Rock River Plumbing and Piping Contractors Association

National Labor Relations Board - Board Decisions

Jun 20, 1963

142 N.L.R.B. 1348 (N.L.R.B. 1963)

1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT offer, promise, or guarantee any of our employees higher wages
or benefits or any changes in terms or conditions of employment of any em-
ployee in order to influence the choice of a bargaining representative by any
employee, or the attitude of any employee toward any labor organization; or
increase wages or rates of pay of any of our employees for the purpose of so
influencing such choice or attitude.
WE WILL NOT in any other like or related manner interfere with, restrain, or
coerce employees in the exercise of their right to self-organization to form, join,
or assist any labor organization, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the said Act.
LAARS ENGINEERS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date of posting, and must
not be-altered, defaced, or covered by any other material.
Information regarding provisions of this notice and compliance with its terms may
be secured from the Regional Office of the National Labor Relations Board, 849
South Broadway, Los Angeles, California, 90014, Telephone No. Richmond 9-4711,
Extension 1031.
Rock River Plumbing and Piping Contractors Association and
Local Union No. 309, International Hod Carriers, Building
and Common Laborers Union of America, AFL-CIO
Davenport Association of Plumbing Contractors and Local
Union No. 309, International Hod Carriers , Building and
Common Laborers Union of America, AFL-CIO. Cases Nos.
13-CA-4965 and 13-CA-5008 (formerly 18-CA-1448). June 00,
1963
DECISION AND ORDER
On February 11, 1963, Trial Examiner Horace A. Ruck-el issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel, Respondents, and the Charging
Party filed exceptions to the Intermediate Report and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
142 NLRB No. 147.
ROCK RIVER PLUMBING & PIPING CONTRACTORS ASSN. 1349
member panel [ Chairman McCulloch and Members Rodgers and
l+ anning].
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 Inter-
mediate Report , the exceptions and briefs , and the entire record in
these cases , and hereby adopts the Trial Examiner 's findings, con-
clusions , and recommendations.'
[The Board dismissed the complaint.]
1 We adopt the Trial Examiner's disposition of these cases In doing so, we rely on the
facts that, during negotiations with the Union for a new contract, Respondents, with the
acquiescence of the Union, decided to be bound by any agreement which came out of
negotiations between Quad-City Builders and the Union. The Qua&City contract was
executed in July 1961 and covered a unit of building and construction laborers, which
concededly included plumbing laborers, and which constituted an appropriate unit. Until
the present dispute arose some 10 months later, the Union enforced its provisions against
Respondents with respect to this contractual unit, and Respondents complied with them.
Only when the present controversy developed did the Union suggest that a unit limited
to plumbing laborers was appropriate, and insist that Respondents bargain separately for
such a unit As the parties had agreed to be bound Eby the more comprehensive Quad-City
unit which included plumbing laborers and which was appropriate, and as the terms of
the Quad-City contract were applied to such a comprehensive unit of Respondents' em-
ployees, we find that Respondents did not violate Section 8(a) (5). by subsequently refus-
ing to bargain for a different unit of employees (i e., plumbing laborers) even though
such a unit might also be appropriate.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed on June 22, 1962, in Case No. 13-CA-4965 and on June 25,
1962, in Case No. 18-CA-1448 (New Case No. 13-CA-5008), by International
Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, the
Regional Director for the Thirteenth Region of the National Labor Relations Board,
herein called the Board, on August 10, 1962, issued his complaint against Rock
River Plumbing and Piping Contractors Association, herein called Respondent Rock
River or Rock River, and Davenport Association of Plumbing Contractors, herein
called Respondent Davenport or Davenport. The complaint, as amended at the
hearing, alleges that Respondents have committed unfair labor practices in viola-
tion of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended
(29 U.S.C. Sec. 151, et seq.), herein called the Act, by failing and refusing since
December 28, 1961, to bargain collectively with Local 309 of the Charging Union,
herein called Local 309, as the bargaining representative of the employees of Re-
spondents' members in an appropriate unit. Respondents' answers deny the com-
mission of unfair labor practices.
Pursuant to notice, Trial Examiner Horace A. Ruckel conducted a hearing at
Rock Island, Illinois, on various dates from October 1 to 10, 1962, at which all
parties were represented by counsel. The General Counsel and Respondents have
filed briefs i
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
1 Subsequent to the hearing Respondents filed their motion to correct record in numerous
respects , and the General Counsel filed a similar motion in which he joined in Respondents'
motion with some exceptions, and moved that certain additional corrections be made.
Still later Respondents filed a supplemental motion to correct record, and opposed certain
corrections requested by the General Counsel Respondents' motion to correct record is
granted with the exception of those instances in which the General Counsel opposes it, in
which instances it is denied. The General Counsel's motion to correct the record is
granted with the exception of those instances in which Respondents oppose it, in which
instances it is denied . Respondents ' supplemental motion to correct record is granted in
.all instances.
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Rock River is a nonprofit Illinois corporation, formed in 1959, with its place of
business at Rock Island, Illinois, and having as its members plumbing contractors who
perform plumbing and related services in the Rock Island, Illinois, area, on the east
side of the Mississippi River. During the year prior to the issuance of the com-
plaint, the members of Rock River purchased and delivered to their places of
business plumbing supplies and other materials valued in excess of $50,000, of
which goods and materials in excess of $50,000 were transported to said places of
business from other enterprises located in Illinois, which in turn received them di-
rectly from States of the United States other than the State of Illinois.
Davenport is a nonprofit Iowa corporation with its place of business at Daven-
port, Iowa, and having as its members plumbing contractors who perform plumb-
ing and related services in the Davenport, Iowa, area, on the west side of the
Mississippi River. During the year preceding the issuance of the complaint the
members of Davenport purchased and delivered to their places of business plumbing
supplies and other materials valued in excess of $50,000, of which supplies and
materials in excess of $50,000 were transported and delivered to their places of
business from enterprises located in Iowa, which in turn received them directly from
States of the United States other than the State of Iowa.
The complaint alleges, Respondents' answers admit, and I find that Rock River
and Davenport are engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 309 , International Hod Carriers , Building and Common
Laborers Union of America , AFL-CIO, is a labor organization within the mean-
ing of Section 2 ( 5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Local 309 has approximately 1,150 to 1,300 members, all of whom are laborers.
Of this number about 45 are presently employed by plumbing contractors who
are members of Respondent associations. By far the greater number of the
laborers are employed by other employers; from 400 to 600 by general contractors,
including home builders; from 300 to 400 by highway and heavy industrial con-
tractors; and the remainder by miscellaneous employers.
Quad-City Builders Association, herein called Quad-City, is an association of
persons engaged in the building and supply industry in Rock Island and Mercer
County, in Illinois , and in Scott County, Iowa. Four or five plumbing contractors,
members of one Respondent or the other, are also members of Quad-City. In
1952, 1953, 1954, 1956, and 1958, Local 309 negotiated contracts with Quad-City
for its employer-members. During this period there was in existence Rock Island
Plumbers Association (formerly known as Rock Island Master Plumbers Associa-
tion), composed of plumbing contractors located in Rock Island , and Davenport
Master Plumbers Association, composed of plumbing contractors located in Scott
County. Local 309 executed a contract with the Rock Island Association in 1952,
but none in 1953, 1954, 1956, or 1958. In 1952 and 1956, Local 309 executed
contracts with the Davenport Master Plumbers Association. None was executed in
1953, 1954, or 1958. In the remainder of these years, contracts were executed
with certain individual plumbing contractors. In 1958, for example, of the ap-
proximate 34 plumbing contractors named in the complaint as association members,
contracts were entered into with 6 in Illinois (Kerbon, Newmann, Cone, Mechanical,
Brady, and McKay) and 1 in Iowa (Ryan). Of these, only McKay was a member
of the Rock Island Association.
From the testimony of Monte Bisby, business agent for Local 309 prior to
1958, it would appear that whatever was negotiated with Quad-City was more or
less automatically enforced against the individual plumbing contractors. Shortly
before a contract expired Bisby would write the association secretaries and the indi-
vidual plumbing contractors requesting a meeting to discuss a new agreement. He
testified as follows as to the course then followed:
Q. And, then, after that you would do nothing further, except that you
would then bargain with the Quad-City Builders?
A. If I didn't get an answer from that letter.
ROCK RIVER PLUMBING & PIPING CONTRACTORS ASSN. 1351
Q. You said you never got an answer, did you?
A. No, I never got an answer at that time.
Q. Then, you would bargain with the Quad-City Builders?
A. Yes.
Q. And then after you finished bargaining with the Quad-City Builders, you
would send to each secretary, through these years, a letter of which General
Counsel's Exhibit No. 2 is typical, saying, inclosed please find two copies for
your signature?
A. That is right.
Such a letter was sent to each individual plumbing contractor in each association,
along with the unsigned contract. Such contracts as were signed were returned
to Local 309 over a period of time, sometimes 6 or 7 months. In some instances
no signed contract was returned by individual contractors.
Respondent Rock River was organized in January 1959 at the instigation of the
Illinois Association of Plumbing Contractors, whereupon Rock Island lapsed into
more or less the status of a social organization . The complaint does not allege
that Respondent Davenport is a successor of the Davenport Master Plumbers Asso-
ciation. It does allege that Rock River is a successor of Rock Island Plumbers
Association. Of the 20 plumbing contractors named in the complaint as members
of Respondent Rock River, 8 of them had been and still are members of Rock Island.
B. Events constituting the alleged failure to bargain ; the immediate background
In November 1959 , Floyd Atkinson was employed as executive secretary of Rock
River , and in January 1961 , Leo Ruppert was similarly employed by Davenport.
The complaint alleges that in December 1961 , and continuing to date , and more
particularly about May 10, 16 , and 28 and June 7 , 8, and 18 , 1962 , Local 309
requested and Respondents refused to bargain with it as the representative of the
laborers employed by their members.
The 1958 contract was due to expire on April 30 , 1961 . On February 14, Local
309 wrote both Respondents as follows:
In the past the Master Plumbers have negotiated with one Union on the same
basis as the Quad -City Builders Association . Will you please advise us if you
wish to negotiate with us separately?
This letter was discussed at the February meeting of Rock River . Atkinson and
James Brady, president of the association , were authorized on behalf of its mem-
bers to take any necessary steps with regard to Quad-City. On March 1 , Atkinson,
Brady, and Ruppert met at Pronger's Restaurant with representatives of Quad-City,
including Dean Fry, chairman of its negotiating committee , and Leo Wendland, its
executive secretary . Atkinson 's testimony on the point is as follows:
We liked the way they handled things, and agreed to let them , designated
them as our bargaining agent to draw up our contract-draw up a contract
that would be our contract , and we discussed their role in that meeting, the
fact that we wanted one contract only ; that the contract-the Quad-City
Builders would draw a contract that would be our contract.
Atkinson 's testimony was supported by that of Fry, and to some extent by Wend-
land's minutes of the meeting.
On March 1 , Ruppert, on behalf of Davenport, wrote Local 309 advising it that
Davenport had "decided to negotiate with the Union on the same basis as the
Quad-City Builders Association ." About the middle of March , Atkinson and
George Day, Bisby's successor as business agent, met at the office of Local 309,
Atkinson testified that he told Day:
. . . we had designated the Quad -City Builders as our collective bargaining
agent , and when they drew up a contract it would be our contract and it would
be one contract , and Mr. Day agreed.
Atkinson further testified that this contract would be "a complete contract,"
and that Day agreed that he could not see any sense in a separate contract , because
the plumber laborers were "too small a group to try to negotiate a separate con-
tract," and that a separate contract would put Respondents "over a barrel" and he
could strike them for a year , which would not hurt Local 309 because they could
put the plumber laborers on other jobs . I credit Atkinson 's testimony.
Day, on redirect examination , testified that he thought:
I told Mr . Atkinson that in the past year we had dealt with these plumbing
contractors secretaries . They notified them , they had always let the Quad-City
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Builders Association negotiate and they just adopted their changes into the
plumbing contracts.
The negotiating sessions between Local 309 and Quad-City began shortly there-
after. Fry testified , and I find, that at one of the early sessions he told Day that
Quad-City was bargaining not only for the contractors who were its members,
but also for certain nonmembers in the area , including the Plumbers Contractors,
Mason Contractors , and Home Builders, that the discussion envisioned one con-
tract covering these employers, and that Day said that Local 309 was bargaining
for laborers employed by these groups.
Day testified that he was representing not only laborers employed by general
contractors and all other members of Quad-City, but also laborers employed by
the Mason Association , by electrical companies , and by home builders , and that all
these groups were covered by the Quad-City contract and had "lived" by it even
though they had not signed it. Day denied while testifying that he represented
the plumber laborers at these negotiations . There was , however, a former plumb-
ing laborer on Local 309's negotiating committee , and Day testified that plumb-
ing laborers considered and discussed the Quad-City contract proposals and voted with
the rest of Local 309's membership on all contract matters.
Negotiations between Local 309 and Quad-City reached an impasse and on
May 24 the Union called a strike against Quad-City and its members, including its
four or five plumbing contractor members and those plumbing contractors who
were not members, as well as against the Highway and Heavy Contractors, a group
with whom Local 309 was also negotiating. At the outset of the strike Local 309
proffered an interim agreement whereby a plumbing contractor , if he was not a
member of Quad-City, could do certain work if he agreed to "pay retroactive pay in
the amount negotiated , from the 24th day of May 1961, until the agreements are
consummated with the local bargaining employee units ." Four plumbing con-
tractors signed the interim agreement.
In June, Highway and Heavy Contractors signed a permanent agreement with
Local 309 and the strike against them ended. It continued against the general
building contractors as well as against the plumbing contractors with the excep-
tion of the four who signed the interim agreement . Local 309 also prepared
some 200 copies of a permanent form of agreement entitled Building Construction
Agreement dated July 7 to expire April 30, 1964. The copies were signed by
the Union and Day announced that they were available at the union office for
signature by any contractor who wanted to sign. Day specifically told Atkinson,
according to the latter 's credited testimony , that if he signed this contract his
member employees could go to work. The proffered July 7 agreement set forth
a bargaining unit identical with that described in the 3-year contract which was
a few days later finally arrived at with Quad-City, and which Respondents insist
is the appropriate unit 2 It was practically identical in all other respects.
C. The execution of the 1961 contract
On July 25, 1961, the strike ended and on the following day a 3-year contract
was executed , Quad-City signing "on behalf of its member contractors," thus
covering the four or five plumbing contractors who were members of Quad-City
and who are among those named in the complaint , and whose laborer employees
are in the appropriate unit claimed in the complaint . As has been stated, the
unit covered by this contract corresponded exactly with the unit set forth in,
Local 309's prepared contract offered Rock River and other contractors on July 7,
and was similar in all other important respects.
Upon the execution of this agreement, Wendland, secretary of Quad-City, and
on behalf of Quad-City, sent wage sheets to Respondents notifying them of the
new wage structure together with a bulletin notifying them of certain new working
conditions. These included a provision for a 48-hour notice to Local 309 of
new employees , an 8-cent hourly wage increase , and an 8-day union -shop clause,
in place of the previous 31-day clause.
2 The difference between this unit and that in the "plumbers agreement" later drawn
up by Day, which Respondents refused to negotiate, is that it covers "building and con-
struction laborers," whereas the "plumbers agreement" is confined to "plumbing laborers,"
the unit alleged in the complaint as appropriate . Also, the "plumbers agreement" in-
cludes pipelayers among the work categories covered, the proposed contract of July 7
did not This pipelayer or lateral pipe work provision was the subject of a jurisdictional
dispute between Local 309 and the Plumbers Union It is hereinafter more fully
discussed
ROCK RIVER PLUMBING & PIPING CONTRACTORS ASSN. 1353
Day testified that beginning with the execution of the Quad-City Local 309
contract he "enforced" its provisions against all the plumbing contractors, and
specifically that he discussed the new 8-day membership provision and the 8-cent
raise and other provisions with some individual plumber contractors, and obtained
compliance with them, and would have done so as to still other contract provisions
had there been any controversy.
In October 1961, about 3 months after the execution of the Quad-City contract,
Day met 'with Wendland and proposed that in printing the Quad-City contract a
separate contract be printed for the two plumbing associations. Day had with him
the 1958 agreement previously referred to, and signed by Local 309 and some,
but not all, the individual plumbing contractors, and not by Respondents. This is
referred to in the record as the "plumbers agreement " Day indicated the clauses
that were to be different from the recently signed Quad-City Builders' agreement.
Wendland, who had no authority to negotiate, talked to Atkinson about the proposed
separate agreement and Atkinson insisted that the plumber contractors already had
a contract with Local 309 (the Quad-City contract), by which they were bound,
and would have no part of any other agreement. Wendland conveyed this informa-
tion to Day by letter on October 30, stating that the plumber contractors had "as-
signed their bargaining rights" to Quad-City and would accept the contract which
Quad-City had negotiated, and that they could not add to the contract,3 which should
be printed without additional paragraphs.
As has been found, the terms of the Quad-City agreement and those proposed
by Day in his suggested "Plumbers' Agreement" were identical in almost all re-
spects, with the exception of the unit description and the category of pipe layer.
There has existed for many years a jurisdictional dispute between the Common
Laborers and the Plumbers as to who should do what the record refers to as
"lateral tile work," which is the laying of lateral sewer pipe from a main sewer
into a dwelling, or from inside a property line to a dwelling. The "Green Book,"
a plan for settling jurisdictional disputes, issued in January 1958 by the building
and Constructional Trades Department, AFL-CIO, assigned this work to the
Plumbers Union.
The Quad-City Local 309 agreement, as has been stated, makes no mention of
this work. But Day's proposed "Plumbers Agreement" includes it as work to be
done by plumbing laborers, and provides a wage for performing it 111/2 cents an
hour more than for other common labor. Atkinson's letter cited the Green Book
decision as an additional reason for opposing a separate plumbing laborers
agreement.
Day, nevertheless, went ahead with the printing of his separate plumbers agree-
ment in a booklet which included the Quad-City contract Quad-City had its
contract printed without the "plumbers" addition. On December 19, Day sent
Ruppert, for Davenport, two copses of his agreement with the request that he
sign one and return it to Local 309. Ruppert ignored the request. Day did not
send copies to Rock River.
, The next meeting between Local 309 and Quad-City, so far as the record reveals,
took place in April 1962. About this time, according to Day, Miller, business agent
for the Plumbers Union, began putting the "heat" on the employers with whom he
dealt, and Day decided to counter this by putting pressure on the general con-
tractors. Accordingly, he met with the Quad-City Builders (not the Respondents
or individual plumbing contractors), whom he described as "our group," to discuss
the matter He testified:
Q. By our group, who do you mean?
A Quad-City Builders.
Q You say you wanted to sit down with Quad-City Builders about this
lateral matter?
A. No, the fact we had problems with the plumbers, and he (Miller) was
going to issue ultimatums If he was going to issue the ultimatum matter
(sic] and get things done with his employers, we would like to sit down with
ours.
Q. That you would like to sit down with the Quad-City Builders9
A. That is correct. I also informed them we had sat down with the As-
sociated Contractors; and with the Plumbing Contractors, dealing with the
3Article XX provides: " . During the balance of the term of this agreement, the
contractor will not be requested to negotiate on any further matters, affecting these or
any other subjects not specifically set in this agreement."
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plumbers, and they were getting just a little owly with the plumbers, and we
wanted to get with the Builders.
Q. You wanted to sit down with the Builders and get with them?
A. 1 will tell you what, I injected the fact that they could go to their con-
tractors and inject things. I wanted to go to ours and have these people start
hiring plumbers 4 direct. That is what I said.
Failing to get an assurance from Quad-City that plumber laborers should get the
lateral pipework, Day decided to take the matter up with Respondents. On May 16,
he met with Atkinson, Wendland, and Miller to discuss the lateral pipe dispute.
Miller produced a copy of the Illinois plumbing law which provided that all piping
from a building to the sewer must be done by a registered plumber .5 After Miller
left, Day brought up the matter of the "plumbers contract," which he showed Atkin-
son. Atkinson told Day that this was the first time he had seen a copy of it. I
credit this statement, particularly since, as found above, Day admitted that when he
sent Davenport a copy for its signature he did not send one to Rock River.
Atkinson told Day that Rock River had a contract-the Quad-City Builders con-
tract-executed the previous July, which had been negotiated "fairly and squarely,"
and that Rock River was living up to it and did not intend to enter into any other
contract. He did offer to sign the Quad-City contract, but Day did not accept the
offer.
Following the May 16, 1962, meeting, and on the same day, Day sent notice to
the Federal Mediation and Conciliation Service and the Illinois and Iowa Depart-
ments of Labor, stating that contracts with Respondents had expired on April 30,
1961, that no agreements had been reached, and listing Wendland, secretary of
Quad-City, as the employer official to communicate with.
About June 1, another meeting was held in the office of Quad-City, attended by
Day, Atkinson, Ruppert, Wendland, Miller, and Beane, another representative of
Local 309. Day and Miller reiterated their claims to the lateral pipework and,
after Miller left, Day again brought up the matter of his proposed "plumbers"
contract giving the lateral work to Local 309. Atkinson again stated that his
organization already had an agreement (the Quad-City contract) and had been
living up to it.
On June 8, Day wrote Wendland again , requesting a meeting to negotiate the
"plumbers" agreement, and Wendland replied on June 15 stating that Respondents
were parties to the current agrement (the Quad-City agreement) and there was
nothing to negotiate. He added:
We of course will be happy to meet with you June 18, for the purpose of
discussing this matter-but not for the purpose of negotiating.
In the event that we can convince you that you are wrong, we assume that
you will withdraw your demand to negotiate . Also if you can convince us
that we are wrong, we will withdraw our refusal to negotiate on behalf of
the Plumbing Contractors.
At a meeting on June 18, the parties again stated their positions , Atkinson
repeating that his organization had a contract-the Quad-City contract-and Day
insisting that he was going to have a "plumbers " contract.
On June 25, Local 309 filed the charges in this case.
Conclusions
The complaint alleges that Respondents have refused to bargain with Local
309 since December 28, 1961, particularly on or about May 10, 16, and 28 and
June 1, 8, and 18 , 1962. The record does not reveal any specific event occurring
on the first two dates in connection with bargaining. The May 16 meeting at
the Quad-City office was arranged by Day for the primary purpose of claiming
the lateral pipework for the laborers as against the plumbers. Day told the
group that the plumbing contractors were obligated contractually to accord his
members this work. He also produced a booklet containing a copy of the Quad-
City agreement signed by Local 309 and Quad-City on July 26, 1961, 10 months
previously. Printed in the same booklet, in spite of Respondents ' previously
*Presumably he means plumber laborers.
s Subsequently an interpretive letter was received from the Illinois Department of
Registration and Education stating that "drain or waste pipes carrying domestic sewage
from the foundations walls of any building to the sewer service lateral . . . must be in-
stalled by a registered plumber"
ROCK RIVER PLUMBING & PIPING CONTRACTORS ASSN. 1355
expressed objections and their previous declarations that they had no intention
of signing any such agreement but were abiding by the Quad -City contract, was
Local 309's proposed "plumbers agreement ." This bore only the signatures of
Local 309 's representatives . The Quad-City contract made no reference to lateral
tile work , thus leaving to those contractors , including plumbing contractors, on
whose behalf Quad -City had bargained, freedom to award this work to whomever
they saw fit. The "plumbers agreement ," however, specifically gave this work to the
laborers.6 Otherwise there are no differences of importance between the terms of
the Quad-City contract and the "plumbers agreement."
Respondents contend , among other things, that since the Illinois law requires
plumbers to lay lateral pipe , it is not a bargainable issue , and cite Board cases. I do
not decide this point since my ultimate findings are based on other grounds.
The jurisdictional dispute which echoes throughout this record is illuminating,
however , when it is considered in connection with the fact that it was not until 10
months after the execution of the Quad -City contract that Day first presented Re-
spondents with a copy of the proposed "plumbers agreement ," and in connection
with other activities of Day vis-a-vis Quad -City which Respondents assert constituted
an acceptance of the Quad -City contract by Local 309 . It presents the question
whether Day did not in fact consider all laborers , including plumbing laborers,
covered by the Quad -City contract , and sought a contract with Respondents cover-
ing plumbing laborers as a separate unit only when , shortly before the May 16 meet-
ing and 10 months after the execution of the Quad -City contract , the Plumbers
Union (according to Day ) began to "put the heat" on the contractors as the result
of which Day decided to apply pressure himself.
The subsequent meetings between Day and representatives of Respondents later
in May and in June, the last of which occurred on June 18, resulted only in the
repeated demand by Day that Respondents negotiate a separate contract covering
plumber laborers and in the repeated refusal of Respondents to do so on the
grounds that they were bound by the Quad -City contract which they were observ-
ing and which Local 309 was enforcing.
The first steps toward the negotiation of a new contract took place on Feb-
ruary 14, 1961 , when Day wrote both Respondents that "in the past the Master
Plumbers have negotiated with our union on the same basis as the Quad-City
Builders Association . Will you please advise if you wish to negotiate with us
separately." Respondent Davenport replied on March 1 , stating that at a meet-
ing of the bargaining committee of Davenport it was decided "to negotiate with
the Union on the same basis as the Quad -City Builders Association ." I find the
phrase "on the same basis as the Quad-City Builders Association ," ambiguous.?
Day testified that he understood it to mean that Quad -City would reach agree-
ment on a contract and incorporate any changes in the 1958 contract into an
agreement with Respondents . Respondents , on the other hand, contend that
Quad-City was to negotiate a contract which would cover the laborers of Re-
spondents ' members, but that there was to be one contract covering all laborers
and that Day was so told at the beginning of the Quad -City negotiations.
Following this correspondence, Atkinson and Ruppert met with representa-
tives of Quad-City on March 1. Atkinson and Fry, chairman of Quad -City's
negotiating committee , both testified, and I find , that at this meeting Respondents
designated Quad -City to draw up a contract which would be Respondents' con-
tract-that there would be only one contract . The minutes of the meeting relate
°The record shows that in spite of the presence of this provision in prior contracts be-
tween Local 309 and individual plumbing contractors , as in 1958 , some plumbing con-
tractors assigned this work to the plumbers. Day himself testified that he did not en-
force this provision against some contractors , particularly the smaller ones.
It will be remembered that Rock River was not formed until 1959 and that neither
Atkinson , employed by Rock River in November of that year , or Ruppert , employed by
Davenport in January 1961 , were personally familiar with just how bargaining negotia-
tions had been conducted in the past Day became business agent for Local 309 in
early 1958 and as such had participated only in the negotiation of the 1958 -61 contract
The negotiations between the parties were further clouded, and the record is clouded,
by Day's use and Atkinson 's and Ruppert 's easy acceptance of cliches such as "on the
same basis ," without clear definition , by Day's preoccupation with the jurisdictional dis-
pute with the Plumbers Union and his shuttling back and forth from Quad -City to Re-
spondents in an attempt to get pipelayers work for his members from either group which
would give it to him, the proliferation of interim and permanent agreements (the one of
July 7, 1961 ) and the offering of them to any contractor who would sign them.
1356 . DECISION'S OF NATIONAL LABOR RELATIONS BOARD
that a reason was that it "would not be advisable for the Plumbers to have a
separate contract-and the Quad-City Builders Association is the recognized bargain-
ing unit." There followed Ruppert 's letter to Day, of the same date, above
referred to.
This information was also conveyed to Day at a meeting about March 15, when
as I have found , Atkinson told Day that Quad-City had been designated as Re-
spondents ' bargaining agent , and that there would be only one contract and it would
be Respondents ' contract. I do not credit Day's testimony on redirect examination
(he did not testify on the particular point on direct ) that Atkinson agreed to "let
the Quad-City Builders negotiate and they just adopt their changes into the plumb-
ing contracts ." I find that Atkinson said nothing about plumbing contracts. Day's
testimony otherwise constitutes an acknowledgement that he at least knew that
Quad-City was Respondents ' agent for purposes of negotiation.
I have found that at the negotiating sessions between Quad -City and Local 309,
Fry, chairman of Quad-City 's negotiating committee , told Day that his committee
was negotiating not only for the building contractors but for plumbing contractors,
mason contractors , and home builders , and that the discussion concerned one con-
tract only, not several contracts At the end of the strike , on July 25, 1961, par-
ticipated in by plumber laborers along with those employed by other contractors, the
3-year contract which is the bone of contention here, was signed By its terms it
included "laborers ," but did not, as the General Counsel points out, mention spe-
cifically laborers employed by plumbing contractors . Nor did it mention specifically
those employed by mason contractors , or any other employers But. as Respond-
ents point out, the contract was stated to be between Quad-City "on behalf of its
member contractors ," and hence included the four or five plumbing contractors,
named in the complaint , who were members of Quad-City . Respondents argue
that Local 309 could not have envisioned another contract with different provisions,
applying to these four or five contractors , and including a provision giving lateral
pipe laying to the laborers when the Quad-City contract left the assignment of this
work to the individual employer.
I find merit in Respondents ' contention that Day's admitted enforcement for at
least 10 months of the terms of the Quad -City contract against plumbing con-
tractors-terms which aside from the lateral pipe jurisdictional matter were virtually
identical with Day's later proposed "plumbers agreement"-indicates that Local 309
considered itself bound by the Quad -City contract . This indication is the stronger
because of Day's having drafted 200 copies of the July 7 form of permanent agree-
ment, the unit in which was "building and construction laborers ," making it avail-
able to all contractors , and telling Atkinson that if he signed the plumbing laborers
could go back to work. This unit was identical with that in the Quad-City con-
tract , and unlike that in Day 's "plumbing agreement" which covered plumbing
laborers only
I also find it significant that during the period when Local 309 asserts it anticipated
a separate plumbers agreement , Day, in April 1962 , in an attempt to insure lateral
pipework for his members , went not to Respondents ' representatives or to individual
plumbing contractors , but to Quad -City. Day did this, according to his testimony,
because he had heard that Miller, the agent of the Plumbers Union , was discussing
this work with "his" group , that is Respondents , or Respondents ' members, and
Day wanted to do the same with Quad-City , which he characterized as his own
group It was only upon his failing to get Quad-City to negotiate on this matter
that Day, on May 16, met with Atkinson , Wendland , and Miller to assert his claim
to the work , and presented Atkinson , for the first time , with a copy of his proposed
"plumbing laborers" agreement which gave the work to Local 309.
The General Counsel admits, in his brief , that Respondents could have designated
Quad-City as their bargaining agent to draw up and execute a complete agreement
on their behalf , but insists that they did not. I have found that they did. I have
also found that only in 1952 and 1956 was a plumbers agreement signed by Daven-
port Master Plumbers Association , and that only in 1952 was one signed by Rock
Island Plumbers Association .8 In the other recent years Local 309 had not ex-
8 The General Counsel contends , and Respondents deny , that Rock River is a successor
of Rock Island , and Davenport a successor of Davenport Master Plumbers I do not find
it necessary to decide this point Assuming without finding that Respondents were
"successors" of the other two associations , it by no means follows that they are bound
in perpetuity to follow the precise bargaining procedure employed by their predece,sors.
or to bargain directly with Local 309 instead of through an agent , so long as they bargain
in good faith when required to do so
ROCK RIVER PLUMBING & PIPING CONTRACTORS ASSN. 1357
ecuted a contract with either group. After negotiating to a contract with Quad-City,
Local 309 would, according to the testimony of Bisby, Day's predecessor, make
certain changes in the Quad-City agreement previously applicable to plumbing con-
tractors, and send copies to the plumbing associations "for their approval" and to
the individual members of the associations for signature .9 He testified that in the
years he so acted for Local 309 neither association ever notified him of their dis-
approval. Replies from individual contractors were similarly pro forma But, as
Bisby stated, many contractors. did not sign or return their copies. The General
Counsel, in his brief, describes this procedure as "hammering out" a plumbers
agreement, and "placing" the pertinent provisions of the Quad-City contract into
the "matrix" of the old plumbers agreement. This overstates the case. There was
almost no collective bargaining with the plumbing contractors associations, in any
real sense of the term. Any "hammering out" and placing of changes into the
"matrix" of a separate plumbers contract was done by Bisby unilaterally and in a
largely metaphorical sense. In 1961, the year with which we are principally con-
cerned, the real bargaining was done with Quad-City and it was the resulting con-
tract which Day testified he was enforcing from July 26, 1961, to at least May 16,
1962, when he presented the "plumbers agreement" to Respondents.
Concluding Findings
To sum up: Counsel for Respondents contends that Respondents negotiated
through their agent, Quad-City, a contract in which the agreed unit was "all build-
ing and construction laborers," which included plumbing laborers; that this con-
tract is binding upon them and Local 309; and that Respondents did not unlawfully
fail to bargain collectively when they refused to discuss a separate contract subse-
quently presented them by Local 309, covering plumbing laborers only. He further
urges that if the Quad-City contract executed on July 26, 1962, is faulty as a
written, binding contract, the conduct of Local 309 in enforcing it over a period of
10 months or more, and Rspondents' compliance with its terms, constitute an
assent to and adoption and ratification of it, citing cases.
The General Counsel maintains that there is no "complete" contract existing
between Respondents and Local 309, and that Respondents' refusal in May and
June 1962, to negotiate a complete contract incorporating the substantive provisions
of the Quad-City contract, but covering plumbing employees only and adding a
classification of pipelayer, was violative of Section 8(a)(5) of the Act.
I do not find it necessary to decide whether there was a contract between the
parties, express or implied, though the findings which I have made might suggest
the conclusion that there was. This case is not a suit on a contract nor a proceed-
ing in arbitration. I am only called upon to determine whether Respondent failed
to bargain in good faith with Local 309 in May and June 1962 The question here
concerns the unit appropriate for collective bargaining. Is it the unit set forth
in the complaint, which is identical with that set forth in Local 309's proposed
"plumbers agreement," or is it the unit set forth in the Quad-City contract of July 16,
19622 Respondents concede that, absent a contract describing a different appropri-
ate unit, a unit consisting of plumber laborers only might not be inappropriate, since
all the employees concerned are common laborers. But there is, they maintain,
such a contract, which described "all building and construction laborers" as the
unit If this contract is binding upon Respondents and Local 309, then that unit
is the appropriate unit, not the unit of plumber laborers only, as described in the
"plumbers agreement" and in the complaint.
But the precise question, as I view it, is not whether Respondents were covered
by the Quad-City contract applicable to all building and construction laborers, but
whether they in good faith believed that they were, and for this reason refused to
negotiate another agreement pertaining to plumbing laborers only This is in es-
sence a doubt as to the appropriateness of the unit, and if it was a good-faith
doubt which in May and June 1962 caused Respondents' refusal to negotiate a
8 Bisby's letter of December 17. 1952, to Davenport blaster Plumbers is typical of others
Enclosed you will please find two (2) copies of our 1952-1953 Amendment Agree-
ment for your signature--Will you please sign one copy and return the other for your
file?
as is the reply:
In reply to your letter of December 17, I am returning to you your copy of the
1952-1953 amending agreement.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different agreement, then the refusal was not a violation of Section 8(a)(5) of the
Act.10
There is a complete absence in this record of evidence that Respondents were
motivated by hostility to Local 309 as the bargaining agent for the employees of
their members , in any unit , and no independent acts of interference , restraint, or
coercion are alleged . Nor is there any evidence , aside from Day's unsupported as-
sertions , that Respondents were motivated by pressures put upon them to assign
lateral pipework to members of the Plumbers Union, rather than members of
Local 309.
I believe and find that it was a good-faith doubt as to the appropriate unit which
caused Respondents to refuse to bargain with Local 309 on the dates set forth in
the complaint , and that in so refusing to bargain in May and June 1962 , Respond-
ents did not violate Section 8 (a) (5) of the Act.
CONCLUSIONS OF LAW
1. Respondents Rock River Plumbing and Piping Contractors Association and
Davenport Association of Plumbing Contractors are engaged in commerce within
the meaning of the Act.
2. Local Union No. 309 , International Hod Carriers , Building and Common
Laborers Union of America , AFL-CIO, is a labor organization within the meaning
of the Act.
3. Respondents have not engaged in unfair labor practices within the meaning
of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact , conclusions of law, and the
entire record in the case , it is recommended that the complaint herein be dis-
missed.
10 It will be recalled that Wendland in his letter to Day of June 18, 1962 , in reply to
Day's letter of June 8, while refusing further to negotiate with Local 309, did offer to
discuss 'this matter" and to withdraw the refusal to negotiate if Day could convince
him that he was "wrong" In his view that the Quad -City contract covered the plumbing
contractors.
West Texas Equipment Company and International Union of
Operating Engineers , Local No. 191, AFL-CIO, Petitioner.
Case No. 16-BC-3250. June 20, 1963
DECISION ON REVIEW AND CERTIFICATION
OF RESULTS
Pursuant to a Decision and Direction of Election issued by the Re-
gional Director for the Sixteenth Region on December 18, 1962, an
election by secret ballot was conducted on January 15, 1963, under his
direction and supervision in an appropriate unit. Upon the conclu-
sion of the balloting, the parties were furnished with a tally of ballots
which showed that of approximately 30 eligible voters, 9 votes were
cast for, and 16 votes were cast against, the Petitioner and 5 ballots
were challenged. Thereafter the Petitioner filed timely objections to
conduct affecting the results of the election.
After an investigation, the Regional Director issued a Supplemental
Decision and Order on February 28, 1963, in which he found merit in
the Petitioner's objections and sustained them. He therefore directed
that the election heretofore conducted on January 15, 1963, be set aside
142 NLRB No. 140.