United Slate, Tile & Composition

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 632 (N.L.R.B. 1969)

632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Slate, Tile & Composition Roofers, Damp &
Waterproof Workers Association , Local No. 220
and Jones and Jones, Inc., and Roofing
Contractors Association of Southern California,
Inc. Cases 21-CB-2982, and 21-CB-3070
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On April 3, 1969, Trial Examiner Maurice M.
Miller issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices alleged in the
consolidated complaint and recommending that it
cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He further found that
Respondent had not engaged in certain other unfair
labor practices alleged in the consolidated complaint
and recommended that such allegations be
dismissed. Thereafter, the Respondent and General
Counsel filed exceptions to the Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, United Slate,
Tile & Composition Roofers, Damp & Waterproof
Workers Association, Local No. 220, its officers,
agents, and representatives, shall take the action set
forth in the Trial Examiner's Recommended Order.
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
MAURICE M. MILLER, Trial Examiner: Upon a charge,
first amended charge and second charge, filed and duly
served, the General Counsel of the National Labor
Relations Board has caused a Consolidated Complaint
and Notice of Hearing to be issued and served upon the
parties herein, under Section 10(b) of the National Labor
Relations Act, as amended. (Jones and Jones Inc., and
Roofing Contractors Association of Southern California,
Inc., sometimes designated as Complainants within this
decision , had filed their original and first amended charges
on August 17th and September 13, 1967, respectively.
Complainants' second charge was filed January 18, 1968.
General Counsel's Order Consolidating Cases,
Consolidated Complaint, and Notice of Hearing issued
March 15, 1968. Most dates cited within this decision
designate 1967 events, unless otherwise noted.) Therein,
United Slate, Tile & Composition Roofers, Damp &
Waterproof Workers Association, Local No. 220,
designated as Respondent Union herein , has been charged
with the commission of certain unfair labor practices
affecting commerce within the meaning of Section
8(b)(1)(B) and Section 8(b)(3) of the National Labor
Relations Act, as amended. 61 Stat. 136, 73 Stat. 519.
Copies of the Consolidated Complaint and Notice of
Hearing have been served upon respondent labor
organization. Within Respondent Union's duly filed
answer, certain factual matters set forth in General
Counsel's Consolidated Complaint are conceded;
Respondent Union, however, has denied the commission
of any unfair labor practice.
Pursuant to notice, a hearing with respect to the issues
was held at Los Angeles, California, on July 10 and 11,
1968, before me. The General Counsel and Respondent
Union were represented by counsel, Complainant
Association by its labor relations consultant. Each party
was afforded a full opportunity to be heard, to examine
and cross-examine witnesses and to introduce evidence
pertinent to the issues. Since the hearing's close, briefs
have been received from both counsel for the General
Counsel and Respondent Union; these have been duly
considered.
FINDINGS OF FACT
Upon the entire testimonial record, documentary
evidence received, and my observation of the witnesses, I
make the following findings of fact:
1. JURISDICTION
This case is concerned with certain collective bargaining
negotiations between Respondent Union and Roofing
Contractors Association of Southern California, Inc.
sometimes designated RCA, and sometimes as
Complainant Association , within this decision.
Complainant Association is comprised of various
member enterprises doing business as roofers ; it exists for
collective bargaining on behalf of its member firms and
negotiates collective-bargaining contracts for them with
various labor organizations, including Respondent Union
herein . During the particular collective bargaining
negotiations with which this case is concerned,
Complainant Association functioned - and continues to
function - specifically on behalf of some eleven
enterprises , engaged in the business of roofing and
reroofing residential , commercial , and industrial buildings
within Orange County, California . These business
enterprises have been designated , within the present
record:
Atlas Roofing Co. Santa Ana , Calif.
Christian & Letner Corp . Orange, Calif
Courtesy Roof Co. Westminster , Calif.
Earle W. Davis Rfg. Corp. Stanton , Calif.
177 NLRB No. 74
UNITED SLATE, TILE & COMPOSITION
Dion Roof Co. Orange, Calif.
Lee; Roofing Co. Costa Mesa, Calif.
Orange County Roofing Co. Santa Ana, Calif.
Own Roof Co., Inc. Santa Ana, Calif.
S & S Roofing Westminster, Calif.
San Marino Roof Co. Stanton, Calif.
Vance Roofing Co. of Fullerton, Calif.
Fullerton
Seven of these roofing firms were, throughout the period
with which this case is concerned, RCA members; four
were nonmember firms. The latter had, however, given
Complainant Association written "exclusive" rights to
bargain on their behalf, with appropriate labor
organizations, on matters involving wages, hours and
conditions of work. (These four nonmember firms, so the
record shows, were Atlas, Earle W. Davis, Lee, and S &
S Roofing; when negotiations with Respondent Union
began, Complainant Association designated them as
contractors who had given the trade group their "power of
attorney" for collective bargaining purposes.)
The Complainant Association's member firms which
thus participate in multiple employer bargaining - which
group includes, specifically, the seven member firms
previously designated - maintain their principal offices
and places of business within the State of California.
These firms - taken together - regularly purchase
supplies, valued in excess of $50,000 annually, which come
to them directly from out-of-state points; likewise they sell
products and furnish services, valued in excess of $50,000
yearly, to various California firms which, in turn, ship
their products, valued in excess of $50,000 per year,
directly to points outside the state designated.
(Respondent Union's answer - with reference to these
"jurisdictional" portions of General Counsel's
Consolidated Complaint specifically - reflects a
contention that both Atlas and S & S Roofing,
non-member firms, have been "out of business"
throughout the period with which this case is concerned.
Further, Respondent Union declares that Christian,
Courtesy and Orange County Roofing - regardless of
their purported RCA membership - are likewise
members of, and represented by, Roofing Contractors
Association of Orange County, Inc., another collective
bargaining group. No reliable, probative, or substantial
evidence has, however, been proffered for the record with
respect to these contentions. Further, in any event,
testimonial or documentary proof with respect thereto -
within my view - should not, and would not, so far as
can now be told, materially affect the Board's discretion
with respect to exercising statutory jurisdiction.) With
matters in this posture, I find that Complainant
Association herein, together with its various members who
participate in multiple employer bargaining - including
the seven member firms previously designated - have
been, throughout the period with which this case is
concerned , and are now , employers engaged in commerce
and businesses which affect commerce, within the meaning
of Section 2(2), (6), and (7) of the Act, as amended. With
due regard for jurisdictional standards which this Board
presently applies - see Siemons Mailing Service, 122
NLRB 81, 84; Insulation Contractors of Southern
California, Inc., 110 NLRB 638, in this connection - I
find assertion of the Board's jurisdiction in this case
warranted and necessary to effectuate statutory objectives.
II. THE LABOR ORGANIZATION INVOLVED
United Slate, Tile & Composition Roofers, Damp &
633
Waterproof Workers Association, Local 220, designated
as Respondent Union within this decision, is concededly a
labor organization within the meaning of Section 2(5) of
the Act, as amended. Throughout the period with which
this case is directly concerned, and since then, Business
Representative William D. Nuttall has - so I find -
represented Respondent Union, and has functioned as its
agent, within the meaning of Sections 8(b) and 2(13) of
the Act, as amended.
III. THE UNFAIR LABOR PRACTICES
A. Issues
General Counsel charges Respondent Union, herein,
with various unfair labor practices within the meaning of
Section 8(b)(1)(B) and 8(b)(3) of the statute. In connection
with his first case, General Counsel charges that
Respondent Union has: (1) Refused to recognize RCA as
the qualified bargaining representative for certain of its
various member firms, together with other roofing
contractors, within a defined multipleemployer bargaining
unit; (2) required that RCA members sign so-called
individual contracts; (3) restrained and coerced these RCA
member firms with respect to their selection of RCA as
their representative for various collective bargaining
purposes; and (4) persisted in demanding, until impasse
was reached, that Complainant Association herein when
functioning for its member firms - agree to furnish a
liquidated damages bond, before any collective -bargaining
contract would be signed.
Complainant Association's charge - with respect to
this first case - was settled by this Board's Regional
Office, purportedly, pursuant to a September 28
settlement document, signed in Respondent Union's
behalf, which includes a nonadmission of liability clause.
Thereafter, Complainant Association's second charge was
filed. The Board' s Regional Director, however, following
an investigation , set aside the settlement noted, contending
that Respondent Union's postsettlement conduct had
violated its terms. And Complainant Association's first
charge, herein , was thereupon reopened and consolidated,
for the purpose of hearing and determination, with that
body's second charge.
The second of these cases presents General Counsel's
several contentions: (1) That during bargaining,
subsequent to Respondent Union's execution of the Board
settlement agreement previously noted, Respondent Union
herein - though purportedly bargaining "with an open
mind" consistently with statutory requirements - was
really participating in surface, sham and bad-faith
bargaining , since its spokesmen were maintaining a fixed,
predetermined, position that it would accept no contract
with substantive terms different from those which had
been reached during some parallel, concurrent
negotiations , and which had been set forth within an
October 18 collective-bargaining contract signed by
Respondent Union, together with two sister locals, and
two other roofing contractor trade groups; (2) that this
contract contained certain nonmandatory provisions which
Complainant Association was being pressed to accept; and
(3) that Respondent Union, during these continued
postsettlement negotiations , refused to recognize RCA's
status as representative of the complete multiple employer
group which it claimed to represent.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regarding the totality of these contentions , Respondent
Union, substantially , declares ; That its negotiations with
Complainant Association , before the settlement agreement
previously mentioned did not flout any statutory mandate;
that postsettlement negotiations have been conducted
consistently with the settlement ' s requirements ; and that
Respondent Union' s general course of conduct, during
these continued negotiations , has not otherwise violated
the statute.
B. Facts
1. The general course of negotiations
a. Background
Following a period of some 20 years - during which
collective-bargaining relationships within the field with
which this case is concerned were maintained upon a
multiemployer , multiunion basis - the parties privy to
that relationship negotiated and signed a Master Labor
Agreement covering the period between August 15, 1963,
and August 15, 1967. This contract was negotiated by and
between Roofers Union Locals 36 and 72, on the one
hand, and Roofing Contractors Association of Southern
California, Inc. (designated Complainant Association or
RCA herein) and Roofing Contractors of Orange County,
Inc. (designated RCAOC herein), on the other hand.
Therein, both signatory trade groups - functioning for
and on behalf of their respective members and those firms
which had separately executed authorizations for one
association or the other to represent them in labor
relations - recognized the designated locals as sole and
exclusive bargaining representatives for roofing contractor
workmen within a three-county geographical area - Los
Angeles, Ventura and Orange Counties specifically.
Reciprocally, the designated locals recognized each
contractors association named , as sole and exclusive
bargaining representative for its member firms , plus any
further roofing contractors, within Los Angeles, Ventura
and Orange Counties particularly , whom these
associations might severally be authorized to represent,
pursuant to contract or law . (These factual findings derive,
partially, from certain stipulations proffered and received
in connection with a related Board proceeding herein,
United Slate, Tile & Composition Roofers, Damp &
Waterproof Workers Association, Local No. 36 (Roofing
Contractors Association of Southern California, Inc.), 172
NLRB No. 249 . Beyond these stipulations , and factual
determinations based thereon, with respect to which I take
official notice , my factual findings derive from the present
record .) During November 1965, Respondent Union
(Local 220) herein received a new charter from its parent
body; Local 36' s former geographical jurisdiction within
Orange County was ceded to this newly chartered local.
Thereupon , Respondent Union sought recognition under
the Master Labor Agreement previously noted. Because of
Local 36's objections, however, Respondent Union was
never granted recognition as a contract party.
Despite this, Respondent Union, since January 1, 1966,
has maintained and operated the Roofers Union Orange
County hiring hall. Roofing contractors, including RCA
member firms, have looked to Respondent Union's hall
for men, when performing Orange County work.
Some time before the Master Labor Agreement's set
termination date, Locals 36 and 72 gave timely notice to
both signatory trade groups, their respective member
firms, and various separate signatory contractors : (a) That
they should consider the Master Labor Agreement
terminated as of its stated anniversary date; (b) that both
locals proposed to negotiate subsequent contracts upon an
individual contractor basis, rather than upon a
multiple-employer basis; and (c) that they (the locals) were
ready to bargain for new contracts. Respondent Union
(Local 220) herein - presumably because it shared no
formal contractual privity with either trade association
designated - submitted no comparable notice.
On March 22, therefore, Complainant Association
notified Respondent Union that it would represent its
Orange County members "in all Labor Relations matters"
with any labor organization claiming to represent their
workers. Respondent Union was further advised that:
This Association and its members will not be bound by
any Agreement negotiated by any other Association,
group of employers and/or individual employer. We are
ready and willing to commence negotiations for our
members and any other employers who give us their
Collective Bargaining rights to negotiate on their behalf
before a final Agreement is reached with your Labor
organization . [Emphasis supplied.]
On June 9, Respondent Union acknowledged Complainant
Association's March 22 letter claiming to represent
"certain Roofing Contractors whose main offices are
located in Orange County" within Respondent Union's
newly fixed geographical jurisdiction; RCA was notified
that Respondent Union's representatives would be
"pleased to meet" for the purpose of beginning
negotiations . RCA's reply, dated June 13, suggested June
19 for the commencement of talks, and promised a list of
Orange County contractors represented; Respondent
Union was further advised that Complainant Association
would consider any contract reached binding on any
"other" contractor represented who might work within the
county in the future.
Meanwhile - sometime during the concurrent
negotiations, which Roofers Union Locals 36 and 72 had
likewise commenced, looking toward the Master Labor
Agreement's revision or replacement-another contractor
association had entered the field, participating in such
negotiations for its member contractors, separately. This
was Union Roofing Contractors Association, designated
URCA herein.
With matters in this posture, some time before the
Master Labor Agreement's set termination date, there
were - so the present record suggests - three
contractual negotiations in progress . For present purposes,
these several concurrent negotiations may conveniently be
designated and summarized as follows:
1. Negotiations between Roofers Union Locals 36, 72
and 220 , bargaining jointly, and two separate trade
groups , (U RCA and RCAOC), with the latter
representing their respective "individual contractor"
member firms plus "other individual contractors" who
might thereafter become contract signatories. The
record suggests that these negotiations were concerned
with contract proposals designed to govern wages, hours
and conditions of work for workmen, hired by the
various contractors, within the complete three-county
territory previously designated . The negotiators did,
finally, reach a contractual consensus; their October
18th contract drafts were signed by representatives of
all three Roofers' Union locals, and representatives of
both trade groups - for and on, behalf of their several
contractor members and others - who , likewise,
subsequently signed.
UNITED SLATE, TILE & COMPOSITION 635
2. Negotiations between Roofers Union Locals 36 and
72, on the one hand, and Complainant Association on
the other , calculated to fix wages , hours and working
conditions for workmen , hired by various (RCA)
member contractors , when they work within Los
Angele's and Ventura Counties particularly. When the
present case was heard , these negotiations had not yet
been concluded.
3. Negotiations between Respondent Union (Local 220)
herein , on the one hand , and Complainant Association,
on the other, with the latter representing various
member firms doing business within Orange County
particularly, together with four Orange County
non-member firms, previously herein designated. These
negotiations - with which this case is directly
concerned - will be detailed and reviewed , within this
decision.
The particular negotiations with which this case is
concerned , noted , began on June 19th, and continued
through 21 joint sessions ; following January 11, 1968, they
were temporarily suspended , without a contractual
consensus reached . During April, May, and June,
thereaftet, three joint bargaining sessions - possibly
followed by more since the present hearing 's close - were
convened. No final agreement has, however , thus far been
reached.
b. The negotiations summarized
On June 19, when the negotiations with which we are
concerned were convened for the first time, RCA
proffered a letter listing "the contractors who are
members of our Association and/or contractors who have
given their Power of Attorney to this Association" for
collective-bargaining purposes . (Previously, within this
decision , reference has been made to this list, which
included seven member contractors with Orange County
places of business , and four nonmember firms).
Respondent Union' s representatives had no complete
proposal to present . The negotiators , therefore, began to
review their soon-to-be -terminated master contract, while
Respondent Union' s spokesmen suggested their
"thinking" with regard to possible changes . Some 14 of 22
substantive contract articles were reviewed, or passed for
later discussion.
During their second session , July 10, the parties agreed
"not to get involved" with respect to economic
negotiations , until their other contract language had been
settled. 1CA then presented its proposed Master Labor
Agreement revision, exclusive of proposals with respect to
wages and fringe benefits. The proposal' s preamble, plus a
suggested "Bargaining Representative" paragraph, and
some 12 substantive provisions , were reviewed.
When the parties met for their third session , July 17,
Respondent Union' s negotiators declared that RCA's
previously proposed contractual language could not be
considered acceptable ; they suggested that negotiations
proceed, primarily, through their current contract
"paragraph by paragraph " with the parties free to make
whatever " modest changes" they might consider
necessary . This procedural suggestion was finally
accepted. The complete contract was then reviewed. Some
substantive provisions were - so I find - agreed upon,
while others were debated or held for future discussion.
Thereafter, between July 26 and August 11, both dates
inclusive , five further joint bargaining sessions were held.
Various contractual proposals were debated . With respect
to some , consensus was reached ; with respect to others
disagreements were noted . (Within this period,
Respondent Union was notified, further, that RCA would
be representing one more Orange County contractor,
Don's Roofing Company of Orange, California, during
the negotiations then current.) The record warrants a
determination that, following their August 11 session,
RCA gave Respondent Union a so-called package offer
which Local 220's membership subsequently rejected.
Then, discussions regarding a possible master contract
extension - with retroactive wages and benefits - proved
fruitless.
On August 15, the parties' master labor contract
reached its previously set termination date; the record
warrants a determination , which I make , that Respondent
Union's Orange County membership, thereupon, ceased
work. Within a letter - dated that day - dispatched to
Respondent Union' s negotiating committee, RCA
declared its willingness to continue negotiations looking
toward a written contract; pointed out that work was
available for Respondent Union's striking membership;
promised that, should any more favorable contractual
consensus be reached during the concurrent negotiations
then in progress between Locals 36, 72 and Complainant
Association herein, such more favorable terms would be
granted Respondent Union's membership retroactively;
and requested that Respondent Union ' s committeemen
submit further written proposals.
On August 16, a previously scheduled joint bargaining
session - which Commissioner Allen of the Federal
Mediation and Conciliation Service had been requested to
attend - was canceled by Respondent Union on short
verbal notice , subsequently confirmed by letter.
The following day, Complainant Association's first
charge in this consolidated matter (21-CB-2982) was filed.
Therein, Respondent Union was charged with violations of
Section 8(b)(1)(B) and Section 8(b)(3) of the statute, based
upon claims: -
1. That it had refused to recognize RCA's status as
bargaining representative for a multiple-employer
bargaining unit.
2. That it was requiring RCA member firms to sign
separate contracts.
3. That it had restrained and coerced RCA member
firms , in connection with their selection of that body as
their collective -bargaining representative.
4. That it was persistent in demanding - to the point
of impasse - that RCA accept a contractual provision
for a liquidated damages bond as a condition precedent
to any final agreement.
The parties , nevertheless , continued to meet. Between
August 18 and September 18, both dates inclusive, three
sessions were held . During the last, Respondent Union
reported that RCA's most recent contract proposals had
been rejected by Local 220' s membership , purportedly
because they differed too widely from various proposals
then being considered and reviewed by Locals 36, 72, and
220, URCA and RCAOC, within their separate,
concurrent negotiations.
On September 28, Complainant Association's first
charge was purportedly settled , with an agreement which
contained a so-called nonadmission clause . Respondent
Union , nevertheless , promised to post - and subsequently
did post - Notices to All Members forswearing the
various unfair labor practices , previously noted, with
which it had been charged.
Shortly thereafter, on October 18, contractual
consensus was reached between Roofers Union Locals 36,
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
72, and 220, on the one hand , and URCA, together with
RCAOC, on the other hand ; this contract , so the record
shows, covered workmen hired by member contractors of
both designated trade groups, within the complete Los
Angeles, Ventura, and Orange County geographical area.
On October 23, during their next bargaining session,
Respondent Union presented RCA with a substantially
complete written contract proposal , lacking merely a
preamble and signature page. This proposal was - so I
find - identical in terms with the contractual consensus
which had dust been reached during Respondent Union's
concurrent three-county negotiations , so recently
concluded . RCA's representatives noted , further, that
Respondent Union 's complete proposal paralleled a
proposal which Locals 36 and 72 had most recently
presented , during their concurrent negotiations with
Complainant Association herein , for individual member
contractors working in Los Angeles and Ventura Counties
particularly Respondent Union was thereupon , verbally
charged with violating the September 28 Board settlement,
previously noted . Respondent Union, replying , questioned
RCA's representative status; Local 220's committeemen
declared that some Orange County contractors, whom
Complainant Association currently professed to represent,
were - because of their claimed concurrent RCAOC
membership - contractually already bound , since that
trade group had signed the October 18 contractual
understanding with Locals 36, 72, and Respondent Union
herein . Despite this , Respondent Union' s negotiators
requested their proposal 's review . This was, so the record
shows, done.
Between October 23, 1967, and January 11, 1968, both
dates inclusive , some ten joint bargaining sessions were
held. Following the last session - for reasons which will
be reviewed and discussed , further , within this decision -
the Complainant Association 's negotiators concluded that
Respondent Union was not, so far as they were concerned,
bargaining in good faith. On January 18th, the second
charge with which this case is concerned was, therefore,
filed.
c. The settlement agreement 's cancellation and
subsequent developments
With matters in this posture, the present narrative
must , briefly, digress. Certain subsequent developments -
which clearly merit their characterization as both relevant
and material herein - require discussion.
San Marino Roof Company, a California corporation
- which currently maintains RCA membership - has its
principal headquarters and place of business in San
Gabriel, Los Angeles County; however, within Stanton,
Orange County, the corporation has, since August 1966,
maintained a branch location.
San Marino , since it holds and has held RCA
membership throughout the period within which this case
is concerned , was formerly considered privy to
Complainant Association's 1963-1967 master contract
previously noted. Under that contract , the corporation's
Stanton shop was considered substandard, since it did not
conform with certain contractual requirements for such
places of business . (Had various Roofers Union locals not
then " recognized" the Stanton location as conforming to
contractual standards , it would have been assumed - for
purposes of master contract administration - that all San
Marino employees were working from the firm's San
Gabriel shop. This would have meant that - whenever
they worked more than 25 miles from that shop - they
would have been privileged to claim subsistence and travel
pay.) Nevertheless , despite its physical deficiencies, San
Marino ' s Stanton shop had been "recognized" for
contract purposes ; hence, it had been considered the firm's
base point for computing whatever subsistence and travel
pay obligations there may have been, connected with San
Marino's Orange County work
When the Master Labor Agreement was terminated,
San Marino ' s workmen - together with others within the
three-county territory with which we are concerned -
went on strike . They remained on strike until San Marino,
among others, signed a so-called separate interim contract
with Respondent Union herein.
Thereafter - consistently with requirements set within
the Regional Office settlement agreement previously noted
- these separate " interim " contracts were invalidated for
RCA members, San Marino included . The corporation
was, I find , so notified.
However , some time thereafter - during January,
1968, presumably - Business Representative Nuttall of
Respondent Union telephoned San Marino ' s president,
Thomas Aleto, several times; Aleto was requested to sign
the previously mentioned October 18th contract, then
newly negotiated between Locals 36, 72 and 220, on the
one hand , and two trade associations , previously
designated
Finally, on Friday, January 26, or Monday, January
29, Nuttall telephoned Aleto, with word that - unless he
signed the contract suggested - Respondent Union would
no longer " recognize" his Stanton location (This factual
determination , with respect to Nuttall' s communication,
derives from Aleto' s prehearing statement , signed and
subscribed by him February 28, 1968. While a witness,
Aleto testified that Nuttall had - during some prior
conversations - mentioned the possibility that
Respondent Union might withdraw contractual
"recognition" previously conceded regarding San
Marino ' s Stanton shop ; he (Aleto) declared , further, that
- during Nuttall 's late January call - he was merely
requested , once more , to visit Respondent Union's office
and sign a separate contract with Local 220, but that no
threat regarding any withdrawal of recognition , for San
Marino ' s Stanton location , was made. When confronted
with his prehearing statement - which contained a
reference to Nuttall 's purported threat during their
January 26/29 conversation - San Marino ' s president
proffered a repudiation contending , ( 1) that the Board
representative who prepared the statement had incorrectly
reported , as part of one conversation , remarks which
Nuttall had made during some prior, separate,
conversations , and (2) that he (Aleto) had signed the
statement without a clear conception regarding its
meaning or import . The witness ' purported repudiation
regarding his statement , however , was proffered in such a
halting, embarrassed , unconvincing manner , that I find it
not worthy of credit . To the contrary, I find his February
28th statement - which General Counsel submitted for
the record without limitations or qualifications regarding
its purpose - fully worthy of credence . With matters in
this posture - so I find - Aleto' s prehearing statement
may be received and considered as substantive evidence,
with regard to the substance of Nuttall's late January
remarks. California Statutes of 1965, Chapter 299,
effective January 1 , 1967; Evidence Code: Article 3,
"Prior statements of Witness," Section 1235,
"Inconsistent Statement"; Section 770, "Evidence of
Inconsistent Statement of Witness." See Starlite
Manufacturing Company, 172 NLRB No. 2, for a full
UNITED SLATE, TILE & COMPOSITION 637
discussion of the statement ' s admissibility generally, under
Section 10(b) of the Act, Rule 43(a) of the Rules of Civil
Procedure for United States District Courts, and the State
of California's Evidence Code.) Aleto, then had some
contract work in Irvine, Orange County, within San
Marino's permissible Stanton branch travel area, for
which he would have had to pay subsistence and travel
time, hid he been compelled to use his San Gabriel
headquarters for base point computations. On January 30,
1968, Aleto signed the proffered separate contract,
pursuant to Nuttall's request.
Following his investigation with respect to Complainant
Association's second charge herein, this Board's Regional
Director concluded that Respondent Union herein -
when it compelled San Marino to bypass its previously
designated bargaining representative and sign a contract
separately through threats of economic pressure - had
flouted the Board's settlement terms previously noted.
Consistently with this determination, the Board's Regional
Director, on March 14, 1968, withdrew his previously
recorded concurrence with respect to the settlement. Then,
on March 15, 1968, consistently, the Regional Director
reopened Complainant Association's first case,
consolidating it with that body's second charge.
The consolidated complaint herein was, thereupon,
issued; thereby, General Counsel has placed in question
Respondent Union's complete course of conduct,
throughout the particular negotiations with which we are
herein concerned.
2. Respondent Union's specific demands
The summary narrative just concluded - regarding the
general course of negotiations with which this case is
concerned - will, hopefully, provide sufficient context,
with relation to which Respondent Union's particularized
bargaining demands may be further considered, and with
relation to which its general bargaining posture may be
judged. The full range of negotiations - within my view
- need not presently be reviewed in detail. Rather, the
discussion which follows will be limited to some of
Respondent Union's specific proposals and statements of
position, which General Counsel has challenged herein.
a. Respondent Union's position on multipleemployer
bargaining
On July 10, so the record shows, RCA's negotiators
proffered their first complete contract proposal;
substantially, Complainant Association submitted a
significantly modified Master Labor Agreement, rewritten
to reflect changes dictated by the proposal's limited scope.
The document's Preamble designated Complainant
Association as contracting party "for and on behalf of its
present, and any future members, as well as firms who
have executed written authorizations for the Association
to represent them" with respect to labor relations matters.
Consistently, Respondent Union would have been required
to recognize Complainant Association herein "as the sole
and exclusive bargaining representative for its Members
and such others of the Roofing Contractors of [Orange
County] as this Association [is] authorized by this
Agreement and/or by law to represent" pursuant to the
contract' s terms.
On July 17, Respondent Union's negotiators - while
reporting their rejection of Complainant Association's
proposed language generally - noted their acquiescence
with respect to RCA's rendering of the contract's
preamble and bargaining representative definitions. On
August 1st thereafter - when the subject was next
discussed - the Respondent Union's negotiators, once
more , noted the acceptability of Complainant
Association's preamble language; with respect to the
following "Bargaining Representatives" paragraph, the
parties agreed to delete any reference to RCA's
recognition as "sole and exclusive bargaining
representative" for other (nonmember) roofing
contractors. With these changes - so far as the record
shows - the contractual language was then considered
settled.
With matters in this posture, the Master Labor
Agreement's termination date was reached. When the
negotiators convened their first joint bargaining session
thereafter - August 18, 1967 - several Local 220
spokesmen declared, despite their prior consensus, that
Respondent Union had never recognized Complainant
Association specifically "in writing" as representing a
multiple-employer bargaining group. RCA's negotiators
were served with a document, signed by Local 220's
chairman , which read as follows:
This is to inform you that Local No. 220 of Orange
County, California, does NOT recognize the Roofing
Contractors Association as a multi-employer bargaining
unit.
Questions were raised regarding the firms which RCA
purported to represent. Further, Complainant Association
was requested to consider "joint" negotiations - which
would, presumably, have required all three Roofers Union
locals to meet and confer with URCA, RCAOC, and
Complainant Association together. This suggestion was
rejected.
Previously, within this decision, reference has been
made to the short-term roofers' strike - throughout Los
Angeles, Ventura, and Orange Counties particularly -
which followed the Master Labor Agreement's August
15th termination. Within a short time following that date,
Locals 36, 72 "and/or" 220 prepared a so-called interim
contract, which various individual contractors desiring to
resume work were separately requested to sign. With
respect to Respondent Union's Orange County
jurisdiction, particularly, the record warrants a factual
determination - pursuant to stipulation - that, before
any locally based contractors were permitted to sign their
"interim" contracts, they were likewise required to sign a
companion document, which read as follows:
TO ROOFERS UNION LOCAL NO. 36, 72
AND/OR 220 OF LOS ANGELES, LONG BEACH
OR SANTA ANA, CALIFORNIA.
Gentlemen:
The undersigned contractor requests that Local Union
No. ..., bargain with him individually in connection with
negotiations for a roofing and waterproofing collective
bargaining agreement.
The substantive agreements, pursuant to which work was
to resume, provided for continued observance of the
terminated Master Labor Agreement's terms, save for
some modification with respect to wages and fringe
benefit payments; the contracts were to be effective for
ninety days following their dates of execution, or until
such time as a regular long-term collective-bargaining
agreement had been finally negotiated and signed,
whichever came first.
Shortly thereafter, pursuant to Respondent Union's
September 28 settlement agreement (21-CB-2982) with the
Board's Regional Office, previously noted, these so-called
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interim separate contracts with individual roofing
contractors were , largely, cancelled . (Respondent Union's
posted "Notice to All Members", drafted pursuant to the
settlement agreement , promised that no effect would be
given these separate " interim" contracts with eleven
designated Orange County contractors represented by
RCA herein, except for those particular separate contracts
- not specified - which had been executed by RCAOC
members, for whom RCAOC had authority to bargain
before August 18th . The present record , however , provides
no reliable , probative or substantial evidence that this
purported "exception" was really applicable , with respect
to any of the 11 firms which Complainant Association
herein claimed to represent .) Yet - despite this
commitment - when the parties met for their next joint
bargaining session , October 23, 1967, Respondent Union's
spokesmen questioned "just who" the Complainant
Association represented among Orange County
contractors . Testimony proffered by RCA 's executive
director , David Van Eyk, in this connection - which
stands in the record without contradiction - reads as
follows:
The Union again questioned the people that we
represented , the contractors that we represented in
Orange County, questioning whether we actually did
represent them or not . . . Well, in some instances they
claimed that the same people were shown as being
represented by the Orange County Association. They
never showed us any evidence of this, but they indicated
that this was the case ... They mentioned that some of
the people we had listed were no longer in business and
that some one or two that we had listed , that they had
told them that they weren ' t represented by us.
During this session , further , Respondent Union presented
a proposed contract - previously mentioned within this
decision - containing neither a preamble nor recognition
clause ; Local 220 spokesmen declared that this material
had not yet been prepared.
When the parties ' subsequent October 30 session began,
Respondent Union submitted a somewhat restrictive
preamble proposal which would have defined the proposed
contract as one which RCA had negotiated, "on behalf of
its members who are not members of any other
association of roofing contractors", with Respondent
Union herein . Complainant Association ' s chairman
counter-suggested that the parties adopt both the
Preamble and "Bargaining Representatives " language of
their terminated contract , striking therefrom all references
to Locals 36 and 72, RCAOC, and Los Angeles and
Ventura Counties, with necessary grammatical changes
Following considerable discussion , this suggestion, so the
record shows, received Respondent Union' s concurrence.
The consensus thus "finally" reached , with respect to
this matter , was - seemingly - confirmed on November
20, when the parties next met. Respondent Union further
consented to add a provision which RCA spokesmen
suggested , (art. V, par . 1-B), reading as follows:
The exclusive bargaining rights shall be vested in the
signatory parties to this Agreement and any extensions
and renewals thereof.
On November 27, however, this presumptive consensus
was strained. George Evans , Roofers Union International
vice president , again questioned RCA's representative
status. Executive Director Van Eyk' s notes regarding this
session - which were received without objection and
which have not been testimonially contradicted - reflect
the parties ' discussion as follows:
Mr Evans, of the Union , asked us for a list of the
contractors we represented in Orange County. We
explained that this list had been submitted early in our
Negotiations with a supplement adding one contractor
shortly thereafter, and to date there are no changes.
The Union then commenced a harangue as regards who
we represent , stating that some of the people on our list
disclaimed our representation , others not being in
business , etc . . . The Union insisted upon seeing our
authorization on those contractors we represent. It was
finally agreed that Mr. Evans, possibly in the company
of Mr. Newman , would in the next couple of days,
come in to our office to visually inspect such
authorizations . They further insisted on adjourning the
Meeting until they accomplished their inspection.
On December 4, however, without any reference to their
prior "inspection" demand , Respondent Union's
spokesmen requested deletion of the supplementary
"exclusive bargaining rights" language (art. V, par. 1-B)
which they had previously accepted. RCA countered with
a suggestion that such a deletion would be acceptable,
provided Respondent Union would agree to designate the
proposed contract ' s preliminary " Bargaining
Representatives" paragraph Article I, renumbering the
following articles consistently therewith; Respondent
Union refused . Local 220' s negotiators were then chided,
with a comment that it would be impossible to reach a
contractual consensus if they continued to "back off"
from previous commitments Respondent Union, then,
suggested the subject be temporarily dropped.
When the subject was next raised - during the
December 11 bargaining session - Respondent Union
reaffirmed its desire to delete the article V, 1-B language
previously noted . Considerable discussion ensued
regarding Complainant Association's authority to
negotiate for RCA member firms, plus other contractors.
New arrangements were made for one Union spokesman
to visit Complainant Association 's office, together with a
Conciliation Commissioner , for the purpose of checking
the authorizations . Regarding the challenged contract
language , RCA spokesmen represented their
counterproposal, which Respondent Union again rejected.
No consensus was reached . During the two following
bargaining sessions, the particular disputed provisions with
which we are now concerned were not mentioned. Nor -
incidentally - was any comment made , so far as the
record shows, regarding the result of Respondent Union's
previously projected "inspection" visit , for the purpose of
checking Complainant Association' s bargaining
authorizations.
On January 11, 1968, Respondent Union herein,
through Conciliation Commissioner Kennedy, presented
new or revised proposals with respect to six substantive
contract provisions . Inter alia , Local 220's negotiators
reaffirmed their "wish " to rescind their previous
concurrence regarding article V, I-B's language. When
queried regarding their stated rationale for this position,
Complainant Association ' s executive director credibly
testified, without record contradiction, that
. they just wanted it deleted; the reason being ... in
their opinion , this subject was covered by our preamble.
However , we argued that the preamble was not
basically a part of the contract and that we had to have
it in this language in here, or in the preceding meeting
we had given them an alternative of removing it from
Article V as B-1, but labeling the paragraphs entitled
"Bargaining Representatives " as Article One and then
relabeling all of the articles in the book accordingly
UNITED SLATE, TILE & COMPOSITION
When the session was concluded , therefore , matters stood
thus: The parties had reached a consensus (October 30)
regarding their Preamble and further preliminary
"Bargaining Representatives" language , bottomed upon
modification of their terminated contract ' s phraseology.
Howevef , because of Respondent Union ' s subsequent
change of position regarding Complainant Association's
further request , that its claimed "exclusive bargaining
rights" be confirmed within some numbered contractual
provision , no definitive agreement - regarding this
particular question - had been reached.
b. The performance bond
The terminated Master Labor Agreement , so the record
shows, had contained provisions pursuant to which
contractors bound thereby were required to provide cash
or surety bonds , guaranteeing their workers'
remuneration , fringe benefit fund contributions, and
liquidated damages for their violation of some contractual
term or 'condition . (See art . III, E; art . IV; and art. VII,
E, therein .) When Local 220 and RCA negotiators met
for their first , June 19 , bargaining session , Respondent
Union ' s negotiators - so the record shows - suggested
the retention of these bond requirements , with minor
modifications . However , RCA's counterproposal -
presented during the parties ' next session - reflected a
complete deletion of contractual bond requirements.
Complainant Association 's spokesman declared that bonds
were not mandatory subjects for collective bargaining;
further , they contended that their contract 's then current
bond requirements had not proven effective.
On July 17, when discussions resumed, within the
conceptual framework which the soon -to-be terminated
contract provided , Respondent Union reiterated its bond
proposal; RCA's spokesmen refused to discuss the matter.
Regarding this question , therefore, negotiations produced
no change , through the parties ' August 11th session.
When the parties ' next , August 18 session , began -
with the three -county strike , previously noted , then in
progress - spokesmen for Respondent Union reported
that RCA's proposal had been rejected through a union
vote , for various reasons ; the bond requirement , so far as
the record shows, was not specifically mentioned.
However , the short -term "interim " contract which
Respondent Union was then requiring contractors to sign
committed its signatory firms to observe "all terms of the
collective bargaining agreement" which had just
terminated ; such a commitment would, necessarily,
compass the bond requirements. Consistently - when the
parties' August 23 session was held - Respondent Union,
once more, raised the bond question ; RCA's spokesmen,
once more , refused to discuss the matter . (By this time,
Complainant Association ' s first charge in this
consolidated matter , previously noted, had been filed.
Therein , Respondent Union had been charged , inter alia,
with statutory violations for demanding , to the point of
impasse , that the contract under negotiation should
include bond provisions .) With matters in this posture,
Respondent Union's September 28 settlement
commitment was signed . Therein, Respondent Union
promised that it would not insist , to the point of impasse,
that RCA should "agree to a liquidated damages bond"
as a condition precedent to any collective-bargaining
contract ' s execution.
Despite this commitment , Respondent Union 's October
23 contract proposal - previously noted - contained
full-scale bond provisions , comparable with those
639
compassed within the recently terminated master labor
contract . Confronted with this , Complainant Association's
consistent refusal to discuss such bond provisions was
reiterated . When the negotiators , then , canvassed
Respondent Union ' s contract proposals , seriatim,
consensus was reached that a bond reference , found in art.
III, F , might be deleted . With respect to Article IV,
however , Executive Director Van Eyk 's notes - received
in evidence without objection and without record
contradiction - summarized the discussion as follows:
ARTICLE IV . Entitled " Responsibility Bond". We
asked the Union if we might tear out these pages since
we will not discuss this subject . They said they wanted
it left in but they would not force discussion . We asked
again to have it removed and to adjust succeeding
ARTICLE numbers accordingly. The Union refused to
allow this.
However , when the parties met November 20, Van Eyk's
notes show that some presumptive consensus regarding
article IV's deletion had been reached ; I so find.
With matters in this posture, the subject does not
appear to have been broached for several sessions. On
December 18th, however , Local 220's spokesman declared
that Respondent Union wanted a bond provision or some
alternative; it was conceded that this proposal reopened a
subject with respect to which tentative agreement had been
reached . Substantially , Respondent Union ' s negotiators
then proposed - with a back reference regarding their
previous October 23rd submission - that Article IV
"Responsibility Bond" and article VII (B) "Grievance
Procedure" could be deleted completely , should
Complainant Association be willing to accept a substitute.
Respondent Union ' s proposed substitute provision -
essentially - would permit Local 220 to strike or shut
down a contractually bound employer , should any dispute
or grievance develop which could not be resolved within
24 hours . Failing RCA 's concurrence with respect to this
proposal , Respondent Union was proffering article IV and
article VII (A) and (B) set forth within their October 23
proposal , save merely for those paragraphs within
article VII (A) specifically - which referred to bonds.
(Within the present record , some testimonial confusion is
revealed regarding the precise thrust of Respondent
Union ' s December 18th proposal . On October 23,
Respondent Union had proposed (article VII (A))
contractual provisions regarding its right to take economic
action , should any roofing contractor - inter alia -- fail
to post or maintain required bonds , or to pay liquidated
damages found due thereunder . Further, Respondent
Union ' s October 23 proposal regarding grievance
procedure [article VII (B)] had contained provisions that
the Joint Labor Relations Board therein provided for
should have the power , inter alia , to require the payment
of liquidated damages from bonds posted by contractors,
upon certain specified grounds. The record , considered in
totality , warrants a determination - which I make -
that Respondent Union ' s December 18 alternative
proposals were finally presented as follows:
[1] articles IV, VII (A) and VII (B) set forth in
Respondent Union ' s October 23 proposal , with only
those bond references found in VII (A) particularly
deleted; or [2] article VII (A ), with its bond references
deleted , plus Respondent Union ' s new "right to
withdraw employees" provision.)
Complainant Association's spokesman caucused; Van
Eyk's testimony warrants a determination that
Respondent Union ' s new "substitute" proposal was
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
declared unacceptable.
Previously , within this decision , relevant developments
during the parties ' January 11, 1968, bargaining session
have been summarized. With respect to bond matters,
however , the present record reveals a testimonial conflict.
General Counsel's documentary presentation - coupled
with Executive Director Van Eyk's testimony - would
warrant determinations: (a) That Respondent Union made
no further January I1 reference to its December 18
"alternative" proposal; (b) that Respondent Union's
negotiators then demanded RCA's concurrence with their
original October 23 proposals relative to articles VII (A)
and (B), which had included references to bond posting
and possible assessments thereunder ; and (c) that
Respondent Union's negotiators - during their January
11th session - neither reiterated nor disclaimed their
previously renewed December 18 demands relative to
article IV, set forth within their October 23 proposal
According to Van Eyk, Respondent Union's silence in this
last regard left RCA' s negotiators room for " inference"
that Local 220's position compassed a renewed demand
for article IV, as well as articles VII (A) and VII (B), set
forth within their October 23 proposal.
However, International Vice President Evans, when
proffered as Respondent Union's witness, testified that his
"notes" regarding the parties' January 11 discussion
reflect less sweeping demands. Purportedly, those notes
show: -
. .. that the Article Seven, which was A and B, two
provisions ... be submitted with the understanding that
certain provisions within these would be rewritten with
reference to elimination of a sentence governing bond,
in reference to the bond ....
With matters in this posture, Van Eyk's direct
testimony , buttressed with his bargaining session notes,
must - within my view - be credited. Evans, so the
record shows, professed no witness-chair recollection with
respect to this matter apart from his notes; those notes,
however, were not produced. Further, Van Eyk's
testimony and notes strike this trier of fact as more
consistent with the probabilities. The record does show,
clearly, that Respondent Union's December 18 proposals
had, indeed , compassed a renewed demand - inter alia
- for article IV, the "Responsibility Bond" so-called,
should the Union's "alternative" proposal be rejected.
This renewed demand for article IV specifically, so far as
the record shows , was never subsequently withdrawn,
during any of the bargaining sessions with which we have
thus far been concerned. With matters in this posture,
proposals by Respondent Union - such as those
mentioned in Evans ' testimony - compassing the deletion
of bond references in articles VII (A) and VII (B) merely
would have lacked purpose or consistency . On January 11,
I find - despite counsel's contrary suggestion - that
Respondent Union was renewing in Coto its October 23
bond demands.
c. The Joint Labor Relations Board
The negotiations between Respondent Union and
Complainant Association, with respect to contractual
grievance procedures , substantially parallel those detailed
previously within this decision , dealing with Respondent
Union's bond proposal. Full recapitulation, therefore, may
not be required.
The terminated master labor contract, previously noted,
(article VII, "Grievance Procedure "), had established two
Joint Labor Relations Boards serving the contract
signatories as their final grievance adjustment bodies,
short of arbitration. The Los Angeles County board had
consisted of twelve members - six union representatives
and six contractor representatives. (The contract, with
respect to which both RCA and RCAOC were signatories,
had laid down no specific requirement regarding their
proportionate representation within the contractor group.
Nor were any such proportions specified regarding
contractor representation on the Orange County board,
noted hereinafter .) The Los Angeles County board's
jurisdiction had covered Los Angeles and Ventura
Counties. The contracting parties' concurrently-formed
Orange County board had functioned, within the
particular county designated, with eight members - four
union representatives and four contractor spokesmen.
Within the particular contractor group serving each board,
one member was designated to serve from the contracting
parties' parallel county board.
These boards were given the power to determine
claimed contract violations, to impose penalties, to review
and make recommendations "upon matters arising out of
the interpretation, application and operation" of the
master labor contract's provisions, and to perform certain
other functions.
When Respondent Union's negotiations with
Complainant Association began, the Union spokesmen
first proposed a single board . RCA's counterproposal
reflected a conventional grievance procedure, without any
Joint Labor Relations Board provision . When the parties
next met, on July 17, Respondent Union's spokesmen
reiterated their desire to retain the contractual board.
During the parties' August 1st session , nevertheless,
Complainant Association's new grievance procedure
proposal was thoroughly reviewed; numerous changes were
proposed, discussed, and presumptively settled by
consensus. Executive Director Van Eyk' s notes regarding
this session - which stand in the record without
contradiction - read , in relevant part , as follows:
No other changes were asked for by either side and this
Grievance Procedure is now agreed to by both parties
when the above changes have been incorporated.
On August 11, consensus was reached regarding a further
modification of management's "Grievance Procedure"
proposal, with particular reference to possible arbitrations
thereunder. Then, with matters in this posture, the Master
Labor Agreement's termination date was reached.
The parties convened their first session thereafter -
with various Roofers' Union local members on strike -
and Complainant Association was told that management's
prestrike "package" proposal had been rejected;
Respondent Union' s representatives made specific
reference to article VII, claiming that they could not see
having two "different" grievance procedures. (Presumably,
this comment was calculated to suggest the possibility that
some grievance procedure "differing" from Complainant
Association 's pending proposal might be agreed upon
within the two concurrent negotiations then in progress.
This was the bargaining session - previously noted -
during which Respondent Union' s representatives
repeatedly suggested and pressed for true joint
negotiations.) Respondent Union was told, however, that
RCA had "no intention of sharing positions on boards"
with any other contractor's group, which the proposal
then being bruited within the concurrent negotiations
would require. Despite this - when the parties convened
for their August 23 session - Respondent Union,
consistently with its most recently declared view, presented
a new grievance procedure proposal which provided for
UNITED SLATE, TILE & COMPOSITION 641
two Joint Labor Relations Boards - with respect to
which URCA, RCAOC and RCA would share
membership proportionately, within the contractually
designated employer complement.
During the discussion which followed, Respondent
Union finally agreed - so I find - that this particular
language should be stricken , thus creating a! Joint Labor
Relations Board with membership shared "just between"
the Union and Complainant Association herein . With this
basic modification conceded , Respondent Union's
proposal,was further discussed ; substantial - though not
complete - consensus was reached.
With matters in this presumptively settled posture - so
far as the grievance procedure problem was concerned -
the Regional Office settlement, previously noted, was
reached. Consistently therewith, Local 220's
representatives promised , inter alia, that:
WE WILL NOT in any manner restrain or coerce
employer- members of ROOFING CONTRACTORS
ASSOCIATION OF SOUTHERN CALIFORNIA,
INC., in the selection of that Association as his or its
exclusive bargaining representative for the purpose of
collective bargaining.
Nevertheless, when the parties met October 23,
Respondent Union proposed the contract - previously
noted - which had just been negotiated by Locals 36, 72,
and 220 with two different contractor groups . Therein was
a provision, (article VII (B ) "Grievance Procedure"),
which called for two Joint Labor Relations Boards within
Los Angeles-Ventura and Orange Counties, respectively,
once more with cross membership for both union and
contractor members . Complainant Association's
spokesmen , so I find, noted "the inclusion of other
associations and unions to share" board positions;
full-scale discussion with respect to Respondent Union's
proposal was , however, postponed . Further, November 13,
discussions were - so far as the record shows - not
conclusive.
On November 20, following a thorough discussion,
Complainant Association ' s new grievance procedure
proposal, with substantial modifications - rather than
Respondent Union's proposal - was next declared
consensually acceptable ; Van Eyk's notes so show, and I
so find. Further, on December 4, agreement was reached
regarding one, additional , minor change.
With matters once more moving toward a presumptive
consensus, when the parties convened their December 18
bargaining session , Respondent Union presented the
substitute "grievance" proposal previously noted.
Substantially , this provision would have permitted
Respondent Union to strike or shut down a contractor
should a dispute arise which could not be resolved within
24 hours. Respondent Union proposed that RCA accept
either its original proposal - which included grievance
procedures culminating in Joint Labor Relations Boards,
followed by arbitration - or the newly proposed
substitute, which would eliminate these procedures and
grievance bodies, but would permit work stoppages should
the particular grievance matters not be settled within a
day's time. As previously noted, RCA's spokesmen
rejected this "alternative" proposal.
On January 11, then, Respondent Union's
representatives retracted their concurrence with respect to
Complainant Association ' s "Grievance Procedure"
proposals , and demanded concurrence with their previous
article VII (A) and VII ( B) submittals , in their entirety;
with due regard for the whole record I so find . (Within his
brief, Respondent Union' s counsel cites International Vice
President Evans ' testimony as sufficient to warrant a
finding that Respondent Union ' s January 11th proposal
conceded revisions , regarding the contractual Labor
Relations Board , calculated to meet RCA's objections.
However , Evans ' testimony - based completely upon
purported notes, which he did not produce - cannot
reasonably be so construed . He testified , merely, that
Respondent Union proffered its article VII (B) proposal,
rewritten to reflect a consensus reached that the Joint
Labor Relations Board would be designated a joint
"adjustment" board , instead . This testimony , within my
view , cannot be considered a sufficient contradiction or
rebuttal , with respect to Van Eyk' s positive recollection
that Respondent Union ' s proposal compassed Labor
Relations Boards with multiassociation representation,
and cross-membership .) When the session terminated,
Complainant Association 's position - with respect to this
demand , plus further demands, some of which have been
previously noted - was that they would be studied.
Matters stood , thus, when Complainant Association's
second charge , herein , was filed.
d. Further changes of position
During their November 20 bargaining session, the
parties reached consensus with regard to a 4-year
contract , which could be reopened on anniversary dates
during its term , but only by mutual consent , (article X,
"Duration -Termination-Renewal"), save so far as article
VII was concerned ; with respect to the latter article there
was a separate provision which permitted reopening by
"either party" following the contract's first anniversary
date . The subject was not discussed between November
20 and January 11, 1968. During the latter session,
however, Respondent Union ' s spokesmen declared that
they were dissatisfied , inter alia , with this provision; they
insisted that their own, prior, version of article X would
have to be accepted. That version - set forth within
Respondent Union ' s October 23 contract proposal
previously noted - would permit either Respondent
Union or signatory contractors to reopen their contract on
any anniversary date during its 4 -year term , for the
purpose of negotiating amendments or modifications,
except with respect to wage rates or fringe benefit
contributions.
Respondent Union ' s October 23 proposal , further,
contained a provision - with respect to which RCA's
negotiators presumably had concurred - that employees
required to work with "pitch , pitch base or pitch
impregnated products or any material containing coal tar
pitch" should receive premium pay. During the parties'
December 4 bargaining session, the relevant contractual
provisions in this respect (article XI ) were consensually
modified to provide , in substance, that premium "pitch"
rates would be payable only to roofers working on jobs
requiring such materials at times when pitch was actually
being used thereon . However , when the negotiators next
met - December 11 - one spokesman for Respondent
Union expressed "concern" regarding this change,
declaring that it could , conceivably , require a parallel
modification of recently negotiated (October 18) contracts
between Locals 36, 72, and 220, and URCA and RCAOC
contractors, pursuant to the "most favored nations"
clause (article VIII , B) therein . The subject was not
revived , nevertheless , until the parties ' January 11, 1968,
session . During that session, inter alia, Respondent
Union ' s negotiators specifically retracted their December
4 concurrence regarding a modification of premium
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"pitch" pay requirements; they declared their desire to
"discuss" the matter further.
e. The Trust Agreements
When the Local 220 - RCA negotiations, with which
this case is concerned, began, the master labor contract
then current contained a provision, (Article XX), pursuant
to which certain collateral trust agreements were made
part the contract by reference. (These trust instruments
created trusts for several distinct purposes. Each trust was
established for the benefit of employees working with
roofing contractors privy thereto, throughout ' the
three-county area with respect to which the Master Labor
Agreement governed wages, hours and conditions of work.
Representing management, spokesmen for both RCA and
RCAOC served jointly on each trusts board of trustees.)
Proposals for the creation and maintenance of comparable
successor trusts - which, for present purposes, need not
be described in detail - were proffered and discussed,
thoroughly, during the negotiations now under
consideration. No consensus was ever reached.
When tentative proposals regarding the trusts were first
discussed - during the parties' July 10 session -
Complainant Association's negotiators suggested the
possibility that specific benefits might be guaranteed for
their contract's duration; on July 17, Respondent Union's
spokesmen responded, designating certain benefits which
were desired. Thereafter, on August 9, RCA's executive
director "explained" certain aspects of Complainant
Association's proposal, relative to trust matters. These
discussions were essentially preliminary.
During the parties' last prestrike bargaining session,
August 11th, Complainant Association's article XX
proposals were, however, further detailed. Local 220's
spokesmen declared that they "did not like"
management's "Health and Welfare" proposal; they stood
firm with respect to their original demands
With matters in this posture, the August 15 work
stoppage, previously noted, commenced. When the
negotiators next met, August 18, various health and
welfare proposals, coupled with trust fund contribution
proposals, were discussed on their merits. (The record
warrants a determination - which I make - that
Respondent Union was, then, generally pressing for joint
negotiations between all three Roofers Union locals and
all three contractor groups. Previously, within their
separate negotiations with URCA and RCAOC noted,
Locals 36, 72, and 220 had presented partial trust
proposals which, inter alia , called for the creation of
separate 12-man boards of trustees for each trust fund;
these boards of trustees, which would be required to
administer trust funds throughout the three-county area
within which URCA and RCAOC member contractors
functioned, and were to be composed of six union
representatives - two from each of the three locals -
and six association members - two each from URCA
and RCAOC, plus two from Complainant Association
herein. Substantially, therefore, Complainant Association
was being requested to join with URCA and RCAOC in
creating and maintaining these three-county trusts. RCA's
spokesmen - confronted with this August 18th suggestion
- replied that they had not yet been involved in joint
negotiations with the other contractor groups named, and
did not wish to get involved with them.) During this
discussion - so I find - management 's co-chairman,
Ray Haddock, declared, inter alia , that Complainant
Association had "no intention of sharing" positions on
various boards of trustees, or other boards, with any other
contractors' group. Meanwhile - as previously noted -
various individual contractors were being requested to sign
Respondent Union's short-term "interim" contracts; these
documents expressly compassed contractor commitments
with respect to various continued trust fund contributions,
plus contributions toward a prospective pension fund, for
deposit pending a written trust instrument's
consummation.
On October 23, when Respondent Union presented a
proposal which matched its newly negotiated contract with
URCA and RCAOC, previously noted, article XX thereof
was reviewed in some detail. Van Eyk's notes regarding
this matter - which I credit - read as follows:
ARTICLE XX. Here, again , we note many
discrepancies. First of all, they are making references to
non-existent Trust Funds. They make allowances for
expenditures of these contributions in unstipulated
amounts prior to the establishment of the Trust and on
the authority of so-called "Pro-tem" Trustees without
any provision for Trustees to be appointed by an
Association. Again, this is integrated with other Unions
and other Associations, etc. Another point of question
is that they allow for a quorum of only four Trustees
out of twelve. [Emphasis supplied.]
During the next four sessions , no significant progress was
made. Complainant Association's spokesmen reiterated
their refusal to sit on any trustee boards in conjunction
with representatives of different management groups. The
negotiators , however, did discuss various problems
connected with the technical termination of those trusts
which had functioned previously, while the
recently-terminated Master Labor Agreement had been in
force.
When the parties' December 4 session convened, RCA's
committee chairman restated Complainant Association's
basic "trust" position . Van Eyk's notes with respect to
this session - which I credit - summarize that statement
of position as follows:
Chairman Dion explained that our primary goal is to
see the Health & Welfare Fund handled by an outside
professional administrative firm and to take sealed bids
from insurance companies , stipulating the Agent or
Broker bringing in the most acceptable bid be named
Broker of Record . .
Later - during the same session - when Complainant
Association's position was reiterated, Local 220's
spokesmen declared their desire to meet with
representatives of Locals 36 and 72, regarding this (trust)
problem. Throughout the sessions which followed,
Respondent Union's spokesmen - so I find - made
clear their need in this connection, to "stick with" their
sister locals . Complainant Association was asked,
specifically, whether it would be willing to meet with all
other parties concerned. (Locals 36 and 72, plus URCA
and RCAOC) relative to trust matters; RCA's spokesmen,
however, demurred , declaring that such a conference
would serve no purpose.
On January 4, 1968, trust fund matters were further
discussed, Complaint Association's position - relative to
so-called "outside" administration and sealed bids - was
restated. (There seems to have been considerable
discussion , likewise, regarding various suggested
procedures for handling current trust fund contributions,
pending a new contract' s negotiation . With respect to
these problems, likewise , no consensus appears to have
been reached.) When the negotiators convened for their
UNITED SLATE, TILE & COMPOSITION
January 11, 1968, session, their continued discussions with
regard to trust matters culminated - so I find - in
Respondent Union's refusal to consider RCA's trust
proposals further; Local 220's spokesmen demanded
Complainant Association's concurrence with their October
23 article XX formulation.
With matters in this posture - so I have found -
Complainant Association' s spokesmen declared that
Respondent Union's new demands, with respect to trust
funds and various other matters, would be studied.
Regarding trust fund matters specifically, however,
determination seems clearly warranted that a real impasse
had been reached. RCA's spokesmen were contending that
- so far as they were concerned - only their
Association's representatives should sit on management's
side, with respect to various Trust Fund boards of
trustees, Respondent Union was refusing concurrence,
persistently, with respect to RCA's position. Local 220's
spokesmen were contending, further, that bargaining with
respect to questions of trust fund administration should
not be considered bargaining concerned with "the
selection of representatives for the purposes of collective
bargaining or the adjustment of grievances" within
Section 8(b)(I)(B)'s meaning; rather - so their argument
seemingly ran - bargaining with respect to the
composition of trust fund boards and trust administration
should be considered closely related to bargaining about
"rate of pay, wages . or other conditions of
employment" which are considered mandatory subjects for
negotiation. Hence, so Respondent Union's spokesmen
contended, they should not be considered legally required
to concede RCA's demand, with respect to board of
trustees' membership.
C. Conclusions
1. The bargaining unit
Respondent Union's Representative Status Therein
Within his complaint, General Counsel has defined the
bargaining unit with which we are concerned as follows:
"All roofers employed by members of RCA in the
geographical area of Orange County, California"
particularly. The record made warrants a determination,
however, that Complainant Association herein -
throughout the negotiations with which this case is
concerned - claimed to represent first eleven, then
twelve, Orange County roofing contractors, with no more
than seven of these maintaining RCA membership. With
respect to four of the five additional firms, the record
reveals separate signed "Non-Membership Bargaining
Agreements" whereby Complainant Association was given
"exclusive . rights" to bargain on their behalf.
(Regarding the fifth firm, Don's Roofing Company, the
record reveals RCA's July 26 notice to Respondent Union
claiming representative status. Though no
"Non-Membership Bargaining Agreement" signed by
Don's has been produced before me, RCA's timely claim
to represent this firm has never, so far as the record
shows, been specifically challenged.) This case was, thus,
litigated - despite General Counsel's limited Complaint
language - with a tacit consensus that RCA's negotiators
were purporting to represent twelve roofing contractors -
seven of them RCA members doing Orange County
business, plus five nonmember Orange County firms.
Concerning Complainant Association 's claim,
Respondent Union currently proffers several rejoinders.
643
First: Respondent Union presents a suggestion, previously
noted, that two non-member contractors - Atlas and S
& S, specifically - were not doing business as roofing
contractors during "all times" material. Second:
Respondent Union declares that three RCA members -
Christian, Courtesy and Orange - likewise maintain
RCAOC membership. (Logically, the first of these factual
averments would seem to suggest a contention - never
really set forth in detail - that nonactive contractors
should not be considered compassed within a currently
viable bargaining unit. Respondent Union's second
declaration suggests a like contention, that RCA
member-contractors with concurrent RCAOC membership
should not be considered compassed within the limited
multipleemployer bargaining group which Complainant
Association herein claims to represent.) Respondent
Union would, presumably, challenge this Board's
"jurisdiction" over Local 220's dealings with firms not
participating in the roofing business during the period
herein material . Further, Respondent Union would,
presumably, challenge any bargaining unit definition
drafted to compass employees of contractors with respect
to whom RCA could not, currently, show "exclusive"
representative status for collective-bargaining purposes.
Third: Respondent Union contends that the total number
of roofers employed by those firms which may fairly be
considered comprised within General Counsel's stated
bargaining unit definition "constitute a minority" group
when compared with the total number of roofers
employed within Orange County. Counsel for Respondent
Union suggests that "all roofers so employed" should be
considered the sole and single appropriate unit for
collective bargaining.
These contentions, however, must be rejected. First:
Respondent Union's charge that neither Atlas nor S & S
Roofing were doing business during the period with which
this case is concerned, completely lacks record support.
Second: With respect to Christian & Letner, Courtesy,
and Orange County Roofing, particularly, testimony
proffered in Respondent Union's behalf, calculated to
support their exclusion from RCA's Orange County
bargaining group, cannot be considered, within my view,
reliable, substantial or probative. (While a witness,
Roofers Union Vice President Evans did proffer personal
testimony - purportedly based upon a compilation
derived from Local 220 records which he had consulted -
that the three firms designated, plus "separate" contractor
Earle Davis, currently held RCAOC membership, or had
been represented by that trade group. He testified, further,
that these three contractors were among those with whom
Respondent Union presently has contracts - presumably
derived from the October 18th three-county contractual
consensus previously noted. However, Local 220's records
were not produced; neither was Evans' purported
"compilation" derived therefrom. The contracts which
these three firms have supposedly signed were not
produced or proffered for the record. With such
documentary corroboration lacking, Evans' summary
testimony, proffered in response to leading questions, fails
to persuade.) Third: While denying the propriety of
General Counsel's circumscribed bargaining unit definition
- the respondent labor organization herein contends that
a broader group, namely "all roofers" with Orange
County work records, constitute the sole proper unit for
collective bargaining purposes. This contention, however,
both disregards and contradicts Local 220's current
bargaining posture. The record shows that - during the
period with which this case is concerned - this
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Union concurrently participated in collective
bargaining, jointly with two sister locals, for roofers
employed by various designated contractors, throughout
the Los Angeles- Ventura-Orange County territory,
specifically those contractors represented "individually"
by URCA or RCAOC during their negotiations. And -
consistently - when requested to bargain with RCA for a
designated multiemployer unit compassing various
designated member and nonmember contractors, doing
business within Orange County particularly, Respondent
Union proffered no demurrer. Having participated
voluntarily in two parallel contract negotiations - so far
as Orange County is concerned - spokesmen for
Respondent Union can hardly now contend, persuasively,
that "all roofers employed in Orange County" constitute a
single appropriate collective bargaining unit for present
purposes.
Assuming, arguendo, that Respondent Union should
not be considered precluded from such a contention, the
suggestion would still merit rejection for lack of record
support. General Counsel has proffered testimony - with
Respondent Union's presumptive concurrence - that
seven Orange County roofing contractors, whom
Complainant Association claims to represent, hold RCA
membership; and Respondent Union's contention that
three of these firms hold concurrent RCAOC
membership, which concurrent membership should be
considered controlling with respect to their unit
placement, has been rejected for lack of proof. With
respect to RCA's five non-member contractors, General
Counsel's case for their inclusion within a bargaining unit
which otherwise comprises seven RCA members, likewise,
has not been persuasively controverted. The record reveals
formal bargaining designations signed by four firms; their
viability has not been, herein, successfully challenged.
And, regarding the remaining "separate" contractor -
Don's - RCA's conceded claim to representative status
has never been denied or controverted.
With matters in this posture, General Counsel's
litigated position , regarding the bargaining unit
formulation which should be considered proper herein,
merits Board concurrence. Upon this record, therefore, I
conclude and find that, throughout the period with which
this case is concerned, all roofers employed by RCA
member contractors, and/or by nonmember contractors
who have given RCA exclusive rights to function as their
bargaining representative, within the Orange County,
California, geographical area specifically, constitute a unit
appropriate for collective-bargaining purposes, within the
meaning of Section 9(b) of the statute.
Respondent Union does not, really, challenge General
Counsel's contention regarding its representative status
within the bargaining unit thus defined. With specific
reference to General Counsel's Complaint language,
Respondent Union, within its answer, declares:
. that it is the designated exclusive collective
bargaining agent for all roofers employed in Orange
County, and that a unit consisting of only those roofers
employed by the listed members of RCA is not an
appropriate unit. [Emphasis supplied.]
Since Local 220, thereby, claims a statutory right to
recognition as "the designated exclusive collective
bargaining" representative for the larger employee group
which it would have this Board find appropriate for
collective bargaining purposes, that body surely cannot
contend, persuasively, that it claims no comparable right
to recognition with respect to the more limited employee
group which I have found appropriate herein. Nor - so
far as I can tell - does Respondent Union really make
such a contention. Factually, General Counsel's position
- regarding Local 220's representative status - has not
been challenged. On this record, therefore, I find -
consistently with General Counsel's contention - that,
throughout the period with which this case is concerned,
Respondent Union has been designated by a majority of
roofing employees, within the unit found appropriate
herein, as their representative for collective bargaining
purposes. By virtue of Section 9(a) of the statute,
Respondent Union has been, at all material times - and
is now - entitled to recognition as the exclusive
representative of all roofers within the previously
described unit, for the purpose of collective bargaining
with respect to their rates of pay, wages , hours of
employment, and other terms and conditions of work.
2. The statutory violations charged
General Counsel, herein, challenges Respondent
Union's course of conduct - since August 15, 1967,
particularly - upon several grounds. These have been
previously detailed. Substantially, General Counsel
suggests that Respondent Union's total course of conduct,
reasonably calculated to promote the realization of certain
specific bargaining goals, constituted restraint or coercion
- directed against both RCA and various represented
roofing contractors - with regard to their selection of
representatives for the purposes of collective bargaining,
or the adjustment of grievances. Further, General Counsel
contends that Respondent Union's course of conduct,
considered in totality, reflects a statutory "refusal to
bargain" collectively with Complainant Association
herein, particularly since it persisted in demands, which it
pressed to the point of impasse, that RCA's negotiators
concede a contractual consensus regarding certain matters
not considered mandatory subjects for collective
bargaining. Further, General Counsel charges Respondent
Union, generally, with surface, sham and bad-faith
bargaining, since the record purportedly discloses: -
. that Respondent [Union] came to the bargaining
table with the fixed purpose of not reaching any
agreement other than that which it had negotiated
jointly with Locals 36 and 72 and which was applicable
to Los Angeles and Ventura [and Orange] Counties
Most logically, these contentions - together with
Respondent Union's defenses thereto - should be
considered chronologically. First consideration will be
directed, therefore, to Respondent Union's
August-September course of conduct, directly following
the Master Labor Agreement's termination but preceding
that body's September 28th settlement commitment.
(Normally - for policy reasons - this Board refuses to
reconsider, within. complaint cases, charges of statutory
violation which have been seemingly settled, following
Regional Office investigation, without formal proceedings.
This policy, however, has never been rigid. Should a
respondent's postsettlement conduct reflect a resumption
or continuation of prior unfair labor practices, or new
conduct statutorily proscribed - thus revealing the
settlement's failure to achieve its purpose - this Board
will vacate the settlement, reopen all matters closed
pursuant thereto, review the designated respondent's total
course of conduct both presettlement and postsettlement,
and require remedial action reasonably calculated to
redress all statutory violations found. Southeastern Stages,
Inc., 174 NLRB No. 85, fn. 1, and cases therein cited.
UNITED SLATE, TILE & COMPOSITION
For reasons which will become patent - subsequently -
within this decision , I have concluded and found that
Respondent Union ' s postsettlement conduct, in certain
designated respects , flouted that body ' s settlement
commitment . Consistently with Board policy , therefore,
this decision will reflect my review of both Respondent
Union 's presettlement and postsettlement conduct.)
Secondarily , Respondent Union ' s postsettlement changes
of position will be reviewed, with a view to determining,
particularly, whether that body's January 11, 1968,
bargaining posture merits statutory condemnation.
a. Respondent Union 's presettlement conduct
The present record, within my view, fully warrants a
determination that Complainant Association herein -
together with its seven Orange County member firms and
five "individual" roofing contractors having Orange
County places of business - consenusally established a
multipleemployer bargaining unit, with respect to which
Respondent Union subsequently consented to bargain.
Weyerhaeuser Company, et al., 166 NLRB No. 7, and
cases cited therein at fn. 6; Hoisting and Portable
Engineers Local Union No. 701 , International Union of
Operating Engineers, AFL-CIO (Cascade Employers
Association, Inc.), 141 NLRB 469, 470-471. Within the
decision first cited , this Board had declared the test
required when determinations must be made regarding the
viability of claimed multipleemployer bargaining units;
that formulation reads as follows: -
It is whether the members of the group have indicated
from the outset an unequivocal intention to be bound in
collective bargaining by group rather than individual
action, and whether the union representing their
employees has been notified of the formation of the
group and the delegation of bargaining authority to it,
and has assented and entered upon negotiations with the
group's representative.
This test has been fully satisfied herein . Within an
historical context of so-called multi-employer , multi-union
collective bargaining , Roofers Union Locals 36 and 72
gave both RCA and RCAOC timely notice that
prospective 1967-71 contracts would be negotiated upon a
so-called " individual" contractor basis, rather than for
some consolidated multiple -employer group. However -
since Local 36 previously had, during the life of its
soon -to-be-terminated contract , ceded its former Orange
County territorial jurisdiction to Respondent Union herein
- these notices, so far as RCA was concerned, defined a
basis for renewed collective bargaining with respect to
represented roofing contractors doing business in Los
Angeles and Ventura Counties merely. Local 220, which
conceivably could have given a comparable notice -
calculated to define the collective bargaining format which
it proposed to follow regarding those firms doing business
within Orange County which RCA represented -
proffered none. Thus, RCA's March 22 letter - whereby
Local 220 was notified that Complainant Association was
"ready and willing to commence to negotiations for our
members and any other employers who give us their
collective bargaining rights" for negotiating purposes -
defined the basis upon which negotiations regarding
Orange County roofers would be conducted . Substantially,
Complainant Association was proposing negotiations for a
multiple-employer bargaining group . And Respondent
Union ' s subsequent concurrence with Complainant
Association ' s proposal - lacking any qualification -
confirmed this collective bargaining pattern.
645
This record , shortly , warrants a determination, which I
make , that - by June 19 , when negotiations began - 1I
Orange County roofing contractors had "effectively"
created a multiple-employer bargaining group , with which
Respondent Union was willing to bargain . RCA's seven
member firms with Orange County places of business,
plus four Orange County nonmember firms which had,
before then , given Complainant Association exclusive
rights to bargain in their behalf, had revealed their
"unequivocal intention " to be bound in collective
bargaining by group rather than individual action. Local
220 had been notified with respect to the bargaining
group' s formation , and RCA ' s receipt of delegated
bargaining authority . Following such notice , Respondent
Union declared its readiness to negotiate consistently with
RCA's proposal ; negotiations with Complainant
Association 's spokesman were , thereupon , commenced.
Weyerhaeuser Company , supra . Nothing more need be
said.
Following their master labor contract ' s August 15
termination , Respondent Union's spokesmen - while
continuing to bargain with RCA's committee - sought,
for the first time , to deny or retract their prior de facto
recognition that a multipleemployer bargaining unit had
come into being . That belated denial or retraction - since
it was patently and completely inconsistent with
Respondent Union 's contemporaneous course of dealing
with RCA 's committee - cannot be held to have
destroyed their previously "accepted" bargaining
relationship . Complainant Association consistently,
thereafter , refused to concur with Respondent Union's
view , and consistently maintained its previously declared
representative authority and status . Thus , Respondent
Union ' s purported August 18 disclaimer , regarding its
commitment to multiple -employer bargaining , must be
considered untimely and without operative consequence.
Universal Insulation v. N.L.R.B., 361 F.2d 406 (C.A. 6);
N.L.R.B. v. Sheridan Creations , Inc., 357 F.2d 245 (C.A.
2); Cf. N.L.R.B. v . Mor Paskesz , 405 F .2d 1201 (C.A.
2). Weyerhaeuser Company , supra; Ice Cream and Frozen
Custard Employees , 145 NLRB 865; Retail Associates,
Inc., 120 NLRB 388, 395 . I so find.
Thus - when Respondent Union's members,
concurrently , ceased work for those Orange County
Roofing contractors whom RCA represented - the
persistent efforts of Local 220 spokesmen , directed toward
the procurement of separate " individual" contracts with
such contractors , must be considered violative of law.
Substantially , Respondent Union herein - within a
bargaining context marked by strike pressures - dealt
directly with individual roofing contractors ; required those
contractors to repudiate or disavow their previously
designated bargaining representative , Complainant
Association herein ; and, thereby , restrained and coerced
those contractors with respect to their selection of
representatives for collective-bargaining purposes.
Southern California Pipe Trades District Council No. 16
of the United Association (Aero Plumbing Co.), 167
NLRB No. 143; Operative Plasterers and Cement
Masons ' International Association, Local No. 2, (Arnold
M. Hansen), 149 NLRB 1264, 1267; General Teamsters
Local Union No. 324 (Cascade Employers Association,
Inc.), 127 NLRB 488 , I so find.
Respondent Union' s course of conduct in this
connection , further, compassed a second unfair labor
practice . That body's solicitation and subsequent
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
procurement of separate, short-term contracts from those
roofing contractors with whom this case is concerned
necessarily bypassed Complainant Association, and
reflected a refusal to bargain collectively with that
statutory "employer" herein, despite its previously
conceded representative status.
Previously, within this decision, determination has been
made that Respondent Union's proffered short-term
"interim" contracts - which various roofing contractors
were, under strike duress, required to sign - contained
further provisions regarding which Respondent Union
could not be considered privileged to force or require
contractual commitments. First: They required signatory
roofing contractors to reaffirm their willingness to follow
the grievance procedure laid down within the recently
terminated master labor contract. Since the contractual
Joint Labor Relations Board provided for therein
compassed, within its membership, management
representatives chosen neither by Complainant
Association, nor by roofing contractors whom it
represented, Respondent Union's ploy necessarily
restrained and coerced these signatory contractors, with
respect to their choice of representatives for the
adjustment of grievances . Painters District Council No.
36, AFL-CIO (Commerical Drywall Constructors , Inc.),
155 NLRB 1013, 1016 - 18; United Slate, Tile &
Composition Roofers Damp & Waterproof Workers
Association , Local No . 36 (Roofing Contractors
Association of Southern California , Inc.), 172 NLRB No.
249. Likewise , Respondent Union ' s fixed , immutable
demand - backed by strike pressure - that the
terminated contract ' s grievance procedure be maintained
reflected a refusal to bargain collectively in good faith; I
so find . Second: When Respondent Union persisted in
pressing for short-term contracts which necessarily
reaffirmed and continued prior performance bond
requirements , that body 's representatives left the sphere of
mandatory bargaining with regard to "terms and
conditions of employment ." They were , essentially,
conditioning their willingness to confirm a consensus, and
resume work , upon the reciprocal willingness of
contractors to sign agreements dealing with matters
outside the scope of mandatory bargaining . Local 164,
Brotherhood of Painters , AFL-CIO ( Cheatham Painting
Co.) v. NL. R.B., 293 F .2d 133 (C.A.D.C.); N.L.R.B. v
Wooster Division of Borg Warner Corp , 356 U.S 342,
349. Well-established decisional doctrine teaches that -
when a consensus regarding wages, hours and other terms
and conditions of work has been reached , neither the
employer concerned nor his workers' representative may
refuse to sign a contract which embodies them, on the
ground that it does not include some provision about a
further matter which cannot be considered a mandatory
subject for collective bargaining ; such conduct,
substantially, represents a refusal to bargain about those
subjects which are within the scope of mandatory
bargaining . (General Counsel , herein , presses similar
contentions - bottomed upon Sections 8(b)(1)(B) and
8(b)(3) particularly - with respect to Respondent
Union ' s August 1967 , bargaining posture or trust fund
matters. These contentions will be separately considered,
subsequently, within this decision .) The present record,
therefore, provides more than sufficient justification,
within my view , for a determination that Respondent
Union ' s presettlement bargaining posture - particularly
with regard to bond requirements and grievance
machinery - violated the statutory provisions herein
previously mentioned.
b. Respondent Union's Postsettlement conduct
With respect to Respondent Union's postsettlement
bargaining conduct - between October 23 and January
11, 1968, particularly - the consolidated complaint herein
charges further refusals to bargain, coupled with further
restraint and coercion statutorily proscribed. General
Counsel's brief summarizes his position, regarding
Respondent Union's bargaining posture within this period,
as follows:
The latter [Case 21-CB-3070] is based on the theory
that in bargaining subsequent to the Settlement
Agreement, Respondent, while ostensibly bargaining
with an open mind as required by the Statute, in fact
had a fixed predetermined position that it would accept
no agreement with substantive terms other than those in
the agreement which it reached October 18, 1967, in
joint bargaining with Roofers Locals 36 and 72
involving two other Roofing Contractors associations,
that this agreement contained certain non-mandatory
conditions [particularly with reference to performance
bonds, grievance procedure and trust fund management]
and that Respondent refused to accord RCA
recognition as representative of the entire
multi-employer unit which RCA represented.
These contentions, substantially, pose the most significant
questions with which the present consolidated case is
concerned. With respect thereto, Respondent Union
contends that the present record reflects its full
compliance with settlement commitments; that the record,
likewise, reflects its participation in collective-bargaining
negotiations with Complainant Association continuing to
date; and that the record "fails to manifest" statutorily
proscribed restraint or coercion, directed against RCA
member firms, regarding their selection of that trade
group as their bargaining representative.
Respondent Union's last-noted contention -
particularly with reference to negotiations during the
October 23 - January 11 period - must be considered
meritorious. Throughout this period, joint negotiating
sessions were frequent; ten were convened, four with
Federal conciliators present. No strike threats, so far as
the record shows were made; nor was any work stoppage,
calculated to bring economic pressure upon Orange
County roofing contractors, directed or commenced.
Thus, through January 11, certainly, Respondent Union
cannot be charged with restraint or coercion, within the
meaning normally given these statutory terms. N.L.R.B.
v. Drivers, Chauffeurs, and Helpers, Local Union No. 639
(Curtis Bros., Inc.) 362 U.S. 274; Cf. Metropolitan
District Council of Philadelphia (McCloskey and
Company), 137 NLRB 1583, 1584. Within the first cited
decision, which - though it dealt with Section 8(b)(1)(A)
particularly - considered and construed the statutory
language with which we are now concerned, the Supreme
Court held: -
that Section 8(b)(1)(A) is a grant of power to the
Board limited to authority to proceed against union
tactics involving violence, intimidation, and reprisal or
threats thereof ...
Upon this record, Respondent Union's course of conduct,
throughout the specific period with which we are now
concerned, hardly merits such characterization. Local
220's spokesmen may have been hard bargainers. Their
UNITED SLATE, TILE & COMPOSITION
changes , of position while negotiations continued - with
respect to which more will be said herein - may have
impressed RCA's negotiators as calculated harassment.
Nothing in the present record, however, would warrant a
determination - within my view - that Respondent
Union' s bargaining-table conduct, during these
negotiations, constituted "restraint or coercion"
statutorily proscribed.
2.
However, General Counsel's further argument - that
Respondent Union's course of conduct nevertheless
reflects a refusal to bargain collectively which Section
8(b)(3) proscribes - raises more subtle questions.
Contentions are made: (1) that Respondent Union herein
refused to recognize RCA's representative status, save for
those member contractors "who are not members of any
other association" concurrently; (2) that Local 220's
spokesmen "bargained to impasse" regarding their
proposed performance bond requirement, despite their
knowledge that bond proposals could not legally be
considered mandatory collective bargaining subjects; (3)
that Respondent Union likewise "bargained to impasse"
regarding grievance procedure and trust fund management
proposals which would effectively compel Complainant
Association and its represented contractors to rely upon
employer representatives not chosen by them, with regard
to matters compassed within such proposals; and (4) that
Local 220 really bargained with a fixed predetermined
position that it would accept no contract with substantive
terms different from those which its representatives -
together with Locals 36 and 72 spokesmen - had
negotiated, previously, with two other trade groups.
Confronted with such contentions, this Board must
determine: First, whether Respondent Union's bargaining
posture on January 11th specifically - when negotiations
were temporarily suspended - did compass demands or
statements of position which that body could legally
present, but with respect to which it could not legally
force or require concurrence. Second, whether Respondent
Union was , then, really conditioning its readiness to sign a
final contract upon Complainant Association's
concurrence with regard to such demands or statements of
position . These determinations - since they will concern
factual matters - must, necessarily, derive from a record
review.
General Counsel's contention - previously noted -
that Respondent Union's negotiators were, then,
demanding a recognition clause whereby Complainant
Association would be recognized as representing only
those member contractors who were not, concurrently,
members of some other trade group, derives - so I find
- from a record misconstruction . During the parties'
October 30 bargaining session, Respondent Union's
spokesmen did submit such a restricted "preamble"
proposal . Before the session terminated, however, Local
220's negotiators had effectively withdrawn their proposal;
they had noted their concurrence with a proffered counter
suggestion . The consensus thus "finally" reached
regarding this preliminary language was later
supplemented ; Respondent Union consented to define -
within a following numbered provision - the parties
contractually vested with "exclusive bargaining rights"
thereunder. (RCA's suggested contractual modification in
this respect had first been proffered, so I find, within that
body's July 10th contract proposal. The present record
reflects no rationale for the proposal's October 30 revival.)
647
Between December 4 and January 11, Local 220's
representatives reconsidered and pressed for deletion of
this supplementary "exclusive bargaining rights" language.
Thus, when the session last-designated concluded,
Respondent Union was - so far as the record shows -
still ready to recognize Complainant Association herein,
as: -
. the sole and exclusive bargaining representative for
its members and such others of the roofing contractors
of . Orange County as [this Association is]
authorized by this agreement and/or bylaw to represent
The parties' sole remaining disagreement, then, related
merely to Respondent Union's refusal to consider RCA's
further "alternative" proposals: (1) that previously
proposed supplementary "exclusive bargaining rights"
language be retained within article V, paragraph 1,
specifically; or (2) that their agreed-upon recognition
provision, currently set forth within a preliminary
"Bargaining Representative" paragraph, should instead be
designated article I, within their contract's main body.
This simple textual dispute, within my view, reflects no
basic refusal to concede RCA's representative status with
respect to the "entire multiemployer unit" which
Complainant Association represented.
However, Respondent Union's further January 11
bargaining posture - with particular reference to matters
regarding which RCA could not be legally forced or
required to bargain - merits further consideration.
General Counsel contends that Local 220's
representatives "bargained to impasse" with respect to
such matters; thus, Respondent Union's rigidity and
persistence, so the argument runs, constituted a statutory
violation . Cf. N.L.R.B. v. Wooster Division of
Borg-Warner Corp., 356 U.S. 342, 349; Local 164,
Brotherhood of Painters, AFL-CIO (Cheatham Painting
Co.), supra. This contention - within my view - must be
considered meritorious.
When a consensus has been reached regarding wages,
hours and other terms or conditions, neither the employer
nor the representative of his workers may refuse to enter
into contractual commitments embodying them, basing
that refusal on the ground that such commitments do not
include some provision regarding matters which are not
mandatory subjects for collective bargaining; such
conduct, so the decisions teach, constitutes a refusal to
bargain about those subjects which are within the scope of
mandatory negotiations.
Within his brief, Respondent Union's counsel has
succinctly characterized General Counsel's testimonial
presentation as calculated to demonstrate that Local 220
was not bargaining in good faith; that tentative
agreements were, at later meetings retracted; and that
Respondent Union made new and further proposals with
respect to subjects which had, presumably, been covered.
In reply, Respondent Union's counsel contends: (1) That
both parties' negotiators clearly conceived their consensual
commitments as tentative, with no contractual provisions
to be considered finally settled pending a consensus with
respect to some complete document, which Respondent
Union's membership could, thereafter, consider and ratify;
(2) that negotiations conducted pursuant to such a
consensual understanding have continued; (3) that, since
their January 11th bargaining session, Local 220's
spokesmen have proffered "many concessions" with
respect to various disputed nonmandatory matters, though
problems related to trust fund management remain still
unresolved, and (4) that Respondent Union is presently
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ready, willing and able to continue negotiations. Should
the Board find merit in these contentions - certainly -
no determination could be considered warranted that
Respondent Union was "refusing to bargain" regarding
these unsettled matters.
When Section 8(d) was added to the statute, there was
general agreement that this provision confirmed previous
Board and judicial determinations that the duty to bargain
- for both union and employer respondents -
comprehended a duty to negotiate in good faith. N.L.R.B.
v. Reed and Prince Manufacturing Co., 205 F.2d 131, 134
(C.A. 1). The section in question - pursuant to Board
and court constructions - imposes a mutual duty upon
both labor and management representatives to enter into
negotiations with an "open and fair mind and a sincere
purpose to find a basis of agreement." N.L.R.B. v.
Darlington Veneer Co., 236 F.2d 85, 89 (C.A. 4). It
condemns adoption by either party of "take it or leave it"
attitudes. Such "good faith" postures are required, on the
theory that discussions carried on in such an atmosphere
"may narrow the issues, making the real demands of the
parties clearer to each other, and perhaps to themselves,
and may encourage an attitude of settlement through give
and take ." N.L.R.B. v. Insurance Agents International
Union , 361 U.S. 477, 487-488. Firmness in negotiations
- even when coupled with a readiness to use economic
pressures calculated to make the other party more
complaisant regarding contract terms - may still be
consistent with the duty to bargain in good faith.
N.L.R.B. v. Truitt Manufacturing Co., 351 U.S. 149,
154-155 (Justice Frankfurter, concurring). But whatever
course negotiations may take, the designated duty must be
satisfied, consistently with the legislative belief that such
an approach by both sides promotes the achievement of
industrial peace.
What reaction does the statute command, then when
the record reveals a lengthy series of conferences, without
the achievement of complete contractual consenses? When
required to determine whether respondent labor
organizations particularly, found in such a situation, have
"refused to bargain" collectively this Board must,
substantially, decide - with due regard for all relevant
circumstances - whether they have really been engaged in
mere surface or sham bargaining, calculated to force or
dictate a contractual consensus consistent with some fixed,
predetermined position.
When "employers" have been charged with refusals to
bargain in good faith, Board determinations regarding the
propriety of their conduct have generally been bottomed
upon conclusions that the particular course of conduct
being reviewed provided a clear manifestation of the
employer's then state of mind, revealing, therefore, his
lack of good faith. N.L.R.B. v. Crompton Highland Mills,
337 U.S. 217; H. J. Heinz Co., v. N.L.R.B., 311 U.S.
514; see N.L.R.B. v. Cascade Employers Association, 296
F.2d 42 (C.A. 9). And whenever particular employer
conduct challenged as constituting a refusal to bargain -
considered in isolation - will not justify such a
conclusion regarding the respondent employer's lack of
good faith, the Board must determine his state of mind by
reviewing the totality of the circumstances. Compare
N.L.R.B. v. Williamsburg Steel Products Company, 289
F.2d 700 (C.A. 2), in this connection.
Similar considerations must, necessarily , govern Board
judgments when some labor organization has been charged
with refusal to bargain. Respondent Union's counsel, so
far as I could tell, makes no contrary contention.
With these considerations in mind - having reviewed
the positions which Local 220 spokesmen took, during
negotiations, particularly with regard to performance bond
and grievance procedure questions - this trier of fact
feels constrained to conclude that, during the October 23
- January 11 period with which we are now concerned,
Respondent Union's overall course of conduct did not
satisfy statutory "good faith" standards. More
particularly, I find merit in General Counsel's contention,
previously noted:
that in bargaining subsequent to the Settlement
Agreement, Respondent [Union], while ostensibly
bargaining with an open mind as required by the
Statute, in fact had a fixed predetermined position that
it would accept no agreement with substantive terms
other than those in the agreement which it reached
October 18, 1967, in joint bargaining with Roofers
Locals 36 and 72 involving two other Roofing
Contractors associations ...
Such a bargaining posture, maintained with respect to
so-called mandatory subjects - wages, hours, and
conditions of work - may, conceivably, flout no statutory
mandate: Compare General Teamster, Warehouse and
Dairy Employees, Local Union 126 (Oshkosh
Ready-Mixed Co.), Case 30-CB-204, Trial Examiner's
Decision 44-69, wherein Trial Examiner Reel discusses
some closely related questions; Cf. United Mine Workers
v. Pennington , 381 U.S. 657. When maintained, however,
with respect to certain so-called "nonmandatory" subjects
- responsibility bond requirements, plus proposals calling
for multiple-association representation within a particular
employer group designated to hold Joint Labor Relations
Board membership - persistence carried to the point of
obduracy may well merit Board proscription. Cf.
Operative Plasterers' and Cement Masons' International
Association, Local No. 2, AFL-CIO (Arnold M. Hansen),
supra. Was respondent labor organization herein
"demanding and insisting" that RCA's contract should
contain these nonmandatory provisions, then, without
having given Complainant Association's negotiators a real
opportunity to bargain, and without the statutorily -
requisite intention to bargain in good faith? This question,
within the present record's context, merits affirmative
response.
Previously, within this decision, we have noted
Respondent Union's participation in concurrent
negotiations with URCA and RCAOC during the period
with which this case is concerned, looking toward a
contractual consensus with which various roofing
contractors - represented by these other trade groups
- within a three-county territory would subsequently be
requested to concur. With respect to these concurrent
negotiations, Respondent' Union's two sister locals -
which shared Los Angeles and Ventura County
jurisdiction - had, clearly, been prime movers;
Respondent Union's participation had, realistically, been
subordinated. By October 18, 1967, contractual consensus
had been reached; that consensus had compassed a
commitment (art. VIII) previously noted, which read as
follows:
B. No Contractors signatory hereto shall be required to
pay higher wages or be subject to less favorable
working rules than those applicable to other
Contractors employing members of the Union
performing similar work in the same jurisdiction.
With matters in this posture, there can be no doubt that
respondent labor organization herein lost considerable
UNITED SLATE, TILE & COMPOSITION 649
"freedom to maneuver" within the negotiations which are
now being reviewed , when dealing with Complainant
Association for various Orange County roofing
contractors . (The record reflects frequent contacts -
between . October 23 and January 11 specifically -
between Local 220's spokesmen and representatives of
that body' s sister locals . Those contacts were , clearly,
calculated to provide Respondent Union's negotiators with
guidance regarding this continued bargaining posture.)
Respondent Union' s negotiators , plainly, felt themselves
constrained to withhold any concessions - during the
particular negotiations with which we are now concerned
- which conceivably could "water down" those wage
rates or working rules which had been set for roofers
throughout the three -county territory , pursuant to their
October 18th contractual consensus.
Within such a context of constraint , Respondent
Union 's patent January I l determination to retract certain
substantive consensual commitments previously made may
be understandable , certainly . Judgment could hardly be
considered warranted , however , that Respondent Union's
several reversals were consistent with "good faith"
negotiation . With a background of some 22 bargaining
sessions - within which these negotiators had reached a
number of consensual understandings - respondent's
labor organization ' s restated January 11 bargaining
posture was reasonably calculated to convey the message
that contractual provisions significantly different from
those which had been reached October 18 - within that
body's concurrent negotiations - would not be tolerated.
And disagreement between the parties was, thereby,
necessarily rendered broader . Substantially , Respondent
Union revealed that it had relinquished its policy of
negotiation with reasonable firmness - which had
brought the goal of final contractual consensus
conceivably within reach - for a policy of dogged
intransigence "more likely to discombobulate than to
compose" differences . See Justice Frankfurter, Textile
Workers Union v. Lincoln Mills , 353 U.S. 448, 464,
dissenting in another context ; Great Western Broadcasting
Corporation , 139 NLRB 93, 130-135. Such conduct
persuasively suggests the absence of that "state of mind"
which the statute requires . Thus, RCA's negotiators could,
within my view , reasonably conclude, as they clearly did,
that - regarding those nonmandatory subjects of
bargaining with which we are now concerned -
statutorily proscribed " impasse" had been reached.
c. Trust questions
When negotiations were temporarily suspended -
following the parties' January 11 session - no consensus
whatever, regarding Complainant Association's
participation in various fringe benefit trusts, had been
reached.
The record with respect thereto reflects protracted
discussions - dating back to the time when negotiations
began -- which had compassed a number of questions
related to trust fund management particularly. Inter alia,
these discussions - with particular reference to their
January 11th status - had revealed basic disagreements
concerning the projected composition of so-called
employer-trustee groups which would be charged with
prospective management responsibility for various trust
funds. Regarding these disagreements , General Counsel's
position - stated within his brief - stands as follows:
In this posture, the only issue is whether Respondent
[Union] can demand to point of impasse that RCA be
represented by only two of the six employer-trustees
and thus restrain and coerce an employer in the
selection of his representatives for collective bargaining
and the adjustment of grievances in violation of Section
8(b)(1)(B). RCA does not want to delegate to
representatives not of its choosing the decision of how
the trust funds paid by it shall be administered. The
trust funds in question are the fruits of collective
bargaining. Their administration is only an extension of,
and hence a part of, the same collective bargaining
which brought the funds into existence in the first place.
Hence , insistence by Respondent [Union ] to point of
impasse that it control the designation of four of the six
employer-trustees is violative of Section 8(b)(1)(B) and
8(b)(3) of the Act. [Emphasis supplied.]
Previously , within this decision , determination has been
made that Respondent Union 's January 11th bargaining
posture compassed a persistent demand that Complainant
Association herein "accept" that body ' s October 23 article
XX proposal , regarding certain trust agreements and
related provisions . And this trier of fact 's review of
Respondent Union's October 23 proposal does reveal -
consistently with General Counsel 's contention - that
RCA's negotiators thereby were , inter alia , being pressed
to "designate and appoint" certain employer-designated
representatives , mentioned in various collateral trust
agreements , for service as trustees , qualified to function in
behalf of contractor contributors pursuant to such trust
document provisions . (Contrary to General Counsel's
contention previously noted, however , Respondent Union
was not demanding that "it" control the designation of
four out of six employer-trustees; Complainant
Association was being pressed to concede the right of two
different trade groups [URCA and RCAOC I to designate
four out of six employer -trustees, qualified to represent all
contractor contributors .) Should bargaining table
pressures - directed to such contract goals - be found
violative of law? Or should they be considered part of
some genuine impasse , with respect to which the parties
remain free to negotiate further?
First: Does Respondent Union 's mere persistence in
negotiations , with respect to this demand , when pressed to
the point of conceded impasse , constitute "restraint and
coercion" directed to Complainant Association, regarding
the selection of its representatives for the purposes of
collective bargaining or the adjustment of grievances?
Despite General Counsel's categorical statement of
position , previously noted, this question cannot be
considered settled . Clearly, persistent demands regarding a
business firm ' s "selection of representatives" purportedly
for collective bargaining purposes - within a context of
threats and various economic pressures - constitute
restraint and coercion statutorily proscribed. Operative
Plasterers ' and Cement Masons ' International
Association , Local No. 2, AFL-CIO (Arnold M. Hansen),
supra . This record , however , reveals no postsettlement
threats between October 23 and January 11 particularly,
nor does it reveal economic pressures brought to bear
upon roofing contractors , during the period with which we
are now concerned . True , such pressures had previously
been brought to bear upon various contractors whom
RCA represented . However, Local 220's spokesmen -
pursuant to their settlement agreement - had foresworn
such conduct; whatever else the record may show
regarding their behavior between October 23 and January
11, no disposition to resume "violence, intimidation, and
reprisal or threats thereof" has been revealed. Cf.
Metropolitan District Council of Philadelphia (McCloskey
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Company), supra . General Counsel ' s Section
8(b)(I)(B) contention regarding this facet of his case -
within my view - must be rejected . (My conclusion,
stated , relates merely to Respondent Union ' s October
23-January 11 course of conduct . Previously , within this
decision , discussion was reserved with respect to General
Counsel ' s contention that Respondent Union's
presettlement conduct - particularly so far as trust
questions were concerned - presently merits formal
Board proscription . Now then , upon this record , there can
be no doubt that Respondent Union ' s resort to strike
pressures directly following the Master Labor
Agreement ' s termination - calculated to force the
concurrence of RCA - represented contractors regarding
a short-term continuation of the various trusts therein
provided - constituted a restraining and coercive tactic.
Further , for reasons which I propose to discuss within this
portion of my decision , I would find , likewise, that
Respondent Union ' s short-term bargaining goals, with
particular reference to trust fund questions, were not
within the compass of those goals for which a resort to
strike tactics could be considered privileged.)
Second: Does Respondent Union 's concededly
intransigent position regarding the matter now under
consideration, nevertheless , constitute a postsettlement
refusal to bargain? General Counsel contends that it does,
primarily because Respondent Union ' s article XX
proposal compassed a demand - with reference to the
composition of employer -trustees - which Local 220's
spokesmen could not , legally , press to impasse The
present state of the law , however , hardly warrants a
conclusion consistent with General Counsel's contention.
True , this Board has recently held that contract proposals
calculated to require employer consent with respect to
certain trust agreements - whereby signatory firms would
be bound to "accept" representation on boards of trustees
by employer representatives not of their own choosing -
contain a so-called nonmandatory provision , United Slate,
Tile & Composition Roofers, Damp & Waterproof
Workers Association , Local No . 36 (Roofing Contractors
Association of Southern California, Inc.), 172 NLRB No.
249. And - consistently with the rationale set forth,
previously , within this decision - bargaining carried to
impasse , regarding such a claimed "nonmandatory"
provision , conceivably could be considered a refusal to
bargain statutorily proscribed . No decisional precedent
cited for my consideration , however, has so held,
specifically.
The case just cited - which concerned a Los Angeles
County roofing contractor with RCA representation -
did hold Section 8 (b)(3) violated when Local 36,
Respondent Union 's sister local, brought strike pressures
to bear upon the contractor concerned , for the purpose of
forcing him to sign a contract which contained such a
claimed "non mandatory" provision . With all respect,
however , I note that this Board , therein , merely
"adopted" without discussion certain findings,
conclusions , and recommendations which the Trial
Examiner had proffered . The Trial Examiner 's relevant
conclusion regarding the respondent labor organization's
refusal to bargain likewise , had been proffered - so I find
- without any textual rationale ; he had , merely , cited a
single case for some purported precedent value. Due
consideration has persuaded me, however that the Trial
Examiner' s cited case , whatever its persuasive relevance
with respect to matters before him, cannot reasonably be
considered determinative herein . The question now posed
- within my view - remains open . Some factual and
legal considerations, relevant to its resolution, merit
discussion.
RCA's recently terminated Master Labor Agreement,
previously noted, had incorporated by reference five
collateral trust agreements; the last of these, designated
the "Roofing Industry Trust" specifically, had created a
fund for industry promotion purposes. This Board has
consistently found contract proposals with respect to such
promotion funds "nonmandatory" subjects for collective
negotiation. Painters District Council No 36, AFL-CIO
(Commercial Drywall Constructors, Inc.), supra;
Metropolitan District Council of Philadelphia and Vicinity
of the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (McCloskey and Company), supra.
These determinations, however, have not been bottomed
upon factual findings regarding the composition of their
trustee boards; they have seemingly been bottomed,
rather, upon the Board's conclusion that such funds lack
any direct relationship to "wages, hours, and other terms
and conditions of employment" with respect to which
collective bargaining may be compelled. (This
consideration has persuaded me that - with respect to
trust matters particularly - the General Counsel's
Section 8(b)(1)(B) challenge, directed to respondent labor
organization's presettlement conduct, should be found
meritorious. Clearly, when Respondent Union resorted to
strike pressures - calculated to force RCA -
represented contractors to sign short-term contracts which
would temporarily continue various preexistent trusts,
including the Roofing Industry Trust for trade promotion
purposes, previously noted - that body was pursuing a
statutorily proscribed course of conduct to coerce
employer concurrence regarding a "nonmandatory"
substantive matter) True, both cases cited did concern
preexistent funds currently being managed by boards of
trustees which consisted partially of employer
representatives previously designated by some employer or
trade association signatory or signatories, other than the
particular "employer" whose contractual concurrence was
being sought. Neither case, however, reveals any Board
determination - bottomed upon such a consideration
specifically - that contractual proposals with respect to
such funds could not, legitimately, be pressed. For
example, within the case last cited, the Board decision
declares: -
The Trial Examiner found, and we agree, that, because
the ]Industry Advancement Program] included
provisions relating to matters which are not mandatory
subjects of bargaining, Respondent's insistence upon
inclusion of the IAP in its contract with McCloskey
constituted a refusal to bargain within the meaning of
Section 8(b)(3) of the Act. . . . Furthermore, we agree
with the Trial Examiner that McCloskey's acceptance
of the IAP, in effect, would have amounted to a
designation of the [General Building Contractors
Association, Inq.] as its collective-bargaining
representative with respect to the subjects included
therein While Respondent could propose such a
designation, it could not insist upon it. Accordingly, we
find, for this reason also, that Respondent's insistence
upon inclusion of the IAP as a condition of signing a
contract with McCloskey, constituted a refusal to
bargain within the meaning of Section 8(b)(3).
[Emphasis supplied.]
This Board has, thus, never held definitively, so far as I
can tell, that - with respect to contract proposals dealing
with genuine fringe benefit trust funds solely - labor
negotiations may not legally "demand" that business
UNITED SLATE, TILE & COMPOSITION 651
firms accept representation on boards of trustees through
"employer-trustees" not chosen exclusively by them.
Respondent Union's January 11 bargaining posture,
however, presents precisely such a question. Local 220's
October 23 contract proposal had called for the
establishment of five trust funds; no "Roofing Industry
(Promotion) Trust" had, however, been suggested. This
record, further, will support a determination that
Respondent Union's article XX proposal - which,
substantially, would have required Complainant
Association's participation in trusts covering all roofers
within a three-county territory, managed by boards with
three locals and three employer groups represented -
rested primarily upon practical considerations. No
conclusion would be warranted that Respondent Union's
proposal had been proffered deliberately to deprive
RCA-represented contractors of complete freedom of
choice with regard to their designation of trustee
representatives.
Within his brief, Respondent Union's counsel notes,
cogently, that - with respect to negotiated fringe benefit
trust funds covering an entire industry or craft, within a
given geographical area, particularly in construction trades
- management responsibilities have, quite commonly,
been delegated to joint labor-management trustee boards
with respect to which particular signatory contractors may
not have had some initial or exclusive freedom of
designation. Conventionally, such trusts have been created
- with wide worker coverage - largely to procure
whatever practical advantages or benefits the parties may
derive from:
1. Their centralized administration of large funds,
amassed through pooled contributions, made by
nominally "separate" employer contributors;
2. Their negotiation and procurement of group "health
and welfare" coverage for larger worker groups,
calculated to provide maximum insurance benefits at
minimum cost;
3. Their maintenance of fringe benefit programs
uniformly applicable throughout a given trade, industry,
or territorial labor market.
RCA's trust proposals - with particular reference to the
fund which would be charged with procuring health and
welfare benefits for covered workers - were, within
Local 220's view, calculated to frustrate the creation of
consolidated, viable trust fund programs directed toward
such "economic" goals.
Within his brief, Respondent Union's counsel has
characterized Complainant Association's trust proposals
as impractical . Boards of trustees with employer
representatives designated by RCA solely, charged with
managerial responsibility for trust funds which would
merely cover roofers hired by RCA-represented Orange
County contractors - so the argument runs - could not
procure health and welfare benefit coverage matching the
coverage which a larger, three local-two association, trust
fund with three-county coverage could provide. Further,
Respondent Union 's counsel suggests that: -
. . . when employees from Local 220 work for other
contractors in [Orange] County as well as in Los
Angeles County, and when employees from Locals 36
and 72 work also for R.C.A. contractors in Orange
County as well as in Los Angeles and Ventura
Counties...
their fringe benefit privileges , with respect to health and
welfare coverage particularly, would therefore necessarily
vary.
With these considerations concededly present,
Respondent Union's October 23 proposal - looking
toward the creation of several consolidated, three
local-three association, trust funds - cannot be treated
merely as one primarily calculated to deprive employer
signatories of statutorily protected freedom of choice, with
respect to their representation on boards of trustees.
Rather, Local 220's position regarding the proposed
composition of such boards - within my view - should
be considered part and parcel of that body's overall
position relative to substantive fringe benefit programs.
(To put the matter otherwise: Local 220's negotiators -
who were, presumably, seeking fringe benefit programs
with, (a) centralized administration calculated to minimize
costs, (b) lower premium charges, and (c) benefits both
made uniform and maximized - could, within my view,
reasonably contend that consolidated funds, covering all
roofers within a three-county territory, with all three
concerned locals and three employer groups necessarily
represented on their boards of trustees, would be
required.) So viewed, Respondent Union's January 11
contractual trust fund "package" proposal really dealt
with "wages. . . and conditions of employment"
substantively. Those provisions, necessarily compassed
therein, which - inter alia - would have presumptively
required RCA-represented Orange County contractors to
"accept" representation on boards of trustees shared with
representatives designated by two other trade groups,
should be considered subsidiary or collateral. (General
Counsel contends that Respondent Union's several
proposed trust funds represented the fruits of collective
bargaining, and that their "administration" should be
considered, therefore, merely an extension of whatever
collective bargaining had led to their creation. The record
suggests a counter-proposition, however, that union and
employer trustees - when functioning as such - do not
"bargain" within the statutory sense. Conceivably, this
Board could conclude that trustees, functioning within the
defined framework which their trust agreement provides,
cannot properly be considered representatives of parties
with opposed demands or conflicting claims, requiring
reconciliation. Then, proposals regarding the
representation of signatory firms or trustee boards might
well be considered completely without relevance to "the
selection of [employer] representatives for the purposes of
collective bargaining." No such contention has been
litigated or briefed, however, beyond General Counsel's en
passant reference. I have not, therefore, found it necessary
to consider the proposition's validity.) Since Respondent
Union's trust fund "package" proposal - thus construed
- contained no provisions regarding substantive matters
which could not be considered mandatory subjects for
collective bargaining - that body's renewed January 11th
insistence upon RCA's concurrence, with respect thereto,
reflected no bad faith refusal to bargain; I so find.
My conclusion in this connection, however, constitutes
no determination that Respondent Union's bargaining
demands - with regard to trust fund matters - deserve
RCA's concurrence; Complainant Association's position
- particularly with respect to such matters as the
desirability of professional administration for the parties'
health and welfare fund, and the desirability of sealed bid
procedures when purchasing insurance coverage - could
be considered equally well taken. Such determinations,
regarding the merits of the parties' substantive positions,
clearly, must be considered beyond this trier of fact's
province. Essentially, then, this decision can do no more
than declare that - within my view - trust fund
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations necessarily present a complex of closely
meshed , practical questions for resolution, with respect to
which the parties should be left free to bargain.
d. San Marino Roof
With respect to Respondent Union' s subsequent course
of conduct, vis-a-vis San Marino Roof, previously noted,
little more need be said . Throughout the period with
which this case is concerned , San Marino maintained Los
Angeles County and Orange County places of business.
With respect to both - so far as the record shows -
Complainant Association had been designated San
Marino's collective bargaining representative. During
January 1968, that designation was, so I find, still viable.
(The question of San Marino's representation for
collective bargaining purposes - with particular reference
to the firm's San Gabriel, Los Angeles County, place of
business - has not really been litigated . However, the
present record - considered together with this Board's
recent decision involving Respondent Union's sister Local
No. 36, previously noted - warrants a determination that
RCA has, throughout, represented this firm "individually"
while negotiating with Locals 36 and 72 for various Los
Angeles and Ventura County roofing contractors.
Concurrently, Complainant Association herein - so I
have found - has likewise represented San Marino's
Stanton branch, throughout those negotiations involving
Local 220 with which this case is concerned. During
January 1968, both negotiations were continuing , though
RCA's bargaining sessions with Respondent Union's
negotiators, for Orange County contractors, had been
temporarily suspended.) When, therefore, Respondent
Union's business representative -- during his January 26
or 29 conversation with San Marino's president -
requested the latter to sign a separate "individual"
contract which conformed with the contractual consensus
reached October 18, 1967, by Local 220, inter alia, with
URCA and RCAOC respectively, Respondent Union was
clearly dealing directly with San Marino, bypassing the
firm's designated representative. And San Marino's
subsequent compliance with Respondent Union's demand,
shown by the record, necessarily reflected its
relinquishment of statutorily guaranteed freedom to select
its representative for collective-bargaining purposes free of
coercion. I so find.
Further, Respondent Union's prior October 18
contractual consensus with two different trade groups -
which San Marino was belatedly being requested to sign
- did compass : ( 1) those whose mandatory responsibility
bond requirements which previously within this decision,
and (2) grievance machinery provisions , likewise discussed
previously, pursuant to which San Marino would be
required to accept representation partially by designated
employer spokesmen not of San Marino' s choice,
functioning as that firm's representatives for the
adjustment of grievances . Previously, within this decision,
such contractual provisions have been found permissible
but nonmandatory subjects for collective negotiation.
Since the record, herein , clearly warrants a
determination that San Marino's final concurrence -
with respect to Respondent Union's proffered contract -
was coerced by Business Representative Nuttall's threat of
economic reprisal, should the firm's contractual
commitment be delayed, a conclusion seems clearly
warranted that San Marino was subjected to statutorily
proscribed restraint or coercion , regarding its selection of
representatives , both for the purposes of collective
bargaining and grievance adjustment . (For reasons
previously noted, I would find no statutorily proscribed
restraint or coercion with respect to Respondent Union's
late January course of conduct, so far as it concerned San
Marino ' s concurrence regarding contractual provisions
proposed on conventional fringe benefit trust fund
matters .) Further , when Respondent Union resorted to
threats of economic reprisal, calculated to force or require
San Marino's concurrence with respect to these designated
"nonmandatory" contract subjects , that body likewise
was, realistically , guilty of refusing to bargain in good
faith. I so find.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent Union, together with its
designated representative , set forth in section III, above
- since they occurred in connection with the business
operations of various roofing contractors whom
Complainant Association represented - have had a close,
intimate , and substantial relation to trade, traffic, and
commerce among the several States . Absent correction
they would tend to lead, and in this instance have led, to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondent Union,
together with its representative , engaged , and continues to
engage , in certain unfair labor practices , it will be
recommended that they cease and desist therefrom and
take certain affirmative action, including the posting of
appropriate notices , designed to effectuate the policies of
the Act, as amended.
Respondent Union suggests that its course of conduct
since January 11, 1968 - specifically, its participation in
further bargaining sessions - demonstrates its present
readiness to confer in good faith , looking toward a
contractual consensus . Counsel for respondent labor
organization proposes that the Consolidated Complaint's
dismissal would , therefore, be warranted . Guardian Glass
Co., Inc., 172 NLRB No. 49. Counsel's cited case,
however, provides no persuasive support for his
suggestion . Well-established decisional doctrine teaches
that when proper proceedings are brought - within the
Board's discretion - judicial enforcement , with respect to
Board orders , will be granted even though particular
respondent parties may have previously complied with the
orders. N.L.R.B. v. Mexia Textile Mills, 339 U.S. 563.
Certainly, this Board retains a comparable discretion,
administratively , when confronted with some respondent's
plea that conduct nominally subject to statutory
proscription has ceased during a given case ' s pendency.
And nothing within the present record , within my view,
would warrant a definitive conclusion that Respondent
Union ' s most recently modified bargaining posture
realistically reflects a resumption of good faith
negotiations . The record does reveal certain modified
proposals , presented for Complainant Association's
consideration . Their propriety , however, has not been
litigated . And further - assuming , arguendo , that their
recent presentation may well reflect a modified bargaining
stance by Respondent Union herein which flouts no
statutory mandate - public policy would, within my view,
still require the formal proscription of prior conduct
herein found violative of law.
UNITED SLATE, TILE & COMPOSITION
CONCLUSIONS OF LAW
In the light of these findings of fact, and upon the
entire record in this case , I make the following
conclusions of law:
1. Roofing Contractors Association of Southern
California , Inc., plus those Orange County roofing
contractors - previously specified herein - who may
have designated it their representative for collective
bargaining purposes , are employers within the meaning of
Section 2 (2) of the Act, engaged in commerce and
business activities which affect commerce within the
meaning of Section 2 (6) and (7) of the Act, as amended.
2. United Slate , Tile & Composition Roofers, Damp &
Waterproof Workers Association , Local No. 220, is a
labor organization within the meaning of Section 2(5) of
the Act , as amended, which admits employees of various
Orange County roofing contractors to membership.
William D . Nuttall , Respondent Union ' s financial
secretary and business representative , was, throughout the
period with which this case is concerned , an agent of the
designated labor organization , within the meaning of
Section 8(b) and Section 2(13) of the Act , as amended.
3. All roofers employed by RCA member contractors
and/or by nonmember contractors who have given RCA
exclusive rights to function as their collective -bargaining
representative within the Orange County , California
geographical territory specifically , constitute a unit
appropriate for collective bargaining purposes , within the
meaning ' of Section 9(b) of the Act, as amended.
4. Throughout the period with which this case is
concerned , Respondent Union has been designated by a
majority of roofers , within the unit described previously,
as their representative for the purposes of collective
bargaining , with respect to rates of pay, wages , hours of
employment , and other terms and conditions of
employment . By virtue of Section 9(a) of the Act,
Respondent Union therefore has been, and is now, entitled
to recognition as the exclusive representative of all
employees within the described unit, for
collective -bargaining purposes.
5. Since August 15, 1967, and throughout the period
with which this case is concerned, RCA, various Orange
County member contractors , and nonmember contractors
who had, previously given the designated trade association
exclusive rights to function as their bargaining
representative within the Orange County, California,
geographical territory specifically , have recognized
Respondent Union as the exclusive bargaining
representative of employees within the unit previously
described.
6. Between August 15 and September 28, 1967,
Respondent Union refused to bargain with various Orange
County roofing contractors , or with Roofing Contractors
Association of Southern California , Inc. as their
collective-bargaining representative , with respect to the
worker' s unit found appropriate herein , by: (1) Dealing
directly with various Orange County roofing contractors,
requiring these contractors to repudiate or disavow
Complainant Association ' s previously conceded status as
their designated collective-bargaining representative, and
further requiring their concurrence , with respect to
separate short -term contracts , without giving them a
chance to bargain thereon ; and (2) resorting to strike
pressures calculated to force or require individual
contractors to sign short -term contracts containing (a)
responsibility bond requirements , (b) grievance procedure
provisions which would compel signatory contractors to
653
rely partially on employer representatives not chosen by
them for grievance adjustment purposes , and (c) trust fund
provisions whereby a previously negotiated trade
promotion fund would be continued . Respondent Union
did, thereby , refuse to bargain , within the meaning of
Section 8(b)(3) of the Act , as amended.
7. Between August 15 and September 28, 1967,
Respondent Union restrained and coerced various Orange
County roofing contractors with respect to their selection
of representatives for the purposes of collective bargaining
or the adjustment of grievances , by: (1) Dealing directly
with individual roofing contractors , and requiring such
contractors to repudiate or disavow Complainant
Association ' s previously conceded status as their
designated collective -bargaining representative; (2)
demanding that such contractors sign separate short-term
contracts with grievance procedure and trust fund
provisions which would compel signatory contractors to
rely partially on employer representatives not chosen by
them for the purposes of grievance adjustment or
promotional trust fund management . Thereby , Respondent
committed unfair labor practices within the meaning of
Section 8(b)(1)(B) of the Act , as amended.
8. Between October 23 , 1967, and January 11, 1968,
and continuing to date , Respondent Union has refused to
bargain with Roofing Contractors Association of Southern
California , Inc. as collective-bargaining representative for
a multipleemployer group , compassing certain designated
Orange County roofing contractors , by: (1) Refusing to
negotiate meaningfully , or bargain collectively in good
faith with regard to certain proposed "responsibility
bond" requirements ; (2) demanding , to point of impasse,
that Complainant Association accept certain grievance
procedure proposals which would compel RCA, together
with its represented contractors , to rely partially upon
employer representatives not chosen by them, with regard
to grievance adjustment matters . Thereby , Respondent
Union engaged , and continues to engage , in unfair labor
practices , within the meaning of Section 8 (b)(3) of the
Act, as amended.
9. By threats of economic reprisal - directed to San
Marino Roof Company specifically - which were
reasonably calculated to force or require that designated
contractor to sign a separate " individual" contract
whereby: (1) The firm ' s previously designated collective
bargaining representative, Complainant Association
herein, was bypassed; and (2 ) the firm 's concurrence was
required with respect to certain "responsibility bond" and
"grievance procedure " provisions , previously discussed,
Respondent Union has restrained and coerced San Marino
regarding its selection of representatives for the purposes
of both collective bargaining and grievance adjustment.
Further, Respondent Union has refused to bargain
collectively in good faith. Thereby, Respondent Union has
engaged and continues to engage , in unfair labor practices
within the meaning of Section 8 (b)(1)(B) and Section
8(b)(3) of the Act, as amended.
10. The unfair labor practices herein found are unfair
labor practices which affect commerce within the meaning
of Section 2(6) and (7) of the Act, as amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law and
upon the entire record in the case, it is recommended that
the Board , pursuant to Section 10(c) of the National
Labor Relations Act, as amended , order that Respondent
Union, United Slate , Tile & Composition Roofers, Damp
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
& Waterproof Workers Association, Local 220, its
officers, representatives , agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain with Orange County roofing
contractors, or with Roofing Contractors Association of
Southern California, Inc. as their collective-bargaining
representative within an appropriate multipleemployer
unit, by: (1) Dealing directly with such roofing
contractors, requiring them to repudiate or disavow
Complainant Association's status as their designated
collective bargaining representative, or further requiring
their concurrence with respect to separate contracts
(whether of short or long duration), without giving them
an opportunity to bargain thereon; (2) Resorting to strike
pressures , threats of economic reprisal , or other coercive
conduct for the purpose of forcing or requiring individual
contractors to sign separate contracts with " responsibility
bond" requirements , grievance procedure provisions which
would compel such signatory contractors to rely partially
on employer representatives not chosen by them, with
respect to grievance adjustment matters, or trust fund
provisions whereby trade promotion funds would be
created or maintained; or (3) Persistently demanding, to
the point of impasse, that Complainant Association sign a
contract for a multiple-employer unit with "responsibility
bond" requirements, or grievance procedure provisions
which would compel Complainant Association or
represented contractors to rely partially on employer
representatives not chosen by them, with respect to
grievance adjustment matters.
(b) Restraining or coercing Orange County roofing
contractors, or Roofing Contractors of Southern
California, Inc. functioning as their collective-bargaining
representative, by resorting to strike pressures, threats of
economic reprisal, or other coercive conduct: (1) For the
purpose of forcing or requiring such roofing contractors to
deal separately with respondent labor organization, to
repudiate or disavow Complainant Association's status as
their designated collective bargaining representative, or to
sign separate contracts (whether of short or long duration)
without giving them an opportunity to bargain thereon; or
(2) for the purpose of forcing or requiring their
contractual concurrence regarding grievance procedure
provisions which would compel them to rely partially on
employer representatives not chosen by them, with respect
to grievance adjustment matters.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Notify Complainant Association, in writing, that it
will not persist in demanding contractual "responsibility
bond" requirements, or other contractual provisions
dealing with • nonmandatory subjects for collective
bargaining , with respect to which Complainant
Association may object, and that it will reimburse those
roofing contractors whom Complainant Association
represents for any expenses which they may have incurred
in connection therewith, from August 15, 1967, to date,
plus 6 percent yearly interest thereon computed in
conformity with current Board requirements;
(b) Upon request, bargain collectively with Roofing
Contractors Association of Southern California, Inc., as
the exclusive representative of roofers employed by
Orange County roofing contractors whom the designated
trade association represents , and embody any
understanding reached in a signed agreement;
(c) Post at conspicuous places , within its principal office
and usual membership meeting place , including all places
where notices to members are customarily posted, copies
of the notice attached marked "Appendix."' Copies of the
notice, to be furnished by the Regional Director for
Region 21 as the Board's agent, shall be posted
immediately upon their receipt, after being duly signed by
some official representative of Respondent Union. Once
posted, they shall remain posted for 60 consecutive days
thereafter in such conspicuous places. Reasonable steps
shall be taken by Respondent Union to insure that said
notices are not altered, defaced, or covered by any other
material;
(d) Furnish to the Regional Director for Region 21
sufficient signed copies of the attached notice for posting
by Orange County roofing contractors whom Complainant
Association represents, these contractors willing, within
their principal offices or plants, particularly in places
where notices to employees are customarily posted. These
copies of said notice, which the Regional Director for
Region 21 shall furnish, shall be returned forthwith to the
Regional Director for such posting, after being duly
signed by Respondent Union's official representative;
(e) File with the Regional Director of Region 21, as the
Board's agent, within 20 days of the date of this Decision,
a written statement setting forth the manner and form in
which it has complied with these recommendations.'
APPENDIX
NOTICE TO ALL OFFICERS, REPRESENTATIVES, AGENTS
AND MEMBERS, AND TO ALL ROOFERS EMPLOYED BY
ORANGE COUNTY ROOFING CONTRACTORS AFFILIATED
WITH OR REPRESENTED BY ROOFING CONTRACTORS
ASSOCIATION OF SOUTHERN CALIFORNIA, INC.
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, you are hereby notified that:
After a hearing, during which all parties had a chance
to present evidence, it has been determined that this local
violated the National Labor Relations Act. In order to
correct this situation, we have been required to post this
notice, and to give the following reassurances.
WE WILL NOT refuse to bargain with Roofing
Contractors Association of Southern California, Inc.,
as the designated collective bargaining representative of
various Orange County roofing contractors by: (1)
Dealing directly with such roofing contractors,
requiring them to repudiate or disavow the
Association's status as their designated collective
bargaining representative, or requiring them to sign
contracts without giving their designated representative
an opportunity to bargain thereon; (2) resorting to
strike pressures, threats of economic reprisal, or other
coercive conduct for the purpose of forcing or requiring
the designated association or separate individual
contractors to sign contracts with "responsibility bond"
requirements, grievance procedure provisions which
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 21 , in writing, within 10 days from the date of this Order, what
steps it has taken to comply herewith "
UNITED SLATE, TILE & COMPOSITION
would compel signatory contractors, or contractors
otherwise bound , to rely , partially , on employer
reprgsentatives not chosen by them , with respect to
grievance adjustment matters, or trust fund provisions
whereby trade promotion funds would be created or
maintained.
Wh WILL notify Roofing Contractors Association of
Southern California , Inc., together with those Orange
County roofing contractors whom that Association
represents , in writing, that we will not insist upon
contractual provisions with respect to responsibility
bonds, or other contractual provisions dealing with
nonipandatory subjects for collective bargaining, with
respect to which the designated Association may object,
and that we will reimburse Orange County roofing
contractors represented by the designated Association
for any expenses which they may have incurred since
August 15, 1967, in connection with such provisions.
WE WILL, upon request , bargain collectively with
Roofing Contractors Association of Southern
California , Inc., as the exclusive representative of
roofers employed by Orange County roofing
contractors whom the designated Association represents
for the purposes of collective bargaining , and we will
655
embody any understanding reached in a signed
agreement.
Dated By
UNITED SLATE, TILE &
COMPOSITION
ROOFERS, DAMP &
WATERPROOF WORKERS
ASSOCIATION, LOCAL No.
220
(Labor Organization)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Eastern
Columbia Building , 849 South Broadway, Los Angeles,
California 90014, Telephone 688-5229.