Orange City District Council of Carpenters

National Labor Relations Board - Board Decisions

Aug 5, 1975

219 N.L.R.B. 993 (N.L.R.B. 1975)

ORANGE COUNTY DISTRICT COUNCIL OF CARPENTERS 993
Orange County District Council of Carpenters, AFL-
CIO and Harold V. Bragg. Cases 21-CP-353 and
21-CP-358
trict Council of Carpenters, AFL-CIO, herein called Re-
spondent . The reopened hearing was conducted on March
26, 1975.
August 5, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On May 19, 1975, Administrative Law Judge Wil-
liam J. Pannier III issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
1. STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge: This
case was heard by me at Los Angeles, California, on Feb-
ruary 25 and March 26, 1975. On January 30, 1975, the
Regional Director for Region 21 of the National Labor
Relations Board issued a complaint and notice of hearing
in Case 21-CP-353, alleging a violation of Section
8(b)(7)(C) of the National Labor Relations Act, as amend-
ed, 29 U.S.C. Sec. 151, et seq., herein called the Act, on the
basis of an unfair labor practice charge filed on January
17, 1975. A hearing was conducted on the issues raised in
this complaint on February 25, 1975.
On March 11, 1975, the said Regional Director issued a
complaint and notice of hearing in Case 21-CP-358, alleg-
ing a further violation of Section 8(b)(7)(C) of the Act,
based upon an unfair labor practice charge filed on Febru-
ary 27, 1975. On March 17, 1975, I issued an order consoli-
dating cases and reopening hearing granting counsel for
the General Counsel's motion to consolidate cases and re-
open hearing, which was opposed by Orange County Dis-
II. JURISDICTION
A. Facts
Harold V. Bragg is an owner-builder who for the past 2
years has been engaged in the building and construction
industry in Orange County, which is located in southern
California. On or about August 5, construction began on
an eight-unit apartment building which Bragg is building
on property that he owns in Huntington Beach, California.
Shortly after construction commenced, picketing also com-
menced at the site and it is this picketing which has given
rise to this proceeding.
It is undisputed that the magnitude of Bragg's operations
are not of themselves sufficient in volume to satisfy the
Board's standard for asserting jurisdiction. However, the
General Counsel alleges that Bragg is a member of Sequoia
Multi-Trades Building Contractors Association, herein
called Sequoia; that Sequoia is a multiemployer bargaining
association; and that, accordingly, jurisdiction in this mat-
ter may be predicated on the operations of other members
of Sequoia . Respondent contends that Sequoia is not a
multiemployer bargaining association and that, in any
event, the evidence in this matter does not support the alle-
gation that Bragg is a member of a multiemployer bargain-
ing association.
The evidence describing Sequoia was provided by David
Miller, secretary-manager of Tulare-Kings Employers
Council, herein called Tulare. Miller testified that Sequoia
was formed initially in 1967 by Homer Martin, who was
then secretary-manager of Tulare, and that at that time
articles of incorporation and bylaws were prepared for Se-
quoia . Before Sequoia could attain status as a formal orga-
nization, however, Martin passed away and Sequoia then
passed through a period of dormancy until Martin's son
revived it in the summer of 1968 by commencing negotia-
tions for a collective -bargaining agreement with the Na-
tional Association of Independent Unions, herein called
NAIU, which was signed ultimately in October 1968. Since
then, while two subsequent agreements have been executed
between Sequoia and NAIU, Sequoia has never become a
formal organization. Thus, it has not been incorporated,
there are no applications which employers may sign to ap-
ply for membership in Sequoia, it shares offices with Tu-
lare for which it pays no rent, and it does not have a bank
account, telephone number or listing , stationery, nor State
or Federal licenses . While it has no employees, Miller testi-
fied that Sequoia does have "voluntary representatives,"
although the only such representative identified at the
hearing was Stanley L. Miller, owner of S.L. Miller, Incor-
porated, a signatory to Sequoia's contract with NAIU. Ne-
gotiations for Sequoia are conducted by Tulare, which is
an organization furnishing services , such as negotiating
agreements and handling matters before the Board, to both
associations and individual companies. As Sequoia collects
no initiation fees or dues , these services are paid for by the
employers for whom the contracts are negotiated directly
219 NLRB No. 121
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Tulare, of whom each such employer is also a member.
Miller also testified that the NAIU is the only labor or-
ganization with which Sequoia has a collective-bargaining
agreement . Negotiations in 1971 and again in 1974 were
commenced as a result of notices requesting negotiations
sent by NAIU to the individual employers with copies sent,
apparently, to Tulare. The negotiating sessions leading to
these agreements were conducted between representatives
of NAIU and Tulare, without the attendance of any of the
employers. However, when tentative agreement was
reached, the Tulare representative would contact each of
the employers and, upon securing concurrence in the terms
and conditions of the tentative agreement , would then exe-
cute it on behalf of the employers, in the name of Sequoia,
sending individual copies of the final agreement to each of
the employers for execution "so they recognize by their
own signature what they are bound by." Yet, it is not clear
as to the status of the employers within the Sequoia frame-
work. Thus, on October 1, 1968, 11 employers executed a
single form bearing the printed legend:
Each of the undersigned firms reserves the right to
revoke this authorization and agreement as to it at any
time by service of written notice of revocation to rU-
LARE-KINGS EMPLOYERS COUNCIL at least thirty (30) days
prior to the effective date of such revocation. It is un-
derstood and agreed that such revocation shall not ter-
minate or affect any liability or obligation under or
pursuant to the terms of any collective bargaining
agreement made by the Council in accordance with
the terms of this authorization prior to the effective
date of any revocation of this authorization and agree-
ment.
Notwithstanding the clear terms of this document, Miller
testified, "I don't know how many of those actually be-
came part [sic] to the contract, the first contract." More-
over, while S.L. Miller, Incorporated, Gruber Concrete Si-
los,' and Thomas Yocum are listed as "member firms" in
the current agreement and were signatories to this 1968
document, there is no evidence concerning what subse-
quently happened to the other eight employers. Although
Miller testified that a letter of revocation was required to
revoke membership in Sequoia and that such letters had
been received from employers who terminated their mem-
bership, no such letters were produced. While this might
not be significant in other circumstances, it is relevant in
the circumstances of this case for with regard to the 1974
negotiations, Miller testified:
We had a total of five that we thought-we had two
others that we thought might want to sign the agree-
ment at the time the negotiations were going on, but
they didn't actually get involved in the negotiations
and didn't end up signing it.
While Miller then went on to testify that these two other
employers were "never part of Sequoia" and that he "had
three members who were members of Sequoia at the time
the agreement was negotiated," it was not too clear wheth-
1 I am assuming that the "Reuben Gruber, Inc." listed on the 1968 docu-
ment is the same entity as Gruber Concrete Silos.
er these answers were given on the basis of hindsight or
whether these two employers were not considered to be
members of Sequoia at the time that the negotiations were
in progress.
Bragg testified that on November 29, 1974, he executed a
collective-bargaining agreement which states that it is be-
tween Sequoia and the NAIU. This is the only document
that he signed in connection with Sequoia and he testified
that, in signing it, he considered himself to have become a
member of Sequoia. The circumstances leading to Bragg's
execution of this document are significant, for he testified
that, following the commencement of the picketing, anoth-
er builder asked if Bragg would like to attend a meeting
with the Associated Builders and Contractors Association,
herein called ABC, and at that meeting Bragg encountered
Mike Sullivan, who purported to be an ABC representa-
tive. Subsequently, Russ Gearhart, a member of ABC,
mentioned that he knew of an organization, although he
did not recall the name, in which Sullivan thought that
Bragg might be interested and when Gearhart finished des-
cribing the functions of that organization, Bragg expressed
an interest . Sullivan telephoned Bragg on November 11,
1974, saying that, as Bragg had expressed interest to Gear-
hart, he (Sullivan) had submitted Bragg's name to the
membership committee of Tulare and that Bragg had been
accepted as a member. Following a discussion of the forms
that would have to be completed and of the dues that
would have to be paid, Bragg said that he would like to join
and asked what steps he would have to follow. Sullivan
replied, according to Bragg, that he would handle all of the
details and, thereafter, Bragg received the necessary infor-
mation, among which was a Tulare membership contract
which he executed and returned to Tulare. Thereafter, tes-
tified Bragg, he had conversations with Robert Guernsey, a
representative of Tulare, which led to the execution of the
Sequoia-NAIU agreement by Bragg on November 29,
1974. While there is no evidence concerning the substance
of these conversations, Bragg testified:
Well, my understanding of this relationship is that by
becoming signatory to this agreement it is a labor
agreement with the National Association of Indepen-
dent Unions, that automatically makes you a member
of the Sequoia Multi-Trades Building Contractors As-
sociation, and all the problems, so forth, the questions
of crossing employers' line, are handled by the Tulare-
Kings Employers Council.
At the time that he executed the agreement, Bragg did
not employ anybody in any of the classifications listed in
Schedule "A." However, he had already made arrange-
ments for the employment of a cement finisher and a gen-
eral laborer, who subsequently worked for him early in
December. Although it does appear that he did transmit
initiation fees and dues checked off for these two employ-
ees, Bragg testified that he paid each of them $6.25 per
hour, even though Schedule "A" of the Sequoia-NAIU
agreement provides for a rate of $6.08 per hour for a rough
cement finisher and $6.88 per hour for a finish cement fin-
isher and provides for a rate of $3.41 per hour for a starting
unskilled laborer and $5.57 per hour thereafter for un-
skilled laborers. There is no evidence that Bragg ever spoke
ORANGE COUNTY DISTRICT COUNCIL OF CARPENTERS
to either Tulare or to the NAIU concerning the fact that he
was paying these two employees in excess of the contract
rates for their classifications even though article 4 of their
agreement provides:
Benefits expressed under the terms of this Agree-
ment are minimum . No employee shall suffer a loss of
benefits as a result of the signing of this agreement.
The terms and conditions of this Agreement shall not
be construed to prevent the Company from instituting
greater benefits. Notwithstanding, no employee will re-
ceive in excess of the specified contract rate during their
probationary period, except by mutual agreement be-
tween the employer and the Union . [Emphasis supplied.]
Under article 3 , section III, all employees whose qualifica-
tions are not vouched for by the NAIU are considered
probationary employees for a period not to exceed 60
days.2 As there is no evidence that the NAIU even knew of
the existence of these employees prior to the time that they
commenced working for Bragg, they have not been shown
to have been "vouched for" by NAIU. Accordingly, they
would be "probationary employees."
B. Analysis
There is no dispute concerning the fact that Bragg's op-
erations do not , of themselves , satisfy the Board's stan-
dards for asserting jurisdiction in this matter. However, the
General Counsel asserts that Bragg is a member of a mul-
tiemployer bargaining association composed of employers
whose operations do satisfy the Board 's jurisdictional stan-
dards. It is, of course, axiomatic that jurisdiction will be
asserted if an employer is "a member of an association of
employers whose operations fall within one or more of the
Board's jurisdictional standards ." Marble Polishers, Ma-
chine Operators and Helpers, Local No. 121, AFL-CIO, (Mi-
ami Marble & Tile Company), 132 NLRB 844 fn. 1 (1961).
As Counsel for the General Counsel points out in his
brief , in making the determination as to whether a group of
employers constitutes a multiemployer bargaining associa-
tion, it is not material that the association have a formal
structure, for "the fact that negotiations were by such an
informal group rather than a formal association does not
preclude a finding that the informal group constitutes a
single employer for the purposes of collective bargaining."
American Publishing Corporation, et al., 121 NLRB 115, 119
(1958). Accord: Weyerhaeuser Company, et al., 166 NLRB
299, 300 ( 1967). Thus, the fact that Sequoia is not a formal
organization , has not filed articles of incorporation , has not
instituted bylaws, and does not possess its own offices, tele-
phone number or listing , bank account, stationery, nor
Federal or State licenses , is not germane to this determina-
tion. Rather, what is significant is whether the employer-
members have "indicated an unequivocal intention to be
bound in collective bargaining by group rather than indi-
vidual action ." Council of Bagel and Bialy Bakeries and its
Employer Members, 175 NLRB 902, 903 (1969). Accord:
The Kroger Company, 148 NLRB 569, 573 (1964); Weyer-
2 These are the only two clauses in the agreement which use the term
"probationary period."
995
haeuser Company, et al., supra.
Ordinarily the fact that S.L. Miller, Gruber, and Yocum
have been parties to three successive agreements extending
over the period of the past almost-7 years would be strong,
if not dispositive, evidence of the existence of a multiem-
ployer bargaining association, encompassing at the very
least these three employers. However, there is evidence
which tends to show that "such group bargaining as took
place was for the convenience of the employers . . . in-
volved and was not undertaken with the intention of estab-
lishing a multiemployer unit." Bennett Stone Company, 139
NLRB 1422, 1425 (1962). Thus, while the document signed
by 11 employers in 1968 would appear to delegate authori-
ty to Sequoia to bind them in group bargaining, David
Miller testified that he did not know how many of these 11
employers actually became parties to the first Sequoia-
NAIU contract. This, in turn, raises some doubt concern-
ing the manner in which the terms of the 1968 document
were applied, as opposed to written. Even greater doubt
concerning the existence of an unequivocal intent to be
bound by group action is raised by Miller's description of
the negotiations leading to execution of the current agree-
ment. The tenor of Miller's testimony was that, as negotia-
tions were in progress, he believed that he represented five
employers, but that two of those employers ultimately de-
cided not to sign the agreement reached with NAIU. Of
course, employers can come and go in multiemployer bar-
gaining without disturbing the existence of a multiemploy-
er bargaining group. But, where their departure is occa-
sioned exclusively by a refusal to agree to the terms of the
agreement which is negotiated on behalf of the group and
where continued membership in the group is conditioned
upon the individual decision of each employer as to wheth-
er or not it desires to become a party to the agreement
negotiated on behalf of the group, then a multiemployer
bargaining group does not exist. See: International Photog-
raphers of the Motion Picture Industry, Local 659, IATSE,
(MPO-TV of California Inc.), 197 NLRB 1187, 1189 (1972);
Rock Springs Retail Merchants Associations, 188 NLRB 261
(1971); Electric Theatre, etc., 156 NLRB 1351, 1352-53
(1966); cf. Dover Tavern Owners' Association, 164 NLRB
933 (1967) (where "the bargaining history reveals unani-
mous employer acceptance of the two collective-bargaining
contracts negotiated by the tavern owners' committee since
the formation of the Association in 1960."). Indeed, what
may well have been taking place in the instant matter is
that Tulare negotiated an agreement with NAIU, contact-
ed a number of individual employers to explain that agree-
ment, and then signed the agreement on behalf of those
employers who agreed to the terms and conditions of such
an agreement, leaving the employers who did not agree to
those terms and conditions to work out their own arrange-
ments with NAIU. If this has, in fact, been what has been
occurring , then there is no multiemployer bargaining asso-
ciation.
Assuming arguendo that Sequoia has been a multiem-
ployer bargaining association, was Bragg 's conduct suffi-
cient to make him a member of that association? Clearly
the fact that he did not specificially delegate authority to
Sequoia to represent him or to execute agreements on his
behalf is not dispositive of the issue of whether or not he is
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a member of a multiemployer bargaining association. The
Kroger Company, supra, American Publishing Company, et
al., supra. On the other hand, the mere fact that Bragg
signed the same agreement as the multiemployer group
would not establish his membership , for "there must also
be evidence that the employer has authorized the associa-
tion to negotiate on its behalf." IA TSE, Local 659, supra at
fn. 9. In the instant case , there is no provision in the agree-
ment which Bragg signed authorizing Sequoia to negotiate
on Bragg's behalf nor is there any provision by which
Bragg agrees to be bound by group action. Since the agree-
ment was the only document signed by Bragg, there is no
independent documentary evidence of such an intent by
Bragg. Beyond this, there has been no showing that the
three "member firms"-S.L. Miller, Incorporated , Gruber
Concrete Silos, or Thomas Yocum-were even aware that
Bragg had signed the agreement . Yet, "joining an associa-
tion does not necessarily make an employer a part of a
preexisting multiemployer unit, for a particular employer
can become a part of an established multiemployer unit
only if the already committed parties agree to the
newcomer's participation." The Hammel Company, Inc.,
206 NLRB 679 (1973).
Finally, Bragg's own testimony raises a serious doubt
with respect to his understanding of multiemployer bar-
gaining . Thus, at no point during the sequence of events
which he recited as leading to his joining Tulare and to his
execution of the agreement is there evidence that he was
advised of the nature of multiemployer bargaining or of his
obligations under that form of arrangement . At the hear-
ing, Bragg impressed me as an honorable individual, but
also as one who was not greatly knowlegeable in the area
of labor relations . Accordingly, it is not surprising that he
would testify that he had understood that, by signing the
agreement , he was merely securing the services of Tulare to
handle "all the problems." That he did not, in fact, under-
stand that he was bound by group action is exemplified by
his employment of the cement finisher and the laborer in
December of 1974 at rates which exceeded those provided
in his agreement with NAIU. So far as the record discloses,
these two individuals would have been probationary em-
ployees, as they were not "vouched for" by NAIU and,
thus, to pay them rates in excess of the contract rate, Bragg
would have had to obtain the agreement of NAIU. Not
only was this not done , but there is no evidence that either
Tulare, as the representative of Sequoia , or the "member
firms" who are the other parties to the multiemployer
group under the General Counsel's theory, were even noti-
fied of the fact that Bragg intended to or had hired these
two individuals at rates exceeding those provided by the
contract . While it could be argued that Bragg was obliged
to pay the two men those rates since he had arranged for
their employment before executing the agreement, this ex-
planation would not excuse his failure to notify the NAIU
and, more significantly , the other employers , to whom he
was assertedly bound in taking action , so that there could
be bargaining concerning the matter . That he did not do so
illustrates not his maliciousness , but merely his lack of
comprehension of the nature of multiemployer bargaining.
For Bragg to have been a member of a multiemployer
bargaining group, he would have had to have understood
the nature of that type of arrangement so that he could
possess the "actual intent" to become a member of a mul-
tiemployer group. Van Eerden Company, 154 NLRB 496,
499 (1965). I find that the evidence is not sufficient to es-
tablish that Bragg possessed the requisite understanding
necessary for him to formulate the actual intent to abide by
the obligations of multiemployer bargaining . In other
words, I find that a preponderance of the evidence does
not show that Bragg possessed the "unequivocal intention
to be bound in collective bargaining by group rather than
individual action ." Council of Bagel and Bialy Bakeries, su-
pra; The Kroger Company, supra; Weyerhaeuser Company, et
al., supra. Additionally, I find that the evidence is not suffi-
cient to establish that the "member firms" agreed to
Bragg's participation in their group. The Hammer Compa-
ny, Inc., supra. Therefore , even if it be assumed that Se-
quoia and/or the three "member firms" are a multiemploy-
er bargaining group , a finding which I do not make since it
is not necessary to reach that issue , I find that Bragg is not
a member of a multiemployer bargaining group and inas-
much as his operations are not of sufficient magnitude to
satisfy the Board's standards for asserting jurisdiction, I
shall recommend that this matter be dismissed, since the
Board 's jurisdictional standards are not satisfied.
On the foregoing findings of fact , conclusions of law and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended.
ORDER3
It is hereby ordered that the complaints be, and they are
hereby, dismissed in their entirety.
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102
.48 of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.