Painters Local 1247 (Linoleu Studio, Inc.)

National Labor Relations Board - Board Decisions

Dec 7, 1977

233 N.L.R.B. 980 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Resilient Floor and Decorative Covering Local Union
No. 1247 of Brotherhood of Painters and Allied
Trades, AFL-CIO (Linoleum Studio, Inc.; James
Worwick, Inc., et al.) and Terence P. Daly. Cases
31 -CB-2364 and 31-CB-2397
December 7, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On June 22, 1977, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and supporting brief, and Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge as
modified herein and to adopt his recommended
Order.
The Administrative Law Judge recommended
dismissal of the complaint which alleges that Re-
spondent violated Section 8(b)(1)(B) and (3) of the
Act by striking to compel the Employers herein to
sign contracts whereby each agreed to accept the
terms of a collective-bargaining agreement to be
negotiated by the Union and representatives of four
multiemployer associations to which none of the
Employers belonged. For the reasons set forth below,
we agree that the complaint should be dismissed in
its entirety.
Facts
Respondent represents employees of contractors in
the building and construction industry who sell and
install various types of floor coverings. Since 1973
and for many years prior thereto, Respondent has
negotiated standard area contracts with four multi-
employer associations (hereinafter referred to as the
Associations). 2 Subsequent to negotiation of the
standard contract, copies of the agreement were
distributed to and executed by those employers in the
area who employed members of Respondent but who
The original complaint herein was based upon a charge filed on August
17, 1976, by Terence Daly, employer representative, on behalf of I I
employers. Thereafter, four employers withdrew from the proceedings. The
complaint names seven employers (hereinafter referred to collectively as the
Employers): Linoleum Studio. Inc.; James Worwick, Inc.; Curtis Carpet
Installation, Incorporated; Jess Herrara d/b/a Custom Carpets City; Jost
233 NLRB No. 134
were not members of any of the Associations. The
Employers were familiar with the above pattern and
practice and individually had followed such practice
for many years prior to 1976. All were nonmember
signatories to the 1973-76 master contract negotiated
by Respondent and the Associations.
In addition, in past years when Respondent
instituted strike action, it developed a practice
whereby many employers (both independents and
association members) accepted its offer to execute
"interim agreements." Under the terms of such
agreements, Respondent agreed to refrain from
striking the signatory employer's facility and the
employer agreed to accept the terms of any master
contract subsequently negotiated between Respon-
dent and the Associations.
On May 25, 1976, Respondent notified the Associ-
ations, their members, and all nonmember signatory
employers that it desired to terminate the 1973-76
master contract as of the July 31 expiration date and
requested negotiations for a new agreement. Respon-
dent, by letter sent to all independent employers,
further requested that the latter attend a meeting
scheduled for June 15 to present any contract
proposals and to discuss those of Respondent. None
of the Employers did so. Negotiations with the
Associations commenced in June and continued
through late July when Respondent presented the
Associations' final offer to its members for consider-
ation. The members voted to reject the Associations'
offer and to strike in support of Respondent's
contract demands commencing the first working day
after expiration of the contract on July 31. None of
the Employers participated in any negotiations nor
submitted contract proposals to Respondent prior to
July 30, or the strike that ensued.
The strike commenced on Monday, August 2. On
or about the same date, representatives of Respon-
dent began to contact both independent employers
and employer-members of the Associations for the
purpose of offering to execute the interim agreements
described above.
In the meantime, late in July, II employers
(including the 7 named in the complaint) formed an
association, denominated the Tri-Counties Floor
Association (hereinafter called Tri-Counties), and
authorized Terence P. Daly, an independent labor
relations consultant, to represent Tri-Counties and to
request Respondent to bargain with the new multi-
employer unit concerning wages, hours, and working
Floor Company; Lester's Carpet, Inc.; Ethel Pauline Skipton d/b/a
Skippy's Custom Floor and Drapes.
2 Floor Covering Association of Southern California, Inc.; Harbor Floor
Covering Institute, Inc.; Floor Covering Contractors Association of Orange
County, Inc.; and San Gabriel Valley Floor Covering Association, Inc.
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RESILIENT FLOOR AND DECORATIVE COVERING
conditions of their employees who were members of
that Union.
By letter dated July 28, 1976, and received by
Respondent on August 3, Daly requested that the
latter bargain with the newly formed multiemployer
unit (without naming the employers involved).
Meanwhile, on July 30, Daly telephoned Respon-
dent's business manager, Watkins, informed him of
the July 28 letter, and at that time requested that
Respondent bargain with Tri-Counties. 3
By letter dated August 4, Respondent notified
Daly, inter alia, that it stood ready to continue
collective-bargaining negotiations with any employer
with whom it had a bargaining relationship concern-
ing a new agreement.
Thereafter, Daly and Respondent agreed to an
August 11 meeting. At that meeting Daly identified
the employers he represented and presented their
bargaining proposal. Watkins requested that Daly
reduce his proposals to writing. By letter dated
August 12, Daly proposed "on behalf of Tri-Counties
Floor Covering Assn" that the association's mem-
bers, "individually and as a member of the Associa-
tion," would accept the terms and conditions of the
new master contract negotiated by Respondent and
the four Associations "on the following terms and
conditions":
a. Retain the current Contract wage rate in
effect until settlement is reached with retroactive
pay back to August 1, 1976 in the event a
settlement is reached by October 1, 1976.
b. Our agreement is to be for one year only
until August 1, 1977 at which time Local 1247
agrees to negotiate an agreement for the Tri-
Counties area only, including Ventura, Santa
Barbara and San Louis Obispo counties.
Watkins rejected Daly's proposals by telephone.
Daly submitted no further proposals nor did he
request further bargaining.
On August 6, Employer Skipton accepted Respon-
dent's offer to sign the interim agreement. Between
August 16 and 30, five of the remaining six
Employers similarly agreed to execute interim
agreements binding them to accept the terms of a
subsequently negotiated master contract. Respon-
dent and the Associations reached agreement on a
new master contract on or about October 11, 1976.
On February 7, 1977, Lester's Carpet, Inc. (the only
3 Daly further testified to informing Watkins then that he represented the
Employers individually as well as in their capacity as members of Tn-
Counties. Although Watkins admitted that Daly requested the Union to
bargain with Tri-Counties as a newly formed multiemployer unit, he could
not recall that Daly requested bargaining with any employer on an
individual basis.
4 Contrary to the Administrative Law Judge, we find that none of the
Employers was a member of any of the Associations with whom
one of the seven Employers who did not sign the
interim agreement) executed the new master contract
as a nonmember signatory.
Discussion
The question presented for our consideration
herein is whether Respondent engaged in conduct
proscribed by Section 8(b)(1)(B) and (3) of the Act
by (I) directing a strike against the Employers herein
notwithstanding their request to bargain on an
association or individual basis and/or (2) by its
continuing offer to execute interim contracts where-
by the Employers agreed to abide by the terms of the
master contract negotiated by Respondent and four
multiemployer Associations to which none of the
Employers belonged.
Although none of the Employers herein was a
member of any of the four multiemployer Associa-
tions,4 each was a party of the 1973-76 master
agreement negotiated by Respondent and those
Associations. Accordingly, when Respondent
reached the decision to terminate the master contract
as of the July 3 expiration date, it so notified the
Employers, as signatories to the contract, and offered
to bargain with each of them, as it did with all other
signatory employers. None of the Employers then
replied to this offer. In addition, none of them
attended the scheduled June 15 bargaining sessions
or then submitted any contract proposals as request-
ed by Respondent. Indeed, throughout the course of
events leading to Respondent's decision to strike, not
one of the Employers in any way indicated that it
would not accept the contract to be negotiated by
Respondent and the Associations. In light of these
facts, therefore, Respondent could reasonably have
interpreted the Employers' lack of response as
meaning that the latter parties intended to adhere to
the practice of letting the Associations handle
negotiations and to accept the contract that resulted
therefrom.
Following the offer to bargain, Respondent entered
into negotiations with the Associations and, having
failed to reach agreement, voted, in late July, to
strike as of August 2 in support of its contract
proposals. Thus, the sequence of events establishes
that Respondent offered to bargain with all employ-
ers, independents or otherwise, negotiated to impasse
with the Associations, and reached a decision to
strike in support of its contract proposals prior to the
Respondent had in prior years negotiated standard area contracts. Each had
signed prior contracts negotiated by those parties as "non-member
signatories" and had at no time participated in the group bargaining
process. Under these circumstances, we find that none of the Employers
evinced an unequivocal intent to be bound in collective bargaining by group
action. York Transfer & Storage Co., 107 NLRB 139 (1953). Accordingly, we
conclude that each of the Employers herein could properly request to
bargain on an individual basis.
981
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employers' request to bargain. Under these circum-
stances, we find that the Employers' request to
bargain, made after the decision to strike was
reached and on the last working day before the strike
was scheduled to commence, did not abrogate
Respondent's right to institute a lawful strike in
support of its contract demands against the Employ-
ers because, as of the date of the strike, Respondent
had done everything in its power to meet its
obligation to bargain with them.5
Nor do we find that Respondent's offer to execute
interim contracts with the Employers was coercive
within the meaning of Section 8(b)(1)(B) or (3) of the
Act. Daly's first request to bargain with Respondent
occurred on July 30. The parties agree that, on this
occasion, Daly requested Respondent to bargain
with the Employers as members of a newly formed
multiemployer unit. It is well settled that multiem-
ployer bargaining units are consensual in nature and
require an unequivocal manifestation of intent by all
parties to be bound by collective bargaining on a
group basis rather than by individual action.6
Accordingly, we find that Respondent was under no
obligation to bargain on a multiemployer basis and
lawfully refused to bargain with the Employers as
members of the Tri-Counties Floor Association.
However, there is conflicting testimony as to
whether Daly, in addition, then requested that
Respondent bargain with each of the Employers
individually. We find it unnecessary to resolve that
conflict since we conclude that Respondent, by its
subsequent conduct, met its statutory obligation to
bargain. Thus, assuming arguendo, that Daly in-
formed Respondent that he represented each of the
Employers individually, and as a member of Tri-
Counties, Respondent agreed to a meeting with Daly
on August 11 to discuss the Employers' bargaining
proposals. On that occasion the sole proposal
presented was an agreement whereby the Employers
(whether as a multiemployer group or singly) would
abide by the new master contract to be negotiated by
Respondent and the Associations for 1 year and, at
s There is no contention that Respondent failed to submit the
appropriate 30-day notices to Federal and state mediation services, and the
case was not litigated on that basis.
" York Transfer & Storage Co., supra.
T Retail Clerks Union, Local 770, Retail Clerks International Association,
AFL-CIO (Fine's Food Co.), 228 NLRB 1166 (1977), relied on by the
General Counsel in support of the violations alleged herein is distinguish-
able. The employers therein were parties to a collective-bargaining
agreement negotiated by a respondent union and a multiemployer
association due to expire on July 27, 1975. Following the employers' request
to bargain individually with the respondent, submitted in Apnl 1975,
respondent and the employers entered into negotiations on July 24, 1975. A
second negotiating session was held on August 12 and the parties agreed to
a further meeting on August 20. Respondent's members, at a meeting held
on August 4, voted to authorize strike action against the employers and
scheduled such strike to commence on August 14. On the same date, the
employers signed interim contracts whereby they agreed to abide by the
terms of a contract to be negotiated by the respondent and a multiemployer
association to which the employers did not belong.
the expiration thereof, Respondent would agree to
recognize and bargain with Tri-Counties as a
multiemployer unit. Respondent refused the Employ-
er's proposal and Daly at no time presented any
further proposals for Respondent's consideration.
Under these circumstances, we find nothing unlawful
in Respondent's continuing offer to execute interim
contracts with each of the Employers. As noted,
supra, Respondent lawfully rejected the request to
bargain with the Employers as members of a
multiemployer unit. In the absence of any further
bargaining proposals as to wages, hours, or other
terms and conditions of employment, Respondent's
offer to execute interim contracts represented neither
a refusal to recognize or bargain with the Employers
as individual employers, nor an attempt to coerce
those employers in the selection of their bargaining
representative.7 In this connection we note, as did
the Administrative Law Judge, that the Employers
themselves proposed continuation of the adoption of
the terms agreed to between Respondent and the
four Associations, albeit only for the following year,
and the Employers wanted a limitation on the
retroactivity of any agreement reached. Thus, both
the Employers and Respondent tied their final
agreement in large measure to the results of Respon-
dent's bargaining with the Associations. In these
circumstances, Respondent's offer, in accordance
with past practice, merely presented an alternative
proposal whereby the Employers could avoid further
strike action.8
In sum, we find that Respondent's August 2 strike
action against the Employers herein was lawfully
instituted following timely offers to bargain with all
Employers and negotiation to impasse with the
Associations. We further find that the Employers'
sole bargaining proposal was lawfully rejected by
Respondent and, in the absence of any further
request to bargain, Respondent's continuing offer to
execute interim contracts constituted neither a
refusal to bargain within the meaning of Section
8(b)(3) nor an attempt to unlawfully coerce the
The Board concluded that respondent, by the above conduct, violated
Sec. 8(b)(IXB) and (3) of the Act. However, unlike the instant case, the
sequence of events in the cited case clearly establishes unlawful motivation
on the part of the respondent. Thus, the respondent in Fine's Food Co., by
instituting a strike prior to reaching impasse on negotiations and by
thereafter presenting the employers with interim contracts at a time when
they had agreed to submit and consider further bargaining proposals,
evinced an intent to coerce them in the selection of their bargaining
representative in violation of Sec. 8(b)(IXB) and to refuse to bargain with
the employers in violation of Sec. 8(bX3). We therefore find that the cited
case is distinguishable on its facts and does not affect our fminding that
Respondent herein acted in a lawful manner.
8 We note the Employers could have advanced further bargaining
proposals in an effort to reach agreement with Respondent and bring an end
to the strike. In the alternative, agreement to accept Respondent's contract
demands as currently promulgated would have resulted in immediate
cessation of strike activity.
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RESILIENT FLOOR AND DECORATIVE COVERING
Employers in the selection of their bargaining
representative in violation of Section 8(b)(l)(B).
Accordingly, we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts the recommended
Order of the Administrative Law Judge and orders
that the complaint herein be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
March 8, 1977, I conducted a hearing at Los Angeles,
California, to try issues raised by a consolidated complaint
issued on November 26, 1976,' against Resilient Floor and
Decorative Covering Local Union No. 1247 of Brother-
hood of Painters and Allied Trades, AFL-CIO. 2 The
complaint was based upon a charge and amended charge
filed on August 17 and September 29, respectively, by Daly
on behalf of Linoleum Studio, Inc. and James Worwick,
Inc. (hereafter called Linoleum and Worwick) in Case 31-
CB-2364, and a charge filed on September 29 by Daly on
behalf of Curtis Carpet Installation, Inc.; Jess Herrara
d/b/a Custom Carpets City; Ted Schiefen d/b/a Tri-
County Installation; Chester Jost d/b/a Jost Floor Com-
pany; Abe Lamanno d/b/a Lamanno and Sons; Lester's
Carpet, Inc.; J. O. Miller Construction Co., Inc.; Bill
Paulin d/b/a Paulin's Floor Covering; and Ethel Pauline
Skipton d/b/a Skippy's Custom Floors (hereafter called
Curtis, Custom, Tri-County, Jost, Lamanno, Lester's,
Miller, Paulin's, and Skippy's, respectively) and an amend-
ed charge filed on November 8 by Daly on behalf of the
employers just named other than Tri-County, Lemanno,
Miller, and Paulin's in Case 31-CB--2397.
The complaint alleged the Union violated Section
8(b1))(B) and (3) of the National Labor Relations Act, as
amended (hereafter called the Act), by striking to cause the
7 remaining Charging Parties3 and 186 other employers
similarly situated, as well as 76 employer-members of 4
Associations, to sign agreements wherein they agreed to
accept whatever terms the Union and representatives of the
4 Associations reached in negotiations then in progress
between the latter parties. 4
The Union denied it violated the Act.
The issue is whether the Union violated the Act by
striking to cause the seven Independents named in the
complaint to sign agreements wherein they agreed to
I Read 1976 after all further date references omitting the year.
2 Hereafter called the Union.
3 Tri-County, Lamanno, Miller, and Paulin's, who were parties in the
original charge in Case 31-CB-2397, withdrew with the filing of the
amended charge in that case.
4 The Union and Floor Covering Association of Southern California,
Inc., Harbor Floor Covering Institute, Inc., Floor Covering Contractors
Association of Orange County. Inc., and San Gabriel Valley Floor Covering
accept the terms of the new master agreement subsequently
negotiated by representatives of the Union and the four
Associations.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, examine
and cross-examine witnesses, argue, and file briefs. Briefs
have been received from the General Counsel and the
Union.
Based upon my review of the entire record, observation
of the witnesses, perusal of the briefs and research, I enter
the following:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
at times pertinent the seven Independents named in the
complaint were employers engaged in commerce in a
business affecting commerce and the Union was a labor
organization within the meaning of Section 2(2), (5), (6),
and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Union represents employees of contractors in the
building and construction industry who sell and install
vinyl, linoleum, tile, and other types of floor coverings. Its
jurisdiction extends over much of southern California. The
bargaining pattern which has evolved over the years is
negotiation of a standard area or master agreement
between representatives of the four employer-associations
named heretofore and the Union, followed by execution of
copies of that master agreement by the Union and those
employers in the area who employed members of the
Union and were not members of any of the Associations.
In some instances (when negotiations were prolonged or
a strike occurred) many employers (both Independents and
association members) accepted union offers to execute
agreements (hereafter termed interim agreements) wherein
the employer in question and the Union agreed to accept
the terms of the master agreement eventually negotiated
between representatives of the Union and the Associations,
thereby avoiding any interruption of work.
All seven remaining Charging Parties were familiar with
the pattern, all but one of them (Custom) followed and
acquiesced in the pattern over many years prior to 1976,
and all seven were nonmember signatories to the union-
associations 1973-76 master agreement.
In accordance with usual practice, on May 25 the Union
sent identical letters to the Associations, their members,
and the Independents, notifying them the Union was
terminating the 1973-76 master contract on its July 31
Association, Inc., were parties to a master agreement for a term extending
from August I, 1973, through July 31, 1976. The 6 remaining Charging
Parties and 186 other employers who were not members of any of the 4
Associations were "non-member signatory employers" to the same agree-
ment (such nonmember signatories shall hereafter be called the Indepen-
dents). The Union struck both the Independents and the Association
members on the Monday following the expiration of the 1973-76
agreements.
983
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expiration date and requesting negotiations for a new
agreement. In the letter sent to the Independents the Union
requested they attend a June 15 meeting to discuss their
and the Union's proposals for a new agreement. The seven
Charging Parties neither attended the June 15 meeting
(which was not unusual; several testified they never
attended such meetings but simply awaited the outcome of
the associations-union negotiations) nor made any contract
proposals to the Union. The Union commenced negotia-
tions with the Associations in the same month and
continued through late July, when it presented the
Associations' final offer to its members for their consider-
ation. The members voted to reject the offer and to strike
in support of their demands commencing the first working
day after the expiration of the contract (July 31). Following
previous practice, the Union immediately prepared interim
agreements for the purpose of offering same to all the
employers who were parties to the expiring master
agreement in the event they desired to avoid any interrup-
tion of work and dispatched representatives to proffer
those agreements to all the employers who were signatory
to the expiring agreement. The Union also began to notify
all its members of the date for commencement of strike
action.
The strike commenced on Monday, August 2.
About the time negotiations between the Union and the
Associations recessed for consideration by the Union's
members of the final offer of the Associations (in late July),
the original 11 Charging Parties (Curtis, Custom, Jost,
Lamanno, Lester's, Linoleum, Miller, Paulin's, Skippy's,
Tri-County, and Worwick) formed an association, named
it the Tri-Counties Floor Association, 5 and authorized
Daly to request the Union to recognize and bargain with
the new association concerning the wages, hours, and
working conditions of those members of the Union
employed by the 11.
On Tuesday, August 3, the day after the strike com-
menced, the Union received a letter from Daly informing it
of the formation of a "multi-employer bargaining unit here
in Santa Barbara," accusing the Union of a failure to
bargain with the employers within that unit over the wages,
etc., of their employees, 6 and requesting that the Union
meet with Daly to negotiate an agreement covering the
wages, etc., of the employees represented by the Union
within such unit.
Prior to the Union's August 3 receipt of Daly's letter, its
representatives began to contact the 193 independents and
76 members of the 4 Associations who were parties to the
expired July 31, 1976, agreement and to offer to execute
interim agreements with them.
On August 2, the Union's offer was communicated to
Skippy's owner, Mrs. Ethel P. Skipton. At the time Skippy's
employed two members of the Union, both of whom joined
in the strike. On August 5, one of Skippy's customers
advised Mrs. Skipton unless she started work the following
day on a large job Skippy's had contracted to perform, the
customer was going to cancel the contract. Mrs. Skipton
informed the customer Skippy's would start the job the
5 The II were located in Ventura, Santa Barbara, and San Luis Obispo
Counties.
6 Without naming the employers in the alleged new bargaining unit or
enclosing authorizations to represent same.
following day and called the Union to advise it Skippy's
would accept the proffered interim agreement and to
request the Union to instruct its members employed by
Skippy's to resume work the following day. The Union
complied with Mrs. Skipton's request, the men reported for
work the following day (August 6), and Mrs. Skipton
signed the proffered interim agreement the same day.
On the same date (August 6) Daly received the Union's
response to his communication. The Union informed Daly
it asked all the Independents to attend a negotiating
session on June 15, that its first knowledge of the existence
of the new association came from the letter it received from
Daly on August 3, that the only previous request or
proposal it received from any of the Independents
concerning negotiations consisted of an inquiry about the
status of the negotiations between representatives of the
Union and the four Associations, that the Union struck all
the parties to the previous agreement following the July 31
expiration of that agreement, that a number of employers
covered by the previous agreement had elected to sign
interim agreements with the Union to avoid any interrup-
tion of their business, and that the Union was ready to
negotiate with any employer with whom it had collective-
bargaining relations concerning the terms of a new
agreement.
Daly contacted the Union and secured agreement from
Herbert Watkins, the Union's business manager, to an
August I I meeting. At the outset of the meeting Watkins
asked Daly to identify the employers he represented. Daly
informed Watkins he represented the original II Charging
Parties,7 that the new association consisted of those I I
employers, and orally presented a number of contract
proposals. Watkins requested Daly reduce his proposals to
writing and Daly agreed to do so.
On August 13, the Union received Daly's written
contract proposals. Daly, "on behalf of the Tri-Counties
Floor Covering Association," proposed that the associa-
tion's members "individually and as a member of the
Association" would accept the terms of the new master
agreement negotiated by representatives of the Union and
the four Associations provided: (I) the current contract
rates remained in effect until agreement on a new master
agreement was reached, (2) retroactive pay would be paid
back to August I only if such agreement was reached prior
to October 1, (3) the new master agreement expired not
later than August 1, 1977, and (4) the Union agreed to
recognize and bargain with the new association as the
representative of the 1 I original Charging Parties following
the August 1, 1977, expiration of the new master agree-
ment. The same day Watkins received Daly's proposals he
rejected them (by telephone).
Throughout the contacts between Daly and Watkins, the
latter made it clear the Union did not recognize the new
association as an appropriate multiemployer bargaining
unit and considered its request for bargaining untimely.
On August 16, Curtis signed the interim agreement
proposed by the Union; on August 19, Worwick signed; on
August 23, Jost signed; on August 24, Linoleum signed;
I Though he failed to produce any written authorizations from any of the
I I at that time or any other time.
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RESILIENT FLOOR AND DECORATIVE COVERING
and on August 30, Custom signed. By the latter date 75 to
80 percent of the struck employers, including both
Independents and members of the four Associations, had
signed the proposed interim agreements. As each employer
signed, its employees returned to work. In each case the
reasons advanced by the various Charging Parties for
signing were similar to those voiced by Mrs. Skipton - to
avoid further loss of business.
The interim agreements contained provisions wherein
the signatories thereto agreed to comply with the provi-
sions of the expired 1973-1976 union-associations master
agreement except:
1. Wage rates were substantially increased effective
August I in varying amounts, depending on job
classification;
2. Payments to the Apprentice & Training fund,
Health & Welfare fund, Pension fund and Vacation-
Holiday fund were substantially increased, effective
August 1;
3. The interim agreements expired on July 31, 1977
or the date the Union and the 4 associations reached
agreement on a new master agreement; in the latter
case, the interim agreements automatically were termi-
nated and the terms of the new master agreement
substituted;
4. The grievance, arbitration and no strike-no
lockout provisions were deleted;
5. The employer signatories to the interim agree-
ments, at their option, could meet and select members
to serve on a joint contract administration committee
with an equal number of members selected by the
Union.
On October 7 representatives of the Union and the four
Associations agreed on terms for a new master agreement.
The 1976-77 master agreement, for the most part,
incorporated the same changes from the 1973-76 master
agreement set forth in the 1976-77 interim agreements
(there were a few differences in the wage schedules;
increases in the mileage and subsistence allowances were
added; and contributions or payments to the various funds
were lower).
On February 7, 1977, Lester's executed the new master
agreement as a "non-member signatory."
B. Analysis and Conclusions
The General Counsel relies upon Watkins' conduct vis-a-
vis Daly as the basis for his allegation the Union failed or
refused to bargain in good faith with Curtis, Custom, Jost,
Lester's, Linoleum, Skippy's, and Worwick, thereby violat-
ing Section 8(b)(3) of the Act.
B N.L.R.B. v. George M. Hart, d/b/a San Diego Cabinets, et at., 453 F.2d
215(C.A. 9, 1971), enfg. 183 NLRB 1014, cert. denied 409 U.S. 844 (1972);
United Fr)yer and Stillman, Inc., 139 NLRB 704 (1962); Moveable Partitions,
Inc., 175 NLRB 915 (1969); Chicago Metropolitan Home Builders Associa-
tion, 119 NLRB 1184 (1957); Cab Operating Corp., et at., 153 NLRB 878
(1965); Electric Theatre, etc., 156 NLRB 1351 (1966).
9 N.L.R.B. v. John J. Corbett Press, Inc.. 401 F.2d 673 (C.A. 2, 1968),
enfg. 163 NLRB 154 (1967); N.L.R.B. v. Tulsa Sheet Metal Workers, Inc.,
367 F.2d 55 (C.A. 10, 1966). enfg. 149 NLRB 1487 (1964): N.LR.B v.
Jeffries Banknote Company. 281 F.2d 893 (C.A. 9. 1960), enfg. 124 NLRB
920(1959).
It is doubtful, however, the Union had any duty to
bargain with Daly. Daly demanded the Union recognize
and bargain with him as the representative of a newly
created multiemployer bargaining unit consisting of the
seven Charging Parties and the four other employers who
withdrew from this proceeding. His demand came long
after the Union served its notices terminating the 1973-76
contracts and requesting bargaining for new agreements to
the 4 Associations, their members and the 193 Indepen-
dents, including the 11 original Charging Parties, after
bargaining commenced for a new agreement, after the
Union prepared and distributed to the Association mem-
bers and Independents proposals for new contract terms,
and after the Union struck to secure same.
In the absence of any history of bargaining between the
Union and the new association concerning the wages, etc.,
of the employees of the employers constituting the new
multiemployer unit, or agreement between the Union and
that association to bargain on the new unit basis, the
Union had no duty to recognize or bargain with Daly as
the representative of the newly constituted unit,8 particu-
larly where the request for bargaining was so untimely
(after service of notice, bargaining, and strike) and
ambiguous (in failing to specify the composition of the
proposed new unit and to include authorization from its
purported members for such representation). 9
While the General Counsel contends Daly sought to
bargain with Watkins on behalf of the I I original Charging
Parties as individual units, the thrust of his communica-
tions to the Union express a contrary intent and, in any
event, in the one exchange between Daly and Watkins
prior to acceptance by Curtis, Worwick, Jost, Linoleum
and Custom of the Union's contract proposal, m' the
evidence does not support a finding Watkins dealt in bad
faith with Daly.
Under these circumstances, I find and conclude the
Union did not fail or refuse to bargain in good faith with
Daly as the duly designated representative of an appropri-
ate bargaining unit and therefore shall recommend dismis-
sal of those portions of the complaint so alleging.
The General Counsel also contends because the duration
provision of the proposed interim agreements provided
those agreements would expire on July 31, 1977, unless
prior to that date representatives of the four Associations
and the Union reached agreement on terms for a new
master contract (in which event the interim agreements
would terminate automatically and be succeeded by the
terms of such new master contract), the Union's strike
constituted unlawful coercion of the Charging Parties in
the selection of their bargaining representative, a nonman-
datory subject of collective bargaining.
Had there been no prior history of collective bargaining
between the parties and an unequivocal and timely
i' Skippy's accepted the union contract proposal on August 5, only 2
days after the Union received Daly's initial demand for recognition and
bargaining; Lester's never sought to bargain with the Union, either directly
or through Daly, after receipt of the Union's contract proposals and notice
of the Union's rejection of Daly's contract proposals, finally agreeing on a
new contract on February 7. 1977; and the record does not disclose when or
if the other four employer-members of the new association (and proposed
multiemployer bargaining unit) settled their contract dispute with the Union
nor when the other 186 Independents did so.
985
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expression by the Charging Parties of a desire to bargain
individually, the General Counsel's theory of the case
might have merit. However, for many years the Charging
Parties (and 186 other Independents) participated in
bargaining on a multiemployer basis wherein representa-
tives of the 4 Associations and the Union worked out
uniform terms governing the wages, hours, and working
conditions of union-represented employees of employers in
the floor installation industry in southern California and
executed agreements authorizing representatives of the 4
Associations to represent them for collective-bargaining
purposes during the terms of those agreements, raised no
objection in 1976 to continuation of that practice before
the strike commenced, and only then, after the strike
commenced, made a belated and ambiguous effort to
bargain through a newly formed, multiemployer unit.
In view of the Charging Parties' participation in prior
bargaining on the multiemployer basis in which it was
conducted prior to 1976, their prior authorization of
representatives of the four Associations to represent their
interests under the successive master agreements negotiat-
ed prior to 1976, and the untimely and equivocal nature of
their abortive effort to escape from a continuation of the
I It is further noted Daly did not propose abandonment of the practice
of assuming the terms of the 1976-77 master agreement, including
representation by representatives of the four Associations during its term;
he sought to condition continuation of the practice on the Union's
recognition of the newly formed multiemployer unit thereafter.
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
1976 negotiations, I find the General Counsel's theory
without merit. "
I therefore shall recommend the dismissal of the
complaint in its entirety.
CONCLUSIONS OF LAW
1. At times pertinent Curtis, Custom, Jost, Lester's,
Linoleum, Skippy's, and Worwick were employers engaged
in commerce in a business affecting commerce and the
Union was a labor organization within the meaning of
Section 2(2), (5), (6), and (7) of the Act.
2. The Union did not violate Section 8(b)(1)(B) and (3)
of the Act by its actions vis-a-vis Daly and the Charging
Parties in the 1976 negotiations.
On the basis of the foregoing findings of fact, conclusions
of law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the the following recommended:
ORDER 12
The complaint is dismissed in its entirety.
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.
986