International Hod Carriers, Etc., Local 1082

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I further recommend that the complaint be dismissed insofar as it alleges that the Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (3 ) and (1 ) of the Act by discharging and failing to recall 11 named employees. 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 Labor Management Relations Act, we hereby notify our employees that: WE WILL, upon request, recognize and bargain collectively with Local 854, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of all the employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an agreement is reached , embody it in a signed contract. The bargaining unit is: All production and maintenance employees at our Brooklyn, New York, plant, exclusive of office clerical employees, managerial employees , guards, and all supervisors as defined in Section 2 (11) of the Act. WE WILL NOT take economic reprisals against any employee for engaging in the protected activity of a strike or for engaging in any other protected concerted activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form, join, or assist the above-named or any other labor organization , to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities , except to the extent that such right may be affected by the provisos in Section 8 (a) (3) of the Act. HENRY SPEN & COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any ques- tion concerning this notice or compliance with its provisions. International Hod Carriers, Building and Common Laborers Union of America, Local #1082, and its Agent , George Tarr [E. L. Boggs Plastering Company] and Jones & Jones, Inc., and Progressive Plastering & Lathing Contractors ' Association International Hod Carriers, Building and Common Laborers, Local #1082 and Jones & Jones, Inc., and Progressive Plaster- ing & Lathing Contractors' Association. Cases Nos. 01-CB- 1969, 21-CB-2012, 21-CC-549, 21-CC-567, and 21-CB-2091. De- cember 15, 1964 DECISION AND ORDER On August 27, 1963, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain 150 NLRB No. 19. INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 159 unfair labor practices , and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the Respondents filed exceptions to the Intermediate Report and- a supporting brief. 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, brief, and the entire record in the case; and hereby adopts the findings, conclusions , and recom- mendations of the Trial Examiner only to the extent that they are consistent with our decision herein. The facts are essentially as set forth in the Intermediate Report. Briefly, they disclose that the E. L. Boggs Plastering Company entered the contracting business in July 1959 and the following summer became a party to, an existing 2-year collective -bargaining contract between the Contracting Plasterers ' Association of South- ern California, Inc. (hereinafter called the C.P.A.S.C.), the Orange County Lathing and Plastering Contractors Association (herein- after called the O.C.L.P.C.A.), and various locals of the Hod Car- riers International affiliated with the Southern California District Council of Laborers, AFL (hereinafter called the District Council). The agreement was applicable to plaster tenders working for all the employer-members of the two aforedescribed associations in the geographical area of Los Angeles County, Orange County, Catalina Island, and numerous nearby offshore islands. The agreement expired on May 31, 1962. Shortly thereafter, on June 4, the parties entered into a new 5-year agreement effective until April 30, 1967. Boggs, however, did not at that time become a party thereto. Accordingly, Remult, assistant business agent of Respondent Local #1082, went to Boggs' Arcadia jobsite in mid-June and gave a copy of the comprehensive , 22-page agreement to Boggs' Foreman Roll- man with instruction to have Elmer Boggs sign it. Boggs declined to do so. Instead, in July 1962, Boggs joined another newly formed association, the Progressive Plastering & Lathing Contractors' Asso- ciation (hereinafter called the Association ). This Association had been formed early that spring at the behest of four contractors,' and its membership expanded to nine contractors by early August. The Association exists for the purpose of representing employer- members in collective bargaining with labor organiaztions; it, in turn, is represented by Jones & Jones; labor relations consultants. 1 Charles Norris Plastering Company, O . H. Hudson Company , Arce-Tickey , and Saltony Plastering Company were the original contractors who went to Norman E. Jones in March 1962 and requested that he form an association 775-692-6 5-vol. 150-12 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As a result of the Association's notice to Respondent Laborers' Local, #1082 that it desired to negotiate a contract, Jones and the Union held four bargaining sessions between mid-July and Decem- ber 28, 1962. During these meetings there were basically two major topics of discussion. First, the parties considered the recognition problem : Was the Union willing to recognize Jones as representa- tive of all nine members of the Association or of only four members -thereof ? 2 More importantly, as to these four remaining employers, was the Union only willing to recognize Jones on their behalf as individuals or in a multiemployer, associationwide unit? Second, the parties addressed themselves to the possible terms of an agree- ment. The main substantive areas about which the parties were concerned were the subcontract and bond provisions. No agree- ments were reached in those areas. The difficulty stemmed, at least partially, from the fact that the parties were negotiating on the basis of their possible entry into either individual-employer con- tracts or one multiemployer, associationwide agreement and different proposals were submitted with respect to each of these alternative possibilities. No agreements having been reached in the December 28 bargain- ing session, the Union struck Boggs' El Monte jobsite on January 3, 1963, in furtherance of its efforts to compel Boggs to sign a con- tract containing subcontract and bond provisions .3 Although the parties had extended their efforts toward reaching an agreement between the Union and the whole Association or its individual mem- bers, Boggs actually signed the C.P.A.S.C. agreement 4 It included those two mentioned provisions.5 The subcontract clause (article IC) provided that: "If the Contractors, parties hereto, shall sub- contract work as defined herein, provision shall be made in such subcontract that said subcontractor be signatory to this Agreement, and abide by all provisions set forth within this Agreement." On 2 The Union consistently maintained that it did not recognize Jones as bargaining rep- resentative of five of the Association's contractor- members because these five were already bound by the above-mentioned existing 5-year agreement between the Union and C.P.A.S C. On the other hand , the Association, apparently for the first time in its November 5, 1962, letter to Respondent's Attorney Richman, contended that these five contractors were not bound by the C P.A S C. agreement " because such Association entered into a five-year agreement wherein the association ' s bylaws did not allow over a three-year agreement without consent of the Board of Directors. Such consent was given only after agreement was reached and not before as bylaws so state." [Emphasis supplied.] 8 On an earlier occasion , October 5, 1962 , Union Representative Tarr threatened Boggs that he would shut down the El Monte jobsite unless Boggs signed the C.P.A.S.C. agree- ment. At that time Tarr also informed Boggs' employees that Boggs was operating with- out a contract and advised them that they would be cited before the Union 's executive board unless they left the Jobsite. This incident is reported fully in section III, C, 2, of the Intermediate Report. * Norman Jones , Boggs' bargaining representative , was not present at the jobsite when Boggs signed the C.P.A.S.C. agreement. 5 The bond provision, article X of the C.P.A.S.C. agreement , is set forth verbatim in the Intermediate Report. INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 161 these facts, the Trial Examiner concluded that the Union engaged in conduct violative of Section 8(b) (3), 8(b) (1) (B), 8(b) (4) (i), (ii) (A) and (B) of the Act. 1. The Trial Examiner found that the Union, in adopting a "take it or leave it" attitude,. violated Section 8 (b) (3) by a general refusal to bargain in good faith with the Association. He also found that the Union violated Section 8(b) (1) (B) and 8(b) (3) by picketing Boggs in January 1963 to force him to abandon negotiat- ing through his bargaining representative, the Association by Nor- man Jones, and then to force Boggs to enter into a separate contract with the Union. The Respondent contends initially 6 that the Trial Examiner "confused the evidence" and thereby erroneously found an 8(b) (3) general refusal to bargain in good faith violation. In support of its position the Respondent urges that the' Trial Examiner failed to perceive that the Union never expressly agreed to recognize or bar- gain with Jones as representative of the Association qua Associa- tion but willingly explored the possibility of either an association- wide agreement or individual-employer contracts. Similarly, the Union urges that the Trial Examiner's 8(b) (1) (B) and 8(b) (3) findings as to the alleged coercion of Boggs in his selection of a bargaining representative or wholly unsupported by the record. We find merit in the Respondent Union's exceptions to these 8(b) (3) and 8(b) (1) (B) findings of the Trial Examiner. It is evident that these findings are inextricably linked with the assump- tion that the parties were obligated to bargain for a multiemployer, associationwide agreement. For in concluding that the Union entered negotiations with a "fixed determination not to bargain and with a padlock on its choice of terms and conditions," the Trial Examiner relied essentially on the presence of a "favored nations" 7 clause in the Union's C.P.A.S.C. area agreement. And he found that "it left no room for bargaining" since it precluded the Union from entering into a contract with the Association (as contrasted from individual contractors) which varied to any marked degree from the existing area agreement. Likewise, the Trial Examiner 6 The Respondent Union also contends that the Board lacks jurisdiction over this dis- pute and that this proceeding should be dismissed because the Union was deprived of an adequate opportunity to consider settlement or other informal proceedings . For the reasons set forth in the Intermediate Report, we find that the Respondent' s contention concerning settlement lacks merit . Likewise, the Board's decision in United Mine Workers of America, District 2 (Mercury Mining and Construction Corporation), 96 NLRB 1389, 1390, supports the assertion of jurisdiction herein. See the Trial Examiner 's discussion of the impact of the "favored nations" clause on the Union's attitude toward bargaining . The "favored nations" clause (article IX of the C.P.A.S.C. agreement) reads: "The Unions shall not sign or work under . . . any agree- ment with Employers of Plaster Tenders in this area giving more favorable terms of work- ing rules than those established for Plaster Tenders under this Agreement." [ Emphasis supplied. ] 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rested on this same assumption,8 his opinion that "Tarr had no legal right to approach Boggs separately about contract terms so long as no impasse had occurred" and that by picketing Boggs alone the Union engaged in "divide and conquer" tactics in viola- tion of Section 8(b) (1) (B) and 8(b) (3). We are of the opinion, however, that in the particular circum- stances of the instant case the Trial Examiner's reliance upon this assumption is misplaced. For the existence of a multiemployer unit must be predicated upon the mutual consent of the Union and employers concerned,9 and it is manifest that this basis is lacking here. Thus, the complaint alleged and the answer admitted that all of Boggs' plaster tenders working in the geographical area. of Los Angeles County, Orange County, Catalina Island, and numer- ous offshore islands constitute a unit appropriate for collective bar- gaining within the meaning of Section 9(b) of the Act. The testi- mony of Respondent's Attorney Richman as well as the Trial Exam- iner's findings demonstrate further that Richman told Jones that he would bargain with Jones on an individual-employer basis and that Richman never agreed on behalf of Respondent to recognize the Association as an association for purposes of a multiemployer, asso- ciation contract. Significantly, Jones' testimony generally corrobo- rated Richman's and, with respect to the October 26 meeting, Jones in fact testified that "Richman said I'll bargain with you for them [the four contractors not covered by the existing C.P.A.S.C. agree- ment] on an individual basis ... If we can get together maybe we can write it for the whole association . . . He [Richman] did not say that he recognized the association as an association. He did not say he did not recognize that association. It was left in the air." [Emphasis supplied.] Finally, while the October-December bar- gaining proceeded in terms of the possibility of contracting on an associationwide basis, the Board has recently had occasion to point out that the mere fact that parties undertake to explore this pos- sibility by participating in negotiations with a representative of an association does not automatically establish that they had con- sented to bargain on that basis.10 In light of all the foregoing, we find that a multiemployer, associationwide unit was not established. 8 We note that the Trial Examiner cited The Westchester County Executive Committee, etc, 142 NLRB 126, and Cascade Employers Association Inc., 127 NLRB 488, in support of his above position. In those cases the Board found , in essence , that the Union violated Section 8 ( b) (1) (B) and 8(b) (3) by striking individual employer- members of a multi- employer association to force them to withdraw from the Association and enter into individual contracts at a time (before impasse) when the Union was obligated to bargain for an associationwide agreement 9 Chicago Metropolitan Home Builders Association, 119 NLRB 1184, 1186. 1i The Great Atlantic & Pacific Tea Company, 145 NLRB 361. INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 163 Having thus rejected the basic premise upon which the Trial Examiner's rationale was founded, it follows that his rationale must likewise fall. Specifically, having rejected the existence of a multi- employer, associationwide unit, we must necessarily view the alle- gations of the complaint in another posture-namely, that of a single-employer unit. When so viewed, the Trial Examiner's ration- ale that the Respondent violated Section 8(b) (1) (B) and 8(b).(3) by engaging in so-called divide-and-conquer, whipsaw, or divisive tactics when it picketed Boggs alone in January 1963, is clearly inapplicable. Nor can we perceive any other basis for establishing these violations. On January 4, 1963, Business Agent Tarr (described fully in section III, C, 2 of the Intermediate Report) encouraged Elmer Boggs personally to sign the C.P.A.S.C. agree- ment at a time when Boggs did not have the advice of his bargaining representative, Norman Jones. However, in the circumstances pre- sented herein, this does not, in our opinion, constitute coercion of an employer in the selection of his bargaining representative within the meaning of Section 8(b) (1) (B),111 or a refusal to bargain in violation of Section 8(b) (3). Additionally, there is no basis for finding that the Respondent's entire pattern of conduct constituted a general refusal to bargain in good faith in a single-employer unit. For even if the "favored nations" clause in Respondent's C.P.A.S.C. area agreement arguably precluded it from requesting or accepting anything other than an identical agreement,12 the record demonstrates this would be true only in an associationwide contract and not in a contract with an individual employer. From the record herein it is evident that Respondent willingly met and conferred on numerous occasions with Norman Jones, on behalf of Boggs, and actively par- ticipated in an open and frank exchange of ideas and proposals, espe- cially with respect to problems involving recognition, subcontracting, and a bond provision-the three major substantive obstacles to an agreement between the parties. While no agreement was reached at the bargaining table, agreement or concession is not a necessary pre- requisite to satisfying the duty to bargain in good faith set forth in the Act. Accordingly, we shall dismiss these allegations of the complaint. n Cf. Cheney California Lumber Company, 130 NLRB 235, 242-243, enfd. 319 P 2d 375 (C A. 9) ; and Los Angeles Cloak Joint Board, etc. (Helen Rose Co, Inc.), 127 NLRB 1543. 12 In exploring the possibility of an associationwide agreement , the Respondent, inter alia, offered to accept an increased wage rate in lieu of the subcontracting clause. The Trial Examiner summarily dismissed this proposal "as a tactic to give an appearance of bargaining knowing that the offer could not be accepted." However, in the instant circum- stances, we see no factual basis for adopting this conclusionary language of the Trial Examiner. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Trial Examiner also found that the Respondent violated Section 8(b) (4) (i), (ii) (A) and (B) of the Act by inducing employ- ees of Boggs to withhold their services from Boggs and by picketing Boggs with the objective of forcing him to sign an agreement con- taining a subcontract clause (see supra), falling within the scope of Section 8(e).13 The Trial Examiner, while recognizing that the instant subcontract clause fell within the construction industry proviso 14 to Section 8(e), nevertheless took the position that coer- cion to obtain such an excepted clause was violative of both clauses (A) and (B) of Section 8(b) (4) of the Act. In essence, the Trial Examiner's mentioned findings reflected existing Board law as set forth in Colson and Stevens Construction Co., Inc., 137 NLRB 1650. However, upon reexamining that decision in the Centlivre case,16 the Board overruled the Colson and Stevens doctrine and consequently held that picketing to obtain a contract clause within the construction industry proviso to Section 8(e) does not violate Section 8(b) (4) (A).18 As the Respondent's object in inducing Boggs' employees and picketing Boggs was to obtain a contract containing, inter alia, just such a clause, we find, contrary to the Trial Examiner, that the instant complaint should be dismissed inso- far as it alleged that Respondent violated Section 8(b) (4) (A) of the Act. Further, the record does not disclose any evidence that the sub- contract clause which the Respondent struck to obtain would have forced Boggs to cease doing business with any specific employer or would otherwise have required the disruption of any existing busi- ness relationship between Boggs and "other persons," for example, subcontractors within the meaning of Section 8(b) (4) (B). In a word, there is no evidence that Respondent's economic action was 's Section 8(e) provides: "It shall be an unfair labor practice for any labor organiza- tion and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void . . . . "The construction industry proviso to Section 8(e) provides : "Provided, That nothing in this subsection ( e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction , alteration , painting , or repair of a building, structure , or other work... . la Northeastern Indiana Building and Construction Trades Council ( Centlivre Vsllage Apartments ), 148 NLRB 854 1e See also Construction, Production & Maintenance Laborers Union, Local 383, et al. v. N.L.R.B. ( Colson and Stevens Const. Co.), 323 F. 2d 422 (C.A. 9 ) ; Essem County and Vicinity District Council of Carpenters, etc. v. NLRB., 332 F. 2d 636 ( CA. 3) ; Orange Belt District Council, et al. v. N.L.R.B. ( Calhoun Drywall Co.), 328 F. 2d 534 (C A.D.C.) ; Building and Construction Trades Council of San Bernardino and Riverside Counties, et al. v. N.L.R.B. ( Gordon Fields ), 328 F. 2d 540 (C.A.D .C.). See also Local Union No. 48 of Sheet Metal Workers v. Hardy Corp., 332 F. 2d 682 (C.A. 5). INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 165 aimed at achieving any object other than the limited one of securing a contract with a clause exempted by the construction' industry pro- viso. Accordingly, we further find, contrary to the Trial Examiner, that the instant complaint should be dismissed insofar as it alleged that Respondent engaged in conduct violative of Section 8(b) (4) (B) of theAct17 3. The Trial Examiner's conclusion that Respondent also violated, Section 8(b) (3) by striking for the aforementioned subcontracting clause directly stemmed from his conclusion that such strike violated Section 8(b) (4) (A) of the Act. We have found, however, that by virtue of the construction proviso to Section 8 (e) • Congress intended to permit unions in this industry to strike for such clauses. It would be anomalous to hold in the instant circumstances that this right was taken away under Section 8(b) (3). Accordingly, we shall also dismiss the complaint insofar as it alleges that Respond- ent violated Section 8(b) (3) by insisting upon, the inclusion of a subcontracting clause.18 4. Finally, the Board finds, in agreement with the Trial Exam- iner, that the bond clause was a nonmandatory subject of bargaining and Respondent's insistence upon the inclusion of this clause, as evidenced by its position at the bargaining table and in subsequent picketing to obtain a contract containing such a clause, violated Section 8(b) (3) of the Act.19 REMEDY In accordance with established Board precedent, we shall fashion a remedy to the specific conduct found violative of the Act. Thus, as we have only found that Respondent violated Section 8(b) (3) by insisting upon the inclusion of the bond clause and since the contract containing this clause has been executed, we shall order the Respondent to cease and desist from insisting that Boggs com- ply with this particular provision of the contract., Finally, to restore the parties to the status quo ante, we shall order the Respond- ent to return the $1,000 certified check which Boggs gave to the 17 Cf. Northeastern Indiana Building and Construction Trades Council ( Centlivre Village Apartments ), 148 NLRB 854. 's See Operative Plasterers' & Cement Masons' International Association (Jones d Jones, and Arnold M. Hansen), 149 NLRB 1264. Since the Board has not adopted the Trial Examiner's 8(b).(3) finding with respect to the insistence upon the inclusion of a subcontract clause, we need not adopt or rely upon the Trial Examiner's finding that the original charge in Case No. 21-CB-1969, while not expressly referring to an 8(e) clause , adequately notified the Respondent that the 8(b) (3) allegation was in fact based upon the Respondent 's insistence on such a clause. 19 N.L.R B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342 ; see also Carpenters' District Council of Detroit, etc., at al. ( Exceilo Dry Wall Co. ), 145 NLRB 663 (Members Brown and Jenkins, dissenting), enfd . by per curium opinion dated June 15, 1964, 58 LRRM 2084 (C.A.D.C.). 166 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD Union in lieu of a cash bond with the further direction that if the check was' cashed the Union shall be liable for 6-percent interest on that amount from the date cashed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent, International Hod Carriers, Building ' and Com- mon Laborers Union of America, Local #1082, its officers, agents, and representatives, including George Tarr, shall: 1. Cease and desist from refusing to bargain. with Boggs by insist- ing upon the inclusion of the bond clause ( article X) in the contract or by insisting that Boggs comply with said bond clause. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Return, or cause to be returned , to Boggs the certified check for $1,000 which was delivered by Boggs and received by Tarr on behalf of the Union. If the check has been cashed, then refund the $1,000 to Boggs plus 6-percent interest computed from the date said check was cashed. (b) Post in conspicuous places at the Union 's business offices, meeting halls, and all places where notices to members are custom- arily posted, copies of the attached notice marked "Appendix." 20 Copies of said notice, to be furnished by the Regional Director for Region 21 , shall, after having been duly signed by an authorized representative of the Union, be posted' by the Union immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter. Reasonable steps . shall be taken to insure that the notices are not altered, defaced, or covered by any other material. (c) Sign and deliver sufficient copies of said notice to the Regional' Director for Region 21, for posting by Boggs, Boggs being willing, at all locations where notices to his employees are customar- ily posted. .(d) Notify ,the Regional Director for Region 21, in writing, within 10 days from the date of this Decision and Order, what steps the Union has taken to comply herewith. ' IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as the other allegations of the complaint are concerned. 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 "a Decision and Order" the words "a Decree of the United States Court of Appeals , Enforcing an Order." INTERNATIONAL HOD CARRIERS , ETC., LOCAL 1082 APPENDIX NOTICE TO ALL OUR MEMBERS AND ALL EMPLOYEES OF E. L. BOGGS PLASTERING COMPANY 167 Pursuant to a Decision and Order 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 NOT refuse to bargain with Boggs on behalf of his employees in any appropriate unit by insisting upon the inclu- sion of the bond provision. The bargaining unit is: All Boggs' plaster tenders working in the geographical area of Los Angeles County, Orange County, Catalina Island, and the following offshore islands if point of embarkation is from Los Angeles or Orange County, namely, Richardson Rock, Santa Cruz Island, Arch Rock, San Nicholas Island, San Clemente Island, San Miguel Island, Santa Rosa Island, Anacapa Island (Channel Islands Monument), and Santa Barbara Island, excluding executives, civil engineers and their helpers, superintend- ents, assistant superintendents, master mechanics, time- keepers, messenger boys, office workers, or any employees of the contractor above the rank of craft foreman and super- visors as defined by the Act. WE WILL NOT insist that Boggs comply with the bond provi- sion in its collective-bargaining agreement with us. WE WILL return or cause to be returned the certified check for one thousand dollars ($1,000) which was delivered by said Boggs and received by George Tarr on behalf of this labor organization or we will refund the proceeds of said check with 6 percent interest from the date the check was cashed. INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS UNION OF AMERICA, LOCAL #1082, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) Dated---------------- By------------------------------------- GEOrCE TARR, Business Representative This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. ` 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any question concerning this notice or com- pliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The following charges and amended charges were filed by Progressive Plastering & Lathing Contractors' Association , herein called the Association and its representative, Golding & Jones, Inc. (or, in later charges, Jones & Jones, Inc., successor to Golding & Jones, Inc.) against International Hod Carriers, Building and Common Laborers Union of America, Local # 1082, herein called the Union, and (except in one case) against its agent, George Tarr, business representative , herein called Tarr, but jointly with the Union called Respondents : On October 18, 1962, and April 30, 1963, in Case No. 21-CB-1969; on January 7 and April 30, 1963, in Case No. 21-CB-2012; on October 18, 1962, in Case No. 21-CC-549; on January 7, 1963, in Case No. 21-CC- 567. Jones & Jones, Inc., also filed a charge against the Union and Southern Cali- fornia District Council of Laborers on April 5, 1963, in Case No. 21-CB-2091 and, in the same case, an amended charge on April 30, 1963, against the Union alone. The charges, as amended , in the foregoing cases were consolidated,, and on May 3, 1963, a complaint duly issued, alleging violations of Section 8(b)(1)(B ), 8(b)(3), 8(b)(4) (i), (ii) (A) and (B), and Section 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. The complaint in substance alleged that Tarr, acting on behalf of the Union, on certain stated dates threatened one Boggs , a plastering contractor , with a strike and actually caused said Boggs to be picketed, and caused an employee to cease working, to enforce demands for the Union that Boggs sign an agreement with the Union which would require Boggs to : ( 1) cease or refrain from handling , using, selling, transport- ing, or otherwise dealing in the products of other employers and from doing business with other persons; (2) post a bond as security for the performance of the agreement, a subject about which Boggs allegedly was not required to bargain ; (3) be deprived of an opportunity to bargain collectively; and (4 ) be deprived of an opportunity to bargain through the Association as his representative . The complaint also alleged a refusal to bargain. The Respondents' answer made certain admissions but denied the allegation of paragraph 7 of the complaint that the Union at all times material represented a majority of the employees in the alleged (and admittedly ) appropriate unit, and denied all allegations of fact and conclusions constituting the gist of the alleged unfair labor practices. 1 Four other cases, Nos . 21-CB-2914, 21-CC-570, 21-CB-2023, and 21-CC-581 , were in- cluded in a separate order of consolidation on May 3, 1963 , but were omitted from the docu- ment of the same date headed "Order Consolidating Cases, Consolidated Complaint and Notice of Hearing." The formal file includes a "Motion To Vacate Order Consolidating Cases." The motion was dated May 8, 1963 , but was apparently filed on May 9, although the date stamp is almost illegible. In this motion the Union objected to the consolidation of the above four cases ( which involved another labor organization ) with the cases enumerated in the complaint and moved that the order of consolidation be vacated This motion was concurred in by the other labor organizations , and in a memorandum dated May 13, 1963, counsel for the General Counsel agreed to a severance of the cases enumerated in the com- plaint from the four additional cases included in the separate order of consolidation. By an order dated the same day-May 13 , 1963-the Regional Director referred the motion to the Associate Chief Trial Examiner in San Francisco for a ruling. By telegraphic order dated May 14, 1963 , the said Associate Chief Trial Examiner granted the motion to vacate the order consolidating the cases which had been issued on May 3, 1963 . This date is the same as that on which the complaint in these consolidated cases ( containing an order of consolidation of cases shown in the caption hereof ) was issued, and the telegraphic order of the Associate Chief Trial Examiner might be taken to refer to the consolidation shown in the complaint. However, I find that it was intended , and all parties understood that it was intended , to vacate only the separate order of consolidation of May 3, 1963, and did not affect the order of consolidation included in the complaint. INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 169 Pursuant to notice, a hearing was held in Los Angeles, California, on July 8 and 9, 1963, before Trial Examiner James R. Hemingway. At the opening of the hearing, Respondents moved to amend their answer to admit paragraph 7 of the complaint and to correct errors in the answer in other respects. The motion was granted. Respond- ents then moved to strike paragraph 9(a) of the complaint on the ground that this was based on amended charges filed in Cases Nos. 21-CB-1969 and 21-CB-2012 more than 6 months after the date on which the alleged action took place. Following argument, I denied Respondents' motion to strike without otherwise considering the merits of Respondents' argument, because paragraph 9(a) of the complaint was, in any event, supported by a timely charge of violation of Section 8(b)(3) of the Act. However, I now find it desirable to pass on Respondents' argument. The original and amended charges in Case No. 21-CB-2012 were both filed within 6 months of the time of the occurrence of the events alleged-January 3 and 4, 1963-and the amended charge does support paragraph 9(a) of the complaint. No problem arises with respect to this charge, therefore, under Section 10(b) of the Act. The original charge in Case No. 21-CB-1969 alleged a violation of Section 8 (b) (1) (A) and (B), (2) and (3) of the Act. The original charge alleged a violation of these sections of the Act by threatening picketing on October 5, 1962, because Boggs would not enter into "the Hod Carriers Agreement." In a separate paragraph, the charge alleged that the action mentioned in the first paragraph was taken by the Union for a number of purposes: to restrain or coerce Boggs in his selection of his collective-bargaining representative; to refuse to bargain in good faith with Boggs' collective-bargaining representative, and to force Boggs to post a bond-a nonmandatory subject of col- lective bargaining. The amended charge added to the foregoing (among other things not complained of by Respondents) that one of the purposes of the action of the Union described in the first paragraph was to force or require Boggs to sign an agreement "with an 8(e) provision which is not a mandatory subject for collective bargaining." The Union claims that, as the original charge did not mention this, the amended charge, filed more than 6 months after October 5, 1962, the date of the threatened picketing, was barred from adding the last-quoted portion by Section 10(b) of the Act. Even if there were some merit in Respondents' contention regarding Section 10(b) of the Act, paragraph 9(a) could not be stricken in its entirety, because the charge in Case No. 21-CB-1969 adequately notifies the Respondents that it is based on Respondents' refusal to bargain by the attempt to force the "Hod Carriers Agreement" on Boggs. The fact that the charge does not mention that said agreement contained an 8(e) provision is not vital. The charge contained enough information to apprise the Respondents of the nature of the charge against them. The Respondents followed the foregoing motion with another motion to dismiss the entire proceedings on the ground that the amended charges were received by Respondents on May 2, 1963, and the complaint issued on May 6, 1963,2 and that the shortness of time intervening deprived Respondents of an adequate opportunity to consider settlement or other informal proceedings and deprived them of rights granted under Section 101.7 of the Board's Rules and Regulations, Series 8, as amended. This rule, of course, excludes the affordance of opportunity to settle where time does not permit. However, the Trial Examiner offered Respondents time right then to attempt a settlement. Respondents' attorney stated that he could not do so because no officer of the Union was available to him then to discuss settlement and that he was not authorized to use his discretion in the matter. In argument, it appeared that both before the filing of the amended charges and between the date of the issuance of the complaint and the opening of the hearing the General Counsel had offered Respond- ents a chance to settle the case. Nevertheless, I proposed to afford further time in which the parties could attempt a settlement if, after the noon recess (when Respond- ents' counsel would have an opportunity to speak with his principals), Respondents informed the Trial Examiner that they desired time in which to discuss settlement. Following the noon recess, Respondents' counsel stated that he had been authorized by his principals to discuss settlement but that he was not prepared to do so unless the General Counsel would reduce his "minimum terms," which the General Counsel refused to do. (From the reference to "minimum terms," I infer that Respondents had already discussed settlement with the General Counsel.) I find the second motion of Respondents to be groundless. Following rejection of the offer of time in which to discuss settlement, I did not specifically rule on Respondents' motion. I now deny it. At the close of the hearing, the General Counsel moved to amend the complaint to conform to the proof. The motion was granted without opposition. The parties 2 Actually it was issued on May 3 but probably was received on May 6. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD waived oral argument and, upon request of the General Counsel, a date was set for the filing of briefs. Within the time granted, the parties filed briefs, which have been considered by me. From my observation of the witnesses and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF BOGGS E. L. Boggs Plastering Company is a proprietorship operated by E. L. Boggs, herein called Boggs, at Montclair, California, as a plastering contractor in the building and construction industry. In connection with his business, Boggs during a 1-year period between February 1, 1962, and January 31, 1963, purchased and received goods, materials, and supplies valued in excess of $50,000 from suppliers that purchased such goods directly from points outside the State of California. Respondents contest jurisdiction of the Board on the ground that the figures used by the Board were barely adequate and that, if jurisdiction were determined on the basis of commerce for the year preceding October 5, 1962, the amount would have fallen $11,000 short. There is no reason to pick such a period in which to determine jurisdiction. The Board has consistently used the figures for the most recent calendar or fiscal year of the employer or for the 12-month period immediately preceding the hearing before the Board.3 The record does not disclose what fiscal year is used by Boggs, but if a calendar year were substituted and if the evidence consisting of purchases for the month of January 1963 were eliminated and those for January 1962 were included, the totals would still exceed $50,000, although by a narrower margin. Since, therefore, the Board's standards for asserting jurisdiction are met, I find that the Board has jurisdiction and that it will effectuate the policies of the Act to assert jurisdiction. H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization representing employees, among others, of Boggs in collective bargaining. Respondent George Tarr is, and at all times material herein has been, a business representative of the Union acting on its behalf. III. THE UNFAIR LABOR PRACTICES A. The bargaining unit The complaint alleges and the answer admits that "all of Boggs' plaster tenders working in the geographical area of Los Angeles County, Orange County, Catalina Island, and the following offshore islands if the point of embarkation is from Los Angeles or Orange County, namely, Richardson Rock, Santa Cruz Island, Arch Rock, San Nicolas Island, San Clemente Island, San Miguel Island, Santa Rosa Island, Anacapa Island (Channel Islands Monument), and Santa Barbara Island, excluding executives, civil engineers and their helpers, superintendents, assistant superintendents, master mechanics, timekeepers, messenger boys, office workers, or any employees of the contractor above the rank of craft foreman, and supervisors as defined by the Act constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act." I so find. B. The Union's majority The complaint alleges and the answer, as amended at the hearing, admits that the Union has represented, and presently does represent, a majority of the employees in the unit described above within the meaning of Section 9(a) of the Act. I so find. C. The refusal to bargain 1. Collective-bargaining history Progressive Plastering & Lathing Contractors' Association, herein called the Associ- ation, was formed in March 1962 and was incorporated in July 1962. Its purpose was to represent member employers in collective bargaining with labor organizations. Boggs, who in 1960 had signed a 2-year contract (expiring May 31, 1962) with a sister local of the Union (Local 862 in Pomona, California), joined the Association 3 Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local 886 (Hobbs-Parsons Co.), 128 NLRB 1031. INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 171 in the latter part of July 1962. Golding & Jones, Inc., and its successor, Jones & Jones, Inc., labor relations consultant, represented the Association. During the month of June, a representative of the Union delivered to Boggs' foreman at the building site of work being performed by Boggs copies of a contract with directions to have Boggs sign them and return them to the Union. Apparently Boggs did not do so. In mid-July 1962, the Association notified the Southern California District Council of Laborers, herein called the District Council, of which the Union and a number of sister locals were members, that it desired to negotiate a collective-bargaining agree- ment on behalf of its members. As a result, a meeting was held at the offices of Local 507 in Long Beach, attended by Norman E. Jones of Golding & Jones, Inc., for the Association, and by representatives of the several locals who were members of the District Council (with the exception of one, who was in the hospital). Tarr was present on behalf of the Union. At this meeting, the Association recognized the group of locals as bargaining representative, who indicated that they would recognize the Association if Jones would furnish a list of members. The locals gave Jones a copy of their contract which had been entered into by them with two associations of employers on June 4, 1962, which will be herein referred to as the area contract. Jones told the representatives present that he would give them a counteroffer at a later date. A second meeting was held on August 14, 1962. This was attended only by Tarr, by representatives of Local 507 and 802 (although such representatives claimed to represent all the locals), and by Jones. Jones gave the locals' representatives a list of members of the Association along with the Association's counterproposals. These counterproposals were based on the area contract tendered by the locals, but they proposed certain deletions and changes, including deletion of the subcontractor clause, which the Association contended was unenforceable under Board rulings. It proposed changes in the area contract dealing with contractors' liability, and omitted provisions regarding a contractor's liability for default of subcontractors. It also proposed dele- tion of the entire article dealing with the subject of a cash bond required of each contractor which provision the Association alleged was illegal under a court ruling,4 and the Association, in its counterproposal, said it would refuse to bargain on such a provision. The locals' representatives raised an objection that some members of the Association were members of another association whose members were already under contract with the locals They rejected the Association's counteroffer, reasserting a demand for a contract on terms contained in its area contract, and the three union representatives walked out of the room, refusing to negotiate with the Association. Following this meeting, Jones wrote a letter to the District Council and its locals, rejecting the reoffer of the aforesaid contract, and offering to continue negotiations. No further meetings between the Union and the Association took place before October 19, 1962, when Lionel Richman, attorney for the District Council and its affiliated locals, wrote the following letter to Jones: This office represents the Southern California District Council of Laborers and its affiliated local unions. They have asked us to participate in the negotiations between the District Council and its local unions and the members of the Pro- gressive Plastering and Lathing Contractors Association, whom you represent. At the outset, we wish to make it clear that the District Council is perfectly willing to negotiate with you on behalf of members of your association with whom we have existing agreements until such agreements expire. The following contractors, in our opinion, are bound by the agreement between the District Council and the Contracting Plasterers Association, specifically, Arce- Tickey, Norris, Hudson, Case, and Saltoni. As far as we are concerned, we have valid, existing agreements with these contractors, agreements, by the way, which they are apparently violating. We understand they refuse to use the hiring hall and refuse to enforce the union security clause. We will expect you to advise your clients to abide by their agreements. We also understand that you represent Franciscon, Ray, Boggs and Thompson. We will assume you represent no other plastering contractors unless you give us specific advice as to the identity of other plastering contractors whom you claim to represent. Now, with regard to those contractors whom you represent and with hom [sic] we do not have an agreement. We are prepared to negotiate. We understand 4 Citing (inaccurately) Local 164, Local 1289, and Local 1010, Brotherhood of Painters, etc. v. N.L.R B. (A. D. Cheatham Painting Co. of Jacksonville, Fla.), 293 F. 2d 133 (C.A.D.C.), cert. denied 368 U.S. 824. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Mr. Boggs has indicated he would not sign an agreement containing a sub- contract clause. We assume that is also your position of all of the members of your association. As you know, our unions have worked for many years to get the subcontract clause in their agreements. In the construction industry employment is so irregu- lar that it was necessary to negotiate the subcontract clause to try and preserve the work opportunities for our members. The subcontract clause had the effect of guaranteeing to the employees of signatory contractors a steadier pattern of employment. Our members were willing to give up substantial immediate benefits in order to get the subcontract clause, since they realized that in the long run it would proba- bly repay them by providing more employment. At the same time, the employers were willing to give such a subcontract clause since it reduced their costs of doing business. We are willing to withdraw our request for a subcontract clause but we will expect that in exchange our members will receive the immediate benefits that they gave up to get the subcontract clause. Under the proposed Article I of the agreement, as it has been submitted, the employee could work knowing that he was protected insofar as his wages were concerned and insofar as his fringe benefits were concerned if a non-signatory contractor worked on a job as a subcontractor. That protection is now gone. We withdraw our request for the subcontract clause and ask that in lieu of the subcontract clause we receive what our members consider the value of the immediate benefits which they would require to make up for the long range bene- fits they lose by loss of the subcontract clause. These are as follows: 1. Wage rates-$4.925 per hour; 5 2. All time worked in excess of six consecutive hours or all time worked in excess of 36 hours per week and all time worked before 7:40 A.M.and after 4:10 P.M. to be paid at the double time rate. All work performed on Saturday, Sunday and holidays to be paid at three times the regular rate. 3. Special Shift: When remodeling or alteration work cannot be performed during the regular day shift, Monday through Friday, because establishments cannot suspend operations during the day when the contractor may request, prior to starting the job, and the local union involved may permit the following special shift schedule: Plaster tenders so employed shall work for the double time rate; any work performed under the special shift clause from midnight Friday to 7:40 A.M. Monday would be paid at the triple time rate. 4. In the event of any dispute over the payment of wages to employees or pay- ments of fringe benefits, the contractor agrees that he shall be liable for reason- able attorneys' fees and court costs incurred by the union or the employee in prosecuting such claims, whether through arbitration, litigation, judicial proceed- ing, or administrative proceeding. I think that if you will consider what we are giving up [,] suggestion for addi- tional benefits is very reasonable. Once again, we wish to emphasize that we no longer request a subcontract clause but request the above benefits in their place. The negotiating committee would like to sit down with you and discuss the proposed contract. We would appreciate it if you could telephone this office so that we can arrange a mutually agreeable date. As a result of this letter Jones met with Richman and a representative of the District Council at Richman's office on October 26, 1962. Jones told Richman that he felt that the proposal in Richman's letter was a "farce" to get around the subcontracting clause which he had disputed not only in this case but with other unions represented by Richman, as a subject for bargaining, and he said that his principals were not going to pay more than their competitors. Jones and Richman discussed the question of recog- nition. Richman said that, because five of the Association's members were already bound by another association's contract, he could not, on behalf of his clients, bargain with the Association, although he was willing to bargain with Jones for individual members of the Association who were not already under contract. The General Counsel does not take issue with this position. Regarding the bond, Richman said that his clients would, in a contract with the Association, modify the terms of the area 6 The rate established by the Union's existing contract with other employer associations was $4.25 an hour. INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 173 contract but would not waive the bond as a subject of bargaining. The contract provi- sion contained in the area contract demanded by the Union and its associates from the Association's members (with appropriate changes of name) reads as follows: ARTICLE X BOND A. A cash bond in the amount of One Thousand Dollars ($1,000) shall be deposited by the individual Contractor with the Joint Conference Board, or a trustee designated by the Joint Conference Board. Said bond shall be liable for any assessment for wages, vacation payments, liquidated damages as provided for in this Agreement, and/or contributions for medical, hospital, welfare and life insurance plans, pension plan, and for employee benefits as provided for in this Agreement, as directed by the Joint Conference Board after hearing and vote as provided for in this Contract. B. In lieu of the individual bond hereinabove provided, the Contracting Plas- terers Association of Southern California, Inc. may furnish a cash bond in the amount of Twenty Thousand Dollars ($20,000) and the Orange County Lathing and Plastering Contractors Association, Inc. may furnish a cash bond in the amount of Ten Thousand Dollars ($10,000) each bond to be liable as herein- above provided for any and all of their members respectively in good standing. Said Associations' bonds in the amount above set forth shall in no event be liable for any contractor member of either of said Associations covered by said bonds in excess of One Thousand Dollars ($1,000). C. The Contracting Plasterers Association of Southern California, Inc. and any other association authorized hereunder to post a bond on behalf of its mem- bers with the Joint Conference Board shall provide a list of all of its members who are covered by said bond to each of the seven (7) Locals signatory hereto and to the Joint Conference Board. Any changes in membership, either by addi- tions to or by withdrawals from, shall immediately be communicated to the seven (7) Locals and the Joint Conference Board. D. The bond of the individual contractor and the bonds of the Contracting Plasterers Association of Southern California, Inc. and the Orange County Lathing and Plastering Contractors Association, Inc. shall at all times be main- tained in the full amount hereinabove set forth. E. In addition to the bond herein required, the individual contractors shall file with the Union their social security and unemployment account numbers and certificate of compensation insurance. F. The Joint Conference Board shall have the right to hear and determine and levy on all bonds in all matters concerning this Agreement in the manner pro- vided for in Article XIII hereof. G. The Joint Conference Board shall not be required to assess any bond for the payment of wages that are due and payable to an employee under the terms of this Contract for any period prior to twenty-one (21) days immediately preced- ing the submission of said claim for unpaid wages to the Joint Conference Board. .H. The terms and conditions of the bond as provided by this Article shall be as follows: Cash Bond. A cash bond shall be deposited with the Joint Confer- ence Board or a trustee designated by the Joint Conference Board, said bond to be subject to any assessment for wages, vacation payments, liquidated damages as provided for in this Agreement, and medical, hospital, welfare and life insur- ance plans, pension plan, and for employee benefits as provided for in this Agreement, as directed by the Joint Conference Board after hearing and vote as provided for in this Agreement. 1. Said bond principal once deposited shall be refunded when this Agreement has been terminated, or upon application to the Joint Conference Board after satisfactory proof that the Contractor is no longer contracting within the juris- diction of any Local Union signatory hereto. 2. Upon application and satisfactory proof to the Joint Conference Board, the principal of the bond shall be refunded at the end of the yearly quarter. 3. No bond shall be required to be refunded sooner than sixty (60) days after application to the Joint Conference Board. 4. The Joint Conference Board or trustee designated by the Joint Conference Board shall have the authority to deposit all or aay part of said funds so received in a savings or commercial bank account together with funds received from other Contractors or the Joint Conference Board, or trustee designated by the Joint Conference Board, shall have the authority to invest not more than seventy-five 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD percent (75%) of said funds together with funds received from other con- tractors in United States Government Bonds, certificates of deposits , insured savings and loan associations or such investments approved for trust funds. 5. The Joint Conference Board or the trustee , as the case may be, shall collect all income received by reason of interest or otherwise derived from the investment or deposit of said funds. 6. The income shall be disposed of as follows: a. b. c. Payment of all expenses for administration of said fund. Payment of taxes of all kinds. Any balance of income shall be paid to the Pension Trust. 7. The depositing contractor of Association shall bear the tax assessments on capital gains on his proportion of said fund , if any, and shall also pay any other taxes levied on his proportionate share of said fund, if any. 8. A valuation of the principal fund shall be made quarterly to determine gain or loss affecting the contractor's deposit. 9. The trustee, if acting at the designation of the Joint Conference Board, shall disburse the principal or any portion thereof at the direction of the Joint Conference Board, and in order to pay any contractor's obligations as hereunder stated, said disbursements by the Joint Conference Board shall be made in the amounts and to the payee as directed. 10. The refund of the contractor 's deposit upon direction of the Joint Con- ference Board shall be less any authorized principal disbursements , after which the balance would be revalued according to the profit or loss indicated by valua- tion of the principal fund. 11. All income, after payment of expenses , fees and taxes shall be distributed to the Pension Trust annually and at the termination of this Agreement. Said income be distributed to the Pension Trust even though by revaluation of the fund there has been determined to be a capital loss. That is to say, the income under no circumstances shall be used to reduce any capital losses or for the purpose of paying any portion of disbursements for wages , welfare, or any levy directed by the Joint Conference Board. Jones contended that the bond was not a mandatory subject of bargaining . Richman took the position that it was , inasmuch as it secured payment of employee wages or other benefits, although he apparently conceded that it would not be proper to demand a bond for full performance of all contract obligations . No differences were resolved at this meeting. Two subsequent dates for meetings were set. On the first occasion, Jones, who had been out of town and whose plane had arrived an hour or so late, telephoned Richman from the airport . Richman, who had, in Jones' absence , telephoned the latter 's office to change the place of meeting from his own office to the District Council 's office, where there was going to be a meeting of that council , replied that it was then too late, since some of the representatives had already left Subsequently, a date was set for a meeting in late November , but Jones, because of illness in his family, had his secretary notify Richman that he would be unable to attend. Following the latter date, Rich- man filed a charge against the Association of refusal to bargain. This charge was dismissed by the Regional Director on January 4, 1963. Mean- while, however, on December 28, 1962, Jones and Richman met again . Richman said that he would bargain regarding individual contracts but that if Jones wanted an association contract he would discuss it. He said, however, that he could not consider an association contract which differed to any great extent from the area contract because of a provision in the latter , designated a "favored nations clause," which pro- vided that the union signatories would not sign or work under any agreement with employers of plaster tenders in the area covered by that agreement giving more favor- able terms or working rules than those established therein. This meant that the union had to insist on'the subcontractor clause and the provisions for a bond . Jones objected to the fact that the Joint Conference Board (as trustees) would draw interest on a cash bond posted by individual employers , whereas, under an association contract, it was possible to post a blanket surety bond and he • indicated that his principals might be amenable to a blanket bond. Jones proposed an $8,000 blanket bond but Richman asked $10,000 (which would conform with the blanket surety bond permitted to be posted by one of the two employer associations with whom the Union and other locals had a contract). The relative costs of surety bonds were discussed and were checked by Richman ,' but no final agreement thereon appears to have been reached. Jones and Richman also discussed the subcontractor clause to which the Association had expressed opposition. Richman said that he could not make a contract without the subcontractor clause because of the so-called favored nations clause in the other INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 175 contract. He asked if this clause meant much (meaning, I infer, whether it would often affect) to members of the Association. Jones stated that the members of the Association were usually the subcontractors themselves. Richman said that he would sign a contract without a subcontractor clause if the employees were paid the higher wage rate as stated in his letter of October 19, 1962. Jones again said that his people would not pay higher wages than their competitors. Richman told Jones that Tarr was going to put a picket on a job that Boggs was about to commence. The testimony is in dispute as to Jones' reply. Whatever his reply was, it has no bearing on the reso- lution of the issues here presented. The meeting concluded with the apparent under- standing that Jones would check with the members of the Association to see if they would agree to the terms suggested by Richman. This was the last communication between Jones and Richman about bargaining so far as the evidence discloses. 2. Union's actions to coerce Boggs About October 5, 1962, before Jones' first meeting with Richman, Tarr appeared at an apartment construction site in El Monte, California, where Boggs was the plaster- ing contractor, and asked Boggs when he was going to sign "the agreement," referring to the area contract, copies of which had been delivered to Boggs in June 1962. Boggs asked, "What agreement?" Tarr said, "You know what agreement." Boggs replied that Jones was representing him and was supposed to sign for him. Tarr retorted: "B- s- . . . . This could go on for a couple of years. Neither one of us is getting together. Are you going to sign this agreement or am I going to shut the job down?" Boggs said he thought "we was getting together," that "Jones and we are negotiating right now" and that he thought "we could sign through an association." Boggs asked time to telephone Jones and did so, but Jones was not in his office. Boggs left word for Jones to meet them at the jobsite. Tarr waited about an hour longer and then left for lunch, but not before he had spoken with Boggs' employees, Wallace Rollman, James Warner, and Luther Burke. He told Rollman, who was working foreman and a member of a sister local (Local 806, Pomona), and Warner separately that he (Tarr) was closing the job down because Boggs did not have an agreement, and he told Warner that Warner should go home and that he (Tarr) would return after lunch to see if Warner had left. In the presence of Rollman and Burke, Tarr said that if they did not leave the job they would be cited before the executive board. Burke, commented that he did not know why the Union would send him out on Wednesday and make him leave the job on Friday, but he left the job at once. Warner and Rollman continued to work after lunch. Tarr returned and told Warner that he was "getting in deeper" by continuing to work. On January 3, 1963, early in the morning, while Boggs was working on a plastering job in El Monte (not the same one as in October 1962), pickets were posted by the Union on this job with signs reading: "Elmer Boggs Unfair. No signed agreement. Local 1082." Tarr, who was present, told Warner, Boggs' employee, that he was setting up a picket line and that Warner was not to work, and that if he worked he would be cited before the executive board of the District Council. Warner did, how- ever, continue to works On the next morning, January 4, Tarr appeared at the same construction site and asked Boggs if he were going to sign the agreement. Boggs said that Jones was repre- senting him in negotiations and that he would like to know what was happening. Boggs, having telephoned Jones, was expecting Jones to come to the site of the picket- ing, and told Tarr that he would like to wait until Jones came. While they were waiting and discussing the contract, the general contractor, for whom Boggs was a subcontractor, arrived and from a distance observed the proceedings. Boggs said that the agreement which Tarr was attempting to get him to sign called for a cash bond and he asked if Tarr would take an assignment of a Government bond. Tarr said he had never heard of anything like that. Boggs suggested an indemnity bond. Tarr said that he did not want an indemnity bond because it took too long to get the money. Finally Tarr said that if Boggs would give a certified check for $1,000, he would hold it (uncashed) until Jones and Richman got together and arranged a blanket bond. While they were waiting for Jones, Tarr told Boggs that he had spoken with' the general contractor the night before and warned him that Boggs' job would be picketed unless Boggs signed the agreement and that unless the general contractor got Boggs to sign the agreement he was going to picket his job, too. One of Boggs' suppliers arrived with a load of sand while they were there and Tarr sought to stop the driver from e Although Warner was later cited before the executive board and was fined, I do not rely on this fact in making any conclusions herein. 775-692--65-vol. 150--13 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD making delivery. When Jones had not arrived by 10:15 a.m., Boggs finally told Tarr that he would sign the agreement with the understanding that he could give a certified check for the bond and that the check would be held uncashed until a blanket bond was agreed on between Jones and Richman. After Boggs had signed the contract, Tarr took him to the general contractor and told the latter that Boggs had promised to deliver a certified check by the following Tuesday (January 8) and that if he failed to do so, he (Tarr) was going to bring action against both of them. It does not appear what action he had in mind. Immediately following this, the picket line was removed. As previously mentioned, a charge was filed against Respondents on Monday, Janu- ary 7, 1963, based on the foregoing occurrences, including picketing to force or require Boggs to post a bond that was not a mandatory subject for collective bargain- ing. Boggs did not deliver the certified check on January 8. I deduce that Boggs did not intend to do so until coerced into doing so. On Thursday, March 21, 1963, theLUnion again picketed one of Boggs' jobs in El Monte, and the picketing continued on Friday and the following Monday with a sign saying, "Violation of contract with Local 1082, Hod Carriers, El Monte." On Monday, Mach 25, 1963, Boggs talked with Tarr, meanwhile having given another union agent a certified check for the bond to be delivered to Tarr. Tarr told Boggs that he had five violations against Boggs, including failure to give the bond. Boggs told Tarr that he had given the check for the bond to the other agent. Another alleged violation was not having employee Warner cleared through the union hall. Regarding this, Boggs said that the Union would not accept Warner's dues and he did not expect that the Union would clear him. Tarr asked how Boggs would know whether or not the Union would give Warner a clearance. Boggs either had or thereafter remedied the other'alleged violations. (It does not appear whether or not the Union thereafter insisted on Warner's coming in to get a clearance.) Following this conversation, the picket line was removed. - - 3. Conclusions regarding refusal to bargain a. Insisting on nonmandatory subjects of bargaining The Association, including Boggs, objected to both the subcontractor clause and the bond clause which the Union demanded as a condition to signing any contract with the Association. If these were not mandatory subjects of bargaining, the Union was refusing to bargain by insisting upon their inclusion as a condition to reaching an agreement .7 The clause commonly designated a subcontractor clause is understood to mean a clause which requires any signatory to the contract to insist that any subcontractor of his shall either sign the same agreement or agree that, with respect to his employees, the subcontractor will abide by all the provisions in the contract of which the subcon- tractor clause is a part, or both. The clause insisted upon by the Union in this case was no exception, but it also contained a provision that the "contractor shall not permit subcontracting by subcontractors without his knowledge and permission in writing." Under the construction industry exemption to Section 8(e) of the Act, a subcontractor clause may now be entered into and performed voluntarily, but a labor organization may not lawfully use economic action to compel an employer to agree to such a clause.8 Since an employer may not be lawfully compelled to agree to such a provision, it follows that such a provision is not a mandatory subject of bargaining and that the Union, (1) by refusing to enter into an agreement with the Association with- out such a provision, and (2) by later picketing in order to compel Boggs to sign an agreement containing such clause, refused to bargain within the meaning of Section 8(b)(3) of the Act.9 Respondents take the position that the subcontractor clause 7 N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342. 8 Construction, Production & Maintenance Laborers' Union Local 383, AFL-CIO, et al. (Colson and Stevens Construction Co., Inc.), 137 NLRB 1650; Building and Construction Trades Council, etc., et al. (Gordon Fields ), 139 NLRB 236; Los Angeles Building & Con- 8truction Trades Council, etc. (Cecil Mays), 140 NLRB 1249; Building and Construction Trades Council of Orange County, AFL-CIO (Sullivan Electric Company), 140 NLRB 946; Orange Belt District Council of Painters #48, etc. ( Calhoun Drywall Company), 139 NLRB 3'83. - e See N.L.R.B. v. International Brotherhood of Electrical Workers, AFL-CIO, at al., 266 F. 2d 349 (C.A. 5). INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 177 was not a real issue between the parties. This contention is apparently based on the fact that Jones, at the meeting on December 28, 1962, conceded that members of the Association were usually subcontractors and did not themselves do much subcontract- ing. There is no evidence, however, that Jones agreed to include such provision in an agreement, and, even though the clause would have little value to the Union when dealing with an Association whose members did little or no subcontracting, the Union had, by virtue of the "favored nations" clause in its contract with other employer asso- ciations, foreclosed itself from entering into any agreement not containing a subcon- tractor clause. On this state of the evidence, I find that the Association did not make a voluntary agreement to include the subcontractor clause in the agreement being negotiated. Further, Boggs' contract, signed separately under coercion while being picketed, can scarcely be called a voluntary agreement. Even if Boggs did not argue with' Tarr about the subcontractor clause, he did argue that the agreement should be handled by Jones, an argument that Respondents were bound to accede to. The fact that Boggs might have agreed to be bound by a subcontractor clause if Jones had approved it does not alter the case and make Boggs' acceptance of the subcontractor clause a voluntary one. It has long been settled that an employer who conditions agreement in collective bargaining upon the giving of a performance bond by the employees' collective- bargaining agent violates Section 8(a) (5) of the Act.'° Similarly, it has been held that a union which insists upon a performance bond from an employer is refusing to bargain.11 Although they do not argue the point in their brief, Respondents had, in negotiations, taken the position that a bond to secure payment of wages and other benefits to employees is distinguishable from a performance bond of the kind held to be a nonmandatory subject-of bargaining in the Cheatham case cited above.12 The law is now well settled regarding performance bonds as a nonmandatory subject of bargaining, but, so far as I know, the Board has never passed on a cash bond like the one demanded by the Union in this case. In the cases which have held-provisions for performance bonds to be nonmandatory subjects of bargaining, the ground usually stated is that it does not- relate to wages, hours, and other terms and conditions of employment, which are mandatory subjects of bargaining. Although it has not been mentioned, I should conceive a surety bond to be nonmandatory also because it would be an attempt to add a stranger to the bargaining process, just as where an employer refuses to enter into an agreement with a certified bargaining representative unless its parent organization also should become a party to the agreement.13 However, it has been held that any bond or indemnity clause to cover damages for breach of con- tract is a nonmandatory subject of bargaining. Hence, with or without surety, it is a nonmandatory subject of bargaining.14 In negotiations with Jones, Richman sought to differentiate the clause in the proposed contract from performance bonds generally by asserting that the Union's proposed cash bond was related to wages and other employee benefits. Perhaps Richman was looking at the cash bond as a kind of sub- stitute or alternative primary performance rather than as a remedial device to substi- tute for court action. It has been suggested that such a provision to assure payment -of employee benefits might, if there were a history of delinquency, be argued to be a mandatory subject of bargaining.15 Of course, trust funds to ensure payment of health and accident claims and of pensions are recognized as-mandatory subjects of bargaining. In the case at hand, the Union might argue that its "cash bond" to insure wages and other benefits to employees merely went into a trust fund and therefore should equally be a mandatory subject of bargaining. Whether or not this argument would meet with approval, standing by itself, it lacks merit here because of other provisions in the proffered contract. The contract was 10 Jasper Blackburn Products Corporation, 21 NLRB 1240, 1254; Taormina Company, 94 NLRB 884 u International Brotherhood of Teamsters, etc. (Conway's Express), 87 NLRB 972, 978-979: Local 16$, Brotherhood of Painters . etc. (Cheatham Painting Company), 126 NLRB 997, enfd 293 F. 2d 133 (C.A D C ), cert denied 368 U S. 824 12 The bond in that case was not stated to be a surety bond, but it was to have been forfeited and paid to the union in the event of any substantial breach of contract. 13 See Cosco Products Company, 123 NLRB 766; North Carolina Furniture, Inc., 121 NLRB 41. 14 See Cosco Products Company, supra, and cases there cited 15 51 LRRDM 99 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expected by Respondents to be taken as a package by the Association and each of its members, including Boggs; and some of the other provisions in that contract bring the cash bond more clearly into the realm of a nonmandatory subject of bargaining. The language of the contract is vague (perhaps intentionally so) as to whose employees would be entitled to benefit from the cash bond. So far as the language of the contract goes, the cash bond of an employer signatory to the contract might be assessable for wages of a subcontractor's employees in the event that the contractor had not required the subcontractor to become bound by the contract or if the subcontractor had not himself posted his cash bond. It was Richman's opinion that the cash bond of the signing employer would be so assessable. The Joint Conference Board under the terms of the contract demanded by the Union is empowered to impose "lawful penal- ties" against a contractor "for violation of this Agreement." If a signing employer should, contrary to the subcontractor clause, subcontract with a nonsigning subcon- tractor and if the latter should not pay the wages required by the contract, the Joint Conference Board might decide that the signing contractor should, as a penalty, pay those wages. Nowhere in the bond clause is the liability of a contractor specifically stated to be limited to wages of his own employees. The language of the contract is general: "Said bond shall be liable for any assessment for wages [not limited to spe- cific employees] ... as provided in this agreement, as directed by the Joint Conference Board after hearing and vote as provided in this Contract." Also, one provision in the contract is for liquidated damages for failure to perform a required act, and the bond is liable for such liquidated damages. The Board consistently viewed con- tract proposals not limited to wages, hours, or other terms or conditions of perform- ance as nonmandatory subjects of bargaining.16 So a contract which includes an obligation to pay wages of another employer's employees or to pay damages for non- performance of an employer's obligatiton, it would follow, would be a nonmandatory subject of bargaining.17 I conclude and find, therefore, that by conditioning the making of a contract depend on the Association's or Boggs' agreeing to the subcontractor clause and to the provi- sion for a cash bond, the Union has refused to bargain within the meaning of Section 8(b)(3) of the Act. b. Refusal to bargain by Respondents' take-it-or-leave-it attitude The General Counsel argues that the Union, as early as the second bargaining session .(August 14, 1962), indicated an intent not to bargain when one of the spokes- men for the Union told Jones that the unions would sign no agreement but the "standard area agreement." In view of the "favored nations" clause in that agree- ment, I conclude that the Union's spokesman was not just putting on an initial appear- ance of hard bargaining and that the Union and its contracting locals had no choice but to require the same terms and conditions from the Association. Under the Act, this favored-nations clause is no defense to a charge of refusal to bargain. Although phrased with more tact than had been exhibited by the Union's representatives on August 14, 1962, Richman's statement in his negotiations with Jones that he could not deviate to any material degree from the terms of the existing contract defined his ability to discuss terms. He too was fettered by the same favored-nations clause. This left no room for bargaining. Although he might have made minor changes in wording, he could not give different terms. The offer in his letter to give up the sub- contractor clause if the Association members agreed to pay exorbitant wage demands 16 See F McKenzie Davison, et al, d/b/a Arlington Asphalt Company, 136 NLRB 742, enfd 318 F. 2d 550 (C A. 4) ; N L R B V. Wooster Division of Borg-Warner Corporation, 356 U S. 342; Detroit Resilient Floor Decorators Local Union No. 2265, etc (Mill Floor Covering, Inc.), 136 NLRB 769; Metropolitan District Council of Philadelphia etc. (McCloskey and Company), 137 NLRB 1583. 17 Local 164, Brotherhood of Painters, Decorators and Paperhangers of America, AFL- CIO (A. D. Cheatham Painting Company), 126 NLRB 997, enfd. 293 F. 2d 133 (C.A.D C.), cert. denied 368 U.S. 824; Cosco Products Company, 123 NLRB 766; International Brother- hood of Teamsters, etc. (Conway's Empress), 87 NLRB 972; Scripto Manufacturing Com- pany, 36 NLRB 411; Jasper Blackburn Products Corporation, 21 NLRB 1240; Taormina Company, 94 NLRB 884; also cases cited, supra, footnote 16 INTERNATIONAL HOD CARRIERS, ETC., LOCAL 1082 179 can be looked upon only as a tactic to give an appearance of bargaining knowing that the offer could not be accepted. It does not convince me as being a good-faith offer. The existing contract was, therefore, offered to the Association as a contract of adherence like the contract offered by an insurance company to an applicant for insur- ance which the individual applicant cannot vary by bargaining. Tarr indicated as much in attempting to force Boggs' signing. The evidence is convincing that the Union never had an intent to negotiate a contract different from the area contract. It was committed from the outset to bringing Boggs and other members of the Associa- tion into compliance with that contract. By entering into negotiations with the Association with a fixed determination not to bargain and with a padlock on its choice of terms and conditions, the Union refused to bargain in good faith with the Association, thereby violating Section 8(b)(3) of the Act. c. Restraint and coercion in selection of bargaining representative; use of divisive tactics Before any impasse had arisen and after a flat statement by the Union's representa- tives of refusal to bargain, the Union began to take coercive steps against Boggs. On October 5, 1962, Tarr appeared at the site of one of Boggs' jobs and sought to coerce Boggs into forgoing bargaining negotiations through the Association and to sign the so-called area contract, implementing his conduct by telling Boggs' employees to leave the job, and succeeding in getting one to leave. On January 3, 1963, Tarr again sought to compel Boggs to sign the area contract and forgo representation by the Association by putting a picket line on Boggs' job. This was at a time when there was no impasse in bargaining and when, in fact, there appeared to be a possibility of an agreement. Although Boggs did not withdraw from the Association, he did, in order to get rid of the picket line, sign the area con- tract. Tarr at that time expressed his opinion of collective bargaining as futile because it would not make the Association accept the area contract. My conclusion that the Union, by Tarr's conduct, violated Section 8 (b) (1) (B) and 8 (b) (3) of the Act is not altered by the fact that Tan waited for a period of about an hour for Jones to appear at the jobsite. Tarr had no legal right to approach Boggs separately about con- tract terms so long as no impasse had occurred.18 By such improper conduct of Tarr, the Union was disregarding its duty to bargain with Boggs' designated bargaining agent. Boggs at that time was the only member of the Association who was picketed. Plainly, the Union was attempting to divide and conquer. The Union cannot reason- ably argue that an impasse had been reached. Richman, himself, was of the impres- sion that the agreement on the amount of a blanket bond was the only real issue between the parties, and there is no showing that this was an insurmountable obstacle. There is no evidence that the Association was standing firm. Indeed, as nearly as I can determine from the evidence, Jones did not flatly reject the Union's latest offer but was going to explore the subject with the Association's committee. But even if Jones had not indicated as much, I should find no impasse here. As stated by the Board in The Westchester County Executive Committee etc., 142 NLRB 126, "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 expected." And it must also be borne in mind that even if an impasse had been reached here, it would be mainly because the Union had made it impossible for itself to vary the terms of the area contract by virtue of the favored-nations clause and because of its insistence on nonmandatory subjects of bargaining. On all the evidence, I conclude and find that, by picketing Boggs in order to coerce him into abandoning negotiations through his chosen representative and to coerce him into entering into a separate contract, the Union has violated Section 8(b)(3) and 8(b)(1)(B) of the Act.19 18 The Westchester County Executive Committee, etc. (Builders Institute of West- chester and Putnam Counties, Inc.), 142 NLRB 126. 11 The Westchester County Executive Committee, supra; General Teamsters Local Union No. 324, etc. (Cascade Employers Association, Inc.), 127 NLRB 488. 180 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD d. Violations of Section 8(b)(4)(i), (ii)(A) and (B) In view of the numerous decisions holding that coercion to obtain a contract author- ized by Section 8(e) is a violation of the Act,20 the Respondents have no reasonable defense to the allegations of the complaint under Section 8 (b) (4) (ii) (A) of the Act. There is no evidence that the Association had accepted the subcontractor clause voluntarily Even if Jones had intimated that the subcontractor clause would seldom affect the members of the Association and that, for this reason, it was not a major stumbling block, the Respondents did not even wait to see whether or not the Associa- tion would assent to it. I find no evidence that Jones even suggested that the objection to this clause might be waived if the parties came to agreement in the Union's demand for a cash bond, nor do I find any evidence that Boggs would have assented to such a clause in the absence of picketing. By Tarr's conduct in placing pickets on Boggs' job on January 3 and 4, 1963, thereby forcing Boggs to sign a contract containing the aforesaid subcontractor clause, the Respondents have engaged in unfair labor prac- tices in violation of Section 8(b) (4) (ii ) (A) of the Act, and by the same conduct the Respondents have engaged in unfair labor practices in violation of Section 8(b) (4) (ii) (B) of the Act.21 By Tarr's conduct on behalf of the Union, designed to induce employees to withhold their services from Boggs, as- described above,22 with an object of forcing Boggs to sign a subcontractor clause described above, the Union has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) (A) and (B).23 i Although Tarr was named as a party respondent to the case, the complaint describes the aforesaid conduct of Tarr on behalf of the Union only as that of an agent and does not, in its conclusionary paragraphs (paragraphs 15, 17,- 18, 19 ), allege that Tarr, individually, committed the unfair labor practices charged to the Union. For this reason, I make no finding that Tarr, himself, violated the Act. -- IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents , set forth in section III, above , occurring in con- nection with the operations of Boggs, 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 thereof. 20 The Essex County and Vicinity District Council o f Carpenters and Millwrights, etc (Associated Contractors of Essex _ County, Inc.), 141 NLRB 858; Hoisting, and Portable Engineers Local Union 101, etc. ( Sherwood Construction Company, Inc.), 140 NLRB 1175; Building and Construction Trades Council of Orange County , AFL-CIO ( Sullivan Electric Company ), 140 NLRB 946; Local Union 825, International Union of Operating Engineers, AFL-CIO ( Nichols Electric Company ), 140 NLRB 458; Building and Construction Trades Council of San Bernardino and Riverside Counties, et at (Gordon Fields ), 139 NLRB 236. 21 Orange Belt District Council of Painters #48, etc., AFL-CIO (Calhoun Drywall Com- pany ), 139 NLRB 383, and cases cited supra, footnote 20. 22I include in this finding Tarr's directions to Boggs' employees on October 5, 1962, to stop working , his direction to an employee of one of Boggs ' suppliers to desist from de- livering sand to Boggs , and his establishment of a picket line on January 3, 1963, as well as statements to Boggs' employees in January 1963 designed to interrupt their services. Although Tarr was successful in getting only Burke to quit working, in October, success is not an element of "inducement" as that word is used in the Act The Essex County and Vicinity District Council, etc, supra The General Counsel argues that Tarr' s inducement of Boggs' foreman , Rollman, is to be included because Rollman is an "individual" within the meaning of Section 8(b) (4),(i ) of the Act, citing Carolina Lumber Company, 130 NLRB 1438 Although I agree that Rollman is to be included , I find it unnecessary to decide the nature of Rollman's supervisory status inasmuch as the circuit' court has dis- agreed with the distinctions made by the Board in the case cited by the General Counsel regarding types of supervisors and includes all kinds of supervisors. Servette, Inc. v. N.L.R.B., 310 F. 2d 659 (CA. 9). 3Los Angeles Building & Construction Trades Council, etc. (Interstate Employers, Inc ), 140 NLRB 1249; Orange Belt District Council of Painters #48, AFL-CIO, etc (Calhoun Drywall Company), supra, Construction, Production S Maintenance Laborers Union Local 383, AFL-CIO, at at (Colson and Stevens Construction Co., Inc ), 137 NLRB 1650, Building and Construction Trades Council of Orange County, AFL-CIO, supra, Hoisting and Portable Engineers Local Union 101, etc, supra; The Essex County and Vicinity District Council of Carpenters and Millwr ights, etc , supra. INTERNATIONAL HOD CARRIERS, ETC:, LOCAL 1082 181 V.' THE REMEDY I have found herein that the Union has engaged in unfair labor practices within the meaning of Section 8(b) (1)(B ), (3), and (4)(i), (ii)(A) and (B). I shall therefore recommend an order that the Union cease and desist from the conduct herein found to be violative of the Act, and I shall recommend the usual appropriate affirmative action designed to effectuate the policies of the Act. Because the contract which Boggs signed was procured under duress, I shall recom- mend that the Union cease and desist from giving effect to such contract. Although the evidence indicates that the principal objections that Boggs had to this contract involved the subjects which were not mandatory subjects of bargaining, the evidence is not clear that any voluntary agreement was finally reached on the remaining subjects. Therefore, I shall not exclude the remainder of the contract from this recommendation. The General Counsel urges, as part of the remedy, that the cash bond be returned to Boggs, and the Charging Party requests a remedy that, in addition to a return of the bond, "the Respondent" pay interest on the sum for the time it was retained. The Respondents, on the other hand, protest that an order for return of the bond is in- appropriate because of the fact that the agreement signed by Boggs was a joint one with a number of unions (members of same District Council) and that the bond was for the benefit of all the parties, and that therefore no order refunding the cash bond could run against the Union alone nor against all the locals without joining the other locals as parties respondent. The evidence, however, discloses that Boggs gave a certified check to.Tarr upon Tarr's promise not to cash the check until Jones and Richman had agreed upon a blanket bond for the Association There is no evidence that the Association, Boggs' bargaining agent, and the Union or any of the other unions of the District Council ever reached an agreement , on a blanket bond. Pre- sumably, therefore, either Tarr or an officer of the Union still holds Boggs' certified check intact. This being the case, I find no difficulty in framing a remedy requiring that the check be returned to Boggs. The theory upon which interest is given in Board orders, such as orders for backpay, is that the employer has had the use of moneys which rightfully belonged to employees. In the case at hand, since the certified check which Boggs gave to Tarr was to be held uncashed, it is obvious that the Union did not have the use of the funds for the purpose of investing it and getting interest thereon. Under the circumstances of this case, therefore, I believe it would not be appropriate to require the Union to pay interest on the cash bond which still remained (by agreement) in the form of a certified check, and I shall not so recommend. Even if the Union wrongfully cashed the check and turned the proceeds into the joint fund, the responsibility of refunding the $1,000 to Boggs will be the Union's alone, for Tarr was acting (unlawfully) only for the Union in procur- ing the so-called cash bond from Boggs. It is unnecessary, for the purposes of this case, to look to the source from which the Union procures the $1,000 to make restitution to Boggs. 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. Boggs is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Boggs is a person, engaged in commerce or in an industry affecting commerce, within the meaning of Section 8(b)(4)(i) and (ii) of the Act. 3. All of Boggs' plaster tenders working in the geographical area of Los Angeles County, Orange County, Catalina Island, and the following offshore islands if the point of embarkation is from Los Angeles or Orange counties, namely: Richardson Rock, Santa Cruz Island, Arch Rock, San Nicholas Island, San Clemente Island, San Miguel Island, Santa Rosa Island, Anacapa Island (Channel Islands Monument), and Santa Barbara Island, excluding executives, civil engineers and their helpers, superintendents, assistant superintendents, master mechanics, timekeepers, messenger boys, office workers, or any employees of the contractor above the rank of craft foreman. and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, Respondent Union has represented, and presently does represent, a majority of the employees in the unit described above and has been, and presently is, the exclusive representative of all employees in said unit for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other "editions of employment by virtue of Section 9(a) of the Act. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. George Tarr, at all times material herein, has been and still is a business repre- sentative of the Union and is an agent of the Union, within the meaning of Section 2 (13) of the Act, acting on its behalf. 6. By forcing Boggs to enter into an individual contract, not negotiated for him by his designated representative, the Association, the Union has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(B) of the Act. 7. By the conduct stated in paragraph 6, above, and by refusing to enter into or to negotiate any contract which did not contain nonmandatory subjects of bargain- ing, to wit, a subcontractor clause and a bond as security for the performance of the agreement, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (3) of the Act. 8. By insisting that Boggs accept a package contract on a take-it-or-leave-it basis, the Union has engaged in unfair labor practices within the meaning of Section 8 (b) (3 ) of the Act. 9. By picketing Boggs and by inducing or encouraging individuals employed by Boggs to refuse, in the course of their employment, to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or com- modities, or to perform any services, and by threatening, coercing, and restraining Boggs, where, in each event, an object thereof was forcing Boggs to enter into an agreement which is prohibited by Section 8(e) and forcing Boggs to cease doing business with any other subcontractor who had not signed the Union's area agreement, the Union has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(b) (4) (i), (ii) (A) and (B) of the Act. [Recommended Order omitted from publication.] Davis Cabinet Company and Middle Tennessee District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases Nos. 26-CA-1790 and 26-RC-92142. December 15, 1964 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On September 30, 1964, Trial Examiner William W. Kapell issued his Decision in the above-entitled consolidated proceeding, finding that Respondent had engaged in certain unfair labor practices as alleged in Case No. 26-CA-1790, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of these alle- gations. He further found that the objections to the election in Case No. 26-RC-2142 should be sustained, and recommended that the election be set aside. Thereafter, the Respondent filed exceptions, with a supporting brief, to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Leedom and Jenkins]. 150 NLRB No. 22.