Builders' Association of Kansas City

National Labor Relations Board - Board Decisions

Nov 30, 1970

186 N.L.R.B. 902 (N.L.R.B. 1970)

902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Builders' Association of Kansas City and Bricklayers'
Union No . 4 of Kansas City, Missouri , AFL-CIO.
Case 17-CA-4049
November 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 25, 1970, Trial Examiner James T. Barker
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions, a brief in support, and an answering
brief.
Pursuant to Section 3(b) of the National Labor
Relations Act, as amended, the National Labor
Relations Board has delegated its powers in connec-
tion with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-exceptions
and briefs, and the entire record in this case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent
indicated.
The Trial Examiner based his finding of violations
on the disparate fringe benefits conferred upon
bricklayers working on the same project in the area of
Kansas City, Missouri, by reason of varying contrac-
tual commitments arranged by their union locals.
This disparity arose from the willingness in 1968 of
Kansas-based Local 18 to liberalize its apprenticeship
requirements in return for the Respondent Associa-
tion's increased welfare contributions and a pension
fund contribution, which were to be payable to Local
18 men regardless of where the work was performed,
while Missouri-based Local 4 declined to reopen the
basic contract to which both locals were parties, and
at the same time voiced no opposition to Local 18
doing so. The basic contract is a 5-year agreement
I The April 1, 1968, contract between the Respondent and Local 18
follows closely the form of the 1965 contract with the three locals,
including the statement in the initial paragraph that it "supersedes all prior
agreements heretofore between the parties . " Concerning the parties'
agreement that Local 18 benefits would follow the men when working in
Missouri , Local 18 sought written assurance , but the Employer preferred to
leave this as an oral arrangement Thereafter , as the record shows, the
Employer implemented this oral portion of the 1968 agreement
2 The Trial Examiner also made no attempt to assess the impact of the
November 1969 arbitration proceeding by the Respondent Association
against one of its members for failing to pay Kansas fringe benefits to
executed in 1965 between the Respondent and
Bricklayers, Masons & Plasterers International Un-
ion, Locals 4, 18, and 21, hereinafter referred to as the
Union.'
In the 1965 contract the "jurisdiction of the
agreement" is defined as extending to named counties
in Missouri and Kansas, followed by a paragraph
defining the jurisdiction of "locals 4 and 21" as
covering the Missouri counties already set out, and a
paragraph defining the jurisdiction of Local 18 as
covering "only" the Kansas counties. This agreement
also provides that employees in "the unit" which is the
subject of this agreement shall become members of
the Union within 8 days of employment, and sets
forth working rules which speak of "the" business
agent being notified by employees so that he may
make certain investigations, and "the" business agent
designating "one of the members in whose jurisdic-
tion the job is" as job steward.
The Trial Examiner interprets the 1965 contract as
giving "exclusive recognition to Local 4 throughout
the geographic jurisdiction of Local 4 in the State of
Missouri, an interpretation basic to the conclusion
that two separate units were created by the
contract-one in Missouri represented by Local 4 and
one in Kansas represented by Local 18, with each
local being an exclusive bargaining representative in
its own "contractually defined" geographic jurisdic-
tion for all employees when working there. He
specifically did not pass upon the oral portion of the
1968 agreement between the Respondent and Local
18.2 He concluded that the written terms and
conditions of the 1968 contract did not "follow the
employer or the employee" beyond the Kansas
jurisdiction of Local 18.3
Respondent contends that Local 18 represents
Kansas resident bricklayers wherever they work;
further that the 1965 contract, under which Local 4 is
now the surviving representative, merely established
minimum standards for bricklaying work in the area
and the employment of Local 4 members, without
precluding the payment of higher benefits pursuant to
Local 18's separate contract in 1968 and without
making Local 4 the exclusive bargaining agent for
"the Missouri territory."
We find merit in the thrust of these exceptions.
Unlike the Trial Examiner we do not view the 1965
members of Local 18 employed in Missouri In that proceeding the
arbitration panel , made up of representatives of Local 18 and the
Association , found the contractor in question in violation of the Local 18
agreement
l The "j urisdiction of agreement" clause in the 1968 contract omitted
the Missouri counties and added additional Kansas counties to those
appearing in the 1965 agreement This was followed by the identical
paragraph appearing in the 1965 contract "It is further understood and
agreed that the jurisdiction of Local No 18 covers only the Kansas
Counties set out above "
186 NLRB No. 123
BUILDERS ' ASSOCIATION OF KANSAS CITY
contract as creating a geographic unit within Missouri
in which Local 4 is "the exclusive bargaining
representative" of bricklayers working there regard-
less of their membership in a sister Local. A more
realistic interpretation of the Unions' role under this
contract we believe to be that of joint representatives
of bricklaying employees in the bi-state area, with the
Kansas and Missouri jurisdiction of the locals defined
as an aid in administering the contract. The territorial
clauses had relevance to which of the Unions a new
employee shouldjoin and which was to furnish the' job
steward and the business agent on a particular
project.4 Clearly the 1965 agreement is a prehire
agreement covering employees in the building and
construction industry, made by the employing Associ-
ation with labor organizations "of which building and
construction employees are members"-all as provid-
ed in Section 8(f) of the Act. Section 8(f) permits
prehire contracts simply because of the unique
problems of the industry, which include the occasion-
al nature of employment, its brevity in many
instances, the fact that it may involve a succession of
jobs for many employers who, in turn, require an
available supply of skilled craftsmen and forseeable
labor costs before bidding.5 Before such an agreement
is made majority status of the labor organization need
not be established via the usual Section 9 route. Thus
no presumption of majority status and recognition on
an exclusive basis is raised by the mere existence of a
prehire agreement. In addition, this particular prehire
agreement does not purport to grant exclusive
recognition to the Unions or any one of them. It does
set forth area wages and working conditions for
bricklayers who are already members of these Unions,
or will be so-after the appropriate 7-day
lapse-when employed on construction projects in
the bi-state area. The practice under the 1965
agreement has been for members of the sister locals
involved to work across the state line as the occasion
arose, a practice not unusual in the industry. In 1968
Local 4, the surviving contracting local with a
Missouri-based membership, made no objection to
the withdrawal of Local 18, with its Kansas-based
membership, and declined to consider similar con-
tract terms for its members, who customarily work in
both States.6 Neither did the Respondent object to the
withdrawal of Local 18 from the existing contract.
Therefore, we find that both Local 4 and the
Respondent acquiesced in the withdrawal of Local 18
from the latter's joint bargaining responsibility under
the 1965 contract, and that Local 18 was free to enter
upon a new prehire contract covering the bricklayers
who are normally its members. The 1968 contract
between Local 18 and the Respondent is the resulting
903
contract, and although that part of the agreement
covering work in Missouri by members of Kansas-
based Local 18 is not a matter of writing, the record
amply shows that the oral arrangement in that regard
was carried out. As the Respondent observed in a
postcharge letter to Local 4, agreements providing
that benefits shall follow employee members working
outside the Union's normal jurisdiction are
"commonplace in the industry-a nationwide prac-
tice."
In the circumstances the apparent disparate treat-
ment which the Respondent accorded those repre-
sented by Local 4, as contrasted with those represent-
ed by Local 18 when working in Missouri, we find to
be without discriminatory intent to encourage or
discourage union membership,7 normal to the indus-
try, and consistent with the requirements of the
prehire contract exemption which Congress in Section
8(f) specifically authorized for this industry. In accord
with the language of that section, "It shall not be an
unfair labor practice under subsections (a) and (b)" of
Section 8 "for an employer engaged primarily in the
building and construction industry to make [such] an
agreement," we shall dismiss the alleged 8(a)(3) and
(1) allegations.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed in its entirety.
+ The Trial Examiner deemed the jurisdictional definitions concerning
the Unions as superfluous unless meant to carve out geographic units,
without apparently considering the contract clauses to which we refer
See Ziddell Erplorathons, Inc, 175 NLRB no 137
6 Testimony, credited by the Trial Examiner, concerning the past
practice of Association Members in employing members of Local 18 shows
payment of the highest prevailing scale, that is, home jurisdiction or foreign
jurisdiction , as the case might be , for work outside the home jurisdiction
This is consistent with the stipulation of the parties here that the policy of
the Respondent is that its members shall pay fringe benefits on behalf of
bricklayer employees when employed on Kansas projects irrespective of
whether the employees maintain membership in Local 18 or in Local 4,
while on Missouri projects the benefits for members of Local 18
correspond to their agreement and for members of Local 4 correspond to
their agreement
7 We find no merit in the General Counsel 's cross -exception concerning
testimony that it was the intent of Respondent 's agent , Hutton, to see that
Local 18 became the dominant union in the area if Local 4 did not adopt
the same agreement This June 1968 comment by a representative of the
Respondent stands alone, uncorroborated by any action taken by the
Association Because of the liberalized apprenticeship provisions of the
Local 18 agreement , it may be viewed as reflective of personal aggravation
or even of prophecy rather than design to encourage membership in Local
18 and discourage it in Local 4 during the balance of the latter's existing
agreement
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Trial Examiner : This matter was heard
at Kansas City, Missouri , on February 12, 1970. On
December 10, 1969 , the Regional Director of the National
Labor Relations Board for Region 17 issued a complaint
and notice of hearing deriving from a charge filed on
August 29 , 1 969,1 an amended charge filed on October 31,
and a second amended charge filed on November 13, by
Bricklayers' Union No. 4 of Kansas City, Missouri,
AFL-CIO. The parties timely filed briefs with me.
Upon consideration of the briefs of the parties and upon
the record in this case ,2 and my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Builders' Association of Kansas City is an association of
employers engaged in the building and construction
business . The purpose of the Respondent, in whole or part,
is to represent its members' interests in negotiating and
administering collective-bargaining agreements with Brick-
layers' Union No. 4 of Kansas City, Missouri, AFL-CIO,
hereinafter referred to either as Local No. 4 or the Charging
Party, and Bricklayers' Union No. 18 of Kansas City,
Kansas, AFL-CIO, hereinafter referred to as Local 18. The
members of the Respondent, individually and collectively,
during the calendar year 1968, purchased goods and
materials valued in excess of $50,000 directly from suppliers
located outside the State in which the members' respective
facilities are located.
Upon these admitted facts I find that Respondent, and
each of its employer-members, is, and at all times material
herein has been, an employer within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Bricklayers ' Union No. 4 of Kansas City, Missouri,
AFL-CIO and Bricklayers ' Union No. 18 of Kansas City,
Kansas, AFL-CIO, are admitted to be labor organizations
within the meaning of Section 2 (5) of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The General Counsel contends that under the principal
of Radio Officers' Union v. N.L.R.B 347 U.S. 107, the
Respondent has committed a per se violation of the Act by
I All references herein are to the calendar year 1969 unless specifically
indicated otherwise
2 The transcript in this proceeding is corrected, as specified at Appendix
A (Omitted from publication I
extending to members of Local 4 welfare and pension
benefits inferior to those accorded members of Local 18
when the members of Local 4 and Local 18, respectively,
have been employed together in a single bargaining unit
represented by Local 4.
The Respondent, on the other hand, contends that, while
members of Local 4 and Local 18 may work together on
projects within the jurisdiction of Local 4 performing
identical tasks, there exist two separate bargaining units,
each represented by its own separate bargaining representa-
tive, and that, under the principal of the Board's decision in
Anheuser-Busch, Inc., 112 NLRB 686, the disparity of
treatment resulting from the existant policy is not
inherently unlawful. Thus, contends Respondent, with the
Radio Officers' principal distinguished, and as the General
Counsel placed exclusive reliance upon the Radio Officers'
precedent and introduced no evidence of independent,
discriminatory motivation, the General Counsel failed to
establish a prima facie case.
The Respondent further contends that, in any event, if
the evidence introduced by the General Counsel creates an
inference of unlawful motivation, this inference is over-
come by evidence of record establishing that the disparate
policy which Respondent admittedly pursued arose from
the terms of a collective-bargaining agreement negotiated
with Local 18, which identical terms the Respondent
offered to and sought to have memorialized in a collective-
bargaining agreement with Local 4.
The General Counsel challenges the existence of any
alleged contractual basis for the policy or of any oral
agreement to extend it to jobs performed by Local 18
members within the jurisdiction of Local 4. Moreover the
General Counsel disputes the bona fides of the arbitration
award and intra-association correspondence which Res-
pondent contends substantiates the existence of contractual
terms requiring pursuit of and adherence to the disparate
policy.
B. Pertinent Facts
1. Background facts
a. The collective-bargaining relationship
(1) The 1965 contract
On or about April 6, 1965, the Respondent, Local 18 and
Local 4, became parties to a collective-bargaining agree-
ment which by its terms was to expire on March 31, 1970.
The agreement contained an annual renewal provision and
a provision requiring employer welfare fund contributions
in the amount of 15 cents for each hour worked by each
employee covered by the agreement . Two-thirds of the
amount contributed was, by the terms of the agreement, to
be allocated to the Masonry Employees' Welfare Fund and
the remaining one-third to the Building and Masonry
Industry Advancement Fund. The agreement defined the
jurisdiction of Local 43 as extending to and including the
Local 21 was also a party to this agreement and its geographic
jurisdiction under the agreement was coextensive with that of Local 4
However. the parties stipulated that Local 21 has been out of existence at
all times material
BUILDERS' ASSOCIATION OF KANSAS CITY 905
following counties located in the State of Missouri:
Jackson, Clay, Platte, Ray, Lafayette, Cass, Johnson, and
Henry, as well as described portions of Clinton, Carroll,
and Bates counties. The agreement defined the geographic
jurisdiction of Local 18 as extending to the following
counties in the State of Kansas: Wyandotte, Johnson,
Franklin, and Miami.
(2) The welfare fund trust
On April 1, 1962, the Respondent, Local 18, and Local 4
entered into an agreement and declaration of trust wherein
was created the masonry industry employees welfare fund
to constitute an irrevocable trust to provide group life,
accident, health, and other insurance benefits for qualifying
employees. An employee is defined in the agreement and
declaration of trust as, "Any person represented by the
Union who is employed by any employer under the
Collective Bargaining Agreement and any person who is
employed by any employer who has signed a stipulation to
be bound by the Collective Bargaining Agreement."
(3) The separate agreement with Local 18
Subsequently, on December 7, 1967, the labor committee
of the Respondent, charged with exclusive authority to act
on behalf of Respondent in changing any portion of an
existing collective-bargaining agreement, met with the
members of the apprenticeship committee, a subcommittee
of the labor committee. In the conference, the representa-
tives of the apprenticeship committee reported to the
membership of the labor committee a tentative agreement
which the apprenticeship committee representatives had
fashioned with apprenticeship committee representatives of
Local 18. This tentative agreement provided for certain
fundamental changes in the apprenticeship program which
was covered by the existing collective-bargaining agree-
ment between Respondent and Local 4 and Local 18,
respectively. The changes which the apprenticeship com-
mittee had discussed related to the wage scale for
apprentices as well as a modification in the educational
requirements, the elimination of an aptitude test, and the
shortening of the term of the program. The reason given by
the representatives of the apprenticeship committee for
desiring to effectuate these changes was the necessity of
attracting more apprentices to the craft. The labor
committee representatives concluded that the representa-
tives of the Respondent to the apprenticeship subcommit-
tee were acting beyond the scope of their authority in
seeking changes in the apprenticeship program, but
approved the actions of the apprenticeship committee to
the extent of committing the Respondent to further
consideration of these recommended changes, as a part of a
general reopening of the existing collective-bargaining
agreement. As a result, the labor committee staff was
instructed to explore with Local 18 and Local 4 a reopening
of the agreement.
Against this background, in the early months of 1968,
4 The jurisdiction of this agreement included the Kansas counties
encompassed by the 1965 agreement , but extended it to five additional
counties , Leavenworth, Atchison , Domphan, and Brown , as well as
designated portions of Jefferson county
collective-bargaining negotiations were conducted between
Respondent and Local 18 which concluded with the
consummation of the collective-bargaining agreement
between them. The agreement became effective on April 1,
1968, for a term of 5 years until March 31, 1973.4
The new agreement between Respondent and Local 18,
inter alia, increased employer contributions to the welfare
fund and provided for contributions to a pension fund to be
established pursuant to the agreement. Provision was made
for employers to make payments to a depository on behalf
of covered employees. The agreement established the total
sum to be deposited as 25 cents per hour effective April 1,
1968, 40 cents per hour effective October 1, 1968, and 50
cents per hour effective April 1, 1969. Provision was also
made in the agreement for allocation of the contributions
between the Masonry Employees' Welfare Fund, Masonry
Employees' Pension Fund and the Building and Masonry
Industry Advancement Fund. By the terms of the
agreement, effective April 1, 1969, employers covered by
the agreement were required to make hourly contributions
to the Masonry Employees' Welfare Fund in the amount of
15 cents per hour.
(4) The pension fund created
On April 1, 1968, the Respondent and Local 18, in
accordance with article VII of their collective-bargaining
agreement, entered into an agreement and declaration of
trust creating a trust fund known as the Masonry Industry
Employees' Pension Fund. The instrument defined the
purpose of the fund as, "providing Pension Benefits, as
decided by the Trustees and for financing the expenses of
the operation and administration of the Fund in accord-
ance with [the] Agreement and Declaration of Trust."
Article IV, section 1 of the Agreement and Declaration of
Trust provides that, "any Union which has a Collective
Bargaining Agreement with the Association providing for a
Pension Plan may bring the employees represented by it
under said Agreement within the terms of this Agreement
and Declaration of Trust by executing the same with the
approval of the Union and the Association and the Board
of Trustees as then constituted." The term "employer" is
defined as including "any member of the Association
whose employees are represented by the Union or of any
Employer who is a non-member of the Association who has
signed a stipulation in accordance with [the agreement and
declaration]." An employee is defined in the agreement and
declaration of trust as "any person represented by the
Union who is employed by an Employer as that term is
defined herein.... 5
(5) The application of the pension fund discussed
Near the end of the negotiations which led to the
consummation of the new 1968 agreement between Local
18 and Respondent, but before the agreement was actually
executed on April 1, three members of the Local 18
executive committee, who were participating in the
5 In a manner not pertinent herein the definition of employee was
modified by an amendatory agreement entered into between Local 18 and
the Association on April 29. 1969
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiations relating to the welfare and pension fund issues,
urged that as they were approaching retirement age, the
new benefits would be of limited value to them if they
received contributions only for work performed in the
jurisdiction of Local 18. This was communicated to
William Hutton, managing director of the Respondent.
Hutton was informed that the representatives of Local 18
wanted written assurances that the pension and welfare
contributions being negotiated would be extended by the
Association to employees performing work outside the
jurisdiction of Local 18. Hutton responded that it was not
necessary for this to be in writing but that, if the
Association would agree to make the payments to Local 18
Bricklayers wherever they worked, he would agree to such
payments.6
than "right across the state line" in the jurisdiction of Local
4, to compensate Local 18 members at the highest
prevailing scale. If the scale in the foreign jurisdiction were
higher than that provided for under the Local 18 agreement
the foreign scale would prevail. Otherwise the Local 18
scale would be paid.
Evidence of record established within the Kansas City
Metropolitan area, there is a scarcity of bricklayers. It is the
practice contractor-members of the Respondent, when
performing work outside the jurisdiction of the local in
which its employees maintain membership, to employ and
utilize a nucleus of Kansas City based bricklayers. Crews
are augmented by the hire of local craftsmen.
d. Reopening discussions with Local 4
b. The employers notified
On April 5, 1968, William Hutton sent to all members of
the Association , a notice advising the members that in
order to "increase apprenticeship programs , attract work-
ers, increase production , etc., to meet the shortages of
skilled labor" the Association had opened its agreements
with the "Carpenters and the Kansas Bricklayers." In
pertinent part the notice contained the following.
(1) KANSAS BRICKLAYERS-We have negotiated a
new agreement with Local 18, the Kansas Bricklayers
Union , which agreement covers the Kansas side of the
Metropolitan area. The purpose of this agreement is to
increase the benefits for the men and extend the term of
the agreement . The old agreement called for a twenty-
cent per hour increase in wages effective April 1st. That
wage increase is unchanged. In addition thereto, the
new agreement also calls for ten cents per hour to be
contributed by the employer to a Pension program for
the benefit of Kansas Bricklayers . Therefore , you are
hereby requested to set aside ten cents per hour for every
bricklayer working in Kansas until such time as you
receive the proper forms from this office; then you will
report these pension payments along with other fringe
benefit payments under the old agreement . Practically
all of the Kansas employers have stated that they
desired to make these ten-cent per hour pension
payments on their Local 18 men regardless of where
they were working, and this is agreeable . In fact , it is the
common practice that employers continue to make the
fringe benefit payments on their employees when they
take them outside the jurisdiction in order to enable
those employees to maintain their eligibility and not
lose their benefits under those programs . We trust you
will be guided accordingly.
c. Alleged association practice
Ernest Winders, a brick mason of some 22 years'
experience , and a former business agent of Local 18,
testified that during the period June 1959 until March 1963,
at which time he served as a business agent for Local 18, it
was the practice of employer -members of the Association
who employed Local 18 bricklayers in jurisdictions other
6 The foregoing is based on the credited testimony of Ernest Winders
7 The foregoing is based on the credited testimony of Donald Ong,
In the meantime, in the month of February 1968, William
Wilkerson, the masonry director on the staff of the
Respondent, met with Ray Welborn, secretary of Local 4,
and discussed with him the outlines of the agreement which
was being discussed by the Association with Local 18.
Wilkerson informed Welborn that the Respondent believed
that it had a basis for agreement with Local 18 and inquired
if Welborn felt that Local 4 might be interested in entering
into a similar agreement.
As a consequence of this discussion, Wilkerson met
separately and on different dates with the president of
Local 4, its executive secretary and another representative
of Local 4, Bill Johnson. On each occasion Wilkerson
discussed with these representatives the potential agree-
ment with Local 18 and explored the extent of interest on
the part of Local 4 in a similar agreement. At his meeting
with Bill Johnson on March 13, Wilkerson, knowing that he
would meet with Johnson again on March 18, requested
Johnson to explore with the executive board of Local 4 its
interest in such an agreement.
On March 18 Wilkerson and Johnson did converse and
Johnson informed Wilkerson that the executive board of
Local 4 "was not interested in a meeting on a new contract
at that time "
In each of his conversations and meetings with represent-
atives of Local 4, Wilkerson had referred to and outlined
the proposed changes in the fringe benefits which would
result from the agreement then under discussion with Local
18.
On a separate occasion, in the spring or summer of 1968,
representatives of Respondent, including Donald Ong,
chairman of the Association's labor committee, met with
the executive committee of Local 4. The meeting was
devoted in principal part to a discussion of the apprentice-
ship program and in the course of the discussion it was
suggested by Donald Ong that the apprenticeship question
be considered in conjunction with a reopening of the entire
collective-bargaining agreement. Ong suggested that the
reopening of the agreement be on a basis similar to that
"worked out with Local 18." The representatives of Local 4
stated that Local 4 did not desire to reopen the existing
agreement at that time. The meeting terminated at that
point 7
which is not refuted
BUILDERS' ASSOCIATION OF KANSAS CITY 907
2. The alleged unlawful conduct
a. The fringe benefit contributions
The policy of the Respondent at all relevant times has
been that its members shall pay fringe benefits on behalf of
bricklayer employees when employed on job projects
located in the Kansas counties pertinent to this proceeding
in accordance with the amounts specified at Article VI of
the collective-bargaining agreement between Respondent
and Local 18 whether or not such respective bricklayer
employees maintained membership in Local 18 or main-
tained membership in Local 4. With respect to employment
on job projects located in the Missouri counties pertinent to
this proceeding, the policy of the Respondent is that fringe
benefit contributions shall be made on behalf of members
of Local 18 in amounts corresponding to those specified in
the agreement between Respondent and Local 18, and on
behalf of members of Local 4 in amounts corresponding to
those specified in the agreement between Respondent and
Local 4. The agreement between Respondent and Local 4
contains no provision for a pension fund. There is no
material difference in the work tasks assigned to members
of Local 18 vis-a-vis the work tasks assigned to members of
Local 4.s
b. The policy implemented
During the period March 1969 through August 1969,
Lloyd's Incorporated, a member of Respondent, employed
members of Local 4 and members of Local 18, respectively,
on projects located in the State of Missouri. As a
consequence of this, the Company remitted fringe benefit
contributions in the months of March, April, July, and
August on behalf of employees of Local 4 and of Local 18
whom it employed during the pertinent periods.
Lloyd's filed monthly remittance reports covering
contributions deriving from work performed by bricklayers
in the relevant counties in the State of Missouri during the
month of March 1969. Included in this remittance report
was a contribution made on behalf of an employee Willie
Posey, a member of Local 4, and three employees who are
members of Local 18. In addition, Lloyd's filed a monthly
remittance report covering work performed by Willie Posey
in the employ of Lloyd's in the month of March in the State
of Kansas. For work performed by Posey in the State of
Missouri a contribution in the amount of 15 cents for each
hour worked was remitted, while a remittance of 40 cents
per hour worked was made for work performed by
"Kansas" bricklayers who worked with Posey .9
c. Respondent's effort to enforce compliance
On December 3, 1968 , Don Ong, chairman of the labor
committee of the Respondent , dispatched a letter to a
member of the Association , Andes & Roberts Bros,
Construction Co., which in pertinent part read as follows:
Confirming our telephone conversation of Friday,
November 22, 1968, we are requesting that you review
your contributions to the Masonry Industry Employees
Pension Fund since April 1, 1968, on which date the
Builders' Association agreed to pay Ten Cents (10 4 )
per hour to Kansas Bricklayers, Local 18, as a pension
benefit. This was increased, beginning October 1, 1968,
to Twenty Cents (20 4) per hour.
The pension benefit is payable to Local 18 Bricklayers,
whether they are working on the Missouri or Kansas
side of the line, since there is considerable mobility of
the tradesmen and there would be no way to qualify for
a ieasonable pension plan, unless the premium is paid
on all hours worked, regardless of job site.
Your check, for the balance due on your Local 18
employees only, should be forwarded to Traders
National Bank, Depository, Twelfth at Grand, Kansas
City, Missouri; together with a list of the men involved.
Since the hours to be paid on should simply duplicate
the hours already reported, there should be no need to
detail the hours per man
Additionally, on February 12, 1969, the Respondent
dispatched to all masonry contractors the following
advisory:
The Labor Committee of the Builders' Association has
adopted the following policy regarding the payment of
fringe benefits under the Bricklayers Collective Bar-
gaining Agreements:
1. Fringes payable under the Local # 18 contract to
be paid to all bricklayers in the jurisdiction of Local
# 18.
2. Local # 18 members working in any jurisdiction to
be paid fringes payable under the Local # 18 (Kansas)
contract.
3. Bricklayers, other than Local # 18 members,
working outside Local # 18 jurisdiction are not to
receive any compensation in addition to that called for
by the Local #4 (Missouri) contract.
The above policy is in line with our normal practice of
paying the higher scale when workers are taken outside
their normal jurisdiction to work Failure to comply
with this policy will subject the violator to Labor
Committee charges under Article XII of the By-Laws of
the Builders' Association.
If you are one of the contractors who has not paid as
required please drop by and see me prior to February 28
so we may straighten out your account and avoid the
need of a hearing before the Labor Committee.
Letters dated August 20, 1969, bearing the signature of
Don Ong and relating to the subject- "Employer contrib-
utions for Kansas Bricklayers working in Missouri" were
dispatched to 37 separate contractors. The letter read in
pertinent part as follows:
The Labor Committee of your Association agreed with
representatives of Bricklayers Local 18 at the time they
negotiated the current collective bargaining agreement
April 1, 1968, that Association members would
contribute the full amount of fringe benefits due under
that agreement regardless of where the actual work is
performed.
It has come to the attention of the Labor Committee
that many of our members have not fully complied with
8 The foregoing is based on a stipulation of the parties
9 The foregoing is based on the credited testimony of Lloyd Johnson
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this agreement. Enclosed is a list of the amounts due
from April, 1968 through June, 1969 on each of your
employees effected. If these delinquent payments are
not settled prior to September 30, your Labor
Committee will begin proceedings under Article XII of
the Bylaws of the Association to enforce collection of
same.
We expect each of our members to be in full compliance
with our agreements with the Unions.
The alleged delinquencies of the separate employers
involved sums as small as $11.70 and as great as $1,720.30.
d. The Respondent's bylaws
Article XII of the articles and bylaws of the Respondent
Association provides, in part, that, "[a ]ny and all labor
agreements negotiated by the Association in accordance
with the Articles of Association and these Bylaws shall be
binding on the members of the Association." The article
further provides that each member agrees to be bound by
the articles and bylaws, and authorizes the Association to
enter into collective-bargaining agreements binding upon
the members and to administer agreements and "policies"
of the Association. Further, the articles and bylaws,
empower the Labor Committee of the Association to
punish violations of the articles and bylaws and of the
"labor policy of the Association" by assessment, trial and
fine, and court enforcement.
e. Arbitration efforts
On August 1, 1969, the Respondent was the recipient of a
letter from William J. Moore, business representative of
Local 18. The letter read as follows
As you know, the existing bargaining agreement
between the Builders Association and Local 18 provides
that our rate of Fringe Benefits be paid on our members
even when working outside our jurisdiction.
The difference between our rate of benefits and the
benefits of Bricklayers Local #4 has caused consider-
able confusion. In this confusion some of your
contractor members have refused to abide by the terms
of the bargaining agreement in the payment of the
Local 18 rate of benefits thereby causing financial loss
to our members in terms of hospital coverage and also
in retirement benefits.
We of Local 18 want these fringe benefits paid on our
members and since William H. Randall Masonry
Company, one of your members, is not paying these
benefits we would like to arbitrate this matter.
On November 3, 1969, there was conducted by a board
comprised of three representatives of the Association and
four representatives of Local 18 an arbitration proceeding
evaluating charges filed against a member of the Associa-
tion alleging a violation by the contractor of "the
agreement between the parties by a refusal to pay Kansas
Bricklayers fringe benefit payments when members of that
Union were employed in the State of Missouri." The
arbitration panel found the contractor "in violation of the
parties' agreement" and authorized means to collect
amounts due.
f. Respondent corresponds with Local 4
Following the filing by Local No. 4 of the August 29,
1969, charge and the October 31, 1969, amended charge,
the Respondent, by letter dated November 7, 1969,
corresponded with Local No. 4 as follows:
I have dust received in the mail an amended charge filed
by your union against this Association and others. The
charge apparently accuses us of discrimination in some
manner but I am at a loss to know the basis for your
action since neither your business agent nor any other
representative of your union has ever contacted me
regarding this matter. Furthermore, your local union
has never filed any complaint or grievance under the
provisions set out in our Joint Labor Contract for that
purpose. I am certain that the most elemental concepts
of labor relations presume a condition where parties
discuss their differences when they arise. However,
since your union refuses the interchange of considera-
tion that is a normal procedure of all the other unions
with whom we deal I must attempt to interpret your
dissatisfaction from the rumors I receive from the field.
I am led to believe by these rumors that Local Union
No. 4 feels that we are discriminating against its
members by not requiring contractors in our Associa-
tion to pay the same fringe benefits to members of your
local as are being paid to the members of Bricklayers
and Masons Local Union No. 18. Let me state for the
record that we are agreeable to paying employees
represented by your local union the same wages as that
paid to those represented by Local No. 18, however, we
do not believe that we could legally make welfare and
pension payments on your members in this area when
said payments are not authorized by the contract we
have with your local union.
About eighteen months ago, we negotiated the present
agreement with Local 18 calling for these fringe benefits
and we assured the officers of that local that we would
pay these fringe benefits on their men working outside
their jurisdiction. This is commonplace in the industry,
is a custom of the industry and is a nationwide practice.
At that same time your local union was offered the
same identical benefits on several occasions. In order
that there be absolutely no misunderstanding on this
point, this letter will again serve as a formal offer to
Local Union No. 4 of the same hours, wages and
working conditions as those set out in the agreement
with Bricklayers Local Union 18, providing your local
union is willing to execute the same Labor Agreement
as has been executed by Local Union No. 18.
As you of course know, it is always the desire of this
Association and its members to treat both Bricklayers
Local Unions identical and, therefore, we will anxiously
await a reply at your earliest convenience as to your
decision on this offer.
Conclusions
The initial question for determination is whether there
was a grant by the Respondent of exclusive recognition to
Local 4 within the geographic area of Missouri in which
BUILDERS' ASSOCIATION OF KANSAS CITY 909
Local 18 Bricklayers worked and received disparate welfare
and pension contributions. I find that there was.
The Respondent is correct in its assertion that, as a
matter of law, under Section 9 of the Act, labor
organizations "represent employees, not a geographic
area." 10 However, while a unit determination does not
define job content and may not be predicated solely upon
the scope of a union's territorial jurisdiction,ii a unit is not
rendered inappropriate merely because it is coextensive
with the territorial jurisdiction of a labor organization
claiming to represent employees comprising it.12
It follows that it is permissible under the Act, absent
unlawful motive or effect, for an employer to contractually
extend exclusive recognition to a union throughout the
whole of its geographic jurisdiction. I conclude from the
evidence of record that the Respondent by virtue of its
current 1965 collective-bargaining agreement with Local 4
extended exclusive recognition to Local 4 throughout the
geographic jurisdiction of Local 4 in the State of Missouri.
The delineation of jurisdiction as between Local 4 and
Local 18, which was undertaken and embodied in the 1965
agreement, would have been superfluous and without
meaning if the parties had intended no demarcation of
authority and responsibility as between the two collective-
bargaining representatives. I ascribe to the parties a
meaningful purpose. i3
The effect of this grant of exclusive recognition to Local 4
was to render Local 4 the exclusive collective-bargaining
representative of bricklayers, stonemasons, and apprentices
employed by members of Respondent on projects in the
State of Missouri within the counties comprising the
geographic jurisdiction of Local 4. While Local 18 has had,
at all relevant times, and identical status in the counties of
Kansas which constitute the geographic jurisdiction of
Local 18, the evidence of record is such as to require the
finding that employees who maintain membership in Local
18 but who accept employment from members of
Respondent on projects within the geographic jurisdiction
of Local 4 are subject to and covered by the terms and
conditions of employment established under the Local 4
collective-bargaining agreement. The subsequent 1968
agreement between Local 18 and the Respondent contains
no provision extending it so as to cover such employment
and, in any event, the Local 4 agreement contains no
10 See The Plumbing Contractors Association of Baltimore, Maryland, 93
NLRB 1081, The Heating, Piping & Air Conditioning Contractors, 110
NLRB 261, Broomall Construction Company, 137 NLRB 344
11 Id
12 Id
13 To find as I do that the parties contractually have defined and
recognized the geographic scope of the separate units coextensive with the
representative authority and responsibilities of the respective locals is not
to extend certification rights to either labor organization, or to otherwise
simulate an authoritative determination of the type rendered in a
proceeding before the Board under Sec 9 of the Act Thus, contrary to the
Respondent , the defense of alleged discriminatory racial practices on the
part of Local 4, the Charging Party herein, does not become relevant and
does not serve as of defense to the conduct herein alleged to violate the
Act.
14 That there has been no policy or practice "across the state line" in the
jurisdiction of Local 4 of paying higher scales, as Ernest Winder testified,
was so, simply because Local 18 and Local 4 members had been subject to
the same collective-bargaining agreement and had received the same wages
and benefits Not until Local 18 signed a new agreement was there
provision granting to the Local 18 agreement any
extraterritorial effect.14 Thus, to assume viability of any
benefits contained in the Local 18 agreement which are not
contained in the Local 4 agreement, but which are extended
by employers to employees engaged in work in the Missouri
jurisdiction of Local 4, acquiescense of Local 4 in the form
of waiver, comity, or reciprocity would have to be shown.
There is no evidence of record to support a waiver by Local
4 of the exclusivity of its bargaining agreement as the
charter governing terms and conditions of employment of
unit employees. The subject dispute attests conclusively to
the absence of either comity or reciprocity in this respect
between Local 4 and Local 18.
In the circumstances, and in sum, I find that there exist
two separate units represented by Local 18 and Local 4; the
status of each local as exclusive bargaining representative
extends only to its own contractually defined geographic
jurisdictions; the status of neither extends beyond its own
geographic jurisdiction; the terms and conditions of
employment of the agreement between Local 18 and
members of Respondent do not "follow" the employer or
the employee beyond the jurisdiction of Local 18; and, in
the absence of specific, mutual enabling provisions in the
Local 18 and Local 4 agreements , or a viable policy of
comity or reciprocity recognized by Local 4 , the agreement
between Local 4 and members of the Respondent alone,
and to the exclusion of any conflicting terms contained in
the Local 18 agreement , governs the wages , hours , terms,
and conditions of employment of bricklayers, stonemasons,
and bricklayer apprentices who are members of Local 18
while those employees are performing work on projects
within the geographic jurisdiction of Local 4.15
From these determinations flows the finding that when
employees from the unit represented by Local 18 perform
work for members of the Association on projects situated
within the exclusive jurisdiction of Local 4 in the State of
Missouri, those employees for all purposes governing their
wages, hours, and terms and conditions of employment,
and for the time and to the extent of their employment in
said capacity in the jurisdiction of Local 4, are represented
by Local 4. They are, I additionally find, for this purpose
and to this extent members of the unit represented by Local
4. That these employees do not, as Respondent points out,
pay dues to or have a direct voice in the councils of Local 4,
is not, in my view, a persuasive basis for depriving Local 4
disparity
15 This does not gainsay the existence of a policy of comity and
reciprocity between some bricklayer locals, acquiescence on the part of
some labor organizations in a different practice on the part of Association
members performing work in other jurisdictions utilizing either bricklayers
or other construction industry craftsmen , or the existence of specific
contractual provisions to the contrary existing in collective -bargaining
agreements to which other labor organizations may be a party in the
Kansas City area, or in other areas of the United States.
Collective-bargaining agreements between various labor organizations
other than Local 4 and Local 18, and various employers, or employer-
groups, were offered in evidence by Respondent at the hearing and were
rejected on the grounds of relevance After the close of the hearing the
Respondent filed a motion to admit these rejected exhibits on the theory of
curative admissibility and now clear relevancy , arising, assertedly, from
contentions made by the General Counsel in his brief to the Trial
Examiner I preceive no merit in the curative admissibility contention and
adhere to my ruling made at the hearing I therefore overrule Respondent's
posthearing motion.
910 DECISIONS OF NATIONAL
of representative capacity within its contractually recogniz-
ed geographic jurisdiction, or of extending the jurisdiction
of Local 18 beyond its contractually defined limits. The
Local 18 bricklayers who work in the jurisdiction of Local
4, and are thus subject to a form of dual unit status, do so
under no forced mandate. They accept employment in the
jurisdiction of Local 4 voluntarily. And for its part, Local 4
incurs toward those unit employees the responsibility of fair
and full representation of all unit employees, including the
subject employees, which the Act and the law imposes.
To be certain, when measured in terms of traditional
industrial unit concepts, an anomaly emerges. But this
anomaly derives from the unique characteristics of the
construction industry, which the Board has recognized in
applying Section 9 of the Act to the variant special
circumstances prevailing in the construction industry.16
The aforesaid findings trench in no substantial manner
upon the rights accorded employees under the Act to be
represented by representatives of their own choosing; they
in no manner lessen the legal responsibility of Local 4 to
accord full representation to all unit employees Both
willing, it is in the province of Local 4 and Local 18, in
agreement with area employers, to incorporate in their
respective contracts, as other construction trade unions
appear to have done, provisions allowing higher wage rates
and fringes to prevail in the respective foreign jurisdictions.
Absent such an eventuality, the foregoing findings
recognize the realities of and give substance to the
expressed terms of the existing collective-bargaining
agreements.
The question that next arises is whether the principle
enunciated in Radio Officers' Union and Gaynor News 17 is
applicable to disparate treatment of employees who, under
the circumstances described above, work together in the
same unit performing identical work tasks.
In Radio Officers'the Court stated (347 U.S. at 47):
We express no opinion as to the legality of disparate
payments where the union is not exclusive bargaining
agent since that case is not before us. We do hold that in
the circumstances of this case, the union being exclusive
bargaining agent for both its members and non-member
employees, the employer could not, without violating §
8(a)(3), discriminate in wages solely on the basis of such
membership even though it had executed a contract
with the union prescribing such action. Statements
throughout the legislative history of the National Labor
Relations Act emphasize that exclusive bargaining
agents are powerless "to make agreements more
favorable to the majority than to the minority." Such
discriminatory contracts are illegal and provide no
defense to an action under § 8(a)(3). [Citations
omitted.]
The Respondent correctly alludes to the Gaynor decision
as constituting a cogent premise upon which the issues of
the instant case must be evaluated. The Respondent also
correctly defines the Board's Anheuser-Busch, Inc.,
decision 18 as elucidating precedent giving dimension to the
16 See The Plumbing Contractors Association of Baltimore, Maryland,
supra, Daniel Construction Company, Inc, 133 NLRB 264, R B Butler,
Inc, 160 NLRB 1595, 1599-1600, New Enterprise Stone & Lime Company,
LABOR RELATIONS BOARD
Radio Officers' decision in a factual context similar to that
which here prevails.
In both Gaynor and Anheuser-Busch, unlike this case,
work tasks were being performed by employees employed
in traditional industry units whose composition was
relatively static. Involved in Gaynor was discrimination
between the union and nonunion employees performing the
same work tasks in the same clearly identifiable department
of the employer. In Anheuser-Busch the disparate treatment
was between employees in two separate units represented
by two different labor organizations. In Gaynor the
Supreme Court upheld the view of the circuit court that:
"disparate wage treatment of employees based solely on
union membership status is `inherently conducive to
increased union membership: " The Supreme Court
concluded in Gaynor (347 U.S. at 44):
That Congress intended the employer's purpose in
discriminating to be controlling is clear.
But it is also clear that specific evidence of intent to
encourage or discourage is not an indispensable
element of proof of violation of § 8(a)(3). . . . This
recognition that specific proof of intent is unnecessary
where employer conduct inherently encourages or
discourages union membership is but an application of
common-law rule that a man is held to intend the
foreseeable consequences of his conduct.
In its Anheuser-Busch decision (112 NLRB at 690) the
Board, noting the close similarity of facts as between
Gaynor and the case before it, stated:
In the situation with which we are here confronted
the disparity of treatment stems from a grant of an
economic benefit to employees in a separate bargaining
unit, represented by its own bargaining representative,
without according the same treatment to employees in
another separate bargaining unit, represented by another
bargaining representative That the Act was so designed
as to afford groups of employees of an employer the
utmost freedom in their choice of a bargaining
representative by permitting them to select such
representatives in separate bargaining units, indicates
that the statutory scheme did not contemplate that
disparate treatment among employees in different
separate units along unit lines would, by itself, give rise
to a finding of discrimination. To hold otherwise would
create a wholly unrealistic requirement that would
impose intolerable conditions on an employer who had
concurrent bargaining relationships with separate
bargaining agents representing separate units of
employees in the same or other plants of the employer.
As we view it, an untold variety of factors and
circumstances may exist which from the very nature of
the different units and from the differences in
bargaining relationships would render any attempt at
inferring discriminatory motivation both speculative
and futile.
In our opinion, where, as here, the employer accords
an economic benefit to the employees in a separate unit
represented by its own bargaining agent without
Inc, 172 NLRB No 240
17 Decided together in 347 U S 17
Is I12NLRB 686
BUILDERS ' ASSOCIATION OF KANSAS CITY 911
according like treatment to the employees in another
unit represented by another bargaining unit represented
by another bargaining agent, there is clearly no inherent
unlawful intent. In such circumstances, as no such
inherent unlawful intent exists, an inference of such
motivation cannot be drawn from the disparity of
treatment alone; it must necessarily be predicated on
other independent evidence.
In reaching this conclusion, the Board distinguished
Gaynor, stressing that the Gaynor case involved disparate
treatment between two groups of employees-one union
and the other nonunion-both within the same bargaining
unit; and noting that the Supreme Court in Gaynor had
taken cognizance of the fact that the disparate treatment of
employees which the court found to be "inherently
conducive to increased union membership" was based
"solely on union membership status "
The factual distinction between Gaynor and Anheuser-
Busch, which the Board found controlling in the latter case,
is not present here. While the facts of Gaynor are not
mirrored in full image in the instant record, its salient
features find duplication. Because of the mobility of the
construction industry craftsmen here involved, the unit
membership is not as stable as in some industrial units, but
the scope of the units represented by Local 4 and Local 18
are clearly defined in the respective collective-bargaining
agreements and the nature of the duties of the employees
comprising the unit is crystallized. As found, when
employed in the State of Missouri by members of
Respondent, Local 18 bricklayers are constituents of the
unit represented by Local 4. When so employed they have
received contributions from employer-members of Respon-
dent which exceed those made by the employers to other
unit employees, although the work performed is the same
and the conditions under which the work is done are
identical. The sole criteria under Respondent's policy for
disparity of treatment accorded employees who maintained
their membership in Local 18 and those who maintained
their membership in Local 4 is the fact of their
membership.19 This is clearly expressed in Respondent's
February 12, 1969, communication to its employer
members, as follows:
2. Local No. 18 members working in any jurisdiction
to be paid fringes payable under the Local No. 18
(Kansas) contract.
3. Bricklayers, other than Local No. 18 members,
working outside Local No. 18 jurisdiction are not to
receive any compensation in addition to that called for
by the Local No. 4 (Missouri) contract.
The effect of this practice when pursued with respect to
employment on projects within the jurisdiction of Local 4 is
a differentiation based solely on whether or not an
19 The parties stipulated that, "[w]ith respect to employment on job
projects located in the [specified] Missouri county the policy is that
fringe benefit contributions shall be made on behalf of members of Local
18 in amounts corresponding to Local 18's agreement and on behalf of
members of Local 4 in amounts corresponding to Local 4's agreement"
20 As I view the matter, as Local 4 was the exclusive collective-
bargaining representative of affected employees, and because Local 4 had
not given it acquiescence in any form to an application of the welfare and
pension terms of the Local 18 agreement to the employment of employees
within the unit which it represented, it is unnecessary to determine whether
employee is a member of Local 18. Membership alone
serves as the criteria.
Drawing upon the concept extracted from the decision in
N.L R B. v. The Reliable News Delivery, 187 F.2d 547 (C.A.
2), which concept was applied by the circuit court in its
decision in Gaynor, the Respondent contends that the
"existence of separate bargaining unit and bargaining
representative which gives the group subject to the
disparate treatment `means of equalizing the situation' has
been recognized." From this premise Respondent contends
that there is no inherent discrimination in its practice and
that it is open to Local 4 to "equalize" the fringe benefit
contributions of Association members by negotiations, or
by accepting the terms offered by Respondent and rejected
by Local 4. The short answer to this contention is, of
course, that there exists only one bargaining unit within the
geographic jurisdiction of Local 4 and only one bargaining
representative authorized to negotiate terms and conditions
of employment for members of that unit. That bargaining
agent, Local 4, has exercised its judgment in the direction of
adherence to existing collective-bargaining terms. That
Local 18 was successful in negotiating through Respondent
terms favorable to the welfare and pension interests of its
constituents while Local 4 was recalcitrant when offered
the same terms for members of the unit which it represented
does not change the matter. The facts of record as they
emerge reveal that during the term of the existing and
viable collective-bargaining agreement between Respon-
dent and Local 4, Respondent undertook to apply within
the jurisdiction of Local 4 and to members of Local 18 who
pro tanto comprise the bargaining unit of which Local 4 is
the exclusive bargaining representative, the more generous
provisions of the Local 18 agreement which Local 4 had not
accepted or adopted. I find that, under the principle of
Gaynor and Radio Officers' the practice is inherently
discriminatory within the meaning of Section 8(a)(3) of the
Act. I find this to be so whether or not in applying the
favorable welfare and pension terms of the collective-
bargaining agreement with Local 18 to which it was a party,
Respondent acted pursuant to an oral agreement with
Local 18.20 The "union-encouraging effects of the discnmi-
natory treatment" is patent21 and the unlawful nature of
the practice is not changed merely because Respondent
may have had a beneficent intent. An evenhanded effort on
the part of Respondent to make the improved pension and
welfare benefits available to members of Local 4 as well as
to members of Local 18 does not purify the practice, which
is inherently discriminatory.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
Respondent and Local 18 were acting pursuant to an oral agreement made
between them inter se, or to determine whether this action was taken under
some gloss of authority deriving from an arbitration award
21 See Radio Officers' Union v N L R B. supra, 38 The practice is
particularly so when it calls into play disparity as between members of
locals which had been historically parties to the same collective -bargaining
agreement , and between craftsmen who performed work in the same
metropolitan area , frequently within the jurisdiction of the local in which
they were not a member , and who had historically received the same wages
and fringe benefits when working in said capacity
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, occurring in connection with the operations of the
Respondent 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
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
I have found that Respondent has violated Section
8(a)(1) and (3) of the Act by making disparate welfare
contributions to employees other than members of Local
18, and by making pension fund contributions to members
of Local 18 while failing to make identical contributions to
other employees, both under circumstances wherein
members of Local 18 have the status of members of the
collective-bargaining unit of which Local 4 is the exclusive
collective-bargaining agent and while said members of
Local 18 are working with members of Local 4 and other
employees in said bargaining unit performing identical
work. I have further found that the collective-bargaining
agreement between Respondent and Local 4 contains no
provision establishing a pension fund for unit employees, or
in any other manner providing for the contribution of
pension funds on the part of any employer-member of
Respondent. I shall, accordingly, recommend that Respon-
dent make whole all employees in the collective-bargaining
unit represented by Local 4 for whom contributions were
made for welfare benefits in lesser amounts than were
allocated for welfare benefits to members of Local 18 while
said members were employed in the unit represented by
Local 4, performing identical work tasks. I shall, however,
recommend no payment of sums to nonmembers of Local
18 in said bargaining unit for contributions made to
members of Local 18 for pension benefits. The amount to
be contributed under this make-whole order shall be the
difference in the amount contributed to welfare benefits for
members of Local 18 and the amount contributed to the
same purpose for nonmembers of Local 18 during the
period of time extending from March 1, 1969, 6 months
prior to the filing of the initial charge herein.
I shall also recommend that Respondent cease and desist
from giving effect to its policy and/or practice of according
members of Local 4, or any other employees who are not
members of Local 18, welfare, pension, or any like or
related benefit which is disparate, inferior, or discriminato-
ry when measured against those accorded members of
Local 18 when said members of Local 18 are working in the
geographic jurisdiction of Local 4, in the collective-
bargaining unit represented by Local 4, and performing
work tasks in the employ of members of Respondent
together with members of Local 4 or other unit employees.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. Bricklayers ' Union No. 4 of Kansas City, Missouri,
AFL-CIO, and Bricklayers Union No. 18 of Kansas City,
Kansas, AFL-CIO, are labor organizations within the
meaning of Section 2 (5) of the Act.
3. At all times material herein Local 4 has been the
recognized collective-bargaining representative of all
bricklayers , stonemasons , and bricklayer apprentices
employed in a specified geographic area of the State of
Missouri ; and during all relevant times Local 18 has been
the exclusive collective -bargaining representative of brick-
layers, stonemasons , and bricklayer apprentices employed
in a separate collective -bargaining unit in a specified
geographic area of the State of Kansas.
4. Respondent has pursued at all relevant times a policy
of making pension fund contributions to members of Local
18 while making no such contributions to nonmembers of
Local 18 ; and of making welfare fund contributions to
members of Local 18 in amounts greater than those made
to nonmembers of Local 18, both of the foregoing in
circumstances wherein Local 18 members are working in
the employ of employer-members of the Respondent
together with members of Local 4, and other employees, on
job projects located in the geographic jurisdiction of Local
4 in the State of Missouri, and in the collective -bargaining
unit represented exclusively by Local 4.
5. By such conduct the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case, I
recommend that Builders' Association of Kansas City, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Making pension and welfare fund contributions to
members of Local 18 in amounts greater than those made
to nonmembers of Local 18, including specifically members
of Local 4, when members of Local 18 performed work in
employ of employer-members of Respondent on projects
located within the State of Missouri, in the geographic
jurisdiction of Local 4, at which time members of Local 18,
together with members of Local 4, and other employees,
comprise the collective-bargaining unit of which Local 4 is
the exclusive collective-bargaining representative.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) In any manner specified in the portion of this
Decision entitled "The Remedy" make whole members of
Local 4, and other employees who comprise or have
comprised the collective-bargaining union represented by
Local 4, for any loss of welfare benefits they may have
suffered by reason of the discrimination against them.
(b) Post at its Kansas City, Missouri office and place of
BUILDERS' ASSOCIATION OF KANSAS CITY
business copies of the attached notice marked "Appendix
B."22 Copies of said notice, on forms provided by the
Regional Director for Region 17, shall, after being duly
signed, be posted by Respondent immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify each employer-member of the Association, in
writing, that it is no longer the practice of the Association to
require employer-members of the Association when
employing members of Local 18 on the job projects in the
geographic jurisdiction of Local 4 in the State of Missouri,
to make welfare and pension contributions on behalf of
said employee in the amounts specified in the collective-
bargaining agreement between Local 18 and the Associa-
tion. Respondent shall advise employer-members of the
Association, in writing, that no contributions to the pension
fund shall be made in the aforesaid circumstances and that
the contributions to the welfare fund shall be in the
amounts specified in the collective-bargaining agreement
between Local 4 and the Respondent.
(d) Mail to each employer-member of the Association for
posting, the employer willing, signed copies of the notice
attached hereto and marked "Appendix B." 23
(e) Notify the Regional Director for Region 17, in
writing, within 20 days of the receipt of this Decision what
steps Respondent has taken to comply herewith.24
22 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, recommendations , and Recommended Order herein
shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted
by the Board and become its findings, conclusions , and order, and all
objections thereto shall be deemed waived for all purposes in the event
that the Board's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
23 Supra, In 22
24 in the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify the Regional Director, in
writing within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith "
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT encourage membership in Bricklayers'
Union No 18 of Kansas City, Kansas, AFL=CIO, or
any other labor organization of our employees, by
discriminating against employees in respect to the
contributions which our employer-members are re-
quired to make to the welfare and pension fund, or any
other term or condition of employment, because of their
nonmembership in Local 18.
913
WE WILL NOT require our employer-members who
perform work on projects situated within the geographic
jurisdiction of Bricklayers' Union No. 4 of Kansas City,
Missouri, AFL-CIO, to make on behalf of members of
Local 18 who may be employed on said project,
contributions to the pension fund provided for under
the collective-bargaining agreement between Local 18
and the Association.
WE WILL NOT require the employer-members of the
Association, when engaged in work on projects located
within the geographic jurisdiction of Local 4 in the State
of Missouri, to make on behalf of members of Local 18
who may be employed on said projects contributions to
the welfare fund maintained pursuant to the collective-
bargaining agreement between Local 18 and the
Respondent, contributions in amounts which exceed
the contributions made on behalf of all other employees
so employed on said project as required by the
collective-bargaining agreement between Local 4 and
the Respondent.
WE WILL make whole all members of Local 4, or any
other employee, employed in the collective-bargaining
unit of bricklayers, stonemasons , and bricklayer
apprentices, represented by Local 4 throughout its
geographic jurisdiction in the State of Missouri, for any
loss in welfare fund contributions they may have
incurred on or after March 1, 1969, by reason of the
practice which Respondent has pursued of paying
members of Local 18 higher welfare fund contributions
than those paid other employees who are not members
of Local 18 but who have been employed together with
members of Local 18 by employer-members of the
Association on projects within the geographic jurisdic-
tion of Local 4 in the State of Missouri.
WE WILL advise each member of the Association, in
writing, that we no longer require them to make
contributions on behalf of Local 18 members who work
together with nonmembers in the employ of employer-
members of the Association on work projects in the
geographic jurisdiction of Local 4 at a rate higher or
different from that contributed for welfare fund
purposes for nonmembers of Local 18.
Dated By
BUILDERS' ASSOCIATION OF
KANSAS CITY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this Notice or compliance with
its provisions, may be directed to the Board's Office, 610
Federal Buidling, 601 East 12th Street, Kansas City,
Missouri 64106, Telephone 816-374-5181.