Tile Layers, Marble Masons & Terrazzo Workers, Local No. 17 Of California

National Labor Relations Board - Board Decisions

Mar 11, 1986

278 N.L.R.B. 924 (N.L.R.B. 1986)

924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tile Layers, Marble Masons & Terrazzo Workers,
Local No. 17 of California, affiliated with
Bricklayers and Allied Craftsmen International
Union, AFL-CIO and Rubin Tile and Marble,
Inc. and Florentine Company and Western Tile
Company, Inc. Cases 21-CB-8984, 21-CB-
9040, and 21-CB-9063
11 March 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 29 August 1985 Administrative Law Judge
James M. Kennedy issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed a brief in
reply to the General Counsel's exceptions.
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 as modified below, and to adopt the
recommended Order.
We agree with the judge that the Respondent
did not violate Section 8(b)(3) of the Act by failing
to bargain with the Charging Party Employers be-
cause the Charging Parties are each bound by short
form agreements with the Union which have not
expired. The Union, as found by the judge, has no
obligation to bargain with these Employers mid-
term in its contracts.' The employers voluntarily
adopted not only the 1983 agreement negotiated by
Bratti on behalf of the TCA, but also successor
agreements, for a period of 3 years. Moreover, the
Charging Parties executed contracts explicitly pro-
viding that the expiration of the current or any
succeeding labor agreements would not terminate
their 3-year contracts.
The General Counsel argues that the Union has
no present binding contracts with the Charging
Parties because the 1983-1984 TCA agreement has
expired and the Union's agreements with the
Charging Parties contemplated the adoption of suc-
cessor agreements which can never exist because
' In adopting this conclusion , however, we find it unnecessary to rely
on the judge's finding that the ex-TCA contractors had demanded that
the Union sign a hold-harmless agreement during the 1983 negotiations
because they did not want to risk antitrust liability , rather than because
the individual Employers wished to ensure that their Companies would
not be bound by any agreement reached by virtue of their having partici-
pated in the negotiations. Nor do we find it necessary to rely on any ar-
guable implication that Sutton Tile ever withdrew from the 1984 multi-
employer unit rather than merely disagreeing with Bratti regarding who
should negotiate the successor TCA agreement . Further, we find it un-
necessary to rely on the judge's finding that the Charging Parties insisted
on bargaining for contracts for themselves on a multiemployer basis.
no multiemployer unit now exists . The 1983-1984
TCA agreement adopted by the Charging Parties
was negotiated after 10 of 11 employers (including
the Charging Parties) withdrew from multiemploy-
er bargaining , and was therefore not a multiem-
ployer agreement. The Charging Parties must have
known that successor TCA agreements might not
be multiemployer agreements either. Yet, they
agreed to be bound by TCA agreements. In these
circumstances, we see no basis for concluding that
the Charging Parties would be bound to a TCA
agreement only if it is a multiemployer agreement.
Because the TCA continues to exist, it is not im-
possible for a successor agreement to be negotiated.
Thus, although there is obviously some dispute as
to who is entitled to represent the TCA (Bratti,
Sutton, Sutton and Bratti, or the TCA committee),
no matter which way that dispute is ultimately re-
solved the Charging Parties are obligated by the
terms of their agreements with the Union to honor
the TCA agreement as provided in their con-
tracts.2
We emphasize that the complaint does not allege
that the Union violated the Act by failing to meet
its bargaining obligations to the TCA. Nor does it
allege that the Union violated the Act by striking
the Charging Parties with an object of forcing
them to abide by the terms of the 1984-1987 Bratti
TCA agreement. The complaint alleges only that
the Union has breached its obligation to bargain by
refusing to bargain for new contracts with the
Charging Parties. Because we find that the Union
had no obligation to negotiate new agreements
with the Charging Parties within the term of its
short form contracts, it has committed no violation
in refusing to bargain with them. Accordingly, we
shall adopt the judge's dismissal of the complaint.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' We we no need to decide which TCA agreement the Charging Par-
ties are obligated to honor-the 1983 -1984 TCA agreement or a succes-
sor agreement . Nor are we foreclosing the possibility that the 1984-1987
Bratti agreement is in fact the TCA successor agreement . These are ques-
tions of contract interpretation which need not be decided in order to re-
solve the allegation that the Union unlawfully refused to bargain with the
Charging Parties.
Theodore R. Scott, for the General Counsel.
Richard D. Prochazka, of San Diego , California, for the
Respondent.
DECISION
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried before me in San Diego, California, on
278 NLRB No. 132
BRICKLAYERS LOCAL 17 (RUHM TILE)
April 30 and May 1 , 1985 . It is based on charges filed by
Ruhm Tile and Marble, Inc. on August 30, 1984;' by
Florentine Company on November 1 ; and by Western
Tile Company, Inc., on November 26 and amended on
December 18 . 2 As it now stands the consolidated com-
plaint alleges that Tile Layers, Marble Masons & Terraz-
zo Workers, Local No. 17 of California, affiliated with
Bricklayers and Allied Craftsmen International Union,
AFL-CIO (Respondent, the Union , or Local 17) has en-
gaged in certain violations of Section 8(b)(3) of the Na-
tional Labor Relations Act.
Issue
The principal issue is whether or not Respondent had
any duty to bargain for a new contract with the three
Charging Parties during 1984 in circumstances where the
three Charging Parties had previously signed "short
form" contracts which do not expire until 1986.
All parties were given full opportunity to participate,
to introduce relevant evidence , to examine and cross-ex-
amine witnesses , to argue orally and to file briefs. Both
the General Counsel and Respondent have filed briefs
and they have been carefully considered.
Based on the entire record , as well as my observation
of the witnesses and their demeanor , I make the follow-
ing
FINDINGS OF FACT
I. INTERSTATE COMMERCE
Respondent admits that Ruhm , Florentine, and West-
ern each annually derive gross revenues exceeding
$500,000 and during the past 12 -month period have pur-
chased and received goods and products valued in excess
of $50,000 directly from suppliers located outside Cali-
fornia . Accordingly, Respondent admits , and I find, that
each employer is engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that it is and has been at
all material times a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Until mid-1983 the three Charging Parties and eight
other tile contractors belonged to a multiemployer col-
lective-bargaining association which contracted with Re-
spondent. That multiemployer association, known as the
Tile Contractors Association of San Diego County, Inc.
(TCA), has multiple functions . It has not only bargained
on behalf of those employers with Respondent but it
continues to bargain on behalf of those same employers
with another labor union, Tile Marble & Terrazzo Fin-
ishers, Local No. 28 , in a separate multiemployer bar-
AD dates are 1984 unless otherwise noted.
$ The above cases were originally consolidated with Cases 21-CB-
9028, 21-CB-9031 , 21-CB-9032, and 21-CB-9103 . Those cases were set-
tled before hearing and severed.
925
gaining unit . Furthermore, the TCA appears to function
as an industry promotion group and is closely connected
to an industry - promotion group, the Ceramic Tile &
Marble Institute of San Diego , with whom it shares the
same executive director and the same office.
In 1983, shortly before Respondent 's TCA contract ex-
pired , 10 of the - I I tile contractors withdrew their bar-
gaining authority from the TCA thereby dissolving the
multiemployer association and leaving only one employ-
er, Peter Bratti Associates, Inc., as the sole TCA
member for the purpose of bargaining collectively with
Respondent . That, of course, did not affect TCA's multi-
employer status with respect to its bargaining relation-
ship with Local 28 or its status as an industry promotion
group . Indeed , all 11 employers remained TCA members
for the now limited purpose of bargaining with Local 28.
This left Bratti in an odd situation. In effect , it became
the TCA employer. It continued to demand that the
TCA actually bargain on• its behalf. TCA was obligated
under its bylaws to do so. Bratti , however, was not ap-
pointed to participate on the "committee" which the
TCA designated to bargain with Respondent. Instead the
committee was composed of Bratti 's competitors who
had just withdrawn from the association . Aware of a
possible conflict of interest between themselves and
Bratti , the committee-member employers demanded that
the Union sign a hold-harmless agreement relieving them
of antitrust liability if they negotiated on Bratti's behalf.
The Union refused to sign the hold -harmless agreement
and the committee thereon refused to bargain for Bratti.3
When the TCA refused to bargain with the Union on
behalf of Bratti or anyone else , Local 17 filed unfair
labor practice charges . They were resolved at a meeting
on April 21 , 1983 , when Bratti, the TCA , and the Union,
all represented by counsel , reached an agreement. They
agreed that Bratti could negotiate the new TCA contract
and the Union , as ' a quid pro quo, would withdraw its
unfair labor practice charge . Thus, Bratti and the Union
negotiated a new TCA contract, effective April 16, 1983,
to July 15, 1984. During those negotiations TCA Execu-
tive Secretary Gregory Mowat was present.
Subsequently , the 10 employers who had withdrawn
from the TCA signed short form agreements binding
them to the Bratti/TCA contract. Western Tile signed its
short form on July 9, 1983, Ruhm . on July 21 , and Flor-
entine on September 14. Unlike the Bratti/TCA agree-
ment, which had a duration of only 1 year, a short form
does not expire until 3 years from the date it is executed.
Thus, each of the contractors signed a short form lasting
until its anniversary in 1986.
Article I of the short form is a recognition clause in
which the employer recognizes the Union as the "sole
and exclusive collective-bargaining representative of its
employees who perform work" pursuant to the 1983-
8 It should be noted here that Bratti has no offices in San Diego but is
a large tile contractor located in Orange County . It regularly has projects
in San Diego County and elsewhere. As a matter of practice it adopts the
master agreement in whatever area it is working . Consistent with that
practice, it wished to be bound by the area master agreement in San
Diego, i .e., the TCA agreement, thus avoiding the direct responsibility
for bargaining in "foreign" countries.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1984 agreement between the TCA and Local 17 as exe-
cuted by Bratti "on behalf of the TCA. Article II obli-
gates the employer to accept and be bound by all the
terms and conditions of the Bratti/TCA agreement appli-
cable to the employer's operations within the Union's
traditional work jurisdiction and in its geographic area
"as recognized, modified and renewed from time to time
through collective-bargaining between the Union and the
TCA." It further states, "The employer approves of,
consents to, ratifies and agrees to be bound by all clauses
of the from time to time current labor agreement existing
between the Union and the Tile Contractors Association
of San Diego County, Inc., and further including any
amendments, modifications , extensions, changes, supple-
ments and renewals or successor agreements of said
agreement negotiated by the parties thereto." Finally, in
addition to the 3-year term, the short form concludes
stating, "The expiration of the current or any succeeding
`Labor Agreement' shall not serve to terminate this
agreement." The phrase "labor agreement" in the last
statement refers to the 1983-1984 TCA agreement as ex-
ecuted by Bratti.
B. The Events of 1984
From the time that they executed the short form
agreements until the expiration of the Bratti/TCA agree-
ment on July 15, 1984, Ruhm, Western, and Florentine
operated under their short forms as they incorporated
the Bratti/TCA agreement.4 On March 27, 1984, the
TCA conducted a meeting. Attending the meeting were
representatives of most of the ex-TCA contractors.
There is some testimonial dispute with respect to the
purpose of the meeting. Clearly, it was to appoint a ne-
gotiation committee. Florentine's Gordon Forsyth testi-
fied that it was to negotiate with both Respondent and
with Local 28 whose negotiations were upcoming. Brat-
ti's representative, General Manager Ted Mamula, who
was also present, testified that he could only recall that
the committee's purpose was to negotiate' with Local 28.
He does not recall any discussion of negotiating with Re-
spondent. It will be recalled that the TCA still existed as
a multiemployer bargaining group insofar as Local 28
was concerned. That association is still viable. It includ-
ed Bratti as well as most, if not all, of the contractors
who had withdrawn their' bargaining rights from the
TCA in its dealings with Local 17. Jack Sutton corrobo-
rates Forsyth. Yet, Mamula remembered: "As I recall the
conversation it' was basically that things were not
moving forward with Local 17 and Local 28 wanted to
get some things resolved, and they felt there was no
reason not to carry on and try to negotiate and settle
things with Local 28."
Mamula also remembered Forsyth saying, "We would
like to get things settled with 28 and we need to appoint
a committee." Forsyth then asked Mamula if he had any
4 It should be noted here that an additional contractor who signed the
short form, Jack E. Sutton Tile Co., was invited to join Bratti as a party
to the TCA agreement, not simply as an adoptor of that agreement.
Sutton accepted the invitation and operated directly under the
Bratti/TCA for a period of time. However, in mid-1984 Sutton repudiat-
ed that relationship and dropped out, once again leaving Bratti as the sole
TCA contractor.
problems with the committee dealing with Local 28.
Mamula responded that he did not.
The meeting concluded with the appointment of For-
syth of Florentine as the negotiating committee chairman
with Cecil Hunt of Maxey Tile and Jack Sutton as active
members. Don Pazny of Western and Al Ruhm of Ruhm
were alternates. Bratti's Mamula was not a member of
the committee.
The minutes of the meeting are silent with respect to
whether the committee was to negotiate with both
Locals or only one.
Respondent sent a reopener letter to the TCA on
April 27. It stated that pursuant to a provision in the
contract the letter was to be considered written notice of
the Union's intent to reopen the collective-bargaining
agreement "presently in effect between the Tile Contrac-
tors Association [Whose covered members are Jack E.
Sutton Tile Company and Peter Bratti Associates, Inc.]
and Local 17."5 The letter went on to state that the re-
opening in no way was to affect any other collective-bar-
gaining agreement presently in effect between Local 17
and various other employers.6 Respondent has taken the
consistent position that the TCA had bargaining author-
ity only for those two contractors. Although copies of
the reopener letter were not sent to the contractors who
had withdrawn their bargaining authority from TCA in
1983, those contractors nonetheless responded to it. Be-
tween April 30 and May 2, five contractors which had
resigned from the TCA-Local 17 arrangement in 1983
wrote identical letters to Elmer Dillon, Respondent's
business manager. Those four were Ruhm Tile, Floren-
tine, Western Tile, and Wheeler Tile and Maxey Tile.
Immediately thereafter Al Rea, the TCA president,
wrote Dillon on May 3 noting the new designations of
TCA as their representative and advised Dillon of the
composition of the committee which had been selected in
March. He concluded his letter by stating that the asso-
ciation intended to "terminate the agreement as, of July
15, 1984." He also stated that the association "wishes to
commence collective-bargaining negotiations at this
time" and requested transmittal of any proposals.
Respondent's attorney Richard Prochazka replied as-
serting that Local 17 recognized the Tile Contractors
Association as a representative of only Bratti and Sutton.
He observed that the other contractors were bound by
valid short form agreements which had yet to expire.
Those included, he said, Florentine, Western, Wheeler,
and Ruhni. He then advised that the only contractor
members eligible to vote or participate as part of the
multiemployer unit were Sutton and Bratti. He conclud-
ed stating that it was a probable violation of the antitrust
laws for employers whose firms would not, be bound by
the negotiations to represent those who would, citing
Mine Workers v. Pennington, 381 U.S. 657 (1965). He
5 At this stage , and for some time thereafter, the Union appears to
have been unaware that Sutton _ Tile was withdrawing from the
Bratti/TCA "group."
6 The characterization of Sutton and Bratti as the only two members-
of the TCA covered by that contact is consistent with earlier correspond-
ence, which began in 1983 covering various topics, all of which related in
some form or other to the composition of the TCA insofar as it was deal-
ing with Local 17.
BRICKLAYERS LOCAL 17 (RUHM TILE) 927
asked for a committee consisting of representatives of
Bratti and Sutton.
It should be noted here that Prochazka's position was
not unreasonable in view of the fact that in 1983 , as pre-
viously noted, a similar committee had demanded a hold-
harmless agreement from the Union in the same circum-
stance . Prochazka was aware of that and wished to avoid
the problem again . Indeed , Bratti's Mamula later articu-
lated the problem even more succinctly. He said that the
committee members could put Bratti in a strike situation
over which he had no control. He was concerned that
the committee might not represent Bratti 's interests, but
the Union could strike only Bratti, not anyone else.
Rea replied to Prochazka on May 14 asserting that
Bratti and Sutton had had representatives in attendance
at the appointment of the committee in March. He did
not, however, positively assert that Bratti had approved
the committee. He suggested a May 29 meeting.
This state of affairs triggered a May 24 unfair labor
practice charge by Local 17 asserting that TCA was re-
fusing to bargain with the Union because of a conflict of
interest between the committee members and at least
Bratti . (Sutton by then had abandoned Bratti and had
become a member of the TCA committee but the Union
did not yet know it.) On June 21 the Regional Director
dismissed Local 17's charge. It subsequently appealed the
dismissal to the office of the General Counsel, but on
July 31 the appeal was denied.
In the meantime Sutton , in June 20, wrote the TCA
(but not the Union) stating that he wished to be repre-
sented by it. This letter made his earlier fait accompli of-
ficial. Nonetheless, the switch was inconsistent with his
having earlier become bound by the Bratti/TCA agree-
ment . Even so, had the Union known , it could be uncon-
cerned for it still held a valid short form signed by
Sutton . Also on June 20 Committee Chairman Forsyth of
Florentine aware that the Regional Office was dismissing
the unfair labor practice charge , demanded that the
Union negotiate with the committee . He threatened
NLRB action unless negotiations proceeded forthwith.
Dillon replied once again that the TCA represented
only Sutton and Bratti and the control of those negotia-
tions, if given to employers not affected by their out-
come, breached the Pennington doctrine.
On July 18 TCA's president Rea sent a memo to all
employers wishing to negotiate with Local 17 (a copy to
Local 17) which said that the agreement between the
TCA and Local 17 had expired on July 15. He asserted
that Local 17 had refused to open negotiations and pro-
ceed with any collective bargaining. He noted that on
March 27 the committee had been appointed . He claimed
that the NLRB had directed Local 17 to negotiate with
the committee. He concluded stating , "If an individual
contractor or group of contractors, other than the duly
authorized and appointed negotiation committee , enters
into an agreement with Local 17 on behalf of the Tile
Contractors Association of San Diego County , Inc., that
agreement will not be recognized by this Association and
those contractors will be subject to disciplinary action
according to our association bylaws. No authorization,
expressed or implied, to bargain on behalf of this Asso-
ciation has been granted to anyone other than the negoti-
ating committee duly appointed as stated above.".
On July 20 Dillon transmitted by messenger a copy of
a proposed collective-bargaining contract to TCA's exec-
utive director, Mowat. In the cover letter he stated,
"The proposal is being submitted to the TCA as the rec-
ognized collective-bargaining representative of a multi-
employer group composed of Peter Bratti & Associates
and Sutton Tile." It further stated that the proposal was
being submitted directly to TCA without the need to re-
solve the issue of the composition of the TCA bargaining
committee . He asked that the proposal be submitted to
the two employers who were bound to the agreement by
virtue of their membership in the TCA, i.e., Bratti and
Sutton . Copies of Dillon's letter and proposals were si-
multaneously mailed to Bratti and Sutton.
On August 1 Forsyth responded by "taking excep-
tions" to the Union 's attempt to negotiate an agreement
of this importance through the mail. He stated that the
proposal requested certain points not allowed in the
TCA bylaws and reiterated that the negotiating commit-
tee was ready to sit down and enter into active negotia-
tions. He suggested a date of August 14.
Also on August 1 Sutton wrote the TCA stating that
he was confirming his previous authorization of the
TCA's negotiating committee to represent his firm as he
was concerned about the status of the expired Local 17
contract and the Union's asserted failure to bargain with
the TCA. He claims the proposal given to the TCA by
Local 17 on July 23 was completely out of line with
other recent trade agreements in the area and demon-
strated the "need for active negotiations to convey the
problems faced by the local contractors to the Union."
It was during this period that Mamula of Bratti real-
ized what . his problem was. On August 6 he wrote a
tersely worded letter to Forsyth and the TCA. In es-
sence he stated that he disagreed with the TCA's claim
that it had "unanimously appointed " the negotiating
committee on March 27 . He said that the parties "well
knew" that the committee had been appointed solely to
negotiate with Local 28 , not Local 17. He further stated
that the committee had not been appointed or authorized
to act on behalf of Bratti or Sutton . Furthermore, he said
the TCA constitution and bylaws precluded other em-
ployers from participating in that committee and claimed
that the committee had no legitimate role in Local 17 ne-
gotiations. Specifically , he stated that Bratti withdrew
any "purported authorization to negotiate with Local 17
allegedly conferred upon the committee."
Mamula said he had reviewed the Local 17 contract
proposal and he had a counterproposal , consisting of a
substantial modification of Local 17's offer, which he
was prepared to sign . He characterized it as the "TCA
agreement." He authorized the committee to sign the
agreement and forward it to Local 17; nonetheless, he
said the committee was not authorized to modify the
proposal in any manner . He noted in conclusion that the
previous TCA agreement had expired on July 15 and he
was aware that Local 17 could commence strike action
against Bratti at any moment , so time was of the essence.
Mamula stated that if the committee did not deliver a
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed copy to Local 17 by noon on Friday, August 10,
he would forward an executed copy of the agreement to
the Union himself. He then expressed annoyance over
Rea's threat of disciplinary action in his July 18 memo.
Also on August 6 Mamula wrote Sutton transmitting a
copy of his letter to the TCA, complaining of the TCA's
effort to bargain on behalf of the Bratti/Sutton/TCA
group. He repeated that neither Bratti nor Sutton had
ever authorized the committee to bargain on their behalf
with Local 17. He went on to describe Bratti's need to
have a current agreement and asked for Sutton's concur-
rence. He hoped Sutton would agree to the contract
which he was transmitting to the TCA. He set a deadline
of Wednesday, August 8, saying that unless Sutton had
objections he would sign the agreement and send it to
Local 17 as per his letter to the TCA.
Sutton immediately wired Mamula asserting, "All
statements in your letter of 8/6/84 to me are inaccurate.
I strongly oppose your position on all points of the pro-
posal you are submitting to Local 17 and advise you that
your proposal in no way reflects my position. I restate
without reservation that all negotiations on my behalf
will be done with the TCA committee appointment of
March 27, 1984." That wire was confirmed by a follow-
up letter.
On August 9 the committee conducted a meeting in
which it was concluded that Bratti should be expelled
from the TCA. Letters and followup wires were sent to
that effect. Also on that date Forsyth sent Bratti copies
of the NLRB General Counsel's denial of the Union's
appeal saying that the NLRB had "validated [the] com-
mittee appointed by this association." He then stated that
Bratti had no authority from the TCA to sign any pro-
posals with Local 17 on its behalf. He went on to deny
that the March 27 committee appointment was for the
purpose of negotiating only with Local 28. He conclud-
ed by stating that any document which Bratti may have
signed with Local 17 would only be on behalf of Bratti
and not the TCA.
Also on August 9 Forsyth sent Dillon a proposed
change in 'wages incorporating the old 1980-1983 agree-
ment, ignoring the intervening Bratti/TCA agreement.
Dillon replied on August 10 contending 'that TCA re-
mained the representative of only two employers and
that even if the others had changed their' minds and had
now designated the TCA as their collective-bargaining
representative such designations had no bearing on the
current negotiations. Dillon demanded that the TCA
present to the Union for its signature the proposal which
Bratti had transmitted on August 6. He contended that
the new proposal was evidence of bad faith and was ex-
actly the sort of split which had created the 1983 prob-
lems. The TCA never transmitted the Bratti-authored
counterproposal..
On August 10 Mamula and Dillon signed the- agree-
ment which Mamula had sent the TCA on August 6.
The contract states that it is between the TCA and
Local 17. Dillon then sent copies to all contractors who
had signed the short form in 1983. He asserted that
Mamula had executed the agreement on behalf of the
TCA as well as Bratti . Changes were summarized and a
request for acknowledgement was also sent.
On August 14 the TCA's executive secretary Mowat
sent memos to each of its members , including Bratti, stat-
ing that it had received notice that Local 17 had mailed
out an agreement which was "invalid and being improp-
erly characterized as a TCA agreement." Mowat also
noted that Bratti had been expelled and a different pro-
posal had been given to Local 17 on August 9. On
August 15 contending that it had not received its expul-
sion notice until that date, Bratti appealed its expulsion
from the TCA. That appeal was ultimately denied,
In the meantime, on August 21, Forsyth transmitted to
Local 17's Dillon a second collective-bargaining propos-
al. Again it referenced the 1980-1983 TCA agreement.
Dillon transmitted an immediate reply saying that Local
17 considered there was already in existence a valid col-
lective-bargaining agreement between Local 17 and the
TCA as executed on August 10-i.e., the new agreement
executed by Bratti. Accordingly, Dillon declined to bar-
gain further with the TCA for an association agreement.
He went on to say that the various employers who had
signed the independent short form agreements had
roughly 2 years remaining on those short forms and he
therefore saw no reason to meet with the TCA with re-
spect to them. He asserted that at the appropriate time
Local 17 would meet with the TCA with respect to each
of those short form signers who had designated the TCA
as its representative, but said that the Union would do so
only on an individual employer basis. He concluded that
since the Union had valid collective -bargaining agree-
ments with all the employers who usually bargained with
Local 17, he saw no further basis for discussion.
Shortly thereafter Attorney Stephen J. Schultz, repre-
senting Florentine, wrote Dillon asserting that there was
(1) no TCA multiemployer unit in existence, and (2) no
successor Tile Contractors Association multiemployer
agreement to replace the one which had terminated on
July 15. Accordingly, he demanded that Local 17 abide
by the expired 1983-1984 agreement, arguing that the al-
legedly unauthorized 1984-1985 agreement signed by
Bratti was not incorporated by the short form. He also
declared that Local 17 had engaged in an improper strike
by withholding men from Florentine because Florentine
would not put the new 1985 agreement into effect.
Union's Attorney Prochazka responded noting that the
short form agreement did,not require that the incorporat-
ed master agreement be a multiemployer agreement but
simply an agreement between the TCA and Local 17. He
said Local 17 had, a valid collective-bargaining relation-
ship with Florentine as the Short Form had adopted the
new TCA agreement as signed by Bratti.
On September 7 Thomas Puffer of the San Diego Em-
ployers Association, representing Western Tile Compa-
ny, wrote Dillon saying it was Western's position that
there was no longer a collective-bargaining agreement in
effect between it and Local 17. He said there was no
TCA contract and Western was therefore refusing to
honor a grievance which the Union was attempting to
process. He also demanded that Local 17 meet with
Western to consummate a new collective-bargaining
agreement.
BRICKLAYERS LOCAL 17 (RUHM TILE) 929
Attorney Prochazka replied once again observing that
Western had executed a short form which had adopted
the agreement . between Local 17 and the TCA. He also
noted that the short form had not expired . Finally, he
observed that Local 17 had no objection to individual
employers designating the TCA as their collective-bar-
gaining representative and that the Union would be will-
ing to meet with the TCA representative on Western's
behalf when the short form agreement expired.
C. Factual Summary
Thus, matters now rest in the following posture: the
three charging party employers have all signed short
form agreements which do not expire until various dates
in 1986 . The short form agreements specifically adopt
the 1983-1984 TCA agreement as signed by Bratti for
the TCA. They also incorporate any successor agree-
ment . Upon the expiration of the 1983- 1984 agreement
Bratti attempted to have the TCA negotiate a successor
agreement . (It hoped to include Sutton which, although
bound to a short form agreement , had been admitted as a
party to the 1983-1984 Bratti/TCA agreement) In the
meantime , the ex-TCA contractors had become disen-
chanted with the Bratti/TCA contract which they had
adopted . When Bratti asked the TCA to negotiate a new
agreement , the ex-TCA members redesignated the TCA
as their bargainer , appointed themselves the TCA bar-
gaining committee, and proceeded to act as if the multi-
employer association which had been in effect prior to
1983 had been reestablished .7 The Union opposed the ap-
pointment of such a committee , basically on the same
grounds that the committee itself had advanced in 1983
when it refused to represent Bratti-i.e., that the commit-
tee members had a direct conflict of interest with Bratti.
The ex-TCA members then attempted to withdraw the
authority of Bratti to bargain through the TCA for itself
and, apparently , Sutton .8 Thereafter, the ex-TCA con-
tractors declared that anything Bratti negotiated was a
breach of the TCA bylaws and therefore the contract
which Bratti had negotiated in the TCA's name was un-
authorized insofar as the TCA was concerned. Thus,
they declared that there was no successor agreement to
the Bratti/TCA agreement as contemplated by the short
form . In that circumstance , they argued they were enti-
tled to declare the short form agreements which they
had signed null and void and to insist that the Union
engage in bargaining anew with the TCA, apparently on
a new multiemployer basis . The Union contends that the
1984-1985 Bratti agreement had become the new master
contract and that the short form agreements had adopted
it. Thus, it declined to bargain with the ex-TCA mem-
Clearly the multiemployer unit could not be reestablished without
Local 17's consent . Retail Associates, 120 NLRB 388, 393 (1958 ); Evening
News Assn , 154 NLRB 1494, 1496 (1965); Arden Electric, 275 NLRB 654,
655-656 (1985); NLRB v. Bagel Bakers Council, 434 F.2d 884, 886 (2d
Cit. 1970). As Respondent has not consented the TCA committee's as-
sessment is incorrect.
s Sutton had by this time joined the ex-TCA members and no longer
wished to travel with Bratti. Until August 9 or 10 the Union and Bratti,
were unaware of Sutton's position change . A copy of Sutton's August 8
protest letter to Mamula was apparently sent to the Union . That letter
was their first notice.
bers on any basis whether individually or through a mul-
tiemployer group.
IV. ANALYSIS AND CONCLUSIONS
The question which must be asked here is what is it
that Respondent Local 17 did to breach the good-faith
bargaining obligation . The General Counsel answers the
question by asserting that Respondent "fragmented" the
multiemployer association . It makes a lengthy and con-
voluted argument in support of that conclusion . Howev-
er, I am unimpressed as the argument simply fails to fit
the facts. The only act approaching fragmentation oc-
curred in 1983 when 10 of the 11 TCA members with-
drew their bargaining authority from the TCA. The
Union is certainly not responsible for those employers'
decisions to timely withdraw from the multiemployer as-
sociation . Instead of the Union causing a fragmentation, I
see in 1984 the 10 ex-TCA members attempting to dis-
rupt a . collective -bargaining relationship between Re-
spondent and the only remaining true TCA member.
That disruption may not be cognizable under the Act,
but nonetheless appears to be factually accurate.
First, it is clear that the ex-TCA members in 1983 be-
lieved themselves to be running the risk of violating the
antitrust laws in negotiating a contract for Bratti. It was
for that reason that they sought a hold -harmless agree-
ment from Respondent : When Respondent refused to
sign, they refused to negotiate for Bratti . Consequently,
the TCA executive secretary and Bratti 's representative,
Mamula, reached an agreement with Respondent which
clearly was an authorized TCA agreement. It is of no
significance whatsoever that the TCA agreement was no
longer a multiemployer contract . Second , when the ex-
TCA members signed the short form agreements shortly
therafter, they adopted the Bratti/TCA agreement as the
master agreement and agreed to be bound by it, fully
aware that it encompassed only one employer . Third, the
short form signers did more than simply adopt the
Bratti/TCA agreement for its 1983-1984 term. They
went far beyond stating they agreed in advance to be
bound by any "amendments , modifications, extensions,
changes, supplements , and renewals or successor agree-
ments." Indeed , by agreeing to a 3 -year rather than a 1-
year term the short form signers specifically knew that
one or more successor agreements would be negotiated.
Moreover, they knew that the successor agreements
would be negotiated by Bratti as the only remaining
TCA authorized contractor.9
Thus, it makes little difference whether Sutton joined
Bratti or left Bratti . All the short form signers were con-
tent to let Bratti take the lead in future negotiations. Sut-
ton's conduct is, therefore , not an issue in this case.
Thus, the discussions which occured between Local 17
and various ex-TCA contractors during 1983 and 1984,
with respect to who the appropriate association members
were, is largely a dance by the short formers who found
themselves bound by a contract they wished to avoid.
On March 27, when the committee was appointed for
the 1984 negotiations , it seemed quite unlikely that its an-
9 Ted Hicks & Associates, 232 NLRB 712, 713 (1977).
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nounced purpose was to negotiate with Local 17. At that
time the Local 28 negotiations were about to begin. Both
Bratti and the other 10 were concerned with that. Cer-
tainly Mamula had no interest in permitting the short
form signers to become involved in Bratti 's negotiations
with Local 17; they had abandoned Bratti the year
before. Moreover, it seems unlikely that the short form
signers had a sincere interest in representing Bratti. They
may have had a concern in the sense that they were
afraid Bratti would negotiate a contract of which they
would not approve, but they were in no position to fairly
represent Bratti, having already rejected that obligation
the previous year while still having 2 years to go on
their own contracts. Yet it appears that those contrac-
tors, dismayed as they were, wished to regain control of
the TCA agreement from Bratti. If that was their real
purpose in demanding to negotiate with Local 17, they
were unlikely to tell Bratti . That certainly explains the
testimonial differences regarding the purpose of the
March 27 committee. The silence of the meeting's min-
utes regarding its purpose is therefore quite significant. I
find, therefore, that the ex-TCA members did not inform
Mamula that they intended to bargain with Respondent.
Bratti of course did not wake up to their purpose until
he observed that the committee was attempting to nego-
tiate with Local 17 while its members had current collec-
tive-bargaining contracts with it. Indeed, Mamula sud-
denly realized that the interests of the committee and
those of Bratti were widely divergent. Without a con-
tract Bratti could be struck, but neither the committee
member firms nor the other short form signers could be
as their contracts had not expired. The short form specif-
ically permitted the 1983-1984 agreement to live beyond
its stated expiration date until a successor agreement was
signed. Thus, if the Union chose to strike to obtain a
new contract , its only target could be Bratti . Bratti, obvi-
ously, needed to be able to control the course of negotia-
tions. Mamula was not on the committee and it was in
the committee's best interest to permit the Union to
strike Bratti. No matter what the outcome of the strike
the short formers would be winners. If Bratti withstood
the strike they would be equal to him competitively but
would not have suffered economic loss in the meantime.
If Bratti were unable to withstand the strike, it might
have been driven from the area altogether. That could
only benefit the short formers, both by the lessened com-
petition and by the fact that no successor TCA agree-
ment would have been signed , freeing them from the
successor clause of their short forms. Thus, the commit-
tee's motive becomes quite clear. They wished to pre-
vent Bratti from negotiating a successor master contract.
Indeed, the ex-TCA contractors had recognized the
conflict in early 1983 when they demanded the hold-
harmless agreement from Respondent . At that time they
did not wish to risk antitrust liability. However, in 1984
their attitude changed. They saw the conflict,could be
used to their advantage . They became intent upon sabo-
taging the Bratti/TCA arrangement . Mamula did not
recognize Bratti's danger until it was almost too late.
Thus, he sent the August 6 letter to clarify the situation
and to revoke the committee 's claim of right to negotiate
for it. That peace offering to the Union averted a possi- with the other short form signers
ble strike. Indeed, the bad faith of the TCA is quite ap-
parent by the committee's refusal to transmit Mamula's
contract proposal of that date and its later submission of
its own proposal without consulting Bratti. In fact the
TCA's claim that the NLRB had "directed" Local 17 to
negotiate with the committee is a mischaracterization of
the General Counsel's dismissal letter. As such, it too
smacks of bad faith, for the letter simply dismissed the
charge. It did not direct Local 17 to do anything. Fur-
thermore, the committee attempted to seize back the
TCA name from Bratti, declaring that Bratti had no
right to negotiate a contract with Local 17 under TCA
auspices . That declaration appears to have been designed
to permit the short formers to declare the 1984-1987
Bratti contract not to be the successor contemplated by
the short form. Thus, having laid the groundwork by the
first act, they then concluded the short forms had no va-
lidity and therefore they no longer had any contract
whatsoever with Local 17. That scenario is a simple case
of a wrongdoer benefiting from his wrongdoing.
Thus, I conclude that the misconduct seen here is not
that of the Union or Bratti but that of the ex-TCA mem-
bers who had signed short form agreements in 1983. In
1984 all Local 17 did was to continue to deal with Brat-
ti's designee, the TCA. When the TCA would not fairly
represent Bratti, and Bratti became aware of that fact, it
had every right to sign a new collective -bargaining con-
tract with Local 17 and to reject any claim of bargaining
authority from- the committee composed of TCA pre-
tenders.
Furthermore , despite the TCA's efforts to bar Bratti
from using its name , Bratti had every right to use it.
That right was acquired in 1983 when it was the only
contractor who had left its bargaining authority with the
TCA. The TCA expressly permitted it to use its name at
that time. Subsequently, the ex-TCA contractors adopted
that agreement by name. In so doing , they recognized
that they would be bound by successorship agreements
and knew and expected Bratti to be the only TCA con-
tractor so negotiating. Thus, in 1983 through the actual
permission of the TCA, as well as the expectancy of the
short form signers, the future use of the TCA , name was
expressly given to Bratti (probably so long as Bratti con-
tinued to use the TCA as its bargaining agent, which it
tried to do).
As Local 17 was aware of the factual development of
Bratti's authority to act with the TCA, it was within its
rights to insist on bargaining with Bratti through the
TCA for a successor agreement. To do otherwise risked
violating Section 8 (b)(1)(B). Furthermore, it was quite
proper of the Union to reject the committee's' demand
that it negotiate on behalf of Bratti for it knew Bratti
was not likely to have appointed the committee to repre-
sent it. The Union may well have believed that Bratti
had approved of a TCA official such as Mowat or per-
haps even Sutton as negotiators,1 ° but certainly not For-
syth, Hunt, Ruhm, or Pazny. These people were direct
competitors having unexpired collective-bargaining con-
10 Probably not Sutton once the Union learned he had aligned his firm
BRICKLAYERS LOCAL 17 (RUHM TILE) 931
tracts with Local 17. Furthermore, Respondent was well
aware of the antitrust ramifications of such an arrange-
ment. Accordingly, Respondent could, without breach-
ing the Act, sign an agreement with Bratti under TCA
auspices. Furthermore, because the short form agree-
ments have never expired either by length of duration or
as a matter of law, Respondent had no duty to bargain
midterm with those contractors. Thus, the short form
signers' demands that Respondent bargain during 1984
can properly fall on deaf ears . Section 8(d) of the Act so
provides. Respondent has committed no breach of the
bargaining duty and therefore has not violated Section
8(b)(3) of the Act.
In conclusion, I can find no act which Respondent
Local 17 has committed which is in breach of its duty to
bargain in good faith as defined by Sections 8(d) and
8(b)(3). It has valid contracts with the Charging Parties.
The complaint should be dismissed.
Although I have concluded that Respondent did not
violate Section 8(b)(3), I do not decide any question of
antitrust law except to observe the conflict of interest
presented by the committee and its attempt to sabotage
the successor master contract. Nor do I definitively
decide under which master agreement the short formers
should be operating. There may be contract law reasons
to conclude that the short formers are bound by the old
Bratti/TCA contract rather than the new Bratti/TCA
contract. The principal issue I have decided is that the
short form contracts 'have not expired. The question of
which master contract the short form signers should be
following is not specifically before me and I need not
decide it.
Based on the foregoing findings of fact, and the record
as a whole, I issue the following
CONCLUSIONS OF LAw
1. Ruhm Tile and Marble, Inc.,, Florentine Company
and Western Tile Company, Inc. are employers engaged
in commerce or in an industry affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Respondent Tile Layers, Marble Masons & Terrazzo
Workers Local No. 17 of California, affiliated with
Bricklayers and Allied Craftsmen International Union,
AFL-CIO ,is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has engaged in no violations of the Act
as alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed11
ORDER
The complaint is dismissed in its entirety.
11 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 m Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.