Southern California Pipe Trades

National Labor Relations Board - Board Decisions

Oct 24, 1967

167 N.L.R.B. 1004 (N.L.R.B. 1967)

1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern California Pipe Trades District Council No.
16 of the United Association (Aero Plumbing Co.)
and Interstate Employees Association , Inc. Case
21-CB-2806
October 24, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On April 27, 1967, Trial Examiner David
Karasick issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Southern California Pipe
Trades District Council No. 16 of the United As-
sociation, El Monte, California, its officers, agents,
and representatives, shall take the action set forth
in the Trial Examiner's Recommended Order, as so
modified.
Delete from paragraph 2(c) of the Trial Ex-
aminer's Recommended Order that part thereof
which reads "to be furnished" and substitute
therefor "on forms provided ...."
I In agreeing with the Trial Examiner that the Respondent violated Sec-
tion 8 (b)(l)(B), we also take into account the fact, as found by the Trial
Examiner , that Respondent's strike against the Employer coerced the Em-
ployer in the selection of its representative for the purposes of collective
bargaining and adjustment of grievances
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID KARASICK, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
herein called the Act, was heard in Los Angeles, Califor-
nia, on February 8, 1967, pursuant to due notice. A com-
plaint, issued on November 18, 1966, based upon a
charge filed on October 10, 1966, by Interstate Em-
ployers Association, Inc., alleged in substance that
Southern California Pipe Trades District Council No. 16
of the United Association, herein called the Respondent,
had engaged in unfair labor practices within the meaning
of Section 8(b)(1)(B) and 8(b)(3) of the Act.
Upon the entire record in the case, my observation of
the witnesses, and consideration of briefs filed by the
General Counsel and the Respondent, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE EMPLOYERS
INVOLVED
Aero Plumbing Co., herein called Aero , and M. A.
Mayer Construction Co., herein called Mayer , are en-
gaged at El Monte and Downey , California , respectively,
as general contractors in the building and construction in-
dustry. During the 12-month period commencing June 1,
1965, Mayer purchased and received goods, materials,
and supplies which came to it directly from outside the
State of California, valued at approximately $ 100,000
and during the same period of time Aero performed work
and furnished supplies to Mayer valued in excess of
$190,000 . At all times material herein , Mayer had been
engaged , as the general contractor , in the construction of
an apartment building at Glendale , California, herein
called the Glendale project . In connection with this work,
Mayer subcontracted portions of such work to various
subcontractors , including the plumbing work to Aero.
For use at the Glendale project , Mayer purchased and
received goods, materials , and supplies valued at substan-
tial amounts which were purchased by it, its subcontrac-
tors, or their suppliers and which came to them directly
from outside the State of California . I find that Aero and
Mayer now are, and have been at all times material
herein , employers engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. The Issues
The primary issues in this case are: (1) Whether the
conduct of the Respondent constituted a refusal to bar-
gain in good faith in violation of Section 8(b)(3) of the
Act, and (2) whether the Respondent restrained or
coerced Aero in the selection of its representative for the
purposes of collective bargaining or the adjustment of
grievances in violation of Section 8(b)(1)(B) of the Act.
167 NLRB No. 143
B. The Facts
SOUTHERN CALIFORNIA PIPE TRADES 1005
At all times material to this proceeding, the Respond-
ent has been the designated bargaining representative of
a majority of Aero's employees in an appropriate unit
consisting of all employees performing plumbing, heating,
and piping work, exclusive of all other employees and all
supervisors as defined in the Act, within the meaning of
Section 9(a) and (b) of the Act.
It is the practice of the Respondent to negotiate and
enter into a collective-bargaining agreement with the
Plumbing-Heating and Piping Employers Council of
Southern California, Inc., a multiemployer association,
herein called the Association. Thereafter, the Respond-
ent prepares a similar, though not identical, contract,
herein called the standard agreement, which it submits for
signature to plumbing contractors who are not members
of the Association. Aero and the Respondent had been
parties to such a standard agreement which expired by its
terms on July 1, 1966. At that time, Aero disregarded
certain working conditions which had been followed
under the contract and engaged in conduct which resulted
in charges of unfair labor practices being filed against it in
Region 21 on July 8, 1966, in Case 21-CA-7260. A set-
tlement agreement , whereby Aero agreed to cease engag-
ing in the unfair labor practices alleged, was entered into
and approved by the Regional Director of Region 21 on
August 31, 1966.'
Sometime before July 12, 1966,2 the Respondent sub-
mitted a copy of the standard agreement to Aero. On July
12, Harold Moore, a representative of Plumbers Local
280, a local affiliated with the Respondent, met with
Frank A. Calhoun, then president of Interstate Em-
ployers Association, Inc., herein called Interstate, and Al
Aukerman, secretary-treasurer of Aero. Moore requested
that Aero sign the proposed agreement . After some
discussion, Calhoun, as spokesman for Aero, stated that
the Company was willing to accept those parts of the
proposed agreement which related to wages, hours, and
other terms and conditions of employment. Calhoun went
on to state, however, that Aero would not accept certain
other provisions of the proposed agreement and these he
specified as: (1) the appointment of the Association as
Aero's agent for the purpose of collective bargaining and
adjustment of grievances; (2) a requirement that the Em-
ployer post a bond; (3) a requirement that the Employer
pay certain stipulated sums of money to an industry
promotion fund; and (4) application of the terms of the
contract to cover owners or supervisors of the Employer.
Calhoun stated that Aero had chosen Interstate as its
representative and further stated that it would be accepta-
ble to Aero if the Respondent wished to substitute the
name of Interstate for that of the Association as Aero's
agent for the purpose of collective bargaining and adjust-
ment of grievances. Moore stated that he had no authority
to change the proposed contract and declared that this
would have to be discussed with the Respondent.
Thereafter, three meetings were held between
representatives of the Respondent and of Aero. At each
meeting, Aero was represented by Calhoun and Auker-
man while the Respondent was represented by Everett
Schell, executive secretary of the Respondent; Fred E.
' On July 15, Aero filed a charge against the Respondent in Case
21-CB-2765 and on July 21, additional charges in Cases 21-CB-2767-1
Weeks, a representative of Local 761, affiliated with the
Respondent; Chester Davies, a representative of Local
78, similarly affiliated; and Nate Burdett, assistant busi-
ness manager of the Respondent.
The first meeting occurred on July 27. The parties
discussed the contract and Calhoun again stated that
Aero was prepared to agree to the provisions of the
proposed agreement relating to wages, hours, and condi-
tions of employment but that it would not accept the four
provisions to which it had objected at the time of the
meeting with Moore . At the conclusion of the meeting,
Calhoun, at the request of Schell, agreed to put Aero's
position in writing. On the following day he sent a letter
to the Respondent which set forth Aero's position as fol-
lows:
Plumbers District Council No. 16
1616 West Ninth Street
Los Angeles, California, 90015
Attention: Mr. Schell
Re: Aero Plumbing Co.
Dear Mr. Schell:
In response to your request we are submitting in
writing our position as stated in conference yester-
day.
The Company accepts the proferred Southern
California Pipe Trades Agreement between the
Plumbing-Heating and Piping Independent Contrac-
tors and the Southern California Pipe Trades District
Council No. 16 of the United Association only in-
sofar as said Agreement deals with wages, hours of
work, and other terms and conditions of employment
for the employees of the Company.
The Company does not agree to certain non-man-
datory subject [sic] of bargaining which are con-
tained in said Agreement and herewith excludes
these items from the Agreement. Specifically these
items are as follows:
1. Exclude all mentioned of the Plumbing-
Heating and Piping Employers Council of
Southern California in the Agreement relative to
their being the agent of the Company for pur-
poses of Collective Bargaining or adjustment of
grievances. You may replace their name [sic]
with the name of Interstate Employers Associa-
tion, Inc.
2. Exclude from the Agreement the controls
over supervisors and owners of the Company.
3. Exclude the performance bond require-
ments in the Agreement insofar as the Company
is concerned.
4. Exclude the obligation to pay money to an
industry or promotion fund.
5. Exclude the requirements that owners of
the Company pay money to other persons for
the "privelege" [sic] of working.
Since the company agrees to all wages, hours of
and 2767-2 All three of these charges were withdrawn on September 23,
1966
2 All dates hereafter refer to 1966 unless otherwise indicated
1006 DECISIONS OF NATIONAL
work and other terms and conditions of employment
for the employees of the Company , (i.e., mandatory
subjects of bargaining ) as contained in said Agree-
ment it is our position that we now have a written
agreement covering the Company 's employees.
Yours truly,
Frank A Calhoun , Associa-
tion Mgr.
for and on behalf of its
member,
Aero Plumbing Co.
On August 3, counsel for the Respondent sent the fol-
lowing letter to Calhoun:
Re: AERO PLUMBING CO.
Dear Mr. Calhoun:
I have been asked to respond to your letter dated
July 28, 1966, addressed to Southern California Pipe
Trades District Council No. 16.
At the outset I wish to point out to you that you
have erroneously concluded that there is now in ex-
istence a written agreement between you and the
Union merely because you have refused to accept
certain alleged permissive subjects of bargaining and
have accepted what you consider to be mandatory
subjects of bargaining. The fact that certain items are
designated as permissive subjects of bargaining does
not mean that discussion of these items is unlawful,
or that collective bargaining is not required if certain
alleged permissive subjects of bargaining are re-
jected.
It is the Union's position that you have a right to
refuse to discuss permissive subjects of bargaining.
It is also the Union's position that no agreement has
yet been reached.
Since the items that you object to afford the em-
ployees covered by the agreement a certain degree of
financial security and job stability, the Union feels
that it is willing to delete any request of the items that
you object to in your letter and in lieu thereof, the
Union proposes agreement on the following addi-
tional items:
1. No transferability of men from the jurisdic-
tion of one union to the jurisdiction of another
union.
2. Complete elimination of the grievance and
arbitration procedure.
3. Complete elimination of the no-strike
clause.
4 Union shall have the right to strike or
engage in economic action for any and all viola-
tions of the agreement.
I The foregoing finding is based upon the testimony of Calhoun Ac-
cording to Weeks, at this meeting the Respondent offered to permit the
transfer of four employees Such a proposal would have been not only
more liberal than the original demand advanced by the Respondent but
even more liberal than the regular practice it followed with respect to em-
ployers who were signatories to the standard agreement No explanation
was offered and the record does not otherwise show why the Respondent
LABOR RELATIONS BOARD
5. Fifty cents ($.50) per hour in addition to
the wages now required by the Master Labor
Agreement.
6. An additional 10% of gross wages to be
added to the total fringe benefit package.
Your prompt response to this proposal would be
greatly appreciated.
Yours very truly,
BRUNDAGE &
HACKLER
By /s/ Eugene Miller
Eugene Miller
On September 19, the parties again met and discussed
the six demands set forth in the Respondent's letter of
August 3, which it proposed as substitutions for the
provisions to which Aero had objected. The first of these
demands was that the transferability of men be
eliminated. This referred to the practice of the Respond-
ent to permit an employer who was signatory to the
standard agreement the right to disregard geographical
boundaries of the various locals within the District
Council to the extent of assigning the first man and the
third man on a job from among his permanent employees
Under this practice, however, the second, fourth, and all
succeeding men for that particular job were to be secured
from the local within whose geographic area the job was
located. The Respondent's proposal to Aero, therefore,
meant that Aero would not be able to use any of its own
employees unless by chance they happened to be
members of the particular local which claimed jurisdic-
tion over the area in which the job in question was
located.3
The second demand of the Respondent was that the
grievance and arbitration procedures set forth in the stan-
dard agreement be eliminated. Calhoun asked why the
Respondent wished to eliminate this matter and either
Schell or Weeks stated that it was because Aero wanted
to choose its own people to sit on the committee.4
The third and fourth demands which would eliminate
a no-strike clause in the proposed agreement and would
grant the Respondent the right to strike for any violation
of the contract were discussed together. The Respondent
explained that it wished to retain the right to strike if any
violation of the agreement occurred and stated that the
elimination of a no-strike clause also gave Aero the right
to lock out employees.
The parties next discussed item 5, which was the
Respondent's demand that the wage rates set forth in the
standard agreement be increased by 50 cents per hour.
According to Calhoun, Schell explained that the
Respondent's demand in this regard meant that Aero was
to pay an additional sum of 50 cents per hour per em-
ployee the first year; I dollar per hour per employee the
would have suggested such a departure from its original demand and from
its standard practice I am inclined to believe that Calhoun's recollection
is the more accurate in this regard and find that the Respondent's proposal
was made in accordance with his testimony as above set forth
" This apparently referred to Aero's request that Interstate be sub-
stituted for the Association as Aero's representative on the joint arbitra-
tion board provided for in the standard agreement
SOUTHERN CALIFORNIA PIPE TRADES
second; and $1.50 per hour per employee the third year."
The final and sixth item of the Respondent's demands
regarding an additional 10 percent in gross wages in addi-
tion to the fringe benefits included in the standard agree-
ment was then discussed.6 Calhoun asked if the additional
10 percent would benefit the employees. Schell replied
that it would not and further stated that, since Aero was
requesting a separate administration of the contract, this
would require a separate trust fund which would require
more money to administer. Calhoun then stated that
although Aero was requesting that it be represented by
Interstate rather than the Association for purposes of bar-
gaining or the adjustment of grievances, it had no objec-
tion to the trustees of the various trust funds as set forth
in the standard agreement and was willing to accept them.
Schell, however, replied, "Well you want to change all the
other items. You might as well change this one, too." The
parties reached no agreement at this meeting and arrange-
ments were made to meet again on October 4.7
When the parties met on October 4, Schell asked what
Aero's answers were to the various proposals which had
been advanced by the Respondent. Calhoun replied that
Aero would agree to item I regarding the restriction on
the transfer of men but wanted it understood that this did
not cover the owners or supervisors of the Company.
Schell replied that, "if they pick up a tool, they can't
work." Calhoun stated that the Union had no authority to
bargain for owners or supervisors but that Aero had no
objection to the Respondent's first proposal.
As to item 2, Calhoun pointed out that grievance and
arbitration were among the most important items in a col-
lective-bargaining contract and a resort to them would be
necessary in order to adjust grievances without having
strikes or lockouts. Schell answered, "Well, we have a
grievance procedure, but since you don't want that, then
we want the complete elimination of it." Calhoun pointed
5 The foregoing finding as to wage rates is based upon the testimony of
Calhoun According to Weeks and Schell, the Respondent's demand was
50 cents per hour above the wage scale set forth in the standard agree-
ment Calhoun's testimony, however, was reinforced by notes which he
made at the time Schell explained the Respondent's demand Calhoun
testified that, according to those notes, the Respondent had demanded
that Aero pay journeymen plumbers effective July I, 1966, a wage rate of
$6 05 per hour rather than $5 55 as provided for in the standard contract,
on July I, 1967, $6 64 rather than $5 64, and on July 1, 1968, $7 29
rather than $5 79 I rely upon Calhoun's testimony in this regard both
because it is supported by the notes which he made at the time and
because I do not believe that the Respondent would have demanded a 10
percent increase in fringe benefits and a lesser increase in actual wages, as
would be true if Schell and Weeks were correct in their recounting of the
matter
I The standard contract provided for fringe benefits (including I percent
for an industry promotion fund) of 26 percent based upon the gross
monthly wage of each employee
According to Schell, Calhoun "always tied the ten percent in with the
transferability of men" and also with the no-strike clause, grievance
procedure, and wages The record as a whole does not support this ver-
sion Weeks, on the other hand, testified that about this point Calhoun
proposed that Aero would withdraw any objections and would accept the
trustees and fringe benefits as outlined in the standard agreement His ver-
sion that Calhoun agreed to accept the trustees and fringe benefits con-
tained in the standard agreement at this meeting appears to be incorrect
for he later testified that at the meeting of October 4, Calhoun indicated
that he might be willing to go along with the wages and fringe benefits but
that he later withdrew his position as to that matter If Calhoun had agreed
at the meeting on September 19 that the trustees and fringe benefits set
forth in the standard agreement were acceptable to him, there would have
been no reason for further discussion of the matter at the meeting on Oc-
tober 4 The evidence shows that no agreement was reached as to either
1007
out that Aero was willing to have Interstate act on behalf
of the Employer and the fact that Aero was suggesting a
different employer representative did not eliminate the
need for a grievance and arbitration procedure. Schell dis-
agreed, however, and stated that the Respondent wanted
the right to take economic action. The Respondent also
asked what Aero's proposal contemplated in the event
that the parties became deadlocked on an issue being ar-
bitrated and Calhoun suggested that they then invoke the
mediation services of either the State or Federal
government.8
With regard to the third and fourth proposals of the
Respondent that there be an elimination of the no-strike
clause from the contract,`' Calhoun requested that the
Respondent modify its position by agreeing to a no-strike
clause but excluding from such clause and thus permitting
strikes to enforce grievances relating to the Employer's
failure to pay wages, fringe benefits, or traveltime. At first
Schell agreed to this but after further discussion changed
his position and insisted that the Respondent wanted the
right to take economic action.
With regard to the Respondent's fifth proposal relating
to wage rates, Calhoun stated that Aero would agree to
pay the wage rates and all the fringe benefits which were
set forth in the standard agreement. Schell rejected this
offer and stated that it cost the Respondent money to sit
there and bargain with Aero and that the Employer was
going to have to pay for it.
As to the Respondent's last demand regarding an addi-
tional 10 percent for fringe benefits, Calhoun stated that
Aero would be willing to pay its share to the trust fund
provided for in the standard agreement and would be
willing to appoint the existing trustees as its trustees and
that there would thus be no need to set up a separate trust
fund. Schell replied that the Respondent insisted that a
separate trust fund be established and that it would not
of these items and I therefore believe that Calhoun's recollection is the
more accurate and find in accordance with his testimony as above set
forth
9 Both Schell and Weeks denied that Calhoun had suggested the inter-
vention of a third party in the event of a deadlock According to them, Cal-
houn proposed that matters which might go to arbitration be handled by a
joint board composed of equal numbers of representatives of the Respond-
ent and of Aero, the decision of this Board should be final and binding,
and in the event of a deadlock nothing therefore would happen since Cal-
houn also demanded a no-strike clause which would have the effect of
preventing the Respondent and the employees from further action in re-
gard to any matter to which they objected 1 regard it as likely that Cal-
houn stated, as he testified, that Aero regarded the grievance and arbitra-
tion provisions of the contract as of great importance and that at the meet-
ing on October 4 he proposed that the parties resort to mediation as a
means of breaking a deadlock in arbitration, as has been found above This
conclusion is more in keeping with the consistent positions of the parties
throughout the negotiations for it was Aero which in the first instance and
thereafter proposed retention of the grievance and arbitration machinery
set up in the standard agreement with a mere change as to the employer
representative as shown in Calhoun's letter of July 28 and it was the
Respondent which proposed complete elimination of the grievance and ar-
bitration procedure in question as noted in Miller's letter of August 3
Moreover, Calhoun admittedly did not demand an all-inclusive no-strike
clause but proposed that strikes would not be banned in any instance in
which Aero did not pay wages, fringe benefits, or traveltime as required
by the contract
H The standard agreement contained the following provision "The
Unions signatory hereto may take any action they deem necessary against
any Contractor who has failed, neglected or refused to comply with or ex-
ecute any settlement or decision reached through arbitration under the
terms of Section XIV " Section XIV contained provisions relating to the
joint arbitration board established under the contract
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agree to Aero's participation in the fund provided for in
the standard agreement. Calhoun answered by saying that
since Aero had agreed to the Respondent's demand
prohibiting the transfer of men, it was not likely that any
of Aero's employees would receive any benefits from the
funds in question because of the short time they would be
engaged in construction jobs. He proposed that the
Respondent lift this provision and permit Aero to use its
employees throughout the area of the distract council and
stated that if it did so Aero then could agree to a separate
fringe benefit package. Weeks responded by saying that
if Aero was so interested in the employees, it could pay
them the additional wage rates which the Respondent was
demanding. And either Weeks or Schell also stated, "Of
course, if you don't like this, you can always sign the
standard agreement." Weeks testified that he also said on
this occasion that if Aero wished to make sure that the
employees got the benefits from the separate fund, it
could guarantee its men 40 hours per week, 50 weeks per
year, and the Respondent might then consider reducing
its demand for wages to $5.55 per hour as set forth in the
standard agreement but in that event he would have to
discuss this separately with the rest of the union com-
mittee members.
As the meeting ended, Schell asked one of his col-
leagues when the Respondent had filed notice with the
Federal and State mediation services. When he was told
it had been more than 30 days before, Schell declared,
"We're free to strike and picket now." Calhoun said he
hoped the Respondent would not do so and that their dif-
ferences could be resolved in other ways. Schell replied,
"Well, you'll just have to take your best shots because
we're apparently not getting anywhere." He further
stated, "Its costing us money to sit here. We can't tie up
four men like this continuously. You'll just have to take
your best shots. If you don't like this, you can always sign
the standard agreement." At this juncture, Schell also
stated that the Respondent would not sign a different
agreement with Aero than it had signed with anyone else.
Late that afternoon, October 4, three of Aero's em-
ployees were working on a jobsite within the jurisdiction
of Plumbers Local 761. As they were preparing to quit
work for the day, they were approached by Don Arnold,
business representative of the Local, who instructed the
three men that they could not come back on the job
because Aero had not signed an agreement with the
Respondent and that a picket line was going to be
established.
On Friday, October 7, Calhoun called Schell and
requested that the parties have another meeting. Schell
answered that he saw no purpose in it, that the Respond-
ent was not going to change its position. Calhoun replied
that they had made some progress at the last meeting and
he hoped they could make more. Schell answered that he
was afraid that the parties would be wasting each other's
time. i0
On October 11, Aero signed the standard agreement
for plumbing contractors who were not members of the
Association, which had originally been submitted to by
the Respondent.
C Summary and Conclusions
It has long been settled that either party may insist
without relenting upon inclusion in an agreement of man-
datory subjects of bargaining relating to wages, hours,
and conditions of employment but may not precondition
acceptance of a contract. upon terms which are not
mandatory." The Respondent's original proposals that
would have required Aero to post a bond, make payments
to the industry promotion fund, regard owners and super-
visors as covered by the contract, and appoint the As-
sociation as its agent for bargaining and the handling of
grievances were clearly of a nonmandatory character.
The Respondent was free to advance such proposals and
Aero equally free to reject them. But the Respondent was
not free to require Aero to accept such proposals as a
condition for arriving at an agreement. This, the General
Counsel contends, is what the Respondent did. The
Respondent, however, asserts that both its conduct and
that of Aero evinced nothing more than legitimate and
permissible hard bargaining by the parties. The question
is, therefore, whether the counterproposals offered by the
Respondent, together with its other conduct, demon-
strated that it was attempting in good faith to reach an ac-
commodation of its differences with Aero.
Ordinarily, it is not within the province of the Board to
pass upon the merits of bargaining proposals made by
either party, but it may, however, consider such
proposals for the purpose of determining motivation.12 It
is accordingly proper to consider the counterproposals
made by the Respondent in this case, together with its
other conduct, in assessing its good faith. The, Respond-
ent's first demand which would prohibit the transfer of
employees would have placed Aero not only under a
competitive disadvantage, since other employers operat-
ing under the standard agreement would face no such
prohibition, but apparently would also have the effect of
depriving the employees of the fringe benefits otherwise
provided for under the contract. In turn, this in effect
would make meaningless the Respondent's further de-
mand that the fringe benefits provided for in the standard
agreement be increased by 10 percent in the case of Aero.
These results would flow from Aero's inability to transfer
its employees from the jurisdiction of one local union of
the Respondent to that of another within the area of the
district council because its employees would not have
worked long enough to build up credits for fringe benefits
since Aero's construction jobs were of short duration.
When Calhoun pointed this out at the meeting on October
4 and offered to agree to the Respondent's demand for ad-
ditional fringe benefits if it would remove the restriction
on transferability so that the employees could thus realize
the benefits so provided, the Respondent rejected Cal-
houn's offer. Weeks' statement that if Aero was in-
terested in the employees, it could pay the additional
wage rates which the Respondent demanded was not
responsive to Calhoun's proposal, for the two items were
not related. The Respondent was demanding that Aero
pay wage rates over and above those provided for in the
standard agreement and this was in addition to, and not as
a substitution for, the added amount of fringe benefits it
10 Schell's version of this conversation was that he told Calhoun that he
thought it was a waste of time for them to meet again after Calhoun had
told him that Aero's position was not changed with respect to several of
the Respondent 's proposals about which Schell questioned him
" N.L.R B. v Wooster Division of Borg-Warner Corporation, 356
U.S. 342
12 East Texas Steel Castings Company, Inc, 154 NLRB I080.
SOUTHERN CALIFORNIA PIPE TRADES
was also demanding. Thus, it was no answer for the
Respondent to say in reply to Calhoun's proposal that
what the employees would lose in fringe benefits because
of the Respondent's first demand would be made up for
by paying the additional wage rates which the Respond-
ent was also demanding. The Respondent's assertion
that it was bargaining in good faith is not , therefore,
enhanced by the demand it made for additional fringe
benefits to be paid to the employees and its further de-
mand prohibiting transferability which would have the
practical effect of depriving the employees of the very
benefits it professed to be seeking for them. Nor is it
strengthened by Schell's statement to Calhoun at this
meeting, after rejecting Calhoun's offer to pay the addi-
tional 10 percent in fringe benefits if the Respondent
would accord Aero the same right of transferability en-
joyed by other employers under the standard contract,
that, "of course, if you don't like this, you can always sign
the standard agreement."
The Respondent's second proposal that the grievance
procedure be eliminated was based on Aero's request that
Interstate, rather than the Association, represent it in the
handling of grievance matters. According to Weeks,
Schell objected to the substitution requested by Calhoun
on the ground that "the members of the Employers Coun-
cil [Association] were men who [sic] we had had
dealings with through the years, that they were men ex-
perienced at the trade, men who we had through the years
of arbitration and negotiation come to respect; they knew
their business; they were all employers engaged at the
business covered by the agreement." Certainly, mutual
respect and confidence gained as the result of a long-
established relationship are important considerations in
bargaining. But while the Respondent may have preferred
to deal with representatives of the Association, there is
no evidence to indicate that Interstate was incapable of
performing this function. Under the circumstances, the
Respondent 's insistence that Aero accept the grievance
procedure set forth in the standard agreement, or
eliminate it altogether, constituted a refusal to permit
Aero to select its own representative for the purposes of
bargaining and the handling of grievances and in itself vio-
lated Section 8(b)(1)(B) of the Act.
The standard agreement limited the Union's right to
strike in the event the Employer "failed , neglected or
refused to comply with or execute any settlement or deci-
sion reached through arbitration" under the terms of the
contract. This implemented further clauses of the con-
tract which provided that arbitration under its terms
would be final and binding upon the parties. The third and
fourth proposals of the Respondent to Aero, however,
provided for the complete elimination of the no-strike
clause in the standard agreement and further provided
that the Union would have the right to strike for any
violation of the contract. Since the Respondent was also
demanding the complete elimination of the grievance
procedure under the contract, its third and fourth
proposals meant that there would be no method for solv-
ing disputes which might arise through some form of
grievance procedure and arbitration and the Union would
have an unlimited right to strike. Thus, the Respondent
would eliminate an established and orderly method of
resolving disputes and was proposing instead that the
parties be left to the ultimate economic weapons of
lockout and strike as a means of resolution of their
problems.
1009
With respect to the Respondent's demand that Aero
agree to pay from 50 cents per hour to $1.50 per hour
above the wage rates provided for in the standard agree-
ment, Calhoun took the position that Aero would pay the
wage rates and all the fringe benefits which that agree-
ment required. Schell, however, refused to accept this on
the ground that it cost the Respondent money to sit and
bargain separately with Aero and that Aero was therefore
going to have to pay for it. Schell testified that the costs
of negotiation and the costs of policing a contract with a
single employer were proportionately greater than for
those employers who signed a standard agreement and
that "any employer who signed a small agreement was
going to have to pay more money for it." He further
testified that this money would have to be paid in form of
wages to the employees since it could not be paid to the
Union as'such. He admitted, however, that the Respond-
ent would not benefit from the increased wage rates but
that such a demand "would just be a deterrent to too
many contractors • doing the same thing " Thus, the
Respondent's wage demands were admittedly a penalty
imposed upon Aero and intended to discourage it from
seeking a separate agreement.
The Respondent's demand that Aero pay an additional
10 percent in fringe benefits over and above those already
provided for in the standard agreement likewise fell in this
category. When Calhoun, at the last meeting of the
parties, protested this on the ground that Aero's em-
ployees would not receive such benefits in view of the
Respondent's demand that the transfer of employees be
prohibited and offered to pay the additional 10 percent
demanded if the Respondent would agree to permit Aero
the same right of transferability enjoyed by other em-
ployers under the standard agreement, his offer was re-
jected with the statement that if Aero did not like this, it
could always sign the standard agreement. That this was
the only resolution which the Respondent would accept
is made manifest by Schell's statement at the end of the
meeting on October 4 that the Respondent could not sign
a different agreement with Aero than it signed with any-
one else.
It thus appears to me that the counterproposals ad-
vanced by the Respondent were so extreme as to
preclude a reasonable expectation of acceptance and that
the ostensible choice they offered was illusory. In reality,
it was no choice at all for the Respondent had no intention
of deviating from the original provisions embodied in the
standard agreement as Schell declared at the end of the
October 4 meeting. And this conclusion is strengthened
by the further actions of the Respondent on October 4 in
calling the strike, despite Calhoun's plea that bargaining
be continued , and on October 7 in refusing to meet
further with Aero There was no justification for this
refusal to meet for no impasse in bargaining had been
reached, and even if it had, it was broken by the strike
which in itself interjected a new condition. Under the
coercive pressure of the strike, Aero capitulated and
signed the standard agreement.
For the foregoing reasons and on the record as a whole,
I find that, by insisting upon the standard agreement con-
taining the nonmandatory provisions to which Aero ob-
jected, the Respondent refused to bargain in violation of
Section 8(b)(3) of the Act. I further find that, by insisting
upon the provision in the agreement that Aero appoint the
Association as its representative for the purposes of col-
lective bargaining and the adjustment of grievances, the
Respondent violated Section 8(b)(1)(B) of the Act.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Having found that the Respondent has restrained and
coerced Aero in the selection of its bargaining representa-
tive for the purposes of collective bargaining and the
resolution of grievances, and having further found that
the Respondent has failed to bargain in good faith by in-
sisting upon inclusion of nonmandatory provisions in a
contract in order to arrive at an agreement, it will be
recommended that the Respondent be ordered to cease
and desist from such conduct and take certain affirmative
action designed to effectuate the policies of the Act. As
Aero has shown a willingness to be bound by the contract
which it signed on October 11, 1966, except for the
specific provisions dealt with herein, it will be recom-
mended that the Respondent be ordered not to insist upon
the inclusion of such provisions in future bargaining with
Aero and to continue the current contract with Aero in ef-
fect in all respects except as to those provisions which
would require. (1) the appointment of the Association as
Aero's agent for the purposes of collective bargaining and
adjustment of grievances, (2) posting of a bond by Aero;
(3) payments by Aero to the industry promotion fund;
and (4) application of the terms of the contract to owners
or supervisors.
It will also be recommended that the Respondent reim-
burse Aero for expenses incurred in posting a bond and
in making payments to the industry promotion fund from
October 11, 1966, to date. 13
CONCLUSIONS OF LAW
I. Aero and Mayer are employers within the meaning
of Section 2(2) of the Act engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees of Aero performing plumbing, heat-
ing, and piping work, exclusive of all other employees and
all supervisors as defined in the Act constitute a unit ap-
propriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act, and at all times
material herein the Respondent has been the exclusive
representative of said employees within the meaning of
Section 9(a) of the Act.
4. By insisting as a condition of signing a contract that
Aero agree to accept the Association as its agent for the
purposes of collective bargaining and the adjustment of
grievances, to post a bond, to pay sums of money to an in-
dustry promotion fund, and to apply the terms of the con-
tract to owners or supervisors, the Respondent has
refused to bargain with Aero and thus has engaged in un-
fair labor practices within the meaning of Section 8(b)(3)
of the Act.
5. By restraining and coercing Aero to force it to ac-
cept the Association to represent it for purposes of collec-
tive bargaining and the adjustment of grievances, the
Respondent has engaged in unfair labor practices in viola-
tion of Section 8(b)(1)(B) of the Act.
" Operative Plasterers ' & Cement Masons ' International Association
Local No. 2, AFL-CIO (Arnold M Hansen), 149 NLRB 1264, Painters
District Council No 36, AFL-CIO (Commercial Drywall Constructors,
Inc), 155 NLRB 1013
14 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclu-
sions of law, and the entire record in the case, and pur-
suant to Section 10(c) of the National Labor Relations
Act, as amended, I recommend that the Respondent,
Southern California Pipe Trades District Council No. 16
of the United Association, Los Angeles, California, its of-
ficers, agents, and representatives, shall:
1. Cease and desist from-
(a) Refusing to bargain with Aero Plumbing Co. by
requiring as a condition of agreement that Aero: (1) ap-
point the Plumbing-Heating and Piping Employers Coun-
cil of Southern California, Inc., as Aero's agent for the
purposes of collective bargaining or the adjustment of
grievances; (2) post a bond; (3) pay sums of money to an
industry promotion fund; or (4) apply the terms of the
contract to owners or supervisors.
(b) Coercing or restraining Aero Plumbing Co. in the
selection of its representative for purposes of collective
bargaining or the adjustment of grievances.
(c) Applying or enforcing those portions of the exist-
ing contract with Aero Plumbing Co., requiring- (1) the
appointment of the Plumbing-Heating and Piping Em-
ployers Council of Southern California, Inc., as Aero's
agent for the purposes of collective bargaining or adjust-
ment of grievances; (2) posting of a bond by Aero; (3)
payment by Aero of sums of money to an industry promo-
tion fund; (4) application of the terms of the contract to
owners or supervisors of Aero, or the acceptance of any
modification, extension, or renewal of that contract, or
the resolution of any grievances thereunder except as
agreement in such matters may be reached with repre-
sentatives chosen by Aero Plumbing Co.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Notify Aero Plumbing Co., in writing, that it will
not insist upon the Plumbing-Heating and Piping Em-
ployers Council of Southern California, Inc., acting as
Aero Plumbing Co .'s agent for the purposes of collective
bargaining or the adjustment of grievances; the posting of
a bond by Aero Plumbing Co.; the payment of sums of
money by Aero Plumbing Co. to the industry promotion
fund; or the application of the terms of the contract to
owners or supervisors of Aero Plumbing Co.
(b) Reimburse Aero Plumbing Co. for expenses in-
curred to date in connection with the posting of a bond or
the payment of sums of money to the industry promotion
fund.
(c) Post at its principal office and usual membership
meeting places, including offices and membership meet-
ing places of its constituent locals, copies of the attached
notice marked "Appendix."14 Copies of said notice, to be
furnished by the Regional Director for Region 21, after
being duly signed by Respondent's authorized represent-
Recommended Order of a Trial Examiner" in the notice in the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words " a Decision
and Order "
SOUTHERN CALIFORNIA PIPE TRADES
ative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(d) Mail copies of said notice to said Regional
Director in Los Angeles, California, after such copies
have been signed, as provided above, for posting by Aero
Plumbing Co., if willing.
(e) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith. 15
15 In the event that this Recommended Order is 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 setps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF SOUTHERN CALIFORNIA
PIPE TRADES DISTRICT COUNCIL No. 16 OF THE
UNITED ASSOCIATION [AERO PLUMBING CO.]
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT refuse to bargain with Aero Plumb-
ing Co. by insisting as a condition of agreement that
it accept a contract requiring:
(1) The appointment of the Plumbing-Heating
and Piping Employers Council of Southern
California, Inc., as Aero Plumbing Co 's agent
for purposes of collective bargaining or the ad-
1011
justment of grievances.
(2) The posting of a bond by Aero Plumbing
Co.
(3) The payment of sums of money by Aero
Plumbing Co. to the industry promotion fund.
(4) Application of the terms of the contract to
owners or supervisors of Aero Plumbing Co.
WE WILL NOT apply or enforce such provisions in
the contract we now have with that employer.
WE WILL NOT coerce or restrain Aero Plumbing
Co. in its selection of a representative for purposes
of collective bargaining or the adjustment of
grievances.
WE WILL NOT apply or enforce such provisions as
now exist in our contract with that Employer.
WE WILL notify Aero Plumbing Co. that we will
reimburse it for expenses incurred to date by reason
of the provisions in the contract relating to the
posting of a bond or the payment of sums of money
to the industry promotion fund.
SOUTHERN CALIFORNIA PIPE TRADES
DISTRICT COUNCIL No. 16 OF THE
UNITED ASSOCIATION
(Labor Organization)
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
If members have any question concerning this notice or
compliance with its provisions , they may communicate
directly with the Board 's Regional Office , Eastern
Columbia Building, 849 South Broadway , Los Angeles,
California 90014 , Telephone 688-5229.
310-541 0 - 70- 65