Southern California District Council, Etc.

National Labor Relations Board - Board Decisions

Oct 8, 1963

144 N.L.R.B. 978 (N.L.R.B. 1963)

,978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify said Regional Director in writing within 20 days from the receipt of
this Intermediate Report what steps Respondent has taken to comply herewith.14
34 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL, upon request, bargain collectively with American Federation of
Television and Radio Artists, AFL-CIO, and International Brotherhood of
Electrical Workers , Local 1292, AFL-CIO , jointly as the exclusive bargaining
representative of our employees in the appropriate unit concerning rates of pay,
wages, hours of employment , and other terms and conditions of employment
and, if understanding is reached , we will enter into a signed agreement of such
understanding for a reasonable time. The appropriate umt is:
All persons employed by the Company at its broadcasting facilities
known as Station WMBD-AM-FM-TV located in and around Peoria,
Illinois, who appear in any manner on a regular basis in services before the
microphone or camera including but not limited to those who speak, act,
sing, or in any other manner perform as talent as such terms is [sic] used
and understood in the broadcasting industry.
This also applies to all persons rendering services in the field of news,
who appear before a microphone or camera on a regular basis, but ex-
cluding clerical employees , instrumental musicians performing as such,
technicians , guards , professional employees , and supervisors as defined in
the Act, and all other employees.
MIDWEST TELEVISION , INC. STATION WMBD-AM-FM-TV,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Midland
Building, 176 West Adams Street , Chicago 3 , Illinois, Telephone No. Central 6-9660,
if they have any question concerning this notice or compliance with its provisions.
Southern California District Council of Hod Carriers and Labor-
ers and Gunite Workers Local No. 345 and Its Representative,
Mr. Frank Saver, Sec.-Treas. [Swimming Pool Gunite Con-
tractors Group and all of its Members ] and Golding and Jones,
Inc., for the Association and All Its Members . Cases Nos. 21-
CB-1938 and 21-CC-541. October 8, 1963
DECISION AND ORDER
On February 25, 1963, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices , and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
144 NLRB No. 93.
SOUTHERN CALIFORNIA DISTRICT COUNCIL, ETC. 979
Intermediate Report. Thereafter, the Respondents and the General
Counsel filed exceptions to the Intermediate Report and supporting
briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby 'adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the modifications noted below.
The basic facts are not in dispute. As described more fully in the
Intermediate Report, the Respondents are a district council of the
Hod Carriers Union, herein called the Council, a local of the Hod
Carriers, herein called the Local, and its secretary-treasurer, Frank
Saver, all operating in and around Los Angeles, California. The
Employers are contractors engaged in various aspects of construction
and installation of swimming pools in the same geographic area. Be-
fore 1962, it had been customary for the Employers to execute
collective-bargaining agreements which were identical to those negoti-
ated between the Local and the Gunite Contractors Association, herein
called the Association, an organization to which the Employers did not
belong. In April 1962, negotiations began on the terms of a new con-
tract and the Employers participated with the Association in such
bargaining sessions.
In May, the Employers withdrew from meetings of the Association
and commenced to negotiate as a group with the Respondents. The
Employers then repeated an oIYer they had originally made in April to
extend the expiring contract for 1 year with a 21/2 cent-an-hour wage
increase and some other changes not relevant to this case. This offer
was not accepted by the Respondents, but discussions were held con-
cerning possible additional wage increases, the amount of the Em-
ployers' contributions to the health and welfare fund, and certain
proposed technological changes. No agreement was reached.
In July, Saver delivered to each of the Employers a printed copy
of a proposed agreement and requested that they read, sign, and mail
it back to him. Both the Local and the Council were named as parties
to the contract. On July 12, Saver visited Fiesta Pools, one of the Em-
ployers, and was told by Nourse, its president, that he could not sign
the agreement'because the Employers had agreed to negotiate together
and the proposed contract was not the product of such joint bargain-
ing. Nourse also stated that sections of the proposed contract were
"improper." 'Saver then declared that the contract had been prepared
by Leiby, a representative of the Council, that Saver had been in-
structed to get it signed by the Employers, that he had picket signs in
his car, and was prepared to institute a picket line the following morn-
727-083-64-vol. 144-63
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing. Later the same day, at another conference with Saver, objections
were raised to various provisions of the contract by Jones, the Em-
ployers' labor relations consultant. Finally, after Saver agreed to the
inclusion of a protest clause, each of the Employers signed its own
copy of the agreement.
The Trial Examiner found that the Respondents violated Sec-
tion 8(b) (4) (ii) (A) by coercing the Employers to enter into a
contract containing article I, paragraph G,' a clause which he found
to be within the scope of Section 8 (e) of the Act. He reasoned that,
although this clause was exempted from the terms of Section 8(e)
by the construction industry proviso, the Respondents were not en-
titled to obtain such clause by coercive means, citing Colson and
Stevens.' The Trial Examiner also found that article I, paragraphs
B and G, and article III, paragraph B, sometimes herein referred to
as IB, IG, and IIIB, respectively, all dealt with nonmandatory sub-
jects of bargaining and that by insisting as a condition to agreement
on the inclusion of these clauses in a contract, the Respondents violated
Section 8(b) (3).3
IArticle I, paragraph G, of the contract reads as follows:
Where a subcontractor or his subcontractor is delinquent in fringe benefit pay-
ments, i.e, health and welfare payments, as shown by the Contractor Status Book,
the defaulting subcontractor shall either pay the amount due within twenty-four (24)
hours, excluding Saturdays, Sundays and holidays, or the general Contractor shall
be required to remove the subcontractor from the job. On jobs where the general
Contractor fails to remove said subcontractor, the Union shall have the right to take
economic action against the general Contractor, unless suitable arrangements to
settle the delinquency are made by the general Contractor with the Administrative
Office. On short jobs of less than three (3) days' duration, the subcontractor shall
be required to pay such delinquent amounts to the Fund Administrative Office within
eight (8) working hours or his men shall be removed from the job. Where any
Contractor or subcontractor is not current in his fringe benefit payments, it shall
not be a violation of this agreement for the Union to refuse to furnish men to that
Contractor or subcontractor, whichever is in default.
3 Construction, Production if Maintenance Laborers Union Local 383, AFL-CIO (Colson
and Stevens Construction Co., Inc ), 137 NLRB 1650.
3 Article I, paragraph B, and article III, paragraph B, of the contract read as follows:
I. WORK COVERED . . .
B. All Gunite work performed by Contractors, and all services rendered for the
Contractors or subcontractors, herein defined, by any workman covered by the terms
of this agreement, shall be rendered in accordance with each and all of the terms
and provisions hereof .. . .
• f ♦ • • t f
III. STRIKES-LOCKOUTS-JURISDICTIONAL DISPUTES . . .
B. If a signatory Contractor is performing work on a job as a subcontractor dur-
ing the construction of which such job is declared unfair by a Central Labor Council
or by a Building and Construction Trades Council, and the work thereon is stopped
for that reason, neither the Council nor any of the signatory Unions shall be deemed
to have violated this Agreement if during the period of said stoppage of work the
workmen covered by this Agreement fail to perform their work on said job for the
Contractors.
The Trial Examiner did not find it necessary to decide whether these clauses were
within the scope of Section 8(e) of the Act and whether by threatening to strike to
obtain these clauses the Respondents violated Section 8(b) (4) (ii) (A). However, for the
reasons stated below, we shall make such determinations herein.
SOUTHERN CALIFORNIA DISTRICT COUNCIL, ETC. 981
We agree With the Trial Examiner that the Respondents violated
Section 8(b) (4) (ii) (A) and 8(b) (3) of the Act.
1. Initially, we find no merit in the Respondents' contention that
the Employers voluntarily agreed to the inclusion of the disputed
clauses in the contract and, therefore, that they did not "threaten,
coerce, or restrain" the Employers to enter into an agreement con-
taining these clauses , in violation of Section 8(b) (4) (ii) (A), and
did not "insist" on inclusion, of the disputed clauses in the contract
in violation of Section 8(b) (3). The Respondents rely on the fact
that twice during negotiations the Employers offered to renew the
old contract which, according to the Respondents, contained provi-
sions similar to the disputed clauses. These offers, the Respondents
argue, constituted voluntary agreement by the Employers to the
inclusion of the disputed clauses in the new contract. In agreement
with the Trial Examiner, we find that the record does not establish
that the Employers voluntarily agreed to inclusion of these clauses
in the new contracts 4
2. We further find that article I, paragraphs B and G, of the con-
tract fall within the scope of Section 8(e) of the Act. Article I,
paragraph B, of the contract states that it shall be applied whenever
services are rendered to a contractor or subcontractor "by any work-
man covered by the terms of this Agreement." We believe that this
clause, when read in the context of the entire agreement, requires that
signatory employers cease doing business with nonsignatory em-
ployers who fail to apply the terms of the contract to their employees.
Thus, article I, paragraph C, defines a subcontractor "as any person,
firm, or corporation that agrees under written contract with the Gen-
eral Contractor or his subcontractor to perform any work covered by
this Agreement." Article I, paragraph D, provides that if work is
subcontracted "provision shall be made in said subcontract for the
observance by said subcontractor and his subcontractors of all the
terms of this Agreement." It is clear therefore that article I, para-
graph B, when read in the context of these other clauses, requires that
nonsignatory subcontractors engaged by signatory employers apply
the terms of the contract to their employees s and, conversely, that
signatory employers cease doing business with nonsignatory subcon-
tractors who fail to apply the terms of the contract to their own em-
4 In view of this finding, we need not reach the question whether, if the Employers had
in fact agreed to the inclusion of these clauses in the contract, the Respondents would
have violated Section 8(b) (4) (li) (A ) and Section 8(b) (3) by threatening a strike to
compel the Employers to abide by such agreement . Cf. Brotherhood of Painters, Deco-
rators, and Paperhangers of America, Glaziers Local Union # 1385 , AFL-CIO, etc
( Associated Building Contractors of Evansville, Inc ), 143 NLRB 678.
5 While paragraphs ,C and D of article I are not alleged in the complaint as violations of
the Act, we have examined them as background evidence to enable us properly to inter-
pret the clauses which have been alleged to violate the Act.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees.6 Further, article I, paragraph G, by its terms, requires the
Employers to cease doing business with subcontractors who are de-
linquent in their payments to the health and welfare fund. As these
clauses require the Employers to cease doing business with other em-
ployers, we find that they are within the scope of Section 8 (e) of the
Act.
Section 8(e), however, exempts from its provisions agreements
in the construction industry relating to the contracting or sub-
contracting of work to be done at the site of the construction ...."
While article I, paragraphs B and G of the contract relate to the con-
tracting or subcontracting of construction work at a project site and
therefore come within the terms of this exemption,' we find neverthe-
less that the Respondents were not entitled to use coercion in the form
of strike threats to induce the Employers to agree to such clauses. As
we decided in Colson and Stevens," the exemption to Section 8(e) is
designed to permit the making of vol'antary agreements in the con-
struction industry, not to immunize union conduct aimed at coercing
employers into executing such agreements. We find, therefore, that
the Respondents violated Section 8(b) (4) (ii) (A) by threatening to
strike 'for an object of compelling the Employers to enter into a con-
tract containing article I, paragraphs B and G.
3. We also find that IB and ICS deal with terms and conditions of
employment of employees other than those employed by the Em-
ployers and are therefore not mandatory subjects of bargaining.
Thus, as noted, IB would apply the terms of the contract to employees
of subcontractors who are not signatories to the contract. Similarly,
See Truck Drivers Union Local No. 413, International Brotherhood of Teamsters, etc
(The Patton Warehouse, Inc.), 140 NLRB 1474 Before the 1959 amendments , the Board
held that a union 's demand for a clause which %rould apply the terms of an agreement
with a contractor to his subcontractors , "necessarily contemplated " that the contractor
would refrain from business dealings with subcontractors who refuse to abide by such
clause, and therefore that the union's conduct was for an object prohibited by former
Section 8 ( b) (4) (A). Local 47 International Brotherhood of Teamsters , etc (Texas
Industries , Inc.), 112 NLRB 923, enfd 234 F. 2d 290 (C.A. 5). The Board also held
that picketing to enforce such a clause had as an object compelling the contractor to cease
doing business with the subcontractor . Bangor Building Trades Council , AFL-CIO, 123
NLRB 484, 489 , enfd., in relevant part 278 F . 2d 287 (C A. 1)
7 The word "subcontractor" which appears in section IB of the contract is defined in
IC as including " . . any person . . . that agrees . . . to . . the furnishing . . of
materials " Member Leedom would find that this language covers delivery of materials
to a construction site and is therefore not embraced by the construction industry exemp-
tion while Chairman McCulloch and Member Brown agree that delivery of materials to
the jobsite does not fall within the terms of the exemption , Connecticut Sand and Stone
-Corporation, 138 NLRB 532 , they do not interpret the contract herein as including such
deliveries As, in Member Leedom ' s view, IB includes work performed away from the
construction site, i e , the furnishing and delivery of materials , he would find that this
clause is not exempted from Section 8(e) by the construction industry proviso . Member
Leedom would therefoie find that IB is unlawful under Section 8(e) and that by threaten-
ing to strike if the Employers refused to enter into a contract including IB, the Respond-
ents violated Section 8(b) (4) (ii ) ( A). Member Leedom would also find that since IB is
unlawful under Section 8(e), it is a nonmandatory subject of bargaining and that the
Respondents violated Section 8 ( b) (3) of the Act by insisting , as a condition of executing
the proposed agreement , that the parties include IB in the contract.
8 Supra, footnote 2.
SOUTHERN CALIFORNIA DISTRICT COUNCIL, ETC.
IG, by imposing penalties on nonsignatory subcontractors who have
become delinquent in health and welfare payments on behalf of their
own employees, in effect, seeks to regulate the relationship between
the nonsignatory subcontract ors alai their employees. The Board has
held that ". . . the scope of another employer's operations, or the
terins and conditions of employment of another employer's employees
who are themselves outside the bargaining unit, are not proper sub-
jects for mandatory bargaining." 9 We find, therefore, that by in-
sisting as a precondition to agreement on the inclusion in the contract
of IB and IG, which are nonmandatory subjects of bargaining, the
Respondents have failed in their duty to bargain in good faith and
have thereby violated Section 8 (b) (3) of the Act.10
4. We also find that article III, paragraph B, is unlawful under
Section 8(e). IIIB states that the Respondents will not be deemed
to have violated the contract if a signatory employer's employees re-
fuse to work on a project where work has been stopped, because the job
has been declared unfair by a Central Labor Council or a, Building and
Construction Trades Council. In Patton Warehouse," the Board
found that a contract clause which grants to employees i n.inunity
from disciplinary action for their refusal to cross a picket line is valid
under Section 8(e) only if it is limited to picket lines against their
own employer, or to picket lines of another employer, if the strike has
been ratified or approved by the majority representative of the em-
ployees of the struck employer. There, the Board found that the dis-
puted, clause would have prevented discipline of employees for re-
fusal to cross another employer's picket line even if not authorized by
the majority representative, or even if there was a labor dispute but
no strike, and that the clause was therefore invalid under Section
8(e). In the instant case, since the disputed clause is similarly not
limited to situations where the strike was ratified or approved by the
majority representative, but would apply as well ton, refusal to cross
an unauthorized picket line, we find that such clause in effect forces
the Employers to cease doing business with other employers and there-
fore comes within the terms of Section 8 (e) of the Act.
B Local 19, International Brotherhood of Longshoremen (Chicago Stevedoring Co Inc ),
125 NLRB 61, mod and affd 286 F 2d 661 (CA 7), cert denied 368 U S 820 See also
Local 164 Local 1287 , and Local 1010 , Brotherhood of Painters Decorators and Paper-
hangers of America, AFL-CIO (A D Cheatham Pasntcng Co ), 126 _NLRB 997, affd 293
F 2d 133 (CAD C ) , cert denied 368 U S 824
1° N L R B v. Wooster Division of Borg-War ner Corporation 356 13 S 342. 449 where
the Supreme Court construed Section 8(a) (5) and Section 8(d) as establishing
[T]he obligation of the employer and the representative of its employees to bargain
with each other in good faith with respect to "wages hours and other terms and
conditions of employment . " The duty is limited to those subjects As to
other matters, however, each party is free to bargain or not to bargain . This
does not mean that bargaining is to be confined to the statutory subjects But
it does not follow that, because the company may propose these clauses, it can law-
fully insist upon them as a condition to any agreement
Supra, footnote 6
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor do we believe that IIIB falls outside the scope of Section 8(e)
because, unlike the clause in Patton Warehouse which provided that
the employer would not discipline employees for refusing to cross a
-picket line, the instant clause absolves the union of liability for con-
tract violation in the event that employees refuse to cross a picket line.
In Brown Transport,12 the contract permitted the employer to con-
tinue doing business with struck employers only if he provided his
employees with various additional and expensive benefits. Conclud-
ing that under the Act an employer was free to do business with other
employers "in his accustomed manner," the Board there found that
this clause violated Section 8(e) because it was designed to make it
"difficult, expensive, or unlikely" for the employer to engage in such
business. We believe that by depriving the Employers of their right
to resort to otherwise available administrative and judicial remedies
for violations of the contract based upon their employees' refusal to
cross a picket line, the instant clause precludes the Employers from
doing business with other employers in their accustomed manner and,
as a practical matter, causes them to cease doing business with such
employers. We therefore find that IIIB falls within the scope of
Section 8 (e).
We also find that IIIB was not made lawful by the construction in-
dustry proviso to Section 8 (e). That exemption is available only if the
disputed provision relates to contracting or subcontracting of work.
IIIB, however, does not deal with the contracting or subcontracting
of work. Rather, the effect of IIIB is to absolve the union from re-
sponsibility for violation of its agreement where it strikes an employer
because another contractor or subcontractor on the job is declared un-
fair or a work stoppage occurs. Accordingly, we find that IIIB vio-
lates Section 8 (e) of the Act. We conclude, therefore, that by using
strike threats to force the Employers to agree to include IIIB in their
contract, the Respondents have violated Section 8(b) (4) (ii) (A).
5. Since IIIB is unlawful under Section 8 (e), we find that it is not
a mandatory subject of bargaining and that the Respondents violated
Section 8(b) (3) of the Act by insisting upon its inclusion in the pro-
posed contract 13 as a condition to agreement.
REMEDY
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order them to cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
12 Truck Drivers & Helpers Local 'Union No 728 , International Brotherhood of Team-
sters, etc (Brown Transport Corp. ), 140 NLRB 1436.
13 Amalgamated Lithographers of America ( Ind) (The Employing Lithographers), 130
NLRB 985, 991 , enfd 309 F . 2d 31 (CA. 9), cert denied 372 U.S 943
SOUTHERN CALIFORNIA DISTRICT COUNCIL, ETC. 985
As we have found that the Respondents have unlawfully coerced the
Employers to agree to inclusion of article I, paragraphs B and G, and
article III, paragraph B, in their contracts, and as the contract has
already been executed and these clauses are in effect, we find merit in
the General Counsel's exceptions to the Trial Examiner's failure to
recommend that the Respondents be ordered to cease sand desist from
enforcing or applying these clauses. We shall, therefore, modify the
Recommended Order and accompanying notice so that they will be co-
extensive with the violations found herein.14
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, with the following modifications :
1. Add the following after paragraph 1(c) of the recommended
Order :
(d) Enforcing, applying, or attempting to enforce or apply,
article I, paragraphs B and G, and article III, paragraph B, of
the contracts executed by the Employers herein as a consequence
of the Respondents' unfair labor practices found herein, provided,
however, that nothing in this Order shall preclude the voluntary
execution or enforcement of contracts with such provisions to the
extent otherwise permitted by the Act.
2. Substitute the following for paragraph 2(a) of the Recommended
Order :
(a) Notify Fiesta, Superior, and Four Star that the Respond-
ents will not insist upon inclusion in a collective-bargaining con-
tract of the provisions contained in article I, paragraphs B and
G, and article III, paragraph B, of the contracts executed by the
Employers herein and that they will not enforce or apply or
attempt to enforce or apply the above-numbered provisions of the
said contracts.
3. Add the following above the description of the bargaining unit
in the notice in the Appendix to the Intermediate Report.
IVE WILL NOT enforce or apply or attempt to enforce or apply
article I, paragraphs B and G, and article III, paragraph B,
of the contracts heretofore entered into by us with the above-
named Employers.
MEMBERS FANNING and JENKINS took no part in the consideration of
the above Decision and Order.
"See The Essex County and Vicinity District Council of Carpenters and Millwrights,
etc. (The Associated Contractors of Essex County, Inc.), 141 NLRB 858; Detroit Re-
silient Floor Decorators Local Union No. 2265, etc . ( Mill Floor Covering, Inc ), 136
NLRB 768, 774.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed on August 17, 1962, by Golding and Jones. Inc., on behalf
of Swimming Pool Gunite Contractors Group and its members, herein collectively
called the Independents, the General Counsel of the National Labor Relations Board
caused to be issued against Southern California District Council of Hod Carriers
and Laborers, herein individually called the Council, Gunite Workers Local #345,
herein individually called the Local, and Frank Saver, secretary-treasurer of the
Local, herein called Saver, all collectively called the Respondents, on November 13,
1962, a consolidated complaint alleging that the Respondents had engaged in and
were engaging in unfair labor practices within the meaning of Section 8(b) (3) and
(4) (ii) (A) of the National Labor Relations Act, as amended, 29 U.S C. Sec 151
et seq., herein called the Act.
The gravamen of the complaint is that the Respondents demanded that the Inde-
pendents each enter into a contract containing terms allegedly in violation of
Section 8(e) of the Act and nonmandatory subjects of bargaining and threatened
picketing and shutting down of the Independents' respective businesses unless such
contracts were executed, as a result of which threat said Independents did execute
said contracts under protest. Respondents, in their joint answer, filed on Novem-
ber 19, 1962, denied the commission of the acts alleged to be unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner James R. Hemingway
in Los Angeles, California, on December 18, 1962. The General Counsel, the
Contractors, and the Respondents were all represented at the hearing and participated
therein, although, at the close of the General Counsel's case, the Respondents rested
without offering any evidence of their own. At the opening of the hearing, the
General Counsel moved to amend the consolidated complaint by deleting all ref-
erence to one of the four-named Independents, by changing the name of another,
and by amending jurisdictional allegations. The motion was granted. After the
close of the hearing, briefs were filed with the Trial Examiner by the General Counsel"
and the Respondents. Following the close of the hearing, the General Counsel filed
a motion to correct the transcript of testimony in certain respects No objection
having been made, said motion is now granted and the transcript is amended as
shown in the footnote hereof with the addition of two other corrections of obvious
errors.I
From my observation of the witnesses and upon the entire record in the case. I
make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE CONTRACTORS
Fiesta Pools, Inc., herein called Fiesta, is a California corporation with its principal
office and place of business in South Gate. California, where it is engaged in the
construction of swimming pools for individual homeowners and for commercial
users. Between January 15 and May 15, 1962, Fiesta received within the State of
California reinforcing steel valued at $70,739 2 from A. W. Horton and Co., Inc,
herein called Horton, which steel had been received by said Horton directly from
points outside the State of California. About 85 percent of Fiesta's work is building
swimming pools for private residences, while 15 percent is commercial In the
past year its gross business was in the amount of $3,000,000
Before May 22, 1962, Superior Gunite Co. and Superior Fabricators, Inc., were
related California corporations, having common stockholders, officers, and directors
They had their offices and principal place of business in North Hollywood, California.
where the former engaged in the business of gunite contractor and the latter eneaned
in the business of reinforcing steel contractor. For the purposes of this case I find
that they were one employer Between January 12 and May 22, 1962, Superior
Fabricators, Inc., received within the State of California reinforcing steel valued at
$37,532 69 from the aforesaid Horton, which steel had been received by said Horton
directly from points outside the State of California. On May 22, 1962, Superior
'The transcript is amended as follows:
Page 9, line 24, substitute "June" for "January" • page 59, line 7, substitute "and"
for "or"; line 8, substitute "May 22" for "September 7"; line 20, change "in" to
"as"; page 60, line 25, change "then" to "they".
2 The Trial Examiner's notes show the figures $70.70029, which Is believed to be
accurate, but no motion to correct these figures was made
SOUTHERN CALIFORNIA DISTRICT COUNCIL, ETC. 987
Gunite was merged into Coraloc Industries, Inc., which continued to do business
as Superior Gunite, herein called Superior, at the latter's location in North Hollywood,
California. Superior Fabricators ceased doing business. Between June 6 and
August 10, 1962, Superior received within the State of California reinforcing steel
valued at $25,208.16 from said Horton, who had received said steel directly from
points outside the State of California.
Four Star Gunite Co,3 herein called Four Star, Blue Haven Pools, and Marine
Swimming Pool Equipment Co. are related companies with offices and place of busi-
ness in North Hollywood, California, all at the same address. They have common
majority stockholders, officers, directors, and general manager. About 90 percent
of the business of Blue Haven is done on pools for private residences. For the
purposes of jurisdiction, these companies constitute one employer 4 Between Au-
gust 9 and October 29, Marine Swimming Pool Equipment Co. received from Mitsu-
bishi International Corporation within the State of California reinforcing steel valued
at $59,623.40, which said Mitsubishi had received directly from points outside the
State of California.
Even without a projection of the business of the three named Independents on an
annual basis, the foregoing figures establish that the business of these employers affect
commerce within the meaning of the Act and establish sufficient basis for the Board's
assertion of jurisdiction and I find that it will effectuate the policies of the Act to
assert jurisdiction here.
II THE LABOR ORGANIZATIONS INVOLVED
At the hearing, the parties stipulated that, for the purposes of this proceeding, the
Council and the Local are, and at all times material hereto have been, labor organi-
zations within the meaning of Section 2(5) of the Act, and that Respondent Saver is,
and at all times material hereto has been, an agent of the Local. In view of the find-
ings hereinafter made, I find that Saver also acted as an agent of the Council.
III. THE UNFAIR LABOR PRACTICES
A. Refusal to bargain
1. The appropriate unit
The complaint alleges the answer admits, and I find that all gunite employees of
Fiesta, Superior, and Four Star, respectively, including nozzlemen, rodmen, gun-
men, materialmen, and reboundmen, exclusive of all other employees, watchmen,
guards, and supervisors as defined in the Act, constitute, for each employer, a separate
unit appropriate for the purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
2. The majority of the Local
The complaint alleges, the answer admits, and I find that at all times material
hereto, the Local has been the representative for the purposes of collective bargaining
of the employees of Fiesta, Superior, and Four Star, in three separate units set forth
above, and now is the exclusive representative of all employees in said units for the
purposes of collective bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment within the meaning
of Section 9 (a) of the Act.
3. Refusal to bargain
Prior to the execution of the collective bargaining contract herein involved, Fiesta,
Superior (before merger with Coraloc) and Four Star had executed contracts with
the Local, the terms of which contracts had been negotiated by and between the
Local and Gunite Contractors Association for members of said Association. Fiesta,
Superior, and Four Star were not members of said Association, herein called GCA,
and, in signing identical contracts in the past they had merely adopted as theirs what
may be called the master contract.
In April 1962, several swimming pool gunite contractors, nonmembers of GCA,
associated themselves together for the purpose of negotiating a collective-bargaining
contract with the Council and Local. Initially, they made arrangements to carry on
negotiations jointly with GCA. Pursuant to such arrangemnts, representatives of
the employers met with Saver, a negotiating committee for the Local, and Lloyd
I Referred to in General Counsel's brief as Four Star Gunite & Steel Co , Inc
4 Wagh Well No 2, etc., 139 NLRB 417
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leiby, as representative of the Council, on April 12, 1962. The employers made
proposals, including a piece-rate wage, which the Respondents rejected at once. A
proposal for a 1-year extension of the expiring contract witha 21/2-cent increase in
the Employers' health and welfare contribution and a few other changes, the Re-
spondents agreed to put to a vote of the membership. Not having received any reply
from the Respondents in April, the Employers requested another meeting.
A second meeting was held in May. When a representative of GCA opened this
meeting with an offer to settle for an agreement on terms to which GCA had already
agreed with another building construction trades union, the swimming pool (Inde-
pendent) group, withdrew from negotiations and requested the Respondents to con-
tinue the negotiations with them independently. The Respondents agreed to this.
On June 6, 1962, the Respondents, represented by Leiby, business representative of
the Council, Frank Saver, secretary-treasurer and business representative of the
Local, and a union committee, met with representatives of the Independent group.
The latter made a proposal for a new contract similar to their offer of April 12 but
with a 21/2-cent hourly wage increase. The representatives of the Council and the
Local said that they could not operate with two contracts in one industry, but again
they agreed to put the offer to a vote of the membership.
The next meeting took place in the latter part of June, and representatives of the
Council and Local again said that they could not operate with two contracts in one
industry. Testimony concerning what was purportedly said at this meeting was
sketchy. The Respondents offered no testimony. The evidence indicates that such
changes as were proposed at this meeting, as at earlier meetings, dealt with such
matters as rates of pay, technological changes, and the Independents' contribution to
Respondents' health and welfare fund
In early July, no further meetings having taken place meanwhile, Saver delivered
to the offices of some of the Independents, including Fiesta, Superior, and Four Star,
copies of a contract (apparently in terms identical with that previously entered into
between the Respondents and GCA) and left instructions with each that they read,
sign, and mail to Saver such copies. This contract named the Council and the Local
as parties.
Later, about July 12, Saver either visited or telephoned the several Independent
contractors involved. When he visited Fiesta, Donald Nourse, president of Fiesta,
told Saver that he could not sign the agreement presented to him because it had not
been negotiated by the committee and because the Independent group had agreed to
negotiate jointly. Nourse also objected to certain provisions in the contract tendered
by Saver on the ground that they were "improper," referring to clauses, among
others, constituting the basis of the complaint in this case. Saver said that Leiby had
drawn the contract and had told him to get it signed, that the Council had authorized
sanctions, and that he had picket signs in his car and was prepared to close Fiesta
down the following morning unless Fiesta signed. Saver gave similar messages about
picketing to other independent contractors, including Superior and Four Star.
On the afternoon of the same day, July 12, Nourse and a representative of another
Independent (who, jointly with Fiesta, Superior, Four Star and others, had been
negotiating with the Respondents), accompanied by Norman Jones, their labor rela-
tions consultant, met with Saver and again declined to sign the Respondents' tendered
contract Saver told them he would not enforce against them the provisions to which
they had objected as illegal and which will be quoted later hereinbelow, although he
did not offer to remove such provisions from the documents to be signed by the respec-
tive Independents. Finally, under threat of picketing if they failed to sign, Nourse,
for Fiesta, and the representative of the other contractor (whose name need not be
mentioned, since it was dropped from the complaint) agreed to sign the contract
tendered by Saver on condition that they be allowed to add a paragraph stating that the
contract was signed by them under duress after the Local had threatened a strike in
24 hours if the contract was not signed.5 Saver agreed to the addition, and Fiesta
and the other Independent signed the added clause.
Following this, Saver telephoned Edmund Olson, vice president of Coraloc and
manager of Superior, and also called Leon Zisfain, secretary-treasurer of Four Star.
He gave each a choice of signing the Respondents' contract or of being picketed.
5The paragraph under which Fiesta signed reads:
Signed under protest: Union threatened to strike our company in 24 lire if this
contract is not signed Protestations by company was useless We are signing tinder
duress and coercion We believe that such contract contains provisions unlawful
under Section 8(b) of the National Labor Relations Act, and several provisions of the
contract were never agreed to or discussed in contract negotiations
SOUTHERN CALIFORNIA DISTRICT COUNCIL, ETC. 989
Having been informed by Fiesta of the procedure which it had followed, Superior
and Four Star each told Saver that they would sign on the same condition as Fiesta
had, and each did so, with the minor exception that Zisfain of Four Star had the
protest clause typed on a separate sheet of paper instead of on the last page of the
contract as Fiesta and Superior had done.
4. Arguments and conclusions
The General Counsel argues that the Respondents violated Section 8(b)(3) of
the Act by insisting, under threat of picketing, on the signing by the employers, of a
contract which contained terms not directly concerned with terms and conditions of
employment, of employees of Fiesta, Superior, and Four Star, specifically alluding
to the following subsections of the tendered contract:
I
WORK COVERED
B. All Gunite work performed by Contractors, and all services rendered for
the Contractors or subcontractors, herein defined, by any workman covered by
the terms of this agreement, shall be rendered in accordance with each and all
of the terms and provisions hereof.
G. Where a subcontractor or his subcontractor is delinquent [in fringe bene-
fit payments, i.e. health and welfare payments], as shown by the Contractor
Status Book, the defaulting subcontractor shall either pay the amount due within
twenty-four (24) hours, excluding Saturdays, Sundays and holidays, or the gen-
eral Contractor shall be required to remove the subcontractor from the job. On
jobs where the general Contractor fails to remove said subcontractor, the Union
shall have the right to take economic action against the general Contractor, un-
less suitable arrangements to settle the delinquency are made by the general
Contractor with the Administrative Office. On short jobs of less than three
(3) days' duration, the subcontractor shall be required to pay such delinquent
amounts to the Fund Administrative Office within eight (8) working hours or
his men shall be removed from the job. Where any Contractor or subcontractor
is not current in his fringe benefit payments, it shall not be a violation of this
agreement for the Union to refuse to furnish men to that Contractor or sub-
contractor, whichever is in default.
Tu
STRIKES-LOCKOUTS-JURISDICTIONAL DISPUTES
* * * * * * *
B. If a signatory Contractor is performing work on a job as a subcontractor
during the construction of which such job is declared unfair by a Central Labor
Council or by a Building and Construction Trades Council, and the work thereon
is stopped for that reason, neither the Council nor any of the signatory Unions
shall be deemed to have violated this Agreement if during the period of said
stoppage of work the workmen covered by this Agreement fail to perform their
work on said job for the Contractors.
The General Counsel argues that the above-quoted paragraphs are not directly
concerned with the terms and conditions of employment of employees of Fiesta,
Superior, and Four Star. Article I, paragraph B is, perhaps, pro tanto concerned
with their employees, but it is broader in its scope than is necessary, extending to
employees of other employers as well. Article III, paragraph B has the same fault.
Article I, paragraph G is apparently intended to make each signatory employer a
guarantor of the performance by their subcontractors respecting the latter's em-
ployees of obligations expressly imposed on all signatory employers, under certain
penalties to be imposed on the latter for not compelling compliance by nonsignatory
subcontractors. This provision also goes farther and requires removal of the de-
faulting subcontractor from the job. Granting that the provisions involved might,
under Section 8(e) of the Act, be a permissible subject of bargaining in a collective-
bargaining contract in the construction industry, they are not mandatory subjects of
bargaining, because they do not concern themselves with payments made by an em-
ployer on behalf of his own employees but compel signatory employers to police
the actions of subcontractors with respect to the latter's relations with their em-
ployees. Inasmuch as such a provision is not a mandatory subject of bargaining,
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondents may not coerce employers into signing a contract containing such
provisions when the employers are unwilling to include them,6 as was the case here.
The Respondents , in their brief, point to the fact that , before the Respondents
presented the written contract for signature to Fiesta , at which time Nourse ques-
tioned the propriety of the subject provisions , none of the Independent Employers
had questioned such provisions and had apparently consented to all provisions of
the previous contract with only a few exceptions having to do with amounts of
methods of compensation of employees. Whether, by pointing this fact out, the
Respondents sought to excuse their coercive conduct by showing bad faith in bar-
gaining on the part of the Independent Employers or whether they were contending
that the Employers had already voluntarily agreed to such provisions and were
,estopped to raise the impropriety of the subject provisions is not altogether clear.
I infer that it is the latter . In any event , the previous contract is not in evidence,
and it is not at all clear that the previous contract also contained provisions identical
with those above quoted.? For all that appears, the Independent Employers had
not seen the language contained in articles I and III, as above quoted, before the
written document was submitted to them for signature in July 1962 . I find , there-
fore, that their failure to raise the impropriety of such provisions before they were
handed the written document did not preclude the Independent Employers from rais-
ing an objection to the provisions contained in said clauses.
Saver was quoted as telling Nourse of Fiesta that he would not enforce the objec-
tionable clauses against Fiesta and another Independent who was present at the after-
noon conference of July 12. Even if Saver had made the same promise to Superior
and Four Star, which is not claimed that he did, the Independent Employers were not
bound to accept such verbal promise when the written contract was thereafter to be
signed and in legal effect would bind the Independent Employers to such provision
contrary to the verbal assurance . I find, therefore , that the Respondents had no
justification for insisting upon the objectionable language under threat of picketing
and a work stoppage.
On all the evidence , I conclude and find that , by coercing Fiesta, Superior, and
Four Star into signing a contract containing provisions which are not mandatory
subjects of collective bargaining , by threatening to picket them and shut them down,
the Respondents have refused to bargain within the meaning of Section 8(b)(3) of
the Acts
B. Forcing employers to enter into an agreement prohibited by Section 8(e)
The same facts relied on to prove a violation of Section 8(b)(3) of the Act are
relied on by the General Counsel to prove a violation of Section 8(b) (4) (ii) (A)
of the Act . But the answer to the question of whether or not the Respondents have
Violated this section of the Act depends upon a different theory. The Act, to the
extent pertinent , makes it an unfair labor practice for a labor organization or its
agents (which Respondents concededly are) to threaten , coerce, or restrain any
person engaged in commerce or in an industry affecting commerce (which embraces
Fiesta, Superior , and Four Star ) where an object thereof is "(A) forcing or requiring
any employer ... to enter into any agreement which is prohibited by section 8(e)."
Section 8 (e) makes it an unfair labor practice for "any labor organization and any
employer to enter into any contract or agreement , express or implied, whereby such
employer ceases or refrains or agrees . . . to cease doing business with any other
person , and any contract or agreement entered into heretofore or hereafter contain-
ing such an agreement shall be to such extent unenforcible and void: Provided, That
nothing in this subsection (e) shall apply to an agreement between a labor organi-
zation and an employer in the construction industry relating to the contracting or
subcontracting of work to be done at the site of construction...."
8 Detroit Resilient Floor Decorators Local Union No 2265 ( bfill Floor Covering, Inc ),
136 NLRB 769 ; Metropolitan District Council of Philadelpliia , etc (McClos1 ey and
Company ), 137 NLRB 1583 Although these cases dealt with provisions for contribution
to an industry promotion fund , and although here the Respondents were primarily con-
cerned with contributions to the health and welfare fund, the provisions which are non-
mandatory here aie not those relating to contributions to the health and welfare fund for
the signatory employers ' own employees but are those requiring signatories to the contract
to assure contribution by other employers to such fund for the latter ' s employees
a There is reason to believe that there might have been a voluntary earlier agreement
on the so-called subcontractors ' clause requiring that subcontractors adopt the provisions
of the master contract, but not on the provisions quoted hereinabove
8 See footnote 6
SOUTHERN CALIFORNIA DISTRICT COUNCIL, ETC. 991
If this were the first case in which such a question had been raised, a full exami-
nation of the history of the legislation would be required to determine whether or
not the Respondents' actions would be excepted from the prohibited language by
the first proviso in Section 8(e). The Board has, however, passed upon the issue
here involved in Construction, Production & Maintenance Laborers Union Local 383,
AFL-CIO (Colson and Stevens Construction Co., Inc., 137 NLRB 1650, where a
union, by picketing, sought to compel an employer to sign a master agreement con-
taining a so-called "subcontracting clause" requiring signers of the contract, in effect,
to cease doing business with nonunion subcontractors. The Board held that the
contract was not saved by the foregoing proviso in Section 8(e) from being a viola-
tion of the Act. The Board there said:
We further note, with respect to the present Section 8(b) (4) (A), that Repre-
sentative Barden, Chairman of the House Labor Committee and a member of
the Conference Report to the House, stated that the first proviso to Section 8(e)
would permit the making of voluntary agreements relating to the contracting
or subcontracting of work to be done at a construction site. An agreement
obtained by coercive conduct of Respondents herein would not, of course, be
a voluntary one within the relevant statutory context. Reading Section 8(e)
together with Section 8(b) (4) (A) in the light of the aforementioned statements
by Senator Kennedy and Representative Barden, we conclude that the construc-
tion exemption in Section 8(e) was not intended to remove from the reach of
Section 8(b)(4) picketing and other proscribed conduct which is designed to
secure such contracts as are before us in this case.
Under all the circumstances of this case, and particularly in view of our
holdings in similar cases decided under Section 8(b) (4) (A) of the Act before
the 1959 amendments, the retention of that section's language in the present
Section 8(b) (4) (B), as explained above, and the strongly declared Congressional
purpose to prohibit the use of secondary pressure and economic force by unions
to secure an objective such as the Respondents' picketing of Colson violated
Section 8(b) (4) (1) (ii) (A) and (B) of the Act.9
c
At the conference on the afternoon of July 12, 1962, Norman Jones, representing
the Independents, objected to the language of several other clauses in the contract
tendered by the Respondents, including a so-called subcontracting clause, but the
General Counsel did not include them in the allegations of the complaint. Although
article I, paragraph G, of the contract is concerned primarily with the enforcement
of payment of health and welfare funds by subcontractors and is not, in itself, a
so-called subcontracting clause (with which a majority of the decided cases under
Section 8(b) (4) (ii) (A) deal), the language of that paragraph is not limited to a
guaranty of payment of such funds but expressly provides that, if the subcontractor
does not pay the amount due, in a specified time, "the general Contractor shall be
required to remove said subcontractor from the job," and the contract reserves to
the Local and the Council the right to take "economic action," that is, a strike or
picketing (with attendant work stoppage) to compel removal by the general con-
tractor of the defaulting subcontractor, that is, to cease doing business with him.
I find, therefore, that, by coercing employers to agree to this clause the Respondents
have engaged in unfair labor practices within the meaning of Section 8(b) (4) (u) (A)
of the Act.1e I make no specific similar finding with respect to article I, paragraph B
and article III, paragraph B independently of article I, paragraph G. I consider
them only in context with other paragraphs in the contract.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the employers described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
9 See also: Local 60, United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry (Binnings Construction Company), 138 NLRB 1282; Building
and Construction Trades Council of San Bernardino, etc. (Gordon Fields), 139 NLRB
236; Orange Belt District Council of Painters #48, AFL-CIO, etc, 139 NLRB 383,
Local 140 Bedding, Curtain & Drapery Workers Union, etc, 140 NLRB 343, Building
and Construction Trades Council of Orange County (Gutch Construction Cc ), 140
NLRB 946.
10 Orange Belt District Council of Painters #48, AFL-CIO (Calhoun Drywall Com-
pany), 139 NLRB 383.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Fiesta, Superior , and Four Star are employers within the meaning of Section
2(2) of the Act.
2. Fiesta, Superior, and Four Star are engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
3. The Respondents Council and Local are labor organizations within the meaning
of Section 2(5) of the Act and Respondent Saver is an agent of the Council and
the Local.
4. By threatening, coercing , and restraining Fiesta, Superior, and Four Star with
picketing with the object of forcing or requiring them to enter into an agreement
which is prohibited by Section 8(e) of the Act, the Respondents have engaged in
and are engaging in unfair labor practices within the meaning of Section
8(b) (4) (ii) (A) of the Act.
5. At all times material hereto, Respondent Local has been the representative,
for the purposes of collective bargaining, of the employees of Fiesta, Superior, and
-Four Star in the appropriate units within the meaning of Section 9(a) of the Act.
6. All gunite employees of Fiesta, Superior , and Four Star, respectively, including
nozzlemen , rodmen, gunmen , materialmen, and reboundmen, exclusive of all other
employees, watchmen , guards, and supervisors as defined in the Act, constitute for
each employer, a separate unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
7. By refusing to bargain with Fiesta, Superior, and Four Star, by conditioning
bargaining and the signing of a collective-bargaining contract upon acceptance in such
contract by Fiesta, Superior, and Four Star of terms or conditions which are not
mandatory subjects of collective bargaining , Respondents Council and Local have
engaged in unfair labor practices within the meaning of Section 8(b)(3) of the
Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of law, I recommend.that:
A. Respondents Southern California District Council of Hod Carriers and Laborers,
Gunite Workers Local #345, their officers, representatives , agents, successors, and
assigns, and Frank Saver, secretary-treasurer of the Local, shall:
1. Cease and desist from:
(a) Threatening , coercing , or restraining Fiesta, Superior, Four Star, or any other
person engaged in commerce as defined in the Act or in an industry affecting such
commerce where an object thereof is forcing or requiring said employers or any other
employer to enter into any agreement which is prohibited by Section 8(e) of the Act.
(b) Refusing to bargain , by conditioning their bargaining and the making of a
collective-bargaining contract with the aforesaid employers upon acceptance by
said employers of a contract which contains provisions which are not mandatory
subjects of bargaining.
(c) In any like or related manner , refusing to bargain collectively with Fiesta,
Superior, or Four Star, or any other employer engaged in commerce as defined in the
Act, by insisting, over objection of such employer, upon inclusion in any collective-
bargaining agreement of any clause or other provision not involving wages, hours, or
other terms or conditions of employment of employees in the bargaining unit.
2. Take the following affirmative action which, I find, will effectuate the policies
of the Act:
(a) Notify Fiesta, Superior, and Four Star that they will not insist upon inclusion
in a collective -bargaining contract of the provision contained in article I, paragraphs
B and G, and in article III, paragraph B of the agreement or any other nonmandatory
subject of bargaining which Fiesta , Superior , and Four Star were coerced into
accepting on July 12, 1962.
(b) Post in conspicuous places in the business offices of Respondents Council and
Local, in all meeting places of members and in all places where notices to members are
customarily posted , copies of the attached notice marked "Appendix." 11 Copies of
said notice , to be furnished by the Regional Director for the Twenty-first Region,
shall, after having been duly signed by the representative of the Council and of
n In the event that this Recommended Order be adopted by the Board , the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words "A Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "A Decision
and Order "
SOUTHERN CALIFORNIA DISTRICT COUNCIL, ETC. 993
the Local and by Saver, be posted by Respondents immediately upon receipt thereof
and be maintained by them for 60 consecutive days thereafter. Reasonable steps shall
be taken by the Respondents to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Mail to the Regional Director copies of the aforesaid notice for posting by
Fiesta, Superior, and Four Star, respectively, they being wilting, in places where
notices to employees are customarily posted. Copies of said notice, to be furnished
by the said Regional Director, shall, after having been duly signed by the official
representative of Respondents Council and Local and by Saver, be forthwith returned
to said Regional Director.
(d) Notify the said Regional Director, in writing , within 20 days, of what steps the
Respondents have taken to comply herewith.12
It is further recommended that, unless on or before 20 days from the date of
receipt of this Intermediate Report and Recommended Order the Respondents shall
have notified said Regional Director in writing that they will comply with the fore-
going recommendations, the National Labor Relations Board issue an order requiring
the action aforesaid.
121D the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondents have taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF GUNITE WORKERS LOCAL #345 AND TO EMPLOYEES
OF FIESTA POOLS, CORALOC INDUSTRIES, INC., DOING BUSINESS AS SUPERIOR GUNITE,
AND FOUR STAR GUNITE CO.
Pursuant to the Recommended Order of a Trial Examinerd of the National
Labor Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, you are hereby notified that:
WE WILL NOT threaten, coerce, or restrain the above-named employers, or any
other employer with picketing or a work stoppage where an object thereof is
forcing or requiring any such employer to enter into an agreement which is
prohibited by Section 8 (e) of the Act, as amended.
WE WILL NOT refuse to bargain collectively with the above-named employers
on behalf of their employees in an appropriate unit by insisting and demanding
that said employers, over their objection , sign a contract containing any pro.
vision which is not a mandatory subject of bargaining.
The appropriate unit consists of the following employees of each employer
separately:
All gunite employees, including nozzlemen, rodmen, gunmen, material-
men, and reboundmen, exclusive of all other employees, watchmen, guards,
and supervisors as defined in the Act.
SOUTHERN CALIFORNIA DISTRICT COUNCIL OF
HOD CARRIERS AND LABORERS,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
GUNITE WORKERS LOCAL #345,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
Dated------------------- By-------------------------------------------
(FRANK SAVER , Busincss Representative)
This notice must remain posted for 60 consecutive days from the date of posting
hereof and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. Richmond 9-4711, Extension
1031, if they have any question concerning this notice or compliance with its
provisions.