Bricklayers & Masons' Union Local No. 2, Etc.

National Labor Relations Board - Board Decisions

Jun 15, 1965

152 N.L.R.B. 1582 (N.L.R.B. 1965)

1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
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 our employees that:
WE WILL, upon request, bargain collectively with Metropolitan D.C. Paving,
Highway and Construction Materials Council, AFL-CIO, as the exclusive rep-
resentative of our employees in a unit composed of all employees in our
Metropolitan Washington, D.C., operations, excluding office clerical employees,
guards, professional employees, and supervisors as defined in the National Labor
Relations Act and temporary employees, with respect to rates of pay and other
terms and conditions of employment, and, if an agreement is reached, embody
the same into a signed contract
WE WILL NOT by refusing to bargain collectively with the collective-bargaining
representative of our employees in the aforesaid unit, or in any like or related
manner, interfere with, restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor organizations, to join or assist
the above-named Union or any other labor organization of our employees, to
bargain collectively through representatives of their own choosing, or to engage
in other concerted activities for the purposes of mutual aid, or to refrain from
any and all such activities.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
CIRCLE EQUIPMENT CO.
Employer.
Dated------------------- By-=-----------------------------------------
(Representative) (Title)
CIRCLE PAVING CO.
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
CIRCLE CONSTRUCTION CO.
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.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460,
Extension 2100, if they have any question concerning this notice or compliance with
its provisions.
Bricklayers and Masons' Union Local No. 2 of Detroit , Michigan,
Bricklayers , Masons and Plasterers' International Union of
America, AFL-CIO; and Metropolitan Area Executive Commit-
tee of Bricklayers, Masons and Plasterers ' Union of America,
AFL-CIO and Chris . Paschen Company , Inc. and John Ruisaard
and Winifred Ruisaard , a Co-Partnership, d/b/a John Ruisaard
Maintenance Company. Case No. 7-CB-1227. June 15, 196.5
DECISION AND ORDER
On January 26, 1965, Trial Examiner Paul Bisgyer issued his Deci-
sion in the above-entitled case, finding that the Respondents, herein-
152 NLRB No. 163.
BRICKLAYERS & MASONS' UNION LOCAL NO. 2, ETC. 1583
after also referred to as the Union, had engaged in and were engaging
in certain unfair labor practices 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 Respond-
ents jointly filed exceptions to the Trial Examiner's Decision and a
brief in support thereof.
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 [Members Fanning, Brown, and Jenkins].
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 brief, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations with the following modifications.
The Company, under lawful economic pressure from the Union,
recognized the Union as the representative of its employees in an
appropriate unit. The parties thereafter discussed the negotiating of
a collective-bargaining agreement. The Respondents, however, refused
to enter into negotiations with the Company until the Company made
certain allegedly past-due payments to the Union pension fund and
submitted to an audit of its books in order to determine the amount
which the Respondents claimed was owed by the Company. Upon the
filing of the charges herein, the Union agreed to commence negotia-
tions. Thereafter, the parties reached agreement on all of the terms
of a collective-bargaining contract except for the Union's proposals to
the effect that the pension fund payments claimed must be paid or, in
the alternative, that the matter be submitted to arbitration. The
Respondents insisted, and have continued to insist, upon the inclusion
of either of these proposals as a prerequisite for executing an agree-
ment. The Company denied that it has ever had any obligation to
make the claimed payments to the pension fund.
Like the Trial Examiner, we find that the Union violated Section
8 (b) (3) by insisting that an agreement be reached on the pension fund
matter before entering negotiations for the collective-bargaining
agreement.
Further, the records fails to demonstrate that the Company, in fact,
had any obligation, contractual or otherwise, to make payments to the
Union's pension fund for any period prior to the execution of the con-
tract then under negotiation. The record does indicate, however, that,
during the period of about 5 years for which the Respondents claim
payments are owed, the Union made no serious attempts to collect the
amounts allegedly due from the Company. In any event, however,
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondents were not entitled to require such payments as a condi-
tion for the execution of a collective-bargaining agreement. Accord-
ingly, and in agreement with the Trial Examiner, we find that the
Respondents further violated Section 8(b) (3) of the Act by their
adamant refusal to execute the agreement unless the Company would
agree to make the claimed payments or to arbitrate the matter.'
We likewise agree with the Trial Examiner that the Respondents
did not insist upon the $2,500 security deposit to guarantee the Com-
pany's future payments to the fringe benefit funds. The parties sub-
sequently agreed upon an alternative method for dealing with this
matter. We shall, therefore, order that the allegations of the complaint
pertaining thereto be dismissed.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders that
the Respondents, Bricklayers and Masons' Union Local No. 2 of
Detroit, Michigan, Bricklayers, Masons and Plasterers' International
Union of America, AFL-CIO, and Metropolitan Area Executive Com-
mittee of Bricklayers, Masons and Plasterers' Union of America, AFL-
CIO, their officers, agents, and representatives, shall take the action
set forth in the Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges violations not found herein.
1 In view of our reasons for reaching this conclusion, we find it unnecessary to, and
do not, pass upon the Trial Examiner 's analogy between the pension fund payments in
issue here and performance bonds.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This proceeding , with all the parties represented, was heard before Trial Examiner
Paul Bisgyer on November 23, 1964, in Detroit , Michigan , on the amended com-
plaint of the General Counsel 1 and the amended answer of Bricklayers and Masons'
Union Local No. 2 of Detroit, Michigan, Bricklayers , Masons and Plasterers ' Inter-
national Union of America , AFL-CIO; and Metropolitan Area Executive Commit-
tee of Bricklayers , Masons and Plasterers ' Union of America, AFL-CIO, herein
respectively called the Union and the Executive Committee , and jointly called the
Respondents . The question litigated in this case is whether the Respondents, as the
exclusive bargaining representatives of certain employees of the Charging Parties in
an appropriate unit , violated Section 8(b)(3) of the National Labor Relations Act,
as amended ,2 by insisting, as a condition of bargaining or agreement , that: (a) the
i The original charge was filed by Chris Paschen Company , Inc., on May 22 , 1964, and
a copy was served by registered mail on or about May 26, 1964 , on the Respondent Local
Union No. 2. The first amended charge was filed by both Charging Parties, on October 2,
1964 , and a copy was served on Local Union No. 2 by registered mail on or about the
same day. The second amended charge was filed by the Charging Parties on October 29,
1964 , and copies were served on both Respondents on or about the same day.
2 Section 8 ( b) (3) makes it an unfair labor practice for a labor organization or its
agents "to refuse to bargain collectively with an employer , provided it is the representa-
tive of his employees subject to the provisions of Section 9(a) "
BRICKLAYERS & MASONS' UNION LOCAL NO. 2, ETC. 1585
Charging Parties make retroactive pension fund contributions, allegedly owed by
Chris. Paschen Company, Inc., and submit to an audit of their books to determine
the amounts allegedly due; (b) they agree to post a $2,500 cash-security deposit to
insure the future payment of wages and fringe benefits; and (c) they agree to submit
to arbitration the question of their liability for past-due pension contributions if they
adhere to their refusal to make these payments. At the conclusion of the hearing
the parties waived oral argument Thereafter, the General Counsel and the Respond-
ents filed briefs which were given careful consideration.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANIES INVOLVED
Chris. Paschen Company, Inc., a Michigan corporation, herein called the Com-
pany, is engaged in the business of restoring, repairing, and cleaning buildings. John
Ruisaard and Winifred Ruisaard, d/b/a John Ruisaard Maintenance Company, herein
called the Partnership, is a partnership formed by the stockholders and officers of
the Company ostensibly to engage in the same business. Both the Company and the
Partnership have the same place of business and principal office in Ferndale, Michigan.
During the fiscal year ending April 1, 1964, the Company, in the course of its
business, performed services in the Metropolitan Detroit area for Whittier Hotel
Corporation valued at $41,535 and for Sheraton Cadillac Properties, Inc., valued at
$22,740. For the year 1963, each of the latter two companies received from their
Detroit hotel operations gross revenue in excess of $500,000, of which more than 25
percent was derived from rooms rented to transient guests. During the same period,
each of these companies purchased goods and materials valued in excess of $50,000
which were shipped to their Detroit hotels directly from points outside the State.
I find that the Company is engaged in commerce within the meaning of Section
2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The Respondents admit, and I find, that the Executive Committee, which is the
collective-bargaining agent of four constituent local unions in the Detroit area, and
the Union, which is one of the constituent bodies, are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The evidence
In 1946,3 John Ruisaard and Chris. Paschen formed the Company. Each owned
50 percent of the stock until Paschen's death in 1954, after which Ruisaard became,
and has remained, the sole stockholder. As indicated above, the Company is
engaged in restoring, repairing, and cleaning buildings. In performance of these
services, it employs members of the Union. Although the Company had no written
collective-bargaining agreement with the Respondents or any other bricklayers union,
it has generally paid its employees the union wage scale in the area and made con-
tributions to the Respondents' health and welfare, and holiday pay benefit funds.
Until 1959, it contributed to the Respondents' pension fund, as well .4 Information
3 Prior to this date John Ruisaard was employed by two Chicago business entities known
as Chris. Paschen Corporation and Chris. Paschen Maintenance Company, in neither of
which he had a stockholding interest However, he served as vice president of the latter
company from about 1940 to 1945 Both companies were engaged in the same type of
building and restoration work, as the Charging Party, Chris. Paschen Company, Inc.
'The health and welfare fund is a multicraft trust fund, known as the Detroit and
Vicinity Construction Workers Insurance Fund, which furnishes hospitalization and medi-
cal insurance benefits. The holiday-pay fund is known as the Bricklayers holiday Trust
Fund Metropolitan Area. It provides an annual payment to employees in lieu of holiday
pay The third fund is the Bricklayers Pension Trust Fund Metropolitan Area which
provides benefits for retired employees in the bricklaying and mason industry In the
Detroit area. These funds are supported by employer contributions based on a fixed
formula which has been changed over the years There is no question concerning the
lawfulness of these trust arrangements
789-73 0-6 6-vol 152-101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relative to prevailing union wage rates and fringe benefits has been obtained from the
Builders and Traders Exchange, an employers' trade association . It was the Com-
pany's discontinuance of pension fund payments that brought about its difficulties
with the Respondents as related below.
On or about May 15, 1964,5 while the Company was engaged in performing serv-
ices at the Whittier Hotel, Winifred Ruisaard, wife of John and the Company's secre-
tary, received a telephone call from George Ferguson, the Union's secretary.
Ferguson advised her that he was informed by the Company' s employees that they
were not being paid the proper wage scales . Mrs. Ruisaard assured Ferguson that
she had learned only a day before from the Builders and Traders Exchange that the
rates had recently been raised 6 and that she had already taken action to reflect these
changes in the payroll. She also denied receiving any notice from the Respondents
concerning the new rates. In the course of their conversation, Ferguson also inquired
about the fringe benefit payments the Company was obligated to make and owed.
In reply, Mrs. Ruisaard stated that the Company was making regular contributions
to the welfare fund but that, at the employees' request , the Company had discon-
tinued its contributions to the holiday pay fund and has paid the money directly to
the employees.? This latter change did not meet with Ferguson's approval. With
respect to pension contributions, Mrs. Ruisaard told Ferguson that the Company
could not afford to make them and that, if the Union insisted on such payments, it
would have to go out of business . Ferguson expressed disbelief over this prediction
and asked her to have her husband call him. Mrs. Ruisaard thereafter went to the
Whittier Hotel where she was informed that the men had left the job in the morning.
On May 18, John Ruisaard, the Company's president-treasurer, went to the Whit-
tier Hotel jobsite. There he found the employees standing in a group with William
Smith, the Union's business agent. After being introduced, Smith requested Ruisaard
to go to the union hall to sign "a 1964-1965 agreement." Apparently, this referred
to the agreement which the Detroit Mason Contractors' Association, herein called
the Association, had negotiated with the Executive Committee the latter part of
Aprils Ruisaard answered that he preferred first to speak to someone in authority
in the Union before signing an agreement Smith then stated he would permit the
men to work that day Later in the afternoon, Ruisaard went to the union hall to
discuss the matter with Union President Fergus Johnson or Secretary Ferguson but
neither was there.
The next day at the jobsite Ruisaard informed Smith of his unproductive trip to
the union hall. However, this did not dissuade Smith from calling the men off the
job As of the time of the hearing, the men had not yet returned to work.
The same afternoon (May 19), Ruisaard again visited the union office where he met
Ferguson In reply to Ruisaard's request for a copy of the new agreement that
Smith had mentioned to him, Ferguson stated that it would not be available for at
least 5 or 6 weeks but that he had copies of an interim agreement.9 Ruisaard then
asked for a copy of the latter agreement to show to his attorney and was handed one.
On this occasion, Ferguson also raised the question of Ruisaard's delinquency in the
payment of fringe benefits, specifically referring to pension contributions, and
informed him that the Union also intended to demand an audit of his books before
it proceeded with any further negotiations.
c Unless otherwise indicated, all dates refer to 1964
9 These were the new rates which the Detroit Mason Contractors' Association, Detroit
Chapter, Inc., and the Executive Committee had negotiated and were included in a con-
tract executed on April 30, 1964, effective May 2, 1964. The Company has never been a
member of the Association
7 It appears that a separate bank account was established for such purpose.
8 It has been the Respondents' uniform practice upon concluding an agreement with
the Association to notify independent contractors, who were not members of the Asso-
ciation, of this fact and to request them to come to the Union's office to sign a separate
agreement containing the same terms It also appears that, if an independent contractor
requests any deviation from the terms of this agreement, he must bargain with the Re-
spondents from the beginning on the basis of the proposals the Respondents had originally
submitted to the Association
9 The interim agreement recited that the Association and the Executive Committee had
reached complete agreement on April 27, and that it would take some time to reduce it
"to the formality of a standard contract" It then provided for acceptance by the in-
dependent contractor, who was not a member of the Association, of the terms of the
negotiated agreement and a promise to execute a formal document at a later date.
Among other things, the interim agreement set forth new wage rates and fringe benefit
contributions.
BRICKLAYERS & MASONS' UNION LOCAL NO. 2, ETC. 1587
The foregoing represents Ruisaard's recollection of his conversation with Ferguson,
which is uncontradicted and credited. Ferguson added to this version, and I have no
reason to disbelieve him, that when Ruisaard asked for a contract with the Union he
(Ferguson) replied that he understood that Ruisaard already had a contract with the
Bricklayers International Union which he had violated by failing to make pension
fund contributions as he was obligated to do. Ruisaard denied being under any
contract or other obligation to make pension fund contributions. 10 Ferguson further
testified that, when he complied with Ruisaard's request for a copy of the interim
agreement, he made it clear that it did not mean that the Union "was signing this
agreement with him and [that] a special agreement would have to be written, which
included the payment of back fringe benefits." Ruisaard's response, according to
Ferguson, was to repeat his disavowal of any obligation "to pay any past fringe bene-
fits for his employees."
On May 20, Ruisaard signed the interim agreement and gave it to his foreman to
deliver to Business Agent Smith. In the afternoon, Ruisaard returned to the union
hall. Ferguson told him that he had received the signed interim agreement but
would not accept it unless his books were audited and he paid up his pension fund
arrears. Ruisaard again disavowed any liability, reiterating that he had always paid
welfare and holiday benefits. This meeting closed with Ruisaard's demand that the
Union write him "a letter and stipulate . . [its] requirements" if it was "going to
demand pension or any other fringe benefits." No such letter was sent by the Union.
On May 22 the Company filed its original charge, a copy of which was served on the
Union on or about May 26.
The next meeting between the parties was held on June 11 in the office of the
Company's attorneys at which the Respondents' representatives Fergus Johnson 11
and George Ferguson, and their attorney, Rolland O'Hare, were present. The ensu-
mg discussions covered such questions as whether the Company was under contract
with the Bricklayers International Union; its relationship to the Chicago Chris.
Paschen companies; the Company's liability for the payment of employee fringe bene-
fits; the Respondents' demand to audit the Company's books to ascertain the extent
of its liability for the payment of past-due benefit contributions; and the negotiation
of an agreement between the parties. Consistent with its previously asserted position,
the Company denied being party to any contract with the Bricklayers International
Union or being connected since 1954 with the Chicago Chris. Paschen companies
which at one time or another were under contract with the International. Although
asserting that it had been voluntarily making welfare and holiday fund contributions,
the Company denied, however, that it was obligated to pay fringe benefits, and
accordingly disputed the Respondents' right to an audit of its books. On the other
hand, the Respondents conceded that they could not produce any contract signed by
the Company.12 The meeting ended without agreement being reached on any matter.
Thereafter, on June 26, Ruisaard and his wife filed a certificate in the Oakland
County Clerk's office authorizing them to conduct business under the name of John
Ruisaard Maintenance Co. Ruisaard testified that the reason for taking this action
was "to determine whether or not ... [he], of his own accord, could obtain a contract
from the Bricklayers Union " On June 30 they presented a certified copy of this
certificate to Ferguson and asked whether they could obtain a contract for their new
firm. Ferguson expressed doubt because the "new company was simply a means by
which ... [Ruisaard] expected to circumvent his past obligations to his employees."
10 It appears that in 1961 or 1962 the Respondents bad also complained to the Company
about its failure to make pension fund contributions and demanded an audit of its books
to ascertain the amount owing In 1963 a representative of Local 35, a constituent local
of the Executive Committee, again protested to the Company about its fringe -benefit fund
defaults . On these occasions , Rursaard disavowed liability and pleaded that he would be
forced to close his business if the Respondents persisted in their demands Nothing came
of these efforts to collect the allegedly past-due payments until the events discussed In
this Decision
11In addition to being president of the Union , Johnson was secretary - treasurer of the
Executive Committee
"There is in evidence a contract dated July 30, 1959, between two Chicago companies,
Chris Paschen Corporation and Chris . Paschen Enterprises , Inc., and Bricklayers , Masons
and Plasterers ' International Union of America As previously indicated, Ruisaaid was
associated with the former corporation and another company, Chris Paschen Maintenance
Company, since 1954 There is no evidence in the record that the Charging Parties have
had any business connection with any of the Chicago entities since that date.
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, Ferguson indicated that he needed further authority to give them a contract
and that he would consult the Respondents' attorneys. Ruisaard testified that he
also injected into the conversation the question of the Respondents' requirement of a
$2,500 security deposit.13 However, Ruisaard was unable to recall what discussion,
if any, was had.
The next day, July 1, Ruisaard sent a letter to Ferguson stating, as follows-
In accordance with our conversation of June 30, 1964, we have requested the
opportunity of signing your present contract for 1964 and 1965, with the excep-
tion of posting a Twenty-Five Hundred ($2500.00) Dollar cash security deposit,
under the name of John Ruisaard Maintenance Company ....
You advised, at this interview, that you will inform us as to your decision on
or before Friday, July 3, 1964.
If we do not hear from you at your suggested date, ... are we to assume that
our request has been refused?
Ruisaard testified that his reference to the Respondents' present contract was to
the one they had recently negotiated with the Association and which was the subject
of his prior discussions with them.
On July 2, Ferguson responded. Without referring to the $2,500 deposit, the
letter stated that:
... changing your name does not change the problem between us
Before entering into any new contract with you, no matter which name you
may be incorporated under, we will continue to insist that you make good your
previous promises to pay the fringe benefits due for work already performed by
your bricklayers, cleaners, caulkers and pointers.
Nothing of significance thereafter transpired until October 20, following the filing
of amended charges in this proceeding. On that date the Respondents' attorneys
sent the Charging Parties a letter in which they submitted a set of 55 contract pro-
posals. The letter advised that the Respondents took this action because:
It has come to our attention, as a result of certain charges filed on your behalf
with the National Labor Relations Board, that you wish to negotiate a contract
between the Metropolitan Executive Committee and two or more companies
in which you have an interest with respect to the wages, hours and other
terms and conditions of employment for bricklayers, cleaners, caulkers and
pointers employed or to be employed by you or one or more of your companies
Thereafter, in accordance with the suggestion in the letter, Ruisaard arranged
with Fergus Johnson for a negotiating meeting which was held on October 30. Par-
ticipating in the meeting were the Ruisaards and, on behalf of the Respondents,
Johnson and Thomas Flynn, a business representative of Local 35 and a member of
the Executive Committee. At the outset of the discussions, it was understood that
negotiations were confined to the Company and did not include the recently formed
Partnership. Concerning the accomplishments of this meeting, the subsequent
exchange of letters tells the story. On November 2, Johnson, as secretary of the
Executive Committee, wrote Ruisaard that it was his and Flynn's understanding that.
... we have reached agreement on all the proposals submitted by the union in
our letter of October 20, 1964, except three. You have agreed to accept all of
the demands of the Union (assuming that a plan can be worked out to carry
out the intent of paragraph 9) except paragraphs 14, 30, and 55. It is on those
three demands only that you wish our attorneys to meet.
Paragraph 9 of the Respondents' proposal dealt with the establishment of a
Supplemental Unemployment Benefit Plan. Paragraph 14 recognized "the union's
right to strike for any failure on the part of the employer to meet his obligations as
to wages, pension, holiday, and insurance" and that a provision would be made in the
contract "for some method of guaranteeing or insuring that all monies due to or for
the benefit of the bricklayers be paid in proper amount when due." Paragraph 30
required the Charging Parties to deposit $2,500 "to be applied against any delinquency
... in the payment of wages or fringe benefit contributions or any other money penalty
or fine ...... Paragraph 55 required the Charging Parties to pay "to the appropriate
fringe benefit funds, at the rate generally in effect in the industry for all masonry
is The Respondents' newly executed agreement with the Association provided for a
$2,500 deposit to guarantee , among other things, the payment of wages and fringe benefit
contributions established in the agreement.
BRICKLAYERS & MASONS' UNION LOCAL NO. 2, ETC. 1589
employees employed by the Paschen Company, directly or indirectly, since the date
of their employment, the inception of the particular fund, or the last contribution
made on their behalf by the employer, whichever is later."
In its letter sent in reply on November 9 to clarify its position, the Company agreed
that paragraphs 14 and 30 of the Respondents' proposals were not acceptable. With
respect to paragraph 55, it stated that the "contents to be effective as of date of signed
agreement only, with no retroactivity." Finally, with respect to paragraph 9, it
declined to agree "until definite contributions have been established." In addition,
the Company requested the inclusion of a "favored nation" clause in the negotiated
contract.
Following the exchange of correspondence, the attorneys for the Respondents and
the Charging Parties held conversations to resolve their differences. As a result, the
parties agreed to a weekly advance deposit and weekly payments thereafter to assure
payment of all three fringe benefits, in lieu of a $2,500 performance guarantee.
However, with respect to the Respondents' claim for past due pension contributions,'4
the parties remained divided with the Company refusing to accept the Respondents'
alternative proposal to submit their claim to arbitration. On all other matters the
parties were in accord. At the hearing, Johnson reiterated the Respondents' position
that they would execute no agreement with the Company unless provision was made
for the payment of the accrued pension benefits or the Company agreed to arbitrate
their claim.
B. Concluding findings
There is no question that the Respondents at all material times have represented
the Company's employees in an appropriate unit to for collective-bargaining purposes.
In terms of their statutory duty, both the Respondents and the Company were duty
bound, on request, to bargain with each other in good faith concerning "wages, hours,
and other terms and conditions of employment" with the view of reaching agreement.
Within this subject area, this obligation, of course, did not require either party to
relinquish its position.16 On the other hand, it is settled law that with respect to
other matters not failing within the area of compulsory bargaining neither party was
free, even in good faith, to insist upon their acceptance by the other party as a condi-
tion of bargaining or the execution of an agreement embodying "wages, hours, and
other terms and conditions of employment." Such insistence constitutes an unlawful
refusal to bargain within the meaning of the Act.17
The General Counsel contends that the Respondents breached their bargaining
obligation in three respects- (a) by refusing to enter upon contract negotiations
with the Company unless the Company first agreed to pay into the employee pension
fund moneys allegedly owed, but which the Company denied owing, and to submit
to an audit of its books to determine the amount of such liability; (b) by refusing
to execute an agreement with the Company containing the terms of the recently
executed contract between Respondents and the Association but without the $2,500
security deposit provision therein prescribed; and (c) by refusing to sign a collective-
bargaining contract which the Company and the Respondents had negotiated after
the original complaint issued herein unless the Company paid its allegedly past-due
pension fund obligations or agreed to arbitrate the question of its liability. It is the
General Counsel's position that the foregoing matters fell outside the scope of manda-
tory subjects of collective bargaining and therefore the Resopndents' insistence on
their acceptance by the Company, as a condition of bargaining or agreement, violated
Section 8(b)(3) of the Act The Respondents, on the other hand, deny that the
security-deposit issue was involved in any discussions before the issuance of the
complaint herein and assert that thereafter this question was satisfactorily resolved.
With respect to their insistence on the Company's retroactive pension payments and
arbitration, the Respondents vigorously urge that their position related to a mandatory
subject of bargaining and was maintained in the honest belief that the Company owed
that money to a fund created for the benefit of employees For this reason, they
contend, no violation could be found.
14 Although the parties stipulated at the hearing that the obstacle to agreement was
the Respondents ' insistence on arbitrating their claim for "past due fringe benefit con-
tributions ," it appears from the testimony and briefs of the parties that the fringe bene-
fits related to pensions only
1s The amended complaint described these employees as those "engaged in bricklaying
of masonry , excluding all other employees and supervisors as defined in the Act" It
appears from the Respondents ' July 2 and October 20 letters in evidence that the parties
understand that the appropriate unit includes bricklayers, cleaners , caulkers, and pointers.
16 Sections 8(a) (5), 8 ( b) (3) and 8 (d) of the Act.
17N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U. S. 342, 349.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the facts recited above, it is quite clear that before the issuance of the com-
plaint herein the parties had never leached the stage of contract negotiations where
the Respondents had proposed and the parties had discussed the requirement of a
security deposit to insure, among other things, the timely payment of wages and
fringe benefit contributions. At most, the record discloses that the Company had
requested the Respondents to enter into an agreement adopting the Association con-
tract but without the security-deposit clause therein provided. Although the require-
ment of a performance guarantee as a condition of agreement is undeniably violative
of the Act because it does not relate to a mandatory subject of bargaimng,18 it can
hardly be said that the Respondents' refusal to accede to the Company's demand, with-
out further negotiation, is the equivalent of the imposition of such a condition.
Accordingly, I find that the Respondents did not fail to discharge their bargaining
obligation in this respect.
Nor did the Respondents fail in their statutory duty when, after the complaint
issued, they instituted contract negotiations and included among their proposals one
for a security deposit which the Company rejected. This proposal, obviously not
inherently unlawful, actually served as a basis for discussion which ultimately
resulted in the adoption by the parties of a mutually satisfactory substitute provision.
As the Supreme Court made very clear, the fact that a party may not insist upon the
acceptance of a clause dealing with a subject not within the scope of mandatory
bargaining, as a condition of agreement, it "does not mean that bargaining is to be
confined to the statutory subjects." 19 I, therefore, find that the Respondents' pro-
posal and subsequent discussions concerning a security deposit did not constitute an
unlawful refusal to bargain.
Turning, however, to the Respondents' refusal to enter upon contract negotiations
unless the Company first agreed to make retroactive pension fund contributions and
to submit to an audit of its books, I am impelled to a contrary conclusion. Whether
or not the Respondents are correct that their demand related to a mandatory subject
of bargaining, it is well settled that a party is not free to insist that agreement be
reached on a disputed matter before proceeding to negotiate on other matters.20
Section 8(d) specifically requires "the employer and the representative of the employ-
ees to meet at reasonable times and confer in good faith with respect to wages, hours,
and other terms and conditions of employment, or the negotiation of an agreement."
Plainly, it does not restrict bargaining only to some of these subjects. It is thus quite
clear that the Respondents did not observe this statutory mandate.
In any event, I find that the Respondents, by conditioning bargaining or agreement
upon the Company's compliance with their pension claim, unlawfully refused to bar-
gain about matters which are within the scope of compulsory bargaining. Contrary
to the Respondents' contention, I find that their demand related to a nonmandatory
subject which Borg-Warner holds may not be insisted upon to impasse or as a condi-
tion precedent to contract negotiations. In my opinion, a union's demand for past-
due pension fund contributions cannot logically be differentiated from a demand for
a performance guarantee to insure the future payment of wages or fringe benefits
which the Board, with court approval, has consistently held did not concern "other
terms and conditions of employment," even in the face of past delinquencies on the
employer's part.21 As one court expressed it,22
... the statutory language, "other terms and conditions of employment," refers
to and includes only those provisions, in addition to wages and hours, which
have to do with the actual performance of work or to subsequent relations.
The requirement of a performance bond has nothing to do with the perform-
ance of work, but is a condition which must be met before work is even under-
taken. We are unwilling to say that a condition precedent to employment is a
"condition of employment," such as wages and hours, within the meaning of the
statute. It follows that, in our view, execution of a performance bond is not a con-
dition of employment and, therefore, is not a subject of compulsory bargaining.
is Carpenters' District Council of Detroit, Wayne and Oakland Counties and Vincity,
etc. (Excello Dry Wall Co.), 145 NLRB 663, enfd June 15, 1964, 58 LRRMf 2064
(C.A D.C.), and cases there cited
'O N L R.B. v. Wooster Division of Borg-Warner Corporation, supra, at 349
40 See, for example McGregor & Werner, Inc., 136 NLRB 1306, 1313-1314.
si Carpenters ' District Conned, etc. (Excello Dry Wall Co ), supra; Local 164, Brother-
hood of Painters , Decorators and Paperhangers of America, AFL-CIO (A. D. Cheatham
Painting Company), 126 NLRB 997, enfd 293 F. 2d 133 (CAD C ), cert denied 368 U.S
824; International Brotherhood of Teamsters, etc, Local 294 (Henry V. Rabouin, doing
business as Conway's Express), 87 NLRB 972, 978-979
22 Local 164 Brotherhood of Painters , etc , supra., at 135.
BRICKLAYERS & MASONS' UNION LOCAL NO. 2, ETC. 1591
In the present case, the payment of allegedly past-due pension benefits seems to be
much more remote as a term or condition of employment than performance guaran-
tees to insure future payment. Indeed, the Company's liability is seriously challenged
here and no party thought it necessary to litigate this question at the hearing. If the
Respondents' claim has validity, there are other forms available where it could be
enforced 23 without transforming the bargaining table into a rostrum for endless
debate over the Company's pension liability. Moreover, I do not believe that the
public purpose to eliminate interruptions of commerce will be served-and that
undoubtedly was the objective of Congress in imposing the bargaining obligation on
employers and unions-if either party were permitted to avoid this obligation unless
and until his private claim was satisfied. On the contrary, to sanction such conduct
would plainly be inconsistent with the salutary policy of the Act to encourage the
practice and procedure of collective bargaining. I, therefore, conclude that the
Respondents' demand that the Company make retroactive payment of pension bene-
fits and submit to an audit of its books, as a condition precedent to performing their
statutory bargaining duty, violated Section 8(b) (3) of the Act.
As indicated above, following the issuance of the complaint herein, the Respond-
ents initiated contract negotiations with the Company. As a result of the ensuing
discussions , the parties reached agreement on all matters except the Respondents'
alternative proposal to their demand for retroactive payment of pension benefits that
the Company agree to arbitrate the question of its liability. Admittedly, the Com-
pany was under no prior contract commitment to do so. It is also conceded that the
Respondents' disinclination to withdraw this proposal prevented the execution of a
contract embodying all the agreed-upon terms and conditions of employment. Apart
from the fact the discontinuance of unfair labor practices does not automatically bar
a remedial order, I find that the Respondents' inflexible adherence to their alternative
proposal suffers from the same frailty as their earlier position with respect to retro-
active pension payments. In both cases, the Respondents' demand relate to non-
mandatory subjects for collective bargaining whose acceptance the Respondents were
not privileged to insist upon to impasse or as a condition precedent to executing a
contract containing negotiated terms and conditions of employment. I find that the
requirement for arbitration cannot be distinguished in principle from the employer's
demand in Dalton Telephone.24 There, the parties had reached an impasse in bar-
gaining negotiations when, after all substantive issues had been agreed upon, the
employer insisted, as a condition precedent to the execution of a contract, that the
Union register under a provision in the Georgia Code so as to be subject to suit on
its contract in State courts . The Union refused. The Fifth Circuit held that the
employer refused to bargain in violation of Section 8(a)(5) of the Act, because
(p. 812):
by insisting that the union become an entity amenable to suit in the state
courts, [the employer] left the sphere of "terms and conditions of employment,"
and conditioned his willingness to sign the agreement on a matter outside the
area of compulsory bargaining.
As in Dalton Telephone, I find that the Respondents left the sphere of "terms and
conditions of employment" and conditioned its willingness to execute the contract on
a matter outside the area of compulsory bargaining. Accordingly, I find that the
Respondents' refusal to sign the contract unless the Company agreed to arbitrate the
question of its liability for pension payments was violative of Section 8(b)(3) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth in section III, above, occurring in con-
nection with the operations of the Company described in section I, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and it free flow.
V. THE REMEDY
Pursuant to Section 10(c) of the Act, I recommend that the Respondents cease and
desist from engaging in the unfair labor practices found and in like related conduct.
23 See, for example , Section 301 of the Act. In general , the Board has no power to
adjudicate contractual disputes . United Steelworkers of America, AFL-CIO v. American
International Aluminum Corp , 334 F. 2d 147, 152 (C.A 5).
u N.L.R B. v. Dalton Telephone Company, 187 F. 2d 811 (C A 5), enfg. 82 NLRB 1001,
cert. denied 342 U S. 824 ; cf. Local 164 , Brotherhood of Painters, etc., supra, at 135-136.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also find that affirmative relief is required in order to effectuate the policies of the
Act.
As discussed above, I have found that the parties have reached agreement on all
terms and conditions of a contract which the Respondents unlawfully refused to sign
unless the Company agreed to make pension fund contributions it allegedly owed or
to submit the question of its liability to arbitration. To remedy this unfair labor
practice, I recommend that the Respondents, if requested by the Company,25 sign
this contract without these or other conditions attached. If, however, the Company
does not elect to execute such contract but prefers to renew contract negotiations,
then the Respondents, as the exclusive representative of the Company's employees in
the unit found appropriate herein, shall, upon request, bargain collectively with the
Company and, if an understanding is reached, embody such understanding in a signed
agreement. The posting of an appropriate notice is also recommended.
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. The Company is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act
2. The Respondents are labor organizations within the meaning of Section 2(5)
of the Act
3. All employees of the Company engaged in bricklaying of masonry, excluding all
other 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.
4. At all times material herein, the Respondents have been the exclusive bargaining
representative of the employees in the aforesaid appropriate unit within the meaning
of Section 9(a) of the Act
5. By insisting, as a condition precedent to entering into bargaining relations or the
execution of a collective-bargaining contract, that the Company make employee pen-
sion fund contributions allegedly due and owing and consent to an audit of its business
records for the purpose of determining the amount of money so owing or, in the alter-
native, that the Company agree to submit the question of its liability for such pay-
ments to arbitration, the Respondents have engaged in, and are engaging in, unfair
labor practices within the meaning of Section 8(b)(3) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
7. The Respondents did not unlawfully refuse to bargain collectively with the
Partnership or with respect to the posting of a performance bond by the Company, as
alleged in the amended complaint
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and upon the entire
record in the case, and pursuant to Section 10(c) of the National Labor Relations Act,
as amended , it is ordered that the Respondents , Bricklayers and Masons ' Union Local
No. 2 of Detroit , Michigan , Bricklayers , Masons and Plasterers ' International Union
of America , AFL-CIO, and Metropolitan Area Executive Committee of Bricklayers,
Masons and Plasterers ' Union of America , AFL-CIO, their officers , representatives,
agents, successors , and assigns , shall.
1. Cease and desist from.
(a) Refusing to bargain collectively with Chris. Paschen Company, Inc , as the
exclusive representatives of all the Company 's employees engaged in bricklaying of
masonry , excluding all other employees and supervisors , as defined in the Act, con-
cerning rates of pay, wages , hours of employment , and other conditions of
employment
(b) Insisting , as a condition precedent to entering into bargaining relations or the
execution of a collective -bargaining contract with the above-named Company, that
the Company make employee pension fund contributions allegedly due and owing and
consent to an audit of its business records for the purpose of ascertaining the amount of
money so owing or, in the alternative , that the Company agree to submit the question
25I find it unnecessary to provide bargaining rights for the Partnership At the hear-
ing John Ruisaard indicated that the Partnership was formed for the sole purpose of
securing a contract if the Respondents refused to negotiate one with the Company. The
record also shows that, when bargaining was initiated following the issuance of the com-
plaint herein, the parties were in agreement that the Respondents would bargain only
with the Company.
BRICKLAYERS & MASONS' UNION LOCAL NO. 2, ETC. 1593
of its liability for such payments to arbitration; or that the Company agree to any
like or related proposals not dealing with rates of pay, wages, hours of employment,
or other conditions of employment.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act.
(a) Upon request, execute with the above-named Company a contract containing
the provisions upon which the parties have reached agreement.
(b) If the Company does not elect to execute the contract mentioned above then,
upon request, bargain collectively with the said Company, as the exclusive represent-
atives of all the Company's employees in the unit described above, concerning rates
of pay, wages, hours of employment, and other conditions of employment and, if an
understanding is reached, embody such understanding in a signed agreement.
(c) Post at their business offices and meeting halls in the Detroit, Michigan, area,
copies of the attached notice marked "Appendix." 26 Copies of said notice, to be fur-
nished by the Regional Director for Region 7, shall, after being duly signed by the
Respondents' representatives, be posted by the Respondents immediately upon receipt
thereof, and be maintained by them for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to Respondents' 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.
(d) Sign and mail sufficient copies of said notice to the Regional Director for Re-
gion 7 for posting by Chris Paschen Company, Inc., at all locations where notices to
employees are customarily posted, if the Company is willing to do so.
(e) Notify the Regional Director for Region 7, in writing, within 20 days from the
receipt of the Trial Examiner's Decision as to what steps the Respondents have taken
to comply herewith 27
It is further ordered that the paragraphs of the amended complaint alleging that the
Respondents have unlawfully refused to bargain with John Ruisaard and Winifred
Ruisaard, a co-partnership, d/b/a John Ruisaard Maintenance Company, and that
the Respondents have unlawfully insisted upon a performance bond as a condition of
bargaining or agreement be, and they hereby are, dismissed.
"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."
27In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF BRICKLAYERS AND MASONS' UNION LOCAL No. 2 OF
DETROIT, MICHIGAN, BRICKLAYERS, MASONS AND PLASTERERS' INTERNATIONAL
UNION OF AMERICA, AFL-CIO; AND METROPOLITAN AREA EXECUTIVE COMMITTEE
OF BRICKLAYERS , MASONS AND PLASTERERS ' UNION OF AMERICA, AFL-CIO; AND
TO ALL EMPLOYEES OF CHRIS. PASCHEN COMPANY, 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 Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively with Chris. Paschen Company,
Inc., as the exclusive representatives of the Company's employees engaged in
bricklaying of masonry, excluding all other employees and supervisors, as
defined in the Act, concerning rates of pay, wages, hours of employment, and
other conditions of employment.
WE WILL NOT insist, as a condition precedent to entering into bargaining
relations or the exectuion of a collective-bargaining contract with the above-
named Company, that the Company make employee pension fund contributions
allegedly due and owing and consent to an audit of its business records for the
purpose of ascertaining the amount of money so owing or, in the alternative,
that the Company agree to submit the question of its liability for such pay-
ments to arbitration, or that Company agree to any like or related proposals
not dealing with rates of pay, wages, hours of employment or other conditions
of employment.
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request , execute with Chris. Paschen Company , Inc., a con-
tract containing the provisions upon which we have reached agreement.
If the Company does not elect to execute the contract mentioned above, wE
WILL, upon request , bargain collectively with the Company, as the exclusive
representatives of all the Company's employees in the unit described above,
concerning rates of pay, wages , hours of employment , and other conditions of
employment and, if an understanding is reached , embody such understanding
in a signed agreement.
BRICKLAYERS AND MASONS ' UNION LOCAL No. 2 OF DETROIT,
MICHIGAN, BRICKLAYERS, MASONS AND PLASTERERS ' INTER-
NATIONAL UNION OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
METROPOLITAN AREA EXECUTIVE COMMITTEE OF BRICKLAYERS,
MASONS AND PLASTERERS ' UNION OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 500 Book
Building, 1249 Washington Boulevard , Detroit, Michigan , Telephone No. 226-3210,
if they have any questions concerning this notice or compliance with its provisions.
Southwire Company and International Union of Electrical, Radio
and Machine Workers, AFL-CIO. Case No. 10-CA-5702.
June 15,1965
DECISION AND ORDER
On March 22, 1965, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that Respondent had
engaged in certain unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He also found that
Respondent had not engaged in other unfair labor practices alleged
in the complaint and recommended dismissal of those allegations.
Thereafter, the General Counsel and Charging Party filed exceptions
and briefs in support thereof ; and Respondent filed cross-exceptions,
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 [Members Fanning, Brown, and Jenkins].
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, cross-exceptions, and briefs of
152 NLRB No. 158.