwise.7
Indeed, our colleagues' holding in this case seem-
ingly rewards coercion which is designed to compel
acceptance of representatives not of the employer's own
choosing although the Board has a longstanding policy
recognizing that an employer is as much a "party" to
a jurisdictional dispute' as he is to any other dispute or
grievance. In short, we think it is fundamental that the
party to any dispute or grievance be accorded the right
to appoint his own representative if the voluntary set-
tlement procedures they may agree upon are to main-
tain their efficacy. Therefore, in our view, it is irrelevant
whether the designees being forced upon the employer
are fair and impartial, for Section 8(b)(1)(B) protects
the employer's right to select his own representatives
for such purposes. It is, of course, a misnomer for our
colleagues to call the Joint Board "tripartite," for nei-
ther the Evansville Chapter nor the National AGC was
represented on the Board, a fact which lies at the root
of the violation here.
' We believe that the case authority, including our decision in United
Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry, Local 525, AFL-CIO (Federated Employers of Nevada, Inc.). 135
NLRB 462, cited by the Trial Examiner clearly supports this position, and
that the reservation contained in the above-cited case related to the question
whether it is violative of the Act to coerce an employer to appoint, pursuant
to an agreement, a third party neutral to a tripartite panel on which the
employer is already represented -an issue not before us in that case or in the
instant matter
See, e .g, Lathers Union Local 104, The Wood, Wire and Metal Lathers
International Union, AFL-CIO (Associated General Contractors ofAmerica,
Inc, Seattle Northwest Chapter), 186 NLRB No 70
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
It has been determined by the National Labor Rela-
tions Board that this Local and its agent Charles
Tremper have violated the National Labor Relations
Act. In order to correct this situation, we have been
required to post this notice, and to give the following
reassurances.
WE WILL NOT refuse to bargain with As-
sociated General Contractors of America, Evans-
ville Chapter, Inc., on behalf of the journeymen
ironworkers and apprentices in our territorial ju-
risdiction who are employed by employer mem-
bers of the aforesaid Evansville Chapter, excluding
all other employees and supervisors, with regard
to the resolution of jurisdictional disputes.
WE WILL NOT, in any like or related manner,
refuse to bargain with Associated General Con-
tractors of America, Evansville Chapter, Inc.
LOCAL UNION No. 103,
INTERNATIONAL
ASSOCIATION
OF BRIDGE , STRUCTURAL
AND ORNAMENTAL
IRON
WORKERS, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 614 ISTA Center, 150 West Market Street, In-
dianapolis, Indiana 46204, Telephone 317-633-8921.
APPENDIX B
Aalco Construction Co.
1171 Diamond Avenue
Evansville, Indiana
A & C Construction Co.
New Green River Road
Evansville , Indiana
Allied Erection & Conveyors
R.R. 13, Box 54
Evansville, Indiana
Anderson & Loer
P.O. Box 4168, Sta.
410 W. Iowa
Evansville, Indiana
Anning-Johnson Company
3945 Industrial Boulevard
Indianapolis, Indiana
Bartley & Perigo Masonry
2910 Rugby Avenue
Evansville , Indiana
Bauer Bros. Gen. Contrs., Inc.
912 Prosperity Avenue
P.O. Box 1182, Sta. "C"
Evansville, Indiana
Bee Construction Co.
R.R. 1, Middle Mt. Vernon Rd.
P.O. Box 7097
Evansville, Indiana
Bretz Paint Contracting, Inc.
P.O. Box 5274, Lawndale Sta.
Evansville , Indiana
N. M. Bunge, Inc.
5419 Hogue Road
Evansville , Indiana
Burch & Lamb, Inc.
7703 Bawngart Road
P.O. Box 2226 , Sta. D.
Evansville , Indiana
Central Glass Co. of Indiana
1101 Diamond Avenue
Evansville , Indiana
Clark Construction Co.
1919 Parrish Avenue
P.O. Box 623
Owensboro, Kentucky
R. J. Coudret Company
1301 N. Harlan Avenue
P.O. Box 4111
Evansville , Indiana
Crow's Insulating Co.
2102 S. Evans
Evansville , Indiana
Jerry L. David Excavating
1710 Diefenbach Road
Evansville , Indiana
Deig Brothers
2804 "A" Street
Evansville, Indiana
Evansville Sheet Metal
1901 W. Maryland Street
Evansville, Indiana
Feigel Construction Corp.
1270 E. Maxwell Avenue
LOCAL 103, ORNAMENTAL IRON WORKERS
Evansville , Indiana
Connie Garnett Contracting
1600 S. New York Avenue
Evansville, Indiana
General Insulation Co.
609 N. Weinbach Avenue
Evansville, Indiana
Hartz Brothers
P.O. Box 1157
Owensboro, Kentucky
Hartz-Kirkpatrick Constr.
P.O. Box 1328
Owensboro, Kentucky
Harvey Johnson Painting
808 Monroe Avenue
Evansville , Indiana
Hicks & Son, Inc.
2559 N. Kentucky Avenue
Evansville , Indiana
Industrial Contractors, Inc.
P.O. Box 208
401 N.W. First Street
Evansville , Indiana
Key Construction
2201 Covert Avenue
Evansville , Indiana
Geo. Koch Sons, Inc.
10 S. 11th Street
P.O. Box 358
Evansville , Indiana
Louisville Insulating Co.
509 N. 9th Avenue
Evansville, Indiana
Midwest Roofing & Insulation
1208 N. Harlan Avenue
Evansville, Indiana
Municipal Eng. & Constr.
4424 Vogel Road
Evansville, Indiana
Nelson-Klinger Co.
P.O. Box 831
Evansville, Indiana
745
746
H. G. Newman Plumbing
211 S.E. Fourth Street
Evansville , Indiana
Chris Nix Construction Co.
322 South Ingle Avenue
Evansville , Indiana
P & H Construction Co.
P.O. Box 37
1157 E. Sycamore
Evansville , Indiana
D.K. Parker Co., Inc.
P.O. Box 486
New Harmony , Indiana
Peyronnin Construction
1901 N. Kentucky Avenue
P.O. Box 3317
Evansville , Indiana
Poe Steel Erection
3028 N . Fulton Avenue
Evansville , Indiana
Red Spot Paint & Varnish
110 Main Street
P.O. Box 418
Evansville , Indiana
Rust Construction Co.
1301 E. Michigan Street
P.O. Box 994
Evansville , Indiana
Ryan Contracting Co.
5416 Boonville Hwy.
P.O. Box 5047 , Lawndale
Evansville, Indiana
Geo. Ryan Company
5650 Oakgrove Road
P.O. Box 5114 , Lawndale
Evansville , Indiana
Sutton Construction Co.
1716 S.E . Boulevard
Evansville , Indiana
Traylor Brothers
835 N . Congress Avenue
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
P.O. Box 5165
Evansville , Indiana
Tri-State Steel Erection
1324 N . Fares Avenue
Evansville , Indiana
U.S. Sheet Metal & Roof
1701 First Avenue
Evansville , Indiana
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner : This case was heard
in Evansville , Indiana , on July 7, 1970 , pursuant to a charge
duly filed and served ,' and a complaint issued on May 21,
1970. The complaint presents questions as to whether the
Respondent Union violated Section 8(b)(1)(B) and 8(b)(3) of
the National Labor Relations Act, as amended , herein called
the Act. In its answer , duly filed, the Respondent denied all
allegations that it had committed any unfair labor practices.
All parties appeared at the hearing and were given full
opportunity to be heard , to examine and cross-examine wit-
nesses and to introduce relevant evidence . At the close of the
case presented by the General Counsel and the Charging
Party , the Respondent rested and moved for a dismissal of the
complaint . The General Counsel thereupon moved for a sum-
mary judgment . These motions are disposed of as appears
hereinafter in this decision. The parties waived oral argument
at the close of the hearing and thereafter submitted written
memoranda . On August 12, 1970 , a brief was received from
the Respondent , and on August 14, 1970 , briefs were received
from the General Counsel and the Charging Party.'
Upon the entire record in the case and from his observation
of the witnesses , the Trial Examiner makes the following-
FINDINGS OF FACT
I THE EMPLOYER INVOLVED
Associated General Contractors of America , Evansville
Chapter, Inc. (herein called The Evansville Chapter) is an
Indiana corporation with its principal office in Evansville,
Indiana . Randolph Walther , Executive Director of the
Evansville Chapter , testified that in the field of labor rela-
tions, the Chapter acts as the collective -bargaining agent for
the contractor members and that, in so doing, it participates
in the negotiation of contracts, in the administration of such
agreements , and in the settlement of grievances and disputes.
Charles Tremper, business agent for Local 103 and himself
a Respondent, conceded that this was likewise his under-
standing of the function of the Chapter. He further testified
that, in his experience , the members of the Chapter were
bound by the results of its negotiations.
' The charge was filed on April 1, 1970
' Two posthearing orders were issued by the Trial Examiner July 29,
1970, the Trial Examiner denied a motion by the Charging Party that the
Trial Examiner order a division of the Board to petition for an injunction
against the Respondent under Section 10(1) of the Act. In an order dated
September 11, 1970, the Trial Examiner granted a motion of the General
Counsel's to correct the transcript in certain minor particulars
LOCAL 103, ORNAMENTAL IRON WORKERS
The business operations of some of the employer members
of the Evansville Chapter' and the annual volume for jurisdic-
tional purposes of each business,' are described below:
Burch and Lamb , Inc., an Indiana corporation with its
principal office and place of business in Evansville, is a con-
veyor fabricator and erector in the building and construction
industry. Its annual purchases of goods and materials shipped
to its facilities and locations in Indiana directly from States
of the United States other than Indiana exceed $50,000 in
value. It annually fabricates, sells, and ships good valued in
excess of $50,000 directly from its Indiana facilities and loca-
tions to customers located in other States of the United States.
Industrial Contractors, Inc., with its principal office and
place of business in Evansville , is a general contractor in the
building and construction industry. Its annual purchases of
goods and materials shipped to its facilities and locations in
Indiana directly from States of the United States, other than
Indiana , exceed $50,000 in value.
Peyronnin Construction Co., Inc., an Indiana corporation
with its principal office and place of business in Evansville, is
a general mechanical contractor in the building and construc-
tion industry . Its annual purchases of goods and materials
shipped to its facilities and locations in Indiana directly from
States of the United States, other than Indiana, exceed $50,-
000 in value.
Bauer Bros. General Contractors, Inc., a Delaware corpo-
ration with offices in Belleville, Illinois, and Evansville, In-
diana, is a general contractor in the building and construction
trades industry . Its annual purchases of goods and materials
shipped to its facilities and locations in Indiana directly from
States of the United States, other than Indiana, exceed $50,-
000 in value.
Rust Construction Corp., with its principal office and place
of business in Evansville, is a general contractor in the build-
ing and construction industry. Its annual purchases of goods
and materials shipped to its facilities and locations in Indiana,
directly from States of the United States other than Indiana,
exceed $50,000 in value.
Upon the foregoing undisputed facts the Trial Examiner
finds that the Evansville Chapter and its employer members
are now and have been at all time material herein, individu-
ally and collectively, employers engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. Associated
General Contractors of America, Inc., Evansville Chapter, etc.
(Local 90, United Brotherhood of Carpenters), 182 NLRB
No 29.
II THE LABOR ORGANIZATION INVOLVED
Local Union No. 103, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO (herein
called Local 103, or Iron Workers) is a labor organization
within the meaning of Section 2(5) of the Act, and Charles
Tremper, business agent for Local 103, is an agent within the
meaning of Section 2(13) of the Act.
' A complete list of the employer members of the Evansville Chapter is
attached to this decision as "Appendix A " (Not published )
' In each instance the dollar volume is for the 12 months prior to issuance
of the complaint , a representative period There was no dispute as to the
accuracy of the figures In an amendment to its answer , the Respondent
conceded the jurisdictional data that is set forth hereinafter in this decision
III THE ALLEGED UNFAIR LABOR PRACTICES
747
A. Background
The following background facts were conceded by all par-
ties and are not in dispute:
All journeymen iron workers and apprentices employed by
employer members of The Evansville Chapter within the ter-
ritorial jurisdiction of Local 103, exclusive of other employees
of said employers and all supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
On about April 1, 1967, Local 103 and the Evansville
Chapter executed a collective -bargaining agreement covering
the employees in the aforesaid appropriate unit. This contract
had an expiration date of March 31, 1970.
At all times since April 1, 1967, Local 103 has been the
duly designated bargaining agent for the employees in the
unit described above and, by virtue of Section 9(a) of the Act,
has been, and is now, the exclusive representative of all em-
ployees in the said unit for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours, and other terms
and conditions of employment.
B. Contentions of the Parties
The General Counsel alleges that on about February 11,
1970, the Evansville Chapter requested the Respondent, Lo-
cal 103, to bargain collectively and that since that time Local
103 has negotiated in bad faith by insisting on a nonmanda-
tory subject of bargaining. According to the General Counsel,
since about February 11, 1970, the Respondent has restrained
and coerced the Evansville Chapter and its members in the
selection of their representatives for the adjustment of juris-
dictional disputes , by insisting on bargaining and then strik-
ing on April 1, 1970, to compel the Evansville Chapter to
agree to a particular dispute resolving procedure. This last
would require the submission of jurisdictional disputes to the
Interim Joint Board for Settlement of Jurisdictional Disputes,
or the new National Joint Board, its successor, whose man-
agement representatives were not chosen or designated by the
Evansville Chapter. The General Counsel alleges that by this
course of action the Respondent violated Section 8(b)(1)(B)
and 8(b)(3) of the Act. The Respondent denies these allega-
tions in their entirety.
C. The Facts
Shortly after World War II, representatives of the craft
unions in the building and construction industry and of van-
ous contractor employers' associations established the Na-
tional Joint Board for Settlement of Jurisdictional Disputes
(herein National Joint Board). The latter remained in exist-
ence until September 1969. For many years the AGC was one
of the employer groups which was a party to the agreement
establishing this board and which had membership on it. As
a result, throughout the duration of this original joint board
the Evansville Chapter was bound by its decisions in jurisdic-
tional disputes. After its dissolution, what was known as the
Interim Joint Board was organized in the latter part of 1969
to take over its duties. In April 1970, the latter body was
replaced by a new National Joint Board.
However, neither the AGC nor the Evansville Chapter was
a party to the agreement establishing the Interim Joint Board
or the new National Joint Board and neither was represented
on either of these tribunals. Executive Director Walther tes-
tified that after the dissolution of the old National Board, the
Evansville Chapter sought to establish a local facility in the
Evansville area for resolving jurisdictional disputes. These
efforts were unavailing, for, according to Walther, representa-
tives of Local 103 refused to participate in any such discus-
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sions on the ground that the International Union would not
permit the local to be a party to an area board.
In the latter part of November 1969, Local 103 wrote to
the Evansville Chapter to request that negotiations for a new
contract be started in the near future . Early in February,
representatives of the Evansville Chapter and of Local 103
held their first bargaining session . Knoop testified at length
as to what occurred at this and at 13 subsequent meetings
which the parties held . His testimony was corroborated as to
several aspects of the negotiations by Walther and by other
witnesses called by the General Counsel , including the Re-
spondent Tremper who was called as an adverse witness.
Counsel for the Respondent conducted a lengthy cross-
examination of each of these individuals , but called no one to
testify for Local 103. Since the testimony of Knoop and
Walther , the principal witnesses for the General Counsel, was
credible, undenied , and uncontradicted , it serves as the basis
for most of the findings set forth below.
Meeting of February 11: At this conference the parties
agreed that in their bargaining sessions they would go
through the old contract , article by article and paragraph by
paragraph , and endeavor to reach accord by this process.
They further agreed that monetary items would be tabled for
the time being and that discussion of any other matters on
which there was no accord would be deferred until the last
of their conferences . Thereafter , and before the conclusion of
this meeting , agreement was reached on article I "Definition
of Employee ," article II "Employer 's Liability ," article III
"Area Limits" ( i.e., territory covered by the contract), article
IV "Declaration of Principles ," and a portion of article V
"Working Rules." There was no discussion as to any provi-
sion for the settlement of jurisdictional disputes.
Meeting of February 19: At this session the parties came to
an accord on several noncontroversial items. However, when
article VIII , on craft jurisdiction , was reached , the parties
were totally unable to agree . As written in the original con-
tract , this article provided as follows:
It is agreed that the jurisdiction of work covered by this
Agreement is that provided for in the Charter Grant
issued by the American Federation of Labor to the Inter-
national Association of Bridge , Structural and Orna-
mental Iron Workers, it being understood that the
claims are subject to Trade Agreements and final deci-
sions of the AFL-CIO, as well as the decisions rendered
by the National Joint Board for the Settlement of Juris-
dictional Disputes.
The parties to this Agreement are subject to and agree
to be bound by all decisions and awards made by the
National Joint Board for Settlement of Jurisdictional
Disputes with respect to all jurisdictional disputes which
may arise under this Agreement.
Knoop told the union representatives present that the Evans-
ville Chapter could not agree to a continuance of the forego-
ing provision because the original National Joint Board had
been dissolved and the AGC was not a party to the Interim
Joint Board , its successor . Business Agent Tremper, speaking
for the Iron Workers , declared that in order for the employers
to get a new contract they would have to provide for the
resolution of jurisdictional disputes by the Interim Joint
Board , or any successor board established to take its place.
Before the conclusion of the meeting, Knoop offered two
proposals on the jurisdictional dispute issue . One provided
that in the event of such a dispute, local representatives of the
parties would meet to settle the matter . The other proposal
provided that if the national AGC and the building and con-
Chapter and Local 103. No action was taken on either
proposal before the conclusion of the meeting.
Meeting of February 26.• At this session the employer repre-
sentatives proposed that the following clause be inserted in
the new contract:
The jurisdiction of work referred to in the wage classifi-
cation and elsewhere in this contract is the jurisdiction
of work claimed by the (Union) and in the event
a jurisdictional dispute arises, nothing contained herein
shall make it mandatory for the employer to accept the
claims of jurisdiction as being binding upon him. The
employer does not waive any of his rights by permitting
the inclusion of the jurisdiction of work in this contract.
This paragraph is in no way intended to interfere with
work that has definitely been established to be the work
of this trade and is merely inserted to protect the em-
ployer when two or more trades are claiming the same
work.
Immediately after the foregoing language was proposed the
union representatives rejected it.
Discussion of article VIII in the old contract was then
resumed. According to Knoop, he told Tremper and his as-
sociates that the employers could not accept the terms of the
old clause because neither the AGC nor the Evansville Chap-
ter had any representation on the Interim Joint Board or, at
that time, on any successor board. Knoop testified that Trem-
per's response to the employers' position was the declaration
that article VIII had to be included in the contract and that
"he could care less whether the AGC had representation on
the Interim National Joint Board, or any board.... ..
The next meeting was held on March 3 and another meet-
ing was held on March 16. From the record, however, it
appears that at both sessions the parties did little more than
to reiterate their respective positions on the issue of the In-
terim Joint Board. Walther credibly testified that at these two
meetings Temper declared that if the Evansville Chapter
would not agree to be a party to the National Joint Board,
Local 103 could not reach a contract with the Evansville
Chapter. Walther testified that in each instance, Tremper
stated that he was acting under instructions from the Interna-
tional President of the Iron Workers.
Meeting of March 31: At this conference, the parties began
with a consideration of article V on working rules. Since some
of the clauses in that article dealt with jurisdictional ques-
tions, the discussion quickly turned to article VIII. Knoop
asked Tremper if the Union was still insisting on the inclusion
of the latter in any new agreement . In reply, Tremper stated
that the position of Local 103 was unchanged and that his
Union had no intention of retreating on this issue. Thereafter,
Knoop asked Tremper, " ... are you saying we cannot have
a contract with Local 103 unless we are a party to the Joint
Board?" and Tremper replied, "That's correct."5 At this
point, Tremper again stated that in taking this position he
was acting on instructions from John Lyons, International
president of the Iron Workers.
During the course of the meeting Tremper also stated that
the Evansville Chapter only employed 15 percent of his mem-
bers and that for this reason he felt that the Chapter was not
a party with whom the Iron Workers should have to bargain.
In taking this attitude, Tremper, of course, appeared to pro-
pose a complete rupture of the negotiations Walther immedi-
ately disputed Tremper's claim and pointed out that the
Evansville Chapter had been the historical bargaining agent
for the contractors and had represented them for over 12
struction trades department , AFL-CIO, agreed to a volun- ' The foregoing quotation is from the credible, undemed testimony of
tary plan for the settlement of jurisdictional disputes, such a Joseph Vezzoso , a member of the negotiating committee for the Evansville
plan would be effective immediately as to the Evansville Chapter, who was present
LOCAL 103, ORNAMENTAL IRON WORKERS
years in their relations with Local 103. Thereafter, Walther
reiterated the Employers' opposition to article VIII on the
ground that the AGC was not a party to the Interim National
Joint Board. Tremper's response was that he "did not care
whether the AGC had representation on [the Interim Joint
Board]."6
Knoop testified that the session came to an end when he
made the statement that the meeting was getting nowhere and
that it was obvious that so far as article VIII was concerned
the parties had reached an impasse and could negotiate no
further. According to Knoop's credible testimony, at that
point "Mr. Tremper agreed with that statement and the meet-
ing was adjourned."
The old contract between the Employers and Local 103
expired at midnight on March 31. Local 103 struck the fol-
lowing morning. At the time of the hearing, the strike was
still in progress.
The collective-bargaining agreements which the Evansville
Chapter and its members had with 12 different unions expired
on March 31.On April 1, the members of all these unions quit
working. Walther testified, however, that the Evansville
Chapter received official notice of a strike only from Local
103 and one other union.' Subsequent to the outset of this
work stoppage and before the hearing in the present case, the
Evansville Chapter signed collective-bargaining agreements
with the Carpenters, the Bricklayers, and the Laborers.
After the strike began, the Evansville Chapter and Local
103 met for several further bargaining sessions. These meet-
ings were held on April 16, 21, and 28,8 May 5, 14, and 19,
and June 29. At none of these were the parties able to reach
accord on the jurisdictional dispute issue. On April 28, Local
103 proposed that as a substitute for article VIII, the parties
agree to include in the new contract that portion of what was
known as the Union's "General Working Rules" which
defined the jurisdiction of the Iron Workers. Walther and
Knoop immediately objected that this was an impractical and
unreasonable proposal because some of the work claims set
out by the Iron Workers in their "rules" were at odds with
the jurisdictional claims of other craft unions with whom the
employers also had contracts. The employer representatives
did, however, counterpropose that section 1 of the Union's
work rules could appear in the new contract if it was followed
by the qualifying phrase: "This is the jurisdiction of the Iron
Workers as indicated by them and is not necessarily agreed
to by the AGC as being solely their work." This counter-
proposal, however, was immediately rejected by Local 103.
Tremper and his committee insisted that the complete lan-
guage of section 1 of the work rules be adopted. At the
hearing Tremper testified that this would have been an ac-
ceptable alternative to article VIII of the old contract only if
it was adopted "in its entirety including the last sentence [of
section l] ." The last sentence to which he referred provided,
in substance, that any disputes over jurisdictional matters
would be resolved by the National Joint Board.
During the course of later meetings the employer repre-
sentatives made several proposals for a dispute resolving
clause which would establish a local board to settle jurisdic-
tional claims and provide for an appeal from its decisions Jo
the National Labor Relations Board. None of these proposals
was acceptable to Local 103.
As noted, in a prior section of this Decision, early in April
1970 a new National Joint Board was established. However,
° The quotation is from the credible testimony of Knoop
The latter was the Roofers Union
° Two meetings were held on April 28.
The quotation is from Tremper's testimony
749
the AGC and the Evansville Chapter were not parties to this
new board and had no representation on it.
On about April 29, the Building and Construction Trades
Council for Evansville held a special meeting . At this time the
union representatives present passed a resolution which
bound all unions affiliated with the Evansville Building
Trades Council to abide by the decisions of the new National
Joint Board, and which further provided, in relevant part,
that
... all Contractors shall be required to conform to all
decisions of the Joint Board regardless of whether or not
they are "stipulated" or whether or not they were
affiliated with an Association that is stipulated;10 and
... that no Craft affiliated with this Council shall work
for any Contractor who refused to comply with a deci-
sion of the Joint Board.
Charles Tremper has been the president of the Evansville
Building Trades Council for several years and was chairman
of the special meeting at which the foregoing resolution was
passed. At the hearing he conceded that the purpose of this
resolution was to get the AGC, Evansville Chapter, to agree
to the Joint Board method of resolving jurisdictional dis-
putes.
As found earlier herein, the parties agreed at the outset of
their negotiations to defer consideration of all monetary items
until after an accord was reached on other provisions of their
proposed contract. As a result, the employer representatives
did not make any proposal for a wage increase until the strike
had been in progress for several weeks. They then offered the
Iron Workers a three-step increase of 70 cents an hour each
year, for a period of 3 years, or an ultimate total raise of $2.10
an hour. This offer was summarily rejected by the leadership
of Local 103.
At the hearing, Tremper testified that Local 103 would no
longer insist on the Joint Board provision as the sole means
of resolving jurisdictional disputes and that it would accept
some other clause. However, he failed to specify what, pre-
cisely, would be acceptable. Moreover, he conceded that the
resolution of the Building Trades Council, described above,
was still in effect and had never been rescinded.
Throughout all meetings held subsequent to the strike, the
position of Local 103 remained as it had been before the work
stoppage: namely, that it would sign no agreement with the
Evansville Chapter unless there was a provision making man-
datory the referral of all jurisdictional disputes to the Interim
Joint Board, or its successor, the new National Joint Board.
Knoop credibly testified that at no time during the negotia-
tions, did either Tremper, or anyone representing Local 103,
ever abandon this demand for such a contractual provision.
In a news article which appeared in the Evansville Press for
May 14, 1970, a reporter wrote the story of an interview with
Tremper on the current strike of the Iron Workers. The
article quoted Tremper as having declared that up to that
point (May 14), Local 103 had not discussed wages with the
AGC and that, to the Iron Workers "this issue [of the Na-
tional Joint Board] ... is more important than money." At
the hearing in the instant matter, Tremper conceded that the
reporter had quoted him correctly as to the foregoing items.
10 In effect, this meant that it was irrelevant to the Building Trades
Council whether an employer, or his bargaining representative, was a party
to the new National Joint Board, or had representation thereon.
" Under the old contract, the top scale for iron workers was $6 15 an
hour.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D Concluding Findings
Upon the foregoing facts, the Trial Examiner concludes
and finds that the Respondent Union and its agent Tremper,
from February 11, 1970, and throughout the course of bar-
gaining with the Evansville Chapter, insisted that the latter
agree to the submission of jurisdictional disputes to the In-
terim Joint Board, or another body exclusively determined by
the Respondent, on which body none of the management
representatives was chosen or designated by the Evansville
Chapter. The Trial Examiner further concludes that on April
1, 1970, Local 103 struck to compel the Charging Party to
accept the Union's demand for such a provision in the new
contract.
Section 8(b)(1)(B) of the Act makes it an unfair labor
practice for a labor organization to restrain or coerce an
employer in the selection of his representatives for the pur-
poses of collective bargaining or the adjustment of grievances.
In bargaining to the point of impasse and then striking to
compel the Evansville Chapter to agree that- any jurisdic-
tional disputes be resolved by a board on which the Evansville
Chapter had no representation, the Respondent restrained
and coerced the Evansville Chapter in the selection of its
representatives for the purposes of collective bargaining and
the adjustment of grievances. The Respondent thereby en-
gaged in unfair labor practices within the meaning of Section
8(b)(1)(B). United Slate, Tile & Composition Roofers, etc.,
Local No 36 (Roofing Contractors Association of Southern
California), 172 NLRB No. 249; Painters District Council No.
36, AFL-CIO (Commercial Drywall Constructors, Inc.), 155
NLRB 1013, 1016-17; Operative Plasterers ; etc., Local No. 2
(Arnold M. Hansen), 149 NLRB 1264, 1267-68; United As-
sociation of Journeymen, etc., Local 525 (Federated Employ-
ers of Nevada, Inc.), 135 NLRB 462, 470-471.
The Respondent Union could, of course, propose that a
contractual term in any agreement provide for the resolution
of jurisdictional disputes by the Interim Joint Board, or the
new National Joint Board. On the other hand, since the
Charging Party was not a member of that board, or its succes-
sor, and had no representation on either such body, the Re-
spondent Union was not free to insist that such a provision
be included in any agreement, for, clearly, it was not a man-
datory subject for bargaining. N.L.R.B. v. Wooster Division
of Borg-Warner, 356 U.S. 342, 349; Metropolitan District
Council of Philadelphia, etc. (McCloskey and Company), 137
NLRB 1583, 1584.12 Consequently, the Trial Examiner con-
cludes and finds that by the Respondent Union's insistence on
the inclusion of such a provision to the point of impasse in
the negotiations, and thereafter by its strike to compel the
adoption of this proposal, Local 103 refused to bargain within
the meaning of Section 8(b)(3). Detroit Resilient Floor
Decorators Local 2265 (Mill Floor Decorators Local 2265)
11 In its brief the Respondent Union asserts that the subject of bargaining
which the Respondent insisted upon in this case is now, in the light of the
recent decision of the Supreme Court in Boys Markets, Inc v Retail Clerks,
90 S Ct 1583, a mandatory subject of bargaining A careful reading of that
decision fails to bear out the Respondent's contention In holding that
equitable relief should be available to protect arbitral procedures, Boys
Markets unquestionably enhanced the stature of arbitration That, however,
is far from the issue here The conventional provision for final and binding
arbitration of grievances provides that both parties have an equal voice in
the selection of the arbitrator That is in contrast with the situation in this
case where, as found above, the Respondent Union insisted throughout the
bargaining sessions on a provision that jurisdictional disputes be resolved by
a board on which the Charging Party had no representation
(Mill Floor Covering, Inc.), 136 NLRB 769, 770-772. South-
ern California Pipe Trade District Council 16 (Aero Plumbing
Co.), 167 NLRB 1004, 1008-09.
CONCLUSIONS OF LAW
1. AGC, Evansville Chapter, and its members, are employ-
ers and are engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 103 is a labor organization within the meaning of
Section 2(5) of the Act, and Charles Tremper is its agent,
within the meaning of Section 2(13) of the Act.
3. All journeymen iron workers and apprentices employed
by the employer members of AGC, Evansville Chapter,
within the territorial jurisdiction of Local 103, exclusive of all
other employees of said employers and all supervisors, consti-
tute a unit appropriate for the purpose of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. Local 103, at all times material herein, has been, and is,
the exclusive representative of all employees in the aforesaid
appropriate unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment, or
other conditions of employment.
5. By conditioning its signing of a collective-bargaining
agreement with AGC, Evansville Chapter, upon the latter's
acceptance of the Union's proposal for resolution ofjurisdic-
tional disputes, a provision that was not a mandatory subject
of bargaining, the Respondent Union has, since February 11,
1970, engaged in unfair labor practices within the meaning of
Section 8(b)(3) of the Act.
6. By bargaining with AGC, Evansville Chapter, to the
point of impasse and by striking, in an effort to obtain the
latter's agreement that jurisdictional disputes be resolved by
the Interim Joint Board, or the new National Joint Board, on
neither of which body the AGC, Evansville Chapter, had any
representative, the Respondent Union restrained and coerced
AGC, Evansville Chapter, in the selection of a representative
for the purposes of collective bargaining, and has engaged in,
and is engaging in unfair labor practices within the meaning
of Section 8(b)(1)(B) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section 8(b)(3)
by insisting on a nonmandatory contract provision to which
the Charging Party objected and further violated Section
8(b)(1)(B) by infringing on the Charging Party's selection of
bargaining representatives, it will be recommended that the
Respondent be ordered to cease and desist from such conduct
and take certain affirmative action in order to effectuate the
policies of the Act."
Upon the basis of the foregoing findings of fact and conclu-
sions of law and the entire record in the case, and pursuant
to Section 10(c) of the Act, the Trial Examiner hereby issues
the following:
[Recommended Order omitted from publication ]
11 In its brief the Charging Party requests that the remedy in this case
should include money damages in the form of payments to all members of
the AGC, Evansville Chapter, who have been damaged by the Respondent
Union's unlawful refusal to bargain This request, however, must be denied,
for the Board has held that it does not have the statutory authority to direct
such relief Ex-Cell-O Corporation, 185 NLRB No 20