Operative Plasterers', Etc., Local No. 2

National Labor Relations Board - Board Decisions

Nov 30, 1964

149 N.L.R.B. 1264 (N.L.R.B. 1964)

1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become and remain or to refrain from becoming or
remaining members of Sheet Metal Workers' International Association , Local 503,
AFL-CIO, or any other union.
ELLIOTT-WILLIAMS CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE -We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended , after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board 's Regional Office, 614 ISTA
Center, 150 West Market Street , Indianapolis , Indiana, Telephone No. Melrose
3-8921 , if they have any questions concerning this notice or compliance with its
provisions.
Operative Plasterers' & Cement Masons' International Associa-
tion Local #2, AFL-CIO [Arnold M. Hansen ] and Jones &
Jones, Inc., and Progressive Plastering & Lathing Contractors'
Association
Laborers & Hod Carriers Local #300 and Jones & Jones, Inc.,
and Progressive Plastering & Lathing Contractors' Associa-
tion. Cases Nos. 31-CB-2014, 21-CC-570, 21-CB-90123, and 21-
CC-581. November 30, 1964
DECISION AND ORDER
On September 19, 1963, Trial Examiner Herman Marx issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in certain unfair labor practices, and recommend-
ing that they cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondents had not engaged in
certain other unfair labor practices, as to which he recommended that
the complaint be dismissed. Thereafter, the Charging Party and
Respondent Local #2 filed exceptions to said Decision, and the
General Counsel and Respondent Local #300 filed exceptions, and
briefs.
The Board has considered the Trial Examiner's Decision, the
exceptions and briefs, and the entire record in the case , and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner as modified herein.
1. The Trial Examiner, relying on the Board's decision in Colson
and Stevens 1 and subsequent cases by which he was then bound, found
that the Respondents' use of economic pressures in the form of strike
1 Colson and Stevens Construction Co., Inc ., 137 NLRB 1650.
149 NLRB No. 106.
OPERATIVE PLASTERERS', ETC., LOCAL NO. 2 1265
threats and employees inducements to cease work which were designed
to obtain from Hansen subcontracting clauses within the construction
industry proviso to Section 8 (e) constitute violations of Section
8(b) (4) (A). More recently, however, the Board, after reexamining
the Colson and Stevens doctrine, overruled that and similar cases, and
now holds that a labor organization does not violate Section 8 (b)
(4) (A) by such conduct? Accordingly, we reverse the Trial Exam-
iner's finding in that respect.
The Trial Examiner also found Section 8(b) (4) (B) violations
based upon the same decisions now overruled. For the reasons set
forth below, we find no such 8 (b) (4) (B) violations .3 The findings
to that effect are based entirely upon the allegations of the complaint
and the formal admissions of those allegations by the Respondents
in their answers. The complaint alleges that an object of the threats
to picket and of the picketing was to force or require Hansen to
cease doing business with "other persons," who are not specified. No
purpose to interrupt business relations between Hansen and an iden-
tified and existing subcontractor is alleged. None was litigated.4
The contracts obtained, containing clauses which would have been
unlawful under Section 8 (e) but for the construction industry pro-
viso thereto, were of a kind the Respondents were privileged to obtain
in this industry by economic pressure. In the circumstances, we will
not imply from the obtaining of such a contract by such pressure, and
from that alone, a purpose to cause a cessation of business within the
meaning of Section 8(b) (4) (B).5 Accordingly, we shall dismiss
those portions of the complaint which allege 8(b) (4) (A) and (B)
violations.
2. We shall likewise dismiss the 8(b) (3) allegation to the extent
based upon the inclusion of the 8 (e) -type clauses in the contracts in
question. There is no issue before us concerning the validity of these
clauses within the construction industry proviso of Section 8(e), and
we have found that the Respondents were not in violation of Section
2 Northeastern Indiana Building and Construction Trades Council (Centlivre Village
Apartments ), 148 NLRB 854
3 Member Fanning would in no event affirm the Trial Examiner's finding of 8(b) (4) (1)
and (if) (B) violations in the absence of evidence as to identifiable subcontractors with
whom Hansen would be forced to cease doing business as the result of the contracts which
the Respondent Unions insisted that he sign See Amalgamated Lithographers of America,
Independent, and Local No 14 (Lithographers of Plala ), 137 NLRB 1674, 1678, foot-
note 7. See also Mr Fanning's dissents in L B . Wilson, Inc (Radio Station 1VC%Y),
125 NLRB 786, 794, and Amalgamated Lithographers of America, et at. (The Employing
Lithographers etc ), 130 NLRB 985, 991, footnote 15
4 Note that in Centhvr c, above, the record amply demonstrated that the picketing had
as one of its objects forcing or requiring Centlivre to cease doing business with a specific
subcontractor
5 Chairman McCulloch and Member Leedom concur in this conclusion only to the extent
that it applies to the circumstances present in this case , i e , where the contract provi-
sions sought are exempted from Section 8(e) by the proviso thereto In other respects
they would adhere to their opinion as stated in Amalgamated Lithographers of 4nie,ica,
and Local No 14, supra, at 1678.
7 7 0-0 7 6-6 5-v o f 149-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b) (4) (A) in trying to obtain them from- Hansen by economic
pressure. We therefore conclude that the Respondents' resort to such
lawful pressure to secure subcontracting clauses valid in this industry
cannot be said to constitute a refusal to bargain in violation of Sec-
tion 8(b) (3) of the Acts
We disagree with the Trial Examiner's dismissal, of those 8(b) (,3)
allegations of the complaint having to do with (a) the Respondents'
admitted demand and insistence that Hansen accept their contracts
"without affording [Hansen] an opportunity.-to bargain collectively
and without any intention to bargain collectively in good faith with
Hansen," and (b) the Respondents' admitted insistence.-as a condi-
tion of agreement upon provisions that are not mandatory subjects
for bargaining, such as the performance bond and industry promo-
tion fund clauses. The Trial Examiner took the position, notwith-
standing the clear admissions in Respondents' answers, that testimony
was nevertheless required as to what exactly occurred before the
complaint's allegations could be evaluated and findings made. We
conclude, to the contrary, that the aforesaid allegations of the com-
plaint admitted by the Respondents, taken as a whole, set out ultimate
facts sufficient to support an 8(b) (3) refusal to bargain. "Demand-
ing and insisting" upon a contract "without affording an opportunity
to bargain" and "without intention to bargain collectively in good
faith" are sweeping conclusions, as the Trial Examiner observed, but,
if the words have meaning at all, they are hardly susceptible of an
interpretation that the Respondents may have bargained in good
faith. When, in addition, a union admits, as the Respondents do
here, that the employer was thereby "compelled to" execute a con-
tract, there seems no question that its conduct is proscribed by Sec-
tion 8(b) (3). These sweeping admissions of the Respondents were
not given "effective weight" by the Trial Examiner because of what
he termed "an admission" by the Charging Party that bargaining
was going on at all times, plus the fact that the Employer is
apparently willing to abide by the major portion of each contract-
except only the nonmandatory provisions and the subcontracting
clause. However, we do not regard the Employer-Charging Party's
willingness to live with some of the contract as negating the afore-
said 8(b) (3) statutory violations which the Respondents' own
answers so clearly admit. Nor do we regard the Association-
Charging Party's offhand statement on the record, in a confused con-
text, that bargaining was going on at all times, as nullifying the effect
of Respondents' formal admissions in the answers. That statement
was made at the end of a discussion as to the remedy sought, in the
6 As the Supreme Court has stated. "The use of economic pressure . . . Is of itself not
at all inconsistent with the duty of bargaining in good faith ." N.L R B. v. Insurance
Agents' International Union (Prudential Ins. Co .), 361 U.S. 477, 490-491.
OPERATIVE PLASTERERS', ETC., LOCAL NO. 2 1267
course of which the Association emphasized as one of its objections to
the Respondents' course of conduct that the Association had been
bypassed and the Employer contacted directly. We find merit in the
General Counsel's contention that the statement was a gratuitous one
by the representative of the Charging Parties, made after the record
was in effect closed and the issues already drawn by formal admis-
sion of specific allegations.
We also find merit in the General Counsel's exceptions to-the Trial
Examiner's failure to find 8(b) (3) in the Respondents' insistence
upon the inclusion in the contract of the performance bond and
industry promotion fund provisions. The Board has held that such
provisions are nonmandatory subjects of bargaining. The Trial
Examiner rested his dismissal on the ground that no impasse in bar-
gaining had been reached at all, let alone one over the specific inclu-
sion of these nonmandatory subjects. It is clear, however, that
Respondents' admitted insistence upon, and economic pressure to
secure, a package contract with such clauses, without affording an
opportunity to bargain and without intent to bargain in good faith,
precluded an impasse such as the Trial Examiner thought necessary
before insistence on such clauses could constitute a refusal to bargain.
In fact, the Respondents were beyond the possibility of impasse for
they admit that they did not bargain at all. By compelling the exe-
cution of a contract complete with clauses they had no right to
compel, we find that the Respondents refused to bargain in good
faith in violation of Section 8(b) (3).7
3. With respect to the 8(b) (1) (B) allegation, the Respondents
admitted the complaint's allegation that "at all times material herein
Hansen has designated Progressive Association as his representative
for collective bargaining." The Respondents also admitted the
further allegation that they "demanded and insisted that Hansen
immediately sign an agreement without affording him an opportunity
to bargain through Progressive Association and restrained and pre-
cluded Hansen from bargaining through Progressive Association and
continuing to select Progressive Association as his representative for
collective bargaining." It appears from the record that the Respond-
ents knew that Hansen had his own bargaining representative, that
each Respondent nevertheless insisted upon Hansen entering into a
contract with it through a different representative, and that both
Respondents precluded Hansen from bargaining through his own
representative. As a corroborative fact, the agreements in evidence,
which the Respondents insisted that Hansen sign, name associations
other than Progressive as the employer bargaining agent. In the
7 See MoCloslcey and Company, 137 NLRB 1583, 1584; A. D. Cheatham Painting Com-
pany, 126 NLRB 997.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances , we believe that the foregoing constitutes sufficient
proof that the-Respondents restrained, and coerced Hansen "in the
selection of his representatives for the purposes of collective bar-
gaining" within the meaning of Section 8(b) (1) (B). We so find.
ADDITIONAL CONCLUSIONS OF LAW
We adopt the conclusions of law of the Trial Examiner, except
Nos. 6, 7, 8, 9, and 13. In lieu thereof we conclude as follows :
6. By refusing to bargain with Arnold M. Hansen and Progressive
Association as his representative in the units found appropriate here-
in, by demanding and insisting upon a contract without affording
Hansen an opportunity to bargain and without intention to bargain
collectively in good faith, Local #2 and Local ,#300 have engaged in
unfair labor practices within the meaning of Section 8(b) (3) of the
Act.
7. By insisting and demanding that Hansen execute a contract
which requires the posting of a performance bond and the contribu-
tion of money to an industry promotion fund without affording him
an opportunity to bargain and without intention to bargain col-
lectively in good faith, Local #2 has engaged in unfair labor prac-
tices within the meaning of Section 8(b) (3) of the Act.
8. By insisting and demanding that Hansen execute a contract
which requires the posting of a performance bond without affording
him an opportunity to bargain and without intention to bargain in
good faith, Local #300 has engaged in unfair labor practices within
the meaning of Section 8(b) (3) of the Act.
9. By demanding and insisting that Hansen immediately sign an
agreement without affording him an opportunity to bargain through
Progressive Association, Local,#2 and Local,#300 have engaged in
unfair labor practices in violation of Section 8(b) (1) (B) of the Act.
13. Respondents Local #2 and Local #300 have not, as alleged in
the complaint, engaged in unfair labor practices within the meaning
of Section 8(b) (4) (i), (ii) (A) and (B) ; nor, except as otherwise
found herein, engaged in unfair labor practices within the meaning
of Section 8(b) (3) of the Act.
THE REMEDY
As Hansen has evidenced a willingness to be bound by the con-
tracts except for certain specific provisions dealt with herein, we shall
not set aside the contracts and order the parties to cease giving effect
to them as urged by the General Counsel. However, we shall order
the Respondents not to insist upon a contract in the future without
affording Hansen an opportunity to bargain and without intention to
bargain collectively in good faith. We shall also order the Respond-
OPERATIVE PLASTERERS', ETC., LOCAL NO. 2 1269
ents to cease and desist from coercing or restraining Hansen in the
selection of his representative for the purposes of collective bargain-
ing. Also, we shall order Respondent Local #2 to notify Hansen
that it will not insist upon a performance bond or contributions to.
an industry promotion fund under the existing contract and to reim-
burse Hansen for expenses incurred in those respects to date, and
Local #300 to notify Hansen that it will not insist upon a perform-
ance bond and to reimburse Hansen for expenses incurred in that
respect to date.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders the
following :
A. Operative Plasterers' and Cement Masons' International Asso-
ciation Local #2, AFL-CIO, its officers, agents, representatives, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain with Arnold M. Hansen or Progressive
Plastering and Lathing Contractors' Association as his representative
in the unit of plasterers found appropriate herein by demanding and
insisting upon a contract without affording Hansen an opportunity
to bargain and without intention to bargain collectively in good faith.
(b) Refusing to bargain with Arnold M. Hansen by insisting that
Hansen execute a contract which requires the posting of a perform-
ance bond and the contribution of money to an industry promotion
fund, without affording an opportunity to bargain and without inten-
tion to bargain collectively in good faith.
(c) Coercing or restraining Arnold M. Hansen in the selection of
his representative for the purposes of collective bargaining.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Notify Arnold M. Hansen, in writing, that it will not insist
upon a performance bond or contributions to the industry promotion
fund, and reimburse Hansen for expenses incurred in this connection
to date.
(b) Post in conspicuous places at its principal office and usual
membership meeting place, including all places where notices to its
members are customarily posted, copies of the attached notice marked
"Appendix A." 8 Copies of said notice, to be furnished by the
Regional Director for Region 21 of the National Labor Relations
Board, shall, after being signed by a duly authorized representative
8 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 "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the said Local $k2, be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter,
in such conspicuous places. Reasonable steps shall be taken by the
said Local #2 to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Forthwith mail copies of the said notices to the said Regional
Director of the Regional Office of the National Labor Relations
Board in Los Angeles, California, after such copies have been signed
as provided above, for posting by Arnold M. Hansen, if he so agrees,
at places where he customarily posts notices to individuals in his
employ.
(d) Notify the said Regional Director for Region 21 of the
National Labor Relations Board, in writing, within 10 days from the
date of this Order, what steps Local #2 has taken to comply
herewith.
B. Laborers & Hod Carriers Local ,#300, its officers, agents, repre-
sentatives, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain with Arnold M. Hansen or Progressive
Plastering & Lathing Contractors' Association as his representative
in the unit of plaster tenders found appropriate herein by demanding
and insisting upon a contract without affording Hansen an oppor-
tunity to bargain and without intention to bargain collectively in
good faith.
(b) Refusing to bargain with Arnold M. Hansen by insisting and
demanding that Hansen execute a contract which requires the posting
of a performance bond, without affording an opportunity to bargain
and without intention to bargain collectively in good faith.
(c) Coercing or restraining Arnold M. Hansen in the selection of
his representative for the purposes of collective bargaining.
(d) Causing, or attempting to cause, Arnold M. Hansen to dis-
criminate against any employee in violation of Section 8(a) (3) of
the Act.
(e) In any manner restraining or coercing employees of Arnold M.
Hansen in the exercise of rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify Arnold M. Hansen, in writing, that it will not insist
upon a performance bond, and reimburse Hansen for expenses
incurred in this connection to date.
(b) Make Clarence Greene whole in the manner set forth in the
section of the Trial Examiner's Decision entitled "The Remedy."
OPERATIVE PLASTERERS', ETC., LOCAL NO. 2 1271
(c) Forthwith notify Arnold M. Hansen, in writing, that it has
no objection to the employment of Clarence Greene by the said
Arnold M. Hansen; and notify Greene, if presently serving in the
Armed Forces of the United States, that it has no objection to such
employment.
(d) Post in conspicuous places at its principal office and usual
membership meeting place, including all places where notices to its
members are customarily posted, copies of the attached notice marked
"Appendix B." 9 Copies of said notice, to be furnished by the
Regional Director for Region- 21 of the National Labor Relations
Board, shall, after being signed by a duly authorized representative
of the said Local #300, be posted by it immediately upon receipt
thereof, and maintained by it for 60 consecutive days thereafter, in
such conspicuous places. Reasonable steps shall be taken by the said
Local #300 to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Forthwith mail copies of the said notices to the said Regional
Director of the Regional Office of the National Labor Relations
Board in Los Angeles, California, after such copies have been signed
as provided above, for posting by Arnold M. Hansen, if he so agrees,
at places where he customarily posts notices to individuals in his
employ.
(f) Notify the said Regional Director for Region 21 of the
National Labor Relations Board, in writing, within 10 days from the
date of this Order, what steps Local #300 has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
alleges unfair labor practices not herein found by the Board.
9In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
NOTICE TO ALL MEMBERS OF OPERATIVE PLASTERERS' & CEMENT
MASONS' INTERNATIONAL ASSOCIATION LOCAL #2, AFL-CIO, AND
INDIVIDUALS EMPLOYED BY ARNOLD M. HANSEN
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, as amended, we hereby notify our members and the
said employees that :
WE WILL NOT refuse to bargain with Arnold M. Hansen or
Progressive Plastering & Lathing Contractors' Association as
his representative in the unit of plasterers found appropriate by
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demanding and insisting upon a contract without affording
Hansen an opportunity to bargain and without intention to
bargain collectively in good faith.
WE WILL NOT refuse to bargain with Arnold M. Hansen by
insisting and demanding that Hansen execute a contract which
requires the posting of a performance bond and the contribution
of money to an industry promotion fund, without affording an
opportunity to bargain and without intention to bargain col-
lectively in good faith.
WE WILL NOT coerce or restrain Arnold M. Hansen in the
selection of his representative for the purposes of collective
bargaining.
WE WILL notify Arnold M. Hansen, in writing, that we will
not insist upon a performance bond or contributions to the indus-
try promotion fund, and we will reimburse Hansen for expenses
incurred to date by reason of these provisions of the contract.
OPERATIVE PLASTERERS' & CEMENT MASONS'
INTERNATIONAL ASSOCIATION LOCAL #2,
AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of such posting and must not be altered, defaced, or covered by
any other material.
Information regarding provisions of this notice and compliance
with its terms may be secured from the Regional Office of the
National Labor Relations Board, 849 South Broadway, Los Angeles,
California, Telephone No. 688-5204.
APPENDIX B
NOTICE TO ALL MEMBERS OF LABORERS & HOD CARRIERS LOCAL
#300 AND INDIVIDUALS EMPLOYED BY ARNOLD M. HANSEN
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, as amended, we hereby notify our members and the
said employees that :
WE WILL NOT refuse to bargain with Arnold M. Hansen or
Progressive Plastering & Lathing Contractors' Association as his
representative in the unit of plaster tenders found appropriate
by demanding and insisting upon a contract without affording
Hansen an opportunity to bargain and without intention to
bargain collectively in good faith.
OPERATIVE PLASTERERS', ETC., LOCAL NO. 2 1273
WE WILL NOT' refuse to bargain with Arnold M. Hansen by
insisting and demanding that Hansen execute a contract which
requires the posting of a performance bond, without affording an
opportunity to bargain and without intention to bargain col-
lectively in good faith.
WE WILL NOT coerce or restrain Arnold M. Hansen in the
selection of his representative for the purposes of collective
bargaining.
WE WILL notify Arnold M. Hansen, in writing, that we will
not insist upon a performance bond, and we will reimburse
Hansen for expenses incurred to date by reason of this provi-
sion of the contract.
WE WILL NOT cause, or attempt to cause, Arnold M. Hansen to
discriminate against any employee in violation of Section 8(a)
(3) of the Act.
WE WILL NOT in any manner restrain or coerce employees of
Arnold M. Hansen in the exercise of rights guaranteed them by
Section 7 of the Act.
WE WILL make Clarence Greene whole for any loss of pay he
suffered as a result of the fact that we caused Arnold M. Hansen
to discharge him in violation of the Act.
WE HAVE no objection to the employment of Clarence Greene
by Arnold M. Hansen.
LABORERS & HOD CARRIERS LOCAL,# 300,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
NoTE.-We will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States that we have no objec-
tion to his employment by Arnold Hansen.
This notice must remain posted for 60 consecutive days from the
date of such posting, and must not be altered, defaced, or covered by
any other material.
Information regarding provisions of this notice and compliance
with its terms may be secured from the Regional Office of the
National Labor Relations Board, 849 South Broadway, Los Angeles,
California, Telephone No. 688-5204.
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
The complaint alleges that each of the two Respondent labor organizations , respec-
tively named Operative Plasterers ' & Cement Masons' International Association, Local
#2, AFL-CIO (Local 2 herein ), and Laborers & Hod Carriers Local # 300 (Local
300 herein ) restrained and coerced an employer named Arnold M. Hansen in the
choice of a bargaining representative , thus violating Section 8 (b)(1)(13) of the
National Labor Relations Act, as amended ( 29 U.S .C. 151 et seq., herein called the
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act); unlawfully refused to bargain with Hansen, thereby violating Section 8(b) (3)
of the Act; and, in violation of Section 8(b) (4) (A) and (B) of the Act, induced and
encouraged individuals employed by Hansen to cease work at various construction
projects, and "threatened Hansen with shutting down work at all other construction
projects of Hansen," with an object of forcing or requiring him "to enter into an
agreement ... prohibited by Section 8(e) of the Act . . . and to cease doing business
with other persons." In addition, the complaint charges that Local 300 violated Sec-
tion 8 (b) (1) (A) and 8 (b) (2) of the Act by causing Hansen to discharge an employee
because the latter "was not a member of Local #300 or any other union." 1
Each Respondent has filed an answer which, as amended at the hearing in this pro-
ceeding, concedes the facts regarding Hansen's business operations alleged in the com-
plaint, but denies the conclusion drawn therefrom in the complaint to the effect that
Hansen has been engaged in interstate commerce, or in operations affecting it, within
the meaning of the Act; and admits that such Respondent engaged in the particular
activities imputed to it, but denies that they were unlawful, that objects of the work
stoppages, and of the inducement and encouragement of employees of Hansen to
engage in them, were to force or require Hansen to enter into an agreement prohibited
by Section 8 (e) and to cease doing business with other persons
Pursuant to notice duly served by the General Counsel upon all parties entitled
thereto, a hearing upon the issues in this proceeding has been held before Trial Exam-
iner Herman Marx at Los Angeles, California. All parties participated in the hearing
and were afforded a full opportunity to be heard, to examine and cross-examine wit-
nesses, adduce evidence, file briefs, and submit oral argument. I have read and con-
sidered the respective briefs of the General Counsel and the Respondents filed with
me since the close of the hearing The Charging Parties have not filed a brief.
No testimony was represented at the hearing, and the total evidentiary record
consists of allegations of the complaint that are admitted in the answers; some oral
stipulations and admissions made at the hearing; and copies of two contracts. Upon
consideration of the record, I make the following-
FINDINGS OF FACT
1. JURISDICTION
Arnold M. Hansen does business as a plastering contractor in the building and con-
struction industry in Los Angeles, California, and is, and has been at all material
times, an employer within the meaning of Section 2(2) of the Act.
Throughout the periods material to the issues, Hansen was engaged, as a subcon-
tractor, in performing the plastering work on five construction projects in the Los
Angeles area, including one described in the record as "The Drew Jr. High School
project." The lathing portion of the work required of Hansen at all the projects has
been performed by a contractor named Citro Lathing Company (herein called Citro)
under subcontracts between that firm and Hansen
During the year preceding the issuance of the complaint, Hansen, "in connection
with his business," purchased and received products valued in excess of $24,500 from
suppliers in California, who, in turn, had purchased and received such material
"directly" from sources located outside that State. In the performance of its subcon-
tracts with Hansen at the five projects, Citro has purchased and received for use there
products valued in excess of $41,800 from suppliers in California who, in turn, had
purchased and received them "directly" from sources located outside that State.
Based upon the evidence of the purchase, receipt, and business use of products that
came from points outside California, as described above, I find, contrary to the
Respondents, that Hansen and Citro have been engaged, at all times material to the
issues, in interstate commerce, and in operations affecting such commerce, within the
meaning of the Act; and that the Board has jurisdiction over the subject matter of
this proceeding.
The Respondents maintain, however, that assertion of the Board's jurisdiction
will not effectuate the policies of the Act because the "indirect (interstate) inflow" of
materials to Hansen, valued at an unspecified figure in excess of $24,500 for the
I The complaint is based on the charges respectively filed in the cases listed in the cap-
tion The charges in Cases Nos. 21-CC-570 and 21-CB-2014 were filed on January 9,
1963, and an amendment to the latter was filed on April 15, 1963. The charges in Cases
Nos. 21-CC-581 and 21-CB-2023 were filed on January 21, 1963. The cases have been
consolidated for hearing. Copies of the charges, the amended charge, and the complaint
have been duly served upon each party entitled thereto.
OPERATIVE PLASTERERS', ETC., LOCAL NO. 2 1275
relevant year , is less than $50,000, and thus does not meet criteria promulgated by
the Board in Siemons Mailing Service , 122 NLRB 81. I am not in accord with this
position , for there is warrant for the treatment of the "indirect ( interstate ) inflow" of
materials valued at $41,800 to Citro, as though it were to Hansen. On that premise,
combining the "indirect inflow" to Hansen with that to Citro, the "inflow' 'to the
former exceeded $50,000.
Authority for such a course exists in Carpenters Local Union No. 1028 etc. (Den-
nehy Construction Company), 111 NLRB 1025, where the Board held that it would
apply the nonretail criteria, then in effect, to "a general contractor on the basis of
the total volume of his business or of the general construction which he undertakes
to discharge"; and, combining the "inflow" to the general contractor with that to its
subcontractors at a project, asserted jurisdiction. To be sure, Hansen was a subcon-
tractor at the five projects involved here, and not a "general contractor" as that term
is customarily used in the construction industry, but to draw a distinction on that
basis between the Carpenters case and this is as much as to hinge the rights and obliga-
tions of the parties upon a game of words rather than the policies of the Act. It is
evident that in Carpenters the Board reached the jurisdictional conclusion it did
because of the business reality that the subcontractors were the general contractor's
vehicles for the performance of its contractual obligations . Comparably, Citro per-
formed the same function for Hansen, and thus, upon the authority of the Carpenters
case, I combine the "indirect (interstate) inflow" to Hansen with that to his subcon-
tractor, Citro, and, on that basis, I hold that it will effectuate the policies of the Act
for the Board to assert jurisdiction in this proceeding.2
II. THE LABOR ORGANIZATION INVOLVED
Local 2 and Local 300 are labor organizations within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory findings
All plasterers employed by Arnold M. Hansen in Los Angeles and Orange Counties,
California, excluding supervisors, as defined by the Act, constitute, and have con-
stituted at all material times, a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act; and Local 2 is, and has been at all
material times, the exclusive bargaining representative of all employees in such unit,
within the meaning of Section 9(a) of the Act.
All plaster tenders employed by Hansen "in the geographical area of Los Angeles
County, Orange County, Catalina Island, and the following offshore islands if the
point of embarkation is from Los Angeles or Orange County, namely, Richardson
Rock, Santa Cruz Island, Arch Rock, San Nicolas Island, San Clemente Island, San
'The nonretail jurisdictional criteria in effect at the time of the Carpenters case had
been promulgated in Jonesboro Grain Drying Cooperative, 110 NLRB 481 , and differed
from those now in effect as a result of the Siemons decision . In passing , It may be noted
that the Siemons criteria are far less restrictive than those of Jonesboro , but putting
that aside, the differences between the standards are immaterial. The important point is
that the relationship between Hansen and Citro is sufficiently analogous to that between
the general contractor and the subcontractors involved in Carpenters to warrant the asser-
tion of jurisdiction here on the basis of the combined "Inflow" to Hansen and Citro. I
note, also , that I base no findings on evidence of the "indirect inflow" to the general
contractors (Morley Construction Co. and Wapner & Fremer) at two of the projects where
Hansen performed plastering work . In urging that this evidence be taken into account
for jurisdictional purposes, the General Counsel relies on secondary boycott cases ( Local 3,
International Brotherhood of Electrical Workers, et at. (Peter Ds Gangs , d/b/a Di Gangi
Electrical Services ), 130 NLRB 1458 ; International Brotherhood of Teamsters, et at.
(McAllister Transfer, Inc ), 110 NLRB 1769; Truck Drivers Local Union No. 649, etc.
(Jamestown Builders Exchange, Inc ), 93 NLRB 386; Madison Building and Construction
Trades Council , et at (Wallace Hildebrandt & John Kiefer, d/b/a H & K Lathing Go.),
134 NLRB 517 ), where the Board asserted jurisdiction on the basis of combined operations
of the primary and secondary employers involved . This is not such a case, as a reading of
the complaint makes evident , notwithstanding the allegations of violation of Section
8(b) (4) (A ) and (B ). In any event , in view of the jurisdictional conclusions reached,
1 deem it unnecessary to decide what effect should be given to the "inflow" to the Morley
and Wapner firms.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miguel Island, San Rosa Island, Anacapa Island (Channel Islands Monument), and
Santa Barbara Island, but excluding executives, civil engineers and their helpers,
superintendents, assistant superintendents, master mechanics, timekeepers, messenger
boys, office workers or any employees of the contractor above the rank of craft fore-
man and supervisors as defined by the Act," constitute, and have at all material times
constituted, a unit appropriate for purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act; and Local 300 is, and has been at all material times,
the exclusive bargaining representative of all employees in such unit, within the mean-
ing of Section 9(a) of the Act.
An organization named Progressive Plastering & Lathing Contractors' Association
(Progressive Association herein) has been designated as Hansen's "representative for
collective bargaining," and has held that status at all times material to the i ssues.
On or about December 17, 1962, Local 2, acting through a business representative,
Euel Petty, "demanded and insisted" that Hansen enter into a contract with it affecting
individuals employed by him, and that the agreement include certain provisions deal-
ing with subcontracting, and requiring Hansen "to post a bond as security for the
performance of the agreement and to contribute money to an industry promotion
organization"; and, in furtherance and support of its demands, by directions and
appeals to them, encouraged individuals employed by Hansen "to cease work at the
Drew Jr. High School project, and threatened Hansen with shutting down work at all
(his) construction projects . . described above, unless Hansen immediately acceded
to ... Local # 2's aforesaid demands."
As a result of such activities by Local 2 in support of its demands Hansen, on or
about December 17, 1962, "to avoid work stoppages or complete shutdown of work
at the construction projects," became a party to an existing contract, dated June 20,
1962, between an association of construction contractors and a group of unions,
including Local 2. The agreement, which contains the contract terms demanded by
Local 2, deals to a large degree with conventional subjects of collective bargaining
(hours of employment and wages, for example), but only provisions of articles I, IV,
and VII (respectively, containing the subcontracting, bonding, and industry promotion
provisions ) are material. The first sentence of article I provides: "In the event a
Contractor chooses to contract to another Contractor all or portions of his contract,
such contracts shall be in compliance with this Agreement." Article IV of the agree-
ment requires each contractor to post a bond for $1,000 which "shall be liable for
assessment for non-payment of wages" and various other sums due under provisions
of the contract; and regulates the use and disposition of such bonds. Section 4 of
article VII provides that each contractor pay to an organization named Southern
California Plastering Institute, Inc. (herein called the Institute) the sum of $0.05 for
each hour for which plasterers and their apprentices are paid under the contract.
As the parties stipulated at the hearing, the purposes of the Institute "are to adver-
tise and promote the use of lath and plaster and to stimulate its [sic ] use in the build-
ing industry."
On or about July 30, 1962, Local 300, acting through a business representative,
Ralph Cordiva, "demanded and insisted" that Hansen enter into a contract with it
affecting individuals employed by him, and that the agreement include certain provi-
sions dealing with subcontracting, and requiring Hansen "to post a bond as security
for the performance of the agreement." These demands were repeated to Hansen by
Local 300 on or about August 8, 1962, through a business agent named Joseph Mur-
dock. In addition, Murdock, about the same date, "demanded that Hansen discharge
and caused [him] to discharge" one Clarence Greene (an employee of Hansen, as one
may infer, although the complaint does not characterize him as such) because
Greene "was not a member of Local # 300 or any other union."
Also, on or about August 8, 1962, in furtherance and support of its demands,
described above, Local 300, acting through Murdock, by directions and appeals to
them, encouraged individuals employed by Hansen at the Drew Junior High School
project "to cease work at the said construction project," and induced such individuals
to engage in "a work stoppage" at the project. In addition, on the same day, Local
300, through Murdock, "threatened Hansen with shutting down work at all [his]
other construction projects ... described . . . above, unless [he] immediately acceded
to. . Local # 300's aforesaid demands "
Following such activities by Local 300, and as a result thereof, "to avoid work
stoppages or complete shutdown of work at the construction projects," Hansen
became a party to an existing contract, dated June 4, 1962, between two associations
OPERATIVE PLASTERERS', ETC. , LOCAL NO. 2 1277
of construction contractors and a group of unions, including Local 300.3 The con-
tract, which contains the provisions demanded by Local 300, deals to a large extent
like the Local 2 contract, with conventional subjects of collective bargaining , but only
provisions of articles I and X (respectively containing the subcontracting and bonding
provisions) are material here. Subdivision C of article I provides: "If the Con-
tractors, parties hereto, shall subcontract work as defined herein, provision shall be
made in such subcontract that said subcontractor be signatory to this Agreement, and
abide by all provisions set forth within this Agreement." Article X requires that
contractors subject to the agreement furnish a bond in the sum of $1,000 which "shall
be liable for any assessment for wages" and various other payments required of such
contractors under the agreement; and regulates the use and disposition of such bonds.
B. Discussion of the issues, concluding findings
The General Counsel's claim that each of the Respondent Unions restrained and
coerced Hansen in the selection of a bargaining representative rests on admitted alle-
gations of the complaint that each union "demanded and insisted that Hansen immedi-
ately sign an agreement without affording him an opportunity to bargain through
Progressive Association and restrained and precluded Hansen from bargaining
through Progressive Association and continuing to select Progressive Association as
his representative for collective bargaining"; and "in furtheiance and support" of such
demand, engaged in the activities, previously described, that led Hansen to contract
with such union.
The fact that each Respondent admits the allegations in question, in its answer, is
of no moment, for, under scrutiny, they emerge as vague and inoperative conclusions
susceptible to multiple interpretations Do the allegations that each Union "demanded
and insisted that Hansen immediately sign an agreement without affording him an
opportunity to bargain through Progressive Association" mean that each "demanded
and insisted" that Hansen be denied "an opportunity to bargain through Progressive
Association?" Or do they mean that Hansen was not afforded "an opportunity to
bargain through Progressive Association" in the sense that the demand for an imme-
diate contract had the effect of not "affording Hansen an opportunity."
If one takes the latter meaning, the General Counsel's relevant allegations must
surely fail, for there is then no evidence that Progressive Association was the subject
of any discussion between Hansen and either Union before Hansen executed his
agreement with it.4 That view of the matter is in no way altered by the fact that the
claim that Hansen was not afforded "an opportunity to bargain through Progressive
Association" is harnessed to admitted allegations that each Respondent " restrained
and precluded Hansen from bargaining through Progressive Association and con-
3 The evidence does not establish the date on which Hansen executed his agreement with
Local 300, and some aspects of the record pertaining to the agreement are confusing.
Apparently alluding to an instrument (appended to the agreement of June 4, 1962) by
which Hansen bound himself to the existing contract, the General Counsel stated at the
hearing that Hansen's agreement is dated July 31, 1962. The instrument in evidence bears
no such date, and is unsigned (although the interested parties at the hearing stipulated
that Hansen signed it). It is possible that an undated and unsigned copy was included in
the tecoid through inadvertence. Be that as it may, the General Counsel's reference to
July 31, 1962, is not a part of a stipulation lie proposed soon thereafter, nor otherwise
evidential, and, in the state of the record, the closest one can come to a finding as to the
date of Hansen's contract with Local 300 is that it was made at some point after the
conduct in which the Union engaged on or about August 8, 1962
4 At the hearing, in describing Progressive Association's objection to the Unions' course
of conduct, its representative (who appeared for the Charging Parties, including Pro-
gressive Association) stated- "The way and manner this was done, without going through-
the Association to sign it, going to the individual, this is what we are in disagreement
with " This, one may note, includes no claim that Hansen so much as expressed a wish,
to either Union to be represented by his bargaining agent, and that either refused to deal
with Progressive Association. The gravamen of the position appears to be simply that
the Unions dealt directly with Hansen On that score, it may be borne in mind that un-
less one extracts a meaning from the conclusional allegations that the Unions " demanded
and insisted" that Hansen be denied the services of Progressive Association, there is no
evidence in this case that the Unions were aware of the existence of that organization, let
alone its representative status.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tinuing to select Progressive Association as his representative for collective bargain-
ing." The allegations of restraint and preclusion, too, are vague and inoperative
conclusions, susceptible to multiple interpretations. Do they mean that the restraint
and` preclusion arose from a demand and insistence that Hansen dispense with Pro-
gressive Association's services? Or do they mean that the restraint and preclusion
-stemmed from the immediate execution of the contract, as demanded. In other
words, the accomplished fact of an executed contract of itself could have had the effect
of denying Hansen such bargaining services as Progressive Association could have
rendered him. Obviously, too, the fact that each union respondent implemented its
demand for an immediate contract with threats of work stoppages, or that Local 300
caused such a stoppage, does not, in the absence of evidence that such respondent
refused to deal with Hansen's bargaining agent, establish that he was restrained and
coerced in the choice of one.
The General Counsel chose not to present any testimony as to what passed between
Hansen and the unions' agents, and that, in my view, is the heart of the matter. If
such witnesses had been called, we probably would know whether anything was, in
fact, said regarding Progressive Association, but what we have, instead, are vague and
conclusional allegations with multiple meanings, and admissions that obviously con-
cede no more than what the relevant allegations say. To hold on so insubstantial a
record that either Respondent restrained and coerced Hansen in the selection of a
bargaining representative is to proceed by hunch and by guess; and that, obviously, is
a forbidden course. Accordingly, I shall recommend dismissal of so much of the com-
plaint as alleges that each respondent union restrained and coerced Hansen in the
selection of a bargaining representative in violation of Section 8(b) (1) (B) of the Act.
For convenience of discussion, the General Counsel's claims that each Union dis-
regarded its bargaining obligations in violation of Section 8(b) (3) of the Act may be
divided into three categories: (1) That each refused to bargain in good faith, as the
General Counsel's brief puts it, "by its take-it-or-leave-it attitude toward negotiation"
(meaning, apparently, judging by other parts of the brief, that neither Union afforded
Hansen an "opportunity to negotiate," but, instead, compelled him to agree through
the use of the economic pressures described above); (2) that the use of economic
pressures to procure Hansen's agreement to the performance bond and industry
promotion provisions amounted to a refusal to bargain because these terms are not
mandatory subjects of bargaining; and (3) that Section 8(b)(4) forbids the use of
such pressures to secure agreement to the subcontracting clauses, and that resort to
them not only violated'that section, but constituted an unlawful refusal to bargain.
These contentions will be considered in turn.
The first rests upon admitted allegations of the complaint that each Respondent
Union "demanded and insisted that Hansen accept an agreement proposed by it
without affording him an opportunity to bargain collectively and without any inten-
tion to bargain collectively in good faith with Hansen." 5 but, instead, resorted to
economic pressures to compel Hansen to enter into an agreement. Thus, so the argu-
ment runs, each contract is a nullity.
Notwithstanding the relevant admissions in the answers, there is good reason to
believe than Hansen, contrary to the General Counsel's claim, was, in fact, afforded
an, "opportunity to negotiate," for Progressive Association, Hansen's bargaining agent,
admitted at the hearing (through its representative, who entered an appearance for
it as a Charging Party) that "there was collective bargaining going on at all times"
(meaning, obviously, between Hansen and the two Unions); and, significantly enough,
took the position that it has no objection to any of the contractual terms except the
subcontracting, performance bond, and industry promotion provisions. Progressive
Association's admission may properly be taken as binding upon it and its principal,
.Hansen. - Hansen obviously has firsthand knowledge of what occurred; the General
Counsel, as obviously, has not. In the face of Hansen's admission that "there was
collective bargaining going on at all times," and his willingness to be bound by all the
contractual terms to which he agreed, except the bonding, industry promotion, and
subcontracting provisions, it would be a singular course, indeed, to hold on this
meager record, barren as it is of live testimony to give us the full proportions of what
passed between Hansen and the Unions, that Hansen had no "opportunity to
negotiate," and that the contracts are nullities.
But one may pass these considerations, and a basic infirmity still remains in the
General Counsel's thesis. That is his misconception, obviously at the root of his
Paragraphs 9(c) and 14(c) of the complaint.
OPERATIVE PLASTERERS', ETC., LOCAL NO. 2 1279
position , that the law forbids a union that represents a bargaining unit of employees
to resort to economic action such as a strike against their employer to secure his
agreement to any contract terms unless the employer is first given "an opportunity to
negotiate" (meaning, presumably, an opportunity to discuss the terms sought). At
least with respect to "wages, hours, and other terms and conditions of employment"-
the mandatory subjects of bargaining under Section 8(d) of the Act-this thesis not
only runs counter to the fact that the right of employees to engage in such a strike
is protected by the Act, but is far afield from the Supreme Court's holding that "the
use of economic pressure by the parties to a labor dispute is ... part and parcel of the
process of collective bargaining." N.L.R.B. v. Insurance Agents' International Union
(Prudential Ins. Co.) 361 U.S. 477, 495. And, as the Court put it elsewhere, "[t]he
language of § 7 is broad enough to protect concerted activities whether they take place
before, after, or at the same time such a demand (for a change in working conditions)
is made." N.L.R.B. v. Washington Aluminum Company, Inc. 370 U.S. 9, 14. One
might see validity in the General Counsel's position if there were evidence that Hansen
sought to discuss the contractual demands made upon him, and that his effort met
with refusal. Such an attitude by either Union in given circumstances could lead to a
conclusion that it had refused to bargain. But there is no such evidence, and, in its
absence, putting aside the bonding, industry promotion, and subcontracting provisions
for later discussion, there is no warrant for treating the economic pressures to secure
the other contractual terms as anything more than "part and parcel of the process of
collective bargaining." In short, regarding such other terms, at least, the record does
establish an unlawful refusal to bargain by either Union.6
This is also true of the bonding and industry promotion provisions, even though
Hansen was not obligated to bargain concerning them under Section 8(d) of the Act.7
No doubt, insistence upon terms that are nonmandatory bargaining subjects may, in
certain circumstances, constitute an unlawful refusal to bargain, but these are situa-
tions where a party insists to the point of impasse upon such terms as a condition of
agreement on subjects as to which bargaining is mandatory. As is evident from a
study of the cases where such a refusal to bargain has been found, their underlying
rationale is that the impasse over nonmandatory bargaining subjects frustrates bar-
gaining with respect to those that are mandatory 8
The evidence here does not spell out such a case. There is no evidence of an
impasse, nor indeed of any negotiations, except Hansen's admission, through Progres-
sive Association that "there was collective bargaining at all times," and as to that,
apart from the fact that Hansen acceded to the demand of each Union that he sign its
proposed contract, we are told nothing of any position he took on any particular
terms, whether by way of rejection, modification, or counterproposal. And we know
no more about the form in which each Union "demanded and insisted" upon the terms
it sought than that it embarked upon economic pressures upon Hansen to secure them.
The bonding and industry promotion provisions were lawful subjects of bargaining,
albeit not mandatory, and I find nothing in the law to preclude the use of the relevant
6 Taking into account Hansen's wish to continue to be bound by all contractual terms,
except the subcontracting, performance bond, and industry promotion provisions, and
Progressive Association's concession that "there was collective bargaining going on at all
times," it seems odd that each Respondent has admitted the sweeping conclusions in the
complaint that Hansen was not afforded "an opportunity to bargain collectively," and
that such Respondent had no "intention to bargain collectively in good faith with Hansen "
One can only guess what led the Respondents to such a course, and it would be idle to do
so. In any case, in view of Progressive Association' s admission that "there was collec-
tive bargaining going on at all times," and of the obvious fact that the economic pressures
were themselves "part and parcel of the process of collective bargaining," I am unable to
give effective weight to the conclusions, although admitted in each answer, that Hansen
was not afforded "an opportunity to bargain collectively," and that the Respondents had
no "intention to bargain collectively in good faith with Hansen "
7 N L R B. v. Davison, F McKenzie; et al., d/b/a Arlington Asphalt Company, 318 P.
2d 550 (CA 4) ; Metropolitan District Council of Philadelphia, etc. (McCloskey and
Company), 137 NLRB 1583, 1584; Local 164, Brotherhood of Painters, et al. (A. D.
Cheatham Painting Company), 126 NLRB 997, 1001-1002.
8 See N L R.B. v. Wooster Division, Borg-Warner Corporation, 356 U S. 342, 240;
N L.R.B. v. Davison, supra; A. D. Cheatham Painting Co, supra; McCloskey and Com-
pany, supra.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economic pressures as "part and parcel of the process of collective bargaining" to
secure them unless such tactics are used to break an impasse over the inclusion of
nonmandatory bargaining subjects in a contract as a condition of agreement on'terms
as to which bargaining is required. To say upon the evidence in this case that an
impasse arose between each Union and Hansen on any subject, let alone over the
inclusion of nonmandatory ones as a condition of agreement on terms that were
mandatory bargaining subjects, is to misread the record. The sum of the matter is
that the record does not establish that the methods used to secure Hansen's agreement
to the bonding and industry promotion provisions amounted to unlawful refusals to
bargain.9
The reach and, clearly, an object of the relevant subcontracting provisions of each
union contract is, in effect, to require Hansen not to subcontract work to employers
who decline to comply with the contract. These terms would be within the prohibitive
reach of Section 8(e) of the Act were it not for the proviso which exempts from the
prohibition "an agreement between a labor organization and an employer in the con-
struction industry relating to the contracting or subcontracting of work to be done at
the site of the construction, alteration, painting, or repair of a building, structure, or
other work.'° There appears to be no dispute, and I have no doubt, that the subcon-
tracting provisions are within the proviso and are a lawful subject of bargaining. But
the General Counsel maintains that the proviso is inapplicable to the proscriptions of
Section 8(b)(4) of the Act, which among other prohibitions, forbid certain types of
conduct where an object thereof is "forcing or requiring any employer ... to enter into
any agreement which is prohibited by Section 8(e)"; or "to cease doing business with
any other person." 11.
Were the question open for me, I should have much, and perhaps insuperable,
difficulty in reaching a conclusion that an agreement which is expressly exempted from
illegality by Section 8(e) is nevertheless an "agreement which is prohibited by
[S]ection 8(e)" for the purposes of the proscriptions contained in Section 8(b)(4).
9 The General Counsel's reliance upon McCloskey and Company, supra, and A. D.
Cheatham Painting Co , supra, appears to me to be misplaced, for in each of these cases,
there was an impasse over nonmandatory bargaining subjects that precluded agreement
on mandatory subjects and resulted In strike action to break the impasse.
10 To the extent pertinent here, Section 8(e) provides:
It shall be an unfair labor practice for any labor organization and any employer
to enter into any contract or agreement, express or implied, whereby such employer
ceases or refrains or agrees to cease or refrain from handling, using, selling, trans-
porting or otherwise dealing in any of the products of any other employer, or to
cease doing business with any other person, and any contract or agreement entered
into heretofore or hereafter containing such an agreement shall be to such extent
unenforceable and void. Provided, That nothing in this subsection (e) shall apply to
an agreement between a labor organization and an employer in the construction in-
dustry relating to the contracting or subcontracting of work to be done at the site of
the construction, alteration, painting, or repair of a building, structure, or other
work . .
u The following includes the pertinent provisions of Section 8'(b) (4)
(b) It shall be an unfair labor practice for a labor organization or its agents-
( * * * * *
(4) (1) to engage in, or to induce or encourage any Individual employed by any
person engaged in commerce or In an industry affecting commerce to engage in, a
strike or a refusal in the course of his employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, materials, or com-
modities or to perform any services; or (it) to threaten, coerce, or restrain any per-
son engaged in commerce or in an Industry affecting commerce, where in either case
an object thereof is:
(A) forcing or requiring any employer . . . to enter into any agreement which
Is prohibited by section 8(e) ;
(B) forcing or requiring any person to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of any other producer, processor, 'or
manufacturers, or to cease doing business with any other person . . . Provided,
That nothing contained In this clause (B) shall be construed to make unlawful,
where not otherwise unlawful, any primary strike or primary picketing . .. .
OPERATIVE PLASTERERS ', ETC., LOCAL NO. 2 1281
Various United States district courts have rejected such a conclusion 12 However, the
Board, in a number of decisions, has sustained the construction of Section 8(b)(4)
urged by the General Counsel here, and I am bound by the doctrine of these cases
so long as it remains unchanged by the Board or authoritative judicial decision.13
Hence, following the Board's doctrine, I find that objects of the economic pressures
put upon Hansen by each Union were to force and require him to enter into an agree-
ment (in the form of the relevant subcontracting provisions) prohibited by Section
8(e); and, by means of such agreement, to force and require Hansen to cease doing
business with other persons; that Local 2, by encouraging individuals employed by
Hansen to cease work, and Local 300, by encouraging and inducing such a work
stoppage, for such objects, as described above, violated Section 8 (b) (4) (i) (A) and
(B) of the Act; and that each Union by threatening Hansen with work stoppages, as
previously described, and, Local 300, by causing a work stoppage, mentioned earlier,
for such objects, violated Section 8(b) (4) (ii) (A) and (B).
However, I disagree with a contention by the General Counsel, reflected in the
complaint, to the effect that by the economic pressures upon Hansen to secure his
agreement to the subcontracting clauses, each Respondent refused to bargain with him
in violation of Section 8(b) (3) As already pointed out, theie is no evidence of any
impasse between Hansen and either Union on any subject, or that insistence by either
labor organization upon any terms, whether the subcontracting clauses, or any other,
prevented agreement. Thus, it appears to me to be a mechanical non sequitur to say,
as does the General Counsel in effect, that because the pressures were a proscribed
means of securing otherwise lawful subcontracting provisions, the methods constituted
a refusal to bargain. To find such a refusal on this record, one would have to take
the course of holding that the economic pressures were lawfully "part and parcel of
the process of collective bargaining" up to the point of inclusion of the subcontracting
provisions, but that because of such inclusion, the pressures became a refusal to bar-
gain.14 This is a position of illogic, and I am unable to accept it.
In the light of what has been said, I hold that the record does not support any of
the allegations that the Respondent Unions refused to bargain with Hansen, and I shall
thus recommend their dismissal.
Turning to Greene's discharge, the legality of Local 300's role in the matter is not
controlled by the union membership requirements of article II (F) of the Union's
contract. Section 8 (a) (3) of the Act contains a blanket proscription against discrim-
ination because of nonmembership in a labor organization, except that grounded upon
a lawful union-security agreement within the range of the first proviso in Section
8(a)(3). It is not the General Counsel's burden to prove that a discharge, alleged
to be discriminatory, was not based upon such an agreement. On the contrary, a
12 See John J. Cuneo, Reg Dir. v. Essex County and Vicinity District Council of Car-
penters, et al (Associated Contractors of Essex County, Inc ), 207 F. Supp 932
(D C N J.) ; Ralph E Kennedy, Reg. Dir. v. Construction, Pr oduction if Maintenance
Laborers' Union, Local 383 (Colson & Stevens Const Co ), 199 F. Supp. 775 (D C Ariz) ;
John F. Lebus, Reg Dir. v. Local 60, United Association of Journeymen d Apprentices,
etc. (Binnings Construction Company), 193 F Supp 392 (D C. E La ) ; contra, Hugh E
Sperry, Reg. Dir v Local 101, International Union of Opei ating Engineers (Sherwood'
Const Co ), 47 LRRBI 2481 (D C. Fans )
13Bailding and Construction Trades Council of San Bernardino and Riverside Counties,
et al (Gordon Fields, et al ), 139 NLRB 236, Sheet Metal Workers International Asso-
ciation, et al. (The Burt Manufacturing Company), 127 NLRB 1629, Local 60, United'
Association of Journeymen and Apprentices, etc (Binnings Construction Company, Inc ),
138 NLRB 1282; Orange Belt District Council of Painters #48, AFL-CIO (Calhoun Dry-
wall Company ), 139 NLRB 383; Construction, Production & Maintenance Laborers Union
Local 383, et al (Colson and Stevens Construction Co., Inc ), 137 NLRB 1650; Los
Angeles Building & Construction Trades Council, etc. (Stockton Plumbing Co., at al ),
144 NLRB 49; International Union of Operating Engineers, Local Union No. 12 (Tri
County Association of Civil Engineers and Land Surveyors), 126 NLRB 688
14 Amalgamated Lithographers of America (Ind) and Local No. 17, etc (The Employ-
ing Lithographers, etc ), 130 NLRB 985, and Amalgamated Lithographers of America
and Local 78, etc. (Employing Lithographers of Greater Miami, Florida, et al ), 130
NLRB 968. are inapposite here In each of the cited cases, the unions insisted to the
point of impasse upon terms that were within the reach of Section 8(e) and illegal, and by
such insistence , unlike the case here, prevented or inhibited agreement on other subjects.
The strikes involved In both cited cases implemented these unlawful bargaining attitudes,
770-076-65-vol. 149-82
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claim that the discrimination was within the permissible reach of the proviso is a
matter of defense, and the General Counsel, having established, by force of admis-
sion of allegations of his complaint, that Local 300 demanded and caused Greene's
discharge because he was not a member of the Union, a duty devolved upon Local
300 to go forward with evidence that the discrimination was based upon an agreement
within the reach of the proviso.15 Local 300 did not meet that duty (indeed, it does
not even advance any claim that the discharge was based on the union-security provi-
sions), and thus the General Counsel's case is made by the relevant admitted allega-
tions of his complaint.
The sum of the matter is that in bringing about Greene's dismissal, Local 300 caused
Hansen to discriminate against Greene in violation of Section 8 (a) (3) of the Act; and
that Local 300 thereby violated Section 8(b)(2) of the Act, and restrained and
coerced employees in the exercise of rights guaranteed them by Section 7 of the Act,
thus violating Section 8 (b) (1) (A) of the statute.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Local 2 and Local 300 set forth in section III, above, occurring in
connection with the operations of Arnold M. Hansen, described in section I, 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Local 2 and Local 300 have engaged in unfair labor practices
within the meaning of the Act, I shall recommend that each cease and desist therefrom
and take certain affirmative actions designed to effectuate the policies of the Act.16
As it has been found that Local 300 caused Arnold M. Hansen to discriminate
against Clarence Greene by discharging him in violation of Section 8(a)(3) of the
Act, and that Local 300 thereby violated Section 8(b) (2) of the Act, I shall recom-
mend that Local 300 make Greene whole by payment to him of a sum of money
equal to the amount of wages he would have earned, but for his discharge, between
the date of the said dismissal and the date that Local 300 notifies Arnold M. Hansen,
in writing, as hereafter provided, that it has no objection to the employment of
Greene by Hansen; that Local 300 pay Greene interest upon said sum at the rate of
6 percent per annum, as further provided below; and that the loss of pay and interest
be computed in accordance with the respective formulas and methods prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing and
Heating Co., 138 NLRB 716, to which the parties hereto are expressly referred.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the entire record in this
proceeding, I make the following conclusions of law:
1. Arnold M. Hansen is, and has been at all material times, an employer within the
meaning of Section 2(2) of the Act; and is, and has been at all material times,
engaged in interstate commerce, and in operations affecting such commerce, within
the meaning of Sections 2(6)and (7) of the Act.
2. Local 2 and Local 300, respectively, are, and have been at all material times,
labor organizations within the meaning of Section 2(5) of the Act.
3. All plasterers employed by Arnold M. Hansen in Los Angeles and Orange
Counties, Califoinia, excluding supervisors as defined by the Act, constitute, and have
constituted at all material times, a unit appropriate for the purposes of collective
ss New Jersey Bell Telephone Company, 106 NLRB 1322, 1323, enfd sub nom. Com-
municatsons Workers of America V N.L R.B., 215 F. 2d 835 (CA. 2). One can think of a
number of situations where the mere existence of a lawful union-security agreement
would not protect a dismissal because of nonmembership in a union. An obvious Instance
is that of dismissal for nonmembership before the expiration of the required statutory
grace period for joining the union
10 The record here is too meager to warrant a restraint against either Respondent from
engaging in unfair labor practices with respect to any employer other than Hansen or
the employees of any other employer. Communications Workers of America, et al (Ohio
Consolidated Tele. Co ) v. N.L R B., 362 U S. 479 However, as a discriminatory dis-
charge strikes at the heart of rights guaranteed employees by Section 7 of the Act, I shall
recommend that Local 300 cease and desist from abridging any Section 7 rights of em-
ployees of Hansen. N L.R B. v. Entwistle Mfg. Co , 120 F. 2d 532, 536 (C A. 4).
AERO CORPORATION 1283
bargaining, within the meaning of Section 9(b) of the Act; and Local 2 is, and has
been at all material times, the exclusive bargaining representative of all employees in
such unit, within the meaning of Section 9 (a) of the Act.
4. All plaster tenders employed by Arnold M. Hansen in the geographical area of
Los Angeles County, Orange County, Catalina Island, and the following offshore
islands if the point of embarkation is from Los Angeles or Orange County, namely,
Richardson Rock, Santa Cruz Island, Santa Rosa Island, Anacapa Island (Channel
Islands Monument), and Santa Barbara Island, but excluding executives, civil engi-
neers and their helpers, superintendents, assistant superintendents, master mechanics,
timekeepers, messenger boys, office workers, or any employees of the contractor above
the rank of craft foreman and supervisors, as defined by the Act, constitute, and have
at all material times constituted, a unit appropriate for the purposes of collective bar-
gaining, within the meaning of Section 9(b) of the Act; and Local 300 is, and has
been at all material times, the exclusive bargaining representative of all employees in
such unit, within the meaning of Section 9 (a) of the Act.
5. Progressive Association has been Arnold M. Hansen's representative for the
purposes of collective bargaining at all times material to the issues in this proceeding.
6. By encouraging individuals employed by Hansen to cease work for objects
proscribed by Section 8(b)(4) of the Act, as found above, Local 2 has engaged in
unfair labor practices within the meaning of Section 8(b) (4) (i) (A) and (B) of
the Act.
7. By threatening Arnold M. Hansen with work stoppages for such objects, as
found above, said Local 2 has engaged in unfair labor practices within the meaning of
Section 8(b) (4) (ii) (B) of the Act.
8. By inducing and encouraging individuals employed by Arnold M. Hansen to
cease work for such objects, as found above, Local 300 has engaged in unfair labor
practices within the meaning of Section 8 (b) (4) (i) (A) and (B) of the Act.
9. By threatening Arnold M. Hansen with work stoppages, and by causing such a
stoppage, as found above, said Local 300 has engaged in unfair labor practices within
the meaning of Section 8(b) (4) (ii) (A) and (B) of the Act.
10. By causing Arnold M. Hansen to discriminate against Clarence Greene in
violation of Section 8(a) (3) of the Act, as found above, Local 300 has engaged in
unfair labor practices within the meaning of Section 8(b) (2) of the Act.
11. By restraining and coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act, as found above, Local 300 has engaged in unfair labor prac-
tices within the meaning of Section 8 (b) (1) (A) of the Act.
12. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Sections 2(6) and (7) of the Act.
13. The evidence does not establish that either Local 2 or Local 300 has restrained
or coerced Arnold M. Hansen in the selection of a representative for the purposes of
collective bargaining or the adjustment of grievances, or has unlawfully refused to
bargain with the said Arnold M. Hansen.
[Recommended Order omitted from publication.]
Aero Corporation and Jessie R. Heard and International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, AFL-CIO. Cases Nos. 12-CA-2415
and 12-CA-211,88 (1-2). November 30, 1964
DECISION AND ORDER
On April 9, 1964, Trial Examiner William F. Scharnikow issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
149 NLRB No. 114.