Westchester County Executive Committee, Etc.

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Westchester County Executive Committee Representing the Subordinate Unions Numbers 20, 22, 27, 48, 51, 55, 75 and 83, of the Bricklayers, Masons & Plasterers International Union of America, of Westchester and Putnam Counties and Builders Institute of Westchester and Putnam Counties, Inc. Case No. 2-CB-3460-5. April 19, 1963 DECISION AND ORDER On January 2, 1963, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 08(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. 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 affirined. The Board has considered the entire record in this case, including the Intermediate Report, the exceptions, and briefs, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions. The Trial Examiner found that Respondent had violated Section 8 (b) (3) and 8 (b) (1) (B) of the Act by threatening to strike, striking, and offering to call off its strikes against individual employer-members of Builders Institute of Westchester and Putnam Counties, Inc., referred to here as the Institute, in order to force them to withdraw from the Institute, their collective-bargaining representative, and to enter into individual contracts with Respondent although it was obli- gated to bargain for an association wide agreement with the Institute. In its exceptions and brief, Respondent renews the arguments rejected by the Trial Examiner, that there was an impasse in the negotiations between Respondent and the Institute as of the close of the bargaining session of May 2, 1962, and that it was privileged to bargain with, and seek agreement from, individual employer- members under such circumstances, without violating Section 8(b) (1) (B) and 8(b) (3). On the basis of the entire record, and contrary to the Respondent's exceptions, we conclude that the nego- tiating parties had not reached an impasse in negotiations on May 2.1 'Accordingly, we do not reach Respondent's contention that its conduct would have been lawful if the parties had reached an impasse in bargaining. 142 NLRB No. 14. WESTCHESTER COUNTY EXECUTIVE COMMITTEE, ETC. 127 The last contract between Respondent and the Institute was due to expire April 30, 1962. They met in negotiations for a new contract on March 8 and April 16 and 30. As of April 30, agreement on some four minor issues had been reached, but there was still a substantial difference between them as to the amount of the wage package. Re- spondent was seeking an additional 67 cents an hour in wages and fringe benefits, spread over a 2-year period. The Institute had offered 42 cents for the same period. It was agreed that the old contract would be extended to May 2, and that the parties would meet again on that date. On May 2 the parties again discussed the wage issue. Neither changed its previous position on the amount of the wage package or on the period to which it should apply. Their refusal to make any concessions on the wage issue at this session does not, however, establish that an impasse had been reached and that further negotiation would have been valueless. Thus, accord- ing to the notes taken by Respondent's secretary-treasurer of the May 2 meeting, the Institute negotiators advised that they would have to con- sult with their committee before they could change their position. They also agreed to meet anytime to continue negotiations after further consultation with their principals, and in fact, when the parties met again on May 11, after the Union had gone out on strike, they increased their wage offer. Respondent also, according to the notes of the session, did not foreclose further negotiations and, in fact, agreed to poll its membership to determine whether to accept the Institute's request that certain wages which had been paid in cash under the old contract might now be paid by check. Although no date for a further meeting was scheduled on May 2 by the mediator who had sat in at the last two meetings, he indicated that another meeting would be called. On May 3 Respondent struck individual employer members of the Institute and attempted to obtain separate contracts from them. As noted above, another meeting occurred on May 11 and again on May 15. An impasse should not be mechanically inferred simply because the parties have failed to reach complete agreement after some specified number of negotiating sessions or whenever one party announces that his position is henceforth fixed and no further concessions can be ex- pected. Under the facts presented here, we agree with the Trial Examiner that no impasse had been reached by May 2.2 Only a few , Part of Respondent's argument that an impasse existed as of May 2, is that the Institute has in fact made such an admission in a suit which it has brought against the Respondent for damages under Section 301 of the Act , in which it alleges that the parties reached a "deadlock" in their negotiations on or about May 1 , 1962. The theory on which the suit is based is that, because of the deadlock no new agreement had been reached by May 2 , and that consequently the terms in the old agreement remained in effect, including a provision requiring arbitration of disputes and prohibiting strikes pend- ing such arbitration . The allegation of a deadlock in negotiations was simply to establish that no new agreement had been reached , thus automatically renewing the old agreement ; 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiating sessions had been completed. Although the parties had not as yet made any progress on the wage issue, measured by con- cessions actually offered, the Institute had left open the possibility of some give-and-take by explaining that it would go back for further instructions. Also, the Union had agreed to poll its membership re- specting concessions on one minor issue and agreement had already been reached on a number of others. The course of negotiations had not yet come to a dead end.' Inasmuch as there was no impasse as of May 2 it becomes clear, from Respondent's subsequent strikes of individual employers and its efforts to obtain separate contracts, that it sought to drive a coercive wedge between these employers and the Institute in order to force them to abandon the Institute as their collective-bargaining repre- sentative. We therefore, conclude, as did the Trial Examiner, that Respondent's actions after May 2 violated Section 8(b) (1) (B) and 8 (b) (3) of the Act 4 ORDER The Board adopts the Recommended Order of the Trial Examiner as its Order.' we do not construe this allegation as an admission that further bargaining after May 2 would have been futile. Respondent further contends based on certain testimony by Frank, the Institute 's execu- tive vice president, that "It was also admitted that the Institute advised its members after May 2 that it was perfectly all right if the members wanted to sign individual con- racts with the Union ." However we note as Frank further testified , that the Institute did not so advise its members until "the latter part of May," when the 'Union's strike was in existence and after a number of its members had already signed separate contracts. Frank explained that the Institute gave this advice to the remainder of the association because it recognized that there was economic pressure on those members who had not signed. 8 See H. E. Fletcher Co., 131 NLRB 474, 483. The Board's decision in Lumber and Sawmill Workers, Local 2647 et al. ( Cheney California Lumber Company ), 130 NLRB 235, 238, relied upon by Respondent , is inapposite. There the Board found that negotia- tions had reached an impasse, where, in addition to other facts showing the futility of further bargaining, each party explicitly advised the other that Its position was firm-the employer stating that it would give no ground absent a change in general econom ic condi- tions and the Union asserting that it would strike, if necessary, to protect its position. "Hoisting & Portable Engineers Local anion # 701 International Union of Operating Engineers, AFL-CIO ( Cascade Employers Association, Inc.), 141 NLRB 469. 5 The first sentence below the signature line in the notice to all employees is amended to read: "This notice must remain posted for 60 consecutive days from the date of post- ing . . ." instead of "60 days from the date hereof. . . ." The notice is further amended by adding the following paragraph : "Employees may communicate directly with the Board 's Regional Office, 745 Fifth Ave., New York, N.Y., 10022 Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed on May 18, 1962, by the Builders Institute , the General Counsel of the National Labor Relations Board on August 17, 1962 , issued and served a complaint in the above-entitled case . On September 13, 1962 , an answer was received. The complaint alleges and the answer denies that the Respondent Union by certain conduct has engaged in unfair labor practices in violation of Sec- tion 8 (b)(1)(B) and 8 (b)(3) of the National Labor Relations Act, as amended. WESTCHESTER COUNTY EXECUTIVE COMMITTEE, ETC. 129 Pursuant to notice a hearing was held in New York, New York, on October 22 and 23, 1962, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented by counsel and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. General Counsel argued upon the record. Briefs have been received from the Respondent and the Charging Party. After the close of the hearing a stipulation was received, signed by counsel for all parties, its text being to the effect that certain testimony of witness Edward J. Tobin, which fixed the date of a certain event as being May 1, 1962, is not to be relied upon. Said stipulation is hereby made a part of the record. Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE CHARGING PARTY Builders Institute of Westchester and Putnam Counties, Inc.,' is a New York corporation. It is an association of some 500 or 600 builders, contractors, suppliers, manufacturers, and financial institutions directly or indirectly engaged in the con- struction of residential and other buildings. More than 100 such members are em- ployers of bricklayers and masons. As the representative of such employers it negotiates collective-bargaining agreements with, among others, the Respondent Union. Since 1956 and until 1962 successive contracts have been entered into by these two parties. The 1960-62 contract, in evidence, reveals that it was executed, on behalf of the mason contractors of the Institute,2 by the Institute's executive vice president, George A. Frank, and on behalf of the Respondent Union by James A. Nilan, chairman. During the year preceding issuance of the complaint employer-members of the Institute purchased and caused to be delivered to their places of business building materials valued at more than $50,000 directly from States of the United States other than the State of New York. The Institute and its employer-members are persons and employers engaged in commerce within the meaning of the Act. H. THE RESPONDENT UNION The Westchester County Executive Committee Representing the Subordinate Unions Numbers 20, 22, 27, 48, 51, 55, 75 and 83, of the Bricklayers, Masons & Plasterers International Union of America of Westchester and Putnam Counties is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Setting and issues The issues raised by the complaint stem from certain admitted conduct by the Respondent Union shortly after the expiration of the 1960-62 contract referred to above. The record contains little factual dispute as to the nature and circumstances of the actual union conduct: its attempt, by withholding members from work, to cause cer- tain members of the Institute to sign individual contracts while, at the same time, meeting and negotiating with the Institute for an industrywide contract. The real question here is whether, as General Counsel urges, such conduct is violative of the cited sections of the Act. Section 8(b)(1)(B) prohibits a labor organization from restraining or coercing "an employer in the selection of his repre- sentatives for the purposes of collective bargaining or the adjustment of grievances." Section 8 (b) (3) prohibits the refusal "to bargain collectively with an employer, pro- vided it [the labor organization] is the representative of his employees subject to the provisions of Section 9(a)." 2 Originally captioned as "The Mason Contractors of the Builders Institute of West- chester and Putnam Counties, Inc." The change is pursuant to a stipulation of the parties at the opening of the hearing. 2It appears that the directors of the Institute appoint three "labor committees," each to negotiate with different trades or crafts in the industry. The Institute's employing group here concerned consists of the members employing masons, bricklayers, and plasterers. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Relevant facts The following facts are not in dispute , except in minor respects: (1) At all material times the Respondent has been, and is, the recognized collective- bargaining representative within the meaning of Section 9(a) of the Act of the em- ployees of the employer-members of the Institute in a unit consisting of all brick- layers, masons, and plasterers employed by said employer -members exclusive of executives, guards, and supervisors as defined by the Act .3 (2) At all material times the employer-members of the Institute have designated it as their representative for the purposes of collective bargaining and the adjustment of grievances with the Respondent as the representative of their employees in the above-described crafts.4 (3) On or about May 1, 1960, the Institute and the Respondent Union entered into a collective-bargaining agreement covering employees in the above -described unit, by its terms to expire on April 30, 1962. On or about the latter date the parties agreed to extend the expiration date to May 2, 1962. (4) Negotiating meetings looking toward a new contract were held by these parties on March 8, April 30, and May 2, 11, and 15, 1962.5 (5) By the close of the April 30 meeting the parties had reached substantial agree- ment on many matters, but not on wages and certain "fringe" items. It was agreed, however, that the current contract would be extended to May 2. (6) At the close of the May 2 meeting all matters were still not agreed upon and the State mediator who was present stated to both parties that while there "was apparently no chance of agreement that evening," another meeting would be called .6 (7) On May 3 and various dates thereafter the Union delegates visited members of the Institute on their jobsites and informed them that unless they signed individual contracts their employees (in the unit) would not be permitted to work. Credible evidence establishes that the following incidents of this nature, among others, occurred: 1. On May 3 or 4 Sam Gaglione, a representative of Local 27, went to Victor Borsari, vice president of Darby Construction Company and a member of the Institute. He gave Borsari a form of an individual contract and, according to his own testimony, told him to sign it, "or else no contract, no work." Borsari communicated with Frank, of the Institute, who advised him not to sign. Employees of this concern did not work until May 9, when Borsari's father, president of the Company, signed the individual contract with a delegate for another Local of the Respondent; 2. On May 3 Nicholas Sarasta, president of City-Wide Plasterers, Inc.,7 was visited at the job-site in Briarcliff, New York, by Nilan and a delegate of Local 20 and was told by them that unless he signed the individual contract, a copy of which was submitted to him, they would "have to stop the job." Sarasta, a member of the Institute's committee which had been negotiating with Nilan and the Union group, declined to sign, pointing out that since he belonged to the Institute he would "go along with whatever they did." City-Wide's job at Briarcliff as well as another in New Rochelle were thereupon "stopped" until Sarasta finally signed the individual contract some two weeks later; 3. Employees of Romani & Picco, Inc., a member of the Institute, stopped work on May 3 or 4. On May 7 or 8 Charles Carino, business agent for Local 51, communicated with officers of this concern, both Picco and Romani, and informed them that the stoppage would continue until they signed. A few days later an individual contract was signed and work was resumed; a Although the Respondent early in the hearing took various and conflicting positions regarding this factual allegation of the complaint, just before the close of General Counsel's case-in-chief, its counsel admitted the allegation in full. 4 In a written stipulation in evidence the Respondent admitted this allegation of the complaint. 5 The Respondent's answers neither admitted nor denied the complaint's allegation as to such negotiations on these dates. During the hearing counsel for the Respondent Union belatedly denied the allegation. The testimony of its own chief witness on the subject, Nilan , corroborates that of Frank as to the dates of the meeting . Nilan's testimony also indicates that there was an additional meeting, held on April 1G. 6 The quotations are from Frank's credible testimony. Nilan testified that the mediator made no arrangement for another meeting but admitted that he said he would "be in touch" with both himself and Frank. 7 About 30 days before the hearing the name of this company was changed to "Central Plastering Corporation." WESTCHESTER COUNTY EXECUTIVE COMI\IITTEE, ETC. 131 4. On May 7 Sam Gaglione, a representative of Local 27, approached Ed- ward J. Tobin, head of North Lake Construction Corporation, and asked him to sign an individual contract. He declined, and was then told that while his men could complete the day at work, they would not be permitted to work there- after until such a contract was signed. As a witness Gaglione admitted that stewards were told to stop work without a contract. About a month later Tobin's son-in-law signed an individual agreement. (8) Concessions by counsel for the Union made during the course of the hearing establish that the Respondent caused cessation of work by employees of employer- members of the Institute other than those named immediately above, for the purpose of obtaining signatures to individual contracts and offered to discontinue striking if they signed individual agreements. (9) As noted heretofore, negotiating meetings between the Respondent Union and the Institute were held on May 11 and 15, 1962. On May 18 the Institute filed its charge, and no meetings have been held since May 15. C. Conclusions The foregoing facts, the Trial Examiner believes, fully support General Counsel's contention that the Respondent has violated the cited sections of the Act. The Respondent's coercive conduct was designed to force employer-members of the Institute to abandon their own selection of a bargaining representative, in violation of Section 8(b)(1)(B). And by engaging in this coercive conduct at the same time it was negotiating with the Institute for an industrywide contract the Union clearly displayed bad-faith bargaining, in violation of Section 8(b) (3 ). The Trial Examiner agrees with General Counsel and the Charging Party that the foregoing conclusions are governed by the Board's determination of similar issues in Cascade Employers Association, Inc., 127 NLRB 488.8 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the operations of the Charging Party described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact and upon the entire record in the case the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Westchester Company Executive Committee Representing the Subordinate Unions Numbers 20, 22, 27, 48, 51, 55, 75 and 83, of the Bricklayers, Masons & Plasterers International Union of America of Westchester and Putnam Counties is a labor organization within the meaning of Section 2(5) of the Act. 2. Builders Institute of Westchester and Putnam Counties, Inc. and its employer- members, and each of them, are and have been at all times material persons and employers engaged in commerce within the meaning of Sections 2(1) and (2) and 8(b)(1)(B) and (3) of the Act. 3. At all times material the Respondent Union has been and is the recognized collective-bargaining representative, within the meaning of Section 9(a) of the Act, of the employees of the employer-members of the Institute in a unit consisting of all bricklayers, masons, and plasterers employed by said employer-members exclusive of executives, guards, and supervisors as defined by the Act. 4. At all times material the employer-members of the Institute have designated the Institute as their representative for the purposes of collective bargaining and the adjustment of grievances with the Respondent as the representative of their employees. By its conduct and for the purposes above described the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (B) and (3) of the Act. 9 The Trial Examiner concludes that the facts do not support the Respondent's conten- tion that an "impasse" had been reached in negotiations on May 2. Furthermore, had a situation reasonably to be interpreted as an "impasse" or "deadlock" actually existed on that date, its effect was clearly waived by the continuing negotiations with the Institute on May 11 and 15. Lenglade Products, 118 NLRB 885 , at 988. 712-548-64-vol. 142-10 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law it is recom- mended that The Westchester County Executive Committee Representing the Subordinate Unions Numbers 20, 22, 27, 48, 51, 55, 75 and 83, of the Bricklayers, Masons & Plasterers International Union of America of Westchester and Putnam Counties, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from: (a) In any manner restraining or coercing any employer who is a member of Builders Institute of Westchester and Putnam Counties, Inc., in the selection of the said Institute, or any other person, group, corporation, organization, or associa- tion, as the representative for the purposes of collective bargaining or the adjustment of grievances. (b) Refusing to bargain collectively with the said Institute with respect to the wages, hours, and other terms and conditions of employment of employees in the appropriate unit. (c) Giving effect to the individual contracts it executed with employer-members of the Institute on and after May 2, 1962, or any modification, continuation, exten- tion or renewal thereof. 2. Take the following affirmative action, which will effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Institute, with respect to wages, hours, and other terms and conditions of employment of employees in the unit found to be appropriate for bargaining purposes, and, if agreement is reached, embody the terms in a signed contract. (b) As hereafter set forth, post copies of the attached notice marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by an official representative of the Respondent, be posted by the said Respondent at its business office and customary membership meeting places, including all places where notices to members of the subordinate unions as numbered above are customarily posted, immediately upon receipt thereof and be maintained by it for a period of 60 days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Furnish to the said Regional Director signed copies of the attached notice marked "Appendix" for posting by the employer-members of the said Institute, if such employers are willing, in places where notices to their employees are customarily posted. (d) Notify the Regional Director for the Second Region in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith.'° 01n the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." 10 If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the said Regional Director, in writing, within 10 days from the date of this Order, as to what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF EMPLOYERS WHO ARE MEMBERS OF BUILDERS INSTITUTE OF WESTCHESTER AND PUTNAM COUNTIES, INC. 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 Relations Act, as amended, we hereby give notice that: WE WILL bargain collectively, upon request, with Builders Institute of West- chester and Putnam Counties, Inc., with respect to the wages, hours, and other terms and conditions of employment of employees of the members of the above-named Institute in the unit described herein, and, if agreement is reached, embody the terms in a signed contract. The bargaining unit is: FEDERAL DAIRY COMPANY, INC. 133 All bricklayers , masons, and plasterers employed by said employer-members exclusive of executives , guards, and supervisors as defined by the Act. WE WILL NOT in any manner restrain or coerce any employer who is a member of, or represented by, the said Institute in the selection of the said Institute or any other person , group, corporation , organization or, association as a representative for the purposes of collective bargaining or the adjustment of grievances. WE WILL NOT give effect or enforce or attempt to enforce our individual contracts with members of the above-named Institute which were executed on and after May 2, 1962. THE WESTCHESTER COUNTY EXECUTIVE COMMITTEE REPRESENTING THE SUBORDINATE UNIONS NUMBERS 20, 22, 27, 48, 51, 55, 75 AND 83, OF THE BRICK- LAYERS, MASONS & PLASTERERS INTERNATIONAL UNION OF AMERICA OF WESTCHESTER AND PUTNAM COUNTIES, 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. Federal Dairy Company, Inc. and Local Union No. 64, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America . Case No. 1-CA-3115. April 19, 1963 SUPPLEMENTAL DECISION AND ORDER On December 28, 1962, Trial Examiner Phil Saunders issued his Supplemental Intermediate Report in the above-entitled proceeding, as set forth in the attached Supplemental Intermediate Report, in which the finding was made that employees Wilson Brown, Carmine Lopez, James P. Fay, and Ralph Regine were entitled to backpay, and recommending that Wilson Brown be awarded backpay in the amount of $1,644.54; Carmine Lopez be awarded backpay in the amount of $1,890.30; James P. Fay be awarded backpay in the amount of $2,919.25; and that Ralph Regine be awarded backpay in the amount of $5,988.59.1 The Respondent filed exceptions to the Sup- plemental Intermediate Report of December 28, 1962,,and supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. 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 Supple- The Board, by Decision and Order of March 3 , 1961 , Federal Dairy Company, Inc., 130 NLRB 1158, directed the Respondent to make whole certain employees for their losses resulting from the Respondent 's unfair labor practices. 142 NLRB No. 17.