International Hod Carriers, Etc., Local 1082

National Labor Relations Board - Board Decisions

Dec 15, 1964

150 N.L.R.B. 158 (N.L.R.B. 1964)

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I further recommend that the complaint be dismissed insofar as it alleges that the
Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (3 )
and (1 ) of the Act by discharging and failing to recall 11 named employees.
APPENDIX A
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 Labor Management
Relations Act, we hereby notify our employees that:
WE WILL, upon request, recognize and bargain collectively with Local 854,
International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America as the exclusive representative of all the employees in the bargaining
unit described below, with respect to rates of pay, wages, hours of employment,
or other conditions of employment, and, if an agreement is reached , embody it
in a signed contract. The bargaining unit is:
All production and maintenance employees at our Brooklyn, New York,
plant, exclusive of office clerical employees , managerial employees , guards,
and all supervisors as defined in Section 2 (11) of the Act.
WE WILL NOT take economic reprisals against any employee for engaging in
the protected activity of a strike or for engaging in any other protected concerted
activity.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization , to form, join,
or assist the above-named or any other labor organization , to bargain collectively
through representatives of their own choosing , to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities , except to the extent that such
right may be affected by the provisos in Section 8 (a) (3) of the Act.
HENRY SPEN & COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, 745 Fifth
Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any ques-
tion concerning this notice or compliance with its provisions.
International Hod Carriers , Building and Common Laborers
Union of America, Local #1082, and its Agent , George Tarr
[E. L. Boggs Plastering Company] and Jones & Jones, Inc.,
and Progressive Plastering & Lathing Contractors ' Association
International Hod Carriers , Building and Common Laborers,
Local #1082 and Jones & Jones , Inc., and Progressive Plaster-
ing & Lathing Contractors ' Association . Cases Nos. 01-CB-
1969, 21-CB-2012, 21-CC-549, 21-CC-567, and 21-CB-2091. De-
cember 15, 1964
DECISION AND ORDER
On August 27, 1963, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
150 NLRB No. 19.
INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 159
unfair labor practices , and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Intermediate Report. Thereafter, the Respondents filed
exceptions to the Intermediate Report and- a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The 'Board has considered the
Intermediate Report, the exceptions and, brief , and the entire record
in the case; and hereby adopts the findings, conclusions , and recom-
mendations of the Trial Examiner only to the extent that they are
consistent with our decision herein.
The facts are essentially as set forth in the Intermediate Report.
Briefly, they disclose that the E. L. Boggs Plastering Company
entered the contracting business in July 1959 and the following
summer became a party to , an existing 2-year collective -bargaining
contract between the Contracting Plasterers ' Association of South-
ern California, Inc. (hereinafter called the C.P.A.S.C.), the Orange
County Lathing and Plastering Contractors Association ( herein-
after called the O.C.L.P.C.A.), and various locals of the Hod Car-
riers International affiliated with the Southern California District
Council of Laborers, AFL (hereinafter called the District Council).
The agreement was applicable to plaster tenders working for all the
employer -members of the two aforedescribed associations in the
geographical area of Los Angeles County, Orange County, Catalina
Island, and numerous nearby offshore islands. The agreement
expired on May 31, 1962. Shortly thereafter, on June 4, the parties
entered into a new 5-year agreement effective until April 30, 1967.
Boggs, however, did not at that time become a party thereto.
Accordingly, Remult, assistant business agent of Respondent Local
#1082, went to Boggs' Arcadia jobsite in mid-June and gave a copy
of the comprehensive , 22-page agreement to Boggs' Foreman Roll-
man with instruction to have Elmer Boggs sign it. Boggs declined
to do so. Instead, in July 1962, Boggs joined another newly formed
association, the Progressive Plastering & Lathing Contractors' Asso-
ciation ( hereinafter called the Association ). This Association had
been formed early that spring at the behest of four contractors,'
and its membership expanded to nine contractors by early August.
The Association exists for the purpose of representing employer-
members in collective bargaining with labor organiaztions; it, in
turn, is represented by Jones & Jones; labor relations consultants.
1 Charles Norris Plastering Company, O . H. Hudson Company , Arce-Tickey , and Saltony
Plastering Company were the original contractors who went to Norman E. Jones in March
1962 and requested that he form an association
775-692-6 5-vol. 150-12
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As a result of the Association's notice to Respondent Laborers'
Local, #1082 that it desired to negotiate a contract, Jones and the
Union held four bargaining sessions between mid-July and Decem-
ber 28, 1962. During these meetings there were basically two major
topics of discussion. First, the parties considered the recognition
problem : Was the Union willing to recognize Jones as representa-
tive of all nine members of the Association or of only four members
-thereof ? 2 More importantly, as to these four remaining employers,
was the Union only willing to recognize Jones on their behalf as
individuals or in a multiemployer, associationwide unit? Second,
the parties addressed themselves to the possible terms of an agree-
ment. The main substantive areas about which the parties were
concerned were the subcontract and bond provisions. No agree-
ments were reached in those areas. The difficulty stemmed, at least
partially, from the fact that the parties were negotiating on the
basis of their possible entry into either individual-employer con-
tracts or one multiemployer, associationwide agreement and different
proposals were submitted with respect to each of these alternative
possibilities.
No agreements having been reached in the December 28 bargain-
ing session, the Union struck Boggs' El Monte jobsite on January 3,
1963, in furtherance of its efforts to compel Boggs to sign a con-
tract containing subcontract and bond provisions .3 Although the
parties had extended their efforts toward reaching an agreement
between the Union and the whole Association or its individual mem-
bers, Boggs actually signed the C.P.A.S.C. agreement 4 It included
those two mentioned provisions.5 The subcontract clause (article
IC) provided that: "If the Contractors, parties hereto, shall sub-
contract work as defined herein, provision shall be made in such
subcontract that said subcontractor be signatory to this Agreement,
and abide by all provisions set forth within this Agreement." On
2 The Union consistently maintained that it did not recognize Jones as bargaining rep-
resentative of five of the Association's contractor- members because these five were already
bound by the above-mentioned existing 5 -year agreement between the Union and C.P.A.S C.
On the other hand , the Association, apparently for the first time in its November 5, 1962,
letter to Respondent's Attorney Richman, contended that these five contractors were not
bound by the C P.A S C. agreement " because such Association entered into a five-year
agreement wherein the association ' s bylaws did not allow over a three -year agreement
without consent of the Board of Directors . Such consent was given only after agreement
was reached and not before as bylaws so state." [Emphasis supplied.]
8 On an earlier occasion , October 5, 1962 , Union Representative Tarr threatened Boggs
that he would shut down the El Monte jobsite unless Boggs signed the C.P.A.S.C. agree-
ment. At that time Tarr also informed Boggs' employees that Boggs was operating with-
out a contract and advised them that they would be cited before the Union 's executive
board unless they left the Jobsite. This incident is reported fully in section III, C, 2, of
the Intermediate Report.
* Norman Jones , Boggs' bargaining representative , was not present at the jobsite when
Boggs signed the C.P.A.S.C. agreement.
5 The bond provision, article X of the C.P.A.S.C. agreement , is set forth verbatim in the
Intermediate Report.
INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 161
these facts, the Trial Examiner concluded that the Union engaged
in conduct violative of Section 8(b) (3), 8(b) (1) (B), 8(b) (4) (i),
(ii) (A) and (B) of the Act.
1. The Trial Examiner found that the Union, in adopting a "take
it or leave it" attitude,. violated Section 8 (b) (3) by a general
refusal to bargain in good faith with the Association. He also
found that the Union violated Section 8(b) (1) (B) and 8(b) (3) by
picketing Boggs in January 1963 to force him to abandon negotiat-
ing through his bargaining representative, the Association by Nor-
man Jones, and then to force Boggs to enter into a separate contract
with the Union.
The Respondent contends initially 6 that the Trial Examiner
"confused the evidence" and thereby erroneously found an 8(b) (3)
general refusal to bargain in good faith violation. In support of
its position the Respondent urges that the' Trial Examiner failed to
perceive that the Union never expressly agreed to recognize or bar-
gain with Jones as representative of the Association qua Associa-
tion but willingly explored the possibility of either an association-
wide agreement or individual-employer contracts. Similarly, the
Union urges that the Trial Examiner's 8(b) (1) (B) and 8(b) (3)
findings as to the alleged coercion of Boggs in his selection of a
bargaining representative or wholly unsupported by the record.
We find merit in the Respondent Union's exceptions to these
8(b) (3) and 8(b) (1) (B) findings of the Trial Examiner. It is
evident that these findings are inextricably linked with the assump-
tion that the parties were obligated to bargain for a multiemployer,
associationwide agreement. For in concluding that the Union
entered negotiations with a "fixed determination not to bargain and
with a padlock on its choice of terms and conditions," the Trial
Examiner relied essentially on the presence of a "favored nations" 7
clause in the Union's C.P.A.S.C. area agreement. And he found
that "it left no room for bargaining" since it precluded the Union
from entering into a contract with the Association (as contrasted
from individual contractors) which varied to any marked degree
from the existing area agreement. Likewise, the Trial Examiner
6 The Respondent Union also contends that the Board lacks jurisdiction over this dis-
pute and that this proceeding should be dismissed because the Union was deprived of an
adequate opportunity to consider settlement or other informal proceedings . For the
reasons set forth in the Intermediate Report, we find that the Respondent' s contention
concerning settlement lacks merit . Likewise, the Board's decision in United Mine Workers
of America, District 2 (Mercury Mining and Construction Corporation ), 96 NLRB 1389,
1390, supports the assertion of jurisdiction herein.
See the Trial Examiner ' s discussion of the impact of the "favored nations" clause on
the Union's attitude toward bargaining . The "favored nations" clause (article IX of the
C.P.A.S.C. agreement) reads: "The Unions shall not sign or work under . . . any agree-
ment with Employers of Plaster Tenders in this area giving more favorable terms of work-
ing rules than those established for Plaster Tenders under this Agreement." [ Emphasis
supplied. ]
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rested on this same assumption,8 his opinion that "Tarr had no
legal right to approach Boggs separately about contract terms so
long as no impasse had occurred" and that by picketing Boggs
alone the Union engaged in "divide and conquer" tactics in viola-
tion of Section 8(b) (1) (B) and 8(b) (3).
We are of the opinion, however, that in the particular circum-
stances of the instant case the Trial Examiner's reliance upon this
assumption is misplaced. For the existence of a multiemployer unit
must be predicated upon the mutual consent of the Union and
employers concerned,9 and it is manifest that this basis is lacking
here. Thus, the complaint alleged and the answer admitted that
all of Boggs' plaster tenders working in the geographical area. of
Los Angeles County, Orange County, Catalina Island, and numer-
ous offshore islands constitute a unit appropriate for collective bar-
gaining within the meaning of Section 9(b) of the Act. The testi-
mony of Respondent's Attorney Richman as well as the Trial Exam-
iner's findings demonstrate further that Richman told Jones that
he would bargain with Jones on an individual-employer basis and
that Richman never agreed on behalf of Respondent to recognize the
Association as an association for purposes of a multiemployer, asso-
ciation contract. Significantly, Jones' testimony generally corrobo-
rated Richman's and, with respect to the October 26 meeting, Jones
in fact testified that "Richman said I'll bargain with you for them
[the four contractors not covered by the existing C.P.A.S.C. agree-
ment] on an individual basis ... If we can get together maybe we
can write it for the whole association . . . He [Richman] did not
say that he recognized the association as an association. He did not
say he did not recognize that association. It was left in the air."
[Emphasis supplied.] Finally, while the October-December bar-
gaining proceeded in terms of the possibility of contracting on an
associationwide basis, the Board has recently had occasion to point
out that the mere fact that parties undertake to explore this pos-
sibility by participating in negotiations with a representative of an
association does not automatically establish that they had con-
sented to bargain on that basis.10 In light of all the foregoing, we
find that a multiemployer, associationwide unit was not established.
8 We note that the Trial Examiner cited The Westchester County Executive Committee,
etc, 142 NLRB 126, and Cascade Employers Association Inc., 127 NLRB 488, in support
of his above position. In those cases the Board found , in essence , that the Union violated
Section 8 ( b) (1) (B) and 8(b) (3) by striking individual employer- members of a multi-
employer association to force them to withdraw from the Association and enter into
individual contracts at a time (before impasse) when the Union was obligated to bargain
for an associationwide agreement
9 Chicago Metropolitan Home Builders Association, 119 NLRB 1184, 1186.
1i The Great Atlantic & Pacific Tea Company, 145 NLRB 361.
INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 163
Having thus rejected the basic premise upon which the Trial
Examiner's rationale was founded, it follows that his rationale must
likewise fall. Specifically, having rejected the existence of a multi-
employer, associationwide unit, we must necessarily view the alle-
gations of the complaint in another posture-namely, that of a
single-employer unit. When so viewed, the Trial Examiner's ration-
ale that the Respondent violated Section 8(b) (1) (B) and 8(b).(3)
by engaging in so-called divide-and-conquer, whipsaw, or divisive
tactics when it picketed Boggs alone in January 1963, is clearly
inapplicable. Nor can we perceive any other basis for establishing
these violations. On January 4, 1963, Business Agent Tarr
(described fully in section III, C, 2 of the Intermediate Report)
encouraged Elmer Boggs personally to sign the C.P.A.S.C. agree-
ment at a time when Boggs did not have the advice of his bargaining
representative, Norman Jones. However, in the circumstances pre-
sented herein, this does not, in our opinion, constitute coercion of
an employer in the selection of his bargaining representative within
the meaning of Section 8(b) (1) (B),111 or a refusal to bargain in
violation of Section 8(b) (3). Additionally, there is no basis for
finding that the Respondent's entire pattern of conduct constituted a
general refusal to bargain in good faith in a single-employer unit.
For even if the "favored nations" clause in Respondent's C.P.A.S.C.
area agreement arguably precluded it from requesting or accepting
anything other than an identical agreement,12 the record demonstrates
this would be true only in an associationwide contract and not in a
contract with an individual employer. From the record herein it is
evident that Respondent willingly met and conferred on numerous
occasions with Norman Jones, on behalf of Boggs, and actively par-
ticipated in an open and frank exchange of ideas and proposals, espe-
cially with respect to problems involving recognition, subcontracting,
and a bond provision-the three major substantive obstacles to an
agreement between the parties. While no agreement was reached at
the bargaining table, agreement or concession is not a necessary pre-
requisite to satisfying the duty to bargain in good faith set forth in
the Act. Accordingly, we shall dismiss these allegations of the
complaint.
n Cf. Cheney California Lumber Company, 130 NLRB 235, 242-243, enfd. 319 P 2d 375
(C A. 9) ; and Los Angeles Cloak Joint Board, etc. (Helen Rose Co, Inc.), 127 NLRB 1543.
12 In exploring the possibility of an associationwide agreement , the Respondent, inter
alia, offered to accept an increased wage rate in lieu of the subcontracting clause. The
Trial Examiner summarily dismissed this proposal "as a tactic to give an appearance of
bargaining knowing that the offer could not be accepted." However, in the instant circum-
stances, we see no factual basis for adopting this conclusionary language of the Trial
Examiner.
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Trial Examiner also found that the Respondent violated
Section 8(b) (4) (i), (ii) (A) and (B) of the Act by inducing employ-
ees of Boggs to withhold their services from Boggs and by picketing
Boggs with the objective of forcing him to sign an agreement con-
taining a subcontract clause (see supra), falling within the scope of
Section 8(e).13 The Trial Examiner, while recognizing that the
instant subcontract clause fell within the construction industry
proviso 14 to Section 8(e), nevertheless took the position that coer-
cion to obtain such an excepted clause was violative of both clauses
(A) and (B) of Section 8(b) (4) of the Act. In essence , the Trial
Examiner's mentioned findings reflected existing Board law as set
forth in Colson and Stevens Construction Co., Inc., 137 NLRB
1650. However, upon reexamining that decision in the Centlivre
case,16 the Board overruled the Colson and Stevens doctrine and
consequently held that picketing to obtain a contract clause within
the construction industry proviso to Section 8(e) does not violate
Section 8(b) (4) (A).18 As the Respondent's object in inducing
Boggs' employees and picketing Boggs was to obtain a contract
containing, inter alia, just such a clause, we find, contrary to the
Trial Examiner, that the instant complaint should be dismissed inso-
far as it alleged that Respondent violated Section 8(b) (4) (A) of the
Act.
Further, the record does not disclose any evidence that the sub-
contract clause which the Respondent struck to obtain would have
forced Boggs to cease doing business with any specific employer or
would otherwise have required the disruption of any existing busi-
ness relationship between Boggs and "other persons," for example,
subcontractors within the meaning of Section 8(b) (4) (B). In a
word, there is no evidence that Respondent's economic action was
's Section 8(e) provides: "It shall be an unfair labor practice for any labor organiza-
tion and any employer to enter into any contract or agreement , express or implied, whereby
such employer ceases or refrains or agrees to cease or refrain from handling , using, selling,
transporting or otherwise dealing in any of the products of any other employer, or to
cease doing business with any other person, and any contract or agreement entered into
heretofore or hereafter containing such an agreement shall be to such extent unenforceable
and void . . . .
"The construction industry proviso to Section 8(e) provides : "Provided, That nothing
in this subsection ( e) shall apply to an agreement between a labor organization and an
employer in the construction industry relating to the contracting or subcontracting of
work to be done at the site of the construction , alteration , painting , or repair of a building,
structure , or other work... .
la Northeastern Indiana Building and Construction Trades Council ( Centlivre Vsllage
Apartments ), 148 NLRB 854
1e See also Construction, Production & Maintenance Laborers Union, Local 383, et al. v.
N.L.R.B. ( Colson and Stevens Const . Co.), 323 F. 2d 422 (C.A. 9 ) ; Essem County and
Vicinity District Council of Carpenters , etc. v. NLRB ., 332 F. 2d 636 ( CA. 3) ; Orange
Belt District Council, et al. v. N.L.R.B. ( Calhoun Drywall Co .), 328 F. 2d 534 (C A.D.C.) ;
Building and Construction Trades Council of San Bernardino and Riverside Counties, et al.
v. N.L.R.B. ( Gordon Fields ), 328 F. 2d 540 (C.A.D .C.). See also Local Union No. 48 of
Sheet Metal Workers v . Hardy Corp ., 332 F. 2d 682 (C.A. 5).
INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 165
aimed at achieving any object other than the limited one of securing
a contract with a clause exempted by the construction' industry pro-
viso. Accordingly, we further find, contrary to the Trial Examiner,
that the instant complaint should be dismissed insofar as it alleged
that Respondent engaged in conduct violative of Section 8(b)
(4) (B) of theAct17
3. The Trial Examiner's conclusion that Respondent also violated,
Section 8(b) (3) by striking for the aforementioned subcontracting
clause directly stemmed from his conclusion that such strike violated
Section 8(b) (4) (A) of the Act. We have found, however, that by
virtue of the construction proviso to Section 8 (e) • Congress intended
to permit unions in this industry to strike for such clauses. It
would be anomalous to hold in the instant circumstances that this
right was taken away under Section 8(b) (3). Accordingly, we
shall also dismiss the complaint insofar as it alleges that Respond-
ent violated Section 8(b) (3) by insisting upon, the inclusion of a
subcontracting clause.18
4. Finally, the Board finds, in agreement with the Trial Exam-
iner, that the bond clause was a nonmandatory subject of bargaining
and Respondent's insistence upon the inclusion of this clause, as
evidenced by its position at the bargaining table and in subsequent
picketing to obtain a contract containing such a clause , violated
Section 8(b) (3) of the Act.19
REMEDY
In accordance with established Board precedent, we shall fashion
a remedy to the specific conduct found violative of the Act. Thus,
as we have only found that Respondent violated Section 8(b) (3)
by insisting upon the inclusion of the bond clause and since the
contract containing this clause has been executed, we shall order
the Respondent to cease and desist from insisting that Boggs com-
ply with this particular provision of the contract., Finally, to
restore the parties to the status quo ante, we shall order the Respond-
ent to return the $1,000 certified check which Boggs gave to the
17 Cf. Northeastern Indiana Building and Construction Trades Council ( Centlivre Village
Apartments ), 148 NLRB 854.
's See Operative Plasterers' & Cement Masons' International Association (Jones d Jones,
and Arnold M. Hansen ), 149 NLRB 1264.
Since the Board has not adopted the Trial Examiner 's 8(b).(3) finding with respect to
the insistence upon the inclusion of a subcontract clause, we need not adopt or rely upon
the Trial Examiner 's finding that the original charge in Case No. 21-CB-1969, while not
expressly referring to an 8(e) clause , adequately notified the Respondent that the 8(b) (3)
allegation was in fact based upon the Respondent 's insistence on such a clause.
19 N.L.R B. v. Wooster Division of Borg-Warner Corporation , 356 U.S. 342 ; see also
Carpenters' District Council of Detroit, etc., at al. ( Exceilo Dry Wall Co. ), 145 NLRB
663 (Members Brown and Jenkins, dissenting ), enfd . by per curium opinion dated June 15,
1964 , 58 LRRM 2084 (C.A.D.C.).
166 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
Union in lieu of a cash bond with the further direction that if the
check was ' cashed the Union shall be liable for 6-percent interest on
that amount from the date cashed.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended , the National Labor Relations Board hereby orders that
the Respondent, International Hod Carriers , Building ' and Com-
mon Laborers Union of America, Local #1082, its officers, agents,
and representatives , including George Tarr , shall:
1. Cease and desist from refusing to bargain. with Boggs by insist-
ing upon the inclusion of the bond clause ( article X ) in the contract
or by insisting that Boggs comply with said bond clause.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Return, or cause to be returned , to Boggs the certified check
for $1,000 which was delivered by Boggs and received by Tarr on
behalf of the Union. If the check has been cashed, then refund the
$1,000 to Boggs plus 6-percent interest computed from the date said
check was cashed.
(b) Post in conspicuous places at the Union 's business offices,
meeting halls , and all places where notices to members are custom-
arily posted , copies of the attached notice marked "Appendix." 20
Copies of said notice , to be furnished by the Regional Director for
Region 21 , shall, after having been duly signed by an authorized
representative of the Union, be posted' by the Union immediately
upon receipt thereof, and be maintained by it for a period of 60
consecutive days thereafter . Reasonable steps . shall be taken to
insure that the notices are not altered , defaced, or covered by any
other material.
(c) Sign and deliver sufficient copies of said notice to the
Regional' Director for Region 21, for posting by Boggs, Boggs being
willing, at all locations where notices to his employees are customar-
ily posted.
.(d) Notify ,the Regional Director for Region 21, in writing,
within 10 days from the date of this Decision and Order, what
steps the Union has taken to comply herewith.
' IT IS HEREBY FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as the other allegations of the complaint
are concerned.
In the event that this Order is enforced by a decree of a 'United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
INTERNATIONAL HOD CARRIERS , ETC., LOCAL 1082
APPENDIX
NOTICE TO ALL OUR MEMBERS AND ALL EMPLOYEES OF
E. L. BOGGS PLASTERING COMPANY
167
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that:
WE WILL NOT refuse to bargain with Boggs on behalf of his
employees in any appropriate unit by insisting upon the inclu-
sion of the bond provision. The bargaining unit is:
All Boggs' plaster tenders working in the geographical
area of Los Angeles County, Orange County, Catalina
Island, and the following offshore islands if point of
embarkation is from Los Angeles or Orange County,
namely, Richardson Rock, Santa Cruz Island, Arch Rock,
San Nicholas Island, San Clemente Island, San Miguel
Island, Santa Rosa Island, Anacapa Island (Channel
Islands Monument), and Santa Barbara Island, excluding
executives, civil engineers and their helpers, superintend-
ents, assistant superintendents, master mechanics, time-
keepers, messenger boys, office workers, or any employees of
the contractor above the rank of craft foreman and super-
visors as defined by the Act.
WE WILL NOT insist that Boggs comply with the bond provi-
sion in its collective-bargaining agreement with us.
WE WILL return or cause to be returned the certified check for
one thousand dollars ($1,000) which was delivered by said
Boggs and received by George Tarr on behalf of this labor
organization or we will refund the proceeds of said check with
6 percent interest from the date the check was cashed.
INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON
LABORERS UNION OF AMERICA, LOCAL #1082,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
Dated---------------- By-------------------------------------
GEOrCE TARR, Business Representative
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. `
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional
Office, 849 South Broadway, Los Angeles, California, Telephone No.
688-5204, if they have any question concerning this notice or com-
pliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The following charges and amended charges were filed by Progressive Plastering &
Lathing Contractors ' Association , herein called the Association and its representative,
Golding & Jones, Inc. (or, in later charges, Jones & Jones, Inc., successor to Golding &
Jones, Inc.) against International Hod Carriers, Building and Common Laborers
Union of America, Local # 1082, herein called the Union , and (except in one case)
against its agent , George Tarr, business representative , herein called Tarr, but jointly
with the Union called Respondents : On October 18, 1962, and April 30, 1963, in Case
No. 21-CB-1969; on January 7 and April 30, 1963, in Case No. 21-CB-2012; on
October 18 , 1962, in Case No. 21-CC-549; on January 7, 1963, in Case No. 21-CC-
567. Jones & Jones, Inc., also filed a charge against the Union and Southern Cali-
fornia District Council of Laborers on April 5, 1963, in Case No. 21-CB-2091 and,
in the same case, an amended charge on April 30, 1963, against the Union alone. The
charges, as amended , in the foregoing cases were consolidated,, and on May 3, 1963, a
complaint duly issued , alleging violations of Section 8(b)(1)(B ), 8(b)(3), 8(b)(4)
(i), (ii) (A) and ( B), and Section 2(6) and (7) of the National Labor Relations Act,
as amended , 29 U.S.C. Sec. 151, et seq., herein called the Act.
The complaint in substance alleged that Tarr, acting on behalf of the Union, on
certain stated dates threatened one Boggs , a plastering contractor , with a strike and
actually caused said Boggs to be picketed , and caused an employee to cease working,
to enforce demands for the Union that Boggs sign an agreement with the Union which
would require Boggs to : ( 1) cease or refrain from handling , using, selling , transport-
ing, or otherwise dealing in the products of other employers and from doing business
with other persons; (2) post a bond as security for the performance of the agreement,
a subject about which Boggs allegedly was not required to bargain ; ( 3) be deprived
of an opportunity to bargain collectively; and (4 ) be deprived of an opportunity to
bargain through the Association as his representative . The complaint also alleged a
refusal to bargain.
The Respondents ' answer made certain admissions but denied the allegation of
paragraph 7 of the complaint that the Union at all times material represented a
majority of the employees in the alleged (and admittedly ) appropriate unit , and denied
all allegations of fact and conclusions constituting the gist of the alleged unfair labor
practices.
1 Four other cases, Nos . 21-CB-2914 , 21-CC-570, 21-CB-2023, and 21-CC-581 , were in-
cluded in a separate order of consolidation on May 3, 1963 , but were omitted from the docu-
ment of the same date headed "Order Consolidating Cases, Consolidated Complaint and
Notice of Hearing." The formal file includes a "Motion To Vacate Order Consolidating
Cases." The motion was dated May 8, 1963 , but was apparently filed on May 9, although the
date stamp is almost illegible . In this motion the Union objected to the consolidation of the
above four cases ( which involved another labor organization ) with the cases enumerated
in the complaint and moved that the order of consolidation be vacated This motion was
concurred in by the other labor organizations , and in a memorandum dated May 13, 1963,
counsel for the General Counsel agreed to a severance of the cases enumerated in the com-
plaint from the four additional cases included in the separate order of consolidation. By
an order dated the same day-May 13 , 1963-the Regional Director referred the motion to
the Associate Chief Trial Examiner in San Francisco for a ruling . By telegraphic order
dated May 14, 1963 , the said Associate Chief Trial Examiner granted the motion to vacate
the order consolidating the cases which had been issued on May 3, 1963 . This date is the
same as that on which the complaint in these consolidated cases ( containing an order of
consolidation of cases shown in the caption hereof ) was issued, and the telegraphic order
of the Associate Chief Trial Examiner might be taken to refer to the consolidation shown
in the complaint . However , I find that it was intended , and all parties understood that
it was intended , to vacate only the separate order of consolidation of May 3, 1963, and
did not affect the order of consolidation included in the complaint.
INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 169
Pursuant to notice, a hearing was held in Los Angeles, California, on July 8 and 9,
1963, before Trial Examiner James R. Hemingway. At the opening of the hearing,
Respondents moved to amend their answer to admit paragraph 7 of the complaint and
to correct errors in the answer in other respects. The motion was granted. Respond-
ents then moved to strike paragraph 9(a) of the complaint on the ground that this was
based on amended charges filed in Cases Nos. 21-CB-1969 and 21-CB-2012 more
than 6 months after the date on which the alleged action took place. Following
argument, I denied Respondents' motion to strike without otherwise considering the
merits of Respondents' argument, because paragraph 9(a) of the complaint was, in
any event, supported by a timely charge of violation of Section 8(b)(3) of the Act.
However, I now find it desirable to pass on Respondents' argument. The original
and amended charges in Case No. 21-CB-2012 were both filed within 6 months of
the time of the occurrence of the events alleged-January 3 and 4, 1963-and the
amended charge does support paragraph 9(a) of the complaint. No problem arises
with respect to this charge, therefore, under Section 10(b) of the Act. The original
charge in Case No. 21-CB-1969 alleged a violation of Section 8 (b) (1) (A) and (B),
(2) and (3) of the Act. The original charge alleged a violation of these sections of
the Act by threatening picketing on October 5, 1962, because Boggs would not enter
into "the Hod Carriers Agreement." In a separate paragraph, the charge alleged that
the action mentioned in the first paragraph was taken by the Union for a number of
purposes: to restrain or coerce Boggs in his selection of his collective-bargaining
representative; to refuse to bargain in good faith with Boggs' collective-bargaining
representative, and to force Boggs to post a bond-a nonmandatory subject of col-
lective bargaining. The amended charge added to the foregoing (among other things
not complained of by Respondents) that one of the purposes of the action of the
Union described in the first paragraph was to force or require Boggs to sign an
agreement "with an 8(e) provision which is not a mandatory subject for collective
bargaining." The Union claims that, as the original charge did not mention this, the
amended charge, filed more than 6 months after October 5, 1962, the date of the
threatened picketing, was barred from adding the last-quoted portion by Section 10(b)
of the Act. Even if there were some merit in Respondents' contention regarding
Section 10(b) of the Act, paragraph 9(a) could not be stricken in its entirety, because
the charge in Case No. 21-CB-1969 adequately notifies the Respondents that it is
based on Respondents' refusal to bargain by the attempt to force the "Hod Carriers
Agreement" on Boggs. The fact that the charge does not mention that said agreement
contained an 8(e) provision is not vital. The charge contained enough information
to apprise the Respondents of the nature of the charge against them.
The Respondents followed the foregoing motion with another motion to dismiss
the entire proceedings on the ground that the amended charges were received by
Respondents on May 2, 1963, and the complaint issued on May 6, 1963,2 and that the
shortness of time intervening deprived Respondents of an adequate opportunity to
consider settlement or other informal proceedings and deprived them of rights granted
under Section 101.7 of the Board's Rules and Regulations, Series 8, as amended. This
rule, of course, excludes the affordance of opportunity to settle where time does not
permit. However, the Trial Examiner offered Respondents time right then to attempt
a settlement. Respondents' attorney stated that he could not do so because no officer
of the Union was available to him then to discuss settlement and that he was not
authorized to use his discretion in the matter. In argument, it appeared that both
before the filing of the amended charges and between the date of the issuance of the
complaint and the opening of the hearing the General Counsel had offered Respond-
ents a chance to settle the case. Nevertheless, I proposed to afford further time in
which the parties could attempt a settlement if, after the noon recess (when Respond-
ents' counsel would have an opportunity to speak with his principals), Respondents
informed the Trial Examiner that they desired time in which to discuss settlement.
Following the noon recess, Respondents' counsel stated that he had been authorized
by his principals to discuss settlement but that he was not prepared to do so unless the
General Counsel would reduce his "minimum terms," which the General Counsel
refused to do. (From the reference to "minimum terms," I infer that Respondents
had already discussed settlement with the General Counsel.) I find the second motion
of Respondents to be groundless. Following rejection of the offer of time in which to
discuss settlement, I did not specifically rule on Respondents' motion. I now deny it.
At the close of the hearing, the General Counsel moved to amend the complaint to
conform to the proof. The motion was granted without opposition. The parties
2 Actually it was issued on May 3 but probably was received on May 6.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
waived oral argument and, upon request of the General Counsel, a date was set for
the filing of briefs. Within the time granted, the parties filed briefs, which have been
considered by me.
From my observation of the witnesses and upon the entire record in the case, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF BOGGS
E. L. Boggs Plastering Company is a proprietorship operated by E. L. Boggs, herein
called Boggs, at Montclair, California, as a plastering contractor in the building and
construction industry. In connection with his business, Boggs during a 1-year period
between February 1, 1962, and January 31, 1963, purchased and received goods,
materials, and supplies valued in excess of $50,000 from suppliers that purchased
such goods directly from points outside the State of California. Respondents contest
jurisdiction of the Board on the ground that the figures used by the Board were barely
adequate and that, if jurisdiction were determined on the basis of commerce for the
year preceding October 5, 1962, the amount would have fallen $11,000 short. There
is no reason to pick such a period in which to determine jurisdiction. The Board has
consistently used the figures for the most recent calendar or fiscal year of the employer
or for the 12-month period immediately preceding the hearing before the Board.3 The
record does not disclose what fiscal year is used by Boggs, but if a calendar year were
substituted and if the evidence consisting of purchases for the month of January 1963
were eliminated and those for January 1962 were included, the totals would still
exceed $50,000, although by a narrower margin. Since, therefore, the Board's
standards for asserting jurisdiction are met, I find that the Board has jurisdiction and
that it will effectuate the policies of the Act to assert jurisdiction.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization representing employees, among others, of Boggs
in collective bargaining. Respondent George Tarr is, and at all times material herein
has been, a business representative of the Union acting on its behalf.
III. THE UNFAIR LABOR PRACTICES
A. The bargaining unit
The complaint alleges and the answer admits that "all of Boggs' plaster tenders
working in the geographical area of Los Angeles County, Orange County, Catalina
Island, and the following offshore islands if the point of embarkation is from Los
Angeles or Orange County, namely, Richardson Rock, Santa Cruz Island, Arch Rock,
San Nicolas Island, San Clemente Island, San Miguel Island, Santa Rosa Island,
Anacapa Island (Channel Islands Monument), and Santa Barbara Island, excluding
executives, civil engineers and their helpers, superintendents, assistant superintendents,
master mechanics, timekeepers, messenger boys, office workers, or any employees of
the contractor above the rank of craft foreman, and supervisors as defined by the Act
constitute a unit appropriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act." I so find.
B. The Union's majority
The complaint alleges and the answer, as amended at the hearing, admits that the
Union has represented, and presently does represent, a majority of the employees in
the unit described above within the meaning of Section 9(a) of the Act. I so find.
C. The refusal to bargain
1. Collective-bargaining history
Progressive Plastering & Lathing Contractors' Association, herein called the Associ-
ation, was formed in March 1962 and was incorporated in July 1962. Its purpose was
to represent member employers in collective bargaining with labor organizations.
Boggs, who in 1960 had signed a 2-year contract (expiring May 31, 1962) with a
sister local of the Union (Local 862 in Pomona, California), joined the Association
3 Teamsters , Chauffeurs, Warehousemen & Helpers Union, Local 886 (Hobbs-Parsons
Co.), 128 NLRB 1031.
INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 171
in the latter part of July 1962. Golding & Jones, Inc., and its successor, Jones & Jones,
Inc., labor relations consultant, represented the Association. During the month of
June, a representative of the Union delivered to Boggs' foreman at the building site of
work being performed by Boggs copies of a contract with directions to have Boggs
sign them and return them to the Union. Apparently Boggs did not do so.
In mid-July 1962, the Association notified the Southern California District Council
of Laborers, herein called the District Council, of which the Union and a number of
sister locals were members, that it desired to negotiate a collective-bargaining agree-
ment on behalf of its members. As a result, a meeting was held at the offices of Local
507 in Long Beach, attended by Norman E. Jones of Golding & Jones, Inc., for the
Association, and by representatives of the several locals who were members of the
District Council (with the exception of one, who was in the hospital). Tarr was
present on behalf of the Union. At this meeting, the Association recognized the group
of locals as bargaining representative, who indicated that they would recognize the
Association if Jones would furnish a list of members. The locals gave Jones a copy
of their contract which had been entered into by them with two associations of
employers on June 4, 1962, which will be herein referred to as the area contract.
Jones told the representatives present that he would give them a counteroffer at a later
date.
A second meeting was held on August 14, 1962. This was attended only by Tarr,
by representatives of Local 507 and 802 (although such representatives claimed to
represent all the locals), and by Jones. Jones gave the locals' representatives a list of
members of the Association along with the Association's counterproposals. These
counterproposals were based on the area contract tendered by the locals, but they
proposed certain deletions and changes, including deletion of the subcontractor clause,
which the Association contended was unenforceable under Board rulings. It proposed
changes in the area contract dealing with contractors' liability, and omitted provisions
regarding a contractor's liability for default of subcontractors. It also proposed dele-
tion of the entire article dealing with the subject of a cash bond required of each
contractor which provision the Association alleged was illegal under a court ruling,4
and the Association, in its counterproposal, said it would refuse to bargain on such a
provision. The locals' representatives raised an objection that some members of the
Association were members of another association whose members were already under
contract with the locals They rejected the Association's counteroffer, reasserting a
demand for a contract on terms contained in its area contract, and the three union
representatives walked out of the room, refusing to negotiate with the Association.
Following this meeting, Jones wrote a letter to the District Council and its locals,
rejecting the reoffer of the aforesaid contract, and offering to continue negotiations.
No further meetings between the Union and the Association took place before
October 19, 1962, when Lionel Richman, attorney for the District Council and its
affiliated locals, wrote the following letter to Jones:
This office represents the Southern California District Council of Laborers and
its affiliated local unions . They have asked us to participate in the negotiations
between the District Council and its local unions and the members of the Pro-
gressive Plastering and Lathing Contractors Association, whom you represent.
At the outset, we wish to make it clear that the District Council is perfectly
willing to negotiate with you on behalf of members of your association with
whom we have existing agreements until such agreements expire.
The following contractors, in our opinion, are bound by the agreement between
the District Council and the Contracting Plasterers Association, specifically, Arce-
Tickey, Norris, Hudson, Case, and Saltoni. As far as we are concerned, we have
valid, existing agreements with these contractors, agreements, by the way, which
they are apparently violating. We understand they refuse to use the hiring hall
and refuse to enforce the union security clause. We will expect you to advise
your clients to abide by their agreements.
We also understand that you represent Franciscon, Ray, Boggs and Thompson.
We will assume you represent no other plastering contractors unless you give us
specific advice as to the identity of other plastering contractors whom you claim
to represent.
Now, with regard to those contractors whom you represent and with hom [sic]
we do not have an agreement. We are prepared to negotiate. We understand
4 Citing (inaccurately) Local 164, Local 1289, and Local 1010, Brotherhood of Painters,
etc. v. N.L.R B. (A. D. Cheatham Painting Co. of Jacksonville, Fla.), 293 F. 2d 133
(C.A.D.C.), cert. denied 368 U.S. 824.
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Mr. Boggs has indicated he would not sign an agreement containing a sub-
contract clause. We assume that is also your position of all of the members of
your association.
As you know, our unions have worked for many years to get the subcontract
clause in their agreements. In the construction industry employment is so irregu-
lar that it was necessary to negotiate the subcontract clause to try and preserve
the work opportunities for our members. The subcontract clause had the effect
of guaranteeing to the employees of signatory contractors a steadier pattern of
employment.
Our members were willing to give up substantial immediate benefits in order to
get the subcontract clause, since they realized that in the long run it would proba-
bly repay them by providing more employment. At the same time , the employers
were willing to give such a subcontract clause since it reduced their costs of doing
business.
We are willing to withdraw our request for a subcontract clause but we will
expect that in exchange our members will receive the immediate benefits that they
gave up to get the subcontract clause.
Under the proposed Article I of the agreement, as it has been submitted, the
employee could work knowing that he was protected insofar as his wages were
concerned and insofar as his fringe benefits were concerned if a non-signatory
contractor worked on a job as a subcontractor. That protection is now gone.
We withdraw our request for the subcontract clause and ask that in lieu of the
subcontract clause we receive what our members consider the value of the
immediate benefits which they would require to make up for the long range bene-
fits they lose by loss of the subcontract clause. These are as follows:
1. Wage rates-$4.925 per hour; 5
2. All time worked in excess of six consecutive hours or all time worked in
excess of 36 hours per week and all time worked before 7:40 A.M.and after
4:10 P.M. to be paid at the double time rate. All work performed on Saturday,
Sunday and holidays to be paid at three times the regular rate.
3. Special Shift: When remodeling or alteration work cannot be performed
during the regular day shift, Monday through Friday, because establishments
cannot suspend operations during the day when the contractor may request,
prior to starting the job, and the local union involved may permit the following
special shift schedule:
Plaster tenders so employed shall work for the double time rate; any work
performed under the special shift clause from midnight Friday to 7:40 A.M.
Monday would be paid at the triple time rate.
4. In the event of any dispute over the payment of wages to employees or pay-
ments of fringe benefits, the contractor agrees that he shall be liable for reason-
able attorneys' fees and court costs incurred by the union or the employee in
prosecuting such claims, whether through arbitration, litigation, judicial proceed-
ing, or administrative proceeding.
I think that if you will consider what we are giving up [,] suggestion for addi-
tional benefits is very reasonable. Once again, we wish to emphasize that we no
longer request a subcontract clause but request the above benefits in their place.
The negotiating committee would like to sit down with you and discuss the
proposed contract. We would appreciate it if you could telephone this office so
that we can arrange a mutually agreeable date.
As a result of this letter Jones met with Richman and a representative of the District
Council at Richman's office on October 26, 1962. Jones told Richman that he felt that
the proposal in Richman's letter was a "farce" to get around the subcontracting clause
which he had disputed not only in this case but with other unions represented by
Richman, as a subject for bargaining, and he said that his principals were not going to
pay more than their competitors. Jones and Richman discussed the question of recog-
nition. Richman said that, because five of the Association's members were already
bound by another association's contract, he could not, on behalf of his clients, bargain
with the Association, although he was willing to bargain with Jones for individual
members of the Association who were not already under contract. The General
Counsel does not take issue with this position. Regarding the bond, Richman said
that his clients would, in a contract with the Association, modify the terms of the area
6 The rate established by the Union's existing contract with other employer associations
was $4.25 an hour.
INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 173
contract but would not waive the bond as a subject of bargaining. The contract provi-
sion contained in the area contract demanded by the Union and its associates from the
Association's members (with appropriate changes of name) reads as follows:
ARTICLE X
BOND
A. A cash bond in the amount of One Thousand Dollars ($1,000) shall be
deposited by the individual Contractor with the Joint Conference Board, or a
trustee designated by the Joint Conference Board. Said bond shall be liable for
any assessment for wages, vacation payments, liquidated damages as provided for
in this Agreement, and/or contributions for medical, hospital, welfare and life
insurance plans, pension plan, and for employee benefits as provided for in this
Agreement, as directed by the Joint Conference Board after hearing and vote as
provided for in this Contract.
B. In lieu of the individual bond hereinabove provided, the Contracting Plas-
terers Association of Southern California, Inc. may furnish a cash bond in the
amount of Twenty Thousand Dollars ($20,000) and the Orange County Lathing
and Plastering Contractors Association, Inc. may furnish a cash bond in the
amount of Ten Thousand Dollars ($10,000) each bond to be liable as herein-
above provided for any and all of their members respectively in good standing.
Said Associations' bonds in the amount above set forth shall in no event be liable
for any contractor member of either of said Associations covered by said bonds in
excess of One Thousand Dollars ($1,000).
C. The Contracting Plasterers Association of Southern California, Inc. and
any other association authorized hereunder to post a bond on behalf of its mem-
bers with the Joint Conference Board shall provide a list of all of its members
who are covered by said bond to each of the seven (7) Locals signatory hereto
and to the Joint Conference Board. Any changes in membership, either by addi-
tions to or by withdrawals from, shall immediately be communicated to the
seven (7) Locals and the Joint Conference Board.
D. The bond of the individual contractor and the bonds of the Contracting
Plasterers Association of Southern California, Inc. and the Orange County
Lathing and Plastering Contractors Association, Inc. shall at all times be main-
tained in the full amount hereinabove set forth.
E. In addition to the bond herein required, the individual contractors shall file
with the Union their social security and unemployment account numbers and
certificate of compensation insurance.
F. The Joint Conference Board shall have the right to hear and determine and
levy on all bonds in all matters concerning this Agreement in the manner pro-
vided for in Article XIII hereof.
G. The Joint Conference Board shall not be required to assess any bond for
the payment of wages that are due and payable to an employee under the terms
of this Contract for any period prior to twenty-one (21) days immediately preced-
ing the submission of said claim for unpaid wages to the Joint Conference Board.
.H. The terms and conditions of the bond as provided by this Article shall be
as follows: Cash Bond. A cash bond shall be deposited with the Joint Confer-
ence Board or a trustee designated by the Joint Conference Board, said bond to
be subject to any assessment for wages, vacation payments, liquidated damages
as provided for in this Agreement, and medical, hospital, welfare and life insur-
ance plans, pension plan, and for employee benefits as provided for in this
Agreement, as directed by the Joint Conference Board after hearing and vote as
provided for in this Agreement.
1. Said bond principal once deposited shall be refunded when this Agreement
has been terminated, or upon application to the Joint Conference Board after
satisfactory proof that the Contractor is no longer contracting within the juris-
diction of any Local Union signatory hereto.
2. Upon application and satisfactory proof to the Joint Conference Board, the
principal of the bond shall be refunded at the end of the yearly quarter.
3. No bond shall be required to be refunded sooner than sixty (60) days after
application to the Joint Conference Board.
4. The Joint Conference Board or trustee designated by the Joint Conference
Board shall have the authority to deposit all or aay part of said funds so received
in a savings or commercial bank account together with funds received from other
Contractors or the Joint Conference Board, or trustee designated by the Joint
Conference Board, shall have the authority to invest not more than seventy-five
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
percent (75%) of said funds together with funds received from other con-
tractors in United States Government Bonds, certificates of deposits , insured
savings and loan associations or such investments approved for trust funds.
5. The Joint Conference Board or the trustee , as the case may be, shall collect
all income received by reason of interest or otherwise derived from the investment
or deposit of said funds.
6. The income shall be disposed of as follows:
a.
b.
c.
Payment of all expenses for administration of said fund.
Payment of taxes of all kinds.
Any balance of income shall be paid to the Pension Trust.
7. The depositing contractor of Association shall bear the tax assessments on
capital gains on his proportion of said fund , if any, and shall also pay any other
taxes levied on his proportionate share of said fund, if any.
8. A valuation of the principal fund shall be made quarterly to determine gain
or loss affecting the contractor 's deposit.
9. The trustee , if acting at the designation of the Joint Conference Board,
shall disburse the principal or any portion thereof at the direction of the Joint
Conference Board, and in order to pay any contractor 's obligations as hereunder
stated, said disbursements by the Joint Conference Board shall be made in the
amounts and to the payee as directed.
10. The refund of the contractor 's deposit upon direction of the Joint Con-
ference Board shall be less any authorized principal disbursements , after which
the balance would be revalued according to the profit or loss indicated by valua-
tion of the principal fund.
11. All income , after payment of expenses , fees and taxes shall be distributed
to the Pension Trust annually and at the termination of this Agreement. Said
income be distributed to the Pension Trust even though by revaluation of the
fund there has been determined to be a capital loss. That is to say, the income
under no circumstances shall be used to reduce any capital losses or for the
purpose of paying any portion of disbursements for wages , welfare, or any levy
directed by the Joint Conference Board.
Jones contended that the bond was not a mandatory subject of bargaining . Richman
took the position that it was , inasmuch as it secured payment of employee wages or
other benefits , although he apparently conceded that it would not be proper to demand
a bond for full performance of all contract obligations . No differences were resolved
at this meeting.
Two subsequent dates for meetings were set. On the first occasion, Jones, who had
been out of town and whose plane had arrived an hour or so late, telephoned Richman
from the airport . Richman, who had, in Jones' absence , telephoned the latter 's office
to change the place of meeting from his own office to the District Council 's office,
where there was going to be a meeting of that council , replied that it was then too late,
since some of the representatives had already left Subsequently , a date was set for a
meeting in late November , but Jones , because of illness in his family, had his secretary
notify Richman that he would be unable to attend. Following the latter date, Rich-
man filed a charge against the Association of refusal to bargain.
This charge was dismissed by the Regional Director on January 4, 1963. Mean-
while, however, on December 28, 1962, Jones and Richman met again . Richman
said that he would bargain regarding individual contracts but that if Jones wanted an
association contract he would discuss it. He said , however, that he could not consider
an association contract which differed to any great extent from the area contract
because of a provision in the latter , designated a "favored nations clause ," which pro-
vided that the union signatories would not sign or work under any agreement with
employers of plaster tenders in the area covered by that agreement giving more favor-
able terms or working rules than those established therein. This meant that the union
had to insist on'the subcontractor clause and the provisions for a bond . Jones objected
to the fact that the Joint Conference Board (as trustees) would draw interest on a
cash bond posted by individual employers , whereas, under an association contract, it
was possible to post a blanket surety bond and he • indicated that his principals might
be amenable to a blanket bond. Jones proposed an $8,000 blanket bond but Richman
asked $10,000 (which would conform with the blanket surety bond permitted to be
posted by one of the two employer associations with whom the Union and other
locals had a contract ). The relative costs of surety bonds were discussed and were
checked by Richman ,' but no final agreement thereon appears to have been reached.
Jones and Richman also discussed the subcontractor clause to which the Association
had expressed opposition . Richman said that he could not make a contract without
the subcontractor clause because of the so-called favored nations clause in the other
INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 175
contract. He asked if this clause meant much (meaning, I infer, whether it would
often affect) to members of the Association. Jones stated that the members of the
Association were usually the subcontractors themselves. Richman said that he would
sign a contract without a subcontractor clause if the employees were paid the higher
wage rate as stated in his letter of October 19, 1962. Jones again said that his people
would not pay higher wages than their competitors. Richman told Jones that Tarr
was going to put a picket on a job that Boggs was about to commence. The testimony
is in dispute as to Jones' reply. Whatever his reply was, it has no bearing on the reso-
lution of the issues here presented. The meeting concluded with the apparent under-
standing that Jones would check with the members of the Association to see if they
would agree to the terms suggested by Richman. This was the last communication
between Jones and Richman about bargaining so far as the evidence discloses.
2. Union's actions to coerce Boggs
About October 5, 1962, before Jones' first meeting with Richman, Tarr appeared at
an apartment construction site in El Monte, California, where Boggs was the plaster-
ing contractor, and asked Boggs when he was going to sign "the agreement," referring
to the area contract, copies of which had been delivered to Boggs in June 1962. Boggs
asked, "What agreement?" Tarr said, "You know what agreement." Boggs replied
that Jones was representing him and was supposed to sign for him. Tarr retorted:
"B- s- . . . . This could go on for a couple of years. Neither one of us is
getting together. Are you going to sign this agreement or am I going to shut the job
down?" Boggs said he thought "we was getting together," that "Jones and we are
negotiating right now" and that he thought "we could sign through an association."
Boggs asked time to telephone Jones and did so, but Jones was not in his office. Boggs
left word for Jones to meet them at the jobsite. Tarr waited about an hour longer
and then left for lunch, but not before he had spoken with Boggs' employees, Wallace
Rollman, James Warner, and Luther Burke. He told Rollman, who was working
foreman and a member of a sister local (Local 806, Pomona), and Warner separately
that he (Tarr) was closing the job down because Boggs did not have an agreement,
and he told Warner that Warner should go home and that he (Tarr) would return
after lunch to see if Warner had left. In the presence of Rollman and Burke, Tarr
said that if they did not leave the job they would be cited before the executive board.
Burke, commented that he did not know why the Union would send him out on
Wednesday and make him leave the job on Friday, but he left the job at once. Warner
and Rollman continued to work after lunch. Tarr returned and told Warner that he
was "getting in deeper" by continuing to work.
On January 3, 1963, early in the morning, while Boggs was working on a plastering
job in El Monte (not the same one as in October 1962), pickets were posted by the
Union on this job with signs reading: "Elmer Boggs Unfair. No signed agreement.
Local 1082." Tarr, who was present, told Warner, Boggs' employee, that he was
setting up a picket line and that Warner was not to work, and that if he worked he
would be cited before the executive board of the District Council. Warner did, how-
ever, continue to works
On the next morning, January 4, Tarr appeared at the same construction site and
asked Boggs if he were going to sign the agreement. Boggs said that Jones was repre-
senting him in negotiations and that he would like to know what was happening.
Boggs, having telephoned Jones, was expecting Jones to come to the site of the picket-
ing, and told Tarr that he would like to wait until Jones came. While they were
waiting and discussing the contract, the general contractor, for whom Boggs was a
subcontractor, arrived and from a distance observed the proceedings. Boggs said that
the agreement which Tarr was attempting to get him to sign called for a cash bond and
he asked if Tarr would take an assignment of a Government bond. Tarr said he had
never heard of anything like that. Boggs suggested an indemnity bond. Tarr said
that he did not want an indemnity bond because it took too long to get the money.
Finally Tarr said that if Boggs would give a certified check for $1,000, he would hold
it (uncashed) until Jones and Richman got together and arranged a blanket bond.
While they were waiting for Jones, Tarr told Boggs that he had spoken with' the general
contractor the night before and warned him that Boggs' job would be picketed unless
Boggs signed the agreement and that unless the general contractor got Boggs to sign
the agreement he was going to picket his job, too. One of Boggs' suppliers arrived
with a load of sand while they were there and Tarr sought to stop the driver from
e Although Warner was later cited before the executive board and was fined, I do not
rely on this fact in making any conclusions herein.
775-692--65-vol. 150--13
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
making delivery. When Jones had not arrived by 10:15 a.m., Boggs finally told Tarr
that he would sign the agreement with the understanding that he could give a certified
check for the bond and that the check would be held uncashed until a blanket bond was
agreed on between Jones and Richman. After Boggs had signed the contract, Tarr
took him to the general contractor and told the latter that Boggs had promised to
deliver a certified check by the following Tuesday (January 8) and that if he failed to
do so, he (Tarr) was going to bring action against both of them. It does not appear
what action he had in mind. Immediately following this, the picket line was removed.
As previously mentioned, a charge was filed against Respondents on Monday, Janu-
ary 7, 1963, based on the foregoing occurrences, including picketing to force or
require Boggs to post a bond that was not a mandatory subject for collective bargain-
ing. Boggs did not deliver the certified check on January 8. I deduce that Boggs did
not intend to do so until coerced into doing so.
On Thursday, March 21, 1963, theLUnion again picketed one of Boggs' jobs in
El Monte, and the picketing continued on Friday and the following Monday with a
sign saying, "Violation of contract with Local 1082, Hod Carriers, El Monte." On
Monday, Mach 25, 1963, Boggs talked with Tarr, meanwhile having given another
union agent a certified check for the bond to be delivered to Tarr. Tarr told Boggs
that he had five violations against Boggs, including failure to give the bond. Boggs
told Tarr that he had given the check for the bond to the other agent. Another alleged
violation was not having employee Warner cleared through the union hall. Regarding
this, Boggs said that the Union would not accept Warner's dues and he did not expect
that the Union would clear him. Tarr asked how Boggs would know whether or not
the Union would give Warner a clearance. Boggs either had or thereafter remedied
the other'alleged violations. (It does not appear whether or not the Union thereafter
insisted on Warner's coming in to get a clearance.) Following this conversation, the
picket line was removed. - -
3. Conclusions regarding refusal to bargain
a. Insisting on nonmandatory subjects of bargaining
The Association, including Boggs, objected to both the subcontractor clause and
the bond clause which the Union demanded as a condition to signing any contract with
the Association. If these were not mandatory subjects of bargaining, the Union was
refusing to bargain by insisting upon their inclusion as a condition to reaching an
agreement .7
The clause commonly designated a subcontractor clause is understood to mean a
clause which requires any signatory to the contract to insist that any subcontractor of
his shall either sign the same agreement or agree that, with respect to his employees,
the subcontractor will abide by all the provisions in the contract of which the subcon-
tractor clause is a part, or both. The clause insisted upon by the Union in this case
was no exception, but it also contained a provision that the "contractor shall not
permit subcontracting by subcontractors without his knowledge and permission in
writing." Under the construction industry exemption to Section 8(e) of the Act, a
subcontractor clause may now be entered into and performed voluntarily, but a labor
organization may not lawfully use economic action to compel an employer to agree to
such a clause.8 Since an employer may not be lawfully compelled to agree to such a
provision, it follows that such a provision is not a mandatory subject of bargaining and
that the Union, (1) by refusing to enter into an agreement with the Association with-
out such a provision, and (2) by later picketing in order to compel Boggs to sign an
agreement containing such clause, refused to bargain within the meaning of Section
8(b)(3) of the Act.9 Respondents take the position that the subcontractor clause
7 N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342.
8 Construction, Production & Maintenance Laborers' Union Local 383, AFL-CIO, et al.
(Colson and Stevens Construction Co., Inc.), 137 NLRB 1650; Building and Construction
Trades Council, etc., et al . (Gordon Fields ), 139 NLRB 236; Los Angeles Building & Con-
8truction Trades Council , etc. (Cecil Mays), 140 NLRB 1249; Building and Construction
Trades Council of Orange County, AFL-CIO (Sullivan Electric Company), 140 NLRB
946; Orange Belt District Council of Painters #48, etc. ( Calhoun Drywall Company),
139 NLRB 3'83. -
e See N.L.R.B. v. International Brotherhood of Electrical Workers, AFL-CIO, at al., 266
F. 2d 349 (C.A. 5).
INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 177
was not a real issue between the parties. This contention is apparently based on the
fact that Jones, at the meeting on December 28, 1962, conceded that members of the
Association were usually subcontractors and did not themselves do much subcontract-
ing. There is no evidence, however, that Jones agreed to include such provision in an
agreement, and, even though the clause would have little value to the Union when
dealing with an Association whose members did little or no subcontracting, the Union
had, by virtue of the "favored nations" clause in its contract with other employer asso-
ciations, foreclosed itself from entering into any agreement not containing a subcon-
tractor clause. On this state of the evidence, I find that the Association did not make
a voluntary agreement to include the subcontractor clause in the agreement being
negotiated. Further, Boggs' contract, signed separately under coercion while being
picketed, can scarcely be called a voluntary agreement. Even if Boggs did not argue
with' Tarr about the subcontractor clause, he did argue that the agreement should be
handled by Jones, an argument that Respondents were bound to accede to. The fact
that Boggs might have agreed to be bound by a subcontractor clause if Jones had
approved it does not alter the case and make Boggs' acceptance of the subcontractor
clause a voluntary one.
It has long been settled that an employer who conditions agreement in collective
bargaining upon the giving of a performance bond by the employees' collective-
bargaining agent violates Section 8(a) (5) of the Act.'° Similarly, it has been held
that a union which insists upon a performance bond from an employer is refusing to
bargain.11 Although they do not argue the point in their brief, Respondents had, in
negotiations, taken the position that a bond to secure payment of wages and other
benefits to employees is distinguishable from a performance bond of the kind held to
be a nonmandatory subject-of bargaining in the Cheatham case cited above.12 The
law is now well settled regarding performance bonds as a nonmandatory subject of
bargaining, but, so far as I know, the Board has never passed on a cash bond like the
one demanded by the Union in this case. In the cases which have held-provisions for
performance bonds to be nonmandatory subjects of bargaining, the ground usually
stated is that it does not- relate to wages, hours, and other terms and conditions of
employment, which are mandatory subjects of bargaining. Although it has not been
mentioned, I should conceive a surety bond to be nonmandatory also because it would
be an attempt to add a stranger to the bargaining process, just as where an employer
refuses to enter into an agreement with a certified bargaining representative unless
its parent organization also should become a party to the agreement.13 However, it
has been held that any bond or indemnity clause to cover damages for breach of con-
tract is a nonmandatory subject of bargaining. Hence, with or without surety, it is a
nonmandatory subject of bargaining.14 In negotiations with Jones, Richman sought
to differentiate the clause in the proposed contract from performance bonds generally
by asserting that the Union's proposed cash bond was related to wages and other
employee benefits. Perhaps Richman was looking at the cash bond as a kind of sub-
stitute or alternative primary performance rather than as a remedial device to substi-
tute for court action. It has been suggested that such a provision to assure payment
-of employee benefits might, if there were a history of delinquency, be argued to be a
mandatory subject of bargaining.15 Of course, trust funds to ensure payment of
health and accident claims and of pensions are recognized as-mandatory subjects of
bargaining. In the case at hand, the Union might argue that its "cash bond" to insure
wages and other benefits to employees merely went into a trust fund and therefore
should equally be a mandatory subject of bargaining.
Whether or not this argument would meet with approval, standing by itself, it lacks
merit here because of other provisions in the proffered contract. The contract was
10 Jasper Blackburn Products Corporation , 21 NLRB 1240 , 1254; Taormina Company,
94 NLRB 884
u International Brotherhood of Teamsters, etc. (Conway's Express), 87 NLRB 972,
978-979: Local 16$, Brotherhood of Painters . etc. (Cheatham Painting Company), 126
NLRB 997, enfd 293 F. 2d 133 (C.A D C ), cert denied 368 U S. 824
12 The bond in that case was not stated to be a surety bond, but it was to have been
forfeited and paid to the union in the event of any substantial breach of contract.
13 See Cosco Products Company, 123 NLRB 766; North Carolina Furniture, Inc., 121
NLRB 41.
14 See Cosco Products Company, supra , and cases there cited
15 51 LRRDM 99
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expected by Respondents to be taken as a package by the Association and each of its
members, including Boggs; and some of the other provisions in that contract bring the
cash bond more clearly into the realm of a nonmandatory subject of bargaining. The
language of the contract is vague (perhaps intentionally so) as to whose employees
would be entitled to benefit from the cash bond. So far as the language of the contract
goes, the cash bond of an employer signatory to the contract might be assessable for
wages of a subcontractor's employees in the event that the contractor had not required
the subcontractor to become bound by the contract or if the subcontractor had not
himself posted his cash bond. It was Richman's opinion that the cash bond of the
signing employer would be so assessable. The Joint Conference Board under the
terms of the contract demanded by the Union is empowered to impose "lawful penal-
ties" against a contractor "for violation of this Agreement." If a signing employer
should, contrary to the subcontractor clause, subcontract with a nonsigning subcon-
tractor and if the latter should not pay the wages required by the contract, the Joint
Conference Board might decide that the signing contractor should, as a penalty, pay
those wages. Nowhere in the bond clause is the liability of a contractor specifically
stated to be limited to wages of his own employees. The language of the contract is
general: "Said bond shall be liable for any assessment for wages [not limited to spe-
cific employees] ... as provided in this agreement, as directed by the Joint Conference
Board after hearing and vote as provided in this Contract." Also, one provision in
the contract is for liquidated damages for failure to perform a required act, and the
bond is liable for such liquidated damages. The Board consistently viewed con-
tract proposals not limited to wages, hours, or other terms or conditions of perform-
ance as nonmandatory subjects of bargaining.16 So a contract which includes an
obligation to pay wages of another employer's employees or to pay damages for non-
performance of an employer's obligatiton, it would follow, would be a nonmandatory
subject of bargaining.17
I conclude and find, therefore, that by conditioning the making of a contract depend
on the Association's or Boggs' agreeing to the subcontractor clause and to the provi-
sion for a cash bond, the Union has refused to bargain within the meaning of Section
8(b)(3) of the Act.
b. Refusal to bargain by Respondents' take-it-or-leave-it attitude
The General Counsel argues that the Union, as early as the second bargaining
session .(August 14, 1962), indicated an intent not to bargain when one of the spokes-
men for the Union told Jones that the unions would sign no agreement but the
"standard area agreement." In view of the "favored nations" clause in that agree-
ment, I conclude that the Union's spokesman was not just putting on an initial appear-
ance of hard bargaining and that the Union and its contracting locals had no choice
but to require the same terms and conditions from the Association. Under the Act,
this favored-nations clause is no defense to a charge of refusal to bargain. Although
phrased with more tact than had been exhibited by the Union's representatives on
August 14, 1962, Richman's statement in his negotiations with Jones that he could
not deviate to any material degree from the terms of the existing contract defined
his ability to discuss terms. He too was fettered by the same favored-nations clause.
This left no room for bargaining. Although he might have made minor changes in
wording, he could not give different terms. The offer in his letter to give up the sub-
contractor clause if the Association members agreed to pay exorbitant wage demands
16 See F McKenzie Davison, et al, d/b/a Arlington Asphalt Company, 136 NLRB 742,
enfd 318 F. 2d 550 (C A. 4) ; N L R B V. Wooster Division of Borg-Warner Corporation,
356 U S. 342; Detroit Resilient Floor Decorators Local Union No. 2265, etc (Mill Floor
Covering, Inc.), 136 NLRB 769; Metropolitan District Council of Philadelphia etc.
(McCloskey and Company), 137 NLRB 1583.
17 Local 164, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-
CIO (A. D. Cheatham Painting Company), 126 NLRB 997, enfd. 293 F. 2d 133 (C.A.D C.),
cert. denied 368 U.S. 824; Cosco Products Company, 123 NLRB 766; International Brother-
hood of Teamsters, etc. (Conway's Empress), 87 NLRB 972; Scripto Manufacturing Com-
pany, 36 NLRB 411; Jasper Blackburn Products Corporation, 21 NLRB 1240; Taormina
Company, 94 NLRB 884; also cases cited, supra, footnote 16
INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 179
can be looked upon only as a tactic to give an appearance of bargaining knowing that
the offer could not be accepted. It does not convince me as being a good-faith offer.
The existing contract was, therefore, offered to the Association as a contract of
adherence like the contract offered by an insurance company to an applicant for insur-
ance which the individual applicant cannot vary by bargaining. Tarr indicated as
much in attempting to force Boggs' signing. The evidence is convincing that the
Union never had an intent to negotiate a contract different from the area contract. It
was committed from the outset to bringing Boggs and other members of the Associa-
tion into compliance with that contract.
By entering into negotiations with the Association with a fixed determination not
to bargain and with a padlock on its choice of terms and conditions, the Union
refused to bargain in good faith with the Association, thereby violating Section
8(b)(3) of the Act.
c. Restraint and coercion in selection of bargaining representative;
use of divisive tactics
Before any impasse had arisen and after a flat statement by the Union's representa-
tives of refusal to bargain, the Union began to take coercive steps against Boggs. On
October 5, 1962, Tarr appeared at the site of one of Boggs' jobs and sought to coerce
Boggs into forgoing bargaining negotiations through the Association and to sign the
so-called area contract, implementing his conduct by telling Boggs' employees to leave
the job, and succeeding in getting one to leave.
On January 3, 1963, Tarr again sought to compel Boggs to sign the area contract
and forgo representation by the Association by putting a picket line on Boggs' job.
This was at a time when there was no impasse in bargaining and when, in fact, there
appeared to be a possibility of an agreement. Although Boggs did not withdraw
from the Association, he did, in order to get rid of the picket line, sign the area con-
tract. Tarr at that time expressed his opinion of collective bargaining as futile because
it would not make the Association accept the area contract. My conclusion that the
Union, by Tarr's conduct, violated Section 8 (b) (1) (B) and 8 (b) (3) of the Act is
not altered by the fact that Tan waited for a period of about an hour for Jones to
appear at the jobsite. Tarr had no legal right to approach Boggs separately about con-
tract terms so long as no impasse had occurred.18 By such improper conduct of Tarr,
the Union was disregarding its duty to bargain with Boggs' designated bargaining
agent. Boggs at that time was the only member of the Association who was picketed.
Plainly, the Union was attempting to divide and conquer. The Union cannot reason-
ably argue that an impasse had been reached. Richman, himself, was of the impres-
sion that the agreement on the amount of a blanket bond was the only real issue
between the parties, and there is no showing that this was an insurmountable obstacle.
There is no evidence that the Association was standing firm. Indeed, as nearly as I
can determine from the evidence, Jones did not flatly reject the Union's latest offer but
was going to explore the subject with the Association's committee. But even if Jones
had not indicated as much, I should find no impasse here. As stated by the Board
in The Westchester County Executive Committee etc., 142 NLRB 126, "An impasse
should not be mechanically inferred simply because the parties have failed to reach
complete agreement after some specified number of negotiating sessions or whenever
one party announces that his position is henceforth fixed and no further concessions
can be expected." And it must also be borne in mind that even if an impasse had been
reached here, it would be mainly because the Union had made it impossible for itself
to vary the terms of the area contract by virtue of the favored-nations clause and
because of its insistence on nonmandatory subjects of bargaining.
On all the evidence, I conclude and find that, by picketing Boggs in order to coerce
him into abandoning negotiations through his chosen representative and to coerce him
into entering into a separate contract, the Union has violated Section 8(b)(3) and
8(b)(1)(B) of the Act.19
18 The Westchester County Executive Committee, etc. (Builders Institute of West-
chester and Putnam Counties, Inc.), 142 NLRB 126.
11 The Westchester County Executive Committee, supra; General Teamsters Local Union
No. 324, etc. (Cascade Employers Association, Inc.), 127 NLRB 488.
180 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
d. Violations of Section 8(b)(4)(i), (ii)(A) and (B)
In view of the numerous decisions holding that coercion to obtain a contract author-
ized by Section 8(e) is a violation of the Act,20 the Respondents have no reasonable
defense to the allegations of the complaint under Section 8 (b) (4) (ii) (A) of the Act.
There is no evidence that the Association had accepted the subcontractor clause
voluntarily Even if Jones had intimated that the subcontractor clause would seldom
affect the members of the Association and that, for this reason , it was not a major
stumbling block, the Respondents did not even wait to see whether or not the Associa-
tion would assent to it. I find no evidence that Jones even suggested that the objection
to this clause might be waived if the parties came to agreement in the Union's demand
for a cash bond, nor do I find any evidence that Boggs would have assented to such
a clause in the absence of picketing . By Tarr's conduct in placing pickets on Boggs'
job on January 3 and 4, 1963, thereby forcing Boggs to sign a contract containing the
aforesaid subcontractor clause, the Respondents have engaged in unfair labor prac-
tices in violation of Section 8(b) (4) (ii ) (A) of the Act, and by the same conduct
the Respondents have engaged in unfair labor practices in violation of Section
8(b) (4) (ii) (B) of the Act.21 By Tarr's conduct on behalf of the Union, designed
to induce employees to withhold their services from Boggs , as- described above,22
with an object of forcing Boggs to sign a subcontractor clause described above, the
Union has engaged in unfair labor practices within the meaning of Section 8(b) (4)
(i) (A) and (B).23 i
Although Tarr was named as a party respondent to the case , the complaint describes
the aforesaid conduct of Tarr on behalf of the Union only as that of an agent and
does not, in its conclusionary paragraphs (paragraphs 15, 17,- 18, 19 ), allege that
Tarr, individually, committed the unfair labor practices charged to the Union. For
this reason , I make no finding that Tarr, himself, violated 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 Boggs, 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 thereof.
20 The Essex County and Vicinity District Council o f Carpenters and Millwrights, etc
(Associated Contractors of Essex _ County, Inc.), 141 NLRB 858; Hoisting, and Portable
Engineers Local Union 101, etc . ( Sherwood Construction Company, Inc.), 140 NLRB 1175;
Building and Construction Trades Council of Orange County , AFL-CIO ( Sullivan Electric
Company ), 140 NLRB 946; Local Union 825, International Union of Operating Engineers,
AFL-CIO ( Nichols Electric Company ), 140 NLRB 458; Building and Construction Trades
Council of San Bernardino and Riverside Counties , et at (Gordon Fields ), 139 NLRB 236.
21 Orange Belt District Council of Painters #48, etc., AFL-CIO (Calhoun Drywall Com-
pany ), 139 NLRB 383, and cases cited supra, footnote 20.
22I include in this finding Tarr's directions to Boggs' employees on October 5, 1962, to
stop working , his direction to an employee of one of Boggs ' suppliers to desist from de-
livering sand to Boggs , and his establishment of a picket line on January 3, 1963, as well
as statements to Boggs' employees in January 1963 designed to interrupt their services.
Although Tarr was successful in getting only Burke to quit working, in October, success is
not an element of "inducement" as that word is used in the Act The Essex County and
Vicinity District Council, etc, supra The General Counsel argues that Tarr' s inducement
of Boggs' foreman , Rollman, is to be included because Rollman is an "individual" within
the meaning of Section 8(b) (4),(i ) of the Act, citing Carolina Lumber Company, 130
NLRB 1438 Although I agree that Rollman is to be included , I find it unnecessary to
decide the nature of Rollman's supervisory status inasmuch as the circuit' court has dis-
agreed with the distinctions made by the Board in the case cited by the General Counsel
regarding types of supervisors and includes all kinds of supervisors. Servette, Inc. v.
N.L.R.B., 310 F. 2d 659 (CA. 9).
3Los Angeles Building & Construction Trades Council, etc. (Interstate Employers,
Inc ), 140 NLRB 1249; Orange Belt District Council of Painters #48, AFL-CIO, etc
(Calhoun Drywall Company), supra, Construction , Production S Maintenance Laborers
Union Local 383, AFL-CIO, at at (Colson and Stevens Construction Co., Inc ), 137
NLRB 1650, Building and Construction Trades Council of Orange County, AFL-CIO,
supra, Hoisting and Portable Engineers Local Union 101, etc, supra; The Essex County
and Vicinity District Council of Carpenters and Millwr ights, etc , supra.
INTERNATIONAL HOD CARRIERS, ETC:, LOCAL 1082 181
V.' THE REMEDY
I have found herein that the Union has engaged in unfair labor practices within
the meaning of Section 8(b) (1)(B ), (3), and (4)(i), (ii)(A) and (B). I shall
therefore recommend an order that the Union cease and desist from the conduct
herein found to be violative of the Act, and I shall recommend the usual appropriate
affirmative action designed to effectuate the policies of the Act.
Because the contract which Boggs signed was procured under duress, I shall recom-
mend that the Union cease and desist from giving effect to such contract. Although
the evidence indicates that the principal objections that Boggs had to this contract
involved the subjects which were not mandatory subjects of bargaining, the evidence
is not clear that any voluntary agreement was finally reached on the remaining subjects.
Therefore, I shall not exclude the remainder of the contract from this recommendation.
The General Counsel urges, as part of the remedy, that the cash bond be returned
to Boggs, and the Charging Party requests a remedy that, in addition to a return of
the bond, "the Respondent" pay interest on the sum for the time it was retained. The
Respondents, on the other hand, protest that an order for return of the bond is in-
appropriate because of the fact that the agreement signed by Boggs was a joint one
with a number of unions (members of same District Council) and that the bond was
for the benefit of all the parties, and that therefore no order refunding the cash bond
could run against the Union alone nor against all the locals without joining the other
locals as parties respondent. The evidence, however, discloses that Boggs gave a
certified check to.Tarr upon Tarr's promise not to cash the check until Jones and
Richman had agreed upon a blanket bond for the Association There is no evidence
that the Association, Boggs' bargaining agent, and the Union or any of the other
unions of the District Council ever reached an agreement , on a blanket bond. Pre-
sumably, therefore, either Tarr or an officer of the Union still holds Boggs' certified
check intact. This being the case, I find no difficulty in framing a remedy requiring
that the check be returned to Boggs. The theory upon which interest is given in
Board orders, such as orders for backpay, is that the employer has had the use of
moneys which rightfully belonged to employees. In the case at hand, since the
certified check which Boggs gave to Tarr was to be held uncashed, it is obvious that
the Union did not have the use of the funds for the purpose of investing it and
getting interest thereon. Under the circumstances of this case, therefore, I believe
it would not be appropriate to require the Union to pay interest on the cash bond
which still remained (by agreement) in the form of a certified check, and I shall
not so recommend. Even if the Union wrongfully cashed the check and turned the
proceeds into the joint fund, the responsibility of refunding the $1,000 to Boggs will
be the Union's alone, for Tarr was acting (unlawfully) only for the Union in procur-
ing the so-called cash bond from Boggs. It is unnecessary, for the purposes of this
case, to look to the source from which the Union procures the $1,000 to make
restitution to Boggs.
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. Boggs is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Boggs is a person, engaged in commerce or in an industry affecting commerce,
within the meaning of Section 8(b)(4)(i) and (ii) of the Act.
3. All of Boggs' plaster tenders working in the geographical area of Los Angeles
County, Orange County, Catalina Island, and the following offshore islands if the
point of embarkation is from Los Angeles or Orange counties, namely: Richardson
Rock, Santa Cruz Island, Arch Rock, San Nicholas Island, San Clemente Island, San
Miguel Island, Santa Rosa Island, Anacapa Island (Channel Islands Monument),
and Santa Barbara Island, excluding executives, civil engineers and their helpers,
superintendents, assistant superintendents, master mechanics, timekeepers, messenger
boys, office workers, or any employees of the contractor above the rank of craft
foreman. and supervisors as defined in the Act, constitute a unit appropriate for
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
4. At all times material herein, Respondent Union has represented, and presently
does represent, a majority of the employees in the unit described above and has been,
and presently is, the exclusive representative of all employees in said unit for purposes
of collective bargaining in respect to rates of pay, wages, hours of employment, or
other "editions of employment by virtue of Section 9(a) of the Act.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. George Tarr, at all times material herein, has been and still is a business repre-
sentative of the Union and is an agent of the Union, within the meaning of Section
2 (13) of the Act, acting on its behalf.
6. By forcing Boggs to enter into an individual contract, not negotiated for him
by his designated representative, the Association, the Union has engaged in and is
engaging in unfair labor practices affecting commerce within the meaning of Section
8(b)(1)(B) of the Act.
7. By the conduct stated in paragraph 6, above, and by refusing to enter into or
to negotiate any contract which did not contain nonmandatory subjects of bargain-
ing, to wit, a subcontractor clause and a bond as security for the performance of the
agreement, the Union has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(b) (3) of the Act.
8. By insisting that Boggs accept a package contract on a take-it-or-leave-it basis,
the Union has engaged in unfair labor practices within the meaning of Section 8 (b) (3 )
of the Act.
9. By picketing Boggs and by inducing or encouraging individuals employed by
Boggs to refuse, in the course of their employment, to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, materials, or com-
modities, or to perform any services, and by threatening, coercing, and restraining
Boggs, where, in each event, an object thereof was forcing Boggs to enter into an
agreement which is prohibited by Section 8(e) and forcing Boggs to cease doing
business with any other subcontractor who had not signed the Union's area agreement,
the Union has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(b) (4) (i), (ii) (A) and (B) of the Act.
[Recommended Order omitted from publication.]
Davis Cabinet Company and Middle Tennessee District Council
of Carpenters , United Brotherhood of Carpenters and Joiners
of America, AFL-CIO. Cases Nos. 26-CA-1790 and 26-RC-92142.
December 15, 1964
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On September 30, 1964, Trial Examiner William W. Kapell issued
his Decision in the above-entitled consolidated proceeding, finding
that Respondent had engaged in certain unfair labor practices as
alleged in Case No. 26-CA-1790, and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Decision. The Trial Examiner also found that
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of these alle-
gations. He further found that the objections to the election in
Case No. 26-RC-2142 should be sustained, and recommended that the
election be set aside. Thereafter, the Respondent filed exceptions,
with a supporting brief, to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with these cases to a three-member panel [Chairman
McCulloch and Members Leedom and Jenkins].
150 NLRB No. 22.