Plumbers Union No. 323

National Labor Relations Board - Board Decisions

Jun 25, 1971

191 N.L.R.B. 592 (N.L.R.B. 1971)

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plumbers and Steamfitters Union No . 323 and Plumb-
ing, Heating, Cooling Contractors Association of
Columbus, Georgia and P.H.C. Mechanical Con-
tractors . Case 10-CB-1939
June 25, 1971
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND KENNEDY
On February 22, 1971, Trial Examiner Ramey
Donovan issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had not engaged
in certain unfair labor practices alleged in the com-
plaint, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed excep-
tions to the Trial Examiner's Decision and a supporting
brief and the Respondent filed a brief in support of the
Trial Examiner's Decision.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer'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.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the com-
plaint be, and it hereby is, dismissed in its entirety.
2 As we agree with the Trial Examiner that an impasse did exist prior to
the commencement of the separate negotiations between the Union and
P.H.C. leading to the interim contract , we need not consider , and accord-
ingly do not adopt, the Trial Examiner 's alternate conclusions contained in
fn. 25 of this Decision.
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN, Trial Examiner: The charge was filed
on July 23, 1970, by Plumbing, Heating, Cooling Contractors
Association of Columbus, Georgia, herein the Association,
against Plumbers and Steamfitters Union No. 323, herein the
Union or Respondent. A complaint issued on November 19,
1970, alleging that during the pendency of contract negotia-
tions between the Association and the Union, the latter ex-
ecuted a single employer contract with a member of the As-
sociation, all in violation of Section 8(b)(3) of the Act.
Respondent had denied the commission of the alleged unfair
labor practice. The case was tried in Columbus, Georgia, on
January 5, 1971.
191 NLRB No. 121
FINDINGS AND CONCLUSIONS
I JURISDICTION
The Association, at all times material, is and has been a
nonprofit Georgia corporation with its principal place of busi-
ness in Columbus, Georgia. It represents its employer mem-
bers, who are engaged in the plumbing, heating, and cooling
contracting business, in negotiating contracts with various
labor organizations, including Respondent, that represent the
employees of the members of the Association.
Employer members of the Association, jointly and sever-
ally, during a representative annual period, purchased and
received goods valued in excess of $50,000 directly from sup-
pliers located outside Georgia.
P.H.C. Mechanical Contractors, herein P.H.C., is and has
been a member of the Association at all material times.
The Association is, and has been at all material times,
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
Since 1961, the Association and the Respondent have
negotiated, and have been parties to, written contracts cover-
ing employees of the Association's members in an Associa-
tion multiemployer unit.' The most recent of these contracts
expired by its terms on June 30, 1970.
By mutual prearrangement a committee representing the
Association and a union committee had commenced negotia-
tions for a new contract on June 15, 1970. The Association
committee consisted of Henderson, president of the Associa-
tion, whose company, Carpenter & Henderson Company,
was a member of the Association; Cox, whose member com-
pany was Cox Plumbing Company; and Bray, president of
member company P.H.C. The union committee was headed
by Business Agent Knowles and was composed of various
union members.
At the first bargaining meeting on June 15, 1970, the Union
submitted a complete written contract proposal. The As-
sociation committee said that it would study the proposal and
then meet again with the Union. This was agreed upon and
the first meeting adjourned.
The second meeting was held on June 22. The parties went
over the contract proposed by the Union, and the Association
committee indicated the provisions to which it agreed or
disagreed. Noncontroversial contract articles such as article
I, recognition of the Union; article II, which recited that the
contract covered rates of pay, rules and working conditions;
and various other articles, such as those dealing with appren-
tices, reporting time, and so forth, were agreed upon. In
short, many provisions that were and had been part of the
contracts between the parties were no problem in 1970.
But at the June 22 meeting and at succeeding meetings, the
parties were substantially apart on economic monetary issues.
The Union contract proposal of June 15 on wages and fringe
benefits was for a 2-year contract providing an increase of
$5.10 per hour, plus 70 cents in fringe benefits.' On June 22
the Association indicated its rejection in total the fringe
2 The Association unit includes all plumbers, pipefitters, welders, and air
conditioning servicemen employed by employer members of the Associa-
tion working within the geographical jurisdiction of Respondent, but exclud-
ing all other employees, office clerical employees, guards, and supervisors
as defined in the Act This unit is an appropriate unit within the meaning
of Section 9(b) of the Act
2 The fringe benefit proposal included employer payment to the union
health and welfare fund of 20 cents per hour worked by the employees; 25
cents per hour worked to the union pension fund; and 25 cents per hour
worked to the union vacation fund.
PLUMBERS UNION NO. 323 593
benefits proposals, above, and, on wages offered an increase
of $1.35 per hour in a 3-year contract.
The third meeting was held on June 27, 1970. The Associa-
tion committee of Henderson, Bray, and Cox was augmented
by Wyrosdick, owner of Commercial Plumbing and Heating
Company, a member of the Association.3 At this meeting, the
Association proposed, evidently through Wyrosdick, that the
parties devote their efforts to the matter of wages before
trying to work out agreement on other items in the contract
that had not been agreed upon. According to Henderson, this
proposal was acceptable to both parties.' They thereupon
discussed wages. Henderson testified that "We [the Associa-
tion] stated to them that the original request was all out of
reason, was unacceptable...... The Association offered a
wage increase of $1.40 per hour over a 3-year contract and
a change in the increment.' Despite considerable discussion
of the wage positions of the parties, no agreement on wages
was reached. The Association did not, after this third meeting
on June 27, make any additional wage proposal. However, at
this third meeting, Wyrosdick of the Association raised the
possibility of negotiating a split contract, one a commercial
contract and the other an industrial contract. The wage rate
in the two contracts would differ, with the industrial rate
being higher than the commercial rate. The Union was recep-
tive to the possibility of such an arrangement but the Associa-
tion committee, after caucusing at the meeting, decided that
such a split contract was not feasible and the proposal there-
fore was aborted.
The last meeting of the parties, on June 29, before the
expiration of the existing contract on June 30, was the occa-
sion of the first concession on wages made by the Union since
its initial proposal of $5.10 per hour plus 70 cents in fringe
benefits in a 2-year contract. The Union, on June 29, offered
a wage package of $3.50 per hour in a 2-year contract. Ac-
cording to Henderson, "We rejected that as being exorbitant"
and the Association reaffirmed its offer of $1.40 in a 3-year
contract.' The Union committee caucused, returned, and said
that it "would have to stay with the $3.50 package. And then
the meeting ended, adjourned."' as the meeting was thus
ending, Knowles, who headed the union group, said that if
the two parties could not "get off" their respective wage
positions of $1.40 (Association) and $3.50 (Union) it would
be hard to reach an agreement. Wyrosdick said that the As-
sociation was willing to negotiate at any and all times. It is
clear, however, that the meeting ended with neither party
giving any indication of a position other than a raise of $1.40
per hour in a 3-year contract on the part of the Association
or a raise of $3.50 per hour in a 2-year contract on the part
of the Union. Neither party proposed or discussed a further
meeting for some subsequent date.
On July 1, 1970, union employees of the Association mem-
bers did not report for work. This work stoppage continued
in succeeding days.
During this period there was also a contract dispute and
strike in the area between an association of general contrac-
' Wyrosdick initially had been an alternate member of the committee.
° It would be our opinion that this was some indication that both sides
recognized the critical importance of the wage issue
6 Originally, for instance, the Association wage increase provided for its
increment or payment to be 15 cents per hour for the first 6 months of the
contract and so on; this was changed to 30 cents per hour for the first 6
months of the contract and so on.
6 At some point the Association had also proposed an increase of $1 per
hour in a 2-year contract. This was not accepted by the Union
' This is Wyrosdick's testimony.
tors and the Carpenters Union.' At some time between July
1 and 15, 1970, evidently just before the 15th, a Federal
mediator, Roseberry, was involved in the strike and dispute
between the general contractors and the Carpenters. At that
time he also got in touch with Henderson of the Association.
Roseberry said to Henderson that he was setting up a meeting
between the general contractors and the Carpenters and that
he would also like to arrange a meeting between the Plumbing
Association and the Union (Local 323, Plumbers & Steamfit-
ters). The mediator told Henderson that he had discussed the
proposal with Knowles of the Union and that Knowles was
agreeable to the proposed meeting and to further negotia-
tions. According to Henderson, the latter, Henderson, then
asked Roseberry on what basis Knowles was willing to
negotiate. The reply was the Knowles was prepared to negoti-
ate on the basis of $3.50 per hour. Henderson said "that
negotiating at $3.50 an hour ... would be wasting our time"
but that the Association would negotiate "on a reasonable
basis" whenever the other side was prepared to do so. Rose-
berry then mentioned to Henderson that a contractor had
signed a contract with the Union which embraced a $3.50 per
hour increase.
As was indicated above, Bray of P.H.C. was a member of
the Association's negotiating committee. He had participated
in the four meetings between the parties, June 15, 22, 27, and
29, described above. When the old contract expired on June
30 and the strike commenced on July 1, P.H.C.' s business
came to a halt.' P.H.C. had a contract in LaGrange which
had a time penalty clause for nonperformance, and, in order
to be able to perform this contract, Bray testified that he
telephoned Knowles of the Union. This was apparently about
July 13 or 14. Bray told Knowles that, through necessity, he
had to get his men back to work and he asked Knowles what
would be required to bring this about. Knowles said that he
could offer Bray a contract to sign and if Bray agreed to it,
the men (Bray's employees, members of the Union) would
return to work. The next day, July 15, Knowles brought the
contract to 'Bray and the latter signed it on behalf of his
company, P.H.C. P.H.C. employees returned to work. Bray
testified that Knowles told him the contract was an "interim
agreement;" that it was temporary and that if the Union and
the Association signed a contract then P.H.C. would become
a party to the Association contract with the Union."
In addition to the foregoing events, it also appears from
Henderson's testimony that on or about July 15, 1970, the
Association negotiating committee of Henderson, Cox, and
Bray met. Henderson and Cox had, by then, apparently
learned indirectly that Bray (P.H.C.) had signed a contract
with the Union. Henderson asked Bray directly on July 15 if
he had signed a contract. Bray sayd yes and that he had to
do it because there was no alternative."
6 The same law firm represented the general contractors association and
the instant Plumbing and Heating Association.
' Bray testified. "The operation of my business, just like all the others, it
ceased to operate."
10 Physically, the contract document signed by Bray on July 15 was
substantially the contract that the Union had submitted to the Association
at the first negotiating session on June 15. However , Knowles testified,
without contradiction by Bray or anyone else, that the contract signed by
Bray was, in effect, the contract proposal of the Union to the Association
on June 29, i.e, the $3.50 per hour increase as distinguished from the
original June 15 proposed increase of more than $5 per hour as appears in
the physical document
11 Neither before he signed the contract nor after the event did Bray ever
state that he (P.H.C.) wished to withdraw from the Association and the
latter organization never took any steps to require P.H.C.'s withdrawal.
Likewise, the Union, neither before or after the P.H.C. contract, said any-
thing about discontinuing to deal with the Association or expressed an
(Cont)
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first meeting between the Association and the Union
after June 29 was held on August 3. It was arranged mutually
between Henderson and Knowles. At the meeting, the As-
sociation was represented by Henderson, Cox, and Wyros-
dick.12 Very little was accomplished at this meeting except
that both parties agreed to meet again."
The Association committee and the Union committee met
next on August 7, 1970. The Association initiated a discus-
sion of working conditions under any contract that might be
arrived at. It was pointed out to the Union that the refusal
of Local 323 (Plumbers) members to cross Carpenters Union
picket Imes as long as the, Carpenters were on strike against
the general contractors created a serious problem for the
Association employers. The latter, under their contracts with
the general contractors, were required to man their work
projects and, if they did not, the general contractors could
then man the jobs and charge the expense to the Association
employer, i.e., the plumbing and heating subcontractor. Be-
cause of the foregoing situation, the Association told the
Union on August 7 it was necessary to discuss working condi-'
tions even more than monetary provisions of a contract. Al-
though the matter was discussed, Henderson testified, "We
did not come to any decisions whatsoever."
The next meeting was on August 10. The Union once again
offered its $3.50 per hour monetary increase proposal. The
Association again rejected the proposal and reoffered its own
proposal of $1.40. The Association also said that the working
conditions matter that it had raised at the previous meeting
would have to be negotiated.
The Association and the Union met again on August 27.
The Association said that it was necessary to discuss working
conditions because, under the existing conditions, it would be
fruitless to sign a contract unless the Union agreed to cross
the picket lines and man the jobs. The Union would not agree
and said that it would honor the Carpenters Union picket
lines. It was agreed that the Union would call the next meet-
ing with the Association. As of the time of the instant hear-
ing, no further meetings have been held and the strike of the
Carpenters Union against the general contractors was still
going on.
CONCLUSIONS
Early in the 1970 contract negotiations both the Associa-
tion and the Union representatives14 perceived that the mone-
tary issue of wages and fringe benefits as proposed by the
Union in its June 15 contract proposal was and would be a
major, if not the major, issue. The Union's proposal embodied
a monetary increase of $5.80 per hour and the Association
counterproposal, presented at the second meeting, amounted
to $1.35. The gap between the two positions was further
enhanced by the Union's proposal being confined to a con-
tract of 2 years' duration whereas the Association offer was
solely in terms of a 3-year contract. In realistic recognition
of the situation and, at the suggestion of the Association, it
was mutually agreed by both parties that they would concen-
trate on the monetary issue before endeavoring to deal with
intent to deal only with individual employers as single bargaining units.
11 Bray attended no negotiating meetings between the Association and
the Union after June 29.
11 Knowles did state at the meeting that he had signed an interim agree-
ment. Henderson testified that when Knowles was asked what was an in-
terim agreement, he said that it was a contract that would exist until a
contract was arrived at between the Association and the Union, the nego-
tiating parties
i Members of the parties ' respective negotiating committees.
other contract issues.15 Accordingly, the bargaining was
confined to the crucial monetary issue and neither party
sought to discuss other issues that might possibly be sources
of agreement of disagreement.16
Despite the wide difference between the Union and the
Association monetary proposals and the fact that the old
contract was about to expire on June 30, the Association's
one and only change in monetary position was on June 27 to
offer $1.40 instead of $1.35. The $1.40 was_ still confined to
a 3-year contract as distinguished from the Union's proposal
of $5.80 in a 2-year contract. The best that the Union was
prepared to do was to offer a monetary package of $3.50 in
a 3-year contract. This was on June 29.
In prior years, when the desire and prospect of reconciling
the respective bargaining positions of the parties was evi-
dently present, they had negotiated right up to the last day
of the expiring contract and had reached agreement at the last
minute." But, in 1970, the efforts of the two parties to bridge
the formidable monetary gap between their respective posi-
tions was confined to the 5-cent move by the Association on
June 27 and the $2.30 move by the Union on June 29. While
the Union's offer of $3.50 was a substantial move from $5.80,
it was a long way from $1.40'and, by the same token, $1.40
was a long way from $3.50 or $5.80, the latter being the
outstanding union demand at the time the Association first
offered $1.40. The merits of the respective positions do not
concern us. What we do note is that neither party, on July
27 or 29, made any further effort to bridge the large monetary
gap between their respective positions. There was no indica-
tion by either party that, having ' offered $1.40 and $3.50
respectively, they were prepared to compromise or to try to
compromise their money differences. As far as appears, each
side, on June 29, had gone as far as it was prepared to go and
neither gave any indication of a potential or prospective
change in position." Although the old contract was about to
expire, neither party suggested a further meeting and no such
meeting was arranged nor was there any attempt by either
party to arrange such a meeting. These facts, in our opinion,
warrant the conclusion that there was an impasse in negotia-
tions and we so find.
The remark by Wyrosdick on June 29, as the meeting was
ending, that the Association continued to be willing to negoti-
ate does not alter our conclusion that an impasse on monetary
issues had been reached and that unless such issue was re-
" The contract can be viewed as consisting of three principal categories-
(1) historical and more or less conventional clauses, such as "recognition"
and so forth-the Association had indicated to the Union its acceptance of
such clauses in the contract proposal that the Union had submitted; (2)
monetary provisions such as wages and fringe benefits which were set forth
in terms of dollars or cents per hours, and (3) other provisions, such as hiring
clauses, working conditions and strike clauses, and other such matters
11 It was not until August 7 that another major issue was raised. On that
date the Association brought up its desire to secure the Union's agreement,
in a working condition or strike clause, that the Union would not respect
the picket fines of other craft unions. But even during the August negotia-
tions the monetary matters were reiterated and remained as a major issue
and neither party's position thereon had changed in any respect from what
it had been on June 29.
1' This had entailed the Union sending telegrams to its members so that
a special meeting could be held to accept the contract terms agreed upon
at the 11th hours. The necessity of telegrams rather than ordinary mail was
of course due to the time element. The time element was important, quite
apparently, because, if'the old contract had expired withoutragreement
having been reached on a new contract, the Union members would not work
under the practice in many'trades of "no contract, no work."
11 The one effort at compromise on June 29 was aborted almost at the
moment of birth. Wyrosdick's suggestion about a split contract, described'
above, was rejected by the Association committee and thus never became
an Association proposal.
PLUMBERS UNION NO. 323
solved no contract was feasible. A refusal by one or both
parties at some point to continue to meet is not a sine quo non
for an impasse. Parties can meet and talk indefinitely if they
choose, even after an impasse. Although not necessarily so,
it may be that meetings held after an alleged date of impasse
will confirm the existence of the prior recognized impasse; in
some cases, it may be that what occurs after an ostensible
impasse will alter the conclusion that there had been a prior
impasse, although subsequent resolution of differences is not
necessarily inconsistent with the existence of a prior impasse.
Neither a declaration by one or both parties that they refuse
to negotiate in the future nor a prescribed number of bargain-
ing sessions are essential conditions precedent for an im-
passe."
In the instant case, there are two additional evidentiary
facts that confirm our opinion that the parties had reached an
impasse on July 29. The first of these facts arises from the
testimony of Bray, president of P.H.C., and a witness for the
General Counsel. Bray was a member of the Association
negotiating committee and in that capacity he had attended
all the meetings from the inception of negotiations in 1970 up
to and including June 29, 1970. He attended an internal
meeting that the members of the Association committee held
between the June 27 bargaining meeting with the Union and
the June 29 meeting.' It is our opinion that as a member of
the Association committee from the inception of negotia-
tions, Bray and the other committeemen knew, and indeed
were formulators of, what the basic Association position on
monetary matters would be by June 29 and for some period
thereafter, depending perhaps in some degree on what
proposal was forthcoming from the Union on June 29, the
day before the contract expired. In any event, we do not
regard Bray's testimony with respect to the June 29 matters
as simply an expression of some esoteric thinking or quirk of
his own but rather as an informed judgment by a participat-
ing member of the Association committee.
Bray testified that on June 29, although he thought some
contract matters could be agreed upon, he did not think that
at that time "the money situation-, should [or would?] be
agreed upon because at this particular time the Carpenters'
Union and the general contractors were negotiating a con-
tract [a strike took place in'the Carpenters' and general con-
tractors contract negotiations and was still in effect in Au-
gust]." Bray stated that he believed that any terms agreed
upon between the area general contractors and the Carpen-
" Although not cognizable under Section 8(b)(3) and 8(a)(5) of the Act,
a good illustration that impasse is a question of fact and not one of profes-
sions of willingness to meet or number of meetings, is to be found in the Paris
negotiations The United States and South Viet Nam, on the one side, and
North Viet Nam and the NLF, on the other, have been meeting every
Thursday for at least 3 years. The only tangible agteement achieved has been
agreement on the size and shape of the table. The parties reached an impasse
long ago and early in the negotiations However, they consistently proclaim
their. interest. in reaching an agreement and they, continue,-to meet. Obvi-
ously; breaking off or not breakingnffnegotiations are not essential elements
in an impasse. Parties may or•may, not discontinue negotiations or may
express willingness or unwillingness to continue negotiations but none of the
foregoing are essential determinants of whether there has been or has not
been an impasse.
3° We do not know what transpired at the internal Association committee
meeting. We do not know that on June 27 the Association had offered the
Union $1 40 and this had been rejected. The parties also knew that the
contract would expire, on June ,30. It is not unreasonable to infer that be-
tween the June 27 'and 29 meetings the Association considered whether it
would offer more than $1:40 on Jiine 29, depending perhaps on what the
Union might come forward with on June 29
595
ters "would affect possibly the economic package that we [the
Association] came up with. 1121
Accordingly, about 2 weeks later, neither side having in the
interim sought to meet again or to make any compromise
offer, Bray took the initiative to secure from the Union the
employees necessary to complete one of his contracts. He
signed the $3.50 per hour increase contract that the Union
had offered to the Association. The $3.50 was no more palata-
ble to Bray than to his colleagues but because of what he
deemed the economic stringency of his own position regard-
ing a contract he had and because he realized that the As-
sociation and the Union had reached a monetary deadlock,
an impasse in negotiations with no reasonably early prospect
of resolution, Bray signed the union contract.
Further confirmation that an impasse had been reached on
June 29 and continued to exist thereafter is to be found in the
Association's response to the Mediator around July 15, 1970.
The Mediator, in mentioning the possibility of another meet-
ing, had reported to the Association that the Union was
willing to negotiate on the basis of its $3.50 proposal. The
Association responded that negotiations on such a basis
would be a waste of time but that it would be prepared to
negotiate on a "reasonable contract." Although the record is
silent on the matter, it is logical to assume that the Mediator
conveyed this intelligence to the Union. In any event, neither
party came forward at this juncture with a further proposal
or indicated a change from their prior positions.22
Also, 'on approximately July 15, the Association learned
directly from Bray that it had heard indirectly about the same
time, namely, that he had signed a contract with the Union.
Bray stated that he had taken the action because he had no
other alternative.
By mutual agreement the parties met on August 7. This
was the first meeting since June 29. According to Henderson,
the Union, at the meeting, asked the Association to make "a
counter-proposal."23 There is no claim that a counterproposal
was offered since Henderson states that, after the Union made
its request, " ... we had a general discussion." The Associa-
tion raised the question of working conditions, i.e., the fact
that the Union was respecting the picket lines of the Carpen-
ters Union that was on strike against the general contractors.
The Association had in mind some agreement with the Union
whereby its members would work despite the Carpenters
pickets. The Association indicated that such a provision on
working conditions was now of paramount importance. Ac-
cording to Henderson, "we did not come to any decisions
[agreement] whatsoever" and the meeting ended. The parties
agreed to meet on August 10.
On August 10, the Union again offered its $3.50 contract
proposal. The Association rejected the proposal and
reaffirmed its own offer of $1.40_'in a 3-year contract. The
Association also said'that the matter of working-conditions,
" In short, if a construction industry wage pattern was going to be set in
the area, the Association was disinclined to set it except at $1.40, which, of
course, was considerably below the union demand for $5.80 and then $3 50.
Anything within -compromise -distance•of $3.50 was evidently not coming
from the Association.at that time or in the near future, at least as Bray saw
it.
" It is a valid assumption that both parties were willing to negotiate a
contract with "reasonable" monetary terms. The problem was that "reason-
able," as far as appears, from June 29 on, meant $1.40 to the Association
and $3.50 to the Union. This was confirmed around July 15 and no change
appeared thereafter-
" Evidently what was meant by this was that the Association make a
counterproposal to the Union's $3 50 demand (presumably a counter-
proposal other than the $1 40 that the Association had adhered to since June
29)
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, would have to be negotiated. The Union rejected the
Association proposal.
The next meeting was held on August 27. The Association
proposed to discuss working conditions, saying that it would
be fruitless to sign a contract unless the Union would agree
to cross picket lines and man the jobs. The Union refused to
agree to any such provision and affirmed that it would honor
the Carpenters picket lines. The meeting concluded with the
understanding that the Union would call the next meeting.
As of the date of the hearing no further meeting has been
called or held.
It also appears that at one or more of the August meetings,
there was some general discussion of the contract signed
between P.H.C. and the Union. Henderson testified that
Knowles referred to the aforementioned contract as an "in-
terim contract." From what Knowles said, Henderson states
that he understood that the P.H.C. interim contract "was a
contract that would exist until a contract was worked out
between the negotiating parties [the Association and the
Union]." This was also Bray's understanding since he tes-
tified that Knowles had told him that the P.H.C. contract was
"temporary" and that, when the Union and the Association
reached agreement, P.H.C. (Bray) would become a signatory
of the Association contract.
On the evidence in this case we find that by executing a
contract with P.H.C. about July 15, 1970, the Union has not
violated Section 8(b)(3) of the Act as alleged in the complaint.
Without repeating the evidence, it is our opinion that an
impasse had been reached in negotiations on June 29, 1970.24
Depending upon all the circumstances of a particular case, a
strike may or may not have significance in appraising the
status of contract negotiations. If the strike has any evidenti-
ary significance in the instant case, it confirms the existence
of an impasse since it had been in effect for 2 weeks prior to
P.H.C.'s approach to the Union without having had the
slightest discernible effect on the respective bargaining posi-
tions of the Association and the Union. Indeed, although the
strike had been in effect since July 1, neither the Association
nor the Union had moved an inch on their monetary positions
by August 27.
'" Ice Cream, Frozen Custard Industry Employees, et aL and Ice Cream
Council, 145 NLRB 865.
In view of our conclusions regarding the existence of an
impasse, further extended discussion is unnecessary. How-
ever, certain facts may be noted. P.H.C. took the initiative in
approaching the Union. The Union had made no attempt to
"saw off" P.H.C. from the Association. It did not strike
P.H.C. alone in order to exert pressure on a single employer
or to whipsaw the Association by picking off individual em-
ployer members. When asked by P.H.C. under what terms
P.H.C. employees would return to work, the same terms that
had been offered to, and that had been rejected by, the As-
sociation were forthcoming. If lower or higher terms were
offered to or demanded from P.H.C. than had been offered to
the Association, an effort to destroy the unit and substitute
fractionated single employer units might have been discerni-
ble. P.H.C. did not withdraw from the Association and the
Association took no action to signify that it no longer consid-
ered P.H.C. to be part of the Association. The Union did not
demand that P.H.C. withdraw from the Association and ex-
pressly made it clear to both the Association and P.H.C. that
the latter would be bound by any contract ultimately nego-
tiated between the Association and the Union.25
RECOMMENDED ORDER
It is recommended that the complaint be dismissed.
" If a union in contract negotiations had demanded a 10-percent wage
increase and the employer has taken the position that he is unable to offer
any wage increase, and a strike ensues, with or without an impasse having
been reached in the course of negotiations, the employer may employ in-
dividual strikers who thereafter return to work during the strike. He may
offer and pay the returning employees the same wages and other terms
offered to the union despite the fact that the union and the employer are still
negotiating or despite the fact that initially the union as bargaining agent has
rejected such terms The union's problem in such a case is its own control
of its members and their loyalty to the union. The Act under Section 8(a)(5)
is not intended to succor the union in such a situation despite the fact that
its bargaining position may be affected by the return to work of some of its
members on the employer's terms. In any event, if the union does ultimately
negotiate a wage increase, the contract will govern all the unit employees.
By the same token, in the instant case, the Union has given P H.C. the terms
offered to the Association, with the understanding that the Association
contract when arrived at will pertain to all members of the Association,
including P.H.C In our opinion, the Association's problem is its own control
of its members, just as the union's problem, in our example, was its control
of members who returned to work during the strike Section 8(b)(3), no
more than Section 8(a)(5) in our example, is not intended to cure a problem
of internal control and loyalty of members.