Plasterers Local 337 (Marina Concrete)

National Labor Relations Board - Board Decisions

Oct 29, 1993

312 N.L.R.B. 1103 (N.L.R.B. 1993)

1103
312 NLRB No. 174
PLASTERERS LOCAL 337 (MARINA CONCRETE)
1 Interest payments are to be made as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
2 For the reasons stated by the judge, we adopt the judge’s finding
that the complaint is not time barred. Accordingly, the Respondent
District Council’s filing, maintaining, and seeking to enforce its
March 25, 1987 grievance against the Employer, and the Respondent
Local’s maintaining and seeking to enforce its September 1986
grievance against the Employer, which had effectively repudiated its
bargaining relationship with the Respondents, in an effort to enforce
the union security provisions of an expired collective-bargaining
agreement, violated Sec. 8(b)(1)(A) and (2) of the Act. 3 All dates hereafter are in 1986 unless otherwise indicated.
District Council of Plasterers and Cement Masons
of Northern California, and Cement Masons
Local 337, both affiliated with Operative Plas-
terers and Cement Masons International Asso-
ciation and Marina Concrete Company. Case
32–CB–2719
October 29, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 29, 1989, Administrative Law Judge
Frederick C. Herzog issued the attached decision. The
Respondents filed exceptions and a supporting brief,
the Charging Party filed an answering brief to the Re-
spondents’ exceptions, and the General Counsel filed a
letter in support of the judge’s decision.
The Board has considered the decision and the
record in light of the exceptions, briefs, and letter and
has decided to affirm the judge’s rulings, findings, and
conclusions, to modify the remedy,1 and to adopt the
recommended Order, as modified.
The judge found the issues in this case to be: (1)
whether the Employer successfully repudiated its col-
lective-bargaining relationship with the Respondents so
as to effectively withdraw recognition of the Respond-
ents following the expiration of the collective-bargain-
ing agreement; (2) whether the Respondents violated
Section 8(b)(1)(A) and (2) of the Act by filing griev-
ances against the Employer in an attempt to enforce
the union-security provisions of either the old or the
new agreements between the Respondents and the As-
sociated General Contractors (AGC); and (3) whether
the complaint is barred by Section 10(b) of the Act.2
The judge determined, and we agree, that the Em-
ployer successfully repudiated its bargaining relation-
ship with the Respondents and that the Respondents
violated the Act by seeking to enforce certain provi-
sions of the expired collective-bargaining agreement.
Factual Findings
The pertinent background facts are as follows. Ma-
rina Concrete Company (Employer), is a subcontractor
providing concrete to construction industry employers
in the Salinas, California area. The Employer had a
collective-bargaining relationship with Cement Masons
Local 337 (Respondent Local) from 1971 until 1986.
Near the end of 1972, the Employer became bound by
the AGC collective-bargaining agreement with the Re-
spondent Local, negotiated for the Respondent Local
by the Plasterers and Cement Masons of Northern
California (Respondent District Council). In January
1986, the Employer became a member of the AGC.
In September 1983, the Employer signed the collec-
tive-bargaining agreement between the Respondent
Local and the AGC, effective from April 1984,
through June 15, 1986. The agreement provided that it
continued from year to year unless written cancellation
was given 60 days prior to June 15, 1986.
In July 1985, the Respondent District Council and
the AGC entered into ‘‘talks.’’ The parties executed a
memorandum characterizing the talks as off-the-record,
exploratory discussions preceding the formal opening
of collective-bargaining negotiations, and as non-
binding, in the absence of approval and ratification by
the Union and the AGC. The memorandum provided
that the discussions would not constitute collective-bar-
gaining negotiations as set forth in section 19 of the
1983–1986 AGC-Cement Masons Agreement.
The discussions concluded in the last week of Janu-
ary 1986,3 at which time the parties had reached a ten-
tative agreement. The AGC notified its members that
those who did not wish to be bound by the agreement
had until March 15 to withdraw bargaining authoriza-
tion from the AGC. According to credited and
uncontroverted testimony of the AGC representative,
Thomas Holsman, March 15 had been agreed on be-
tween representatives of the AGC and the Respondent
District Council. The AGC also advised its members
that they had to continue to abide by the 1983–1986
agreement until its expiration, and that thereafter they
had to bargain with the Union individually.
The Employer advised the AGC by telegram dated
March 13, which was received March 14, that it would
‘‘not be a party in any way, shape or form to any
and/or all agreements’’ entered into between the AGC
and the Respondent District Council. On March 19, the
AGC advised the District Council that the Employer
would no longer be represented by it. On April 1, the
Employer confirmed to the AGC that it was withdraw-
ing bargaining authorization from it, and that it would
not be bound by any new agreement. The Employer
also confirmed to the District Council that it had re-
voked the AGC’s authority ‘‘to represent this company
in any and all collective-bargaining or labor relations
matters with your organization’’ and that it would not
be bound by any new agreement, by any extension, re-
newal, or amendment to the old agreement, or by ‘‘any
other labor agreements with your organization.’’ In its
letter the Employer advised the District Council that it
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The dissent notes that both arbitration panels found that the Em-
ployer was bound by the collective-bargaining agreement. In view of
the fact that the Employer, consistent with its previously stated posi-
tion that it was not a party to any agreement, failed to appear before
either panel, this ‘‘fact’’ is neither unusual nor persuasive.
5 As discussed below, the Employer had merely an 8(f) collective-
bargaining relationship with the Respondents. We accept arguendo
that all of the Retail Associates rules apply here to the extent that
parties to that relationship did not agree otherwise.
would be willing to meet as an individual employer.
On the same day, the Employer sent a nearly identical
letter to the Respondent Local.
On April 18, the AGC provided the District Council
with a list of AGC members who had authorized it to
represent them in collective bargaining for the new
agreement. The Employer’s name was not on the list.
AGC Representative Holsman spoke to District Coun-
cil Representative Hernandez, chairman of the District
Council’s negotiating committee, who told Holsman
that the District Council had no problem with the list.
On April 10, the Respondent District Council wrote
to the Employer and, acknowledging the Employer’s
April 1 letter, asked the Employer to provide it with
certain information. By letter of April 25, the Em-
ployer provided certain of the information requested by
the Respondent District Council, including the identity
of the spokesperson for the Employer ‘‘during these
negotiations.’’ The letter also included some employer
wage and benefit proposals. The Employer closed its
letter by stating, ‘‘[I]f you do not wish to comply with
these terms and demands as they are stated here, then
on June 15, 1986, this company will no longer be
bound in anyway with your Union.’’ On May 22, the
Respondent District Council’s attorneys wrote the Em-
ployer that, ‘‘In response to your letter of April 25,
1986, if you do not submit the requested information
we will file appropriate legal action and sue . . . .’’
No negotiations occurred and on June 15 the collec-
tive-bargaining agreement expired.
On September 23, Respondent Local wrote to the
Employer requesting that it
comply with the provisions of Section 3(A)(2) of
the Cement Masons 46 Northern California Coun-
ties Master Agreement by discharging the individ-
ual named below for failure to comply with the
provisions of Section 3(A)(1) of said Agreement
in that said individual has failed to remain and/or
maintain membership in good standing with the
Union.
The agreement referred to was the new 1986–1989
agreement and section 3(A)(1) was the union-security
clause of that agreement. The individual ‘‘named’’ was
Ron Bell and he was not discharged. On September
26, the Respondent Local’s business agent filed a
grievance against the Employer because it failed to dis-
charge Bell. The grievance sought ‘‘compliance with
the agreement in the future, backpay . . . , and reim-
bursement to the Union of lost dues and initiation
fees.’’ A copy of the grievance was sent to the Em-
ployer on October 2. On December 23, the Respondent
Local took the grievance before the Contract Adminis-
tration Board of Adjustment for resolution. The Board
of Adjustment is a bipartite body to which contractual
disputes are submitted. The Employer did not appear
at the Board of Adjustment hearing. On December 12,
the Employer wrote to Hernandez of the District Coun-
cil, and made what the judge described as ‘‘sarcastic’’
reference to its letter of April 25, stating,
I’m so glad you have accepted my contract offer
of April 25, 1986 . . . . It’s good to be back on
the union team again . . . . Chris, I would like
to take this time to apologize for having that non-
union man on the job, however, you must under-
stand I thought I was a non-union contractor.
Since I didn’t hear anything from you after I had
answered your questions, nor did you make an ef-
fort to sit down and negotiate with me at any
time, that my contact offer of 4/25/86, was unac-
ceptable to you . . . .
On March 31, 1987, the Cement Masons’ Contract
Administration Fund wrote the Employer advising it
that the Bell grievance had been resolved against it and
that it was required to pay 15 days’ wages and fringe
benefits to the top man on the out-of-work list. On
March 25, 1987, the Respondent District Council filed
a similar grievance against the Employer and another
employer, Granite Construction. This grievance resolu-
tion was transmitted on October 23, 1987, to Granite
Construction, which is described as the Employer’s
general contractor. The resolution required Granite to
pay 2-1/2 days’ wages and fringe benefits to the top
man on the out-of-work list ‘‘in the event Marina Con-
crete fails to comply with the order of the panel in
Case no. 37–0015(B).’’4
The Employer subsequently filed an action in Fed-
eral District Court seeking to have the arbitration
award in the Bell case vacated. The court stayed the
case pending resolution by this Board. Respondents
counterclaimed, seeking to have the award judicially
enforced. This latter effort is among the matters al-
leged to violate Section 8(b)(1)(A) and (2) of the Act.
Analysis
The judge found, and we agree, that the Employer
successfully withdrew authority from its bargaining
representative to bargain on its behalf. As noted by the
judge, Retail Associates, 120 NLRB 388 (1958), re-
quires that written notice of withdrawal be both timely
and unequivocal.5 In order to be timely, the written no-
tice must be given before the date set by the contract
for modification, or to the agreed-upon date to begin
1105PLASTERERS LOCAL 337 (MARINA CONCRETE)
6 Our dissenting colleague contends that, given the content of the
discussions, they should be deemed negotiations for purposes of ap-
plying the Retail Associates doctrine and binding the Employer be-
fore the March 15 date. This overlooks the parties’ apparent intent
in the July 1985 memorandum to remove their dealings from the
constraints of Retail Associates, something which they were surely
free to do, just as parties are free to place constraints on their bar-
gaining relationship which the statute does not itself impose. See
Speedrack, Inc., 293 NLRB 1054, 1055 (1989) (parties free to re-
strict their rights to use economic weapons or implement final pro-
posals upon impasse). There is no evidence that the parties ever re-
scinded the agreement that their discussions would not be deemed
negotiations. It was consistent with such an understanding that AGC
members were allowed until March 15 to opt out of the tentative
collective-bargaining agreement and that the Respondent, as ex-
plained in fn. 6 below, raised no objection to the list of signatory
employers for the 1986–1989 agreement omitting the Employer’s
name.
7 We find that the Respondents were properly notified and were
aware that the Employer had withdrawn its authorization from the
AGC and that they acknowledged that fact on April 18, when
Holsman of the AGC, the Employer’s then bargaining representative,
gave Hernandez of Respondent District Council, Respondent Local’s
bargaining representative, a list of the contractors the AGC rep-
resented for bargaining on the new contract. The Employer’s name
was clearly not on the list and Hernandez confirmed to Holsman that
there was ‘‘no problem’’ with the list.
8 It is this contention that is the crux of our disagreement with the
dissent. Thus, the dissent’s concern that our decision is inconsistent
with the Board’s long-standing policy of prearbitral deferral, as stat-
ed in Collyer Insulated Wire, 192 NLRB 837 (1971), simply begs
the question. Collyer applies only when both parties are mutually
bound to an arbitral mechanism. As we have found here, the Em-
ployer is not bound, and the Respondent had no reasonable basis for
believing that it was.
The dissent’s reliance on Collier Electric Co., 296 NLRB 1095
(1989), is equally misplaced. There the Board specified as the initial
step in its analysis a determination ‘‘whether there is a reasonable
basis in fact or law for the union’s submission of unresolved issues
to interest arbitration.’’ Id. at 1098. Because Collier Electric is there-
fore distinguishable, Chairman Stephens, who dissented in that case,
finds it unnecessary to consider here whether he would overrule it.
In Neyens Refrigeration Co., 311 NLRB 1140 (1993), Member
Raudabaugh, dissenting, expressed his view that Collier Electric was
wrongly decided. If that dissenting view were applied to the instant
case, Member Raudabaugh would base the violation on the premise
that the Union’s grievance was for an unlawful objective, within the
meaning of Bill Johnson’s Restaurant v. NLRB, 461 U.S. 731, 737
fn. 5 (1986). However, Member Raudabaugh recognizes that Collier
Electric remains Board law. Accordingly, for institutional reasons, he
accepts Collier Electric as Board law, but like Chairman Stephens,
he distinguishes that case on the basis that the Respondent’s griev-
ance herein did not have a reasonable basis.
9 282 NLRB 1375 (1987).
10 Our dissenting colleague argues that we rely on testimony of the
Employer’s owner Youngblood that was not credited by the judge.
Youngblood’s testimony was not rejected by the judge and is
uncontroverted, as the Respondents presented no witnesses at the
hearing. Indeed, in their brief to the Board the Respondents asserted
that Youngblood ‘‘admitted’’ that ‘‘it was in his interest to continue
. . . under the terms of the agreement . . . .’’
the multiemployer negotiations, unless mutual consent
is given. In order to be unequivocal, the written notice
must contemplate ‘‘a sincere abandonment, with rel-
ative permanency, of the multi-employer unit’’ and an
intent to deal with the union on an individual basis.
We agree with the judge’s finding that the Employ-
er’s letters to the AGC and the Respondent District
Council all constituted timely and unequivocal written
notice of withdrawal. We agree with the judge’s find-
ing that the informal discussions between the AGC and
the Respondent District Council did not constitute
‘‘negotiations,’’ because the Respondent District Coun-
cil expressly agreed to the contrary in a signed memo-
randum. Thus, as found by the judge, as late as April
25, no negotiations towards a new agreement had com-
menced.6 Also, as required by the 1983–1986 contract,
the April 1 letters were sent more than 60 days prior
to the June 15, 1986 expiration date, and thus were
timely.
The letters also clearly state that the Employer
would not be bound by ‘‘any agreement’’ between the
AGC and the Respondents but would negotiate on an
individual employer basis. We agree with the judge’s
conclusion that the Employer effectively repudiated its
collective-bargaining relationship with the Respondents
at a time when no negotiations to replace the then-cur-
rent agreement had yet begun.7
Notwithstanding the foregoing facts our dissenting
colleague contends that the Respondents had a
‘‘colorable,’’ ‘‘reasonable,’’ and ‘‘good faith’’ belief8
that the Employer was bound to the terms of the col-
lective-bargaining agreement. In support, our colleague
contends this belief was reasonable because, inter alia,
the Employer continued to pay union wages and bene-
fits, continued to make contributions to certain em-
ployee benefit funds, and availed itself of the union
hiring hall after the prior agreement had expired. We
disagree.
The Employer manifested every intention not to be
bound by either the old or new agreement. It sent the
proper parties the required timely written notification,
and then sent additional written confirmation. It did
not execute the 1986–1989 collective-bargaining agree-
ment. It never entered into any independent union-se-
curity agreement or agreed to extend by contract any
of the terms and conditions of the 1983–1986 agree-
ment. While the Employer did maintain certain terms
and conditions of the expired agreement, its actions
were consistent with Board law prior to February
1987. Although John Deklewa & Sons9 was decided
several months before the filing of charges in this case
and is applicable, pre-Deklewa law explains the Em-
ployer’s maintenance of terms and conditions of em-
ployment past the expiration date and pending negotia-
tions. As Employer-Owner Michael Youngblood testi-
fied, up until late in 1986, he believed the Union was
going to negotiate with him and thus he felt he should
continue the former agreement’s terms and conditions
and not ‘‘upset the cart.’’10 Nor, in any event, does it
follow that if an employer is privileged to act unilater-
ally that it must do so in order to preserve its rights.
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 The Employer continued to operate under the expired contract
terms for several months on one project which had been bid under
the prior contract and one which had been started before expiration
of the contract. This short-term compliance with the expired contract
does not bind the Employer to a new agreement. See Garman Con-
struction Co., 287 NLRB 88 fn. 5 (1978). (Adoption-by-conduct
doctrine is inapplicable in 8(f) cases.)
12 We do not find our dissenting colleague’s reliance on Hotel &
Restaurant Employees Local 274 (Warwick Caterers), 282 NLRB
939 (1987); Sheet Metal Workers Local 206 (West Coast Sheet
Metal), 298 NLRB 760 (1990), affd. 938 F.2d 1356 (D.C. Cir.
1991); and Teamsters Local 988 (Emery Worldwide), 303 NLRB 306
(1991), revd. sub nom. Emery Worldwide v. NLRB, 966 F.2d 1003
(5th Cir. 1992), to be persuasive. All three cases are premised on
a finding that the unions’ beliefs were ‘‘reasonable.’’ As we have
stated, we find the Respondents’ asserted belief that the Employer
here was bound to the agreement was ‘‘not reasonable.’’ Chairman
Stephens thus finds it unnecessary to express an opinion in this case
on whether Warwick Caterers and Emery Worldwide were correctly
decided.
See United Technologies Corp., 287 NLRB 198, 198–
199 (1987), enfd. 884 F.2d 1569 (2d Cir. 1989) (fact
that party forgoes exercise of contractual right does not
prove the nonexistence of that right).
There is no dispute here that the Employer’s agree-
ment with the Respondents was an 8(f) agreement.
Under Deklewa, upon the expiration of an 8(f) agree-
ment ‘‘the signatory union will enjoy no presumption
of majority status, and either party may repudiate the
8(f) bargaining relationship.’’ Under Deklewa, an em-
ployer’s compliance with the terms of the agreement
after the expiration date is purely voluntary and gives
rise to no obligations whatsoever. Here, the Employ-
er’s failure to change some terms and conditions of the
1983–1986 agreement subsequent to June 15, 1986,
was simply voluntary and raises no viable argument of
adoption-by-conduct as the dissent seems to suggest.11
The dissent also contends that the new agreement
was ratified by the Respondent Local and the AGC in
February 1986, and that the Respondent Local never
agreed to allow employers to withdraw from the agree-
ment through March 15, 1986. It is unclear whether
the AGC approved the contract in February and may
not have actually done so until at least March 15. In
any event, the Respondent District Council, on behalf
of the Respondent Local, agreed prior to ratification
that employers could withdraw up until March 15, a
date well after the alleged ratification. The Respondent
Local’s attempt to disavow its bargaining representa-
tive’s conduct is disingenuous.
In sum, we do not agree with our colleague’s
premise that the Respondents had a ‘‘colorable,’’ ‘‘rea-
sonable,’’ or ‘‘good faith’’ belief that the Employer
was bound by the agreement.12 Notwithstanding the
absence of such a belief, the Respondents have filed
grievances, secured an award, and sought to enforce
that award in court. The aim of these proceedings was
to force the Employer into a bargaining relationship
which it had lawfully abandoned and to coerce em-
ployees to be represented by the Respondents and to
be bound to a union-security clause of an expired con-
tract. The Respondents thereby acted not only without
reasonable basis but also in derogation of statutory
rights. Such conduct violates Section 8(b)(1)(A) and
(2) of the Act. See Sheet Metal Workers Local 9 (Con-
cord Metal), 301 NLRB 140, 144 (1991) (finding vio-
lation of Sec. 8(b)(1)(B) against union which, without
reasonable basis, sought court enforcement of interest
arbitration award, in derogation of the employer’s right
under Deklewa to terminate the collective-bargaining
relationship).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below, and orders that the Respondents, Dis-
trict Council of Plasterers and Cement Masons of
Northern California, and Cement Masons Local 337,
both affiliated with Operative Plasterers and Cement
Masons International Association, their officers, agents,
and representatives, shall take the action set forth in
the Order, as modified.
1. Substitute the following for paragraph 1.
‘‘1. Cease and desist from
‘‘(a) Restraining or coercing employees in the exer-
cise of rights guaranteed in Section 7 of the Act by
initiating and/or procesecuting grievances against Ma-
rina Concrete Company, or any other employer, in an
effort to enforce the union-security provisions of an
expired collective-bargaining agreement, or in any in-
stance where an employer has effectively repudiated its
collective-bargaining relationship with the Union.
‘‘(b) Causing or attempting to cause any employer
to discriminate against any employee in violation of
Section 8(a)(3) of the Act, by requesting that the em-
ployee be discharged by any employer, including Ma-
rina Concrete Company, because it employs persons
not members of the Union.
‘‘(c) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER DEVANEY, dissenting.
On September 26, 1986, the Respondent Cement
Masons Local 337 (Local) filed a grievance against the
Employer to enforce the union-security provisions of
its collective-bargaining agreement with the Associated
General Contractors (AGC). On March 25, 1987, the
Respondent Plasterers and Cement Masons of Northern
California (District Council) filed a similar grievance.
Contrary to my colleagues, I would find that the Re-
spondents (Union and District Council) did not violate
Section 8(b)(1)(A) or (2) of the Act by filing and
maintaining these grievances, or by seeking to have an
1107PLASTERERS LOCAL 337 (MARINA CONCRETE)
1 A violation may be found when a party resorts to the
grievance/arbitration machinery in retaliation for the exercise of pro-
tected activities. Cf. Pueblo International, 229 NLRB 770 (1977)
(union only sought discharge of employee for nonpayment of dues
after he made remarks critical of union’s leadership). There is no
claim or evidence that the Respondents here filed or maintained
these grievances for the purpose of retaliating against the exercise
of Sec. 7 rights.
2 The Board has also found lawful a union’s resort to arbitration
to resolve contentions that an employer remained bound by an agree-
ment because it was automatically renewed, Brink Construction,
above, to a claim that historically separate units had been merged,
Teamsters Local 988 (Emery Worldwide), 303 NLRB 306 (1991)
revd. sub nom. Emery Worldwide v. NLRB, 966 F.2d 1003 (5th Cir.
1992) (disagreeing with the Board’s finding that union’s claim that
historically separate units had been merged was reasonable on facts
of case), and to claims that an employer was bound by the interest
arbitration provisions of an expired collective-bargaining agreement.
Sheet Metal Workers Local 206 (West Coast Sheet Metal), 298
NLRB 760 (1990), affd. 938 F.2d 1356 (D.C. Cir. 1991); Electrical
Workers Local 113 (Collier Electric Co.), 296 NLRB 1095 (1989).
3 My colleagues contend that this fact is not persuasive because the
Employer chose not to appear at the hearings to present evidence in
its defense. I would not allow the Employer to bootstrap its avoid-
ance of the arbitral forum into evidence that its position has merit.
Moreover, the record shows that the panel did not automatically de-
cide grievances against a defaulting party, and there is no evidence
that the AGC representative on the panel was not aware of the facts
underlying the Employer’s defense, i.e., its efforts to withdraw bar-
gaining authorization from AGC.
arbitration award in their favor judicially enforced,
where the Respondents had a colorable belief that the
Employer was bound to the terms of the agreement
and the matter had not been previously determined
through an adjudicatory process.
My colleagues find that the Respondents’ actions
were unlawful because the Employer in fact was not
bound by any agreement with the Respondents and
there was thus no valid union-security clause in force.
However, the Board has emphasized that a lawsuit or
grievance arbitration ‘‘must have been instituted for an
unlawful objective before a violation of our Act can be
found.’’ Electrical Workers Local 532 (Brink Con-
struction Co.), 291 NLRB 437, 438 (1988). Where
there is a reasonable basis for the unions’ contentions,
the Board has found that its objectives in obtaining an
adjudication were not unlawful. Id.; see also Teamsters
Local 483 (Ida Cal Freight), 289 NLRB 924 (1988)
(union ‘‘had a legitimate interest in seeking a resolu-
tion of the issue through grievance arbitration and
through a Section 301 lawsuit.’’).1
Even if the union’s contentions are ultimately re-
jected, the fact that the union pursued those conten-
tions through arbitration does not establish that their
actions had an unlawful objective. See, e.g. Brink Con-
struction Co., above (‘‘Local 532’s lawsuit has thus
been proven to be without merit, but that does not
mean that the suit was ipso facto an unfair labor prac-
tice.’’); Hotel & Restaurant Employees Local 274
(Warwick Caterers), 282 NLRB 939 (1987) (union’s
efforts through grievance arbitration to apply an agree-
ment containing a union-security clause to a group of
employees outside the unit which it represented found
reasonable even though the Board ultimately found
that the agreement did not cover those employees).2
I believe that the Respondents had a reasonable,
good-faith basis for asserting that the Employer was
bound by the 1986–1989 agreement—including that
agreement’s union-security obligations. The Respond-
ents produced the following evidence in support of
their contention that the Employer was bound by their
1986–1989 agreement with the Associated General
Contractors: (1) evidence that the 1986–1989 agree-
ment was ratified by the Union and AGC on February
11, 1986, well before the Employers’ March 13, 1986
letter to AGC withdrawing from the multiemployer as-
sociation or its April letters notifying the Union that it
would bargain as a single employer; (2) evidence that
the Respondents did not agree to allow employers to
withdraw from the multiemployer association through
March 15, 1986, which was the date on which the
1986–1989 agreement became effective; (3) an admis-
sion by the Employer that it had offered to replace a
nonunion employee with a union member after the
prior agreement had expired; (4) evidence that the Em-
ployer continued to abide by some of the provisions of
the 1986–1989 agreement after the date the prior
agreement had expired, including the hiring hall, wage,
and fringe benefit clauses and made contributions to
certain multiemployer benefit funds on its employees’
behalf; (5) evidence that, even after the 1983–1986
agreement had expired, the Employer acknowledged
the Union as its employees’ representative in requests
for hiring hall referrals and represented to the multiem-
ployer trust funds that the contributions on its employ-
ees’ behalf were pursuant to the 1986–1989 agreement;
and (6) evidence that the arbitration panels to which
the two grievances were referred found that the Em-
ployer was bound to the 1986–1989 agreement.3
My colleagues contend that the Employer’s contin-
ued contributions to multiemployer benefit funds and
continued use of a hiring hall do not support the Re-
spondent’s belief that the Employer was bound to the
1986–1989 contract. This contention overlooks impor-
tant facts. First, the Employer’s president testified that,
in response to the Union’s request in September 1986,
he offered to replace a nonunion employee with a
union member referred by the hiring hall if the Union
could send him someone qualified to do the work. In
the absence of a current contract containing union-se-
curity provisions, the Employer would have violated
Section 8(a)(3) of the Act had it carried out this prom-
ise. Trico Products Corp., 238 NLRB 1306 (1978)
(finding no violation because contract extended). Sure-
ly, then, the Employer’s stated willingness to replace
the employee gave the Union reasonable grounds to
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 My colleagues suggest that the Employer’s continued compliance
with the terms of the expired agreement is due to a desire not to
‘‘upset the cart’’ as it continued to believe that the Union would ne-
gotiate with it on an individual basis. This testimony was not cred-
ited by the judge and is flatly contradicted by the Employer’s April
1986 letter advising the Local Union that if it did not wish to ‘‘com-
ply’’ with the Employer’s proposed ‘‘terms and demands as they are
stated here, then on June 15, 1986, this company will no longer be
bound in any way with your Union.’’ Moreover, I note that the Em-
ployer never communicated this post hoc rationale for its actions to
the Respondents. In my view, it is the Employer’s efforts to disavow
its various representations in this case, rather than any conduct or
statement by the Respondents, which is ‘‘disingenuous.’’
5 AGC Representative Holsman testified that wages, benefits, and
overtime pay were discussed at the meetings between July 1985 and
January 1986. Thus, absent the July 1985 agreement on ground
rules, it is clear that these meetings constituted negotiations for a
new agreement under Retail Associates.
6 Thus, my colleagues’ efforts to establish that the Respondent’s
position was incorrect do not answer the ultimate question presented
by this case: whether the Respondent’s position was reasonable. In
light of the facts mentioned above, the Respondents’ failure to object
to the list of signatory employers presented to it on April 18, 1986,
and omitting the Employer’s name, does not establish the
unreasonableness of the Respondents’ position.
7 I further note that a concession of this magnitude by the Re-
spondents, effectively waiving their right to object to withdrawals
from the multiemployer unit prior to March 15, 1986, is one which
I would expect to be reduced to writing, and that the burden of proof
on this issue rested with the General Counsel.
believe that the Employer was bound by the 1986–
1989 agreement.
Likewise, the Employer did more than merely con-
tinue to submit contributions to a multiemployer bene-
fit fund after the 1983–1986 agreement had expired; it
also signed statements with each contribution acknowl-
edging that it was bound by the 1986–1989 agreement.
I would find that the Respondents were entitled to take
the Employer at its word.4
My colleagues apparently find that the Employer has
established its timely withdrawal of bargaining author-
ization from the AGC with sufficient clarity to pre-
clude any subsequent claim by the Respondents that
they reasonably believed the Employer was bound to
the 1986–1989 agreement. In this regard, my col-
leagues agree that the parties began discussions con-
cerning a new contract in July 1985, and that the dis-
cussions ended in January 1986 with a tentative agree-
ment. Under well-established law, any effort by the
Employer to withdraw from the multiemployer unit
after negotiations began would be ineffective absent
mutual consent. Retail Associates, 120 NLRB 388
(1958).
However, the District Council and the AGC agreed
in July 1985, that ‘‘exploratory discussions preceding
the formal opening of collective bargaining negotia-
tions’’ would not be considered ‘‘collective bargaining
negotiations as set forth in Section 19 of the 1983–
1986 AGC Cement Masons Agreement.’’ In order to
find the Employer’s withdrawal timely, my colleagues
have concluded, without citation to any authority, that
all of the discussions preceding the 1986–1989 con-
tract were ‘‘exploratory discussions’’ within the mean-
ing of this agreement, and that this characterization of
the discussions determines the parties’ rights under Re-
tail Associates as well as their rights under Section 19
of the 1983–1986 agreement.5 Even if my colleagues
are correct, these propositions are hardly self-evident
and I would find that the Respondents were entitled to
test them in grievance arbitration.6
My colleagues also find that the parties agreed that,
even after the tentative contract was circulated for
signing, employers could withdraw bargaining author-
ization from the AGC until March 15, 1989. However,
the only evidence of this ‘‘agreement’’ is Holsman’s
testimony: it does not appear in the minutes he took
during meetings with the District Council or in the
written ground rules signed by the parties. Although
the judge credited Holsman’s testimony, I would find
that it was not unreasonable for the Respondents to
test, in grievance arbitration, a matter which was re-
solved on credibility grounds.7 Compare West Coast
Sheet Metal, above (union’s claim that employer bound
by interest-arbitration clause after withdrawal from
multiemployer bargaining and contract expiration
found reasonable even though union had conceded that
clause had been eliminated from the agreement).
The Respondents’ claims satisfy the reasonableness
standard which the Board has applied in prior cases.
Thus, in Emery Worldwide, above, the Board found
that the union had a reasonable basis for its claim that
its contract covered a historically separate unit of
former Purolator employees (Emery acquired Purolator
in 1987), even though the contract clause at issue ex-
cluded from coverage employees already represented
under a separate agreement. See also West Coast Sheet
Metal, above; Ida Cal Freight Lines, above (claim that
owner-operators were employees was reasonable be-
cause lease agreements were recent developments and
resolution of this issue turns on the facts of each case);
Warwick Caterers, above (accretion claim reasonable
even though employees had separate supervision, lim-
ited interchange, and daily operations of the two enti-
ties were separate and autonomous). I see no reason to
hold the Respondents to a higher standard in this case.
Because the Respondents’ contentions were reason-
able, finding a violation in this case is also inconsistent
with the Supreme Court’s teachings in Bill Johnson’s
Restaurants v. NLRB, 461 U.S. 731 (1983). In that
case, the Supreme Court held, inter alia, that the Board
could enjoin state court suits to the extent that the suit
was filed in retaliation for engaging in protected activi-
ties and had no reasonable basis in fact or law. As pre-
viously discussed, the Union here had a reasonable
1109PLASTERERS LOCAL 337 (MARINA CONCRETE)
8 Granite State Joint Board, Textile Workers Union, 187 NLRB
636 (1971), enf. denied 446 F.2d 369 (1st Cir. 1971), revd. 409 U.S.
213 (1972); Machinists Lodge 405, 185 NLRB 380 (1970), enfd. in
relevant part 459 F.2d 1143 (D.C. Cir. 1972), affd. 412 U.S. 84
(1973).
9 See also Teamsters Local 705 v. NLRB, 820 F.2d 448 (D.C.
Cir.), affd. after remand 835 F.2d 367 (D.C. Cir. 1987) (filing griev-
ance to enforce alleged union standards subcontracting agreement
‘‘would seem illegal only if the agreement itself was secondary’’
and thus per se unlawful); Laundry Workers Local 3 (Virginia
Cleaners), 275 NLRB 697 (1985) (suit to collect fine for
postresignation conduct unlawful because fines ‘‘could not lawfully
be imposed under the Act.’’).
10 I note that the Board’s Collier Electric policy of staying its hand
when one of the parties seeks a judicial determination of their obli-
gations under an interest arbitration clause has been approved by the
District of Columbia Circuit in West Coast Sheet Metal v. NLRB,
above.
basis for the contentions it submitted to the arbitration
panels.
As my colleagues note, the Supreme Court observed
in Bill Johnson’s that the Board may enjoin a state
court suit ‘‘that has an objective that is illegal under
federal law.’’ Id. at 737 fn. 5. However, it is clear
from the context of the cited passage that the Court
was referring only to suits whose prosecution is unlaw-
ful on their face (that is, suits which are unlawful even
if the plaintiff’s factual assertions are accepted as true).
Thus, the two examples of suits with an ‘‘illegal objec-
tive’’ cited by the Court involved suits by unions to
enforce fines, for postresignation conduct, against em-
ployees who had effectively resigned their membership
in the union. The Board has held with court approval
that the imposition of fines under these circumstances,
and thus any effort to collect the fines in court, is un-
lawful on its face.8
In this case, in contrast, the Union’s actions are
claimed to be unlawful only because the Board has re-
jected its contention that the Employer was bound to
the 1986–1989 agreement. As the Board carefully
noted in Elevator Constructors Local 3 (Long Eleva-
tor), 289 NLRB 1095 (1988), ‘‘Because we have con-
cluded that the contract clause as construed by the Re-
spondent would violate Section 8(e), we may properly
find the presentation of the grievance coercive, not-
withstanding the Supreme Court’s decision in Bill
Johonson’s Restaurants v. NLRB . . . .’’ (Emphasis
added.) Here, the Union’s actions are clearly lawful if
we adopt its construction of the facts. Thus, there is
no basis under either Bill Johnson’s or our cases for
finding that the Union had an unlawful objective in
seeking an adjudication of its rights through the griev-
ance arbitration machinery to which the parties
agreed.9
In my view, finding a violation in this case is also
inconsistent with the Board’s well-established policy of
giving ‘‘hospitable acceptance to the arbitral process.’’
Collyer Insulated Wire, 192 NLRB 837, 841 (1971).
See also Collier Electric Co., 296 NLRB 1095, 1099
(1989) (‘‘Allowing parties to seek resolution of dis-
putes under the provisions of their collective-bargain-
ing agreements furthers the policy of collective bar-
gaining under the Act.’’).10
Because Board cases establish that the Union acted
lawfully in seeking an adjudication of its claims, I
would dismiss the complaint.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT restrain or coerce employees in the
exercise of rights guaranteed in Section 7 of the Act
by initiating and/or prosecuting grievances against Ma-
rina Concrete Company, or any other employer, in an
effort to enforce the union-security provisions of an
expired collective-bargaining agreement, or in any in-
stance where an employer has effectively repudiated its
collective-bargaining relationship with us.
WE WILL NOT cause or attempt to cause any em-
ployer to discriminate against any employee in viola-
tion of Section 8(a)(3) of the Act, by requesting that
the employee be discharged by any employer, includ-
ing Marina Concrete Company, because it employs
persons not members of the Union.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL cancel all outstanding grievances against
Marina Concrete Company and/or Granite Construction
Company and we will immediately notify employees
Ron Bell and James Dennis Rogers that the discipli-
nary proceedings against their employers are null,
void, and of no force or effect, and that our internal
union files and records will be purged of any ref-
erences to such proceedings after obtaining permission
and authorization to do so from the Regional Director
for Region 32 of the Board; and, after obtaining such
permission and authorization:
WE WILL permanently expunge from our files and
records all references to such grievance proceedings.
WE WILL return any fines, with interest, to Marina
Concrete Company and/or Granite Construction Com-
pany, which may have been collected from either of
them pursuant to any such grievance proceedings.
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Later amended to include Sec. 8(b)(2), as well.
2 Sec. 8(b)(1)(A) provides that,
It shall be an unfair labor practice for a labor organization or
its agents
(1) to restrain or coerce (A) employees in the exercise of the
rights guaranteed in section 7: Provided, That this paragraph
shall not impair the right of a labor organization to prescribe its
own rules with respect to the acquisition or retention of mem-
bership therein; . . .
3 Sec. 8(b)(2) provides that,
It shall be an unfair labor practice for a labor organization or
its agents
(2) to cause or attempt to cause an employer to discriminate
against an employee in violation of subsection (a)(3) or to dis-
criminate against an employee with respect to whom member-
ship in such organization has been denied or terminated on some
ground other than his failure to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or
retaining membership . . . .
4 Respondent also asserted, by way of affirmative defense, (1) that
the Act is unconstitutional, denying Respondent rights which it is en-
titled to under the first amendment, and (2) that the Board’s jurisdic-
tion is insufficient to enable it to grant the remedy sought. Neither
affirmative defense is further argued or factually supported by Re-
spondent. Each is, accordingly, dismissed.
5 The answer fails to admit that Respondent Local is, or has been,
‘‘a constituent member’’ of Respondent District Counsel. While
there was no direct evidence of the truth of this allegation, I regard
it as sufficiently proven by the wording of documents in evidence,
such as collective-bargaining agreements negotiated by Respondent
District Council on behalf of various local unions, including Re-
spondent Local.
WE WILL notify in writing Marina Concrete Com-
pany that we have no objection to Ron Bell and/or
James Dennis Rogers working for it.
DISTRICT COUNCIL OF PLASTERERS AND
CEMENT MASONS OF NORTHERN CALI-
FORNIA, AND CEMENT MASONS LOCAL
337, BOTH AFFILIATED WITH OPERATIVE
PLASTERERS AND CEMENT MASONS
INTERNATIONAL ASSOCIATION
Ann Leslie Unger, Esq., for the General Counsel.
Paul Supton, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Respond-
ent.
Roger M. Mason, Esq. (Thierman, Cook, Brown and Mason),
of San Jose, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me in Oakland, California, on July 26,
1988, and is based on a charge, subsequently amended, filed
by Marina Concrete Company (the Employer) on July 1,
1987, alleging generally that Plasterers and Cement Masons
of Northern California (the Respondent District Counsel),
and Cement Masons Local 337 (the Respondent Local), both
affiliated with Operative Plasterers and Cement Masons
International Association, committed certain violations of
Section 8(b)(1)(A)1 of the National Labor Relations Act (29
U.S.C. § 151 et seq., the Act). On March 29, 1988, the Re-
gional Director for Region 32 of the National Labor Rela-
tions Board (the Board) issued a complaint and notice of
hearing, also subsequently amended, alleging violations of
Section 8(b)(1)(A)2 and (2)3 of the Act. Respondent there-
after filed a timely answer to the allegations contained within
the complaint, denying all wrongdoing.4
All parties appeared at the hearing and were given full op-
portunity to participate, to introduce relevant evidence, to ex-
amine and cross-examine witnesses, to argue orally, and file
briefs. Based on the record, my consideration of the briefs
filed by counsel for the General Counsel, counsel for the
Employer and counsel for Respondents, and my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges that the Employer is a sole propri-
etorship, with an office and place of business in Salinas,
California, where at all times material, it has been engaged
in the construction industry as a supplier of concrete to other
contractors; that during the 12-month period preceding the
issuance of the complaint herein, in the course and conduct
of its business operations, it provided services valued in ex-
cess of $50,000 directly to customers or business enterprises
which themselves meet one of the Board’s jurisdictional
standards, other than the indirect inflow or indirect outflow
standards.
At the trial, Respondent stipulated that Respondent has
provided services valued in excess of $50,000 annually to
another construction industry employer engaged in the con-
struction of facilities used in the national defense. This stipu-
lation was augmented during the trial by the credible testi-
mony of the Employer’s owner, to the effect that he per-
formed work for the construction of national defense facili-
ties beginning in late 1985, that he was paid monthly by the
general contractor, beginning in January 1986, and that the
total sum of over $500,000 was paid him for this work by
the end of October 1986.
Accordingly, I find and conclude that the Employer is
now, and at all times material herein has been, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
Respondent District Counsel and Respondent Local are now,
and at all times material have been, labor organizations with-
in the meaning of Section 2(5) of the Act.5
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. General Background and Labor Relations History
The Charging Party is a subcontractor in the business of
providing concrete to construction industry employers in the
Salinas, California area. It is owned and operated by one Mi-
chael Youngblood.
1111PLASTERERS LOCAL 337 (MARINA CONCRETE)
6 The record is unclear as to the interest of the Union referred to
in this letter, but I regard the revocation of authority to negotiate as
unequivocal, no matter what the identity of the union. In any event,
the new agreement of June 1986 was negotiated by the Respondent
District Council, and, by its terms, was done on behalf of the Re-
spondent Local, among other unions.
While the Employer began it operations as a nonunion
contractor, it had a collective-bargaining relationship from
1971 until 1986 with Respondent Local. As testified to by
Youngblood, around the end of 1972 it signed a contract
with a multiemployer association known as the Associated
General Contractors (the AGC), thereby becoming bound by
the AGC’s collective-bargaining agreement with Respondent
Local, negotiated for Respondent Local by Respondent Dis-
trict Council. Finally, in January 1986, it became a member
of the AGC.
In September 1983 the Employer signed the April 1984–
June 15, 1986 collective-bargaining agreement between Re-
spondent Local and the AGC, which provided that it contin-
ued from year-to-year unless written cancellation was given
60 days prior to June 15, 1986.
B. The Preliminary Talks
In July 1985 the Respondent District Council and the
AGC entered into talks. The parties executed a memorandum
which characterized the talks as ‘‘exploratory discussions
preceding the formal opening of collective bargaining nego-
tiations,’’ as ‘‘off the record,’’ as nonbinding absent approval
and ratification by the Union and the AGC, and went on to
recite that:
5. The parties agree that the discussions described
above shall not constitute collective bargaining negotia-
tions as set forth in Section 19 of the 1983–1986 AGC
Cement Masons Agreement.
The AGC advised its members that, if they did not wish
to be bound by the new agreement, they had to withdraw
bargaining authorization by March 15, 1986. It also advised
members that they must continue to abide by the terms of
the 1983–1986 agreement until its expiration, and that there-
after they were obliged to bargain with the Union individ-
ually. The date of March 15, 1986, had been agreed upon,
according to the credible testimony of a representative of the
AGC, Executive Director Thomas T. Holsman, in discussions
between representatives of AGC and the District Council.
The informal, exploratory discussions concluded in the last
week of January 1986. The parties had by that time reached
a tentative agreement as to all the terms of a new collective-
argaining agreement. The AGC thereafter notified its mem-
bers that those among them who did not wish to become
bound by the terms of the new agreement had until March
15, 1986, to withdraw authorization from the AGC to bargain
collectively on their behalf.
C. The Employer’s Actions to Withdraw Authorization
From the AGC
The Employer sent a telegram dated March 13, 1986,
which was delivered March 14, 1986, advising the AGC that
it would not be a party to any agreement entered into be-
tween the AGC and the District Council. By letter, dated
March 19, 1986, the AGC advised the District Council that
the Employer would no longer be represented by the AGC.
On April 1, 1986, the Employer wrote to the AGC that it
was withdrawing bargaining authorization from it, that it
would not be bound by any new agreement between the
AGC and ‘‘Laborers/Tunnel Laborers Union,’’ and that it
recognized that it was bound to comply with the terms and
conditions of the then current agreement until its June 15,
1986 expiration date.6
On April 1, 1986, the Employer confirmed to the District
Council that it had revoked the AGC’s authority to negotiate
on its behalf, and that it would not be bound by any new
agreement or extension or amendment to the old agreement,
‘‘or any other labor agreements with your organization.’’ At
the same time, the Employer advised that it would be willing
to meet as an individual employer. On the same day, the Em-
ployer sent a near identical letter to the Respondent Local.
On April 18, 1986, the AGC provided the District Council
with a list of the contractors represented by it in bargaining
toward a new agreement to replace the 1983–1986 agree-
ment. The Employer’s name was not on the list. Shortly
thereafter, Holsman called the representative of the District
Council, Chris Hernandez, the Chairman of the District
Council’s Negotiating Committee (according to the wording
on the new agreement of June 1986), and was told that the
District Council had no problem with the list he had been
provided, which, as noted earlier, did not include the Em-
ployer.
D. Subsequent Dealings Between the Employer
and Respondents
On April 10, 1986, Respondent District Council wrote to
the Employer and, acknowledging the letter it had received
of April 1, asked the Employer to provide it with certain in-
formation.
By letter of April 25, 1986, the Employer provided certain
of the information requested, most notably the identity of the
person who would be spokesperson for the Employer ‘‘dur-
ing these negotiations.’’ The Employer closed its letter by
stating, ‘‘If you do not wish to comply with these terms and
demands as they are stated here, then on June 15, 1986, this
company will no longer be bound in anyway with your
Union.’’
No negotiations have occurred between the Employer and
Respondents since the letter of April 25, 1986, and their con-
tacts appear to have been limited to the events described
below. Meanwhile, as noted above, on June 15, 1986, the old
agreement expired, and the Employer has not complied with
many of the terms of its replacement.
E. Respondents’ Attempts to Enforce the New
Agreement Against the Employer
On May 22, 1986, the Respondent District Council’s attor-
neys wrote back that, ‘‘if you do not submit the requested
information we will file appropriate legal action and sue.’’
On September 23, 1986, Respondent Local wrote to the
Employer, requesting that it ‘‘comply with the provisions of
Section 3(A)(2) of the Cement Masons 46 Northern Califor-
nia Counties Master Agreement by discharging the individual
named below for failure to comply with the provisions of
Section 3(A)(1) of said Agreement in that said individual has
failed to remain and/or maintain membership in good stand-
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing with the Union.’’ The individual named was one Ron
Ball. The agreement referred to is the new agreement of June
1986, previously mentioned. The sections referred to are the
‘‘union security’’ and ‘‘hiring hall’’ clauses of the new
agreement.
On September 26, 1986, Respondent Local’s business
agent and business manager signed a grievance against the
Employer on account of the Employer’s failure to discharge
Ron Hall, as requested. The grievance stated that it sought,
as a remedy, ‘‘compliance with the agreement in the future,
backpay . . . and reimbursement to the union of lost dues
and initiation fees.’’ A copy of the grievance was sent to the
Employer by Respondent Local on October 2, 1986.
On December 23, 1986, the Respondent Local did as it
had promised in its letter, just mentioned, and took the mat-
ter before the ‘‘Contract Administration Board of Adjust-
ment,’’ for resolution.
The Employer did not appear. Instead, on December 12,
1986, it wrote to Chris Hernandez of the District Council,
and made sarcastic reference to its letter of April 25, 1986,
referred to above, saying,
I’m so glad you have accepted my contract offer of
April 25, 1986. . . . It’s good to be back on the union
team again. . . . Chris, I would like to take this time
to apologize for having that non-union man on the job,
however, you must understand I thought I was a non-
union contractor. Since I didn’t hear anything from you
after I had answered your questions, nor did you make
an effort to sit down and negotiate with me at any time,
that my contract offer of 4/25/86, was unacceptable to
you.
On March 31, 1987, the Cement Mason’s Contract Admin-
istration Trust Fund wrote the Employer, enclosing a copy of
the minutes of the meeting in which the grievance had been
resolved against the Employer. Those minutes directed the
Employer to pay 15 days wages and fringes to the top man
on the out-of-work list.
By letter of March 25, 1987, the Respondent District
Council filed a grievance against the Employer. This griev-
ance was based on the Employer’s, and another employer
named Granite Construction, alleged failure to comply with
the same provisions of the new agreement as were mentioned
in the previous grievance, this occasion involving an em-
ployee named James Dennis Rogers.
By letter of October 23, 1987, to Granite Construction,
which is described as the Employer’s general contractor, a
copy of the grievance’s resolution was transmitted. The reso-
lution required Granite to pay 2-1/2 days wages and fringes
to the top man on the out-of-work list ‘‘in the event Marina
Concrete fails to comly with the order of the panel in Case
No. 37–0015(B).’’
The Employer subsequently filed an action seeking to have
the arbitration award in the case involving employee Ron
Bell vacated. The action is presently pending in Federal Dis-
trict Court, where it has been stayed while waiting the reso-
lution of the Board. Respondents have, in the meantime,
counter-claimed, seeking to have the award judicially en-
forced. This latter effort is among the items claimed to be
in violation of Section 8(b)(1)(A) and (2) of the Act.
F. The Issues Presented
(1) Whether the Employer successfully repudiated its col-
lective-bargaining relationship with Respondents, so as to ef-
fectively withdraw recognition of the Respondents following
the expiration of the old agreement.
(2) Whether the Respondents violated Section 8(b)(1)(A)
and (2) of the Act by filing grievances against the Employer
on September 23, 1986, and March 25, 1987, in an attempt
to enforce the union-security provisions of either the old or
the new agreements between the Respondents and the AGC.
(3) Whether this charge and complaint are barred by Sec-
tion 10(b) of the Act.
G. Analysis and Conclusions
I conclude that the Employer has met the test set forth by
the Board to determine whether or not an employer may suc-
cessfully withdraw the authority to bargain collectively on its
behalf from a multiemployer bargaining association such at
the AGC. That test is set forth in Retail Associates, 120
NLRB 388 (1958), and requires that written notice of with-
drawal be given which is both timely and unequivocal. In
order to be deemed unequivocal, the written notice must con-
template ‘‘a sincere abandonment, with relative permanency,
of the multi-employer unit’’ and an intent to engage the
union on an individual-employer basis. In order to be
deemed timely, the written notice must be given before the
date set by the contract for modification, or to the agreed-
upon date to begin the multiemployer negotiations, unless
mutual consent is given.
Here, each of the conditions is met.
The requirement of a ‘‘written notice’’ is satisfied by the
Employer’s letters of April 1, 1986, to both the AGC and
Respondent District Council (which was Respondent Local’s
negotiating agent), as well as by the Employer’s letter to Re-
spondent District Council of April 25, 1986.
The requirement of timeliness is met because the letters of
April 1 and April 25, to the Respondent District Council,
were each sent prior to the beginning of negotiations to re-
place the then current collective-bargaining agreement. No
argument can be made that the informal discussions con-
stituted ‘‘negotiations,’’ because the Respondent District
Council had expressly agreed to the contrary, according to
both the credited testimony of Holsman and the memoran-
dum agreement signed at the outset of those preliminary dis-
cussions. Obviously, those discussions would constitute ‘‘ne-
gotiations’’ absent any agreement to the contrary, but an
agreement such as was entered into here should not be light-
ly construed as a fiction. There are important policy consid-
erations favoring construing such discussions as the parties
themselves wish, such as the facilitation of replacing agree-
ments about to expire without the parties fearing to talk to
one another lest they forfeit rights of their respective con-
stituencies by beginning too early. Accordingly, I find and
conclude that, by the date of either of the Employer’s letters
to Respondent District Council, no negotiations toward re-
placing the expiring agreement had yet commenced between
the AGC and Respondents.
The requirement that there be no equivocation is met be-
cause nothing could be clearer than the words of the Em-
ployer, in its letters of April 1 and April 25, 1986, it stated
that it would not be bound by any agreement reached by the
1113PLASTERERS LOCAL 337 (MARINA CONCRETE)
7 In addition to the previously mentioned letters in April 1986, the
Employer affirmatively advised Respondent Local, through its agent,
Philip Nelson, that it was no longer a union contractor. Further, in
its sarcastic letter in response to the first grievance, the Employer’s
intent was clearly conveyed, i.e., it considered itself a nonunion em-
ployer ever since the Respondents failed to respond to its offer to
bargain individually made in the April 25, 1986 letter.
8 All outstanding motions inconsistent with the results of this deci-
sion, if any, are overruled.
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
AGC and Respondents, and then went on to offer to nego-
tiate on an individual basis.
Accordingly, I find and conclude that the Employer effec-
tively repudiated its collective-bargaining relationship with
Respondents at a time when no negotiations aimed at replac-
ing the then current agreement had yet commenced, that is,
by April 25, 1986.
Such a result necessarily would privilege the Employer’s
withdrawal of recognition from Respondents following the
expiration of the then current agreement on June 15, 1986.
This is so because there is no showing that Respondents ever
achieved majority status among a unit of the Employer’s em-
ployees. Instead, it seems clear that the recognition given Re-
spondents by the Employer was based on the provision made
for employers in the construction industry by Section 8(f) of
the Act. Under the holding of John Deklawa & Sons, 282
NLRB 1375 (1987), employers may lawfully repudiate 8(f)
bargaining relationships after the contract which forms the
basis of that relationship has expired. I find and conclude
that the Employer has done so lawfully here.7
It follows from the above that the Respondents separate at-
tempts, in filing and prosecuting grievances which resulted in
what amounts to fines of the Employer, are violative of Sec-
tion 8(b)(1)(A) and (2) of the Act, because they represent
clear attempts to enforce the union-security provisions of an
expired collective-bargaining agreement. Trico Products
Corp., 238 NLRB 1306 (1978), and cases cited therein. I so
find and conclude.
Finally, I reject Respondents’ argument that the complaint
herein is barred by Section 10(b) of the Act. The charge in
this case was filed on July 1, 1987, and amended on July
23, 1987. As found above, Respondents attempted to enforce
the expired collective-bargaining agreement as late as the
March 1987 request to discharge an employee named Rogers,
less than 4 months before. Such a request constitutes an
independent violation of the Act. Elevator Constructors
(Long Elevator), 289 NLRB 1095 (1988).
It follows from the above that I should, as I hereby do,
find that by initiating grievances against an employer which
had effectively repudiated its collective-bargaining relation-
ship with the Respondents, in an effort to enforce the union-
security provisions of an expired collective-bargaining agree-
ment, Respondents violated Section 8(b)(1)(A) and (2) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondents set forth above have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to in-
dustrial strife burdening and obstructing commerce.
V. THE REMEDY
Having found that Respondents have engaged in, and are
engaging in, unfair labor practices in violation of Section
8(b)(1)(A) and (2) of the Act, I shall order them to cease and
desist therefrom, and to take certain affirmative actions de-
signed to effectuate the policies of the Act.
On the basis of the foregoing findings of facts and on the
entire record in this case, I reach the following
CONCLUSIONS OF LAW
1. The Employer, Marina Concrete Company, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent Local and Respondent District Council are
labor organizations within the meaning of Section 2(5) of the
Act.
3. Inasmuch as Respondents initiated proceedings based on
the union-security provisions of an expired collective-bar-
gaining agreement and against an employer which had effec-
tively reputiated its collective-bargaining relationship with
them, Respondents have engaged in and are engaging in un-
fair labor practices within the meaning of Section 8(b)(1)(A)
and (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
On these findings of fact and conclusions8 of law and on
the entire record, I issue the following recommended9
ORDER
The Respondents, District Council of Plasterers and Ce-
ment Masons of Northern California, and Cement Masons
Local 337, both affiliated with Operative Plasterers and Ce-
ment Masons International Association, their officers, agents,
and representatives, shall
1. Cease and desist from initiating or prosecuting griev-
ances against employers, including the Employer, based on
the union-security provisions of an expired collective-bar-
gaining agreement, or against employers, including the Em-
ployer, which have effectively repudiated their collective-bar-
gaining relationship with the Respondents.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Cancel all such outstanding grievance procedures
against the Employer.
(b) Reimburse the Employer and/or Granite Construction
Company for any moneyes which have been collected, if
any, pursuant to the grievances filed by Respondents.
(c) Subject to the interim records preservation require-
ments set forth above in item (b), permanently remove from
its union files and records all references to grievances filed
against the Employer and/or Granite Construction Company,
based on the employment by either employer of employees
Ron Bell and/or James Dennis Rogers.
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(d) Immediately notify the employees, Ron Bell and James
Dennis Rogers, that any disciplinary proceedings, grievances
filed or actions taken employers based on their employment
of Ron Bell and/or James Dennis Rogers, as set forth above,
are of no force and effect, and that internal union files and
records will be purged of any references to such proceedings
or actions as soon as permission is obtained from the Re-
gional Director for Region 32.
(e) Post at its facility copies of the attached notice marked
‘‘Appendix.’’10 Copies of the notice, on forms provided by
the Regional Director for Region 32, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
(g) Return any fines, with interest, to the Employer and/or
its Construction Company collected from either of them pur-
suant to any such grievance proceedings.
(h) Notify, in writing, Marina Concrete Company and
Granite Construction Company that Respondents have no ob-
jection to employees Ron Bell and/or James Dennis Rogers
working for it/them.