Bricklayers, Local No. 3

National Labor Relations Board - Board Decisions

Dec 30, 1966

162 N.L.R.B. 476 (N.L.R.B. 1966)

476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL restore our acceptance of all agreements tentatively reached with
the Union and our best previous offers on all other contract terms.
The bargaining unit is:
All production and maintenance employees, including all shipping and receiv-
ing employees, employed at our Dallas, Texas, plant, exclusive of office cleri-
cal employees, over-the-road tiuckdrivers, guards, watchmen, and supervisors
as defined in the Act.
All our employees are free to become, remain, or refrain from becoming or
remaining members of the above-named or any other labor organization.
SHOVEL SUPPLY COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Room
8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Tele-
phone 335-4211, Extension 2145.
Bricklayers & Masons International Union Local No. 3 and Frank
S. Llewellyn , Secretary and Eastern Washington Builders
Chapter of the Associated General Contractors of America,
Spokane, Washington . Case 19-CB-1059-1. December 30, 1966
DECISION AND ORDER
On June 29, 1966, Trial Examiner David Karasick issued his
Decision in the above -entitled proceeding , finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended , and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner 's Decision . Thereafter , the Respondents filed exceptions to
the Trial Examiner 's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three -member
panel [Chairman McCulloch and Members Fanning and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision , the exceptions and brief , and the entire record
in this case , and hereby adopts the findings , conclusions , and recom-
mendations of the Trial Examiner , with the following modifications.
The Trial Examiner found that the Respondents violated Section
8(b) (3) of the Act by insisting to impasse upon a nonmandatory
162 NLRB No. 46.
BRICKLAYERS, LOCAL NO. 3 477
subject of bargaining, after agreement had been reached with the
Charging Party on all other matters. In reaching his conclusion, the
Trial Examiner rejected, inter alia, the two principal contentions of
the Respondents, namely, (1) that since the bargaining in question
was conducted between an employer engaged primarily in the build-
ing and construction industry and a union representing employees
engaged in that industry, the conduct of the parties is to be judged
under Section 8 (f) (1) of the Act,' under which all bargaining is
voluntary and thus free of the usual obligations and requirements of
good-faith bargaining imposed in other contexts by Section 8(a) (5)
and b (3) of the Act; and (2) that even if there were a duty
to bargain, the clause insisted upon is a mandatory subject of
bargaining.
We agree with the Trial Examiner's ultimate findings that the
Respondent Union was under a duty to bargain and violated that
duty by insisting upon the inclusion of a nonmandatory subject of
bargaining in the negotiations with the Charging Party. We find it
unnecessary, however, in the circumstances of this case, to pass upon
his holding that, in the usual prehire context, Section 8(f) does not
free either party of its bargaining obligations imposed by other sec-
tions of the Act. Rather, we find that the negotiations here involved
were for the renewal of an existing agreement between the Employer
and the Union, which was already recognized as the bargaining agent
of the employees covered by that agreement, and that the issue of the
scope of Section 8(f) is not before us. Thus, as found by the Trial
Examiner, the East Washington Chapter of the Associated General
Contractors of America (hereinafter, AGC) and the Mason Con-
tractors Association, Spokane Chapter 855 (hereinafter, MCA), act-
ing jointly as employers, had entered into a collective-bargaining
agreement with Respondent Union on February 21, 1962, which con-
tinued in effect until December 31, 1964, subject to the usual 60-day
reopening provision.2 Pursuant to that provision, the Union served
notice upon AGC of its desire to terminate the existing agreement
and to negotiate a new agreement. Moreover, Charles Hively, execu-
tive secretary of AGC, testified that the two associations had bar-
gained jointly since approximately 1958 or 1959, and that, for some
1 In pertinent part, Section 8 (f) reads as follows :
(f) It shall not be an unfair labor practice under subsections (a) and (b) of this
section for an employer engaged primarily in the building and construction industry
to make an agreement covering employees engaged (or who, upon their employment,
will be engaged) in the building and construction industry with a labor organization
of which building and construction employees are members . . because (1) the
majority status of such labor organization has not been established under the pro-
visions of section 9 of this Act prior to the making of such agreement . .
'Following the reopening provision, the agreement stated that, "The parties shall
begin negotiations within thirty (30) days after receipt of this notice "
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6 or 7 years prior to the joint bargaining, AGC had bargained alone
with the Union. Further, following the separate negotiations with
MCA in 1965, noted below, the Union signed an agreement with MCA
which contained few changes from the old, joint MCA-AGC agree-
ment, except for wages and the clause contested herein. And, as found
by the Trial Examiner, AGC subsequently notified the Respondents
that it would sign an agreement identical to the new MCA contract
except for the disputed provision.
It is apparent from the foregoing that the bargaining between
AGC and the Union presents the situation of a continuing bargain-
ing relationship; a situation quite different from that which Con-
gress had in mind when enacting Section 8(f) (1), to wit, an initial
attempt by a union and an employer in the construction industry to
commence such a relationship. Thus, the entire legislative history of
Section 8(f) (1) is couched in terms of "prehire agreements," a ref-
erence which can have no meaning in the situation where, as here,
the parties are continuing an existing bargaining relationship under
which employees have previously been hired. Particularly in this so
where, as in this case, the previous agreement contained a lawful
union-security provision. Additionally, one of the most frequently
cited portions of the legislative history of Section 8 (f) reveals that
the Congress envisioned its prehire provisions as applying only to
the situation where the parties were attempting to establish a bar-
gaining relationship for the first time. In the House of Representa-
tives, during the debate on the Conference Report on S. 1555, Repre-
sentative Barden, one of the House conferees, introduced a colloquy
between Senators Kennedy and Holland during the 1958 debate on a
predecessor provision to Section 8(f). In it, Senator Holland phrased
his inquiry in the following terms :
Was it the intention of the committee that Section 604(a) shall
require employers to enter into prehire agreements where the
union had not been the recognized or certified bargaining agent
of the employees involved? [Emphasis supplied.] 3
In the instant case, of course, Respondent Union had for many
years been the recognized bargaining agent of the employees of the
employers comprising AGC. We hold, therefore, that the tests to be
applied in determining the fulfillment of the bargaining obligations
of the parties herein are those generally used under Section 8(a) (5)
3 2 Leg. Hist. 1715. While it is clear from Senator Kennedy's reply that the two Sena-
tors were concerned primarily with the voluntary nature of such agreemoonte, it is equally
clear from the above that all who were dealing with the issue understood the context to be
that of initial bargaining.
BRICKLAYERS , LOCAL NO. 3 479
and (b) (3) and, therefore, that it is unnecessary to pass upon the
scope of bargaining obligations under Section 8(f).4
We further agree with the Trial Examiner that the history of bar-
gaining between Respondent Union and the AGC was not destroyed
either by the withdrawal of MCA from its previous joint bargaining
with AGC or by the merger of AGC with another local branch of the
same national association into a new entity, the Inland Empire
Chapter of the Associated General Contractors of America. With
respect to the former, as indicated above, AGC had bargained alone
with the Union from approximately 1952 to 1958 or 1959. Moreover,
following notification from MCA that it wished to negotiate a sep-
arate contract in 1965, AGC continued to represent its own employer-
members as it had both prior to the period of joint bargaining with
MCA and during such bargaining.-5
As for the merger of the two AGC chapters into the new Inland
Empire Chapter, the record supports the Trial Examiner's finding
that Inland Empire became the successor of AGC. Thus, the record
reveals that Inland Empire absorbed all members of AGC and that
the bargaining rights of the AGC members were assigned to Inland
Empire. The continuing bargaining history between AGC and Re-
spondent Union cannot, therefore, be negated on the basis of the
merger.6 We find, therefore, that Inland Empire, as a successor to
AGC, retained and continued the identity of the latter as the multi-
employer association representing the employers which had desig-
nated it as their bargaining agent, and that the 1965 negotiations
constituted a continuation of the prior bargaining history between
AGC and the Respondent Union.
Finally, we agree with the Trial Examiner that section 3 of article
VI of the Respondents' proposed agreement is a nonmandatory sub-
ject of bargaining and that, by insisting upon inclusion of such pro-
vision to the point of impasse after agreement had been reached on
all other items of bargaining, the Respondents violated Section
8(b) (3). Whether that provision be considered a performance bond,
as it was by the Trial Examiner, or as a "liquidated damages" clause,
as claimed by the Union, a provision which requires the payment of
4 Respondents may not avoid their duty to bargain under Section 8(b)(3), as found
herein, under the theory that the record does not show that more than one employee was
employed by the employer-members of the AGC during 1965 and that there is no duty to
bargain for a one-man unit . The record also shows that during 1964 , within the term of
the preceding contract between the parties , at least one employer-member of AGC had
a continual payroll of bricklayers running between 400 to 1 , 800 hours per month, or
approximately 10 employees on any particular job at a given time during that year.
In these circumstances , there is no merit to Respondents ' one-man unit contention
5 See Hoisting & Portable Engineers Local Union # 701, International Union of Oper-
ating Engineers, AFL-CIO (Cascade Employers Association , Inc.), 141 NLRB 469,
470-471.
0 I bid.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain sums to a union upon the breach of another term of a collective-
bargaining agreement by an employer is clearly outside the scope
of "wages , hours, and other terms and conditions of employment ..."
about which parties are obligated to bargain.7
[The Board adopted the Trial Examiner's Recommended Order.]
7 Cf. N.L.R.B v. Wooster Division of Borg-Warner Corporation, 356 U S 342.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, herein
called the Act, was heard before Trial Examiner David Karasick in Spokane, Wash-
ington, on November 8, 1965, pursuant to due notice . A complaint , issued on Sep-
tember 3, 1965, based on an original charge and an amended charge filed on
May 21 and September 1, 1965, respectively, by Eastern Washington Builders
Chapter of the Associated General Contractors of America, Spokane, Washington,
herein called the AGC, alleged in substance that Bricklayers & Masons International
Union Local No. 3 and Frank S. Llewellyn, secretary, herein separately called
Local 3 and Llewellyn, respectively, and together called the Respondents, have
engaged in unfair labor practices within the meaning of Section 8(b) (3) of the Act.
Upon the entire record in the case, my observation of the witnesses, and a brief
filed by the Respondents, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OPERATIONS OF THE EMPLOYERS INVOLVED
The AGC, a Washington corporation with its principal office and place of busi-
ness located in Spokane , Washington , is an association of employers engaged as
contractors in the building and construction industry who maintain their principal
places of business in the States of Washington , Idaho, and Oregon.
Among the employers who comprise the membership of the AGC are: (1) indi-
vidual local contractors who annually perform construction work valued in excess
of $100,000 for business enterprises that annually produce and ship goods valued
in excess of $100,000 or perform services valued in excess of $100,000, which goods
are delivered or services are performed at places outside the State in which each
said business enterprise is located; (2) individual contractors who annually perform
construction work valued in excess of $100,000 at locations outside the State in
which they have their respective places of business; and (3) individual contractors
who annually perform services for the Government of the United States, relating
directly to the national defense, valued in excess of $100,000. The value of con-
struction performed annually by the constituent members of the AGC in each of
the foregoing three categories exceeds $10,000.
Mason Contractors Association, Spokane Chapter No. 855, herein called the
Mason Contractors , is an association of employers engaged in masonry and brick-
laying in the construction industry in the same geographical area as the AGC.
Among the employers who comprise the membership of the Mason Contractors, are
those who annually perform construction work valued in excess of $100,000 at
locations outside the State in which they maintain their respective places of busi-
ness. The AGC and the Mason Contractors each negotiate and execute agreements
adopted on behalf of its respective members and each is an agent of said employer-
members and thereby is regarded as an employer within the meaning of Section
2(2) of the Act, and each is engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Local 3 is a labor organization within the meaning of the Act.
M. THE UNFAIR LABOR PRACTICES ALLEGED
On February 21, 1962, the AGC and the Mason Contractors, acting jointly as
employers, entered into a collective-bargaining agreement with Local 3. The agree-
ment by its terms provided it would remain in effect until December 31, 1964, at
BRICKLAYERS, LOCAL NO. 3 481
which time it could be terminated , modified , or amended upon proper notice given.
On October 28, 1964, Local 3 sent proper written notification to the AGC of Local
3's desire to terminate the existing contract and to meet for the purpose of nego-
tiating a new agreement . On October 30, 1964 , the AGC acknowledged receipt of
such notice and advised Local 3 of its willingness to meet and negotiate as
requested.
In November or December 1964, the AGC was notified by the Mason Con-
tractors that the latter wished to negotiate their own contract with Local 3 rather
than carry on negotiations jointly with the AGC as they had done in the past. In the
same period of time and shortly after receiving this information, Charles E. Hively,
executive secretary of the AGC, in a conversation with Frank S. Llewellyn, secre-
tary of Local 3, informed the latter that the AGC wished to negotiate with Local 3
when the latter had concluded its negotiations with the Mason Contractors.
At this time, the Associated General Contractors maintained two chapters in
Spokane. One of these, which is referred to in this proceeding as the AGC, was
the Eastern Washington Builders Chapter whose employer-members were building
contractors. The other chapter consisted of employer-members engaged in highway
and heavy construction work.' On January 25, 1965, a merger of the two chapters
into a single chapter to be known as the Inland Empire Chapter of the Associated
General Contractors, herein called Inland Empire, was authorized by the parent
body and became the successor to Eastern Washington Builders Chapter whose
members assigned their bargaining rights to it .2 Hively, who had been executive
secretary of the AGC, became assistant executive director of Inland Empire.
On or about February 1, 1965, the Mason Contractors and Local 3 concluded
their new agreement.3 On learning this, Hively requested a meeting with Llewellyn
and Otho Hood, president of Local 3, which was held on February 11. Llewellyn
and Hood stated that there had been practically no change in the agreement reached
with the Mason Contractors, except for wages. Article VI of the agreement con-
tained the following provisions:
Article VI-OTHER EMPLOYERS
SECTION 1. The Union agrees that during the life of this Agreement they
will not furnish members to any Employers other than those parties to this
agreement, under conditions more favorable to such Employers than those
herein established.
SECTION 2. The Employer agrees that in the contracting or sub-contracting
of any work coming within the jurisdiction of this Union the Employer shall
do business only with a person, firm or corporation party to this Agreement.
SECTION 3. In the event the Employer violates this Article he shall pay
the Union a sum equivalent to the initiation fees and dues the Union would
have received for each employee not included in this bargaining unit, had this
article been complied with under the Union security provision of this
Agreement.
Hively stated that the AGC could not accept section 3 of article VI and also
insisted that another provision be incorporated in the agreement, but the latter
was resolved as an issue soon thereafter and no longer remained a point of dispute
between the parties .4 On or about February 19, 1965, and at various times there-
after, Hively notified Llewellyn that the AGC was willing to enter into a contract
with Local 3 identical in its terms to that executed between Local 3 and the Mason
Contractors except for the provisions of section 3 of article VI of that agreement.
1 The building contractors had negotiated with all the building trades crafts, including
the bricklayers who were represented by Local 3. The highway contractors did not at this
time , but had previously, negotiated with Local 3.
Z Inland Empire was established formally in March or April 1965.
3In light of the issues to be decided in this proceeding, I regard it as immaterial
whether negotiations were concluded on February 1, 1965, as the contract itself would
indicate , or on February 6, 1965, as Llewellyn testified.
* Both Llewellyn and Hood denied that they had ever met with Hively for the purpose
of negotiating or discussing a contract covering the bricklayers. Hood stated that this
and other meetings had been held between the parties for the purpose of attempting to
negotiate an agreement for the tilelayers and terrazzo employees who were also mem-
bers of Local 3. In light of the record as a whole and from my observation of the
witnesses , I believe and find that Hively's testimony of what occurred at the meeting on
February 11 Is the more accurate, and I, accordingly, do not credit the foregoing denials of
Llewellyn and Hood.
264-047-67-vol. 162-32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 9, the following letter was sent to the Respondents by Hively on behalf
of Inland Empire:
Mr. Frank S. Llewellyn
Secretary
Bricklayers' & Masons' International Union
Local No. 3 of Washington
120 West Mission
Spokane, Washington
Dear Mr. Llewellyn:
The Associated General Contractors Chapter wishes to again make clear
our desire to conclude as speedily as possible a new agreement to replace the
agreement in accordance with the opening letter from Bricklayers Local 3,
dated October 28, 1964.
To review the negotiations to date, the Associated General Contractors
Chapter have agreed to wages, travel and the terms of the Agreement with
the exception of the Article No. 6 . . . other employers. The Chapter has
questioned the legality of this language as it relates to the exclusion of fair
competition in our area and the Chapter has consistently refused to accept
Section 3 of Article VI, which requires payment of money to the Union by
the employer in violation of Section 302 of the Labor Management Relations
Act as amended.
Please inform us concerning your intentions in this matter so that the Health
and Welfare Contributions can be properly adjusted.
On July 16, Llewellyn replied, stating that Local 3 would be glad to meet with
the AGC in an effort to resolve any differences between them.
On July 22, according to Hively, he and Llewellyn discussed the matter again
and each acknowledged that the only issue between them concerned the penalty
clause in section 3, article VI, of the proposed agreement . Local 3 insisted that the
clause was legal while the AGC insisted it was not. Hively testified, and I find, that
he notified Llewellyn on that occasion that the AGC was prepared to sign the
agreement without such a clause, and he further testified that the AGC, at the time
of the hearing, was "still prepared to sign an agreement minus that clause 3."
B. Concluding findings
1. The appropriate unit and Local 3's representative status
The complaint alleges that all journeymen bricklayers and masons and their
apprentices, employed by employer-members of the AGC, but excluding super-
visors as defined in the Act, constitute an appropriate unit . The Respondents deny
that an appropriate unit exists in this case, not by reason of the classifications of
employees alleged to comprise such unit, but because " during the year 1965, only
one employer-member of AGC employed any employees represented by the
Respondent local, and this employer employed only one employee." 5 It is true that
the Board has held, as the Respondents state in their brief, that an employer is
under no duty to bargain with respect to a one-man unit.6 The Respondents argue
from this that, under like circumstances, a union is equally under no duty to bar-
gain . I do not regard it as necessary to decide in this case whether or not that is
so since Section 8(f) of the Act expressly makes an exception to the necessity of
showing a majority prior to the execution of a collective-bargaining agreement
between an employer engaged primarily in the building and construction industry,
and a union of which building and construction employees are members , as is true
in this case. The fact that only one person was employed within the unit at the
time the alleged refusal to bargain occurred would not, therefore, provide an
answer to the issue in question?
s The complaint alleges a refusal to bargain on and after July 9, 1965.
6 Foreign Car Center, Inc., 129 NLRB 319; Oioens-Corning Fiberglass Corporation, 140
NLRB 1323, 1326.
7 Nor can I agree with the further arguments of the Respondents that there is no his-
tory of bargaining between Local 3 and the AGC alone because the Mason Contractors
apparently withdrew from multiemployer bargaining at an appropriate time or with the
consent of all parties. Even if this were true, the past history of bargaining between the
parties would indicate that bricklayers in the employment of the employer-members of the
AGC alone presumptively constitute an appropriate unit. Nor am I persuaded by the
further argument that the Eastern Washington Chapter ceased to exist upon its merger
with Inland Empire and there is no history of bargaining between the latter and Local 3
since, as I have found above, Inland Empire is the successor of the AGC.
BRICKLAYERS, LOCAL NO. 3 483
The current agreement entered into between Local 3 and the Mason Contractors
provides that it "shall apply to all Building Construction work coming within the
recognized jurisdiction of the signatory Union , except that it shall not apply to
Superintendents , Assistant Superintendents , General Foremen, Master Mechanics,
Civil Engineers, Timekeepers, Messenger Guards, Confidential Employees, Clerks
or other Office Employees." The wage schedule attached to the agreement sets
forth the following classifications of employees and apprentices:
Bricklayer , Stone Mason and Marble Mason (outside ), Blocklayer, Marble
Mason (inside), and Cleaners, Caulkers & Pointers.
The provisions relating to the application of the agreement and the job classifica-
tions listed in the wage schedule attached to it are substantially the same as those
contained in the preceding collective-bargaining contract which had been entered
into between the Mason Contractors and the AGC jointly and Local 39
While the unit alleged as appropriate in the complaint appears to be substantially
correct, it would appear that the unit description set forth in the agreements between
the parties is more detailed and precise and I therefore find, in accordance with
such description, that all bricklayers, stonemasons and marble masons (outside),
blocklayers , marble masons (inside ), cleaners, caulkers and pointers , and their
apprentices, employed by the employer-members of the AGC or Inland Empire,
but excluding superintendents , assistant superintendents , general foremen , master
mechanics , civil engineers, timekeepers , messenger guards , confidential employees,
,clerks or other office employees, and supervisors as defined in the Act constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
As noted above, the normal requirement of a majority showing on the part of a
union is unnecessary in this case since the members of Local 3 are building and
construction employees and the employer-members of the AGC or Inland Empire
are engaged primarily in the building and construction industry, within the meaning
of Section 8(f) of the Act.
2. The insistence of the Respondents upon the provisions of section 3
The General Counsel contends that section 3 of article VI is illegal and is not
a mandatory subject for bargaining, and that the refusal of Local 3 to sign a con-
tract with the AGC without such a clause, constitutes a refusal to bargain within
the meaning of the Act .9
I am not persuaded, for the reasons above set forth, by the contentions of the
Respondents that the allegations of the complaint fail because the unit was not
appropriate since it consisted of only one employee at all times relevant to this
proceeding, and that no refusal to bargain could occur because of the absence of a
history of bargaining between Local 3 and the AGC alone, or Local 3 and Inland
Empire alone. Nor am I persuaded by the further contention advanced by the
Respondents that since bargaining under Section 8(f) of the Act is voluntary,
neither a union nor an employer coming within the provisions of that section are
under any duty to bargain, and that, therefore, there can be no refusal to bargain
within the meaning of the Act in this case. Neither the language of Section 8(f)
nor its legislative history supports the view that the freedom accorded by its pro-
visions to enter into a prehire agreement relieves either a union or au employer of
its obligation to bargain as otherwise imposed by the Act.
That obligation, insofar as this case is concerned, may be determined upon the
basis of the right of Local 3 to insist upon section 3 to the point of impasse.
Whether it was justified or not in doing so depends in turn upon whether section 3
properly may be regarded as a mandatory or a voluntary subject of collective bar-
gaining. If mandatory, Local 3 was entitled to remain adamant ink its position that
it would not enter into a contract with the AGC absent such a provision; if not,
its insistence on that provision, as a condition precedent to entering into a con-
tract, constituted a violation of its duty to bargain.
5 The preceding agreement also included the job classifications of tilesetter and terrazzo
worker The employer-members of the AGC who employed tile and terrazzo workers did
not join the negotiations of the Mason Contractors with Local 3 but elected to have their
negotiations carried on for them by the AGC and Inland Empire.
9 Although the complaint alleges that the provisions of sections 1, 2, and 3 of article VI
are illegal and not mandatory subjects of bargaining, the General Counsel stated at the
hearing that he was attacking only the legality of section 3 of article VI
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Those matters which relate to "wages, hours, and other terms and conditions of
employment" are regarded as mandatory subjects of bargaining as to which "neither
party is legally obligated to yield;" all other matters are regarded as voluntary and
as to the latter "each party is free to bargain or not to bargain, and to agree or not
to agree." 10
The question in this case thus becomes whether Local 3's demand that it be paid
"a sum equivalent to the initiation fees and dues the Union would have received for
each employee not included in this bargaining unit" in the event the employer
subcontracted bricklaying work to an employer not party to the bargaining agree-
ment falls within the area of "wages, hours, and other terms and conditions of
employment."
The Board has held that a union may not insist upon a performance bond to pro-
tect it against possible employer violations of a collective-bargaining agreement,
even though similar performance bonds were common in the industry and the
union's demand for such a bond was therefore reasonable." It may be argued that
a demand for a performance bond or similar form of security to insure general
compliance with the terms of a contract is not closely enough related to "wages,
hours, and other terms and conditions of employment" to endow it with the status
of a mandatory subject for bargaining. But the Board in the Excello case 12 held
that "insistence upon any performance bond by either employer or labor union is
per se an unlawful refusal to bargain" and found that the union in that case, by
insisting that the employer establish a fund as security for the payment of employee
wages and fringe benefits, as a condition precedent to entering into a collective-
bargaining agreement, violated Section 8(b) (3) of the Act. In that case, unlike the
present one, the need for such a fund had been shown by earlier evidence of delin-
quency on the part of the employer. If a performance bond to assure payment of
employee wages and fringe benefits cannot be regarded as falling within the obliga-
tory area of bargaining encompassed by the generally descriptive words of "wages,
hours, and other terms and conditions of employment," I do not see how the
demand made by Local 3 can do so. Instead, I believe that it falls within the prin-
ciple enunciated in the Excello case. However else they may be viewed in purpose
or effect, the provisions of a performance bond and those of section 3 in this case
are essentially the same insofar as they relate to the general area of wages, hours,
and conditions of work.13 Accordingly, I find that the provisions of section 3, as
proposed by the Respondents, did not constitute a mandatory subject of collective
bargaining and that the' refusal of the Respondents on and after July 22,14 to enter
'IN L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U S. 342.
"Local 164, Local 1287, and Local 1010, Brotherhood of Painters, Decorators and
Paperhangers of America, AFL-CIO; et at (A D. Cheatham Painting Co of Jacksonville,
Fla.), 126 NLRB 997, enfd. 293 F.2d 133 (C.A.DC ), cert denied 368 U.S. 824
12 Carpenters District Council of Detroit, etc, et at. v NL.R B (Excello Dry Wall Co.),
145 NLRB 663, enfd. by per curiam opinion , June 15, 1964 (C A D C.), 58 LRRM 2064.
is I am unable to agree with the additional argument of the Respondents that section 3
constitutes a lawful and mandatory subject of bargaining because it is a guideline and
specification of damages which Local 3 could insist be granted to an arbitrator in proc-
essing grievances under the contract as a continuation of the bargaining process
i` The complaint alleges the refusal to bargain to have occurred on and after July 9,
1965, apparently on the basis of the statements contained in the letter sent by Hively to
Llewellyn on that date. The Respondents have objected to the receipt in evidence of this
letter as containing self-serving statements since it was sent following the filing of the
original charges by the AGC in this case Without regard to that fact, I do not rely, as the
General Counsel apparently does, upon Hively's letter to Llewellyn on that date as con-
stituting a basis upon which to predicate a refusal to bargain on the part of the Respond-
ents. In view of the concession by the General Counsel at the beginning of the hearing
that he was attacking only section 3 and not the other sections of article VI, I do not
believe that the letter of July 9 reasonably may be construed as an unequivocal offer on
the part of the AGC to enter into the agreement except for section 3 alone rather than
bringing into question the provisions of section 2 as well Moreover, the record shows that
on July 16, Llewellyn acknowledged Hively's letter of July 9 and offered to meet with
the AGC at its convenience in an effort to resolve any differences between it and Local 3.
Hively's testimony of his conversation with Llewellyn on July 22 clearly establishes that
an impasse , caused by their disagreement over section 3, occurred on that date and that
the Respondents refused to enter into the contract with the AGC absent that section.
BRICKLAYERS, LOCAL NO. 3 485
into a contract with the AGC or its successor , Inland Empire , without such a clause
constituted a refusal to bargain within the meaning of Section 8(b) (3) of the Act.15
IV. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor prac-
tices, I will recommend that they cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local No. 3 is a labor organization within the meaning of Section 2(5) of the
Act.
2. At all times material herein, Frank S. Llewellyn acted as an agent for the
aforementioned labor organization.
3. At all times material herein, the AGC or its successor, Inland Empire, as agent
of the employer-members, negotiated and signed collective-bargaining agreements.
4. The employer-members of the AGC and its successor, Inland Empire, are
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
3. All bricklayers, stone masons and marble masons (outside), blocklayers, mar-
ble masons (inside), cleaners, caulkers and pointers, and their apprentices, employed
by the employer-members of the AGC or its successor, Inland Empire, but exclud-
ing superintendents, assistant superintendents, general foremen, master mechanics,
civil engineers, timekeepers, messenger guards, confidential employees, clerks or
other office employees and supervisors as defined in the Act constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
6. At all times material herein, the aforesaid employer-members of the AGC, and
its successor, Inland Empire, have been engaged primarily in the building and con-
struction industry and Local 3 has existed as a labor organization of which build-
ing and construction employees are members within the meaning of Section 8(f) of
the Act.
7. By insisting upon a clause providing that Local 3 be paid a sum equivalent to
the initiation fees and dues it would have received for each employee not included
in the bargaining unit in the event the employer subcontracted bricklaying or
masonry work to another employer not party to the contract, as a condition prece-
dent to entering into a collective-bargaining agreement with the employer-members
of the AGC or its successor, Inland Empire, the Respondents have engaged in
unfair labor practices in violation of Section 8(b)(3) of the Act.
8. The aforesaid unfair labor practices, having occurred in connection with the
business operations of the employer-members of the AGC or its successor, Inland
Empire, as above set forth, have a close, intimate, and substantial relation to trade
among the several States, and substantially affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of the fact and upon the entire record
in this proceeding, I recommend that Frank S. Llewellyn and Bricklayers & Masons
International Union Local No. 3, and the latter's officers, agents, and representatives,
shall
1. Cease and desist from insisting , as a condition precedent to entering into a
collective-bargaining contract, that the employer-members of the AGC or its suc-
cessor, Inland Empire, agree that Local 3 be paid a sum equivalent to the initiation
fees and dues said Local 3 would have received for each employee not included in
the bargaining unit in the event the employer-members of the AGC or its successor,
Inland Empire, subcontract bricklaying or masonry work to another employer not
party to such contract.
15 The General Counsel did not file a brief in this case and I am unable to determine
otherwise from the record whether he Is contending that section 3 is unlawful per se,
in addition to being a voluntary subject of bargaining about which Local 3 could not
insist to the point of impasse In view of the conclusion set forth above, however, I regard
it as unnecessary to determine whether section 3, in and of itself, is unlawful.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Bargain collectively, upon request, with the employer-members of the AGC
or its successor , Inland Empire , so long as said employer -members are engaged
primarily in the building and construction industry and said Local 3 exists as a
labor organization of which building and construction employees are members, in
the aforesaid appropriate unit, with respect to wages, hours, and other terms and
conditions of employment, and, if an understanding is reached, embody such under-
standing in a signed contract, without requiring the employer-members of the AGC
or its successor, Inland Empire, to agree upon payment of a sum equivalent to the
initiation fees and dues said Local 3 would have received for each employee not
included in the bargaining unit in the event said employer-members subcontract
bricklaying or masonry work to another employer or employers not parties to such
contract.
(b) Post at the business offices and meeting halls of Local 3, in the Spokane,
Washington, area, copies of the attached notice marked "Appendix." 16 Copies of
said notice, to be furnished by the Regional Director for Region 19, upon being
duly signed by the Respondent Llewellyn and by the president or other authorized
representative of Respondent Local 3, shall be posted by said Respondent Local 3,
immediately upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to the Respond-
ent Local 3's members are customarily posted. Reasonable steps shall be taken
by the Respondents to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Mail to the Regional Director for Region 19, signed copies of the attached
notice, marked "Appendix," for posting, the employer-members of the AGC or its
successor, Inland Empire, willing, at their offices and construction sites where
employees represented by Respondent Local 3 are or may be employed.17 The
notices shall be posted on bulletin boards or other places where notices to employ-
ees are customarily posted and shall remain posted for 60 days thereafter. Copies
of the notice, to be furnished by the Regional Director for Region 19, after being
signed by the Respondent Llewellyn and by the president or other authorized rep-
resentative of the Respondent Local 3, shall be forthwith returned to the Regional
Director.
(d) Notify the Regional Director for Region 19, in writing, within 20 days from
the receipt of this Decision, what steps the Respondents have taken to comply
herewith.18
16 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 be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words " a Decision
and Order"
17 Although the record shows that only one employer -member of the AGC or Inland
Empire employed but one person who was a member of Local 3 during 1905 it also
shows that the same employer -member subcontracted masonary work during the same
period of time to other employers, at least one of whom was a member of the Mason Con-
tractors with Ichom Local 3 , as heretofore noted, entered into a union -security agreement
in February 1965.
18 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read- "Notify the said Regional Director in writing, within 10 days
from the date of this Order, what steps Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF BRICKLAYERS & MASONS INTERNATIONAL
UNION LOCAL No. 3
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT demand , as a requirement to entering into a collective-
bargaining agreement , that the employer -members of Eastern Washington
Builders Chapter of the Associated General Contractors of America, Spokane,
PIONEER LUMBER TREATING CO. 487
Washington or its successor, Inland Empire Chapter of the Associated General
Contractors of America agree that they will pay a sum equivalent to the initia-
tion fees and dues this Union would have received for each employee not
included in the bargaining unit in the event said employer-members subcon-
tract bricklaying or masonry work to another employer who is not party to
the contract.
WE WILL, upon request, bargain collectively with the employer-members of
the Eastern Washington Builders Chapter of the Associated General Con-
tractors of America, Spokane, Washington, or its successor, Inland Empire
Chapter of the Associated General Contractors of America, so long as said
employer-members are primarily engaged in the building and construction
industry and this Union continues to have building and construction employees
as members, in the appropriate unit named below, with respect to wages, hours,
and other terms and conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement, without requiring
said employer-members, as a condition precedent to entering into a contract, to
agree that this Union be paid a sum equivalent to the initiation fees and dues
it would receive for each employee not included in the bargaining unit in the
event such employer-members subcontract bricklaying or masonry work to
other employers not parties to the contract.
The bargaining unit is:
All bricklayers, stone masons and marble masons (outside), blocklayers,
marble masons (inside), cleaners, caulkers and pointers, and apprentices,
employed by the employer-members of the Eastern Washington Builders
Chapter of the Associated General Contractors of America, Spokane,
Washington, or its successor, Inland Empire Chapter of the Associated
General Contractors of America, but excluding superintendents, assistant
superintendents, general foremen, master mechanics, civil engineers, time-
keepers, messenger guards, confidential employees, clerks or other office
employees, and supervisors as defined in the Act.
BRICKLAYERS & MASONS INTERNATIONAL UNION LOCAL No. 3.
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
FRANK S. LLEWELLYN,
Secretary.
Dated------------------- By---------------------------------- --------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 327
Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-4583.
Pioneer Lumber Treating Co., Inc. and Local 174, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent. Case 19-CA-M-1. Decem-
ber 30, 1966
DECISION AND ORDER
On October 5, 1966, Trial Examiner David Karasick issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
162 NLRB No. 61.