Sheet Metal Workers, Local 25

National Labor Relations Board - Board Decisions

Sep 22, 1975

220 N.L.R.B. 500 (N.L.R.B. 1975)

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers International Association,
AFL-CIO, Local Union #25 and North Texas
Contractors Association and Dallas Sheet Metal
Contractors Association . Case 16-CB-888
September 22, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On February 28, 1975, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, General Counsel filed cross-
exceptions and a supporting brief, and the Charging
Parties filed answering briefs.
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 to the
extent consistent herewith.
We agree with the Administrative Law Judge's
conclusion that Respondent did not coerce the four
individual contractors to select their own officials
rather than the multiemployer committee as their
bargaining representatives. We also agree with the
Administrative Law Judge's conclusion that Respon-
dent did not condition further negotiations with the
multiemployer committee upon acceptance of the
terms reached with the four individual contractors.
We disagree, however, with the Administrative Law
Judge's conclusion that Respondent acted in deroga-
tion of its statutory bargaining obligations when it
negotiated agreements with the four individual con-
tractors after already participating in negotiations
with the multiemployer committee, and thereby vio-
lated Section 8(b)(3) of the Act.
The Administrative Law Judge based his conclu-
sion that Respondent violated Section 8(b)(3) upon a
finding that the two associations and the four indi-
vidual contractors intended to, and did, form a mul-
tiemployer bargaining unit for purposes of the wage
renegotiations and that Respondent acquiesced in
the formation of such a unit . We find, however, that
the record does not support the Administrative Law
Judge's finding.
Even assuming arguendo that the two associations
and the four individual contractors did have an in-
tention of forming a multiemployer bargaining unit,
the evidence does not establish that such an intention
was ever unequivocally manifested to Respondent or
that Respondent acquiesced in that intention.'
Hence, we find that the element of mutual consent
necessary to establish multiemployer bargaining is
lacking in this case. For example, the renegotiations
took place under the provisions, and during the
terms, of bargaining agreements which had been ne-
gotiated by the two associations and the four individ-
ual contractors separately, which continued to be ad-
ministered with the two associations and the four
individual contractors separately, and which were
still binding on the two associations and the four in-
dividual contractors separately' The renegotiations
also sought to achieve a wage settlement which pre-
sumably would be incorporated into the agreements
of the two associations and the four individual con-
tractors separately, and concerned economic matters
which at the time affected the four individual con-
tractors almost exclusively since they were then the
only ones actually doing business in the 13 counties
involved. Thus, the circumstances leading up to the
renegotiations could reasonably have raised a pre-
sumption on Respondent's part that the renegotia-
tions themselves were being conducted by the two
associations and the four individual contractors sep-
arately, albeit to suit their convenience they had se-
lected a committee to represent their interests while
retaining the right to bargain individually on their
own behalf.
The conduct of the contractors' representatives
during the renegotiations did little or nothing to re-
but such a presumption of separate bargaining. Re-
spondent was merely informed that "the contractor
committee members represented" the two associa-
tions and the four individual contractors-a state-
ment which Respondent could reasonably have inter-
preted as meaning that each committee member as
an individual was representing one of the associa-
tions or one of the individual contractors as a party
separately, rather than as meaning that the commit-
tee as a whole was representing both associations and
all four individual contractors as a group together.'
i In this regard, we do not adopt the Administrative Law Judge' s findings
that at the outset of negotiations the Union was informed that the "employ-
er bargaining unit was comprised of the two associations and the four ...
contractors," and that the Union "was made aware and understood that the
bargaining committee as constituted represented this entire group." For rea-
sons explained above, the evidence simply does not support such findings.
2 Cf John E Holkko d/b/a Lifetime Shingle Company, 203 NLRB 688
(1973), where the Board held that an employer did not violate Sec. 8(a)(5)
by refusing to sign a contract negotiated by a multiemployer association to
which it belonged because it was still bound by a contract which it had
negotiated individually before joining the association.
The minutes of the first renegotiating session merely include the follow-
ing language . "Present : contractors' representatives: Ed Ragsdale , Morris
Carter, Oliver Martin, Jack Mosby and Jack Langthorn . . . . It was ex-
plained that the contractor committee members represented the North Tex-
220 NLRB No. 96
SHEET METAL WORKERS , LOCAL 25 501
While two of the four individual contractors did exe-
cute written assignments of their bargaining rights to
the committee, one made such an assignment only
after its representative on the committee had left its
employ and the Union had struck, and another never
made a formal assignment at all; and the record con-
tains no evidence that Respondent even knew or had
reason to know of the assignments that were execut-
ed before or during the renegotiations.
The conduct of the two associations and the four
individual contractors after the renegotiations also
did little or nothing to rebut a presumption of sepa-
rate bargaining. Although Respondent had indicated
neither by its words nor by its conduct any reluc-
tance to continue the renegotiations with the com-
mittee itself,4 the four individual contractors ap-
proached Respondent on their own initiative and
expressed their clear desire and preference for sepa-
rate bargaining . Notwithstanding the fact that one of
the association's representatives knew of the pro-
posed separate bargaining and indeed registered his
objection thereto with the four individual contrac-
tors,5 neither he nor any other representative of the
two associations ever made the slightest effort to at-
tend the separate bargaining or to register their ob-
jections thereto with Respondent itself. Thus, Re-
spondent had every reason to believe that the four
individual contractors had been amenable to sepa-
rate bargaining all along, and no reason to believe
that the two associations had been opposed to sepa-
rate bargaining all along.
On the basis of all the foregoing considerations, we
find, especially in light of the history of separate
units and separate bargaining, that the mere fact that
the employers formed a committee to meet and nego-
as Contractors Association , Dallas Sheet Metal Contractors Association,
and the four contractors in East Texas ." This language does not establish
that the two associations and the four individual contractors communicated
any intention of forming a multiemployer bargaining unit to Respondent
Respondent's representative , Crane, testified that he was "unable to de-
termine exactly who represented who [sic] in the group" and that he did not
think he was bargaining with the two associations and the four individual
contractors "altogether."
4 As the Administrative Law Judge himself noted in dismissing the
8(b)(l)(B) allegation here , Respondent "was obviously prepared to sign a
contract with the entire group had its demands been met," and "demands
[which] were not aimed at any particular segment of the group ," and picket-
ed Drew alone merely because Drew employees alone were not joining in
the strike.
5 Even in registering his objection with the four individual contractors,
the association representative merely asserted that the four individual con-
tractors were acting outside of the assignment of their bargaining rights to
the committee, and did not state that the associations and the four individu-
al contractors had formed a multiemployer bargaining unit, or that separate
bargaining would be in derogation of any of the parties ' statutory bargain-
ing duties
tiate with Respondent only concerning the subject of
the contract's limited wage reopener basically affect-
ing the four contractors does not, by itself, establish a
multiemployer bargaining unit. Therefore, we further
find that Respondent did not act in derogation of its
statutory bargaining obligations by separately nego-
tiating and executing an addendum to its agreements
with the four individual contractors. 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 Re-
lations Board orders that the complaint herein be,
and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
BERNARD NESS , Administrative Law Judge: Upon a
charge filed jointly on July 16, 1974,' by North Texas Con-
tractors Association and Dallas Sheet Metal Contractors
Association against Sheet Metal Workers International As-
sociation, AFL-CIO, Local Union #25, herein referred to
as the Union or the Respondent, the General Counsel, by
the Regional Director for Region 16, issued a complaint
against the Respondent on September 20, alleging that the
Respondent had engaged in unfair labor practices within
the meaning of Section 8(b)(1)(B) and 8(b)(3) of the Na-
tional Labor Relations Act, as amended, herein called the
Act. Respondent filed an answer denying the commission
of any unfair labor practices. Hearing was held before me
on November 4 and 5 in Dallas, Texas.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
all parties, I make the following:
FINDINGS OF FACT
1. THE BOARD'S JURISDICTION
Both the North Texas Contractors Association and Dal-
las Sheet Metal Contractors Association operate as mul-
tiemployer bargaining groups, engaging in craft negotia-
tions on a regional basis. The north Texas association
represents approximately 200 contractors located through-
1 Unless otherwise noted, all dates hereinafter refer to 1974.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out north Texas who are engaged in commercial construc-
tion . The Dallas association represents approximately 15
contractors located in Dallas , Texas , who are engaged in
commercial construction . During the 12-month period pre-
ceding the issuance of the complaint herein , the aggregate
members of both associations purchased and had delivered
to their locations in the State of Texas from points outside
the State of Texas goods and materials valued in excess of
$50,000.
Also involved in this proceeding are four contractors,
not members of either association-Martin Engineering
Company , Holliday Sheet Metal Company , Longview Me-
chanical Contractors , Inc., and Drew Woods , Inc. Each of
them is located in east Texas and are referred to herein
collectively as the east Texas contractors . Each of the four
named companies has an indirect inflow of purchases of
materials from outside the State of Texas valued in excess
of $50,000.
The Board 's jurisdiction is not disputed . Based on the
foregoing , I find that each of the two associations and each
of the four contractors named above are employers en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers International Association, AFL-
CIO, Local Union # 25, is a labor organization within the
meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
As will be described more fully , the two associations,
acting together , negotiated a contract in 1973 with the
Union effective May 1, 1973 , with a termination date of
April 30 , 1975, and a 1974 wage reopener provision limited
to 13 east Texas counties . The four east Texas contractors,
not members of either association, subsequently signed
similar contracts . Pursuant to the wage reopener, the
Union and the four east Texas contractors , under circum-
stances more fully related below, executed an addendum to
the 1973 contract on June 2, 1974 . At the time of the hear-
ing, the two associations had not executed any addendum
pursuant to the wage reopener.
The General Counsel contends that prior to the 1974
wage reopener, the four east Texas contractors banded to-
gether with the two associations as a multiemployer bar-
gaining group . The General Counsel alleged the Respon-
dent violated Section 8 (b)(3) by negotiating , entering into,
and putting into effect separate agreements with the four
east Texas contractors , at a time when the Respondent was
legally bound to bargain with the designated bargaining
agent . The General Counsel further alleged the Respon-
dent violated Section 8(b)(1)(B) and (3) by causing the four
east Texas contractors to select a group other than their
designated bargaining representative for the purposes of
collective bargaining . At the hearing , the General Counsel
was permitted to amend the complaint to add an addition-
Section 8 (b)(3) when it conditioned further bargaining with
the multiemployer group upon agreement to the terms
reached with the four east Texas contractors on June 2.
B. The 1973 Contract
The contract which gave rise to this proceeding was first
negotiated by the Respondent with the two associations-
North Texas Contractors Association and Dallas Sheet
Metal Contractors Association-after a 2-week strike. The
contract was effective from May 1 , 1973, until April 30,
1975. The bargaining unit covered work performed in 35
Texas counties , including 13 in east Texas . The contract
provided for an immediate 42-cent increase and another 42
cents in 1974 , except in the 13 east Texas counties where
the basic wage rate was to remain unchanged . The contract
provided for a limited wage reopener prior to April 30,
1974, "for the purpose of negotiating a wage rate" for the
13 east Texas counties . The four east Texas contractors
involved herein were not part of the multiemployer group
represented by the two associations in the 1973 negotia-
tions . The four contractors , together with a fifth east Texas
contractor , requested the Union to negotiate separately
with their association-East Texas Sheet Metal Contrac-
tors Association. After the Union had agreed with the two
associations on contract terms, the east Texas contractors
each signed identical contracts as that agreed upon by the
Union and the two associations . This resulted from their
independent bargaining with the Union . The record does
not disclose the history or mechanics of bargaining prior to
the 1973 negotiations . It does appear however that even
prior to 1973 the Respondent had represented the sheet
metal work employees of the employer-members of the two
associations as well as of the four east Texas employers
involved herein.
C. The 1974 Negotiations
The Union, by letter dated January 25 to Harold J.
Moore , general manager of North Texas Contractors Asso-
ciation , gave notice "to all interested parties" that the
Union desired to open negotiations in the 13 counties pur-
suant to the wage reopener provision in the 1973 contract?
Lloyd Crane, the Union' s business manager, testified he
also wrote letters to the four east Texas contractors on the
same day in which he stated "this letter is for the purpose
of notifying our East Texas subcontractors that Sheet Met-
al Workers Local Union No. 25 is opening contract negoti-
ations concerning wage rates ." Each of the contractors tes-
tified it did not recall receiving such letter . I find it
unnecessary to decide whether they received the letters
since they became aware of the Union's intent to act upon
the wage reopener.
On or about February 3, Jack Langthorn , manager of
the Dallas association , discussed the upcoming negotia-
tions with Jack Mosby, who was at that time the vice presi-
dent of Drew Woods , Inc., one of the four east Texas con-
tractors. Langthorn offered his assistance to the
al allegation : that on about July 1 the Respondent violated 2 Addendum 4 to art VIII, sec. 2.
SHEET METAL WORKERS, LOCAL 25 503
contractors. On February 12, Langthorn met with repre-
sentatives of the four contractors 3 where upcoming negoti-
ations and contemplated proposals were again discussed.
Another meeting was held on February 19. This meeting
was also attended by Bill Malone , president of the Dallas
association , and Ed Ragsdale who had signed the 1973
contract on behalf of the North Texas association. The
participants agreed to the formation of a bargaining com-
mittee to represent the four east Texas contractors and the
two associations in bargaining with the Union on the wage
reopener . Named to the committee were Ragsdale , Morris
Carter,4 Martin , Mosby, and Langthorn. By a written in-
strument dated February 25, Longview authorized the
named committee members "as my executive bargaining
agents" with the Union and agreed to be bound by a con-
tract agreed upon with the Union. By a written instrument
dated March 5, Holliday authorized the Dallas association
to negotiate a contract on its behalf and to be bound by a
contract agreed upon with the Union. Ed McKnight, vice
president of Drew, testified that Mosby, as a member of
the bargaining committee and at that time a vice president
of the company , initially represented Drew on the commit-
tee and no authorization was therefore tendered. During
the course of negotiations , Mosby left Drew and since it no
longer had a company official on the committee it then
assigned its bargaining rights to the named committee 5 by
letter dated May 3. Oliver Martin of Martin Engineering
testified he never tendered an authorization to anyone to
represent his company because he himself was on the nego-
tiating committee.
Prior to the first negotiation meeting concerning the 13
counties , Crane questioned Moore of the north Texas asso-
ciation whom he represented in that area and Moore re-
plied he represented all contractors domiciled there 6 plus
the normal group in the Dallas area .7 The first meeting was
held on March 27. Representing the employer group were
Ragsdale, Carter, Martin, Mosby, and Langthorn. Crane
was informed by Ragsdale the committee members repre-
sented the north Texas and Dallas associations and the
four east Texas contractors . Ragsdale told Crane the nego-
tiations were limited only to wages in the 13 counties in
accordance with the wage reopener and proposed the scale
not be increased . The Union proposed an increase totalling
$1.04 while the employer group favored no increase. Subse-
quent meetings were held on April 3 and April 25. At the
April 25 meeting, the employer group proposed a 25-cent
increase but the Union held to its $1.04 proposal. On May
1, the Union struck. Another meeting, called by the media-
tor, was held on May 20. By this time, Mosby had left
Drew and Funderburk of Longview had replaced him on
the employer negotiating committee . At this last meeting,
the employer raised its proposed increase to 42 cents and
then to 84 cents an hours.' The Union stood on its $1.04
3 Sam Funderburk , president of Longview Mechanical Contractors, Inc.,
Mosby of Drew Woods , Inc., Hubert Holliday of Holliday Sheet Metal Co.,
and Oliver Martin , president of Martin Engineering Company
4 Carter had signed the 1973 contract on behalf of the Dallas association.
s Funderburk of Longview replaced Mosby on the committee.
6 The four east Texas contractors were domiciled in that area
7 Employer-members of the associations occasionally performed work in
the 13-county area even though domiciled outside that region
proposal .9 The meeting was adjourned without agreement.
No further meetings were scheduled.
Failing to reach agreement by May 1, the Union struck
and the sheet metal work employees of the east Texas con-
tractors failed to report for work. Drew, however, contin-
ued to operate on several of its projects with nonmembers
of Local 25. The Union picketed several Drew projects out-
side its jurisdiction, beginning on May 23. On May 31, the
Union put up pickets at a Schlitz location at Longview,
Texas, where Drew was a subcontractor and had employ-
ees working. This was in the 13-county east Texas area.
The picketing was directed at Drew only.10 As Crane ex-
plained, the Union didn't picket any of the other east Tex-
as contractors or members of the two associations because
only Drew had employees continuing to work in the 13-
county area. On May 31, McKnight, Drew's vice president,
was informed by J. A. Jones, the general contractor on the
Schlitz job, that if the pickets were not gone by Monday,
June 3, Drew's contract would be canceled. McKnight
then called Funderburk and Langthorn and informed them
of the picketing at Schlitz and the possibility of losing its
contract with Jones. The following morning McKnight
asked Funderburk to contact Crane and ascertain what it
would take to settle the dispute. Funderburk then spoke to
Crane who summarized the Union's demands. A meeting
was tentatively arranged for Sunday afternoon. Funder-
burk then relayed this information to Martin and Holliday
and the Sunday meeting was firmed up. McKnight notified
Langthorn of the meeting that had been scheduled with the
Union for the following afternoon. Langthorn said he was
not available to attend on such short notice and told Mc-
Knight "they had assigned their bargaining rights to the
committee and they were acting outside of those assigned
rights." Langthorn then attempted, without success, to
reach Ragsdale, who had been chairman of the negotiating
committee, Moore of the north Texas association, and
Morris Carter. The four east Texas contractors I I met with
Crane on Sunday afternoon and signed an addendum to
the 1973 contract which was presented to them by Crane at
the meeting .12 Prior to meeting with the Union, the repre-
sentative of the employers met privately and Drew,
Longview, and Holliday decided to accept the Union's
terms. Oliver Martin was uncommitted but at the meeting
with the Union he executed the agreement. The written
bargaining authorizations executed by Longview, Holliday,
and Drew were never revoked.
On June 19, Langthorn was at a meeting with Crane on
a nonrelated matter. Crane asked when they were going to
negotiate on the east Texas counties and Langthorn indi-
cated his availability at any time. On July 1, during a tele-
phone conversation on other matters, Crane again raised
8 This conformed to the 84-cent increases in the other counties covered in
the contract.
9 The Union's proposal of a $1.04 package increase included an increase
in the basic rate and the remainder covered fringe benefits.
10 Longview also had a subcontract on the Schlitz job, but its employees
had struck and it had no employees working at this time
11 McKnight, Holliday, Funderburk, and Martin.
12 The addendum included a total wage and fringe package increase of
$1.005, a cancellation of contributions to two industry funds, and inclusion
of a section providing particular procedures in resolving controversies or
disputes
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the subject of negotiations on east Texas. According to
Langthorn's credited testimony, Crane said "unofficially"
there was no point in driving all the way to Tyler for a
negotiating session unless the association was willing to
sign the same agreement as executed by the four east Texas
contractors on June 2.13 Langthorn protested that such po-
sition by the Union did not constitute negotiations-the
Union was setting the terms and conditions. Since July 1,
neither party has asked for a meeting.
Analysis and Conclusions
In the 1973 negotiations, it was the two associations
jointly that comprised the multiemployer group and initial-
ly negotiated a contract with the Union. The four east Tex-
as contractors bargained with the Union independently of
the associations although ultimately they signed similar
contracts. But, pursuant to the wage reopener in 1974 limit-
ed to the 13 east Texas counties, the multiemployer group
was expanded to include the four east Texas contractors. A
request for negotiations in 1974 pursuant to the wage re-
opener was initiated by the Respondent. Thereafter, four
meetings were held between March 27 and May 20. Crane
was informed at the commencement of negotiations that
the employer bargaining unit was comprised of the two
associations and the four east Texas contractors. He was
made aware and understood that the bargaining committee
as constituted represented this entire group . He offered no
objection and, in effect, acquiesced to negotiate with this
multiemployer group as to modifications to the 1973 con-
tract pursuant to the wage reopener, which primarily af-
fected the four east Texas contractors who were domiciled
in the counties under consideration.
The Respondent argues that even if the Union subse-
quently engaged in individual bargaining with the four east
Texas contractors and thereafter individual contracts were
executed such conduct would not be unlawful because it
resulted after an impasse had been reached with the mul-
tiemployer group. I find this argument to be without merit.
Even if an impasse had been reached , the Respondent here
was not entitled to split off individual members of the
group and to negotiate with them independently of the
group. For, in addition to its steadfast insistence on the
$1.04 increase, the Respondent was also insisting upon in-
clusion of a provision clearly not within the scope of the
wage reopener-section 8, article X-a provision for pro-
cedures to resolve "any controversy or dispute arising out
of the failure of the parties to negotiate a renewal of this
agreement." Accordingly, any impasse if one existed was in
part attributable to the Union's insistence upon a modifi-
cation of the contract outside the ambit of the reopener.
Under the circumstances , no valid impasse existed which
could arguably free the Respondent to negotiate indepen-
dently with members of the employer group.14 In addition
13 Crane testified he recalled talking to Langthorn about setting up a
negotiating meeting but did not recall making such statement.
4I find it unnecessary to decide whether the Union could pursue such
course of action had a valid impasse, without more , existed Cf Hr-Way
Billboards, Inc., 206 NLRB 22 (1973), enforcement denied 500 F 2d 181
(C.A. 5, 1974).
to insisting upon the inclusion of section 8, article X,
above, the Union also insisted upon what the parties
termed SASMI 15 and certain changes in fringe benefits,
principally pertaining to contributions to health and wel-
fare and industry funds. Crane admitted that the contract
was open only for wages . On cross-examination , he testi-
fied as follows:
Q. All right, sir. But you did bargain about matters
other than wages, didn't you?
A. Before it was concluded we did.
Q. In fact, Mr. Crane, you insisted on subjects other
than wages , didn't you?
A. In the latter stages, I did.
The reopener spoke of negotiating "a wage rate." Lang-
thorn testified items insisted upon by the Union pertaining
to employer contributions to industry funds were not
"wage items" but were part of the "economic package."
Other employer contributions he considered questionable.
I find it unnecessary to determine whether each and every
one of the Union's proposals fell within the reopener provi-
sion. It is sufficient to rely upon the Union's insistence on
the inclusion of section 8, article X, clearly a subject not
included under the wage reopener.
The General Counsel does not allege in his complaint
that the Respondent independently violated the Act by in-
jecting demands not subject to the wage reopener as de-
scribed above. He refers however to this course of conduct
to support his contention that the Union engaged in these
tactics in order to destroy the integrity of the multiemploy-
er group and to cause individual members to split off from
the group. The evidence does not support this contention.
The Union met with the multiemployer group where it in-
jected demands arguably not subject to the reopener
clause. It obviously was prepared to sign a contract with
the entire group had its demands been met. Its demands
were not aimed at any particular segment of the group.
The General Counsel also contends that the Union's se-
lective picketing solely of Drew was designed to cause the
four east Texas contractors to leave the multiemployer
group and sign individual contracts with the Respondent.
However the record discloses the strike covered the entire
13-county area and the Union's members refused to per-
form work in that entire area, regardless of the identity of
the employer. As Crane testified, Drew was the only em-
ployer who continued to operate in the area and this was
the reason the picketing itself was directed at Drew. I can-
not agree with the General Counsel that the picketing of
Drew was designed to cause the four east Texas contrac-
tors to break off from the multiemployer group.
Respondent 's counsel argues that at the June 2 meeting
the Union met with the very committee with which it met
earlier in negotiations during the year . He contends that
the absence of Langthorn was a matter of personal conve-
nience and the absence of the other committee members of
the associations 16 was because Langthorn was unable to
contact them and inform them of the meeting. As he cor-
rectly points out, the meeting was requested by one of the
east Texas contractors and the Union was not informed of
15 A form of supplemental unemployment insurance
16 Ragsdale and Carter
SHEET METAL WORKERS ,' LOCAL 25 505
any objections by the associations to the meeting . Nor was
there any evidence that the Union sought to exclude from
the meeting the association representatives of the bargain-
ing committee . Under these circumstances , he argues, the
Union did not engage in individual bargaining . However, it
is clear that on June 2 the only employer participants at the
meeting were the four east Texas contractors, two of whom
were not even on the multiemployer committee-Mc-
Knight and Holliday. Although the record does not dis-
close whether any mention was made as to the absence of
the association representatives , and there may have been
none , it is indeed proper to assume Crane was aware he
was dealing with only the four east Texas contractors sepa-
rate and apart from the multiemployer bargaining group.
The request for a meeting made through McKnight was
initiated as soon as the Union picketed Drew on the Schlitz
job. It must have been apparent to Crane that with the
absence of the three association representatives from the
June 2 meeting 17 and with the added presence of officials
of the two remaining east Texas contractors not individu-
ally represented on the committee IS the Union was meet-
ing and negotiating with the four east Texas contractors
independently of the multiemployer group. Therefore, con-
trary to Respondent 's contention , I find that the Union
negotiated and entered into separate agreements with
Drew Woods, Inc., Holliday Sheet Metal Company,
Longview Mechanical Contractors, Inc., and Martin Engi-
neering Company at a time when the Union was obligated
to bargain with the multiemployer group of which the four
east Texas contractors were a part. I do not consider of any
significance the fact that the Union was never informed of
the associations ' objections to the independent negotia-
tions by the east Texas contractors. For Langthorn did
voice his disapproval of separate negotiations to McKnight
when informed of the meeting to be held the very next day.
None of the east Texas contractors had revoked their au-
thorization to be represented in bargaining by the multiem-
ployer group . Faced with economic losses because of a dis-
ruption of their operations, the four contractors were
anxious to resolve the dispute and were prepared to capitu-
late to the Union's demands. They therefore initiated the
meeting with the Union. But at that time the contractors
could not effectively withdraw from the multiemployer
group. The multiemployer group objected to the separate
negotiations , a valid impasse did not exist , and there were
no "unusual circumstances" which would have permitted
separate negotiations . The adverse economic conditions
suffered by the east Texas contractors due to the Union's
strike were insufficient on this record to support any "un-
usual circumstances" theory.19 Accordingly, I find the Re-
spondent was not lawfully free to negotiate and execute
separate agreements with the east Texas contractors and
thereby fracture the multiemployer bargaining unit. I find
and conclude the Respondent's conduct therefore was vio-
lative of Section 8(b)(3) of the Act.
In support of his contention that the Union violated Sec-
tion 8(b)(1XB) of the Act, the General Counsel relies upon
17 Ragsdale , Carter, and Langthorn.
is Holliday and McKnight.
19 See Hi - Way Billboards, Inc., 206 NLRB 22.
the insistence by the Union of demands not within the
ambit of the wage reopener, the selective picketing of
Drew, and the negotiating with the four east Texas con-
tractors independently of the multiemployer group. The
General Counsel argues that by engaging in this conduct,
the Respondent restrained and coerced the individual
members in the selection of their representative for collec-
tive bargaining. I have already found above that the insis-
tence by the Union of its proposals to be included in a
modification of the 1973 contract and its picketing of Drew
alone were not designed to drive a wedge into the multiem-
ployer bargaining unit or to splinter off the four east Texas
contractors from the remainder of the bargaining group.
Negotiating separately with the four contractors under the
circumstances described above is insufficient to support a
finding that the Union restrained or coerced the east Texas
contractors to bargain separately. It was the contractors
themselves who initiated the negotiations and the Union's
acquiesence in dealing separately with them alone will not
compel a finding of an 8(b)(1)(B) violation. Accordingly, I
shall dismiss this allegation of the complaint.
The General Counsel has further alleged that the Union
violated Section 8(b)(3) of the Act when, on July 1, it con-
ditioned any further bargaining with the multiemployer
group upon the group's acceptance of the terms reached
with the four east Texas contractors on June 2. In support
of this allegation, the General Counsel relies upon the July
1, 1974, conversation between Crane and Langthorn when
Crane in substance said there wasn't any point in meeting
unless the associations were willing to sign the agreement
reached with the four east Texas contractors. This last alle-
gation was included in an amendment to the complaint at
the hearing. Upon reflection I have reservations whether I
should have granted the motion to grant such amend-
ment.20 As Langthorn testified, it had been Crane who in-
quired about getting together for negotiations. And Lang-
thorn characterized Crane's statement as "unofficial."
Neither party has requested negotiating since that July 1
meeting. Under these circumstances, I do not consider
Crane's statement as a refusal to meet or negotiate unless
the associations were to agree to the same terms as reached
with the east Texas contractors. Accordingly, I shall dis-
miss this allegation of the complaint.
CONCLUSIONS OF LAW
1. By negotiating, entering into, and giving effect to sep-
arate agreements with Drew Woods, Inc., Holliday Sheet
Metal Company, Longview Mechanical Contractors, Inc.,
and Martin Engineering Company at a time when the Re-
spondent was obligated to bargain with the collective-bar-
gaining group as the representative of said employers, Re-
spondent has violated Section 8(b)(3) of the Act.
2. The unit appropriate for collective bargaining is all
20 When the testimony relating to this conversation was adduced by the
General Counsel on the first day of the hearing, the counsel for the General
Counsel specifically said it was offered , not to show any separate violation,
but was offered only to show the Respondent's motivation in signing con-
tracts with the four east Texas contractors on June 2. It was on the second
day of the hearing that he moved to amend the complaint to include this as
an independent allegation.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees engaged in sheet metal work in the employ of
the members of North Texas Contractors Association and
Dallas Sheet Metal Contractors Association and the four
employers named in paragraph I above in the 35 Texas
counties named in the 1973 collective- bargaining agree-
ment.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of the Act.
4. Except for the foregoing, Respondent has committed
no unfair labor practices under the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(b)(3) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]