Broward County Carpenters' District Council

1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Broward County Carpenters' District Council and Local Unions Nos. 1394, 1947, 3206, and 1766, United Brotherhood of Car- penters and Joiners of America, AFL-CIO and Broward Builders' Exchange , Inc. Case No. 12-CB-143. January 20, 1959 DECISION AND ORDER On July 18, 1958, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that some of the Respondents' had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Charging Party filed exceptions to the Intermediate Report and supporting briefs. The Respondents filed reply briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire rec- ord in this case,' and hereby adopts the findings, conclusions, and recommendations of the 'T'rial Exaniiner, with the following addi- tions and modifications.' Contrary to the contention of the General Counsel and the Charg- ing Party, we find, in agreement with the Trial Examiner, that, in view of the particular facts, as found herein, the policies of the Act would not be effectuated by ordering the Respondents to cease and desist from maintaining and enforcing any contracts that they allegedly have entered into with individual members of the Broward Builders' Exchange, Inc. However, unlike the Trial Examiner, we do not rely upon the decision in West Virginia Pulp t Paper Co., 118 NLRB 220. We also agree with the Trial Examiner that it is unnecessary to, and eve do not, pass upon the question whether the Respondents are responsible for, and have violated the Act by, the picketing herein. However, we do not agree with the Trial Examiner that Section 1 We agree with the Trial Examiner that only Local No. 1394 and its agent, Broward County Carpenters ' District Council, violated the Act herein . We shall dismiss the complaint as to the other Respondents. 2 The requests by the Respondents and the Broward Builders ' Exchange for oral argu- ment are hereby denied , as the record and the briefs , in our opinion, adequately reflect the issues and positions of the parties. 3 The Trial Examiner erroneously found that the Respondents did not give any notice .to the Federal Mediation and Conciliation Service. However, as both the Federal and State agencies were given untimely notices, this does not affect the findings and con- clusions herein . We hereby correct the record to show that the Federal Mediation and Conciliation Service received untimely notice. 122 NLRB No. 124. BROWARD COUNTY CARPENTERS' DISTRICT COUNCIL, ETC. 1009 8(d) does not prohibit picketing and that therefore the Board is not empowered to prohibit such conduct. Accordingly, we shall order the Respondents to cease and desist from inducing to strike, by means of picketing' or otherwise, the employees of members of the Builders Exchange falling within Local No. 1394's jurisdiction, without first complying with Section 8(d) of the Act' ORDER Upon the basis of the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondents, Local Union No. 1394, United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO, and its agent, Broward County Carpenters' District Council, and their officers, representa- tives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Broward Builders' Ex- change, Inc., for and in behalf of Wells-Fisher, Inc., Caldwell-Scott Engineering Construction, Inc., Collins Construction Corporation, Richardson Construction Company, Peal Construction Company, Atlantic Construction & Engineering, Inc., and any other contractor represented by the Exchange, by failing to notify the Federal Medi- ation and Conciliation Service and the appropriate State agency of the existence of a dispute within the meaning of Section 8(d) (3) of the Act, within 30 days after service of written notice upon the Exchange pursuant to Section 8(d) (1) of the Act, for and on be- half of the above-named Employers, or any other contractor repre- sented by the Exchange, of proposed termination or modification of an existing collective-bargaining contract; provided, however, that no such notice under Section 8(d) (3) shall be required if an agree- ment is reached within 30 days following service of a notice of proposed termination or modification. (b) Engaging in a strike, or inducing, by means of picketing or otherwise, or instructing, the employees of the above-named Em- ployers, or of any other contractor represented by the Exchange, to We include picketing in our order as it is often a form of inducement to strike, and the Board 's power to 'forbid a particular kind of strike necessarily includes the authority to forbid any inducement , whether by picketing or otherwise , to engage in such a strike. 5 The General Counsel requests the Board to "clarify" the meaning of the cease and desist order herein by indicating whether the Respondents must give another 60 days' notice to the Builders ' Exchange ( as well as timely notices to the Federal and State mediation services) before the Respondents may lawfully engage in a strike under Sec- tion 8 (d) of the Act. As,our cease and desist order in effect requires that the Respond- 'ents, pursuant to Section 8(d) (3), give notice to the Federal and State mediation services within 30 days after appropriate notice to the Exchange , it necessarily follows that a new 60 days' notice would have to be served upon the Exchange in order that the Federal and State services may receive notice within the prescribed 30-day period. 505395-59-vol. 122-65 1010 - DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD engage 'in a. strike, for the purpose' of modifying or terminating a collective-bargaining contract, without first having complied with the requirements of Section 8(d) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at the business offices of Local. Union No. 1394, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and of Broward ~County Carpenters' District Council, copies of the notice attached hereto marked "Appendix." s Copies of said notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by official. representatives of Re- spondents, Local 1394 and the Council, be posted by the said Re- spondents immediately upon receipt thereof and be maintained by them for a period of sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to members of the Respondent Unions are customarily posted. Reasonable steps shall be taken by the said Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the said Regional Director duly signed copies of the notice attached hereto for posting by the Exchange and . also contractors who are members of the Exchange, they being willing, for sixty (60) consecutive days, at places where notices to the employees of said Employers are customarily posted. IT Is FURTHER ORDERED that the complaint be dismissed insofar as it alleges that Respondent Locals Nos. 1947, 3206, and 1766 en- gaged in any unfair labor practices herein, and that Respondents Local No. 1394 and its agent, District Council, engaged in unfair labor practices because of the picketing of certain construction projects herein. e In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and, Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enfo'r`cing an order." APPENDIX NOTICE TO MEMBERS AND ALL EMPLOYEES OF MEMBERS OF THE BROWARD BUILDERS' EXCHANGE, INC. Pursuant to a Decision and Order of the National Labor Rela- tions Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby give notice that : WE WILL NOT refuse to bargain collectively with Broward Builders' Exchange, Inc., for and in. behalf of Wells-Fisher, Inc., Caldwell-Scott Engineering Construction, Inc., Collins Construction Corporation, Richardson Construction Company, Peal Construction Company, Atlantic Construction & Engineer- BROWARD COUNTY CARPENTERS'. DISTRICT. COUNCIL, ETC. 1011 ing, Inc., and any other contractor represented by the Exchange, by failing to notify the Federal Mediation and Conciliation SerVice and the- appropriate' State' agency of the existence' of 'a dispute within the meaning of Section 8(d) (3) of the Act, within 30 days after service of written notice upon the Ex- change pursuant to Section 8(d) (1) of the Act, for and on behalf of the above-named Employers, or of any other con- tractor represented by the Exchange, of proposed termination or, modification of, an _ existing„ collective-bargaining contract; provided, however, that no such notice under Section 8(d) (3) shall be required if an agreement is reached within 30 days following service of a notice of proposed termination or modifi- cation. WE WILL NOT engage in a strike, or induce by means of picket- ing or otherwise, or instruct, the employees of the above-named Employers, or of any other contractor represented by the Ex- change, to engage in a strike, for the purpose of modifying or te'rn ii ting a collective-bargaining contract, without first hav- ing complied with the requirements of Section 8(d) of the Act. LOCAL UNION No. 1394, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) BROWARD COUNTY CARPENTERS' DISTRICT COUNCIL, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Broward Builders' Exchange, Inc., herein called the Ex- change, the General Counsel of the National Labor Relations Board, by the Regional Director for the Twelfth Region (Tampa, Florida), issued a complaint, dated May 12, 1958, against Broward County Carpenters' District Council and Local Unions No. 1394, 1947, 3206, and 1766, United Brotherhood of Car- penters and Joiners of America, herein collectively called the Respondents and separately called the Council, Local 1394, Local 1947, Local 3206, and Local 1766, respectively. In addition to the commerce allegations, the complaint alleges, in substance, that: (1) The Exchange is and has been the duly authorized collec- tive-bargaining representative of its member contractors; (2) all journeymen and apprentice carpenter employees employed by contractors represented by the Ex- change constitute an appropriate unit for collective-bargaining purposes, and that Respondents have been and are the exclusive representatives of the employees in said unit; (3) the Exchange and Local 1394 negotiated a contract , dated April 1, 1955, and effective to March 31, 1958, and said contract was accepted and adopted by.Locals 1947, 3206, and 1766; (4) the Council, composed of the four Respond- ent Locals, took over the administration and renegotiation of said contract of its 1012 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'affiliated locals; (5) pursuant to article XI of said contract, the Council, on Jan- ,uary 6, 1958, notified the Exchange of the termination of said agreement and of its willingness to meet with a committee of the Exchange; (6) since April 2, 1958, members of Respondents have engaged in a strike, called by Respondents, against contractors represented by the Exchange, and Respondents have picketed construction projects of some of said contractors; (7) Respondents have not notified the Federal Mediation and Conciliation Service nor the Florida Mediation and Conciliation Service of the existence of a dispute, after the notice of January 6, 1958, addressed to the Exchange; (8) by failing to give said notice the Respondents have not complied with the requirements of Section 8(d)(3) of the Act and have 'thereby refused to bargain collectively in good faith with the Exchange; and (9) by the foregoing conduct, the Respondents have engaged in and are engaging in un- fair labor practices within the meaning of Section 8(b)(3) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. In their duly filed answer, the Respondents have put the General Counsel to his proof on the commerce allegations; admit the appropriateness of the alleged unit, the Respondents' exclusive representative status in said unit, the Council's notice to the Exchange concerning the termination of the current agreement with Local 1394 and the Council's willingness to meet with a committee of the Ex- change, and that the Council attempted to negotiate a contract with the Exchange; and deny all other material allegations. The Respondents' answer further avers that: (1) The Council did not refuse to negotiate with the Exchange; (2) it is the Exchange which has refused and continues to refuse to negotiate with the Council; (3) the Exchange may not raise the procedural defect of failing to file timely notices because the Exchange comes to these proceedings with unclean hands; (4) no members of Respondents are participating in an economic strike against any of their employers; and (5) no picket line has been established or maintained by any act or authority of the Respondents or their officers and agents. Pursuant to due notice, a hearing was held May 26-28, 1958, inclusive, at Fort Lauderdale, Florida. All parties were represented at the hearing, afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to present oral argument, and thereafter to file briefs as well as proposed findings of fact and conclusions of law. The Respondents' motion to dismiss the complaint, made at the conclusion of the hearing and upon which I reserved ruling, is granted in part and denied in part, in accordance -with the findings of fact and conclusions of law made below. Subsequent to the hearing, the General Counsel and counsel for the Respondents filed briefs, which I have fully considered. Upon the entire record' in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT - 1. COMMERCE: ASSERTION OF THE BOARD'S JURISDICTION Broward Builders' Exchange, Inc., herein called the Exchange, a nonprofit cor- poration with its principal office and place of business at Fort Lauderdale, Florida, is an association of employers. Since 1950 the Exchange has been the bargaining representative, and has negotiated and executed a single collective-bargaining agree- ment with Respondent Local 1394, for all contractor members who employed car- penters within the territorial jurisdiction of Local 1394. In 1958, the Exchange engaged in negotiations for a single collective-bargaining agreement with Respond- ent Council for all contractor members who employ carpenters in Broward County, Florida. By this action, the Exchange and its contractor members have constituted themselves a single employer within the meaning of the Act. Insulation Contrac- tors of Southern California, Inc., 110 NLRB 638, 639. Under these circumstances, 11 hereby note and correct the following obvious 'typographical errors in the type- written transcript of the testimony : On page 7, line 5, "cite" is corrected to read "strike" ; On page 9, line 1, "inclusively" is corrected to read "exclusively" On page 11. line 12, "union" Is corrected to read "unit" ; On page 297, line 10, "`contract" is corrected to read "conflict" ; On page 335, line 9, "free" is corrected to read "three" ; On page 347, line 25, "counsel" is corrected to read "Council"; On page 348, line 2, "contract" is corrected to read "contractors" ; On page 353, line 19, "contracts" is corrected to read "contractors" ; ,On page 371, line 2, "we are .prejudiced herein" is corrected to read "without preju- dice to." BROWARD. COUNTY CARPENTERS' DISTRICT COUNCIL, ETC. 1013 it is the Board's practice to. assert jurisdiction over such an employer association if the Board's jurisdictional standards are met by the operations'of any one of the contractor members of the Exchange or by' the totality of the operations of its contractor members. Ibid. Wells-Fisher, Inc., a general building contractor located in Fort Lauderdale, Florida, has been a member of the Exchange since about 1952. Pursuant to a contract with the Florida State Turnpike Authority, Wells-Fisher, Inc:, performed building services in the construction and completion of the Florida State Turnpike part of the State highway system in the amount of $166,758. As the work and payments under this contract were completed well within the calendar year pre- ceding the conduct herein involved, it may appropriately be considered for. juris- dictional purposes? I find that Wells-Fisher, Inc., is engaged in commerce within the meaning of the Act and that the services thus rendered are sufficient to satisfy one of the Board's standards for the assertion of jurisdiction. Madison County Construction Co., 115 NLRB 701. L. B. Posey Jr., Co., Inc., a general building contractor, herein called Posey, and a Georgia corporation with its home office located at East Point, Georgia, has been. represented by the Exchange for collective-bargaining purposes since April 1958. Posey performs services in the State of Georgia in substantial amounts and. as of April 30, 1958, was performing building services in the State of Florida, the un- finished value of which exceeded $600,000.3 I find that Posey is engaged in com- merce within the meaning of the Act and that the performance of the services in. the State of Florida by Posey, an out-of-State corporation, under the circumstances- above described, satisfies another of the Board's standards for the assertion of jurisdiction.4 Wilbur L. Kroetz, Inc., a Florida corporation engaged as a general building con- tractor and herein called Kroetz, has been a member of the Exchange for about 8 years. In 1957, Kroetz performed building. services in the State of Florida, in the value of $110,228, for Air Pax Florida, Inc., a Florida corporation which during 1957 shipped goods, valued in excess of $50,000, to points outside the State of Florida. I find that Kroetz is engaged in commerce within the meaning of the Act and that the services thus performed by Kroetz satisfy still another of the Board's standards for the assertion of jurisdiction. Jonesboro case, supra. In view of the foregoing, I find• that the assertion of jurisdiction over this pro- ceeding is in accord with the Board's well established practice.5 II. THE RESPONDENTS The Respondents are all located in Broward County, Florida. Local 1394 is located in Fort Lauderdale; Local 1947, in Hollywood; Local 3206, in Pompano Beach;. and Local 1766, which was formed in November 1957, is located in Boca Raton. Respondent Council was chartered in August 1955, and is comprised solely of the four above-named Respondent Locals. The complaint alleges, the answer admits, and I find, that the Respondents are labor organizations within. the meaning of the Act. HI. THE UNFAIR LABOR PRACTICES The principal issue in this case is whether the Respondents, or any of them, violated Section 8(b)(3) of the Act by striking without complying with the notice requirements of Section 8(d)(3). The subsidiary issues are (1) whether Sec- tion 8(d)(3) is applicable to any of the Respondents; (2) whether the record warrants a finding of noncompliance with the notice requirement of Section 8(d) 2 Aroostook Federation of Farmers, Inc., 114 NLRB 538, 539. 8 As the unfair labor practices hereinafter found are continuing unfair labor practices and as the negotiations between the Council and the Exchange continued beyond April 30, 1958, I find no merit in the Respondents' objection to this evidence on the ground that the Exchange was not authorized to represent Posey prior to that date. 4 Jonesboro Grain Drying Cooperative, 110 NLRB 481; The T. H. Rogers Lumber Company, 117 NLRB 1732, 1735. S The General Counsel sought to establish still another Board standard for the asser- tion of jurisdiction, that is, that the total Indirect inflow of a number of contractors who were members of the Exchange exceeded $1,000,000. However, as part of the evidence in support of this standard was hearsay and as there is no way of ascertaining the total dollar volume which is not based on hearsay testimony, I have not relied on this standard as a basis for the assertion of jurisdiction. 1014 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) of the Act; (3) whether any of the Respondents engaged in a strike; and (4) the nature of the recommended remedy in the event of a finding that the Act was violated in this respect. The parties concede that at all times material herein the Respondents have been, and are, the exclusive bargaining representative of the employees in the agreed unit of all journeymen and apprentice carpenter employees employed by con- tractors who are represented for purpose of collective bargaining by the Exchange. A. The contract and the termination clause As previously stated, Local 1394 is located in Fort Lauderdale, Florida. On April 1, 1955, the Exchange and Local 1394 executed a collective-bargaining agreement, covering the carpenters employed by contractor members of the Ex- change in the territory over which Local.1394 had jurisdiction. Article XI of the agreement provided that it "shall remain in force. until midnight March 31, 1958," and that it "may be modified, continued or terminated by written notice ' to the other party, setting forth such termination or proposed modification, at least sixty (60) days prior to April 1, 1958, with an offer to meet and confer with the party for the purpose of negotiating a new contract or a contract containing the proposed modifications." . The Council, which first came into existence in August 1955, thereafter ad- mittedly administered the contract for Local 1394. In April 1956, pursuant to a request from Local 1394 and the Council, the Exchange and Local 1394, through the Council, negotiated a modification of the 1955 agreement with respect to the apprentice wage program. B. The invocation of the clause and the ensuing negotiations On January 6, 1958, the Council sent the 'Exchange the following letter on stationery ,of the Council, which was signed by Frank Pierce; business representa- tive of the Council: March 31, 1958, marks the termination of the current agreement between the Broward County Carpenters' District Council and the General Contractors Division of the Broward Builders Exchange. Pursuant to and as outlined in Paragraph 2 of Article 11 of our current agreement, you may consider this our notice to you that we are ready to meet with your committee. The Council sent copies of this letter to all general contractors in Broward County. Thereafter, a negotiating committee representing the Council met with a nego- tiating committee representing the Exchange on February 11, 26, and March 24, to negotiate a contract covering carpenters employed within the territorial juris- diction of the Council by member contractors of the Exchange. The committee for the Council consisted of representatives of its four constituent locals. At the first meeting, the committee for the Exchange was informed that the Council represented the four Respondent Locals, each of which had different territorial jurisdiction within Broward County. Written contract. proposals and counterpro- posals were submitted by the Council and the Exchange and were discussed by the negotiating committees at these meetings . The Exchange and the Council were designated as the contracting parties in these proposals and counterproposals. Agreement was finally reached on all terms except wages. C. The strike and picketing On Tuesday, March 25, 1958, the Council sent the Exchange the following letter on stationery of the Council, which was signed by Business Representative Pierce: The Broward County Carpenters' District Council unanimously rejected your proposal for wage scale, last evening. In further action they voted unani- mously to recommend at the Local Unions, that the carpenters of Broward Council do not work without a contract. 'The formality of a referendum vote is being complied with immediately and official result will be reached by Saturday noon. By letter dated Saturday, March 29, 1958, on the Council's stationery, addressed to the Exchange and to all general contractors doing business in Broward County and signed by the Council's business representative, Frank Pierce, the Council reviewed the ' status of the negotiations between the ' Council and the Exchange, and advised that "the membership at large voted to instruct our negotiating com- BROWARD COUNTY CARPENTERS' DISTRICT -COUNCIL, ETC. 1015 mittee to advise the general contractors and their negotiating committee and the Broward Building Exchange that they would not work after April 1 , 1958, without an agreement." The letter further stated that copies of this communication were being sent to each general contractor , together with two copies of the proposed revised agreement, containing the wage scale requested by the Council . The letter closed with a request to "retain one copy [of the proposed agreement] for your files and execute and return the other copy to us for our files." The Exchange did not execute the enclosed agreement containing .the wage scale requested by the Council. As of April 1, 1958, the record shows that at least six contractor members 6 of ;thelrExchange had. building projects in progress in Fort Lauderdale , requiring work by carpenters . During the period from April 2 to 4, the carpenters em- ployed on these projects concertedly ceased work thereon and at no time there- after returned to seek work for these contractors . In addition , the projects of three of these contractors 7 have been picketed by nonemployees of these con- tractors during April and May, with signs stating that the picketing was "to protect my standards as a union carpenter." Upon the basis of the entire record considered as a whole, I find , contrary to the Respondents ' contention at the hearing, that the cessation of work by the carpenters employed by the above-named contractors constituted a strike within the meaning of Section 8(d)(4) of the Act . The projects affected by this strike, as above set forth , are all located within the territorial jurisdiction of Local 1394. However, the record shows that not only did Local 1394 vote for this action, but that the Council initially recommended that its constituent locals take this action. Moreover, section No . 4 of the Council's bylaws provides that the Council "shall call all strikes." Accordingly, I find that Local 1394 and the Council are jointly and severally liable for the strike which occurred at the projects of the above- named contractor members of the Exchange.8 Several meetings between the Council and the Exchange were held during the strike; the last one prior to the hearing in this case was on May 21. No agreement was reached and the strike was still in progress at the time of the instant hearing. D. The notices to the Federal and State services Frank Pierce, business representative of the Council, admitted that he signed the notice to the Florida Mediation Conciliation Service, dated May 13, 1958, which indicated that a dispute as to contract terms existed between the Council and the Exchange. He further testified that he did not know whether Local 1394 or the Council sent any other notices to the State or Federal mediation authorities prior to that date , although admitting that he was the best qualified person to know whether any such notices had been sent by the Council. He admitted that he himself did not send any such prior notices and that he had no knowledge of anyone else on behalf of the Council sending such notices prior to May 13, 1958. He testified that he had left instructions with his secretary to send the required notices to the -Federal and State mediation authorities, and that these instructions were given within 2 or 3 weeks of May 27, the day on which he was testifying. When questioned as to why he had left these instructions with his secretary, Pierce replied , "Well, I guess you can assume that better late than never." Counsel for Respondents stipulated that the Respondents do not have copies of any reports that were sent to the Federal Mediation and Conciliation Service. The charge in the instant proceeding, alleging that Respondents violated Sec- tion 8 (b)(3) and 8(d) of the Act by striking without giving the notices required by Section 8(d)(3), was filed on April 29, 1958. Copies of the charge were served upon the Respondents on April 30. As previously found, the Council has administered the contract for Local 1394 since the latter part of August 1955. By virtue of its bylaws, only the Council is authorized to negotiate contracts for its constituent locals, and the Council has the "legislative and executive powers on all matters relating to the common interest and welfare of the Local Unions and -6 Wells-Fisher, Inc. ; Caldwell-Scott Engineering and Construction , Inc. ; Collins Con- struction Corporation ; Richardson Construction Company ; Peal Construction Company ; and Atlantic Construction & Engineering, Inc. 7 Collins Construction Corporation ; Richardson Construction Company ; and Atlantic Construction & Engineering, Inc. 8In view of the remedy hereinafter recommended , I find it unnecessary to determine whether Local 1394 and /or the Council are also liable for the picketing of the projects mentioned in the text. 1,016 DECISIONS..OF' NATIONAL. LABOR. RELATIONS, BOARD - its members" in Broward County. The .1958. negotiations with the Exchange were conducted by the Council. And the notice to the State Mediation Conciliation Service, dated May 13, 1958, was signed and sent by the.Council. Upon the basis of the entire record considered as a whole, I am convinced and find that (1) no notices • to the Federal and State Mediation and Conciliation Services, as provided in Section 8(d)(3) of the Act, were sent prior to May 13,. 1958; either by the Council or Local. 1394, and- (2) no such notices were sent at: any time by Local 1394. E. Concluding findings The statutory duty to bargain collectively encompasses conformity with the: procedures of Section 8(d) of the Act. Under this section, no party to a collec- tive-bargaining contract "shall terminate or. modify. such contract, unless the party desiring such termination or modification" takes the following action: (1) serves a written notice upon the other party to the contract of the pro- posed termination or modification sixty days prior to the expiration date thereof, ...; (2) offers to meet and confer with the other party for the purpose of- negotiating a new contractor a contract containing the proposed modifications; (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of- the existence of a dispute, and simultaneously there- with notifies any State or Territorial agency established to mediate and con- ciliate disputes within the State or Territory where the dispute occurred,. provided no agreement has been reached by that time; and (4) continues in full force and effect, without resorting to strike or lock- out, all the terms and conditions of the existing contract for a period of sixty' days after such notice is given or until the expiration date of such contract,. whichever occurs later: The Board has had occasion to interpret these provisions in several decisions,. cited in the footnote.9 These decisions have established the following principles: The procedures prescribed in Section 8(d), hereinabove set forth, are superim- posed by operation of law as a condition to the calling- of a valid- strike to termi nate or modify a collective-bargaining agreement, regardless of what the agreement might itself provide. Item (3) requires that notification of the dispute be given to, the Federal and State mediation authorities within 30 days after service of the- 60-day notice. to the opposite party to the contract. Item (4) makes it unlawful' to strike without first complying with item (3). Failure to comply with item (3)' before striking renders such a strike unlawful from its inception. And. this is so even though the strike may begin after the expiration of the 60-day period of- item (1) and after the expiration date of the contract. We now turn to an application of these principles to the facts in this case.. On January 6, 1958, more than 60 days before March 31, the expiration date of- the contract, the Council notified the Exchange of the termination date of the- contract and of its readiness to meet for further negotiations. Thus, items (1) and (2) of Section 8(d) were fully satisfied. Item (3) required that the requisite' notices to the Federal and State mediation authorities be sent by February 5, 1958. There was, however, no compliance with this provision. The strike occurred during- the first week in April and the notices to the-Federal and State mediation au- thorities were not sent until May 13, 1958. Thus, under item (4), the strike,. which was still in progress at the time of the hearing, was unlawful from im inception, unless there be merit to Respondents' defenses. The Respondents contend in their brief that (1) except for Local 1394, none of the Respondents were parties to the contract within the meaning of Section 8(d) and therefore were not required to comply with its provisions, and- (2) while- Local 1394 was a party to. the contract, it did nothing wrong because it did not, in terms of Section 8(d), "desire such termination or modification" of the old agreement, being "content to let the old contract die a natural death." As to Respondents Local 1394 and the Council: Local 1394 is the only Respond- ent signatory to the contract. in question... However, there is no doubt but what the Council was acting as the agent of Local 1394 in.desiring the termination of the old contract and the negotiations of'a new one. The Council admittedly ad- 9 Retail Clerks, etc. (J. C. Penney Company ), 109 NLRB .754 ; Local No.- 156, United Packhighouse Workers, etc. (Du Quoin Packing Company ), 117 NLRB 670-; United Mine Workers of America, etc. (West Virginia Pulp & Paper Co.), 118 NLRB 220; and Local Union 219, Retail Clerks, etc . ( Carroll House of Belleville, Inc., et al. ), 120 NLRB 272. BROWARD COUNTY CARPENTERS' DISTRICT COUNCIL, ETC. 1017 ministered the contract for Local 1394 since the latter part of 1955. In 1956, Local 1394, through the Council, negotiated a modification of the agreement with respect to the apprentice wage scale. On January 6, 1958, the Council invoked the termination clause of the agreement and notified the Exchange of its readiness to meet for further negotiations. In this notification, the Council referred to the "current agreement" as one between the Exchange and the Council. The Council was the only one empowered to engage in the 1958 negotiations and did so through a committee, consisting of representatives of its constituent locals, in- cluding Local 1394. It was the Council which sent the notice to the State Media- tion Conciliation Service, referring to a dispute between the Exchange and the Council arising out of the contract which had an expiration date of March 31, 1958. It was the Council which initially recommended strike action to its locals; Local 1394 voted to comply with this recommendation and engaged in strike action beginning in April 1958, before any notices were sent to the Federal and State mediation authorities. As previously found, both Local 1394 and the Council are responsible for this strike. Finally, section No. 4 of the Council's bylaws provides that the Council "shall have the legislative and executive powers on all matters relating to the common interest and welfare of the Local Unions and its members in this district. . . . It shall . . . make all working agreements with employers . . . call all strikes. . It is thus clear, and I find, that the Council's authority as agent for Local 1394 encompassed the duty of giving the 30-day statutory notice to the Federal and State agencies,1° and that both Local 1394 and the Council, as agent for Local 1394, were liable for participating in strike action before such notice was given." Accordingly, I find that by striking to effectuate a change in contract terms despite failure to notify the Federal and State mediation authorities within 30 days after service of their 60-day termination notice, as prescribed by Section 8(d), Respond- ent Local 1394 and its agent, Respondent Council, refused to bargain collectively in violation of Section 8(b)(3) of the Act.12 As to Respondents, Locals 1947, 3206, and 1766: It is the General Counsel's position that Locals 1947, 3206, and 1766, the remaining constituent members of the Council, are also liable for the failure to comply with the notice requirements of Section 8(d). Business Representative Pierce admitted that the Council had undertaken to apply the wage scale, established in the 1955-58 contract with Local 1394, to the entire geographical area of Broward County, and that it was the custom of contractors who employ union carpenters to adopt the prevailing wage scale. The General Counsel contends that under these circumstances, and in view of the fact that the Council was acting as the agent of all its locals in seeking to negotiate a new contract covering the entire geographical area of the county, all the locals for whom the Council was acting are liable for the failure to comply with Section 8(d). I do not agree. The mere fact that contractors who operated in territory over which Locals 1947, 3206, and 1766 had jurisdiction were willing to adopt and pay the pre- vailing wage rate for union carpenters , which was established in the contract executed by the Exchange and Local 1394, did not render Locals 1947, 3206, and 1766 parties to said contract, nor make them the agent of Local 1394, nor create a new contract which the Council was seeking to terminate on January 6, 1958, by invoking the termination clause of the 1955-58 contract between the Exchange and Local 1394. I am convinced and find that, under the circumstances disclosed by this record, Locals 1947, 3206, and 1766 were not obligated to comply with Section 8 (d). I will, accordingly, recommend that the complaint be dismissed -as to them. N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Local 1394 and Respondent Council, set forth in section III, above, occurring in connection with the operations of the contractor members of the Exchange described in section I, above, have a close, intimate, and substantial relation to .trade, traffic, and commerce among the several States 10 See, e.g., Local No. 156, United Packinghouse Workers, etc. (Du Quoin Packing Company), 117 -NLRB 670-672. "Compliance with Section 8(d) by either one would of course.redound.to the benefit of the other. 12Respondents' contention at the hearing that the complaint should be dismissed be- cause the Exchange allegedly failed to bargain in good faith is rejected because the record in this proceeding does not warrant a finding that the Exchange bargained In bad faith. 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY The unfair labor practices herein found consist of the failure to follow the procedures laid down in Section 8(d) as preliminary to valid strike action to change an existing contract. As in the cases cited in footnote 9, I will recom- mend that Respondent Local 1394 and its agent, Respondent Council, cease and desist from resorting to such strike action, where there has not been prior com- pliance with Section 8(d), and take the usual affirmative action in these cir- cumstances. The General Counsel has requested that the cease and desist order also be directed against the picketing which occurred at some of the projects. However, as picketing is not prohibited by Section 8(d), I do not believe that a cease and desist provision may validly be directed against such conduct. It is for that reason that I have found it unnecessary to determine whether the Council and/or Local 1394 are responsible for said picketing. The record shows that during the strike the Council has executed a number of contracts with individual contractors, containing the wage scale requested by the Council. As previously found, on March 29, 1958, copies of the Council's pro- posed contract were sent to every general contractor doing business in Broward County (about 500 in number), together with a copy of the communication, ad- dressed to the Exchange and to all such contractors, advising of the vote of the Locals not to work after April 1 without an agreement and requesting the recipient to execute and return a copy of the enclosed contract. These were the contracts which were executed by some of the contractors, individually, during the strike. The General Counsel seeks an order directing the Council to cease giving effect to these contracts because they were obtained without first satisfying the notice re- quirements of Section 8(d). The Respondents contend that such a remedy would be punitive and is not warranted on the state of record in this proceeding. The record does not show any other circumstances under which these contracts were executed, nor whether they were executed by contractors who were repre- sented by the Exchange for the purpose of collective bargaining. The Board has not included such a remedy in prior decisions, although aware that the parties in- volved had executed a contract during a strike called without compliance with Section 8(d).13 In fact, in the West Virginia Pulp & Paper Co. case, the Board specifically stated (footnote 1) that "we note in the briefs of the parties that the strike was terminated with the execution of a new contract on November 24, 1956 [after the issuance of the Intermediate Report]. This does not materially affect our conclusions and remedial order in the case." Under all the circumstances I find that the remedy sought by the General Counsel will not effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondents are labor organizations within the meaning of the Act..,. 2. The Respondents at all times material herein have been, and are, the ex- clusive collective-bargaining representative, within the meaning of Section 9(a) of the Act, of the employees in the- following appropriate unit: All journeymen and apprentice carpenter employees employed by contractors who are represented for purposes of collective bargaining by Broward Builders' Exchange, Inc., exclusive of all supervisors as defined in the Act. 3. By striking to effectuate a change in contract terms despite failure to notify the Federal and State mediation authorities within 30 days after service of their 60-day termination notice, as prescribed by Section 8(d) of the Act, Respondent Local 1394 and its agent, Respondent Council, violated their duty to bargain collectively within the meaning of Section 8(d)(3) of the Act, and thereby en- gaged in and are engaging in an unfair labor practice within the meaning of said section of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. xs United Mine Workers of America, etc. (West Virginia Pulp & Paper Co.), 118 NLRB 220; Local Union 219, Retail Clerks, etc. ( Carroll House of Belleville, Inc., at al.), 120 NLRB 272. ' BELCHER TOWING COMPANY 1019 5. Respondents Locals 1947, 3206, and 1766 have not engaged in any unfair labor practices; Respondent Local 1394 and its agent, Respondent Council, have not engaged in unfair labor practices as a result of the picketing of certain con- struction projects. [Recommendations omitted from publication.] Belcher Towing Company and Seafarers' International Union of North America, Atlantic & Gulf District, Harbor & Inland Waterways Division, AFL-CIO, Petitioner. Case No. 13-RC- 304. January 19, 1959 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Decision and Direction of Election' issued in the above case on August 20, 1958, an election by secret ballot was con- ducted on September 10 and 12, 1958, under the direction and su- pervision of the Regional Director for the Twelfth Region, among the employees in the appropriate unit. At the conclusion of the election, the parties were furnished a tally of ballots which showed that 18 ballots were cast, of which 8 were for, and 6 were against, the Petitioner, and 4 were challenged. The number of challenges was sufficient to affect the results of the election. On October 24, 1958, following an investigation, the Regional Director issued and duly served upon the parties his report on chal- lenged ballots, in which he recommended that all four challenges be sustained. The Employer timely filed exceptions to the Regional Director's recommendations. The Board has considered the Regional Director's report, the ex- ceptions, and the entire record in the case, and finds as follows : 1. Seifert and Lawson: The Regional Directors found that these voters were college students, that during the summers of 1956, 1957, and 1958, Seifert had been employed as a replacement for regular deckhands on vacation, that Lawson was so employed during the summer of 1958,' and that the Employer has promised to employ both in the summer of 1959. Relying on Brown-Forman Distillers Corporation, 118 NLRB 454,2 the Regional Director found them in- eligible to vote in the election. In its exceptions the Employer states that Lawson and Seifert have signed affidavits indicating their in- tention to accept future employment with the Employer and, in the case of Seifert, that he will probably continue to work for the Em- ployer after graduation if. there is opportunity for advancement. However, even accepting these affidavits as true statements of the. 1 Unpublished. n There, on facts strikingly similar to those in the instant case, the Board found in- eligible two teachers and a student. 122 NLRB No. 121.