Metropolitan District Council of Phila., etc.

National Labor Relations Board - Board Decisions

Jul 23, 1962

137 N.L.R.B. 1583 (N.L.R.B. 1962)

METROPOLITAN DISTRICT COUNCIL OF PHILA., ETC. 1583
payroll records , social security payment records, timecards , personnel records and
reports, and all other records necessary and useful to determine the amount of back-
pay . due and the.rights'of reinstatement under. the terms of this recommendation.
Upon the foregoing findings of fact, and upon the entire record in the case, the:
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union of Operating Engineers , Local Union # 150, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
2. By discriminating against Earl Whitworth in regard to his hire and tenure of
employment, thereby encouraging membership in the above-named labor organiza-
tion, the Respondent Company has engaged in and is engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(3) of the Act.
3. By interfering with , restraining , and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent Company has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act..
4. By attempting to cause and causing the Respondent Company to discriminate
against Earl Whitworth in violation of. Section 8(a)(3) of the Act, the Respondent
Union has engaged in and is engaging in unfair labor practices affecting commerce
within the meaning of Section 8(b) (2) of the Act.
5. By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, the Respondent Union has engaged in and is engaging in
unfair labor practices affecting commerce within the meaning of Section 8(b) (1) (A)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Metropolitan District Council of Philadelphia and Vicinity of
the United Brotherhood of Carpenters and Joiners of America,
AFL-CIO and McCloskey and Company. Case No. 4-CB-716.
July 28,196,
DECISION AND ORDER
On March 16, 1962, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and.
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
Thereafter, McCloskey, the General Counsel, the Respondent, and
one of the Intervenors I filed exceptions to the Intermediate Report
and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
Time General Building Contractors Association, Inc.. herein called the CCBCA, an enm-
ployer association whose members are located in the greater Philadelphia area, was
allowed to intervene in the proceedings herein. It was the GBCA that negotiated the
contract involved herein. The GBCA filed exceptions.
The National Contractors Association was also allowed to intervene. It submitted at
brief in support of the Trial Examiner's finding of a violation of Section S(b) (3).
137 NLRB No. 176.
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
,case, and adopts the findings and conclusions of the Trial Examiner
with the following additions and modifications.
The Trial Examiner failed to find, and we hereby find that, at all
times material herein, Respondent has been, and is, the representative
for the purposes of collective bargaining of a majority of the em-
ployees of McCloskey and Company in the unit found appropriate
by the Trial Examiner.
We agree with the Trial Examiner that Respondent conditioned its
signing of a final contract with McCloskey upon the latter's accept-
ance of the entire Industry Advancement Program (herein called
IAP), without alteration, and as a package. The Trial Examiner
found, and we agree, that because the IAP included provisions re-
lating to matters which are not mandatory subjects of bargaining,
Respondent's insistence upon inclusion of the IAP in its contract
with McCloskey constituted a refusal to bargain within the meaning
of Section 8 (b) (3) of the Act.2 Furthermore, we agree with the Trial
Examiner that McCloskey's acceptance of the IAP, in effect, would
have amounted to a designation of the GBCA as its collective-
bargaining representative with respect to the subjects included there-
in. While Respondent could propose such a designation, it could
not insist upon it. Accordingly, we find, for this reason also, that
Respondent's insistence upon inclusion of the IAP as a condition of
signing a contract with McCloskey, constituted a refusal to bargain
within the meaning of 8(b) (3). As Respondent picketed McCloskey
in an effort to obtain the latter's agreement to inclusion of the IAP,
we find that its conduct also violated Section 8 (b) (1) (B), which pro-
hibits a labor organization from restraining or coercing an employer
in the selection of its representative for the purposes of collective
bargaining.
As the Trial Examiner failed to make certain specific conclusions
of law, we hereby make the following :
CONCLUSIONS OF LAW
1. McCloskey and Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Metropolitan District Council of Philadelphia and Vicinity of
the United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is a labor organization within the meaning of Section 2 (5)
of the Act.
2 See Detroit Resilient Floor Decorators Local Union No 2265, of the United Brother-
hood of Carpenters and Jo7ners of America, AFL-CIO (Mall Floor Covering, Inc ), 136
NLRB 769
METROPOLITAN DISTRICT COUNCIL OF PHILA., ETC. 1585
3. All carpenters employed by McCloskey and Company within the
counties of Philadelphia, Delaware, Bucks, Montgomery, and Chester,
Pennsylvania, but excluding all other employees, guards, and super-
visors as defined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act.
4. Metropolitan District Council of Philadelphia and Vicinity of
the United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, at all times material herein, has been, and is, the exclusive rep-
resentative of all employees in the aforesaid appropriate unit for the
purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employment.
5. By conditioning its signing of a final contract with McCloskey
upon the latter's acceptance of the IAP as a package, which contained
provisions which are not mandatory subjects of bargaining, Respond-
ent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(b) (3) of the Act.
6. By conditioning its signing of a final contract with McCloskey
upon the latter's designation of the GBCA as its representative for
purposes of collective bargaining with respect to matters included in
the IAP, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b) (3) of the Act.
7. By picketing McCloskey in an effort to obtain the latter's agree-
ment to inclusion of the IAP, which contained provisions requiring
McCloskey to designate the GBCA as its representative for purposes
of collective bargaining with respect to matters included in the IAP,
Respondent has restrained and coerced McCloskey in the selection of
his representatives for the purposes of collective bargaining, and has
engaged in and is engaging in unfair labor practices within the mean-
ingofSection8(b) (1) (B) of the Act.
8. 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 has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Inasmuch as the Employer and the Respondent have already entered
into a current contract containing the provision which is in issue here
and with which the Employer is complying only under protest, we
shall order, the Respondent to cease and desist from insisting that the
Employer continue making contributions to the fund or otherwise
complying with that provision of the contract. We shall also order the
649856-63-vol . 137-101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent to cease and desist from insisting, in any other bargaining
negotiations with the Employer, upon inclusion of any other clause
or proposal which does not involve wages, hours, or other terms and
conditions of employment. We shall also order Respondent to cease
and desist from coercing or restraining the Employer in the selection
of his representatives for the purposes of collecting bargaining.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Metropolitan
District Council of Philadelphia and Vicinity of the United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, its officers,
agents, representatives, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain with McCloskey and Company as the rep-
resentative of McCloskey's employees in the unit found appropriate
herein.
(b) Refusing to bargain with McCloskey and Company by insisting
and demanding that McCloskey comply with the provisions in the
collective-bargaining agreement between the parties which require
contributions by McCloskey to the Industry Advancement Program.
(c) Refusing to bargain with McCloskey and Company by insisting
and demanding that McCloskey designate the General Building Con-
tractors Association as its representative for purposes of collective
bargaining respecting matters included in the Industry Advancement
Program.
(d) In any like or related manner, refusing to bargain collectively
with McCloskey and Company by insisting upon inclusion in any
collective-bargaining agreement of any clause or other proposal not
involving wages, hours, or other terms and conditions of employment.
(e) Coercing or restraining McCloskey and Company in the selec-
tion of its representative(s) for the purposes of collective bargaining.
2. Take the following affirmative action which the Board finds will
effecuate the policies of the Act.
(a) Notify McCloskey and Company in writing that it will not
insist upon contributions to the Industry Advancement Fund.
(b) Post in Respondent's business offices and meeting places, within
the counties of Philadelphia, Delaware, Bucks, Montgomery, and
Chester, Pennsylvania, copies of the notice attached hereto marked
Appendix." 3 Copies of said notice, to be furnished by the Regional
E In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
METROPOLITAN DISTRICT COUNCIL OF PHILA., ETC. 1587
Director for the Fourth Region, shall, after being duly signed by the
representative of Respondent, be posted by Respondent 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
by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Mail to the Regional Director for the Fourth Region copies
of the aforementioned notice for posting by McCloskey and Company,
it being willing, in places where notices to employees are customarily
posted. Copies of said notice, to be furnished by the Regional Director
for the Fourth Region, shall, after being duly signed by Respondent's
official representative, be forthwith returned to the Regional Director.
(d) Notify the Regional Director for the Fourth Region, in writ-
ing, within 10 days from the date of this Decision and Order, what
steps the Respondent has taken to comply herewith.
APPENDIX
N01ZCE TO ALL MEMBERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT refuse to bargain with McCloskey and Company
as the representative of McCloskey's carpenter employees in the
five county areas, excluding all other employees, guards, and
supervisors, by insisting and demanding that McCloskey comply
with the provisions in the collective-bargaining agreement with
the Metropolitan District Council of Philadelphia and Vicinity
of the United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, which require contributions by McCloskey to the
Industry Advancement Program, or any like or related program
that is not a mandatory subject of bargaining.
WE WILL NOT insist upon contributions by McCloskey and
Company to the Industry Advancement Program.
WE WILL NOT refuse to bargain with McCloskey and Company
as the representative of its employees by insisting and demand-
ing that McCloskey designate the General Building Contractors
Association as its representative for the purposes of collective
bargaining respecting matters included in the Industry Advance-
ment Program.
WE WILL NOT picket McCloskey and Company or in any like or
related manner coerce or restrain McCloskey and Company in the
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selection of its representative(s) for the purposes of collective
bargaining.
METROPOLITAN DISTRICT COUNCIL OF PHILA-
DELPHIA AND VICINITY OF THE UNITED BROTH-
ERHOOD OF CARPENTERS AND JOINERS OF
AMERICA , AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 1700 Bankers Securities Building, Walnut and Juniper Streets,
Philadelphia, Pennsylvania, Telephone Number Pennypacker 5-2612,
if they have any question concerning this notice or compliance with
its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding was heard on November 20, 21, 22, 28, and 29, 1961, at Phila-
delphia, Pennsylvania. A charge had been filed by McCloskey and Company on
May 26, 1961. The General Counsel had issued a complaint dated August 11, 1961.
In substance, the complaint, as amended, alleged that Metropolitan District Coun-
cil of Philadelphia and Vicinity of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, herein called Respondent or the Council, had
requested McCloskey to agree in advance that the latter would pay the same wage
and fringe benefits that would be agreed upon in negotiations between Respondent
and General Building Contractors Association, Inc., herein called GBCA. It is
further alleged that McCloskey, while expressing a willingness to accede to the
aforementioned request, regarding provisions of a contract, objected to the inclusion
therein of the "Industry Advancement Program," herein called IAP. The com-
plaint asserts that Respondent has demanded and insisted upon the inclusion of the
IAP in its contract with McCloskey and did strike and picket McCloskey's iobsites
in support of the aforementioned demand. Further alleged is the fact that McCloskey
is not a member of the GBCA and has not designated that organization as its
bargaining agent. The appropriate bargaining unit is alleged, in an amendment
to the complaint, to all carpenters employed by McCloskey in five named Penn-
sylvania counties, excluding all other employees, guards, and supervisors. Respond-
ent is alleged to be the collective-bargaining representative of said unit. Respondent's
conduct aforedescribed is alleged to constitute a refusal to bargain collectively and
restraint and coercion of McCloskey in the selection of its bargaining representative,
all violative of Section 8(b)(3) and (1) (B) of the Act.
Respondent, in its answer, denied the commission of any unfair labor practices
and filed a motion for a bill of particulars. Thereafter, the motion having been
referred to the Chief Trial Examiner by the Regional Director, an order with respect
to the aforesaid motion issued and the General Counsel served upon respondent a bill
of particulars. Respondent filed objections to the bill of particulars and moved for
a supplemental bill of particulars or for dismissal of the complaint. Respondent also
filed a supplement to the aforesaid objections and motion. GBCA, having success-
fully moved to intervene in the proceeding, thereafter filed a motion for a bill of
particulars. The General Counsel opposed the aforementioned objections and
motions. The National Contractors Association's motion to intervene was granted.
Respondent's objections to the bill of particulars and motion for a supplemental bill
or for dismissal of the complaint was denied as was the motion of GBCA for a bill
of particulars.' On November 3, 1961, the General Counsel issued an amendment
1 All of the aforedescribed motions and objections prior to the inception of the hearing
were ruled upon by Trial Examiner Arthur E. Reyman
METROPOLITAN DISTRICT COUNCIL OF PHILA., ETC. 1589
to complaint with respect to paragraph 5 thereof. Respondent filed with the Board
a request for special permission to appeal from order of the Trial Examiner granting
motion of the National Contractors Association for leave to intervene. Respondent
also filed a "Request for Special Permission To Appeal from Order of the Trial
Examiner Overruling Respondent's Objections to the Regional Director's Bill of
Particulars and Motion that the Regional Director Either File a Supplemental Bill
of Particulars or that the Complaint Be Dismissed." The Board granted both the
aforesaid requests for permission to appeal and denied both appeals. Respondent
filed request for special permission to appeal from part of the order of the Trial
Examiner in respect to Respondent's motion for a bill of particulars and from the
Trial Examiner's denial of Respondent's motion to amend said Trial Examiner's
order. The Board granted the request for special permission to appeal and denied
the appeal.
Upon conclusion of the hearing in which all parties participated, the Respondent
and the General Counsel made oral argument. The GBCA adopted and endorsed
the oral argument of Respondent. Thereafter, the General Counsel, Respondent,
the GBCA, and the National Contractors Association filed briefs with the Trial
Examiner which have been carefully considered?
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
McCloskey and Company is a Delaware corporation and maintains its principal
office and place of business in Philadelphia, Pennsylvania. The Company is
engaged in highway and building construction in several States of the United States.
During the past year, McCloskey, in the course and conduct of its business, per-
formed construction services valued at in excess of $1,000,000, of which services
valued at in excess of $100,000 were performed in States other than Pennsylvania
and Delaware.
At all times material, McCloskey has been and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. Background
The GBCA is an employer association whose members are contractors in the
building construction industry in the five county Greater Philadelphia area .3 This
association is a chapter of the Associated General Contractors of America and is
also a member of the Pennsylvania State Council of General Contractors. The
GBCA has two classes of members, 92 active members, consisting of general con-
tractors who undertake prime contracts to build a complete building, and 113
associate members who are subcontractors, material suppliers, and such. In the
above-mentioned geographical area about 75 percent in dollar volume of com-
mercial, industrial, and institutional building construction is performed by members
of the GBCA. There are approximately 400 contractors engaged in building con-
struction in the five county area who are not members of the GBCA but who have
contractual relations with the Respondent .4
McCloskey is a general contractor and one of the largest in the country. The
Company resigned from the GBCA in the latter part of the 1940's and has not since
rejoined that organization.
Respondent, District Council, is composed of delegates from local unions of
the Carpenters, in the five county area aforedescribed. These local unions do not,
in the building and construction area aforementioned, negotiate individual contracts
The Respondent and the GBCA filed a joint brief.
s The counties of Philadelphia, Delaware, Bucks, Montgomery, and Chester
'The focus of this case is, of course, upon the Respondent, the Carpenters District
Council, and its relationship with McCloskey, the Charging Party, and the GBCA The
GBCA has dealings with other building trades in the area as does McCloskey, a general
contractor.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between a local and an employer or between a local and an employer association.
The District Council, which is composed of delegates from the local unions in the
area, negotiates all contracts. The Council negotiates through a conference com-
mittee consisting of three delegates on the Council, plus the Secretary-treasurer of
the Council and the president of the Council.
Gray, secretary-treasurer and business manager of the District Council since
1952, testified credibly and without contradiction that he has been a member of
the Carpenters union in the area since 1942 and a delegate to the District Council
since 1948. During this period, commencing in 1942, Gray testified that he had
never heard of any contract negotiations between the Council and an individual
employer contractor nor, to his knowledge, had there been any individual contracts
between the Council and individual employer contractors. Contract negotiations and
the consummation of a contract took place between the Council and the GBCA.
The terms of the contract thus arrived at were subsequently communicated and
applied to individual employers, nonmembers of GBCA, by union representatives
or by employers calling the Council office to learn the results of the aforementioned
negotiations. The extent of the uniformity of application of the area contract be-
tween the Council and the GBCA is further illustrated by the application of or
the applicability of its terms to contractors, such as national contractors, who may
come into the five county area to perform construction work.5
In 1955 the GBCA and the Council negotiated and executed a contract for the
period from May 6, 1955, to April 30, 1957. By its terms the contract is made on
behalf of the parties, including the members of the GBCA and the local unions and
their members of the Carpenters union in the five county area, respectively. A list
of the employers covered by the contract is set forth in the contract. With respect
to employees covered, it is stated in the contract that it "shall apply to all persons
who perform any work within the jurisdiction of the Council and of the United
Brotherhood of Carpenters...."
Following the execution of the above contract with GBCA, Gray, according to
his credited testimony, instructed the union attorney to prepare contract forms con-
taining the same provisions as those in the GBCA contract. This was done and these
printed contracts were sent to individual contractors, in the area, who were not
members of GBCA. McCloskey received and executed one of these contracts. The
terms and provisions of the individual contracts, including McCloskey's, were the
same as those in the GBCA contract although the individual contracts stated that
the agreement was between the named individual contractor, e.g., McCloskey, and
the District Council, acting on behalf of all local carpenter unions in the five county
area. Among the identical provisions of the contracts, in addition to wages, hours,
and other terms and conditions, is a provision regarding apprentices. It is provided
and agreed that apprenticeship standards, training, and hiring are established and
administered by the GBCA and the Council acting through a joint committee. The
committee, inter alia, is to authorize the employment of apprentices "by properly
qualified employers"; to review and decide the qualifications of any employer who
may desire to employ apprentices in the Carpenters' Trade; to control the number
of apprentices to be employed "by any Contractor" and to regulate the number of
apprentices employed in the area "in accordance with proper needs of the industry";
to arrange for the transfer of apprentices from one employer to another "for any
reason which this Committee may deem proper"; and "to adopt any additional rules
or regulations which will enhance the quality of training or success of this program
to the benefit of the apprentice or the industry."
The situation described above regarding the 1955-57 negotiations and contracts
is also true for the period of May 1, 1957, to April 30, 1960. In short, the Council
and the GBCA negotiated and executed a contract for the last-mentioned period.
The terms of the contract were substantially the same as those of its predecessor
5 Typically, for many years, the Carpenters International Union (as well as other
International unions in the building trades) have had agreements with contractors in the
construction Industry who perform contracts throughout the United States Such con-
tracts, with minor variations in other respects, substantially provide that the contractor
agrees "to work the hours, pay the wages and observe the working conditions established
or agreed upon by the United Brotherhood of Carpenters and Joiners of America and the
recognized bargaining agency of the locality in which any work of our Company is being
done, with respect to journeymen carpenters employed by our Company No change is
to be made in the hours and wages in any locality and no conditions imposed other than
are enforced on all local firms. . . . Any provision of a local or area collective-bargaining
agreement which may be in conflict with the provisions contained herein shall be con-
sidered subordinate to this agreement. .. "
METROPOLITAN DISTRICT COUNCIL OF PHILA., ETC. 1591
except for such matters as higher wage rates etc. Again, printed copies of contracts
containing the same provisions as the GBCA contract were sent by the Council to
contractors who were not GBCA members. McCloskey received and executed such
a contract.6
On Council letterheads with mimeographed body and facsimile signature of Gray,
the nonmembers of the,GBCA, including McCloskey, received in 1960 the following
letter : 7
APRIL 12, 1960.
DEAR SIR: Enclosed herewith please find two (2) copies of our agreement,
effective May 1, 1960.
Both copies have been signed by our officers; one copy may be kept for your
files-but please sign the other copy and return it to us as soon as possible since
it is less than three (3) weeks until May 1st.
We are also enclosing, for your information, a printed copy of the Agreement
signed with the General Building Contractors Association.
The letter enclosures were, in addition to the GBCA contract, two copies of a
printed contract between the Council and the individual nonmember contractor, with
the name of the latter typed in. For our purposes the particular contractor is, of
course, McCloskey. As in the past, the GBCA contract and the individual contracts
contained the same provisions. However, the GBCA contract in "Article XVI,
Health and Welfare Fund; Industry Advancement Program" devotes approximately
19 printed pages to the details of the fund and the program. The same numbered
article and caption in the individual contracts consumes about 1 page and incorpo-
rates by reference the pertinent sections of article XVI of the GBCA contract.
Insofar as pertinent to the instant case, article XVI of the GBCA contract may
be described as follows: Commencing May 1, 1960, each "Employer" 8 is to make
monthly payments to the First Pennsylvania Banking and Trust Company, Trustee,
of 15 cents per hour for each hour worked when the employee is working in the field
of commercial, industrial, and institutional construction; when the work is in the field
of other types of building construction the payment is 10 cents per hour. "The Coun-
cil [Respondent] agrees that it will include in any collective-bargaining contract with
an employer for whom the Association [GBCA] does not act as the collective-
bargaining representative, if said contract covers the same work and jurisdiction as
covered in . . . this Agreement, provisions requiring such employer to make the
same payments to the trustee as are required [in this Agreement]. . . .
When an employer is paying 15 cents per hour pursuant to the above provisions,
the trustee is to allocate two-thirds of the payment to "Carpenters Health and Welfare
Fund of Philadelphia" and one-third "into the General Building Contractors, Inc.,
for the Industry Advancement Program hereinafter provided for." The aforemen-
tioned health and welfare fund is set up as a trust with detailed provisions. It is
administered by a board composed of an equal number of representatives selected
by the Respondent and GBCA. The board members are to serve without compensa-
tion from the fund.
It is provided in article XVI that the GBCA shall establish an Industry Advance-
ment Program, the TAP, financed as described above. The GBCA is the administrator
of the TAP. The GBCA may use the moneys paid into the IAP for meeting all costs
to the GBCA, including rent, salaries, office expense, legal expense, etc., for carrying
out "the following industry-wide activities" in the five county area "for the benefit
of the building and construction industry as a whole . and particularly for the
benefit of employers" making payment to the IAP.9 The listed activities aforemen-
tioned are:
In 1956 and 1957 McCloskey protested to the Council a provision of the contract re-
garding union work rules and In 1956 requested deletion thereof. Gray refused the
request on the ground that the Council considered the rules important to the rights of
its members and also because the Council was under obligation to sign no contract not
containing such rules McCloskey took substantially the same position in 1957
7 Although the record does not contain copies of contract transmittal letters In the
preceding years, It is a reasonable inference that the 1960 letter was fairly typical and
that communication between the Council and the nonmember contractors was as Indicated.
8 The word "Employer" with a capital "E" Is used in the GBCA contract to refer to an
employer member of the GBCA ; "Employer" with a small "e" refers to nonmember
employers.
8 Article V of the GBCA contract that we are describing deals with the apprentice pro-
gram. It refers to payments to be made from the IAP to finance the apprentice program
as receiving first priority regarding IAP funds. "The next order of piiorlty for expendi-
tures out of the [IAP's] fund shall be the payment of the Association's [GBCA] expenses
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Accident Prevention , such as the initiation and payment of costs of safety
programs to prevent accidents in the industry;
2. Apprenticeship training, such as the activities and expenditures provided
for in the apprentice program described elsewhere in the contract;
3. Education , such as creating and operating agencies for the benefit of the
industry, including "schools for Estimators , Construction Superintendents,
Foremen, and other supervisory personnel ." The Council may recommend for
review the names of candidates to attend any of said schools";
4. Research into new methods and materials for use in the industry and
establishing machinery for the proper assignment of work to particular trades
regarding such materials or methods;
5. Public relations , such as a public relations program for the benefit of the
industry in the area, particularly with respect to obtaining work in industrial
plants;
6. Industry relations with architects , engineers , building owners , govern-
ment officials , subcontractors , material and equipment suppliers , manufacturers,
and insurance and bonding companies;
"7. Labor relations-for example , to pay the compensation of the repre-
sentatives of the Association participating in collective bargaining negotiations
and grievance meetings with representatives of the various unions representing
the employees of the members of the Association ; to pay the compensation of
the representative or representatives of the Association in the presentation of
any dispute to an arbitrator , as well as Management 's share of the expenses
and compensation of the arbitrator ; to pay the expenses and compensation of
witnesses in any grievance or arbitration proceedings ; and to defray the ex-
penses of said representatives in connection with the foregoing services and
the cost of the Association of informative literature and other publications and
usual sources of information relevant to collective bargaining and the process-
ing of grievances , as well as the cost of disseminating such information among
the members of the Association and other employers in the building and con-
struction trades industry."
"8. Management participation in union Health and Welfare Funds and
similar funds-for example , to pay the compensation , and the necessary ex-
penses incurred in connection with their services as such , of the representatives
of the Employers upon the Board of Administration of the Health and Welfare
Fund, Carpenters Joint Apprenticeship Committee. .
"9. Market Development-for example , to educate industrial owners and
government awarding authorities and agencies to contract out construction
maintenance and repair work."
10. Standardization of contracts and specifications and working with archi-
tects to secure adequate specifications.
11. Disaster relief and civilian defense.
12. Providing security for or paying the premiums for surety bonds to secure
payments required under Article XVI.
for rent, salaries of staff and legal counsel , office expenses such as for office equipment,
printing, stationery and items in the nature thereof which the Association may incur in
carrying out its present usual activities plus items of a similar nature incurred in carry-
ing out the provisions of Section 4-, A, C, and D of Article XVI of this Agreement "
Although there were some changes in the 1961 GBCA contract , the only contract that
had been presented to McCloskey prior to the strike and picketing of May 1, 1961 , herein-
after described , was the independent contract of 1960 which incorporated the IAP provi-
sions of the GBCA contract . Gray told James McCloskey that the new (1961) GBCA
contract contained substantially the same I AP provisions as the 1960 contract There-
fore, at the time of the May 1 , 1961 , strike against McCloskey, the contract still con-
tained the provision that the IAP funds would be used not only to pay for the enumerated
TAP activities in the contract but also for GBCA's expenses in carrying out "its present
usual activities ." After the instant charge was filed the General Counsel brought the
foregoing to the attention of counsel for GBCA. At the hearing , the latter stated, with-
out dispute , that IAP funds had never been used to pay for the "present usual activities"
of GBCA. Also , at the hearing Respondent introduced a supplemental agreement and a
letter from the Council to GBCA, both dated July 25 , 1961, which embody changes in the
1960 contract as agreed to by Respondent and the GBCA in 1961. Among the changes
is the deletion of the above clause The 1961 contract eventually presented to and signed
by McCloskey does not manifest the last -mentioned change Further , James McCloskey
testified credibly that he had not received nor had he seen, prior to the hearing, the
July 25, 1961 , supplemental agreement or letter aforedescribed.
METROPOLITAN DISTRICT COUNCIL OF PHILA., ETC. 1593
Provision is made for the GBCA to spend IAP funds in the interest of the industry
in the area for purposes not specified above.
There are also some restrictions on the IAP. No money paid into the IAP may
be spent for lobbying for legislation opposed by the AFL-CIO, the Carpenters union,
or the District Council or for opposing legislation sponsored or favored by the afore-
named labor bodies. IAP money may not be paid as subsidies or payments to
contractors during or in connection with a strike or lockout. Nor may IAP funds
pay for litigation in a court or before an administrative agency against the Car-
penters union or the Council or its affiliates. The funds may not be used for pub-
licity or programs in support of management's position regarding pending or pro-
spective bargaining negotiations with the Council or in support of any activity
injurious to the Council or its locals.
The last section of article XVI, section 6, states:
In consideration of the Association having agreed to the establishment of
said Carpenters' Health and Welfare Fund of Philadelphia and Vicinity, the
Council hereby agrees, for itself and its affiliated local unions, and its successors,
that in all future Collective Bargaining Agreements between the Association and
the Council and/or its affiliated local unions and its successors, there shall be
included an Industry Advancement Program as herein established, so long as
there shall be a Health and Welfare Fund, and that, subject to the provisions of
Section 5 above, the amount allocated to said Industry Advancement Program
shall be at least five cents (5¢) per hour for each hour worked by each journey-
man (including foreman) and apprentice employed by said Employers.io
As has been indicated previously, the individual contract sent to McCloskey for
the period May 1, 1960, to April 31, 1961, provided that the Employer (McCloskey)
and the Council agree to be bound by the provisions "as they may from time to
time be amended" of the five sections of article XVI of the GBCA contract, de-
scribed above, "and by the analogous provisions of any successor collective-bargaining
agreement between the Council and said Association" regarding the health and
welfare fund and the IAP.
Following receipt of the individual contract and the GBCA contract, together
with the Council's April 12, 1960, letter of transmittal, James McCloskey, vice
president of McCloskey, wrote to Respondent on May 2, 1960. The McCloskey
letter stated that "the form of contract as submitted will not be executed by
McCloskey and Company, as employer," for the reasons, among others, as follows:
The reasons stated were that McCloskey is not and was not for many years a member
of GBCA; that McCloskey did not participate in and was not represented in the
contract negotiations; that McCloskey does not agree to the terms and provisions
of the proposed contract; that the provisions of the contract are in violation of law,
including Taft-Hartley and the anti-trust law; that the provision regarding the IAP
is illegal and in violation of law in that the bargaining for this type of provision is
permissive and not mandatory. The letter concluded, "you are assured, however,
that we are willing to negotiate regarding any legitimate collective bargaining issues
under the law."
Regarding subsequent meetings , in May 1960, between James McCloskey and
Gray, the record contains the testimony of James McCloskey, Gray, and Dooley,
assistant to Gray. McCloskey described only a meeting on May 23, 1960, at which
he and his attorney, Pannell , met with Gray and his attorney, Goldstein. Gray
describes a meeting on May 9 at which he, McCloskey, and Pannell were present;
10 On April 24, 1959, the Council had written a circular letter to all its employee mem-
bers. The letter referred to a referendum on new contract proposals arrived at between
representatives of GBCA and the Council The letter reminded the members that for
many years they had sought a health and welfare plan , it described the agreement of
the GBCA to set up such a plan and described the advantages of the plan from the stand-
point of the union members It was further stated in the letter that "In return the
General Building Contractors Association desires the Establishment of an Industry
Advancement Program, through which all the Employers will share the cost of improve-
ments needed in the industry . . . Some of the benefits that are expected to be derived
by both sides will be: 1 The Industry will be free from strikes for the next 2 years;
2. Surety bonds will guarantee contractors' payments [to the health and welfare fund and
the IAP] ; 3. Public Relations to acquire more work ; 4 Schools for Supervisory Personnel ;
5. Correct assignment of work and new materials to avoid jurisdictional disputes ; S. Pro-
motion of safety in the industry " The letter also referred to limitations on the IAP so
that "in no way [would it] ever be allowed to hurt the cause of Labor." [Emphasis
supplied ]
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another meeting on May 16 at which Gray, McCloskey, and Dooley were present
(Dooley corroborates Gray); and the meeting of May 23, 1960 , with Gray, McClos-
key, and their attorneys.
A careful consideration of the evidence satisfies me that the following synthesized
description of what transpired in May 1960 between McCloskey and Respondent is
accurate and I find accordingly.
There were three occasions , May 9, 16, and 23, when McCloskey and Gray met.
Other persons were present as described by Gray and McCloskey, above. The sub-
stance of McCloskey's position at the meetings was that the contract submitted to
it (McCloskey and Company) was illegal because of the IAP provisions for the
reasons stated by McCloskey in its May 2 letter . McCloskey was willing to sign
a contract, or the contract, containing all the terms of the submitted contract
including health and welfare but was not willing to accept the TAP provisions of
the contract.ll McCloskey was willing to pay its share of the cost of the apprentice-
ship program . Gray's position was that he wanted McCloskey to sign the contract.12
He stated that he wanted McCloskey to agree to all the provisions of the GBCA
contract .13 Gray said, in response to McCloskey's expressed willingness to contribute
to the apprenticeship program , that Gray, the Council, wanted all the programs and
activities enumerated in the GBCA contract including each of those in article XVI,
section 4 . Gray testified that he also asked McCloskey if he was willing to provide
each of the 12 enumerated items of the TAP program on pages 24 to 25 of the GBCA
contract. While I believe that Gray may have made such a statement , I regard the
statement, in context , and as I observed the witnesses and view the record, as a
rhetorical type of question in the course of Gray's arguing to McCloskey that the
latter should sign the individual contract submitted to him with the full GBCA IAP
provisions . I am unconvinced that Gray intended or manifested that he was pre-
pared to negotiate a separate contract with McCloskey embodying a separate
McCloskey IAP. Since I shall discuss this same aspect at a later point , it sufficies
to confine myself at this point to the above factual and conclusionary factual findings.
As above indicated, the May 1960 discussions between Gray and McCloskey were
inconclusive . The talks ended on some discussion to the effect that Gray and
Goldstein would or said that they would have to take up with the GBCA the position
advanced by McCloskey. Apparently this was never done , since , as Gray testified,
he felt that McCloskey would not agree to enter a contract with the Union pro-
viding all the provisions of the 1AP program . Thus terminated the 1960 contract dis-
cussion between the Council and McCloskey.
McCloskey never did sign the May 1960-April 1961 contract submitted to him
and had no written contract with the Council for this period. 'However, McCloskey
did pay its carpenters the wages of the GBCA contract and apparently operated
under the other provisions prevailing for the period , with the exception of the IAP.
McCloskey submitted reports to the Council, on forms provided , to show the names,
hours worked, and so forth , of its carpenters ; it informed the Council that the
reports were being submitted for information purposes in contemplation of a con-
tract to be arrived at with the Council providing for payments to the health and
welfare fund in the contract amount of 10 cents per hour . McCloskey struck from
the aforesaid reports any reference to the TAP and placed the moneys above referred
to in a separate bank account.14
On one or two occasions in the months prior to March 1961 , James McCloskey
spoke to Gray about the aforementioned health and welfare reports. Gray took the
11 The May 1960-April 1961 contract was the first contract containing either the health
and welfare or the TAP provisions.
"Gray testified that at the May 16 meeting he threw the individual contract ( the same
as had been mailed to McCloskey on April 12 ) on the table and said , "flow about signing
our contract;"
18 General Counsel's Exhibit No 4.
14 McCloskey was a member of the Employing Bricklayers Association and in 1959 was
a party to a contract between that Association and the Laborers Union District Council.
That contract provided for a Laborers health and welfare fund and the TAP, e g , the em-
ployer's payments of 15 cents per hour were to be allocated on a basis of two-thirds to the
health fund and one-third "unto General Building Contractors Association ( Industry
Advancement Program )." The above payments were to commence May 1 , 1900 . The TAP
is, of course , the same TAP as is contained in the GBCA contract with the Carpenters
District Council. On May 2, 1960 , McCloskey wrote to the Laborers District Council,
referring to a contract addendum submitted to it for execution , dated May 1, 1960
McCloskey stated its refusal to execute the instrument and gave its reasons, which were
the same as those stated in its letter of the same date ( May 2, 1960 ), considered above,
to the Carpenters District Council, regarding its contract.
METROPOLITAN DISTRICT COUNCIL OF PHILA., ETC. 1595
position that McCloskey should pay not only the health and welfare money but also
money for the IAP. On March 21, 1961, McCloskey sent to the Council a check
for approximately $8,400, covering health and welfare payments for the period
May 1960 through February 28, 1961.
2. The events of 1961
James McCloskey telephoned Gray on April 26, 1961, and asked him what con-
tract demands the Council was making that year in its negotiations with the GBCA.
Gray informed McCloskey of the demand for a wage increase and an increase in
health and welfare and apparently something about a pension increase. McCloskey
also asked whether or not there might be a strike in the industry and whether or not
the Council had taken a strike vote.
Gray telephoned James McCloskey on April 28, 1961, and said that a strike vote
had been taken, authorizing a strike if no agreement was reached with GBCA.
Gray also said that if McCloskey wrote the Council a letter agreeing to put into
effect, retroactive to May 1, 1961, any increase in wages or fringe benefits that might
be negotiated between the Council and GBCA, there would be no strike against
McCloskey and the carpenters would continue to work for him. A similar offer
was made to all other independents, i.e., the nonmembers of the GBCA.15 McCloskey
agreed to write such a letter.
Pursuant to the foregoing, McCloskey wrote and delivered manually to the office
of the Council, on April 29, Saturday, the following letter:
McCloskey ... in accordance with your suggestion ... desires to negotiate
a [contract] with the [Council] . effective May 1, 1961, providing for the
payment by us, on or after May 1, 1961, of the same wages and fringe benefits
. as shall be finally agreed upon by you in the [contract with the GBCA].
This employers' association, as you know, is not now and has not been the
collective bargaining representative of McCloskey-
Such [contract] . . . shall not contain any provision regarding an Industry
Advancement Program or for the making by McCloskey . . . of any payments
into an Industry Advancement Fund or similar fund.
We are ready and willing to negotiate regarding any other legitimate
collective bargaining issue. .. .
The letter is written, at your suggestion with your assurances, . that there
will be no work stoppage, insofar as McCloskey-is concerned, so long as
negotiations . . . [between the Council and GBCA for a new contract are
continuing].
On Monday, May 1, 1961, the Council placed pickets at all McCloskey jobs in
Philadelphia.16 No carpenters on these jobs went to work or continued to work
when the pickets appeared.17 Some of the other building trades worked at three
of the jobs where the pickets had not appeared until after the commencement of
work. James McCloskey was told, on May 1, by the manager of the Building Trades
Council that the Council was not supporting the Carpenters' picket line.18
As soon as James McCloskey, on the morning of May 1, became aware of the
aforementioned picketing, he testified that he endeavored to contact Gray by tele-
phone. After several unsuccessful efforts, McCloskey spoke to Gray three times on
May 1. Before he succeeded in reaching Gray, McCloskey spoke to Annello, a
business representative of the Council. McCloskey asked Annello if the Council
had received his April 29 letter. Annello said it had been received on Sunday,
April 30. McCloskey asked what objections the Council had to the contents of
the letter. Annello said the objection was that McCloskey refused to pay into the
IAP. Later that day, in conversations with Gray, McCloskey testified that Gray told
him he had received McCloskey's letter but that the letter was not satisfactory.
Gray told McCloskey that his company would have to take the same contract as
15 The tactic of striking one employer or group of employers while allowing other em-
ployers (competitors) to continue to work is not uncommon.
18 McCloskey at the time had a $5,000,000 telephone company job; a $2 000,000 hospital
job: a post office job of just under $5,000,000; and a $3,000,000 University of Pennsyl-
vania job
17 All carpenters employed by McCloskey were members of the Carpenters union.
18 Although not described in the Instant record, I take official notice that a building
trades council is a central body to which all or substantially all the building trades unions
in an area belong Such councils generally take a position as to whether it and its con-
stituents will or will not support or respect a strike and picket line of a particular union
at a particular time.
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Council had negotiated with the GBCA 19 The two men discussed the apprentice-
ship program and McCloskey said he would participate and share its cost. Gray said
that he would not negotiate with McCloskey or any other independent (nonmember
of the GBCA) contractor for any agreement other than for the identical agreement
that the Council had negotiated with GBCA. Gray said the strike against McCloskey
was due to the fact that McCloskey had no contract and there would be no work
for McCloskey until it had the same contract as GBCA, including TAP. Before his
last conversation with Gray on May 1, McCloskey again spoke with the manager of
the Building Trades Council. He was told that the Building Trades Council would,
commencing the next day, support the picket line of the Carpenters union council
and therefore none of the trades would work at McCloskey's jobs. Still later that
day McCloskey spoke to Gray and asked if there was any other way the matter
could be worked out. Gray said, "The only way is for you to take the same agree-
ment as we have with GBCA, including TAP." McCloskey then replied that he had
no alternative but would take the TAP provisions under protest. Gray asked
McCloskey to write him a letter confirming the conversation. McCloskey agreed.
Gray said he would remove the pickets and the men would be back at work the
next day. This was done.
Gray was not certain whether he had one, two, or three conversations with McClos-
key on May 1, 1961. However, he did testify as ito what was said between himself and
McCloskey on May 1. Gray said that when McCloskey asked him if he had
received his April 29 letter, he, Gray said, ". . But what good is that letter."
Gray testified that he had told McCloskey and other independent contractors what to
write in their letters to him and that he informed McCloskey on May 1 that Mc-
Closkey's letter had not agreed to the matters mentioned by Gray, "and that was
where all independent contractors had written letters to me on their letterhead say-
ing that they would agree to anything that was negotiated between the GBCA and
the District Council if we would permit their people to work on May 1." Gray
testified that when McCloskey protested about the TAP, he, Gray, told him to never
mind about the TAP but that Gray proceeded to read off to McCloskey the TAP
program listed in the contract and told McCloskey that he wanted all those pro-
visions in the McCloskey contract.
The testimony of Gray, both regarding the 1961 contract conversations with
McCloskey and the preceding contract discussions, when the TAP provisions entered
the Council and GBCA basic contract for the first time, would convey a picture of
willingness to forgo the TAP if McCloskey would initiate and maintain, on his own,
the same program, with all its provisions. In appraising the testimony and the record,
I note the very clear testimony of Gray at another point The witness stated that
the Council in the past had negotiated the contracts with the GBCA and had never
at any time negotiated with the independent or non-GBCA members. He also stated
that in 1961 this same procedure had been followed. When Respondent's counsel
asked Gray whether he had, on May 1, 1961, told McCloskey, as McCloskey testified,
that he ". . would not negotiate with McCloskey or any independent contractor
for a contract which was not identical with the GBCA contract," the witness replied,
"I said , Yes, identical." Gray went on to explain that what he meant by "identical"
was a contract "that would include all these things" and by the latter he meant all
the activities of the TAP detailed in the GBCA contract.
In the joint brief filed by Respondent and the GBCA it is stated: 20
Mr. Gray's testimony established beyond peradventure that negotiations for
the last two decades were carried on with a multi-employer unit represented by
the GBCA, which negotiated an area agreement that was followed without
variation by all other contractors in the five-county area. Regardless of for-
malism, his testimony unequivocally establishes that, in fact, all non-member
contractors at all times operated under the collective bargaining agreement
negotiated with GBCA. There were no negotiations at any time with individual
contractors, whether they be members or non-members of GBCA, and partic-
ularly in April of 1961, no independent contractor even attempted or requested
to negotiate individually with the Respondent This was the result of a prac-
tical necessity. In the construction industry there must be an area contract,
and that area contract was the GBCA-negotiated contract. Mr. Gray's testi-
mony in this regard is corroborated by the economic facts of life; the practical
necessity that all agreements with building contractors in a specific area be the
same in order that they may be properly enforced, and in order that inequity
and confusion be avoided in an industry where men transfer from employer to
employer on a daily, weekly, or monthly basis.
19 On the evening of April 30, the Council and the GBCA had reached an agreement.
20 Transcript of testimony citations omitted in quoting the brief
METROPOLITAN DISTRICT COUNCIL OF PHILA., ETC. 1597
It is also stated in the brief that Gray testified "that he did not want any less
or any more from the Company [McCloskey] than he had obtained from all other
contractors .. .. " The brief goes on to state that there was no "persistence or an
impasse" between Gray or McCloskey and that Gray "would have agreed to an
independent program to suit this employer [McCloskey]."
I credit substantially James McCloskey's testimony, described above. In important
respects I credit Gray as to what was said in their conversations since, in many
respects , it is not basically inconsistent in substance , as distinguished from emphasis,
with that of McCloskey. Although not thus related by McCloskey, I believe that
Gray did read off, as he testified, the GBCA contract provisions regarding the various
IAP programs. I also believe that Gray demanded and insisted that McCloskey
agree to the identical programs.2i
In the last-mentioned connection, aside from what I have already stated, it is to
be borne in mind that Gray's, i.e., the Council's contract with GBCA, expressly pro-
vided that any contract made by the Council with a nonmember of the GBCA was
to contain provisions requiring the same employer payments to the Trustee as pro-
vided in the GBCA contract. By the same contract, the Trustee was to allocate
two-thirds of such payments to the health and welfare fund and one-third to the
GBCA for the IAP. It is also clear from the contract and from other evidence that
the health and welfare fund for the employees was a quid pro quo for the GBCA's
IAP. The subsequent continuance of the health and welfare program, moreover,
was expressly made contingent upon coequal continuance of the IAP. These factors,
in addition to the evidence previously described, confirm my belief and finding
that the Council and its representative, Gray, were not prepared to, and were not
about to, negotiate an individual contract with McCloskey or any of the other 400
nonmember contractors. These, to use Respondent's and the GBCA's phrase, were
"the economic facts of life." Further, as substantial a contractor as McCloskey
was, neither he nor any of the other smaller contractors, could feasibly, in my
opinion, undertake his or their own private IAP. Nor, from the nature of the IAP
as described in the contract ( and quite apart from the financial resources of an indi-
vidual contractor), was it either feasible or contemplated that the program should
or could operate except as provided in the contract, with the GBCA as the key
factor.22
Pursuant to the May 1, 1961, conversation with Gray, aforedescribed, McCloskey,
on that same date, wrote to the Council. The letter stated that McCloskey would
accept the contract "which will be executed by you and the General Budding Con-
tractors Association, including the provisions relating to the Industry Advancement
Program, such provisions are accepted by McCloskey & Co., under protest. It
is our understanding that you will order your men to return to work on all our
projects at the regular starting time on Tuesday, May 2, 1961."
About May 9, 1961, McCloskey received a mimeographed form letter from Gray,
as secretary-treasurer of the Council. The letter, apparently sent to all non-GBCA
members stated:
DEAR Sets: Beginning May 1, 1961, the following changes in our present
agreement with the General Building Contractors Association, Inc. will become
effective [ the various changes are set forth , such as a wage increase and the
amounts of payments to be made to the health and welfare fund and to the
IAP ] . . It might be well to note that we require every contractor and sub-
contractor to sign our agreement.. . .
McCloskey acknowledged the foregoing by letter of May 12. The letter con-
firmed that McCloskey accepts the Council-GBCA contract but with the understand-
ing "that any provisions therein relating to the Industry Advancement Program are
21 For reasons stated and hereinafter stated it is my opinion that anything Gray said
to McCloskey in the nature of, "Are you prepared to give us, on your own, the same
identical program as the IAP"" was a rhetorical form of argument and nothing more.
2.3 On this subject see the description of the IAP earlier in this report. Not previously
mentioned regarding the scope of the IAI' is the fact that the GBCA increased its staff
from 3 to 14, including professionals in the field of public relations, education, and the
other areas encompassed The program, as witnesses called by the GBCA testified and as
exhibits introduced showed, is vast and impressive. From May 1, 1960, to December 31,
1960, IAP funds received, pursuant to the Carpenters' contract, were $129,000, and its
total from all contracts with the same IAP for this period was $271,000. The total for
the period January 1, 1961, to October 31, 1961, was $387,000, including $186,000 from
the Carpenters' contract. The grand total received for both the foregoing periods was
$658,000, with disbursements totaling $449 ,000 (all figures are stated here in round
numbers).
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under protest and without waiver. . . . Such acceptance and execution shall also be
without any recognition whatsoever of the General Building Contractors Associa-
tion as our collective bargaining agent."
Since May 1, McCloskey has made payments to the health and welfare fund but
has deposited the 5 cents per hour IAP payments in a separate bank account and
has so advised the Council.
B. Conclusions
1. The appropriate bargaining unit
The General Counsel has alleged that the appropriate unit for bargaining consists
of all carpenters employed by McCloskey in the five county area of Pennsylvania,
but excluding all other employees, guards, and supervisors. Respondent and the
GBCA, on the other hand, contend that the existing unit and the appropriate unit
is a multiemployer unit "of all carpenters of all contractors in the five county area."
Regarding the question of unit for bargaining, there have been probably more
cases and more decisions by the Board on this matter than on any other subject
presented to it. Cases involving the issue of multiemployer units of separate and
competing employers (separate but commonly owned or controlled employers are
a different aspect) or single and individual units of one employer have been a sub-
stantial segment of the unit cases. We are therefore in a well-trodden area of
decisional law and not in an area of first impression. This observation is appro-
priate in view of the contention by Respondent and GBCA that the Baltimore
Plumbers case,23 factually on all fours with the instant case on the matter of unit,
was incorrectly decided and should not be and is not representative of the Board's
current thinking. The following analysis will show, however, that the Baltimore
Plumbers case was by no means an isolated expression of the Board's position. It
was, in fact, an expression of the Board's views developed over many years and
there is no indication that the Board's position has since changed.
The early cases of the Board in this area recognized as a factor, that might require
the inclusion in one unit of employees of competing employers, the fact that the
employers had joined together for collective-bargaining purposes with a single repre-
sentative.24 The term "association" or "common agent" was frequently used and
the authority of the agent was important even with respect to members of the group
or association.25
In 1943, the Board found appropriate a multiemployer unit consisting of the
members of an association and two nonmembers in the same industry who, the
Board found, "acted in concert with the Association by following its lead" in
collective bargaining. The Board, in deciding upon the multiemployer unit, also
relied upon "the position of record of [the two] nonmembers . that a multi-
employer unit is appropriate [and this, the Board stated] manifests a present
willingness to continue this relationship." With respect to another nonmember,
however, who apparently in the past had followed "the lead" of the Association
in bargaining, the Board found that "by [now] asserting that its production
employees comprise an independent unit reveals an intention to pursue an individu-
alistic course." The Board found a single unit appropriate for the latter employer
and excluded his employees from the multiemployer unit 26
Observing that insofar as the Carleton case, above, was inconsistent with its pres-
ent decision, the cited case was overruled, the Board, in Advance Tanning Company,
et al., stated: 27
2 The Plumbing Contractors Association of Baltimore, Maryland, Inc, et at, 93
NLRB 1051
24 Shiposcners' Association of The Pacific Coast, et al, 7 NLRB 1002
25 "Although we have held . . . that where a group of employers deal jointly through
an employer's association, the employees of all members of the association should con-
stitute an appropriate unit, such a conclusion has not been reached where the Association
has no legal power to contract for its members and exercises no employer functions"
M & J. Tracy, Inc, 12 NLRB 936; Gulf Refining Co , Bulk Sales Department, 21 NLRB
1033, where the Board found that each of five companies retained the power to with-
draw from negotiations at will or to reject a proposed final agreement as unsuited to its
peculiar needs and that the committee which bargained for the companies had no authority
to bind any of them.
26 George F Carleton & Company, Inc., et al, 54 NLRB 222
T760 NLRB 923, 931 In Advance Tanning, the association and the union negotiated
the contract. Since 1934 to the time of the hearing, copies of the association contract
had been given to the independents (nonmembers of the association). In all instances
the independents signed the copies thus presented
METROPOLITAN DISTRICT COUNCIL OF PHILA., ETC. 1599
... we are not persuaded that the history of collective bargaining in the area
compels a finding that the employees of the Independents should be part of
this [multiemployer] bargaining unit. There is no evidence that the Inde-
pendents participated in the negotiations between the Association, acting on
behalf of the members, and the C.I.O. Without any semblance of bargaining,
the Independents signed agreements identical to those executed by the mem-
bers. This course of conduct cannot be considered as true collective bargain-
ing on an area-wide basis covering employees of both the members and the
Independents, particularly since the Independents were in no way obligated
to follow the Association's lead. We conclude, therefore, that the employees
of each Independent comprise a separate appropriate unit.
The Board has found a multiemployer unit to be appropriate where an association
has operated informally and without dues, minutes, records, or regular meetings.
However, the decisive factor in such cases has been the evidence of participation in
group bargaining through a committee or other representative and the lack of evi-
dence of any desire for individual bargaining.28
In Pacific Metals Company, Ltd., et al.,29 a particularly pertinent case, an associa-
tion had negotiated contracts with the union (intervenor) since 1938. The peti-
tioning union sought single employer units. Intervenor contended for a multi-
employer unit of association members, former members, and nonmembers. Of 37
employers involved in the case, 15 had been members of the association but had
resigned; 22 of the employers had never been members of the association. The
Board stated
the essential element warranting the establishment of multi-employer
units is clear evidence that the employers unequivocally intend to be bound in
collective bargaining by group rather than individual action. The correlative
standard for excluding an employer from such a unit is evidence of an intent
to pursue an individual course of action with respect to labor relations. The
evidence which suffices to establish either intent varies with the circumstances
involved. Here, group bargaining has been based on an association. Under
circumstances such as are here present, the Board has held that an employer
by withdrawing from the association evinces an intention to abandon group
action and to pursue an independent course of bargaining. Participation for a
substantial period of time does not preclude an employer from abandoning
such bargaining . . . We . find that 15 of the employers, by disaffiliating
from the Association, elected to pursue individual courses of action with respect
to their labor relations, thereby rendering the inclusion of their employees in
a multi-employer unit no longer proper. [Emphasis supplied.]
With respect to the remaining 22 nonmembers, as noted above, the record
shows that these employers never participated with the Association members in
joint negotiations or regularly delegated to the Association or any other em-
ployer representative the authority to conduct negotiations on their behalf on
a group basis Nor does the fact that the nonmember customarily adopts the
standard contract in itself piovide a sufficient basis for the inclusion of their
employees in a unit with those of the other employers. It is true that in 1948
and 1949 the nonmembers individually agreed in advance to abide by the results
of collective bargaining negotiations between the Association and the Inter-
venor But this merely evinced their individual intent to continue, as they had
in the past, to adopt that contract. As the agreement was between the indi-
vidual nonmember and the Intervenor, rather than the Association, it is not
evidence of participation in joint bargaining as a group, such as would warrant
their inclusion in a multi-employer unit.
The employers involved are not members of the Association, have not author-
ized the Association, or any organization or individual, or other employer to
bargain for them and do not engage in joint negotiations together or with any
other employers. In the light of the foregoing facts and considerations [we
find that] . . . the single employer units . . are appropriate "
The Baltimore Plumbers case, supra, was, in some respects, one in which the
reasons, for considering a nonmember's operations jointly with the operations of the
Association, as part of a multiemployer unit, were stronger than in the instant case.
28 Balaban & Katz (Princess Theater), 87 NLRB 1071 , Raywwer Incorporated, Ci ay8
Harbor Divisaon, 52 NLRB 1269
29 91 NLRB 696
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board noted that the nonmember "customarily" 30 adheres to the terms of the
contract negotiated between the Union and the Association, "has agreed in advance
to adhere to the terms of such agreements, would join the Association if asked, and
would prefer to bargain through the Association." The Board, however, refused to
consider the nonmember as a part of the multiemployer unit since there was absent
the basic requirement for such inclusion, namely "participation in joint bargaining as
a group." 31
In accordance with the clear weight of Board authority on the subject, as indicated
above, I find that McCloskey had resigned from the Association at least 10 years
before 1960, was not a member of the Association; had not authorized the Associa-
tion to be its bargaining representative, had not participated in multiemployer con-
tract negotiations with the Council and had manifested in 1960 and 1961 its opposition
and refusal to agree to the IAP provisions in the Association contract, and had
bargained, however unsuccessfully, with the Council regarding terms of its individ-
ual contract. The fact that it apparently suited McCloskey's convenience, or because
of economic compulsion or other considerations, practical and otherwise, McCloskey
was prepared to and did accept substantially all the GBCA contract without bargain-
ing thereon, does not alter the fact that McCloskey was not bound by the GBCA
contract terms unless and until it accepted them. The individual employee unit
"is presumptively appropriate." 32 I find that the separate unit of McCloskey's
carpenters, alleged in the complaint, is appropriate within the meaning of the Act 33
If the multiemployer unit of all contractors in the five county area, including
McCloskey, was declared to be the appropriate unit, it would mean no more than
that some 500 contractors, jointly, could appropriately bargain with the Council.
While the Act provides that the labor organization that represents a majority of
employees in the appropriate unit, in this case, the Council, is the exclusive bargain-
ing representative of all employees in the unit, members or nonmembers of the
Union, there is no comparable provision with respect to employers. Here, under
our present discussion, the GBCA would represent some of the employers in the
multiemployer unit but not all. This would be true even if a majority of the
employers were members of the GBCA or if a majority authorized the GBCA to
negotiate the contract on their behalf. Absent a statutory provision, the majority
employer representative would not be the exclusive representative of all employers
in the unit.
In the light of the foregoing, it is apparent that in multiemployer unit situations
the appropriateness of the unit, insofar as coverage of particular individual employers
is concerned, is dependent on either membership in a group representative or au-
thorization given to such representative, or participation in group bargaining action
so that there is no question but that the individual employer is bound by the group
action. To determine that a multiemployer unit is appropriate solely because all
the contractors in an area have a community of interest and pay the same wages
and so forth, and use the same employees or source of employees, the latter being
all represented by the same Union, leaves unresolved the question of who is au-
thorized to bind all the employers by contract. As mentioned above, the latter
aspect can be resolved only by statute , as in the case of the Union, or by individ-
ual employer assent. There is nothing in the law, other than by statute, by which
a representative becomes the exclusive representative of all those in the unit. Absent
such a provision, the authority of the representative is dependent upon individual
authorization. Since this is so, the realism of the Board's approach to the problem
is apparent since its multiemployer unit determinations give paramount considera-
11I take the word "customarily" as used by the Board in the particular context to
mean "always" since no instance is mentioned when the nonmember did not adopt the
association contract and the Board would, it seems, have cited such an instance, if it
existed, as added evidence in support of its conclusion that the nonmember was not to
be considered as part of the multiemployer association unit
ai Cf Atlas Storage Division, P if V Atlas Industrial Center, Inc, 100 NLRB 1443;
Highway Transport Association of Upstate New York, Inc, et al, 116 NLRB 1718,
1720-1721 ; Molinelh, Santoni if Freytes, S en C., d/h/a Panaderia La Reguladora and
Panaderia La Francesa. et al , 118 NLRB 1010, 1013-1014; Northern Nevada Chapter,
National Electrical Contractors Association and Represented Employers, 131 NLRB 550;
The Standard Register Company, Pacific Division, 120 NLRB 1361, 1362-1363.
John Brenner Co, 129 NLRB 394, 396.
The GBCA Council contract stated expressly that the GBCA was acting for its mem-
bers Moreover, since it was not authorized to act for nonmembers, the contract provided
that the Union would include in contracts with nonmember contractors the same provi-
sion as was in the GBCA contract, requiring the specified payments to the trustee for
allocation between the health fund and the GBCA administered IAP.
METROPOLITAN DISTRICT COUNCIL OF PHILA., ETC. 1601
tion to either authorization to be bound by a group representative or participation
in bargaining with such representative, thus obviating the fruitless result of deciding
upon an appropriate unit, embracing all employers in an area, with no means of
determining the representative for all such employers. A multiemployer unit of
five county area employers, with the other independents being entitled,to be coequal
participants in the bargaining, would mean that although the Union could properly
demand one contract for the entire unit, the employers would have no means of
determining the terms for all employers, absent complete agreement among the
employers in the unit.
Further, since Section 9(b) of the Act provides that "The Board shall decide
[whether] . the unit appropriate for the purposes of collective bargaining shall
be the employer unit, craft unit, plant unit or subdivision thereof .. ," the im-
position of a multiemployer unit upon an employer, who has not authorized the
multiemployer group to act for him or has not participated in the particular group
action and has in fact, opposed the group action, poses serious legal questions. As
I read the Board's decision in this area of multiemployer versus single-employer units,
the standards applied by the Board are a recognition of the foregoing, including the
fact that the outer limit of the Act's definition of an "employer" is "any person
acting as an agent of an employer, directly or indirectly. . ." 34 Neither the
Board nor anyone in my opinion may legally declare that a particular employer is
part of a multiemployer unit because it is believed that as a matter of economics
such should be the case. Inclusion in a multiemployer unit is basically dependent
on the consent of the individual employer and in this sense a multiemployer unit
is within the terms of Section 9(b) of the Act, supra.
2. The alleged violation of Section 8(b)(1)(B) and Section 8(b)(3)
Without repeating the details, previously described, regarding the events of 1961,
and my findings and conclusionary findings thereon, I am persuaded that Respondent
in 1961 insisted, to the point of impasse, upon inclusion in the McCloskey contract
of the same IAP provisions that were in the GBCA contract.
Respondent and the GBCA contend that McCloskey had no intention of bargain-
ing and made no attempt to bargain and that therefore there could be no refusal
to bargain on Respondent's part. While it is true that McCloskey, since it was
willing to accept the majority of contract items, evinced no desire to bargain con-
cerning them, it had made it clear to Respondent, as early as May 1960, that it would
not agree to the IAP program because it considered such program illegal and not
a mandatory subject of bargaining. McCloskey at no time signed the 1960 contract
with the Respondent inasmuch as the contract contained the IAP provisions. Re-
spondent had no basis to assume that McCloskey's position had changed in the
period from May 1960 to May 1961. McCloskey's April 29, 1961, letter made it
clear that McCloskey's 1961 position was the same as in 1960 regarding the IAP.
With respect to timeliness, I find no basis for finding or assuming that if McCloskey
had said to Gray in February or March 1961 the same thing that it said in its May
1960 or April 1961 letters, namely, that it would sign the GBCA contract if it did
not contain the IAP provisions, that Respondent's position would have been differ-
ent than it was in April-May 1961. Respondent's bargaining position over the years
was that it negotiated a contract for the area with the GBCA and that that was the
contract for all contractors in the area. As Respondent and the GBCA state in their
brief, they operated on the principle that "all agreements with building contractors
in -a specific area [must] be the same. . . Additionally, the evidence is clear
that in 1961 (and in 1960) a contract containing the IAP was a "must" insofar as
Respondent was concerned. The contract, between the Council and GBCA, de-
scribed in detail earlier in this report, obligated Respondent to include the same
TAP provisions in contracts with nonmembers; further, the health and welfare pro.
gram which the Council had secured for the carpenter employees was, in fact,
a quid pro quo for the IAP and the continuance of the two programs was made
interdependent and mutually dependent by the terms of the GBCA-Council contract.
Under such circumstances, McCloskey's refusal to agree to the IAP and its ultimate
signing of the contract under protest and under the economic pressure and insistence
of Respondent adequately poses the issue of an alleged refusal to bargain on
Respondent's part.
Both Respondent and the GBCA contend that the IAP is a mandatory subject to
bargaining If this be true, the Respondent could insist on inclusion of such a pro-
vision in its contract. If the IAP is a permissive, rather than a mandatory subject
34 Section 2(2) of the Act
649856-63-vol. 137-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of bargaining , the parties may agree to its inclusion in a contract but neither may
insist to the point of impasse regarding a permissive subject.35
Respondent and the GBCA, as the evidence and their brief discloses, contend
that the TAP relates to or embraces "conditions of employment" within the meaning
of the Act.36
At an earlier point I have quoted from the Respondent-GBCA brief wherein it is
stated that in the construction industry "there must be an area contract and that
area contract [in the five county area] was the GBCA-negotiated contract." In
speaking of item 7 of the TAP program, Labor Relations, Respondent and the GBCA
assert that it
is intimately connected with conditions of employment , since its objective is
to assure to union members the benefit of multiemployer bargaining... .
Absent such area wide bargaining, the Union could not possibly negotiate over
400 separate collective bargaining agreements. . The TAP recognizes reality
by assuring financial support from all employers who gain the benefits of multi-
employer bargaining, so that there will be an agency available to hammer out
the collective bargaining agreement. .. .
Regarding item 8 of the TAP, Management Participation in Union Health and Wel-
fare Funds and Similar Funds, the aforementioned brief asserts that the various
pension, health, and other programs
Would become meaningless in reality if the building and construction industry
could not, or did not, administer these plans on an area wide basis. The evidence
discloses that the representatives of the administrator spend almost full time
at this work. It would be an economic impossibility to create a joint Board
of Trustees for each and every contractor-employer in the area, and unless
the costs and expenses of the necessary services are borne on an industry-wide
basis, no one would volunteer or be available to devote time and effort to daily
administrative problems. Nor would it be possible, as a practical measure, to
have one Board selected by 500 employers. We submit that this activity of
TAP is most intimately connected with the wages and other terms and condi-
tions of employment of the employees represented by the Respondent.
Before dealing with the principal question of whether the TAP is a mandatory
subject to bargaining, we therefore decide whether the various programs of the
TAP were presented to and demanded of McCloskey as individual and separate sub-
jects of bargaining or whether the entire lAP was presented and required as a
complete entity of package. There is no doubt in my mind, based on the evidence
and the portions of the brief of Respondent and GBCA that have been cited, that
from the standpoint of these two parties there had to be acceptance of the package
and not 2 or 400 separate TAP programs. I find that the demand made on McCloskey
by the Respondent was for the TAP package.
Accordingly, the question of whether the TAP is a mandatory subject of bargain-
ing stands or falls, not on whether one or more activities, such as safety, if demanded
from an employer by a union, is a mandatory subject but whether all the activities
together, as the TAP, and under the TAP administration prescribed in the contract,
constitute a matter that is a mandatory subject of bargaining.
The GBCA is not a passive administrator of the TAP. Its role is not that of a
trust company that simply pays bills certified to it by some other authority. The
GBCA, in effect, runs the TAP with considerable and broad discretion Where the
GBCA does not have sole discretion, it is obliged to negotiate with the Respondent
and thus the GBCA and the Council reach a determination regarding the TAP.
In carrying out the 12 enumerated programs of the TAP the GBCA is substantially
autonomous.37 The captioned TAP activities in the contract 33 are no more than
general designations of the broad area of each program. The details and imple-
w N L R B v Wooster Div of Borg-Warner, 356 U.S 342 Since the law on this point
is perfectly clear there is nothing to be gained by commenting on the merits of this par-
ticular legal approach enunciated by the highest court
36 Section 8(d) of the Act. to bargain collectively is the performance of the
mutual obligation . . to meet . and confer with respect to wages, hours, and
other terns and conditions of employment "
a, The apprenticeship program which is incur porated as an TAP program is not con-
ducted solely by the GBCA since the Council is a comember of the apprenticeship
committee.
° General Counsel's Exhibit No 4 is the GBCA-Council contract for 1960, with the de-
tailed IAP which is also contained in the 1961-1963 contract and incorporated into non-
member contracts between the Council and individual contractors
METROPOLITAN DISTRICT COUNCIL OF PHILA., ETC. 1603
mentation are decided upon solely by the GBCA. For instance, under the caption
of "Education" in the TAP portion of the contract, the GBCA suggests and arranges
courses with various educational institutions . Thompson, employed by GBCA as
director of education for the IAP, testified about the various educational activities
carried on under TAP. He described how matters were taken up by the TAP
education committee. There are no representatives of Respondent on the committee.
As Thompson stated, "This is a program administered by the GBCA." Attorney
Jacoby, counsel for GBCA, stated on the record: "I believe General Counsel Ex-
hibit No. 4 is very clear that this entire program is to be administered by the GBCA
and that there is no obligation on the part of the staff of the GBCA to consult with
the Respondent." 39 This same GBCA autonomy and broad discretion is also
found in the other TAP activities and, without enumerating them all at this point,
includes labor relations (collective bargaining and grievance handling by GBCA
with the various unions ); industry relations (with architects, engineers, building
owners, Government officials, subcontractors, manufacturers, and insurance and
bonding companies); research into new materials; surety bonds; and management
participation in various funds and boards and paying the compensation of manage-
ment representatives thereon.
New areas of TAP, not specified in the contract, may be initiated by GBCA,
with or without notification to Respondent but subject to arbitration if Respondent
is in disagreement . If GBCA has spent TAP funds in a manner or for activities
ultimately determined to have been improper, GBCA has no obligation to reimburse
the TAP fund for money so spent if it voluntarily discontinues such activity or if an
arbitrator decides that it was not within the control of GBCA to discontinue or
modify the program.
The contract provides that the GBCA will submit an annual TAP budget to Re-
spondent. But, subject to other provisions of the contract, "the sole obligation on
the part of the Association before embarking on the expenditures for the activities
set forth in said budget shall be the submission of said budget." If there is an
excess of TAP normal reserves, the contract provides that the GBCA and Respondent
will negotiate about the matter. The amount, per hour worked by employees, that
an employer must pay to the Trustee for allocation to the health and welfare fund
and the TAP is also subject to the control of the GBCA and Respondent and the
1961 contract amounts, according to types of work, are 20 and 15 cents, respectively,
as compared with 15 and 10 cents in 1960.
It is apparent that the TAP is something over which McCloskey has and would have
no control and in which it would have no voice. In the Borg-Warner case, supra,
the court held that the employer's insistence on a ballot clause in the contract re-
sulted in an impasse about a subject that was not a mandatory subject of bargaining.
The court stated that the clause would substantially modify the system provided for
in the statute by weakening the representative status of the Union and would enable
the employer to deal with the employees rather than with their statutory representa-
tive. So, too, in the instant case, the TAP, demanded of McCloskey, would in effect
mean that Respondent could either deal with the GBCA regarding the terms and
administration of the TAP and thus have a Respondent-GBCA control of matters
affecting McCloskey, or that the terms and administration of the TAP, affecting
McCloskey and others, would be almost wholly controlled by the GBCA alone
This insistence (arising from ,the very terms of the TAP) that subjects covered by
the TAP must be vested in a third party (other than the employer and union in
the unit) is not, in my opinion, within the phrase "conditions of employment" used
in the Act. It goes to the heart of the collective-bargaining system of the Act
Just as the ballot clause in Borg-Warner would undermine the full status of the
Union as representative, the TAP program vested such control and discretion in an
organization and in a unit of which McCloskey was not a member and over which
McCloskey had no control, that Respondent's insistence upon McCloskey's agree-
ment to the TAP substantially modifies the statutory scheme of collective bargaining.40
In the last-mentioned connection, it may be noted that the terms "rate of pay,
wages, hours of employment, or other conditions of employment" owe their statutory
"'Nor does membership in Respondent qualify a carpenter for attendance at any IAP
school for estimators or construction engineering type subjects or other courses, unless
he is qualified according to standards applicable to any other potential student
90 In N L R B v. American National Insurance Co., 343 U S. 395, the Court was deal-
ing with the respective rights exercisable by the two immediate parties in collective
bargaining and the two parties that composed the appropriate unit, the employer and
the union that represented the employees. The Court stressed that the statute was in-
tended to give the parties the right to negotiate "their own charter" and not to impose a
charter or contract provisions conceived (or controlled) by someone else.
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
origin to the representation portion of the original Wagner Act as continued in the
corresponding section of Taft-Hartley.41 Section 8(d), which first appeared in 1947,
again stresses the representative status of the parties in collective bargaining and
uses the term "conditions of employment" in this connection 42 Both the employer,
such as McCloskey, in an individual bargaining unit, and the Union are exclusive
representatives of their respective interests and neither may insist that the other
relinquish such status43
If the definition of "conditions of employment" was that which is apparently urged
by Respondent and the GBCA, it would mean anything that affects the business or
industry, directly or indirectly, is a condition of employment since what affects the
business or industry affects employment and conditions of employment.
While such an approach may have considerable validity as a matter of economics
or from the philosophical standpoint, it is not consistent with the Act and the
decisions of the Board and the courts who must be concerned with what Congress.
said and intended rather than what Congress could have said or intended or what,
some may believe, should have been said or intended 44
It is my opinion that even if a broader interpretation were to be given to the term
"conditions of employment" than in the Sylvania case, supra, the broad interpretation-
would not embrace a situation such as is presented in the instant case. Matters
that could be regarded as economic conditions of employment would not be statu-
tory conditions of employment if the conditions entailed insistence on a relinquish-
ment to a third party, by either the Union or the Employer, of the representative
rights that each enjoys as the respective party to the appropriate bargaining unit. The
Act, as previously noted, in referring to wages, hours, and conditions of employment
as collective-bargaining subjects, premises such bargaining on the respective repre-
sentative rights of the employer and the Union. The employer is his own exclusive
representative unless the unit is multiemployer and the Union enjoys a comparable
status. The tail wags the dog if a (mandatory) condition of employment demanded
by either party is that the other delegate and financially support "conditions of-
employment" administered and controlled by a third party, to whom no legal (statu-
tory) obligation is owed or with whom no legal (statutory) relationship exists.45
Upon the evidence and for the reasons described herein, I conclude that Respond-
ent by demanding and insisting that McCloskey include the IAP provisions in its-
contract and by striking in support of such demands has violated Section 8(b) (1) (B)
and (3) of the Act 46
While I have described the facts in the case in the course of this report, I would
like to present them now in a slightly different focus and with perhaps a lens of-
wider angle.
91 The section referred to reads as follows : "Section 9 (a) Representatives designated
or selected for the purposes of collective bargaining by the majority of the employees in,
a unit appropriate-shall be the exclusive representative of all the employees in such unit
for the purposes of collective bargaining in respect to rates of pay, wages , hours of employ-
ment, or other conditions of employment . . . .
" Section 8( d) reads: "Section 8(d)-to bargain collectively is the performance of the-
mutual obligation of the employer and the representative of the employees to meet-and
confer in good faith wtih respect to wages, hours , and other terms and conditions of
employment . . . .
43 Borg-Warner, supra.
44 Borg-Warner, supra; Local 164, Local 1287, and Local 1010, Brotherhood of Painters,
Decorators and Paperhangers of America, AFL-CIO, et al. (A. D. Cheatham Painting Co
of Jacksonville, Fla) v. NL.R.B, 293 F. 2d 133 (100 App . D.C. 294 ) ; Sylvania Electric-
Products, Inc., 291 F 2d 128 (C A. 1).
45 Because of my views of the issues in the case I have found it unnecessary to define
separately whether or not each individual activity of the IAP, if considered alone, con-
stituted a mandatory condition of employment if, without more, each was was a subject
of bargaining. Suffice it to say that I do not regard each and every activity, separately
considered, as falling within the definition of a mandatory condition of employment
Among nonmandatory subjects I would include at least (7), (8), and (11) of General
Counsel's Exhibit No 4, pp. 24 to 25 thereof
4s The complaint and amended complaint, in my opinion, and the bill of particulars and,
statements of the General Counsel at the hearing intormed Respondent of the conduct
alleged to be illegal I am not persuaded that the General Counsel's pleadings were de-
fective because he did not characterize the IAP as a nonmandatory subject of bargaining-
or that the terms "insist" and "demand" in context were not understandable Further,
all issues in the case were fully litigated by the parties, the General Counsel, Respondent,
and the GBCA, including matters of defense presented after the General Counsel' s case-
was on the record
METROPOLITAN DISTRICT COUNCIL OF PHILA., ETC. 1605
In 1960, the Respondent secured from GBCA a health and welfare program for
the carpenter employees. This was apparently highly desirable from the standpoint
of the Respondent and its members and had been sought for some time. No doubt,
from the broad standpoint, the GBCA may have regarded the health and welfare
program as desirable since improved employee morale would redound to the employ-
ers' benefit or to the benefit of the industry. But aside from the high view of
industrial statesmanship, the more mundane aspect of the health and welfare pro-
gram was a decided "plus" for the employees and the Union and increased expense
for the employers, both in payment to the fund and in administrative and related
expenses. But, by way of a bargain and a a quid pro quo for the health program,
the GBCA persuaded the Respondent to agree to the IAP. The evidence is clear
that the IAP was primarily something for the GBCA just as the health program was
something for the Union. Again, in the broad sense, the Union was benefited by
the TAP just as the employers in the same sense were benefited by what the employ-
ees gained in the health program. Broadly regarded, what is good for the employer
is good for the employees and vice versa.
Over the years the GBCA was bearing the brunt of employer bargaining with the
Union. The expenses of the GBCA were borne by its members There were many
contractors in the area, nonmembers of GBCA, who were, certainly from the stand-
point of GBCA, free riders on much of what GBCA was doing on behalf of employ-
ers. Not only were such contractors regarded as free riders but they served as a
convenient whipsaw bargaining factor for the Union, e.g., the Union, to bring pres-
sure upon the GBCA and its members in contract negotiations, would strike or
arrange to strike the former, while allowing contractors who were nonmembers of
GBCA to continue to work if they agreed to accept the contract ultimately secured
by the Union from GBCA.
The GBCA, therefore, viewing the added expense of the health program, plus
what it believed were the needs for wider activities generally on behalf of the industry
in the area, plus the continued free rider aspect, proposed and secured the TAP by
contract with the Union. The IAP was basically an employer or management pro-
gram. It would not be atypical of a program that a large manufacturer might have
and in such instance union participation in the program would be normally resisted.
The resistance would not be on the ground that the Union would not regard the pro-
gram as helpful to the employer's business and therefore helpful to the employees
but on the ground that research, and the employer's labor representatives and their
expenses and development, and market development, and training of superintendents
and relations with other companies and subcontractors, and such matters, were pri-
marily the concern and area of management 47
But, since the GBCA was in an industry where there were a large number of
individual employers and where it has neither the legal authority to bind nonmem-
bers nor the statutory legal status with respect to employers that the Union possessed
to bind all the employees involved, and in view of the problems of additional expense
and free riders, described above, the GBCA negotiated an IAP with some interesting
aspects. Some concessions were made in the basic management aspect of the IAP,
such as restrictions on using the funds to oppose the Union in various areas of
activity or allowing some very limited participation by the Union in IAP administra-
tion. But the IAP remained primarily a management program, plus a sort of
"management shop" clause.
Unions, although they were the exclusive representatives of employees in appro-
priate units, had always complained of free riders, the nonmembers who received
the benefits of union representation without paying dues to the Union. The Unions
did or sought to solve their problem by contractual union-shop clauses. The GBCA
had neither a statutory exclusive representative status as to employers nor was there
any recognized method of compelling membership or dues payment. The GBCA
sought to deal with both matters by the IAP contract terms. The parties agreed
that the Union would require all nonmember contractors to incorporate the IAP
into their individual contracts (although of course the GBCA and the Union also
held as a basic tenet that there was only one contract, the GBCA-Union contract,
and, in fact that there could be only one contract). Moreover, the GBCA contract
made the continuance of the health program dependent on the continuance of the
47 This is not to say that our concepts of what subjects are the concern of management
and of labor, respectively, do not change or may not change. We may perhaps see the
time when the Union, instead of a wage increase, will agree that the sum originally de-
manded as a wage increment, will be contributed to the IAP, thus benefiting both labor
and management as partners in industry, or that the IAP should be supported by con-
tributions of 5 cents per hour from each employee and an equal or greater amount from
the Employer.
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IAP. In view of the Union's economic bargaining power, the aforementioned pro-
visions would insure that the nonmember contractors would thereby lose their free-
rider status since the contract provided not only assent to the IAP but financial
support thereto. As stated by Respondent and the GBCA in heir brief, the IAP is
intended to assure "financial support from all employers who gain the benefits of
multi-employer bargaining, so that there will be an agency available to hammer
out the collective bargaining agreement that forms the pattern for all contractors."
The foregoing is no doubt an oversimplified version of the situation. I pass no
judgment on the merits of the respective positions. Nor in this decision have I
passed judgment on what is the best type of unit for this industry, nor on the IAP
as a program that employers and unions may wish to accept. Respondent's agree-
ment to the IAP may be an act of commendable industrial statesmanship. The
GBCA purposes may have been as described or its motives may have been higher or
lower or ulterior or otherwise. The position or motives of the nonmembers have
not been expounded. In my report I have dealt with the legal issue in the complaint
with respect to the Charging Party and Respondent.
However, it is my opinion, that what has been said in this portion of my report
explains the rather unusual posture of some of the issues in the instant case. It
explains the extensive and able participation of the GBCA in the case where it
almost, in many respects, took unto itself the role of at least a corespondent. Also
more understandable is the rather labored position of the Union that it regarded
as a condition of employment and that it wished to negotiate with McCloskey through
the IAP the matter of management's paying management's labor relations repre-
sentatives in collective bargaining and grievances handling or other matters that
normally would not be included in a union's contract demands. Again, what is
good for the employers may be good for the Union and what affects the industry
affects the Union. But the logic of these statements as the definition of mandatory
bargaining subjects would extend the latter to participation in the corporate board or
directors, the allocation of profits, and would render "conditions of employment" as
a phrase without meaningful limitations . Perhaps some may believe that bargain-
ing should be on such a basis but under existing law this, in my opinion, is not
the case.48
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent and McCloskey set forth above, occurring in con-
nection with McCloskey's operations described above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
[Recommendations omitted from publication.]
98 Mutuality of interest of employer and employees, including stated interest in arriv-
ing at conditions of employment mutually agreeable and the mutual interest in avoiding
harm to the business and loss of employment to employees due to strikes, is written plainly
in the Borg-Warner ballot provision under the interpretation of "conditions of employ-
ment" urged by Respondent and the GBCA. Thus
5. Responsibilities of the Company and the Union
It is agreed by both the Company and the Union that it Is their mutual intent to
provide peaceful means for the settlement of all disputes that may arise between
them To assist both parties to carry out this intent in good faith, it is agreed that
it is essential that three basic steps be taken with respect to each dispute in order
to permit the greatest opportunity for satisfactory settlement . . . (1) a clear defini-
tion of the issue or issues , officially made known to all employees in the bargaining
unit; (2) a reasonable period of good faith bargaining on the issues as defined . ,
(3) an opportunity for all employees in the bargaining unit to vote, by secret, im-
partially supervised written ballot, on whether to accept or reject the Company's last
offer . . . the definition of issues referred to . . will include the proposals and
counter proposals of each party . . .