Pipefitters, Local Union No. 280

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 398 (N.L.R.B. 1970)

398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada , AFL-CIO, Local
Union No. 280 ; and Southern California Pipe
Trades District Council No. 16 of the United As-
sociation (Aero Plumbing Co .) and Al Aukerman.
Case 21-CB-3416
June 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On April 2, 1970, Trial Examiner George H.
O'Brien issued his Decision in the above-entitled
proceeding, finding that Respondents had engaged
in and are engaging in certain unfair labor practices
and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent and the General Coun-
sel filed exceptions to the Decision, and the
Respondent filed a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, as modified herein.
1. The Trial Examiner found that "[t]he illegal
strike by Respondent Council, and the picketing in
support of this illegal strike by Respondent Local
coerced Aero into the acceptance of terms and
conditions of employment which were permissive
but nonmandatory subjects of bargaining" in viola-
tion of Section 8(b)(1)(B) and (3) of the Act. We
agree.
However, he found further that "[t]here is no
evidence that Respondent Council or Respondent
Local directed, authorized or ratified the picketing
of Aero by Plumbers Local No. 78 on July 11,
1969." We disagree. The facts, as found by the
Trial Examiner, show that on July 3 or 4, 1969,
Respondent Local's business manager, Brannon,
was informed by Aero's secretary-treasurer and
part owner, Aukerman, that Aero would be work-
ing for Mayer Construction Company on a con-
struction job in Rolling Hills the following week.
On July 6, 1969, Brannon told a representative of
Plumbers Local 78 (which had territorial jurisdic-
tion over Rolling Hills) that Aero would be working
in Rolling Hills, that Aero had not signed a con-
tract, and that they should "be on the lookout,
maybe they could get [Aukerman] to sign the con-
tract." On July 11, 1969, Plumbers Local No. 78
picketed Aero at the Rolling Hills jobsite. On July
12, an official of Mayer told Aukerman that if he
did not "get the pickets off the job and quit
stopping production," Mayer would have to cancel
Aero's contract. On July 14, Aero signed an agree-
ment with Respondents containing permissive but
nonmandatory subjects of bargaining.
We believe that, by informing Plumbers Local
No. 78 that Aero would be in its jurisdiction, that
Aero had not signed a contract, and that Plumbers
Local No. 78 should be on the "lookout" and try to
get Aero "to sign the contract," Respondent Local
became responsible for the picketing conducted by
Plumbers Local No. 78 for the purpose of trying to
persuade Aero to sign the contract. Accordingly,
we find that the illegal strike called by Respondent
Council and the picketing in support of this illegal
strike by Respondent Local on July 1, 1969,
together with the picketing by Plumbers Local No.
78 on July 11, 1969 (for which Respondent Local
is responsible), coerced Aero into the acceptance
of terms and conditions of employment which were
permissive but nonmandatory subjects of bargain-
ing, in violation of Section 8(b)(1)(B) and (3) of
the Act.
2. The Trial Examiner found further that
Respondents violated Section 8(b)(3) of the Act by
engaging in, and inducing the employees of Aero to
engage in, a strike against Aero for the purposes of
modifying or terminating a contract without first
complying with the requirements of Section 8(d) of
the Act. Although the Trial Examiner recom-
mended that Respondent be ordered to cease and
desist from such illegal acts, he failed to include
any such provisions in the notice to be posted by
Respondents. The General Counsel excepted to
such failure, and we find merit in the General
Counsel's exception. J. V. McCoy and Partners d/bla
McCoy Coal Company, 165 NLRB 592. Ac-
cordingly, we shall add such provisions to the
notice to be posted by Respondents.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondents,
184 NLRB No. 44
PIPEFITTERS , LOCAL UNION NO. 280 399
Southern California Pipe Trades District Council
No. 16 of the United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada,
AFL-CIO, and its affiliated Local Union No. 280,
El Monte, California, their officers, agents, and
representatives, shall take the action set forth in the
Trial Examiner's Recommended Order, as herein
modified.
Add the following two paragraphs as the last
paragraphs of the notice attached to the Trial Ex-
aminer's Decision as Appendix:
WE WILL NOT refuse to bargain collectively
with Aero Plumbing Co. or its successors con-
cerning the termination or modification of any
collective-bargaining contract between our
Union and the Company by failing, before
striking and picketing, to (I) serve 60 days'
written notice of our intention to modify or
terminate such collective-bargaining contract
pursuant to Section 8(d)(1) of the Act; (2)
offer to meet and confer with the Company for
the purpose of negotiating a new or modified
contract pursuant to Section 8(d)(2) of the
Act; (3) give notice of the existence of any
dispute between our Union and the Company
to the Federal and State Mediation Services
pursuant to Section 8(d)(3) of the Act; and
(4) continue in full force and effect without
resorting to strike all the terms and conditions
of any existing contract pursuant to Section
8(d)(4) of the Act; provided, however, that no
such notices under Section 8(d)(3) shall be
required if an agreement is reached within 30
days following service of a notice of proposed
termination and modification.
WE WILL NOT engage in or induce employees
of Aero Plumbing Co. or its successors to en-
gage in a strike against said Company for the
purpose of modifying or terminating a collec-
tive-bargaining contract without first having
complied with the requirements of Section
8(d) of the Act.
TRIAL EXAMINER'S DECISION
including the Decision and Order of the National
Labor Relations Board in Southern California Pipe
Trades District Council No. 16 of the United Associa-
tion (Aero Plumbing Co.), Case 21-CB-2806, 167
NLRB 1004, of which I take official notice, and
after due consideration of the posthearing briefs, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Aero Plumbing Co., herein called Aero, is a
plumbing contractor in the building and construc-
tion industry with its shop and principal place of
business located in El Monte, California. M. A.
Mayer Construction Company is a general contrac-
tor in the building and construction industry with
its principal place of business in Downey, Califor-
nia. During the 12-month period commencing July
1, 1968, Mayer Construction Company purchased
and received goods, materials, and supplies which
came to it directly from outside the State of
California valued at about $100,000. During the
same period, Aero performed work and furnished
supplies to Mayer valued in excess of $125,000.
Aero is an employer within the meaning of Section
2(2) of the Act engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS
Southern California Pipe Trades District Council
No. 16 of the United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada,
AFL-CIO, herein called Respondent Council or
Council, represents for the purposes of collective
bargaining with employers the members of af-
filiated local unions in the following California
counties: Los Angeles, Orange, Riverside, San
Bernardino, Imperial, San Diego, Ventura, Santa
Barbara, and San Luis Obispo. United Association
of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and
Canada, AFL-CIO, Local Union No. 280, herein
called Respondent Local or Local 280, is a subor-
dinate affiliate of Respondent Council with terri-
torial jurisdiction which includes Aero's El Monte
shop. Respondent Council and Respondent Local
are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
STATEMENT OF THE CASE
GEORGE H. O'BRIEN, Trial Examiner: On January
29, 1970, a hearing was held in the above-entitled
matter in Los Angeles, California, at which all
parties appeared and participated. The complaint
issued October 24, 1969, is based on a charge filed
July 7, 1969, and alleges violations of Section
8(b)( 1) (B) and (3) of the National Labor Rela-
tions Act. Upon the entire record in this proceeding
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. By striking Aero on July 1, 1969, and picket-
ing Aero on July 3, 1969, without serving or filing
any of the notices required by Section 8(d) of the
Act, did Respondents refuse to bargain with Aero
in violation of Section 8(b)(3) of the Act?
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Did the said strike and picketing restrain and
coerce Aero in the selection of its representative
for the purposes of collective bargaining or the ad-
justment of grievances and thereby violate Section
8(b)(1)(B) of the Act?
3. Were Respondents or either of them responsi-
ble for the picketing of Aero by Local 78 of the
United Association on July 11, 1969?
4. Did Respondents' entire course of conduct
constitute a refusal to bargain in good faith and
thereby violate Section 8(b)(3) of the Act?
B. Background
It is the practice of Council to negotiate and
enter into a collective-bargaining agreement with
Plumbing- Heating and Piping Employers Council of
Southern California, Inc., a multiemployer associa-
tion . Thereafter Council prepares a similar, though
not identical contract, called the Independent
Agreement which it submits for signature to plumb-
ing contractors who are not members of the Em-
ployers Council.
Al Aukerman started in business as a plumbing
contractor in 1964 and in the same year, as secreta-
ry-treasurer and part owner of Aero , signed
Respondents' standard Independent Agreement.
The first contract between Aero and Respondents
expired July 1, 1966. On some date before July 12,
1966, the standard Independent Agreement effec-
tive from July 1, 1966, through June 30, 1969, was
submitted to Aukerman, who was then a member of
Interstate Employers Association. On July 12,
1966, Aukerman and Frank Calhoun, who was then
president of Interstate Employers Association, met
with Harold Moore, a business agent of Local 280.
Calhoun, speaking for Aukerman, stated that there
were four provisions in the Independent Agreement
which Aero could not accept. These were (1)
provisions making Plumbing-Heating and Piping
Employers Council of Southern California the
agent of Aero for adjustment of grievances, (2)
bond provisions, (3) contributions to an industry
promotion fund, and (4) application of the Agree-
ment to owners and supervisors. Thereafter four
meetings were held by representatives of Aero and
representatives of Council. Negotiations were
broken off by Everett Schell, executive secretary of
Council, on October 4, 1966.
On the afternoon of October 4, 1966, three of
Aero's employees were working on a jobsite within
the territorial jursidiction of Plumbers Local 761
when they were informed by a business agent of
that local that Aero had not signed an agreement,
that there would be a picket line the next day, and
that they should not return to work for Aero the
following day. On October 10, 1966, Interstate Em-
ployers Association filed a charge (Case
21-CB-2806) against Council. On October 11,
1966, Aero signed the standard Independent
Agreement. -
On October 24, 1967, the Board handed down a
Decision and Order in Case 21-CB-2806, reported
in 167 NLRB 1004. The Board held that by insist-
ing as a condition of signing a contract that Aero
agree to four provisions which are permissive but
nonmandatory subjects of bargaining, Council vio-
lated Section 8(b)(3) of the Act; and that by strik-
ing, Council coerced Aero in the selection of its
representative for collective bargaining and adjust-
ment of grievances and thereby violated Section
8(b)(1)(B) of the Act. The Board ordered, inter
alia , that Council:
1. Cease and desist from:
(a) Refusing to bargain with Aero Plumbing
Co. by requiring as a condition of agreement
that Aero: (1) appoint the Plumbing-Heating
and Piping Employers Council of Southern
California as Aero's agent for the purpose of
collective bargaining or the adjustment of
grievances ; (2) post a bond; (3) pay sums of
money to an industry promotion fund; or (4)
apply the terms of the contract to owners or
supervisors.
(b) Coercing or restraining Aero Plumbing
Co. in the selection of its representative for
purposes of collective bargaining or the adjust-
ment of grievances.
(c) Applying or enforcing those portions of
the existing contract with Aero Plumbing Co.,
requiring: [items (1), (2), (3), and (4), supra ]
or the acceptance of any modification, exten-
sion , or renewal of that contract or the resolu-
tion of any grievances thereunder except as
agreement in such matters may be reached
with representatives chosen by Aero Plumbing
Co.
2. Take the following affirmative action:
(b) Reimburse Aero Plumbing Co. for ex-
penses incurred to date in connection with the
posting of a bond or the payment of sums of
money to the industry promotion fund.
Thereafter and through June 30, 1969, Aero and
Council abided by the terms of the 1966 standard
Independent Agreement except for the clauses
made inoperative by the Board's Order of October
24, 1967. Aukerman had ceased to be a member of
Interstate Employers Association December 3 1,
1966.
C. Respondent's Actions in 1969
Section 8(d) of the Act requires:
... That where there is in effect a collective-
bargaining contract ... the duty to bargain col-
lectively shall also mean that no party to such
contract shall terminate or modify such con-
tract, unless the party desiring such termina-
tion or modification-
(1) serves a written notice upon the other
party to the contract ....
PIPEFITTERS, LOCAL UNION NO. 280 401
(2) offers to meet and confer with the other
party....
(3) notifies the Federal Mediation and Con-
ciliation Service ... of the existence of a
dispute, and simultaneously therewith notifies
any State ... agency established to mediate
and conciliate disputes ....
(4) continues in full force and effect,
without resorting to strike or lockout, all the
terms and conditions of the existing contract
for a period of sixty days after such notice is
given or until the expiration date of such con-
tract, whichever occurs later.
On April 30, 1969, Council notified the Federal
Mediation and Conciliation Service and the Califor-
nia State Conciliation Service that it had served
written notice on Plumbing-Heating and Piping Em-
ployers Council of Southern California of proposed
termination or modification of the existing con-
tract, the expiration date of which was June 30,
1969. Council did not notify Aero of any proposed
termination or modification of its separate agree-
ment with Aero, nor did Council file with the State
or the Federal service any notice concerning
proposed termination or modification of its
separate agreement with Aero.
Under date of June 25, 1969, Henry G. Brannon,
business manager of Respondent Local 280, mailed
to Aero a form letter reciting:
As you know, the Plumbing and Heating
agreement to which you are signed, expires
June 30, 1969.
A new Agreement is now being negotiated.
At this writing it appears that settlement will
not be reached by the above date.
There will be a short form Agreement or a
thirty day interim Agreement available in
Local 280's office on Friday, June 27, 1969
after 10:00 a.m.
Needless to say, no work will be allowed on
any job in Local 280's territory after July 1,
1969 without your shop being signatory to the
Agreement.
Upon receipt of Brannon's communication, Au-
kerman conferred with Calhoun, and replied on
June 27 to Brannon as follows:
Since the agreement to which I am signatory
has been negotiated between this firm and the
Pipe Trades District Council No. 16 on behalf
of Local Union 280 as well as on behalf of
other local unions within the geographical ter-
ritory of the District Council, I shall forward a
copy of your letter together with a copy of this
letter to District Council No. 16 and to my col-
lective bargaining agent, Mr. Frank Calhoun.
In the meantime, I suggest that we extend
our existing agreement for at least a period
of thirty days and that you send us a copy of
the proposed short form Agreement and the
interim Agreement for our consideration.
In the interest of promoting peaceful and
harmonious relations in this field of collective
bargaining, I am sure it will be to our mutual
advantage to comply with our existing Agree-
ment and with the mandatory collective
bargaining procedures as set forth in Section
8(d) of the Labor Management Relations Act.
These conditions, of course, prohibit strikes
or lockouts until other 'preliminary steps are
taken.
On the same date Calhoun wrote to Everett
Schell, executive secretary of Respondent Council,
offering to meet for the purpose of negotiating
changes in the Aero agreement "by upgrading the
rates of pay, wages, hours of work and other condi-
tions of employment so that we will continue to
meet the standards prevailing in the industry," and
suggesting "that we mutually agree to extend our
existing Agreement for a period of time sufficient
to enable us to consummate a new or amended
Agreement."
On Monday evening, June 30, Brannon
telephoned Aukerman and told him that none of
Aero's employees would be permitted to work the
following day unless Aukerman signed the interim
Agreement. Aukerman replied that he would have
to do the work himself.
On July 1, Attorney Eugene Miller acknowledged
receipt of Aukerman's letter of June 27, enclosed a
copy of the interim Agreement effective to August
1, and advised him that "no members of the Union
will be permitted to work for any employers on or
after July 1, 1969 who have not executed an Agree-
ment with the Union." The interim Agreement sub-
mitted by Miller contained the clause:
The Employer agrees to be bound by all terms
and conditions of the 1969-1972 standard In-
dependent Agreement when printed and made
available to the Employer.
On July 1, Aukerman, his partner, and his son
worked on a job in Temple City in the territorial ju-
risdiction of Respondent Local. About 10 a.m. a
picket appeared with a sign bearing the legend:
AERO PLUMBING IS WORKING
WITHOUT A CONTRACT.
LOCAL 280.
Carpenters, electricians, and sheetmetal workers
left the job when the picket appeared. Aukerman,
his partner, and his son worked on the Temple City
job for the remainder of the week.
On either July 3 or 4, Brannon spoke to Auker-
man at the jobsite and told him that a new interim
Agreement would be available on Monday, July 8.
Aukerman asked that a copy be sent to him, and
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also told Brannon that he would be working for
Mayer on a job in Rolling Hills the following week.
On Saturday, July 6, Brannon told a representative
of Plumbers Local 78 (which had territorial ju-
risdiction over Rolling Hills) that Aero would be
working "down there," that Aero had not signed a
contract and that they should "be on the lookout,
maybe they could get [Aukerman] to sign the con-
tract. "
Aukerman filed the charge giving rise to this
proceeding on Monday, July 7, and he and his son
worked on the Rolling Hills job from the 7th
through the 10th without incident. Meanwhile on
July 7, Calhoun wrote to Miller, asking whether
Miller had authority to negotiate, declining to sign
the interim Agreement, reminding Miller that the
strike against Aero was illegal, and again requesting
that they set a date to begin negotiations for a new
contract. Miller replied on July 9:
... the union is willing to meet with you at a
mutually convenient time and place for the
purpose of negotiating a new labor agreement.
Due to the fact that the Unions are presently
engaged in negotiations with the Employers
Council, tentative dates cannot be given to
you.
As soon as the unions are available, I will be
in contact with you.
On Friday, July 11, Plumbers Local No. 78
picketed Aero.at the Rolling Hills jobsite. On Satur-
day, July 12, an official of Mayer Construction
Company told Aukerman: "if we did not get the
pickets off the job and quit stopping his production,
that he would have to cancel our contract." On
Monday, July 14, at Aero's shop, to which Brannon
had been invited by Aukerman, the two signed an
agreement providing:
This agreement is entered into by and
between Southern California Pipe Trades Dis-
trict Council No. 16 on behalf of all employees
represented by the Unions, and the under-
signed Employer, effective as of July 7, 1969.
This Agreement will supercede any Agreement
now covering such work.
A complete mimeographed Agreement is
available at the Local Union office which con-
tains the items and language that will be in the
Agreement when printed, covering the period
of July 7, 1969 through June 30, 1972.
The Employer acknowledges that he is
familiar with the terms of the mimeographed
Agreement and that he will sign and be bound
by the printed Agreement when available for
signature.
Aukerman asked Brannon to send a copy of the
completed mimeographed Agreement to Calhoun.
On July 25, Miller mailed to Calhoun a copy of the
complete mimeographed Agreement with a cover-
ing letter stating:
The reason that this agreement is not being dis-
tributed is because, as you know, the strike
with the Employer's Council is still in progress
and the enclosed agreement may be further
amended to include more favorable terms
when the strike is concluded. After you have
had an opportunity to review the enclosed
please let me know when it would be con-
venient for you to discuss this matter further
with the undersigned.
A few days later Calhoun telephoned Miller and
stated that there were certain provisions that he
was not satisfied with and that he was going to
propose changes. Somewhat later Calhoun again
called Miller. Calhoun testified:
Q. (By Mr. Miller) Could you tell us the
purpose of the second call?
A. To inform you again that I hadn't an-
swered previously and that I had intended to,
but I think we were so busy I didn't-that I
hadn't done it yet.
0. What were you going to respond to, Mr.
Calhoun? What were you refering to? What
were you going to answer?
A. I was going to bring to your attention the
previous contract that Mr. Aukerman had with
the Plumbers Union, and state that we had no
objections to adopting the agreement providing
the same clauses in the previous-correction-
the same clauses that were deleted in the previ-
ous agreement, by the Board's ruling, were
deleted from this agreement.
0. Did you ever tell me that over the phone,
that that was what you were willing-that that
was going to be your position?
A. No, I don't think I ever did.
Q. . . . isn't it a fact that you did tell me
that you were going to respond to that letter?
A. I told you I intended to, yes.
Q. Did you ever?
A. No, I didn't
Q. Do you recall me telling you in any one
of the two telephone conversations that as
soon as you had responded to my letter, that I
was willing to sit down and meet with you and
talk about the contract?
A. I don't believe that was discussed. I don't
recall that.
Q. You don't recall that?
A. No sir, I don't recall that..
Miller testified:
... in one of these conversations I asked
[Calhoun] whether he was going to take the
same position that he had taken in regard to
the 1966 collective bargaining agreement, in
which he had advised the Union that his client
had no objection to the mandatory subjects of
bargaining and he had objected to the permis-
sive subjects of bargaining ; and I asked him
whether that was going to be his position again.
PIPEFITTERS , LOCAL UNION NO. 280 403
And at that time-and, again , I am not sure
whether it was in the first conversation or the
second conversation-he told me that he did
not know, but that his position would be set
forth in writing . And I told him I would wait to
hear from him, and that when I did, we would
sit down and talk about the contract.
After that second phone conversation, I
received no further communication from Mr.
Calhoun, nor did I receive any further phone
calls from Mr. Calhoun.
The standard Independent Agreement mailed to
Calhoun by Miller contains all four of the nonman-
datory provisions described and rendered nugatory
as to Aero in and by the Board's 1967 decision.
D. Concluding Findings
Respondent Council was responsible for the
strike of Aero's employees and is jointly responsible
with Respondent Local for the picketing of Aero on
July 3, 1969. There is no evidence that Respondent
Council or Respondent Local directed, authorized,
or ratified the picketing of Aero by Plumbers Local
No. 78 on July 11, 1969. Respondent Council has
not yet agreed to meet and negotiate with Aero
pursuant to the request by Calhoun of June 27.
Miller has not yet answered Calhoun's question of
July 7 as to whether Miller was an authorized agent
of Respondent Council for collective bargaining.
Respondent Council 's adamant attitude on the four
matters of nonmandatory bargaining in the Inde-
pendent Agreement is evidenced by the fact that the
interim Agreement tendered by Miller to Aero was
a "blank check," and the Agreement signed under
compulsion by Aukerman on July 14 incorporated
these clauses by reference, while Respondent
Council was simultaneously conducting an illegal
strike against Aero and failing to meet and bargain
"because the Unions are presently engaged in
negotiations with the Employers Council."
Section 8(d) imposes identical concomitant
obligations and duties on Unions and on Em-
ployers. Textile Workers Union of America, CIO,
(Personal Products Corporation), 108 NLRB 743,
744. The contract with Aero which expired June
20, 1969, could not be changed thereafter by uni-
lateral action without bargaining . N.L.R.B. v. Katz,
369 U.S. 736, 747. The strike by Respondent coun-
cil against Aero was "illegal" and "unlawful"
because of the failure of Respondent Council to
give the notices required by Section 8(d)(3) of the
Act. Publicity Engravers, Incorporated, 161 NLRB
221, 222; United Furniture Workers of America,
AFL-CIO v. N.L.R.B., 336 F.2d 738, 739
(C.A.D.C.), cert. denied 379 U.S. 838, affg. Fort
Smith Chair Company, 143 NLRB 514. The illegal
strike by Respondent Council and the picketing in
support of this illegal strike by Respondent Local
coerced Aero into the acceptance of terms and
conditions of employment which were permissive
but nonmandatory subjects of bargaining and
amounted to unilateral action by the Union. This
conclusion is not foreclosed by the decision of the
Supreme Court in N.L.R.B. v. Insurance Agents' In-
ternational Union, 361 U.S. 447, 496, fn. 28.
The appropriate remedy for any unlawful uni-
lateral action, where feasible, is to reinstate the
status quo ante. and retain it until Respondent ful-
fills its bargaining obligation by either bargaining
out a new agreement covering the subject or bar-
gaining to an impase. Harold W. Hinson d/b/a Hen
House Market No. 3, 175 NLRB 596.
In the instant case, Aero, by Calhoun's letter of
June 27, agreed in effect to be bound by the provi-
sions of the standard Independent Agreement when
settled, which related to "rates of pay, hours of
work, and other conditions of employment." The
remainder of the provisions which Respondents
sought by unlawful tactics to impose are nonman-
datory subjects of bargaining, and Aero cannot be
compelled to bargain about their retention in its
present agreement with Respondent Council.
Operative Plasterers' and Cement Masons' Interna-
tional Association , Local No. 2 (Arnold M. Hansen),
149 NLRB 1264, 1266.
1 shall therefore recommend that the Board again
direct Respondent Council to take the same action
required by the Board's Order of October 24, 1967
(167 NLRB 1004). This is not imposing a contract
term on the parties or interfering with the bargain-
ing process, compare Porter Co. v. N.L.R.B., 397
U.S. 99, but is merely restoring to the extent feasi-
ble the status quo ante, albeit a status previously
dictated by the Board.
For the foregoing reasons and on the record as a
whole I find that by engaging in a strike without
complying with any of the provisions of Section
8(d) of the Act and by insisting upon the standard
Independent Agreement containing nonmandatory
subjects of bargaining, Respondents refused to bar-
gain in violation of Section 8(b)(3) of the Act. I
further find that by striking and picketing Aero and
by insisting upon the provision in the standard Inde-
pendent Agreement that Aero appoint Plumbing-
Heating and Piping Employers Council of Southern
California as its representative for the purposes of
collective bargaining and the adjustment of
grievances, Respondents violated Section
8(b)(1)(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section
III, above, occurring in connection with the opera-
tions of Aero Plumbing Co., and Mayer Construc-
tion Company described in section 1, above, have a
close, intimate, and substantial relationship to
trade, traffic, and commerce among the several
States and tend to lead and have led to labor
disputes burdening and obstructing commerce and
the free flow thereof.
404 DECISIONS OF NATIONAL
V. THE REMEDY
Having found that Respondents have engaged in
certain unfair labor practices, I will recommend
that they cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Aero Plumbing Co. and Mayer Construction
Company are employers within the meaning of Sec-
tion 2(2) of the Act engaged in commerce and in
operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Respondents are labor organizations within
the meaning of Section 2(5) of the Act.
3. All employees of Aero performing plumbing,
heating, and piping work, exclusive of all other em-
ployees and all supervisors as defined in the Act
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. Respondent Council at all times material
herein has been and is the exclusive collective-bar-
gaining representative within the meaning of Sec-
tion 9(a) of the Act of all the employees in the ap-
propriate unit described in paragraph 3, above.
5. Respondent Local is a constituent or affiliated
local union of Respondent Council, having territori-
al jurisdiction over Aero's employees, and is an
agent of Respondent Council within the meaning of
Section 2(13) and 8(b) of the Act
6. By engaging in a strike and by inducing by
means of picketing the employees of Aero to en-
gage in a strike for the purpose of modifying or ter-
minating the collective-bargaining agreement with
that company without first serving the notices upon
Aero Plumbing Co., the Federal Conciliation and
Mediation Service, and the California State Con-
ciliation Service required by Section 8(d)(1) and
(3) of the Act, and without meeting and conferring
with Aero for the purpose of negotiating a new con-
tract or proposed contract changes, as required by
Section 8(d)(2) of the Act, Respondent Council
and Respondent Local have failed and refused to
bargain collectively with Aero, and thereby have
engaged in and are engaging in unfair labor prac-
tices within the meaning of Section 8(b)(3) of the
Act.
7. By insisting as a condition of signing a con-
tract that Aero agree to accept Plumbing-Heating
and Piping Employers Council of Southern Califor-
nia, Inc., as its agent for the purposes of collective
bargaining and the adjustment of grievances, to
post a bond, to pay sums of money to industry
promotion fund, and to apply the terms of the con-
tract to owners or supervisors, Respondents have
refused to bargain with Aero and thus have en-
LABOR RELATIONS ROARD
gaged in unfair labor practices within the meaning
of Section 8(b) (3) of the Act.
8. By engaging in a strike and by inducing by
means of picketing the employees of Aero to en-
gage in a strike and by otherwise restraining and
coercing Aero to force it to accept Plumbing-Heat-
ing and Piping Employers Council of Southern
California-:'to represent it for purposes of collective
bargaining and the adjustment of grievances,
Respondents have engaged in unfair labor practices
within the meaning of Section 8(b)(1)(B) of the
Act.
9. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in this
case I hereby recommend that Respondents,
Southern California Pipe Trades District Council
No. 16 of the United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada,
AFL-CIO , and its affiliated Local Union No. 280
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Aero
Plumbing Co. by failing to serve written notice
upon the Company of proposed modification or ter-
mination of an existing collective-bargaining con-
tract, as required by Section 8(d)(1) of the Act, or
by failing to meet and confer with Aero for the pur-
pose of negotiating a new contract or a contract
containing proposed modifications, as required by
Section 8(d)(2) of the Act, or by failing to notify
the Federal Mediation and Conciliation Service and
the California State Conciliation Service of the ex-
istence of a dispute as required by Section 8(d)(3)
of the Act.
(b) Engaging in a strike, or by means of picket-
ing or other means inducing employees of Aero to
engage in a strike for the purpose of modifying or
terminating a collective-bargaining contract
without first having complied with the requirements
of Section 8(d) of the Act.
(c) Refusing to bargain with Aero Plumbing Co.
by requiring as a condition of agreement that Aero
(1) appoint the Plumbing-Heating and Piping Em-
ployers Council of Southern California as Aero's
agent for the purpose of collective bargaining or
the adjustment of grievances; (2) post a bond; (3)
pay sums of money to an industry promotion fund;
or (4) apply the terms of the contract to owners or
supervisors.
(d) Coercing or restraining Aero Plumbing Co
in the selection of its representative for the pur-
poses of collective bargaining or the adjustment of
grievances.
PIPEFITTERS, LOCAL UNION NO. 280
(e) Applying or enforcing those portions of the
existing contract with Aero Plumbing Co. requiring
(1) the appointment of the Plumbing-Heating and
Piping Employers Council of Southern California as
Aero's agent for the purpose of collective bargain-
ing or adjustment of grievances; (2) posting of a
bond by Aero; (3) payment by Aero of sums of
money to an industry promotion fund; (4) applica-
tion of the terms of the contract to owners or su-
pervisors of Aero, or the acceptance of any modifi-
cation, extension, or renewal of that contract or the
resolution of any grievances thereunder except as
agreement in such matters may be reached by
representatives chosen by Aero Plumbing Co.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Notify Aero Plumbing Co. in writing that
they will not insist upon the Plumbing-Heating and
Piping Employers Council of Southern California
acting as Aero Plumbing Co.'s agent for the pur-
poses of collective bargaining or the adjustment of
grievances; the posting of a bond by Aero Plumbing
Co.; the payment of sums of money by Aero
Plumbing Co. to the industry promotion fund; or
the application of the terms of the contract to
owners or supervisors of Aero Plumbers Co.
(b) Reimburse Aero Plumbing Co. for expenses
incurred to date in connection with the posting of a
bond or the payment of sums of money to the in-
dustry promotion fund
(c) Post at their principal offices and usual
meeting places, including offices and meeting
places of all constituent locals of Respondent
Council, copies of the attached notice marked
"Appendix."' Copies of said notice, to be furnished
by the Regional Director for Region 21 of the Na-
tional Labor Relations Board, shall, after being
signed by duly authorized representatives of
Respondents, be posted by them immediately upon
receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by Respondents to insure that such notices are not
altered, defaced, or covered by other material.
(d) Mail copies of said notice to said Regional
Director in Los Angeles, California, after such co-
pies have been signed, as provided above, for post-
ing by Aero Plumbing Co if willing.
(e) Notify said Regional Director, in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply
herewith.'
' In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
405
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 21, in writing , within 10 days from the date of this Order, what steps
Respondents have taken to comply herewith "
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with Aero
Plumbing Co. by insisting as a condition of
agreement that it accept a contract requiring:
(1) the appointment of the Plumbing-
Heating and Piping Employers Council of
Southern California as Aero Plumbing
Co.'s agent for purposes of collective bar-
gaining or the adjustment of grievances;
(2) the posting of a bond by Aero Plumb-
ing Co.;
(3) the payment of sums of money by
Aero Plumbing Co. to the industry promo-
tion fund;
(4) application of the terms of the con-
tract to owners or supervisors of Aero
Plumbing Co.
WE WILL NOT apply or enforce such provi-
sions in the contract we now have with that
employer.
WE WILL NOT coerce or restrain Aero
Plumbing Co. in its selection of a representa-
tive for purposes of collective bargaining or the
adjustment of grievances.
WE WILL NOT apply or enforce such provi-
sions as now exist in our contract with that em-
ployer.
WE WILL notify Aero Plumbing Co. that we
will reimburse it for expenses incurred to date
by reason of the provisions in the contract
relating to the posting of a bond or the pay-
ment of sums of money to the industry promo-
tion fund.
SOUTHERN CALIFORNIA
PIPE TRADES DISTRICT
COUNCIL No. 16 OF THE
UNITED ASSOCIATION
(Labor Organization)
Dated By
(Representative ) (Title)
UNITED ASSOCIATION OF
JOURNEYMEN AND
427-835 0 - 74 - 27
406
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPRENTICES OF THE
PLUMBING AND PIPE
FITTING INDUSTRY OF THE
UNITED STATES AND
CANADA, AFL-CIO,
LOCAL No. 280
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5229.