Southern California Pipe Trades District Council No 16

National Labor Relations Board - Board Decisions

Jan 12, 1989

292 N.L.R.B. 270 (N.L.R.B. 1989)

270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Southern California Pipe Trades District Council
No 16 and Plumbing and Piping Industry
Council , Inc and R P Richards , Inc, Becotte
Mechanical Contractors , Inc, Nor-Wel Plumb-
ing, Inc , Apartment Plumbing , Inc, and Davies
and Howells Mech Co, Parties in Interest
Case 21-CB-9949
January 12, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On July 20, 1988, Administrative Law Judge
Earldean V S Robbins issued the attached deci
sion The Respondent, the Charging Party, and the
General Counsel filed exceptions and supporting
briefs The Charging Party filed an answering brief
to the Respondent's exceptions and the Respond-
ent's motion to file an answering brief was denied
as untimely
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified
We agree with the judge that the Respondent,
since June 19, 1987, has violated Section 8(b)(3) of
the Act by soliciting member-employers of the
Plumbing and Piping Industry Council, Inc
(PPIC), and nonmember-employers represented by
PPIC, to abandon multiemployer bargaining at a
time when withdrawal from the multiemployer unit
would be untimely, and to adopt certain midterm
contract modifications proposed by the Respond
ent We also agree with the judge that, subsequent
to June 19, 1987, the Respondent has violated Sec
tion 8(b)(3) by entering into individual collective-
bargaining agreements with at least 13 employees
who had designated PPIC as their exclusive, au
thorized collective bargaining representative within
the multiemployer unit
In defense of its actions, the Respondent con-
tends, inter alia, that PPIC had, long before June
1987, waived its right to assert multiemployer unit
representative status The Respondent argues that
this waiver is established by the following conduct
' The Respondent has excepted to some of the judge s credibility find
ings The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
(1) PPIC failed to act when the Respondent,
during the contract term, negotiated with individ
ual employers in the multiemployer unit concern
ing the Respondent's proposed housing addendum
to the parties' contract and (2) PPIC sought au
thorization from the individual members of the
multiemployer unit before agreeing to the Re-
spondent's proposed extension of the 1983-1986
agreement to 1988 We find no merit to this argu-
ment As the judge found, the record does not sup
port an inference of waiver by PPIC
As to the first of the Respondent's grounds, the
record shows that, in a letter to the Respondent,
PPIC objected to the Respondent's attempts to
bypass it when the Respondent tried to obtain indi
vidual employer approval of the latter's proposed
housing addendum In addition, the judge found
that there is no support in the record for inferring
a waiver We interpret this finding as an implicit
crediting of PPIC Executive Vice President
Payne's testimony that he had complained to a
local union official about his solicitation of individ
ual employers in the multiemployer unit to sign the
housing addendum Further, PPIC not only object
ed to being bypassed by Respondent, but also exer
cised its authority as bargaining representative on
this issue, as shown by PPIC's letter which it sent
to all contractors announcing that it had negotiated
a housing agreement with District Council No 16
Regarding the second point of the Respondent's
waiver argument, the record shows that, in the
1985 negotiations to extend the 1983-1986 agree
ment to 1988, PPIC agreed to the extension, sub
sect to individual employers in the multiemployer
unit notifying PPIC that they did not want to be
bound to the extension This condition was placed
on the agreement because PPIC had received legal
advice that it could not bind the employers in the
unit to a premature extension of the contract with
out giving the employers the option of adhering to
the contract's original term 2
Accordingly, we find that the evidence does not
establish a clear and unmistakable waiver by PPIC
of its right to assert its multiemployer unit repre-
sentative status concerning the Respondent's con
duct in 1987 that we have found, in agreement
with the judge, violated Section 8(b)(3)
As a remedy for the 8(b)(3) violations, the judge
ordered the Respondent, inter alia, to rescind the
individual collective-bargaining agreements entered
into and to make each member-employer and non
8 There was also discussion that many members were considering the
option of going nonunion and would not wish to delay that option by an
additional 2 years All employers in the multiemployer unit were advised
that if they failed to advise PPIC of their wishes by a certain date they
would automatically be covered by the extension
292 NLRB No 37
SOUTHERN CALIFORNIA PIPE TRADES COUNCIL (PLUMBING INDUSTRY) 271
member-employer in the multiemployer bargaining
unit who signed individual collective -bargaining
agreements whole for any financial expenditures in-
curred under the individual contracts that would
not have been incurred under the multiemployer
agreement The General Counsel and the Charging
Party except to the judge 's failure to provide reme-
dial relief concerning the elimination of employer
payments to certain funds that resulted from the
Respondent 's unlawful conduct Specifically, they
claim that the terms of the unlawful individual con-
tracts allowed the signatory employers to eliminate
payments due to the Vacation and Holiday Fund
and to the Contractors ' Education and Develop-
ment Fund (CED) Thus , they contend that the
Plumbing and Piping Industry Council , Inc should
be made whole by requiring the Respondent to re
imburse these funds for the contributions the funds
would have received from the signatory employers
absent the latter 's entry into the unlawful individ-
ual contracts
We find that the remedy is insufficient to the
extent that it does not require the Respondent to
reimburse the funds which involve matters that
constitute mandatory subjects of bargaining 3 In
this regard, the Vacation and Holiday Fund ap-
pears to involve a mandatory subject of bargaining,
while the CED fund appears to be an industry ad-
vancement type fund for which the Board should
not order reimbursement 4 Should these conclu
sions as to the mandatory nature of the funds based
on the current state of the record be incorrect,
however , the parties will have the opportunity at
the compliance stage to present the evidence neces-
sary to make any corrections To the extent reim
bursements are due any fund , any additional
amounts shall be determined in accordance with
Merryweather Optical Co 240 NLRB 1213 (1979)
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Southern California Pipe Trades District
Council No 16, its officers , agents , and representa
tives , shall take the action set forth in the Order as
modified
1 Insert the following as paragraph 2(d) and re-
letter the subsequent paragraphs
"(d) Reimburse the Vacation and Holiday Fund
for losses it may have suffered as a result of the
Respondent 's entering into collective bargaining
agreements with individual employers on and after
8 See generally Allied Chemical & Alkali Workers Local 1 v Pittsburgh
Plate Glass Co 404 U S 157 (1971)
4 See Finger Lakes Plumbing Co 254 NLRB 1399 (1981)
June 19 , 1987, in the manner described in the
Board 's decision "
2 Substitute the attached notice for that of the
administrative law judge
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to recognize and bargain
with Plumbing and Piping Industry Council, Inc
(PPIC) as the collective -bargaining representative
of the employers in the following unit
All employees of member employers of PPIC
and nonmember-employers covered under the
1983-1988 master agreement for the Plumbing
and Piping Industry of Southern California be-
tween PPIC and us who have designated
PPIC as their exclusive authorized bargaining
representative in a multiemployer bargaining
unit who perform work as defined in Section 3
of that agreement
WE WILL NOT solicit employers represented by
PPIC in the above-described multiemployer bar-
gaining unit to abandon multiemployer bargaining
and to sign individual collective-bargaining agree
ments with us at a time when withdrawal from
such multiemployer unit would be untimely
WE WILL NOT give effect to, or seek to enforce,
the 1983- 1990 contracts executed in 1987 by us and
employers represented by PPIC in the above de
scribed multiemployer bargaining unit or any ex
tensions or renewals thereof
WE WILL honor and give effect to the 1983-1988
master agreement between us and PPIC and we
will notify PPIC and the employers represented by
it in the above described multiemployer bargaining
unit that we will do so
WE WILL rescind the individual 1983-1990 col
lective bargaining agreements entered into with in
dividual employers represented by PPIC in the
above-described multiemployer unit and we will
make each of them whole for any financial expend-
itures made pursuant to the 1983-1990 individual
collective-bargaining agreement signed with us
which it would not have been obligated to make
under the 1983-1988 agreement between us and
PPIC
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL reimburse the Vacation and Holiday
Fund for losses it suffered as a result of our unlaw-
ful action
SOUTHERN CALIFORNIA PIPE TRADES
DISTRICT COUNCIL No 16
Joel Martinez Esq for the General Counsel
George A Pappy Esq (Pappy & Davis) Los Angeles
California, for the Respondent
Stuart H Young Jr Esq (Hill Farrer & Burrell), Los
Angeles, California for the Charging Party
DECISION
STATEMENT OF THE CASE
EARLDEAN V S ROBBINS, Administrative Law Judge
This case was heard before me on November 17 1987
and January 4, 1988 The charge was filed by Plumbing
and Piping Industry Council, Inc (PPIC) on June 23
1987, and served on Southern California Pipe Trades
District Council No 16 (Respondent) on June 24, 1987
A complaint issued on July 10 and on September 14,
1987, an amended complaint issued alleging that Re
spondent has violated Section 8(b)(3) of the National
Labor Relations Act (the Act)
The basic issues are (1) whether a multiemployer bar
gaining unit existed at times material, and (2) if so,
whether Respondent violated Section 8(b)(3) of the Act
by soliciting employers in the unit to enter into individ
ual collective bargaining agreements without the consent
of their authorized exclusive collective bargaining repre
sentative
On the entire record, including my observation of the
demeanor of the witnesses and after due consideration of
the briefs filed by the parties, I make the following
FINDINGS OF FACT
I JURISDICTION
PPIC is and at all times material has been an associa
tion comprised of various employers who are engaged in
business as contractors or subcontractors in the plumbing
and piping industry in southern California and exists in
part for the purpose of, and does engage in collective
bargaining on behalf of its respective member employers
and certain nonmembers who have designated PPIC as
their exclusive authorized bargaining representative with
Respondent The member employers of PPIC in the ag
gregate, annually purchase and receive goods and prod
ucts valued in excess of $50,000 directly from suppliers
located outside the State of California
The complaint alleges and I find that at all times ma
terial PPIC and its member employers are employers,
and each of them is an employer engaged in commerce
and in businesses affecting commerce within the meaning
of Section 2(6) and (7) of the Act
II LABOR ORGANIZATION
The complaint alleges, Respondent admits and I find
that Respondent is now and has been at all times a
labor organization within the meaning of Section 2(5) of
the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Relevant Collective Bargaining History
Since at least 1945, PPIC or its predecessor association
has been the exclusive collective bargaining representa
tive of its members and certain nonmember contractors
in a multiemployer bargaining unit Each PPIC member
(member employers) signs an application for membership
that designates PPIC as the sole and exclusive collec
tive bargaining representative for and on behalf of the
undersigned, and PPIC and its officers and other desig
nated representatives are authorized to execute any and
all labor agreements and documents which are to be
binding upon the members of PPIC in accordance with
the bylaws On acceptance by PPIC s board of gover
nors, copies of these applications are sent to Respondent
and the various trust funds
The PPIC bylaws provide inter alia i
Section 14 01 Bargaining Agent
Every Member in accordance with the terms and
conditions of his Appointment and Authorization
of Bargaining Representative, hereby appoints the
Council, acting through the Board and the Negotia
tion and Arbitration Committee, as his exclusive
collective bargaining agent for purposes of all deal
ings whether negotiation arbitration or otherwise
with the United Association or any other labor
union or organization as provided hereinafter In
particular, without limiting the scope of the author
ity heretofore granted, every Member grants com
plete and exclusive authority to the Council to do
any and all of the following
(a) To negotiate conclude and execute contracts
and agreements, including collective bargaining and
trust agreements subject to written ratification by
each member on an individual basis
Section 14 02 Labor Agreements
The Council Negotiation and Arbitration Com
mittee shall report its activities to the Board on a
timely basis No offer or final agreement of major
importance made by such Committee when acting
in its negotiation capacity shall be binding on a
member without the written notification of such
member
Nonmember employers who have designated PPIC as
their collective bargaining representative (nonmember
employers) sign a bargaining authorization which desig
nates PPIC as the employer's exclusive collective bar
gaining agent in all matters related to negotiations with
Respondent and its affiliated local unions over the terms
and conditions of employment of employees represented
I This is taken from the 1984 bylaws The record establishes that the
previous bylaws contained the same provision
SOUTHERN CALIFORNIA PIPE TRADES COUNCIL (PLUMBING INDUSTRY) 273
by [Respondent] By signing the bargaining authoriza
tion the nonmember employer further agrees to and
hereby does, become a part of the multi employer bar
gaining unit under the master agreement for the plumb
ing and piping industry of Southern California
PPIC s principal source of income is contributions
made by member employers and nonmember employers
to the Education and Development Fund (the C ED
Fund) These contributions, at the rate of 10 cents an
hour worked by each unit employee are remitted to the
trust fund monthly along with the employers benefit
contributions and are transferred to PPIC by the trust
fund
Until 1983, the bargaining between Respondent and
PPIC or its predecessor organization was always in a
multiemployer bargaining unit The 1980-1983 collec
tive bargaining agreement between PPIC and Respond
ent provides, inter alia
Section I
RECOGNITION
[1 ] B The Union hereby recognizes the Contrac
tors Association as the sole and exclusive collective
bargaining representative for all present and future
members, and/or other Contractors who may desig
nate the Contractors Association as their bargaining
representative who are engaged on work covered
by this Agreement and agrees not to negotiate indi
vidually with them during the terms of this Agree
ment
Section XVII
EXISTING & OTHER AGREEMENTS
81 The Contractors agree that any agreement that
is alleged by the Contractor to be more favorable to
another Contractor must be applied in its entirety at
the beginning of any given job and shall apply only
to that local union participating in said agreement
The Contractor agrees to notify the Local involved
before invoking this Paragraph
By letter dated February 7 1983 PPIC informed Re
spondent that it would no longer represent contractors
on a multiemployer basis That letter reads inter alia
PPIC has full authority subject to ratification by
each contractor to bind the contractors it repre
sents to such an agreement Contrary to past prac
tices, PPIC will represent the contractors whose
names are set forth on the lists on an individual and
not on a multi employer basis However it is
PPIC s intention that the negotiated agreement
become the Master Agreement with such supple
mental agreements as the negotiating committee(s)
may develop Further PPIC intends to continue to
share responsibility with District Council 16 for all
aspects of contract and trust administration and to
work toward preservation of the high standards
within the industry which have been made possible
by day to day cooperation between labor and man
agement
The shift from traditional multi employer bar
gaining to negotiations conducted by PPIC on
behalf of its members and other contractors on an
individual basis is a necessary accommodation to
those contractors facing intense non union competi
tion who desire to remain union contractors but as
a matter of economic reality cannot accept the
risks that are inherent should they participate in
multi employer bargaining The present arrange
ment provides such contractors with an option to
reject the negotiated agreement in the event they
believe it fails to address their requirements
I have every reason to believe that had PPIC
been unresponsive to the need for flexibility by
these contractors they would have resigned their
PPIC membership and reluctantly joined the ranks
of the non union contractor
Thereafter the 1983 negotiations commenced During
the course of the negotiations, Respondent proposed de
leting paragraphs 1 B and 81 In support of this proposal
Respondent argued that, because the agreement covers
nine counties it needed flexibility to make adjustments so
that union contractors could remain competitive with
nonunion contractors thereby generating more employ
ment for union members PPIC proposed a reduced
wage rate for residential construction Respondent took
the position that it could not secure Council wide ac
ceptance of a contract containing such a provision but
promised that during the life of the contract it would
seek approval from its affiliate locals for an addendum to
the contract covering residential construction No agree
ment was reached and on the June 30 expiration of the
1980-1983 agreement the Union commenced a strike
that lasted for approximately 2 weeks
Negotiations continued and, on July 19, the parties
reached agreement At that bargaining session the parties
agreed inter alia to delete the language in paragraph 81
and that portion of paragraph 1 B whereby Respondent
agrees not to negotiate individually with [PPI member
employers and nonmember employers] during the terms
of this agreement The parties also agreed to include in
the contract a provision that purports to reestablish the
multiemployer bargaining unit This provision reads 2
A The persons firms corporations, joint venture
or other business entities bound by the terms of this
Agreement are referred to in this Agreement as
Employer or Employers The Employers and
the Union by entering into this Agreement intend to
and agree to establish a single multi employer col
lective bargaining unit Any Employer who be
comes party to this Agreement shall thereby
become a member of the multi employer collective
bargaining unit established by this Agreement
B Employers covered by the Agreement shall be
free to designate their own representatives for the
purpose of collective bargaining and contract ad
2 Sec III par 11
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ministration, however, such designation shall not
affect the Employers membership in the collective
bargaining unit established by this Agreement
During the course of that bargaining session PPIC
representatives informed Respondent that at a meeting
to be held later that night for the purpose of ratifying the
agreement each contractor would be asked to sign an in
dividual letter of agreement that recites this agreement
shall be deemed executed when the parties signing shall
have affixed their signature hereto According to Re
spondent s business manager Ray Foreman Jerry Hen
derson, executive director of PPIC, and Bill Deel stated
that PPIC needed to secure these individual letters of
agreement because their bylaws stated that each employ
er had to accept or reject the agreement individually
On July 21, 1983, PPIC sent a memo to member em
ployers and nonmember employers that refers to the en
closure of a letter of agreement and signature sheet re
garding the 1983-1986 Labor Agreement negotiated be
tween PPIC and District Council No 16 and requests
the employers to fill out and sign the signature sheet and
return it to PPIC The letter of agreement, approximate
ly 1 1/2 pages in length recites, inter alia
1 The contractor acknowledges that the fol
lowing clauses in the master agreement ( agree
ment ) have not as yet been agreed upon by the
parties, and that negotiations on these clauses are
still in progress The contractor further gives
full authorization to PPIC to negotiate final prove
sions of the clauses listed above and any modifica
tion of the agreement necessary to effectuate the
purpose of these clauses and agrees to be bound by
the results of all such negotiations and agreements
between PPIC and District Council No 16
6 In executing this letter of agreement contractor
agrees that he is party to and part of the multi em
ployer bargaining unit described herein as PPIC
Also enclosed was a signature page headed Letter of
Agreement which recites inter alia This agreement
shall be deemed executed when the parties signing shall
have affixed their signature herein Foreman admits he
and Kirshman agreed on the language for the signature
page but denies ever agreeing to or seeing the language
in the 1 1/2 page letter of agreement or the accompany
ing cover memo
Later that day PPIC held a meeting of member em
ployers and nonmember employers During this meeting
the final provisions of the contract were discussed, and
individual contractors signed the letters of agreement
Over the course of the next 2 or 3 months, other
member employers and nonmember employers signed
letters of agreement
1 The 1984 housing addendum
In 1984, Respondent's negotiating committee com
prised of the business managers of its affiliate Locals,
agreed that each Local could have the option of offering
contractors working in its territorial jurisdiction a re
duced wage and benefit package for wood frame residen
tial construction This reduced package was set forth in
an addendum agreement to the 1983-1986 master labor
agreement between PPIC and Respondent to be signed
by the individual contractor and the Local Union The
addendum referred to as the housing agreement or the
stick agreement, specifies that it covers residential con
struction that it applies only to the contractor and Local
Union signatory thereto, and that it shall cover only the
territorial jurisdiction of the signatory Local Union Al
though PPIC had proposed the concept of a lower rest
dential construction wage and benefit rate during the
1983 negotiations there was no negotiations between Re
spondent and PPIC in this regard The drafting of the
housing addendum was done solely by Respondent
The housing agreement provides
ADDENDUM AGREEMENT
between the Employers and Local Unions signatory
to the 1983-1986 Agreement for the Plumbing Heat
ing and Piping Industry of Southern California com
monly known as the District Council No 16 Master
Labor Agreement
This Addendum agreement is in full force and
effect for the Contractor and the Local Union sig
natory hereto, and shall cover only the territorial
jurisdiction of said signatory Local Union This
shall not be applied to any Contractor or Local
Union not signatory to said Addendum Agreement
as set forth herein
Addendum agreement covering Residential Con
struction defined as stick construction of single
family housing dwellings including multiple story
dwellings condos , apartments and townhouses
1 Residential Construction Journeymen Plumb
er s Wage Rates and benefits per hour effective
July 1 1984 through June 30 1985 shall be as
follows
Base rate-$17 98 Pension-$2 80
H&W-$1 92 A&J-$0 10 P I P E -$0 20
Total-$23
2 All provisions of the 1983-1986 agreement for
the Plumbing Heating and Piping Industry of
Southern California which this Addendum is a
part of shall be binding on the Employer and the
Union
Only one local union Local 545 adopted the housing
addendum in 1984 3 It is undisputed that PPIC was not
immediately notified that Local 545 had adopted the
agreement and at least two contractors-Nat Taylor &
Sons Plumbing Inc and B & J Plumbing Inc -signed
the housing addendum prior to any notification being
given to PPIC 4 However according to Foreman prior
3 Local 545 adopted the housing agreement in November 1984
4 Local 545 also signed an agreement with Apartment Plumbers on
July 29 1985
SOUTHERN CALIFORNIA PIPE TRADES COUNCIL (PLUMBING INDUSTRY)
to Local 545 adopting the housing agreement he in
formed PPIC President Merlin Geddes and Executive
Director Jerry Henderson that Respondents Council had
adopted the addendum and gave them a copy He told
them the agreement was optional for each Local Union
and that PPIC could tell their contractors to contact the
individual Local Union to inquire if that Union would
offer the housing agreement Foreman admits that the
PPIC representatives expressed some opposition to the
agreement He does not recall what it was but thinks the
principal objection was that it was not Council wide
Foreman also admits that local unions solicited individual
contractors to sign the housing agreement despite PPIC s
opposition
By letter dated January 29, 1985, Respondent informed
PPIC that Local 545 had implemented the housing
agreement and enclosed copies of the Nat Taylor and B
& J plumbing agreements According to Foreman, Re
spondent received no response from PPIC concerning
this letter In 1985, Local 582 adopted the housing agree
ment and, according to PPIC Executive Vice President
Robert Payne, began calling on PPIC members soliciting
them to sign the agreement In response thereto, on
March 8, 1985 PPIC sent Respondent a letter the body
of which reads
As you know, this firm represents the Plumbing
& Piping Industry Council ( PPIC") Our client has
recently learned that District Council No 16,
through one or more affiliated Locals has negotiat
ed a separate agreement entitled Addendum
Agreement with members of the multi employer
bargaining unit This action of course unlawfully
by passes PPIC s exclusive bargaining representa
tive status constitutes an unlawful mid term modifi
cation of the Master Agreement, and is otherwise a
breach of the Master Agreement In addition since
the Addendum Agreement governs residential
construction, and since District Council No 16 re
fused to agree to proposals submitted by PPIC
during the course of negotiations over the Master
Agreement on the subject of residential construc
tion entering into this Addendum Agreement
constitutes evidence of bad faith bargaining, as well
as further evidence of undermining PPIC s repre
sentative status Lastly setting aside its illegality
this action is hardly conducive to a mutually re
sponsible labor management relations between the
parties
As you will deduce from the foregoing, our
client is considerably disconcerted by this action
and is contemplating instructing our office to pro
ceed with appropriate legal action However it will
forebear from doing so provided that you are will
ing to meet and confer with PPIC towards the end
of reaching a residential agreement to which PPIC
is a party Please advise me of what dates you and
any other necessary parties would be available for
that purpose as soon as possible
Despite this threat of legal action no unfair labor prac
tice charges were filed Respondents affiliate Locals
275
continued to enter into housing addendum agreements
with individual contractors
2 The 1985 extension of the master labor agreement
and the modification of the housing addendum
On May 22, 1985, Respondent sent a letter to all con
tractors signatory to the 1983- 1986 master agreement
including those members of and/or represented by PPIC,
the body of which reads
As you are aware, your current collective bar
gaining agreement with District Council No 16
provides for an increase in rates of $100, effective
for all hours worked on and after July 1, 1985 The
$100 increase is to be applied as directed by the
District Council This collective bargaining agree
ment will expire on June 30 1986
The Delegates of the District Council have met
and have considered the distribution of the $100 in
crease The decision of the Delegates is to offer
each signatory contractor a choice between two op
tions Only one or the other option is offered Each
contractor may choose only between them
*OPTION ONE is to increase the hourly con
tributions to the Vacation and Holiday Trust
Fund by $100 for each hour worked on and after
July 1 1985, with a contract expiration date of
June 30, 1986
**OPTION TWO offered as an alternative, is
that no increase in rates be implemented on July
1, 1985 Instead the contract expiration date
would be extended until June 30 1988 Further
the $100 due July 1 1985 would be deferred
during the two year contract extension-$0 50 in
crease per hour worked being applied to the Va
cation and Holiday Fund effective July 1 1986,
and $0 50 increase per hour worked being applied
to the Vacation and Holiday Fund effective July
1 1987
The District Council No 16 requests that you
advise us of your choice between these two options
no later than June 21 1985
If we have not received a reply from you by that
date, we must apply OPTION ONE and your Va
cation and Holiday hourly contribution will be in
creased by $100 effective July 1 1985
Attached thereto was a prepared response to be signed
by the individual contractor selecting one of the two op
tions
On May 23 a letter was sent to PPIC that was identi
cal to the May 22 letter except in the second paragraph
where your group of contractors was substituted for
each signatory contract By letter dated June 24, 1985
PPIC accepted the option of extending the contract to
June 30, 1988 The body of the letter reads
In reply to your letter of May 23 1985 the PPIC
Board of Governors have voted to amend the cur
rent contract, as stated in your option two, with sub
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sequent minor modifications agreed upon by both
parties
In compliance with our by laws and agreement
with the Independent Contractors we represent
we cannot bind these parties to the Amended
Agreement without prior notification This process
will be completed by June 28, 1985 at which time
we will submit to you a list of the contractors we
represent and will be covered under our amended
Master Agreement
With regard to the last paragraph of this letter, Payne
and PPIC President A E Barrington testified that on
advice of counsel the PPIC board of governors conclud
ed that because their member employers and non
member employers had agreed to a contract terminating
in 1986 they could not prematurely extend that agree
ment without affording them the option of adhering to
the original term of the agreement There was also some
discussion that many members were considering the
option of going nonunion and would not wish to delay
that option by an additional 2 years Therefore, each
member employer and nonmember employer was note
feed by letter of the two options and informed that if
they did not response by June 28 PPIC would sign the
extension and they would be automatically covered by it
According to Barrington PPIC received both positive
and negative responses to the proposed extension and
some contractors did not respond at all Consequently
all contractors represented by PPIC were bound by the
extension unless they notified PPIC to the contrary In
1986, after the expiration of the 1983-1986 master agree
ment Respondent negotiated to impasse with the con
tractors who chose not to extend that agreement
In late 1985 or early 1986 according to Foreman two
members of the PPIC board of governors Merlin
Geddes and George Benoit told him PPIC would not
encourage any contractors to sign the housing addendum
because it did not contain a provision for C E D contra
butions In an effort to overcome this opposition Re
spondent amended the housing addendum to require
PPIC members to make a 3 cent per hour C E D contri
bution According to Foreman nonmembers were not
required to make such contributions Approximately 6 of
the 14 affiliated Local Unions adopted the housing agree
ment PPIC and Respondent according to Foreman
reached an oral agreement as to the housing addendum
in late 1985 or early 1986 but did not actually execute
one
Thereafter the housing addendum was amended to
specifically set forth all contributions including wages
benefits , and C E D contributions It also included a
time and a half overtime rate and a note as to the amount
of Respondents dues checkoff and certain other contri
butions A special modification of the housing addendum
approved by Respondent was used by Local 114 That
modified agreement includes the following additional
provisions
Contractors signing this agreement will agree to
employ only one pipetradesman per shop (This will
include pipetradesmen under all agreements )
All stick jobs will be posted at the contractors
shop The union will be notified of each stick job
prior to the start of construction and the steward
will be notified of all stick jobs
The employer has to notify each employee if he
is going to send the employee to a stick job and if
the man does not wish to work under the stick
agreement the man will be entitled to a reduction
in force
Contractors signing this agreement agree to
pursue single house construction
Further the journeymen wage rate also included a vaca
tion and holiday rate of $ 1 per hour for a total wage rate
of $24 an hour instead of the $23 an hour in the standard
housing addendum The foremen s vacation and holiday
rate was changed from $2 93 an hour to $1 93 an hour
for a total wage rate of $29 60 per hour instead of the
$30 60 per hour rate in the standard housing addendum
Jim Naumann , business manager of Local 545 and
John Patterson business manager of Local 582 , testified
that they implemented the amended housing addendum
within their territorial jurisdiction without objection
from PPIC However Robert Payne, PPIC s executive
vice president testified he had two or three discussions
with Patterson and some correspondence with regard to
the housing agreement The first discussion was a phone
conversation initiated by Payne in late spring or early
summer 1986 According to him after receiving some
calls from contractors that Patterson had solicited them
with regard to signing the housing agreement he called
Patterson told him PPIC was not against the housing
agreement but Patterson would have to go through
PPIC when talking to a PPIC member Payne said he
would send out a request for anyone that wanted to sign
the addendum and would then send Patterson a list
At some time prior to June 9, 1986 the following
notice was sent to employers represented by PPIC
NOTICE
To All Contractors
From George Benoit President PPIC
Re Two New Contracts
The PPIC Negotiating Committee is please to
advise you that it has recently negotiated two
agreements with District Council No 16 The
desire is to append these two agreements to the
Master Agreement The first is a Housing Agree
ment, with a total wage and fringe package of
$23 00/hr for a journeyman The second agreement
covers Industrial , Commercial , Manufacturing and
Oilfield Maintenance , with a total wage and fringe
package of $23 25 for a journeyman
As you know, the Master Agreement calls for
Contractor Education and Development (C E D )
contributions to be paid to PPIC We would appre
ciate your signing and returning this notice Your
signature below indicates both ( 1) your authoriza
tion to PPIC to enter into these two agreements on
your behalf and (2) your acknowledgment that any
C E D contributions under these two agreements
SOUTHERN CALIFORNIA PIPE TRADES COUNCIL (PLUMBING INDUSTRY) 277
shall be paid to PPIC just as is the case under the
Master Agreement
On August 14 1986 Payne sent the following letter
To Contractors Who Granted PPIC Bargaining
Authority
From Bob C Payne, Executive Vice President
Re Industrial, Commercial Manufacturing and Oil
field Maintenance Agreement & The Housing
Agreement
Dear Contractor
The enclosed agreement has been finalized and
signed by PPIC President George Benoit, and Ray
Foreman business manager secretary of DC# 16
Enclosed are three (3) #14 pages (signature page)
which you must completely fill out and then return
all three (3) copies to the PPIC office When we are
in receipt of all three of your copies we will keep
one (1) for our files one (1) will go to DC#16, and
then DC# 16 will send the third copy to the appro
priate locals DC# 16 will also notify the Southern
California Pipe Trades Trust Fund (SCPTTF)
When PPIC has received all of the signed agree
meets we will then send a list of all the signed con
tractors to all of the locals The Maintenance
Agreement is good throughout DC#16 but you
must get prior approval from the business manager
if you wish to use it on new construction
The Housing Agreement must be approved by
each local As of this date locals 545 and 582 have
already approved the Housing Agreement (It is not
necessary to sign the Housing Agreement, it is al
ready part of the Master Agreement We are enclos
ing a copy for your files )
Thereafter, according to Payne he sent all Respond
ent s affiliate locals a list of member employers and non
member employers who were bound by the housing ad
dendum Payne further testified that he believes a copy
of this notice was also sent to Respondent According to
him he instructed his secretary to send the list to all the
locals to the trust fund and to Respondent He has no
reason to believe that his instructions were not followed
Payne also testified that in a conversation with Patter
son, he stated that Patterson should be dealing through
PPIC and not directly with contractors Patterson
agreed and Payne promised him a list of contractors
bound by the housing addendum Patterson specifically
denied ever receiving a call from Payne complaining that
he had approached contractors directly to solicit them to
sign the stick agreement rather than going through
PPIC
B The Alleged Refusal to Bargain
Payne testified that on April 2 1987 Foreman came
into his office and informally proposed a contract exten
sion from 1988 until 1990 According to him Foreman
proposed that the wage provision of the contract be
modified to cancel the 50 cents increase due July 1 1987,
and to provide for a 25 cents wage increase on July 1
1988, and another 25 cents wage increase on July 1
1989 with a new expiration date of June 30 1990 He
further proposed that Respondent have the right to um
laterally shift trust fund contributions from one trust
fund to another as needed Payne said he felt C ED
contributions should be increased 5 cents for service and
repair plumbers and the pipe tradesmen and apprentices
inasmuch as they were paying dues on them with no off
setting income Foreman said okay and proposed an ad
ditional 5 cents contribution for the California Pipe
Trades Fund Payne said he did not think PPIC would
agree to the unilateral shifting of funds from one trust to
another by Respondent He further said he would have
to take the proposal back to the appropriate committees
Foreman requested that Payne get back to him by April
21 because he had a District Council meeting
Payne further testified that on May 14, 1987 at the
conclusion of a joint arbitration meeting Foreman for
mally proposed the same wage and contract extension
modification he had proposed to Payne in April PPIC
counterproposed eight additional modifications that the
PPIC spokesman said were all negotiable The counter
proposal included free trade of employees from one local
to another more employer supervision over foremen, a
change in the ratio of journeymen to apprentice and also
tradesmen the initiation of a drug abuse program, and
C E D contributions of 10 cents for journeymen and 5
cents for apprentices, service and repair plumbers, and
tradesmen and that contributions could be shifted from
one fund to another only on agreement between Re
spondent and PPIC Respondents representatives said
they would get back to PPIC on May 26
According to Foreman PPIC further proposed that
the dispatch procedure be modified to provide for 100
percent calls by name that the housing agreement be
Council wide instead of at the discretion of the Local
Union and that the employer have complete control of
supervision without any contractual ratio as to when
there would be a foreman or general foreman They also
wanted to preclude the Union from making special deals
with individual contractors including the most favored
nation clause that had been deleted from the contract in
the 1983 negotiations
Another meeting was held on May 26 1987 Payne
and Foreman were present but Payne does not recall
whether Frank Graham was present According to
Payne Foreman said Respondent was going to meet on
Friday and they were going to go to the street with the
contract Foreman further said Respondent would get
rid of all employer association What good are they I
could do it better without you " Payne said Respondent
had the right to go to any independent contractor but
did not have the right to solicit any PPIC member or
contractors that had granted PPIC their bargaining au
thonty Foreman said, We re going to the street with
it Payne further testified that Foreman also said, on
May 26 or during other conversations between them he
would get rid of the joint arbitration board would de
stroy PPIC that he hates all contractors and all employ
er associations and would get rid of them Foreman
denies telling Payne he hated all contractors, would de
278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stroy PPIC, or would get rid of all employer associa
tions
On May 28, 1987, PPIC sent Respondent a letter, the
body of which reads, inter alia
You are not legally permitted to deal or attempt to
deal individually with any of the employers on this
list with respect to matters pertaining to collective
bargaining, rather any dealings must be through
this Association and then only on the basis of a
multi employer bargaining unit
Attached thereto was a list of 146 member employers
and 73 nonmember employers
In late May or early June 1987, PPIC Southern Cali
fornia Mechanical Contractors and Associated General
Contractors jointly drafted a letter that was sent to sig
natories, including those represented by PPIC over the
signature of Bob Payne and Jim Burge of Southern Cali
fornia Mechanical Contractors Association
The body of the letter reads
District Council No 16 has informally offered to
extend our existing 1983-1988 Master Agreement
by two years and defer the July 1, 1987 $ 50 per
hour increase (July 1988-$ 25 and July 1989-
$ 25) In addition the union has requested the rignt
to move fringe contributions from one fund to an
other as they wish to cover benefit needs
The offer does not address our ability to effective
ly compete against non union competition or make
the union contractor more competitive in today s
market place Discussions with District Council No
16 are open and continuing
If you are directly solicited by District Council
No 16 or local business agents, exercise caution) In
view of the recent NLRB decision in DekleH a and
Sons as well as proposed legislation currently pend
ing in Congress your associations recommended
that prior to signing any extension you contact a
competent Labor Law attorney
On June 5 1987 PPIC sent the following letter to
member employers and nonmember employers
Recently there have been some Informal Dis
cussions between District Council No 16 and the
Plumbing & Piping Industry Council Inc The fol
lowing items were offered by District Council No
16 for management consideration
1 Extend the current Master Agreement
through June 30, 1990
2 Forego the fifty cent increase scheduled for
July 1, 1987 in the following manner twenty five
cents to be effective July 1 1988 and twenty five
cents to be effective July 1 1989
3 District Council No 16 labor representatives
are to have full authority to shift any and all trust
fund contributions at their discretion, without
management s consent
It was the opinion of managements negotiation
committee that more was needed over this long a
term in order to allow us to be more competitive
with the horrendous impact of the non union sector
on our segment of the industry For this reason, a
counter proposal of additional items (copy attached)
was given to District Council No 16 To date man
agement has received no informal response to this
list of items
In order to be able to move timely in a direction
that best suits the majority of our signatories we
urge you to fill out the attached form and return it
in the enclosed envelope as soon as possible A
meeting A ill be scheduled in the immediate future
to allow open discussions by all signatories relating
to this subject
SPECIAL NOTE A recent landmark decision of
the National Labor Relations Board has completely
reversed prior rulings as to demands that could be
placed on an individual company regarding extending
an expiring working agreement You are urged not to
sign any agreement for extension until you understand
the potential consequencies of signing such an exten
Sion 5
Attached thereto was a form requesting signatories to
indicate support or nonsupport for the following propos
als made by PPIC to Respondent
1 Free movement of men throughout Los Ange
les and Orange County
2 Favored Nations Clause (All contractors are
entitled to same special Agreement given to any
other contractors)
3 Management to have full control of supervi
sion with no set ratios to journeymen However
this would have no effect on current 3 man transfer
clause
4 Ratio of Apprentices to Journeymen
A 1 Apprentice to 1 Journeyman for first
man
B 1 Apprentice to 3 Journeymen thereafter
C If no apprentices available, a Tradesman
may be used
5 100% call by name
6 The Housing Agreement to be made part of
the Master Agreement and not solely at the discre
tion of Business Manager
7 Elimination of Subsistence and Travel Pay
anywhere in District Council No 16
8 Minimum of $ 05 C E D contributions on all
classifications Journeyman contribution to stay as
is
On June 19 1987 Respondent sent a letter to all signa
tories including those represented by PPIC which reads,
inter alia
Recently you have received from several indus
try employers associations communications regard
ing the offer of the Southern California Pipe Trades
5 The italicized portion was typed in red ink
SOUTHERN CALIFORNIA PIPE TRADES COUNCIL (PLUMBING INDUSTRY) 279
Distract Council No 16 to extend the current 1983-
1988 Master Agreement
5 WAGE RATES AND BENEFITS, Section
XVIII
Because we believe that these communications
misrepresent the District Councils proposal, we
offer you the opportunity to review our offer your
self
In simple terms our motivation for making this
offer is threefold
1 To maintain and extend a sustained period
of industrial peace
2 To avoid a long drawn out fight in an ad
verse climate where no one wins and
3 To refrain from being used as a tool by
some special interest employers who do not in
any way by their actions reflect the best interest
of our industry
With this objective in mind , we are enclosing a
copy of an extension contract of our existing 1983-
1988 Master Agreement for your study and action
After you have reviewed this document , I am sure
that you will agree with us that approval of this ex
tension contract will maintain industrial peace for
an additional three years
To assist you in analyzing this enclosed contract,
we are providing a brief description of the changes
to our agreement as follows
1 RENUMBERING OF PARAGRAPHS
This is necessary because of changes and a
new numbering system which will make it easier
to reference
2 HIRING PROVISIONS AND REGISTRA
TION RULES, Sections IV and V
This largely has been changed to allow for the
initiation of the P I P E Certification of Journey
man effective July 1 1988 By this effort, we
hope that all journeyman [sic] will upgrade their
skills and keep them upgraded through the
P I P E Certification Program
Registration of Book No 2 has been lowered
from 3 000 to 2 000 hours The 3 000 hour rule
proved too restrictive for Book No 2
3 UNION SECURITY SECTION VIII
We have added a $ 05 per hours worked de
duction to pay per capita dues to our state asso
ciation because of action taken at our state pipe
trades convention held last month
4 GRIEVANCE PROCEDURE AND NEW
TITLE IMPARTIAL ARBITRATOR Section
XIII and XIV
These two sections have been changed to
make them more up to date in the handling of
grievances, and to put an end to the rumors that
contractors who are PPIC members receive more
favorable treatment Compliance with these sec
tions will provide equal treatment for everyone
We have a $ 50 increase due on July 1, 1987
payable to the vacation and holiday fund that we
are willing to forgo [sic] We will hold our cur
rent wage and benefits as they are are [sic] this
year and we will eliminate the $ 10 C E D -for a
total savings of $ 60 per hour worked this year
(July 1, 1987 to June 30, 1988)
Effective July 1 1988 , a $ 30 increase on
wages ($ 25 from $ 50 increase of the vacation
and holiday fund and $ 05 from C E D) and $ 05
increase to the AGC/UA training trust fund
which comes from the left over $ 05 of
CED s$10
Effective July 1, 1989, a $ 25 increase on wages
6 BENEFIT TRUST FUND Section XIX
These changes allow all participating employ
ers, like yourself, to either run for election as
Trustees of the Trust Fund of your choice
and/or to vote for the Trustee candidates of your
choice
7 FLEXIBLE TRUST CONTRIBUTION, Sec
tion XXXII (A New Section)
Since we have boxed ourselves in a corner
with no increases , we need to protect our trust
funds in case one fund gets into difficulty We
need to be able to distribute the contributions
among the trusts as the needs arise
In conclusion this extension offer is made to you
by our District Council because we are the only
ones who can make this offer We wish to point
out, however that this offer is subject to withdraw
al at anytime by District Council No 16 If you be
lieve as we do, please sign the enclosed agreement,
return it to this office and we will send you signed
copies
In the latter part of June Respondent distributed to
employers covered under the 1983-1986 master agree
ment a 1983-1990 master labor agreement between
Southern California Contractors and Respondent re
vised as of July 1 1987 which had been drafted solely
by Respondent The new agreement reflects the changes
indicated in Respondents June 19 letter The total
number of trustees was changed from 26 to 14 and the
selection of employer trustees was changed from election
by PPIC to trustees elected from among the contribut
ing employers signatory to the master agreement The
new agreement sets out a detailed election procedure for
employer trustees No such procedure was detailed in
the 1983-1988 agreement The arbitration procedure was
also changed from a joint arbitration board comprised of
an equal number of union and employer representatives
to a permanent impartial arbitrator with all costs of the
arbitration and of the conduct of the hearing to be borne
by the losing party The 10 cent an hour C E D contri
bution was eliminated as of July 1 1987 5 cents of this
saving to be added to the July 1 1988 wage increase for
280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a total of a 30 cent increase , and the remaining 5 cent
saving from the elimination of the C E D contribution to
be contributed to the AGC/UA training trust fund The
hiring provisions were changed from a requirement of
3000 hours of employment under an agreement with Re
spondent to 2000 hours None of these provisions were
ever proposed to PPIC
On July 31 , 1987 Respondent sent a letter to all signa
tory contractors asserting that the new master labor
agreement is advantageous to employers and accusing
PPIC of not acting in the best interest of the employers
or of the industry The letter also notes that PPIC lead
ership wishes to increase C E D contributions to cover
all employees covered under the contract and asserts
since 1983 , we have seen very few of these C ED
funds being put back into the industry for benefiting you
the competing employer The letter further states that
Southern California Mechanical Contractors Association
has signed the agreement quite a few PPIC members
have resigned from PPIC and signed the agreement and
an important and large number of our independent sig
natory contractors also have signed The letter then con
cludes
In answer to the question raised by the PPIC offs
cial- Who do you think acts in the best interest of
the contractors-PPIC or District Council No
16? ', I think that it is very evident from reading the
above list of contractors, who have signed our con
tract , that these contractors have recognized the
District Council No 16 has the best interest of the
contractors at heart
On September 3 1987 Respondent sent a letter to
member employers and nonmember employers requesting
that they indicate in the space provided whether as al
leged by PPIC , they hold your firms exclusive collec
tive bargaining rights and that they have your authori
zation to bind you to the District Council No 16
` master agreement
The following member employers did resign their
PPIC membership on the dates indicated
Becotte Mechanical
Contractors, Inc July 3
R P Richards Inc July 9
Nor Wel Plumbing,
Inc
Davies & Howells
July 10
Mech & Paby Co
Inc July 16
Apartment Plumbers
Inc July 28
Also several member employers and nonmember em
ployers signed the 1983-1990 agreement on the dates in
dicated
SPA Plumbing Inc June 25
C L Stegall Co , Inc June 30
Becotte Mech
Contractors Inc June 29
PAL Welding Inc July 1
Wel Plumbing Inc July 7
H E Williams
Plumbing, Inc July 8
R P Richards, Inc July 10
Matt s Plumbing
Service July 13
Davies & Howells
Mech & Paby Co
Inc July 16
Laidlaw Welding , Inc July 23
D Z Plumbing July 30
Apartment Plumbers
Inc July 30
White Bros Plumbing Aug 18
All these employers were named in the attachment to
PPIC s May 28 letter to Respondent that listed the
member employers of PPIC and the nonmember employ
ers that had given PPIC their bargaining authorization
and were members of the multiemployer bargaining unit
Conclusions
The complaint alleges that since June 19, 1987, Re
spondent has violated Section 8(b)(3) of the Act by solic
iting individual member employers of PPIC and other
nonmember employers who had designated PPIC as
their exclusive , authorized bargaining representative to
negotiate , enter into and give immediate effect to mdi
vidual collective bargaining agreements , without the con
sent of PPIC Respondent does not dispute that it direct
ly solicited member employers and nonmember employ
ers to enter into individual midterm modifications of the
1983-1988 master agreement without the consent of
PPIC However Respondent argues that the multiem
ployer bargaining unit that was abandoned in 1983 was
never reestablished and therefore its actions in dealing
directly with the individual contractors was lawful Re
spondent further argues that , even assuming arguendo,
the multiemployer unit was reestablished at the conclu
sion of the 1983 negotiations, PPIC waived its right to
assert multiemployer unit representative status by agree
ing to delete the clause restricting Respondents right to
deal directly with contractors and by its failure to take
affirmative steps to prevent Respondent from negotiating
separately in 1984 with member employers and non
member employers regarding the housing agreements
I find no merit in this latter argument A waiver will
not lightly be inferred by the Board but must be clear
and unmistakable Park Ohio Industries, 257 NLRB 413
(1981) It is immaterial that the waiver asserted here ap
plies to the bargaining representative of employers Em
ployers are entitled to the same presumption afforded
unions that they have not abandoned their statutory
rights
The record does not support the inference of a waiver
by PPIC Respondents business manager Foreman testi
feed that when he first proposed deletion of the most fa
vored nation clause that granted signatory employers the
benefits of any more favorable contract negotiated with
other employers and the portion of the recognition
clause whereby the Union agreed not to negotiate indi
vidually with unit employers during the term of the con
tract, he argued that Respondent needed flexibility to
SOUTHERN CALIFORNIA PIPE TRADES COUNCIL (PLUMBING INDUSTRY)
make adjustments in order for unit employers to be more
competitive with nonunion employers PPIC s response
at that time was negative and Foreman does not recall
the discussion on this item during the negotiating session
when agreement was reached
There is nothing in the record to establish whether
agreement was reached on these deletions as part of ad
mitted single employer unit bargaining or whether agree
ment was reached thereon after the alleged recreation of
the multiemployer bargaining unit In any event, I find it
is not sufficient to negate the unambiguous language
agreed on by the Respondent and PPIC that The Em
ployers and the Union by entering into this Agreement
intend to and agree to establish a single multi employer
collective bargaining unit At most the elimination of
the clauses may indicate that the parties contemplated
some separate negotiations on limited matters of particu
lar concern to the individual employer and/or Union
Such individual adjustments are not antithetical to the
concept of multiemployer multiunion bargaining See
Kroger Co, 148 NLRB 569 1964) Lathers Local 260 (As
sociated Plastering) 228 NLRB 1347 (1977)
As to Respondents position regarding the existence of
a multiemployer bargaining unit, it is well established
that a multiemployer unit is consensual in nature The es
sential elements are clear evidence that the employers
unequivocally intend to be bound in collective bargain
ing by group rather than by individual action and the
assent of the Union to such group bargaining Weyer
haeuser Co 166 NLRB 299 (1967) It is also well estab
lished that, as a general rule, an employer does not
become a part of a multiemployer bargaining unit by
merely adopting a collective bargaining agreement when
it did not actually participate in the negotiations either
personally or through an authorized representative Ruan
Transport Corp 234 NLRB 241 (1978)
Here PPIC was the authorized collective bargaining
representative of the member employers and the non
member employers in a multiemployer bargaining unit
As a group strategy the multiemployer bargaining unit
was abandoned by the employers prior to the commence
ment of the 1983 negotiations PPIC continued to repre
sent these employers, on an individual basis, in negotia
tions for the 1983-1986 master agreement On the final
day of negotiations, PPIC and Respondent agreed to the
recreation of the multiemployer bargaining unit This
agreement was memorialized in the contract by a provi
sion that reads inter aha
The Employers and the Union by entering into this
Agreement intend to and agree to establish a single
multi employer collective bargaining unit Any Em
ployer who becomes party to this Agreement shall
thereby become a member of the multi employer
collective bargaining unit established by this Agree
ment
Thus the language reestablishing the multiemployer
bargaining unit was negotiated by the authorized repre
sentative of the member employers and the nonmember
employers Further this language was specifically
brought to their attention through a written notification
281
from PPIC that accompanied the signature page jointly
drafted by PPIC and the Union, and titled letter of
agreement , sent to the member employers and non
member employers The letter of agreement states that
by signing it the 1983-1986 agreement shall be executed
In these circumstances, I find that the necessary consent
existed and that the multiemployer bargaining unit was
reestablished
It is immaterial that PPIC s bylaws provide that every
member grants PPIC complete and exclusive authority
to negotiate, conclude, and execute contracts and agree
ments, including collective bargaining , subject to written
ratification by each member on an individual basis This
language was in the bylaws at a time when the existence
of a multiemployer unit is undisputed and does not
negate the necessary element of consent I further find
that the employers in the appropriate multiemployer bar
gaining unit are (1) member employers and nonmember
employers who signed the letter of agreement adopt
ing the 1983-1986 master agreement and (2) employers
who became members of PPIC or authorized PPIC as
their collective bargaining representative after the 1983-
1986 master agreement was executed
As set forth above, in 1985 PPIC and Respondent
agreed to extend the 1983-1986 contract to June 30,
1988 In April and May 1987, Respondent proposed ex
tending the 1983-1988 contract to 1990 and adjusting the
wage increase to cover the extended period PPIC coun
terproposed additional modifications to the contract
After failing to reach an agreement with PPIC on June
19 1987 Respondent sent all signatories including those
represented by PPIC 6 a copy of a proposed 1983-1990
contract that had been drafted solely by Respondent and
that contained significant modifications never proposed
to PPIC Accompanying the contract was a letter that
described these changes and solicited the employers to
sign the enclosed agreement On July 31 1987 Respond
ent sent another letter to all signatories that set forth the
alleged advantages of the proposed agreement and ac
cured PPIC of failing to act in the best interest of the
employers and the industry Subsequent to the June 19
1987 letter at least five member employers resigned their
PPIC membership, and at least 13 member employers
and nonmember employers signed the 1983-1990 agree
ment
Based on the above I find that Respondent has violat
ed Section 8(b)(3) of the Act by soliciting member em
ployers of PPIC and nonmember employers represented
by PPIC to abandon multiemployer bargaining at a time
when withdrawal from the multiemployer unit would be
untimely and to adopt the midterm contract modifica
tions proposed by Respondent I further find that Re
spondent has violated Section 8(b)(3) by entering into in
dividual collective bargaining agreements with at least 13
member employers of PPIC and/or nonmember employ
ers who have designated PPIC as their exclusive author
ized collective bargaining representative within the mul
6 On May 28 1987 PPIC sent Respondent a list of the employers it
represented The list included 146 member employers and 73 nonmember
employers
282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tiernployer bargaining unit found appropriate Carpenters
Local 964 (Contractors Assn ), 181 NLRB 948 (1970)
CONCLUSIONS OF LAW
1 Respondent is and has been at all times material a
labor organization within the meaning of Section 2(5) of
the Act
2 PPIC, its member employers, and nonmember em
ployers who had designated PPIC as their exclusive au
thorized bargaining representative are and each of them
is and have been at all times material employers engaged
in commerce and in businesses affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
3 At all material times the following unit has been ap
propriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act
All employees of member employers of PPIC and
nonmember employers covered under the 1983-
1988 Master Agreement for the Plumbing and
Piping Industry of Southern California between
PPIC and Respondent who have designated PPIC
as their exclusive authorized bargaining representa
tive in a multiemployer bargaining unit who per
form work as defined in Section 3 of that agreement
constitute an appropriate multiemployer unit for the
purpose of collective bargaining within the meaning
of Section 9(b) of the Act
4 Since at least 1960, Respondent has been the repre
sentative for the purposes of collective bargaining of a
majority of the employees in the above described unit
5 Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(b)(3) of the Act by soliciting employers represented by
PPIC in the above described multiemployer bargaining
unit to abandon multiemployer bargaining at a time
when withdrawal from the muhiemployer unit would be
untimely and to adopt the midterm contract modifica
tions proposed by Respondent, and by entering into indi
vidual collective bargaining agreements with certain em
ployers represented by PPIC in the multiemployer unit
6 The unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has violated Section
8(b)(3) of the Act, I shall recommend that Respondent
cease and desist therefore and take certain affirmative
action in order to effectuate the purposes of the Act
Because I have found that Respondent has unlawfully
entered into individual collective bargaining agreements
with certain employers represented by PPIC in the mul
tiemployer unit found appropriate I shall recommend
that it rescind the individual collective bargaining agree
ments and make each member employer and non
member employer in the multiemployer bargaining unit
who is signatory to such individual collective bargaining
agreement whole for any financial expenditure made pur
suant to the 1983-1990 contract signed with Respondent
that it would not have been obligated to make under the
1983-1988 agreement between PPIC and Respondent
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed7
ORDER
The Respondent Southern California Pipe Trades Dis
trict Council No 16 its officers, agents, and representa
tives, shall
1 Cease and desist from
(a) Soliciting employers represented by PPIC in the
multiemployer bargaining unit found appropriate to
abandon multiemployer bargaining and to sign individual
collective bargaining agreements with Respondent at a
time when withdrawal from the multiemployer unit
would be untimely
(b) Giving effect to, or seeking to enforce the 1983-
1990 contracts executed in 1987 by Respondent and the
employers represented by PPIC in the multiemployer
bargaining unit found appropriate or any extensions or
renewals thereof
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Recognize PPIC as the exclusive collective bar
gaining representative in a multiemployer bargaining unit
of its member employers and nonmember employers who
have designated PPIC as their exclusive authorized col
lective bargaining representative in the multiemployer
unit found appropriate and notify PPIC and each of the
employers represented by PPIC that it will do so
(b) Honor and give effect to the 1983-1988 master
agreement and notify PPIC and the employers represent
ed by it in the multiemployer bargaining unit that it will
do so
(c) Rescind the individual 1983-1990 collective bar
gaining agreements entered into with individual employ
ers represented by PPIC and make each of them whole
for any financial expenditures made pursuant to the
1983-1990 individual collective bargaining agreement
signed with Respondent which it would not have been
obligated to make under the 1983-1988 agreement be
tween Respondent and PPIC
(d) Post at Respondents business office and meeting
places copies of the attached notice marked Appen
dix 8 Copies of the notice on forms provided by the
Regional Director for Region 21 after being signed by
the Respondents authorized representative shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to members are cus
tomarily posted Reasonable steps shall be taken by the
7 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
8 If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
SOUTHERN CALIFORNIA PIPE TRADES COUNCIL (PLUMBING INDUSTRY)
Respondent to ensure that the notices are not altered de
faced , or covered by any other material
(e) Forward to the employers represented by PPIC in
the multiemployer bargaining unit found appropriate, for
posting on their premises at their option , copies of the
notices signed by Respondents representative
(f) Preserve and, on request , make available to the
Board or its agents for examination and copying all pay
283
roll records, social security payment records, timecards
personnel records and reports, and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply