Operating Engineers, Local No. 12

National Labor Relations Board - Board Decisions

Dec 24, 1970

187 N.L.R.B. 430 (N.L.R.B. 1970)

430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
Union No. 12 and Associated General Contractors
of America, Inc., Southern California Chapter;
Engineering and Grading Contractors Association,
Inc.; and Building Industry Association of Califor-
nia, Inc.; d/b/a Southern California Contractors
Negotiating Committee and John N. Matich,
Individually and as Chairman of the Construction
Interruption Insurance Committee , a Sub-commit-
tee of the National AGC, and Chairman of said
Sub-committee's Policy Holders Advisory Commit-
tee. Cases 21-CB-3431 and 21-CB-3448
December 24, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING, BROWN , AND JENKINS
Upon charges duly filed, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 21, issued a consolidated com-
plaint and notice of hearing, dated December 19,
1969, against International Union of Operating
Engineers, Local Union No. 12. The complaint
alleged that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of Section 8(b)(3) of the National Labor
Relations Act, as amended. Copies of the charges,
complaint, and notice of hearing were duly served
upon the parties. On January 9, 1970, Respondent
filed its answer to the complaint denying the commis-
sion of an unfair labor practice and requesting that
the complaint be dismissed.
Thereafter, the parties entered into a stipulation of
facts and jointly moved to transfer this proceeding
directly to the Board for findings of fact, conclusions
of law, and order. The motion states that the parties
have waived their rights to a hearing before a Trial
Examiner, oral argument, the making of findings of
fact and conclusions of law by a Trial Examiner, and
the issuance of a 7 rial Examiner's Decision. The
parties also agreed that the charges, order consolidat-
ing cases, consolidated complaint, notice of hearing,
answer, and the stipulation of facts, including
exhibits, constitute the entire record in this proceed-
ing.
On February 13, 1970, the Board issued its order
granting motion, approving stipulation, and transfer-
ring the proceeding to the Board. Thereafter, the
General Counsel, the Contractors Negotiating Com-
mittee, John N. Matich, and Respondent filed briefs
with the Board and Associated General Contractors
' The motion to intervene is hereby granted in the absence of
opposition thereto
of America filed a motion to intervene, with a brief in
support of the complaint.'
On October 2, 1970, the National Labor Relations
Board, having determined that this proceeding
presented issues of importance in the administration
of the National Labor Relations Act, directed a
hearing before the Board on November 2, 1970, for
the purpose of oral argument.
The Board has considered the stipulation of facts,
exhibits, the briefs, oral arguments,2 and the entire
record in this proceeding, and hereby makes the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Associated General Contractors of America, Inc.,
Southern California Chapter (AGC), Engineering and
Grading Contractors Association , Inc. (EGC), and
Building Industry Association of California, Inc.
(BIA), are employer associations which exist for the
purpose of negotiating collective -bargaining agree-
ments on behalf of their members. Southern Califor-
nia Contractors Negotiating Committee (Committee)
is an unincorporated association comprising AGC,
EGC, and BIA, which exists for the purpose of
negotiating collective-bargaining agreements for
AGC, EGC, and BIA . The employer-members of
AGC, EGC, and BIA are engaged in the building and
construction industry in southern California, have
their principal offices and places of business in the
State of California , and, jointly , annually purchase
and receive supplies valued in excess of $50,000,
which come to them directly from points outside the
State of California, and the employer-members
furnish services valued in excess of $50,000 to
customers in the State of California which , in turn,
purchase goods valued in excess of $50,000 which
come to them directly from points outside the State of
California.
Respondent admits, and we find , that the employer-
members of AGC, EGC, and BIA, the associations
themselves , and the Contractors Negotiating Com-
mittee, collectively and individually , are, and at all
times material herein have been , employers engaged
in commerce or in an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act,
and we find that it will effectuate the purposes of the
Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers, Local
2 Member Jenkins was not present at the oral argument but has read the
transcript
187 NLRB No. 50
OPERATING ENGINEERS , LOCAL NO. 12
Union No. 12, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
On or about July 1, 1965, the Contractors Negotiat-
ing Committee entered into a collective-bargaining
agreement with the Respondent which expired June
30, 1969 . On June 17, 1969, the Respondent submitted
a proposed new collective -bargaining agreement to
the Committee which provided , inter aha, in article
III, that it would not be a violation of the agreement,
nor a cause for discharge , for employees to refuse to
work for a contractor who participated as a policy-
holder in an insurance plan or program which paid
benefits to the contractor during an employee work
stoppage , and that such action would not be subject to
arbitration and grievance procedures . On July 11,
1969, the Policy Holders Committee mailed informa-
tion about a Construction Interruption Insurance
Plan to members of the associations . At a bargaining
session held July 12, 1969, Respondent was provided
with information concerning the plan and at a
bargaining session held July 14 or 15, advised the
Committee it was withdrawing the "Strike Insurance
Strike" provisions from the proposed contract and
that they were no longer a subject of negotiations.
Following rejection of the Committee's final offer,
Respondent struck on July 19, 1969; on July 23 the
Employers instituted a lockout against their employ-
ees represented by Respondent . At a bargaining
session held July 30- Respondent submitted as article
III, paragraph H, a proposal that: (1) the grievance
and arbitration provisions of the contract would not
apply to contractors with strike insurance, the no-
strike, no-lockout clause would be inapplicable, and
grievances and disputes should be settled solely by
economic action ; (2) contractors participating in such
a program should also take out a wage-continuation
policy for their employees and, failing to do so, would
be personally liable for such benefits and any strike or
lockout insurance benefits accruing to the contractor
would be paid to the contractor's employees; and (3) a
contractor would be deemed to be participating when
it did not deny it and permit the Union to examine its
books. On August 4, 1969, the Committee proposed
that bargaining on strike insurance be held in
abeyance pending Board determination of whether or
not it was a mandatory bargaining subject. The
Respondent rejected this proposal. On August 5
Respondent submitted a revised proposal deleting the
provision permitting examination of an employer's
books. The Committee and the Respondent then
executed a letter of understanding August 14, post-
poning bargaining on strike insurance pending Board
431
determination of whether or not it was a mandatory
bargaining subject . The parties reached agreement in
principle on a new contract , subject to the terms of the
letter of understanding , on August 27, 1969. Respon-
dent 's members began returning to jobsite work
August 28.
The Respondent concedes in its brief that it insisted,
and is insisting , upon inclusion of its strike and
lockout insurance proposals in any contract. The
complaint alleges that this insistence , and a strike
purportedly in support thereof , violates Section
8(b)(3).
B. The Contract Provisions
Respondent 's ultimate proposal as set forth in the
parties' Letter of Understanding provides that:
1. The grievance and arbitration provisions of
this Agreement shall not be applicable with respect
to any Contractor who participates , either directly
or indirectly, in a strike or lockout insurance
program . All grievances or disputes between such
a Contractor and the Union shall be resolved
solely and exclusively by economic action and the
no-strike , no-lockout clause shall be inapplicable,
and the parties agree that neither party, nor any of
their successors or subrogees , shall seek an
injunction or initiate any other court or arbitration
proceeding against the other arising out of such a
dispute.
2. Should a Contractor participate in a strike or
lockout insurance program , such Contractor shall
also make provisions for wage continuance insur-
ance for its employees during all periods that the
Contractor is receiving strike or lockout benefits.
Such wage continuance insurance shall provide
benefits for the Contractor's employees at the
employees' average weekly earnings. In the event
the Contractor fails to provide such wage continu-
ance insurance , it is agreed that the Contractor
shall be personally liable for such wage continu-
ance benefits, and that all strike or lockout
insurance benefits owing to the Contractor shall be
paid instead by the Contractor or its insurance
company directly to the Contractor's employees.
The provisions of this Section 2 shall be enforce-
able by suit initiated by the Union of the
Contractor's employees, notwithstanding any oth-
er provisions of this Paragraph H.
Respondent makes no contention that these propos-
als do not concern strike insurance. The issue, as
framed by the Respondent , is ". . . whether or not
strike insurance , of the particular type involved
herein , is a mandatory subject of collective-bargain-
ing under the Act."
Respondent's insistence upon the clauses makes the
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreement as a whole hostage to
their acceptance, and within the clauses themselves
makes the price of obtaining grievance, arbitration,
and no-strike provisions in the first clause, and of not
providing wage-continuation insurance in the second,
an employer's abstention from participation in a
strike insurance plan. Since the Union conditioned
the contract as a whole upon acceptance of these
clauses , which in turn are conditioned on strike
insurance, bargaining about the contract was condi-
tioned on bargaining about strike insurance.
Respondent initially argues that its proposals may
be considered only in relation to the particular strike
insurance plan involved in this proceeding. However,
its proposals are not so limited. The clauses refer to "a
strike insurance or lockout insurance program" and
are not limited by their terms to any particular plan or
program. Since the issue here is not the good faith of
the parties, but whether or not the proposals are
mandatory bargaining subjects, it is the particular
proposal and not the problem it is addressed to which
should be considered.3
Much of the Respondent's argument is based on its
theory that the issue is confined to the particular
insurance program actively being considered by the
Employers. In addition, Respondent relies on the
premise that if any part of the insurance plan is
subject to mandatory bargaining, then it may bargain
to impasse concerning the plan as whole. Nonmanda-
tory bargaining subjects, however, are not trans-
formed merely by their relation to mandatory
subjects. The rationale for finding that insistence
upon a nonmandatory subject violates the Act rests
upon a contrary premise: by implication, such
insistence amounts to a refusal to bargain concerning
mandatory subjects.4 In view of the foregoing, we find
it unnecessary to rule upon Respondent's further
contention that certain aspects of the "particular
insurance plan," if implemented in the manner
Respondent envisions, would be unlawful and, so
Respondent argues, thus render the plan a mandatory
bargaining subject.
The remaining issue is whether or not strike
insurance, as such, is a mandatory subject for
collective bargaining.
Mandatory bargaining subjects are those comprised
in the phrase "wages, hours, and other terms and
conditions of employment" as set forth in Section 8(d)
of the Act. While the language is broad, parameters
have been established, although not quantified. The
touchstone is whether or not the proposed clause sets
a term or condition of employment or regulates the
relation between the employer and its employees.5
Generally stated, the purpose of strike insurance is
3 See N L.R.B v Arlington Asphalt Co, 318 F.2d 550 at 557 (C.A. 4).
4 N L R B v Wooster Division of Borg-Warner, 356 U S 342
to indemnify an employer in the event of a strike or
lockout. It is similar to union strike benefits and
mutual assistance by unions, which Respondent
contends are not mandatory bargaining subjects.
Strike insurance is not a term or condition of
employment. It does not regulate the relation between
an employer and its employees. It imposes no
condition or liability upon a union. Its sole effect is to
buttress the economic position of an employer in the
event of a labor dispute. We find nothing in the Act to
suggest that Congress envisioned requiring an em-
ployer to bargain with its employees concerning its
economic position, save as that position is derivatively
affected by "wages, hours, and other terms and
conditions of employment." It appears that what the
Respondent seeks is not regulation of the employer-
employee relation, but regulation of the Employers'
economic strength and relative bargaining position.
Such an objective is understandable and the Act does
not prohibit its achievement; neither, however, does
the Act require an employer to bargain concerning it
nor permit a union to insist upon it.
We find that the Respondent, by insisting upon its
proposals concerning strike insurance and by striking
in support thereof, refused to bargain and violated
Section 8(b)(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES
The conduct of the Respondent set forth above,
occurring in connection with the operations of the
Employers as set forth in section I, has a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tends to lead
to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section
8(b)(3) of the Act, we shall order that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Associated General Contractors of America,
Inc., Southern California Chapter; Engineering and
Grading Contractors Association, Inc.; and Building
Industry Association of California, Inc., are employer
associations which exist for the purpose of negotiating
collective-bargaining agreements on behalf of their
members. The Southern California Contractors Ne-
S N L R. B v. Wooster Division of Borg- Warner, supra.
OPERATING ENGINEERS , LOCAL NO. 12
gotiating Committee is an unincorporated association
comprising the foregoing employer associations
which exists for the purpose of negotiating collective-
bargaining agreements.
2. The associations listed in paragraph 1 and their
members are employers engaged in commerce or in an
industry affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
3. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
4. By insisting on bargaining with respect to the
Employers' participation in a strike insurance plan
and by striking in support thereof the Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b)(3) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
International Union of Operating Engineers, Local
Union No. 12, Los Angeles, California, its officers,
agents, and representatives, shall:
1. Cease and desist from refusing to bargain
collectively by insisting that the Employers include in
any collective-bargaining agreement any provision
restricting or abridging the Employers' right to
participate in a strike insurance plan or program and
by striking in support thereof.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at Respondent's business offices and
meeting hall copies of the attached notice marked
"Appendix."6 Copies of said notice, on forms
provided by the Regional Director for Region 21,
after being duly signed by the Union's representative,
shall 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.
(b) Mail to the Regional Director for Region 21
copies of the aforementioned notice for posting by the
Employers, the Employers willing, in places where
notices to employees are customarily posted. Copies
433
of said notices, to be furnished by the Regional
Director for Region 21, shall, after being duly signed
by Respondent's official representative, be forthwith
returned to the Regional Director.
,(c) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "POSTED BY
ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be
changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively by
insisting that any collective-bargaining agreement
contain a provision restricting or abridging the
right of employer-members of Associated General
Contractors of America, Inc., Southern California
Chapter; Engineering and Grading Contractors
Association, Inc., and Building Industry Associa-
tion of California, Inc.; d/b/a/ Southern Califor-
nia Contractors Negotiating Committee, to partic-
ipate in a strike insurance plan or program, or by
striking in support of that insistance.
INTERNATIONAL UNION
OF OPERATING
ENGINEERS, LOCAL
UNION No. 12
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Eastern Columbia Building, 849 South Broad-
way, Los Angeles, California 90014, Telephone
213-688-5200.