Local 260, Wood, Wire and Metal Lathers Union

National Labor Relations Board - Board Decisions

Apr 11, 1977

228 N.L.R.B. 1347 (N.L.R.B. 1977)

LOCAL 260, WOOD, WIRE AND METAL LATHERS UNION 1347
Local 260 of the Wood , Wire and Metal Lathers
International Union, AFL-CIO and Associated
Plastering and Lathing Contractors of San Diego.
Case 21-CB-5657
April 11, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On November 16, 1976, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
witnesses, and to argue orally. Briefs, which have been
carefully considered, were filed on behalf of General
Counsel, Respondent, and Charging Party.
Upon the entire record, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Association, with an office and place of business in San
Diego, California, is, and at all times material herein has
been, an association comprised of various employers and
engaged primarily in collective bargaining for, and negoti-
ating collective-bargaining agreements on behalf of, its
employer-members.
Employer-members of Association are engaged in busi-
ness primarily in San Diego County, California, as
plastering and lathing contractors in the building and
construction industry and, in the aggregate, annually
purchase and receive supplies valued in excess of $50,000
directly from suppliers outside the State of California.
I find that the employer-members of Association are, and
at all times material herein have been, employers engaged
in commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent , Local 260 of the
Wood , Wire and Metal Lathers International Union,
AFL-CIO, its officers , agents , and representatives,
shall take the action set forth in the said recommend-
ed Order.
DECISION
STATEMENT OF THE CASE
RUSSELL L . STEVENS , Administrative Law Judge: This
matter was heard at San Diego, California, on September
21, 1976 . 1 The complaint ,2 issued July 8 , is based on an
original charge filed April 26 by Robert C. Scott, an
individual, and an amended charge filed on July 7 by
Associated Plastering and Lathing Contractors of San
Diego, hereinafter referred to as Association . The com-
plaint, as amended, alleges that Local 260 of the Wood,
Wire and Metal Lathers International Union , AFL-CIO,
hereinafter referred to as Respondent, violated Section
8(b)(3) and Section 8(b)(1)(B) of the National Labor
Relations Act, as amended , hereinafter referred to as the
Act.
All parties were given full opportunity to participate, to
introduce relevant evidence , to examine and cross -examine
1 All dates hereinafter are within 1976, unless stated to be otherwise.
228 NLRB No. 179
Local 260 of the Wood, Wire and Metal Lathers
International Union, AFL-CIO is, and at all times material
herein has been, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
This case involves five groups, consisting of two
associations and three union locals. The employer groups
are Association and an organization named San Diego
Contracting Lathers Association (herein called Lathers
Association). The union locals are Respondent (Lathers
Local), Local 346 (Plasterers Local), and Local 89
(Laborers Local).
On September 2, 1970, Anthony La Russa (La Russa),
then president of Association, sent a letter to H. J. Sullivan
(Sullivan), business manager of Respondent at times
relevant herein. The letter reads as follows:
YOU ARE HEREBY NOTIFIED THAT THE ASSOCIATED
PLASTERING AND LATHING CONTRACTORS DESIRE TO
REOPEN THE LABOR CONTRACT BETWEEN YOUR LOCAL
UNION AND THE MEMBERS OF THE ASSOCIATED
CONTRACTORS IN ACCORDANCE WITH THE TERMS OF SAID
CONTRACT FOR THE PURPOSE OF NEGOTIATING WAGES,
FRINGE BENEFITS AND OTHER PROVISIONS.
IT IS THE SPECIFIC INTENT THAT ANY BENEFITS
DERIVED SHALL NOT TAKE EFFECT BEFORE I MAY 1971 OR
THEREAFTER.
2 As amended on July 26 by substitution of a new par. 5
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER DESIRED THAT , WITH YOUR APPROVAL,
A COMMITTEE COMPOSED OF ONE MEMBER FROM LOCAL
260, LOCAL 89, AND LOCAL 346, MEET WITH Two
MEMBERS FROM THE ASSOCIATED PLASTERING & LATHING
CONTRACTORS, AND ONE MEMBER FROM THE LATHING
CONTRACTORS ASSOCIATION IN AN ATTEMPT TO REACH
AGREEMENT. SHOULD SAID COMMITTEE FAIL TO AGREE
WITHIN A REASONABLE TIME, THEN THE FULL AND USUAL
COMMITTEES SHOULD MEET TO ATTEMPT AN AGREEMENT.
SAID MEETING IS REQUESTED TO BE HELD THURSDAY,
SEPT . 10, 1970 AT 7:30 P.M. AT 4027 EL CAJON BLVD., SAN
DIEGO.
IT IS OBVIOUS THAT A SMALL COMMITTEE CAN REACH
MUTUAL THINKING IN AGREEMENT SOONER THAN A
LARGE GROUP, AND, OF COURSE, ANY AGREEMENT MUST
GO BEFORE ALL PARTIES FOR RATIFICATION.
Following negotiations attended by representatives of
the two employer associations and the three union locals
described above, a bargaining agreement was signed for
said five groups effective May 16, 1971, as revised July 1,
1972.3 The agreement is embodied in a single folder, but it
consists of three separate parts. One part is an agreement
between Association and Local 89, covering the plastering
industry. The second part is an agreement between Lathers
Association and Respondent, covering journeymen lathers
and apprentices. The third part is an agreement between
Association and Local 346, covering the plastering indus-
try. The three agreements are signed separately by
representatives of the five groups involved.
All five groups negotiated in 1974 for a new agreement,
with the format for negotiations being the same as in 1971.
Each group had one or more representatives at negotiation
sessions , and the sessions were held at the offices of Local
89. The result of the negotiations was a single agreement,4
stated to be by and between Association and Lathers
Association, and Locals 260, 346 and 89. Term of the
agreement is May 8, 1974, until 2 years thereafter, with
year-to-year continuance after May 8, 1976, unless termi-
nation notice is given 60 days in advance. Twelve
representatives of all five groups signed the agreement.
On February 4, 1976, Sullivan sent a letter to Associa-
tion, reading as follows:
In accordance with Article XXI of our present
contract, "Term Termination and Renewal," we are
hereby notifying you of our intention to terminate the
Agreement between the San Diego Contracting Lathers
Association and the Wood, Wire & Metal Lathers
International Union, AFL-CIO, Local 260. Date of
termination is April 30, 1976.
This notification to cover all participating members
of the San Diego Contracting Lathers Association and
all independent Lathing and Lathing & Plastering
Contractors now signatory to the 1974-1976 Wood,
Wire & Metal Lathers Local 260 Bargaining Agree-
ment.
The above letter was received by Robert Scott, Associa-
tion's president elected in November 1975.
Scott held a meeting in Association's office the first week
of March, to discuss matters to be taken up with the three
local unions as a result of Sullivan's letter of contract
termination dated February 4. The meeting was attended
by Scott, Dana Johnson (Johnson, president of Lathers
Association), La Russa, and two other representatives from
Association. Those present discussed specific proposals to
be presented to the three local unions, as well as proposed
contract changes and negotiation strategy. The meeting
lasted 3 to 4 hours, at the close of which the two
associations were in accord relative to their positions at the
anticipated negotiation sessions.
By letter dated March 8, 1976, Local 89's business
manager advised Scott of the date for commencement of
negotiations. The letter reads as follows:
With reference to our telephonic conversation held this
morning and our previous notice dated March 3, 1976,
advising of meeting scheduled for March 17, 1976, for
negotiations between the Associated Plastering and
Lathing Contractors and the Lathers' Local # 89,
PLEASE NOTE THAT THE MEETING DATE IS
HEREBY CHANGED TO:
NEW DATE: THURSDAY, MARCH 18, 1976
TIME: 7:30 P.M.
PLACE : Conference Room
LABORERS ' INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL NUMBER 89
4161 Home Avenue
San Diego , California 92105
All employer-members of Association received a notice
similar to General Counsel's Exhibit 4.
The meeting was held as scheduled on March 18,
attended by representatives of Association, Local 346, and
Local 89 . Neither the Lathers Association nor Local 260
was represented, although they were notified in advance of
the meeting.
Representatives of Association , Local 346 , and Local 89
met again on March 30. Neither the Lathers Association
nor Local 260 was represented , although they were notified
in advance of the meeting.
On April 8, Scott sent a letter to Sullivan, reading as
follows:
I AM IN RECEIPT OF YOUR FEBRUARY 4, 1976
COMMUNICATION WHEREBY YOU PROVIDED OUR
ASSOCIATION WITH NOTICE OF YOUR INTENT TO
TERMINATE THE AGREEMENT BETWEEN YOUR UNION AND
OUR ASSOCIATION AS OF APRIL 30, 1976.
PLEASE BE ADVISED THAT THE ASSOCIATED PLASTERING
& LATHING CONTRACTORS OF SAN DIEGO HEREBY
REQUESTS YOUR UNION TO ENGAGE IN COLLECTIVE
BARGAINING PRIOR TO THE EXPIRATION OF THE CURRENT
AGREEMENT ON APRIL 30, 1976. THE ASSOCIATED
PLASTERING & LATHING CONTRACTORS OF SAN DIEGO IS
THE DULY DESIGNATED EMPLOYERS BARGAINING AGENCY
3 Resp . Exh 2 4 G C Exh. 2
LOCAL 260, WOOD, WIRE AND METAL LATHERS UNION 1349
FOR THOSE LATHING CONTRACTORS WHOSE NAMES
APPEAR IN EXHIBIT A ATTACHED HERETO AND
INCORPORATED HEREIN BY REFERENCE. THOSE
CONTRACTORS, LISTED IN EXHIBIT A, REPRESENT IN
EXCESS OF 80% OF THE MAN-HOURS WORKED BY LATHERS
ACCORDING TO THE RECORDS KEPT BY THE SAN DIEGO
LATHING & PLASTERING TRADE PROMOTION TRUST.
OUR ASSOCIATION STANDS READY, WILLING AND ABLE
TO IMMEDIATELY COMMENCE MEANINGFUL COLLECTIVE
BARGAINING WITH YOUR UNION AT THE EARLIEST
OPPORTUNITY. I WILL BE CONTACTING YOU PERSONALLY
BY TELEPHONE SO THAT A DATE FOR MEANINGFUL
BARGAINING MIGHT BE SET AT A MUTUALLY AGREEABLE
TIME.
Sullivan did not reply to the letter.
On April 12 Scott talked with Sullivan on the telephone
and asked that Sullivan negotiate with the other parties
involved, since Association represented contractors em-
ploying lathers who constituted more than 50 percent of
reported lath work hours in the unit area. Sullivan at that
time was about midpoint in his separate negotiations with
Lathers Association, and he advised Scott that he was
negotiating with Lathers Association, that he would not
bargain with Association, and that individual employers
had the "right" to bargain with Local 260.
On April 30 Scott sent a telegram to Sullivan, reading as
follows:
DUE TO THE FACT THAT THE LABOR AGREEMENT NOW IN
EFFECT BETWEEN ASSOCIATED PLASTERING AND LATHING
CONTRACTORS OF SAN DIEGO AND YOUR UNION LOCAL
NUMBER 260 OF WOOD WIRE AND METAL LATHERS
INTERNATIONAL UNION AFL-CIO EXPIRES AT 1201 AM MAY
1, 1976 I URGENTLY REQUEST AN IMMEDIATE MEETING
WITH APPROPRIATE OFFICERS OF LOCAL NUMBER 260 TO
NEGOTIATE A SUCCESSOR AGREEMENT. IMMEDIATE
ACTION IS REQUESTED TO RESOLVE THE PRESENT IMPASSE
BETWEEN LOCAL NUMBER 260 AND OUR ASSOCIATION.
ANY REFUSAL TO WORK AT THIS TIME WOULD BE IN
VIOLATION OF SECTION 8D AND 8B-3 OF THE NATIONAL
LABOR MANAGEMENT RELATIONS ACT OF 1947 AS
AMENDED. OUR ASSOCIATION REAFFIRMS ITS POSITION
THAT IT IS READY WILLING AND ABLE TO ENTER INTO
MEANINGFUL COLLECTIVE BARGAINING AS SOON AS
POSSIBLE . PLEASE CONTACT ME TO SET UP A MEETING
DATE FOR NEGOTIATIONS. ANY STRIKE OR ANY OTHER
ECONOMIC COERCION BY YOUR UNION AT THIS TIME WILL
BE VIEWED BY OUR ASSOCIATION AS A VIOLATION OF THE
LABOR MANAGEMENT RELATIONS ACT.
ASSOCIATED PLASTERING AND LATHING CONTRACTORS
BY ROBERT C SCOTT, PRESIDENT
Prior to May 3 Scott, La Russa, and others learned that
the Lathers Association and Local 260 had reached an
agreement and on that day Scott, La Russa, and one other
Association representative went to Sullivan's office to
obtain details of the agreement. Sullivan explained con-
5 This statement is from La Russa's credited testimony The testimony
was not denied by Sullivan
6 Id
7 Id
tractual changes and said he had short-form contracts that
each contractor-member of Association could sign if they
so desired. Sullivan refused Scott's request to sign for
Association as a group, and said that, if short-form
agreements were not signed individually, "he had pickets
available." 5
La Russa, Scott, and others met again with Sullivan on
May 4 at Association's office. Sullivan made the same
statements he made May 3, and further stated that pickets
would go out the following day if short-form agreements
were not individually signed by contractors .6 La Russa
signed separately for his company because he was "afraid I
may have got pickets on my job." 7 Scott and all other
Association members who employ lathers ultimately signed
individual short-form agreements. Scott credibly testified
that he so signed in order "to not leave our job shut down
by the use of pickets. 8
Issues
The two principal issues are whether Local 260 was a
member of a multiemployer bargaining group at times
relevant herein, and, if so, whether Local 260 timely gave
notice of withdrawal from such group.
A. The Multiemployer Group
1. The 1971 agreement
General Counsel argues that, as far back as 1971,
Respondent "tacitly recognized the Charging Party [note:
Association]" as a necessary party to negotiations because
many members of Association employed lathers.
Evidence and testimony introduced by General Counsel
in support of his theory is sketchy and incomplete.
However, when the testimony of Sullivan is added to that
evidence and testimony, the record becomes a little clearer.
La Russa's letter of September 2, 1970, to Sullivan,
quoted above , states a "desire to reopen" the existing
contract between Association and Local 260, and proposes
a committee of one person each from the five groups
involved herein. That letter by its terms was written upon
the assumption of an existing multiemployer and multiun-
ion bargaining agreement. The letter was introduced by
Respondent and was not challenged.
Negotiations following La Russa's letter briefly were
described by Sullivan:
Q. Did you participate in negotiations for a
collective bargaining agreement with the Lathers
Association in 1971?
A. I did.
Q. And where were those negotiations held, if you
recall?
A. Primarily at the Local 89's hall in San Diego.
Q. And who participated in those negotiations?
And by "who," I mean at this point what organizations,
as best you can recall.
8 Although the total number was not established, Scott credibly testified
that at least two or three employers are members of both Lathers
Association and Association.
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, there was Local 346, Local 89, Local 260;
there was the Lathing Association and the Associated
Plastering Contractors.
Q. Do you recall approximately how many sessions
there were in 1971?
A. I - I'd estimate about four. It's a long time ago.
Q. And was there an agreement signed between
Local 260 and the Lathing Association in 1971?
A. There was.
An we sat down in a room and primarily the three
crafts negotiated an agreement with tabs, and each one
of us signed our own separate thing. We each paid for
or had an agreement completely worded, all duplica-
tion, and et cetera.
As to primarily the language that covers all three
crafts. And the same foremat was done in 1974, with
the exception that we put it all in one cover and we all
signed as separate identities on one page.
There was the understanding, I think, at the time of
both negotiations that that was the way it was. We
negotiated with out own separate bargaining units; but
we did discuss it in one single room, rather than to have
three rooms and run down the hall, which has been
some of the cases in the past where there was that type
of negotiations; and that's primarily what - what
happened.
There has never been any direct negotiations with
the Plasterers Association and between Local 260.
The three agreements negotiated in 1971 contain provi-
sions of mutual adoption .9
There is nothing in the record to show that any party, or
any member of Association or Lathers Association,
opposed the 1971 group bargaining arrangement, or
expressed a desire to bargain separately. It is quite clear
that the three agreements freely and voluntarily were
entered into - a consensual arrangement is apparent.io
Respondent argues that "Local 260 never consented to
bargaining on a multi-Employer basis with" Association,
but the only support given for that argument is Sullivan's
statement to that effect. In view of Sullivan's actions
clearly showing his intent to bargain with Association in
1971, his testimony on this point is not credited.
The only question is whether existence of three separate
1971 agreements negates an intent of the parties to
negotiate as a group. Review of the three agreements and
their mutually binding provisions referred to above, their
provision for a common trust fund, and their provisions for
short-form agreements to be used for independent contrac-
tors, shows an intent of all participants to be bound
together, making allowance for individual agreements on
subjects of individual union concern. Without such intent
there would be no reason for participants to meet and
9 Art XIX of Local 89's agreement , art XXIV of Local 260's agreement,
art. XXII of Local 346's agreement.
10 New York Transfer & Storage Co, 107 NLRB 139 (1953).
11 The Kroger Co, 148 NLRB 569 (1964). See also The Evening News
Association, d/b/a Detroit News, 119 NLRB 345 (1957); Balaban & Katz, 87
NLRB 1071 (1949)
12 Local 1205, International Brotherhood of Teamsters, Chauffeurs,
negotiate together, as they plainly did. This same situation
prevailed in The Kroger Co.,11 wherein the Board stated (at
573):
The necessary implication of this argument is that in
multiemployer bargaining a union and an individual
employer member of the group are automatically
precluded from negotiating separately on limited
matters of peculiar concern to the individual employer,
unless such employer withdraws from the group. This is
patently unrealistic. The problems of each member of a
multiemployer group are understandably not always
identical. While it may be to the best interest of the
employers and labor organizations involved to bargain
as a group about all matters of general concern-the
obvious reason for the formation and continuation of
any multiemployer unit-it may likewise be in the best
interest of all concerned not to burden the group
negotiations with the limited problems of an individual
employer. Hence, we do not believe that the exercise of
a mutually recognized privilege to bargain individually
on limited matters, as in the present case, is inconsistent
with the concept of collective bargaining in a multiem-
ployer unit. Moreover, to hold such limited separate
bargaining invariably negates the existence of or
destroys an established multiemployer bargaining unit
would be to grant to an employer all the benefits of
multiemployer bargaining without assuming any of its
concomitant obligations.
The fact that the party here attempting withdrawal from
group bargaining is a union, rather than an employer, is
immateria1.12
Based on the foregoing it is well established in the record,
and found that the five organizations named above
consented and agreed to, and did, in 1971, bargain on a
multiemployer, multiunion basis.
2. The 1974 agreement
Sullivan, Scott, and La Russa testified that the 1974
negotiations generally followed the same format as those in
1971, and that representatives of all five groups attended
several negotiation sessions . There was some testimony
about separate caucuses during negotiations but that
testimony is not controlling, since it is apparent that
representatives of all five groups agreed upon a final
contract. Separate discussions about some matters of
separate interest were not shown to detract from the nature
of the agreement as a group document.13
The 1974 agreement is even more explicit than that of
1971, in showing an intent of all five groups to be bound by
collective bargaining. The agreement states, inter alia:
THIS AGREEMENT entered into this first day of
May 1974 by and between members of the Associated
Warehousemen and Helpers ofAmerica (New York Lumber Trade Association,
Inc.), 191 NLRB 917 (1971); and Brotherhood of Teamsters and Auto Truck
Drivers Local No 70 (Granny Goose Foods), 195 NLRB 454 (1972). Also
International Association of Bridge, Structural and Ornamental Iron Workers,
Local 625 (Construction Industry Bargaining Association of Hawaii), 211
NLRB 128 (1974).
13 The Kroger Co, supra.
LOCAL 260, WOOD, WIRE AND METAL LATHERS UNION
Plastering and Lathing Contractors of San Diego: San
Diego Contracting Lathers Association; for themselves
on behalf of their Signatory members, parties of the
first part, hereinafter referred to as the Employers
and
LOCAL 260 of the Wood, Wire and Metal Lathers
International Union, AFL-CIO; LOCAL 346 of the
Operative Plasterers and Cement Masons International
Association; LOCAL 89 of the Laborers' International
Union of North America: Who are signatory hereto for
themselves and for their various Craft Councils and
Local Unions which have jurisdiction over the work in
the territory hereinafter described, parties of the second
part, hereinafter referred to as the Unions.
WITNESSETH
PURPOSES:
WHEREAS, THE EMPLOYERS are engaged in
Lathing and Plastering work in San Diego County,
California, and WHEREAS, in the performance of
their present and future contracting operations the
EMPLOYERS are employing and will employ large
numbers of skilled and competent workmen from the
various UNIONS; and WHEREAS, the EMPLOYERS
desire to be assured of their ability to procure
employees for all work which they may do in the area
jurisdiction of each signatory union, in sufficient
numbers and skill to assure continuity of work in the
completion of their construction contracts; and
WHEREAS, it is the desire of the parties to establish
uniform rates of pay, hours of employment and
working conditions for the workmen employed by the
EMPLOYERS; and WHEREAS, it is the desire of the
parties hereto to provide, establish and put into practice
effective methods for settlement of misunderstandings,
disputes or grievances between the parties hereto to the
end that the EMPLOYERS are assured continuity of
operation and their employees are assured continuity of
employment, and industrial peace is maintained and
the business of the industry efficiently increased, NOW,
THEREFORE, in consideration of the premises and of
the respective covenants and agreements of the parties
hereto, each of which shall be interdependent, IT IS
HEREBY AGREED:
The recognition clause of the agreement provides in
pertinent part:
The EMPLOYERS hereby recognize the UNIONS
who are signatory hereto as the sole and exclusive
collective bargaining representatives of all employees of
the EMPLOYERS signatory hereto whom the
UNIONS have the work jurisdiction, as such jurisdic-
tion is defined herein. It is understood that the
UNIONS do not at this time, nor will they during the
term of this Agreement, claim jurisdiction over the
1351
following classes of employees: Executives, civil engi-
neers and their helpers, superintendents, assistant
superintendents, master mechanics, timekeepers, mes-
senger boys, office workers or any employees of the
EMPLOYER above the rank of foreman. Neither the
EMPLOYER nor any of the foregoing classes of
employees shall be permitted to perform any of the
work described in this Agreement as coming within the
work jurisdiction of the UNIONS signatory hereto.
The agreement by its terms is uniformly applicable to all
five groups, except in instances clearly delineated in the
agreement itself. Finally, the agreement is a single
document, signed by representatives of all five groups
involved herein.
Based on the group nature of the negotiations and the
wording of the resulting agreement signed by 12 represen-
tatives of the five groups, it is found that the 1974 contract
is a multiemployer, multiunion contract binding upon the
five groups signatory thereto.
B. Respondent's Withdrawal
The National Labor Relations Board established in
Retail Associates 14 the rule that, for a notice of withdrawal
to be effective, it must be timely and unequivocal. To be
unequivocal, "the decision to withdraw must contemplate a
sincere abandonment, with relative permanency, of the
multiemployer unit and the embracement of a different
course of bargaining on an individual-employer basis."
The first indication of any action by Respondent herein,
relative to its then-existing contract, was its letter to
Association quoted above, dated February 4, 1976.15 That
letter is in standard form and is almost identical to a letter
sent for the same purpose on February 4, 1974, to "all
signatory Lathing Contractors." Respondent does not
argue that the letter constitutes withdrawal. It is a letter
that relates solely to the contract, and has no reference to
the bargaining group.
On March 8 representatives of all five bargaining groups,
including Sullivan, were notified by letter of the first
negotiation session for the 1976 contract. The meeting was
held as scheduled on March 18, but Sullivan did not
attend. Scott testified that, when called by telephone,
Sullivan advised the other representatives that he would
not be able to attend because he was having a trust
meeting. Sullivan did not deny this testimony by Scott, and
Scott is credited. Thus, as of March 18, Sullivan had said
nothing to the other representative groups about his
withdrawing from the bargaining arrangement.
After March 18, Scott continued to negotiate with Locals
346 and 89, and attempted to bring Sullivan into the
negotiations, but without success . Finally, on April 12,
Sullivan for the first time stated to Scott that he would not
bargain with Association and that he would bargain only
with individual employers. Thereafter, Scott continued to
urge Sullivan to negotiate, even though he knew Sullivan
and Lathers Association had reached an agreement and
that Sullivan was executing individual short-form contracts
with Lathers Association members.
14 Retail Associates, Inc, 120 NLRB 388 (1958).
15 Respondent's letters to the Mediation Service, Resp Exhs. 3 and 4, are
considered to have no probative value
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear from the record thus made that Respondent's B. Definitions:
repudiation of the past bargaining arrangement was not
timely and unequivocal. It first was stated after negotia-
tions had begun; thus the repudiation was outside the rules
enunciated in Retail Associates, supra. It cannot reasonably
be argued that Association acquiesced in Respondent's
actions, since Scott continued to exert efforts to bring
Respondent back into group bargaining, even after it was
known that Respondent had come to an agreement with
Lathers Association.
C. The Alleged Threat To Picket
Scott testified that, during a meeting on May 3 with
Sullivan, La Russa, and one other in attendance, Sullivan
stated that, if Association members did not individually
sign short-form agreements with Local 260, they would
"face the possibility of having pickets on our jobs." Scott
said the same group, plus one other person, met with
Sullivan on May 4, and Sullivan again stated that
Association members must sign short-form agreements or
"he would prepare to picket on the next day." Scott said he
signed in order "to not have our job shut down by the use
of pickets." La Russa corroborated Scott's testimony and
also said he signed rather than be picketed.
Sullivan did not deny the foregoing testimony, and Scott
and La Russa are credited.
Respondent's withdrawal being in violation of the Act, as
discussed above, the foregoing conduct by Sullivan clearly
is coercion of Association employer-members in the
selection of their bargaining representative, and is in
violation of the Act.16
D. The Unit
General Counsel amended the complaint herein to allege
that the following is the appropriate unit:
5. All employees employed by the employer-members of
the Association engaged in the performance of lathing
work in the geographical area south of a line bisecting Del
Mar at the center, between the southern and western
boundaries and running eastward to El Centro, California,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
The 1974 contract contains the following provisions, which
essentially are the same as those found in the 1971
contracts:
ARTICLE I
COVERAGE
A. This Agreement shall apply to and cover all
employees of the EMPLOYERS employed to perform
or performing Lathing and Plastering work, as such
employee and Lathing and Plastering work are respec-
tively more particularly defined hereafter in Article IX,
sub-sections thereunder of this Agreement, in the area
jurisdiction of each signatory union.
1. ASSOCIATION means the (1) Associated Plast-
ering and Lathing Contractors of San Diego (2) San
Diego Contracting Lathers Association.
2. EMPLOYER(s) means members of the Associ-
ated Plastering and Lathing Contractors of San Diego
and the San Diego Contracting Lathers Association.
ARTICLE II
UNIONS RECOGNITION
A. The EMPLOYERS hereby recognize the
UNIONS who are signatory hereto as the sole and
exclusive collective bargaining representatives of all
employees of the EMPLOYERS signatory hereto over
whom the UNIONS have the work jurisdiction, as such
jurisdiction is defined herein. It is understood that the
UNIONS do not at this time , nor will they during the
term of this Agreement, claim jurisdiction over the
following classes of employees: Executives, civil engi-
neers and their helpers, superintendents, assistant
superintendents, master mechanics, timekeepers, mes-
senger boys, office workers or any employees of the
EMPLOYER above the rank of foreman. Neither the
EMPLOYER nor any of the foregoing classes of
employees shall be permitted to perform any of the
work described in this Agreement as coming within the
work jurisdiction of the UNIONS signatory hereto.
Respondent alleges that the unit sought by General
Counsel is inappropriate, and that argument is well taken,
if it is directed to the amended complaint.
Based on the contract of the parties, it is found that the
appropriate unit is:
All employees of members of Associated Plastering
and Lathing Contractors of San Diego, and San Diego
Contracting Lathers Association, except executives,
civil engineers and their helpers, superintendents,
assistant superintendents, master mechanics, timekeep-
ers, messenger boys, office workers or any employees of
said members above the rank of foreman, employed to
perform or performing lathing and plastering work in
the area jurisdiction of Local Unions Nos. 260 (lathers),
346 (plasterers) and 89 (laborers).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondent set forth in
section III, above, occurring in connection with the
activities of Association described in section I, above, have
a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
16 New York Lumber Trade Association, Inc, supra; Granny Goose Foods,
supra
LOCAL 260, WOOD, WIRE AND METAL LATHERS UNION 1353
V. THE REMEDY
It having been found that Respondent has violated
Section 8(b)(1)(B) and (3) of the Act, it will be recommend-
ed that it be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the
following:
CONCLUSIONS OF LAW
1. By demanding that certain employers bargain
directly with it instead of Association, by refusing to
bargain with Association as the representative of certain
employers herein, and by picketing and threatening to
picket said employers to force them to deal individually
with it, Respondent Local 260 has violated Section
8(b)(1)(B) and (3) of the Act.
2. The unit appropriate for collective bargaining is:
All employees of members of Associated Plastering
and Lathing Contractors of San Diego, and San Diego
Contracting Lathers Association, except executives,
civil engineers and their helpers, superintendents,
assistant superintendents, master mechanics, timekeep-
ers, messenger boys, office workers or any employees of
said members above the rank of foreman, employed to
perform or performing lathing and plastering work in
the area jurisdiction of Local Unions Nos. 260 (lathers),
346 (plasterers) and 89 (laborers).
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning 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 17
Diego, with the object of forcing said employer-members to
sign individual contracts with Local 260.
(c) In any other manner restraining or coercing members
of Association or any other employer in the selection of
their representatives for the purpose of collective bargain-
ing.
(d) Giving effect to, or seeking to enforce, contracts
executed in about May 1976 by Respondent directly with
members of Association, fixing the terms and conditions of
employees in the unit described above, or any extensions or
renewals thereof.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with Association,
its officers, agents, and representatives designated for that
purpose, with respect to wages, hours, and other terms and
conditions of employment of employees of members of
said Association who have designated Association for that
purpose, in the unit found appropriate for bargaining
purposes, and, if agreement is reached, embody the terms
in a signed contract.
(b) Post at Respondent's offices and places of business,
including meeting places for union members, copies of the
attached notice marked "Appendix." 18 Copies of said
notice, on forms provided by the Regional Director for
Region 21, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(c) Forward to members of Association who employ
employees in the unit found appropriate herein copies of
said notice for posting on their premises, if willing, signed
by an authorized representative of Local 260.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
The Respondent, Local 260 of the Wood, Wire and
Metal Lathers International Union, AFL-CIO, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith, upon request, with
Associated Plastering and Lathing Contractors of San
Diego, concerning the terms and conditions of employment
of employees in the following unit:
All employees of members of Associated Plastering
and Lathing Contractors of San Diego, and San Diego
Contracting Lathers Association, except executives,
civil engineers and their helpers, superintendents,
assistant superintendents, master mechanics, timekeep-
ers, messenger boys, office workers or any employees of
said members above the rank of foreman, employed to
perform or performing lathing and plastering work in
the area jurisdiction of Local Unions Nos. 260 (lathers),
346 (plasterers) and 89 (laborers).
(b) Picketing or threatening to picket employer-members
of Associated Plastering and Lathing Contractors of San
17 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.
18 In the event that the Board's 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT strike or threaten to strike any
employer-member of Associated Plastering and Lath-
ing Contractors of San Diego with the object of forcing
said employers to sign individual contracts with Local
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
260 of the Wood, Wire and Metal Lathers International
Union , AFL-CIO.
WE WILL NOT in any other manner restrain or coerce
members of the aforenamed Association or any other
employer in the selection of their representatives for the
purpose of collective bargaining.
WE WILL NOT give effect to , or seek to enforce, the
contracts executed in and about May 1976 by this
Union directly with members of the aforenamed
Association , fixing the terms and conditions of employ-
ees in the unit described below, or any extensions or
renewals thereof.
WE WILL bargain collectively, upon request, with
said Association , its officers, agents , and representa-
tives , designated for that purpose , with respect to
wages , hours , and other terms and conditions of
employment of employees of members of said Associa-
tion who have designated the Association for that
purpose , in the unit found appropriate for bargaining
purposes and, if agreement is reached , embody the
terms in a signed contract . The bargaining unit is:
All employees of members of Associated
Plastering and Lathing Contractors of San Diego,
and San Diego Contracting Lathing Association,
except executives, civil engineers and their help-
ers, superintendents , assistant superintendents,
master mechanics , timekeepers , messenger boys,
office workers or any employees of said members
above the rank of foreman , employed to perform
or performing lathing and plastering work in the
area jurisdiction of Local Unions Nos. 260
(lathers), 346 (plasterers) and 89 (laborers).
LOCAL 260 OF THE WOOD,
WIRE AND METAL
LATHERS INTERNATIONAL
UNION, AFL-CIO