Pipefitters, Local Union No. 280

398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , AFL-CIO, Local Union No. 280 ; and Southern California Pipe Trades District Council No. 16 of the United As- sociation (Aero Plumbing Co.) and Al Aukerman. Case 21-CB-3416 June 30, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS On April 2, 1970, Trial Examiner George H. O'Brien issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and are engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent and the General Coun- sel filed exceptions to the Decision, and the Respondent filed a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. 1. The Trial Examiner found that "[t]he illegal strike by Respondent Council, and the picketing in support of this illegal strike by Respondent Local coerced Aero into the acceptance of terms and conditions of employment which were permissive but nonmandatory subjects of bargaining" in viola- tion of Section 8(b)(1)(B) and (3) of the Act. We agree. However, he found further that "[t]here is no evidence that Respondent Council or Respondent Local directed, authorized or ratified the picketing of Aero by Plumbers Local No. 78 on July 11, 1969." We disagree. The facts, as found by the Trial Examiner, show that on July 3 or 4, 1969, Respondent Local's business manager, Brannon, was informed by Aero's secretary-treasurer and part owner, Aukerman, that Aero would be work- ing for Mayer Construction Company on a con- struction job in Rolling Hills the following week. On July 6, 1969, Brannon told a representative of Plumbers Local 78 (which had territorial jurisdic- tion over Rolling Hills) that Aero would be working in Rolling Hills, that Aero had not signed a con- tract, and that they should "be on the lookout, maybe they could get [Aukerman] to sign the con- tract." On July 11, 1969, Plumbers Local No. 78 picketed Aero at the Rolling Hills jobsite. On July 12, an official of Mayer told Aukerman that if he did not "get the pickets off the job and quit stopping production," Mayer would have to cancel Aero's contract. On July 14, Aero signed an agree- ment with Respondents containing permissive but nonmandatory subjects of bargaining. We believe that, by informing Plumbers Local No. 78 that Aero would be in its jurisdiction, that Aero had not signed a contract, and that Plumbers Local No. 78 should be on the "lookout" and try to get Aero "to sign the contract," Respondent Local became responsible for the picketing conducted by Plumbers Local No. 78 for the purpose of trying to persuade Aero to sign the contract. Accordingly, we find that the illegal strike called by Respondent Council and the picketing in support of this illegal strike by Respondent Local on July 1, 1969, together with the picketing by Plumbers Local No. 78 on July 11, 1969 (for which Respondent Local is responsible), coerced Aero into the acceptance of terms and conditions of employment which were permissive but nonmandatory subjects of bargain- ing, in violation of Section 8(b)(1)(B) and (3) of the Act. 2. The Trial Examiner found further that Respondents violated Section 8(b)(3) of the Act by engaging in, and inducing the employees of Aero to engage in, a strike against Aero for the purposes of modifying or terminating a contract without first complying with the requirements of Section 8(d) of the Act. Although the Trial Examiner recom- mended that Respondent be ordered to cease and desist from such illegal acts, he failed to include any such provisions in the notice to be posted by Respondents. The General Counsel excepted to such failure, and we find merit in the General Counsel's exception. J. V. McCoy and Partners d/bla McCoy Coal Company, 165 NLRB 592. Ac- cordingly, we shall add such provisions to the notice to be posted by Respondents. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, as modified below, and hereby orders that the Respondents, 184 NLRB No. 44 PIPEFITTERS , LOCAL UNION NO. 280 399 Southern California Pipe Trades District Council No. 16 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, and its affiliated Local Union No. 280, El Monte, California, their officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. Add the following two paragraphs as the last paragraphs of the notice attached to the Trial Ex- aminer's Decision as Appendix: WE WILL NOT refuse to bargain collectively with Aero Plumbing Co. or its successors con- cerning the termination or modification of any collective-bargaining contract between our Union and the Company by failing, before striking and picketing, to (I) serve 60 days' written notice of our intention to modify or terminate such collective-bargaining contract pursuant to Section 8(d)(1) of the Act; (2) offer to meet and confer with the Company for the purpose of negotiating a new or modified contract pursuant to Section 8(d)(2) of the Act; (3) give notice of the existence of any dispute between our Union and the Company to the Federal and State Mediation Services pursuant to Section 8(d)(3) of the Act; and (4) continue in full force and effect without resorting to strike all the terms and conditions of any existing contract pursuant to Section 8(d)(4) of the Act; provided, however, that no such notices under Section 8(d)(3) shall be required if an agreement is reached within 30 days following service of a notice of proposed termination and modification. WE WILL NOT engage in or induce employees of Aero Plumbing Co. or its successors to en- gage in a strike against said Company for the purpose of modifying or terminating a collec- tive-bargaining contract without first having complied with the requirements of Section 8(d) of the Act. TRIAL EXAMINER'S DECISION including the Decision and Order of the National Labor Relations Board in Southern California Pipe Trades District Council No. 16 of the United Associa- tion (Aero Plumbing Co.), Case 21-CB-2806, 167 NLRB 1004, of which I take official notice, and after due consideration of the posthearing briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Aero Plumbing Co., herein called Aero, is a plumbing contractor in the building and construc- tion industry with its shop and principal place of business located in El Monte, California. M. A. Mayer Construction Company is a general contrac- tor in the building and construction industry with its principal place of business in Downey, Califor- nia. During the 12-month period commencing July 1, 1968, Mayer Construction Company purchased and received goods, materials, and supplies which came to it directly from outside the State of California valued at about $100,000. During the same period, Aero performed work and furnished supplies to Mayer valued in excess of $125,000. Aero is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS Southern California Pipe Trades District Council No. 16 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, herein called Respondent Council or Council, represents for the purposes of collective bargaining with employers the members of af- filiated local unions in the following California counties: Los Angeles, Orange, Riverside, San Bernardino, Imperial, San Diego, Ventura, Santa Barbara, and San Luis Obispo. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Local Union No. 280, herein called Respondent Local or Local 280, is a subor- dinate affiliate of Respondent Council with terri- torial jurisdiction which includes Aero's El Monte shop. Respondent Council and Respondent Local are labor organizations within the meaning of Sec- tion 2(5) of the Act. STATEMENT OF THE CASE GEORGE H. O'BRIEN, Trial Examiner: On January 29, 1970, a hearing was held in the above-entitled matter in Los Angeles, California, at which all parties appeared and participated. The complaint issued October 24, 1969, is based on a charge filed July 7, 1969, and alleges violations of Section 8(b)( 1) (B) and (3) of the National Labor Rela- tions Act. Upon the entire record in this proceeding III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. By striking Aero on July 1, 1969, and picket- ing Aero on July 3, 1969, without serving or filing any of the notices required by Section 8(d) of the Act, did Respondents refuse to bargain with Aero in violation of Section 8(b)(3) of the Act? 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Did the said strike and picketing restrain and coerce Aero in the selection of its representative for the purposes of collective bargaining or the ad- justment of grievances and thereby violate Section 8(b)(1)(B) of the Act? 3. Were Respondents or either of them responsi- ble for the picketing of Aero by Local 78 of the United Association on July 11, 1969? 4. Did Respondents' entire course of conduct constitute a refusal to bargain in good faith and thereby violate Section 8(b)(3) of the Act? B. Background It is the practice of Council to negotiate and enter into a collective-bargaining agreement with Plumbing-Heating and Piping Employers Council of Southern California, Inc., a multiemployer associa- tion . Thereafter Council prepares a similar, though not identical contract, called the Independent Agreement which it submits for signature to plumb- ing contractors who are not members of the Em- ployers Council. Al Aukerman started in business as a plumbing contractor in 1964 and in the same year, as secreta- ry-treasurer and part owner of Aero , signed Respondents' standard Independent Agreement. The first contract between Aero and Respondents expired July 1, 1966. On some date before July 12, 1966, the standard Independent Agreement effec- tive from July 1, 1966, through June 30, 1969, was submitted to Aukerman, who was then a member of Interstate Employers Association. On July 12, 1966, Aukerman and Frank Calhoun, who was then president of Interstate Employers Association, met with Harold Moore, a business agent of Local 280. Calhoun, speaking for Aukerman, stated that there were four provisions in the Independent Agreement which Aero could not accept. These were (1) provisions making Plumbing-Heating and Piping Employers Council of Southern California the agent of Aero for adjustment of grievances, (2) bond provisions, (3) contributions to an industry promotion fund, and (4) application of the Agree- ment to owners and supervisors. Thereafter four meetings were held by representatives of Aero and representatives of Council. Negotiations were broken off by Everett Schell, executive secretary of Council, on October 4, 1966. On the afternoon of October 4, 1966, three of Aero's employees were working on a jobsite within the territorial jursidiction of Plumbers Local 761 when they were informed by a business agent of that local that Aero had not signed an agreement, that there would be a picket line the next day, and that they should not return to work for Aero the following day. On October 10, 1966, Interstate Em- ployers Association filed a charge (Case 21-CB-2806) against Council. On October 11, 1966, Aero signed the standard Independent Agreement. - On October 24, 1967, the Board handed down a Decision and Order in Case 21-CB-2806, reported in 167 NLRB 1004. The Board held that by insist- ing as a condition of signing a contract that Aero agree to four provisions which are permissive but nonmandatory subjects of bargaining, Council vio- lated Section 8(b)(3) of the Act; and that by strik- ing, Council coerced Aero in the selection of its representative for collective bargaining and adjust- ment of grievances and thereby violated Section 8(b)(1)(B) of the Act. The Board ordered, inter alia, that Council: 1. Cease and desist from: (a) Refusing to bargain with Aero Plumbing Co. by requiring as a condition of agreement that Aero: (1) appoint the Plumbing-Heating and Piping Employers Council of Southern California as Aero's agent for the purpose of collective bargaining or the adjustment of grievances ; (2) post a bond; (3) pay sums of money to an industry promotion fund; or (4) apply the terms of the contract to owners or supervisors. (b) Coercing or restraining Aero Plumbing Co. in the selection of its representative for purposes of collective bargaining or the adjust- ment of grievances. (c) Applying or enforcing those portions of the existing contract with Aero Plumbing Co., requiring: [items (1), (2), (3), and (4), supra ] or the acceptance of any modification, exten- sion , or renewal of that contract or the resolu- tion of any grievances thereunder except as agreement in such matters may be reached with representatives chosen by Aero Plumbing Co. 2. Take the following affirmative action: (b) Reimburse Aero Plumbing Co. for ex- penses incurred to date in connection with the posting of a bond or the payment of sums of money to the industry promotion fund. Thereafter and through June 30, 1969, Aero and Council abided by the terms of the 1966 standard Independent Agreement except for the clauses made inoperative by the Board's Order of October 24, 1967. Aukerman had ceased to be a member of Interstate Employers Association December 3 1, 1966. C. Respondent's Actions in 1969 Section 8(d) of the Act requires: ... That where there is in effect a collective- bargaining contract ... the duty to bargain col- lectively shall also mean that no party to such contract shall terminate or modify such con- tract, unless the party desiring such termina- tion or modification- (1) serves a written notice upon the other party to the contract .... PIPEFITTERS, LOCAL UNION NO. 280 401 (2) offers to meet and confer with the other party.... (3) notifies the Federal Mediation and Con- ciliation Service ... of the existence of a dispute, and simultaneously therewith notifies any State ... agency established to mediate and conciliate disputes .... (4) continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such con- tract, whichever occurs later. On April 30, 1969, Council notified the Federal Mediation and Conciliation Service and the Califor- nia State Conciliation Service that it had served written notice on Plumbing-Heating and Piping Em- ployers Council of Southern California of proposed termination or modification of the existing con- tract, the expiration date of which was June 30, 1969. Council did not notify Aero of any proposed termination or modification of its separate agree- ment with Aero, nor did Council file with the State or the Federal service any notice concerning proposed termination or modification of its separate agreement with Aero. Under date of June 25, 1969, Henry G. Brannon, business manager of Respondent Local 280, mailed to Aero a form letter reciting: As you know, the Plumbing and Heating agreement to which you are signed, expires June 30, 1969. A new Agreement is now being negotiated. At this writing it appears that settlement will not be reached by the above date. There will be a short form Agreement or a thirty day interim Agreement available in Local 280's office on Friday, June 27, 1969 after 10:00 a.m. Needless to say, no work will be allowed on any job in Local 280's territory after July 1, 1969 without your shop being signatory to the Agreement. Upon receipt of Brannon's communication, Au- kerman conferred with Calhoun, and replied on June 27 to Brannon as follows: Since the agreement to which I am signatory has been negotiated between this firm and the Pipe Trades District Council No. 16 on behalf of Local Union 280 as well as on behalf of other local unions within the geographical ter- ritory of the District Council, I shall forward a copy of your letter together with a copy of this letter to District Council No. 16 and to my col- lective bargaining agent, Mr. Frank Calhoun. In the meantime, I suggest that we extend our existing agreement for at least a period of thirty days and that you send us a copy of the proposed short form Agreement and the interim Agreement for our consideration. In the interest of promoting peaceful and harmonious relations in this field of collective bargaining, I am sure it will be to our mutual advantage to comply with our existing Agree- ment and with the mandatory collective bargaining procedures as set forth in Section 8(d) of the Labor Management Relations Act. These conditions, of course, prohibit strikes or lockouts until other 'preliminary steps are taken. On the same date Calhoun wrote to Everett Schell, executive secretary of Respondent Council, offering to meet for the purpose of negotiating changes in the Aero agreement "by upgrading the rates of pay, wages, hours of work and other condi- tions of employment so that we will continue to meet the standards prevailing in the industry," and suggesting "that we mutually agree to extend our existing Agreement for a period of time sufficient to enable us to consummate a new or amended Agreement." On Monday evening, June 30, Brannon telephoned Aukerman and told him that none of Aero's employees would be permitted to work the following day unless Aukerman signed the interim Agreement. Aukerman replied that he would have to do the work himself. On July 1, Attorney Eugene Miller acknowledged receipt of Aukerman's letter of June 27, enclosed a copy of the interim Agreement effective to August 1, and advised him that "no members of the Union will be permitted to work for any employers on or after July 1, 1969 who have not executed an Agree- ment with the Union." The interim Agreement sub- mitted by Miller contained the clause: The Employer agrees to be bound by all terms and conditions of the 1969-1972 standard In- dependent Agreement when printed and made available to the Employer. On July 1, Aukerman, his partner, and his son worked on a job in Temple City in the territorial ju- risdiction of Respondent Local. About 10 a.m. a picket appeared with a sign bearing the legend: AERO PLUMBING IS WORKING WITHOUT A CONTRACT. LOCAL 280. Carpenters, electricians, and sheetmetal workers left the job when the picket appeared. Aukerman, his partner, and his son worked on the Temple City job for the remainder of the week. On either July 3 or 4, Brannon spoke to Auker- man at the jobsite and told him that a new interim Agreement would be available on Monday, July 8. Aukerman asked that a copy be sent to him, and 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also told Brannon that he would be working for Mayer on a job in Rolling Hills the following week. On Saturday, July 6, Brannon told a representative of Plumbers Local 78 (which had territorial ju- risdiction over Rolling Hills) that Aero would be working "down there," that Aero had not signed a contract and that they should "be on the lookout, maybe they could get [Aukerman] to sign the con- tract. " Aukerman filed the charge giving rise to this proceeding on Monday, July 7, and he and his son worked on the Rolling Hills job from the 7th through the 10th without incident. Meanwhile on July 7, Calhoun wrote to Miller, asking whether Miller had authority to negotiate, declining to sign the interim Agreement, reminding Miller that the strike against Aero was illegal, and again requesting that they set a date to begin negotiations for a new contract. Miller replied on July 9: ... the union is willing to meet with you at a mutually convenient time and place for the purpose of negotiating a new labor agreement. Due to the fact that the Unions are presently engaged in negotiations with the Employers Council, tentative dates cannot be given to you. As soon as the unions are available, I will be in contact with you. On Friday, July 11, Plumbers Local No. 78 picketed Aero.at the Rolling Hills jobsite. On Satur- day, July 12, an official of Mayer Construction Company told Aukerman: "if we did not get the pickets off the job and quit stopping his production, that he would have to cancel our contract." On Monday, July 14, at Aero's shop, to which Brannon had been invited by Aukerman, the two signed an agreement providing: This agreement is entered into by and between Southern California Pipe Trades Dis- trict Council No. 16 on behalf of all employees represented by the Unions, and the under- signed Employer, effective as of July 7, 1969. This Agreement will supercede any Agreement now covering such work. A complete mimeographed Agreement is available at the Local Union office which con- tains the items and language that will be in the Agreement when printed, covering the period of July 7, 1969 through June 30, 1972. The Employer acknowledges that he is familiar with the terms of the mimeographed Agreement and that he will sign and be bound by the printed Agreement when available for signature. Aukerman asked Brannon to send a copy of the completed mimeographed Agreement to Calhoun. On July 25, Miller mailed to Calhoun a copy of the complete mimeographed Agreement with a cover- ing letter stating: The reason that this agreement is not being dis- tributed is because, as you know, the strike with the Employer's Council is still in progress and the enclosed agreement may be further amended to include more favorable terms when the strike is concluded. After you have had an opportunity to review the enclosed please let me know when it would be con- venient for you to discuss this matter further with the undersigned. A few days later Calhoun telephoned Miller and stated that there were certain provisions that he was not satisfied with and that he was going to propose changes. Somewhat later Calhoun again called Miller. Calhoun testified: Q. (By Mr. Miller) Could you tell us the purpose of the second call? A. To inform you again that I hadn't an- swered previously and that I had intended to, but I think we were so busy I didn't-that I hadn't done it yet. 0. What were you going to respond to, Mr. Calhoun? What were you refering to? What were you going to answer? A. I was going to bring to your attention the previous contract that Mr. Aukerman had with the Plumbers Union, and state that we had no objections to adopting the agreement providing the same clauses in the previous-correction- the same clauses that were deleted in the previ- ous agreement, by the Board's ruling, were deleted from this agreement. 0. Did you ever tell me that over the phone, that that was what you were willing-that that was going to be your position? A. No, I don't think I ever did. Q. . . . isn't it a fact that you did tell me that you were going to respond to that letter? A. I told you I intended to, yes. Q. Did you ever? A. No, I didn't Q. Do you recall me telling you in any one of the two telephone conversations that as soon as you had responded to my letter, that I was willing to sit down and meet with you and talk about the contract? A. I don't believe that was discussed. I don't recall that. Q. You don't recall that? A. No sir, I don't recall that.. Miller testified: ... in one of these conversations I asked [Calhoun] whether he was going to take the same position that he had taken in regard to the 1966 collective bargaining agreement, in which he had advised the Union that his client had no objection to the mandatory subjects of bargaining and he had objected to the permis- sive subjects of bargaining ; and I asked him whether that was going to be his position again. PIPEFITTERS , LOCAL UNION NO. 280 403 And at that time-and, again , I am not sure whether it was in the first conversation or the second conversation-he told me that he did not know, but that his position would be set forth in writing . And I told him I would wait to hear from him, and that when I did, we would sit down and talk about the contract. After that second phone conversation, I received no further communication from Mr. Calhoun, nor did I receive any further phone calls from Mr. Calhoun. The standard Independent Agreement mailed to Calhoun by Miller contains all four of the nonman- datory provisions described and rendered nugatory as to Aero in and by the Board's 1967 decision. D. Concluding Findings Respondent Council was responsible for the strike of Aero's employees and is jointly responsible with Respondent Local for the picketing of Aero on July 3, 1969. There is no evidence that Respondent Council or Respondent Local directed, authorized, or ratified the picketing of Aero by Plumbers Local No. 78 on July 11, 1969. Respondent Council has not yet agreed to meet and negotiate with Aero pursuant to the request by Calhoun of June 27. Miller has not yet answered Calhoun's question of July 7 as to whether Miller was an authorized agent of Respondent Council for collective bargaining. Respondent Council 's adamant attitude on the four matters of nonmandatory bargaining in the Inde- pendent Agreement is evidenced by the fact that the interim Agreement tendered by Miller to Aero was a "blank check," and the Agreement signed under compulsion by Aukerman on July 14 incorporated these clauses by reference, while Respondent Council was simultaneously conducting an illegal strike against Aero and failing to meet and bargain "because the Unions are presently engaged in negotiations with the Employers Council." Section 8(d) imposes identical concomitant obligations and duties on Unions and on Em- ployers. Textile Workers Union of America, CIO, (Personal Products Corporation), 108 NLRB 743, 744. The contract with Aero which expired June 20, 1969, could not be changed thereafter by uni- lateral action without bargaining. N.L.R.B. v. Katz, 369 U.S. 736, 747. The strike by Respondent coun- cil against Aero was "illegal" and "unlawful" because of the failure of Respondent Council to give the notices required by Section 8(d)(3) of the Act. Publicity Engravers, Incorporated, 161 NLRB 221, 222; United Furniture Workers of America, AFL-CIO v. N.L.R.B., 336 F.2d 738, 739 (C.A.D.C.), cert. denied 379 U.S. 838, affg. Fort Smith Chair Company, 143 NLRB 514. The illegal strike by Respondent Council and the picketing in support of this illegal strike by Respondent Local coerced Aero into the acceptance of terms and conditions of employment which were permissive but nonmandatory subjects of bargaining and amounted to unilateral action by the Union. This conclusion is not foreclosed by the decision of the Supreme Court in N.L.R.B. v. Insurance Agents' In- ternational Union, 361 U.S. 447, 496, fn. 28. The appropriate remedy for any unlawful uni- lateral action, where feasible, is to reinstate the status quo ante. and retain it until Respondent ful- fills its bargaining obligation by either bargaining out a new agreement covering the subject or bar- gaining to an impase. Harold W. Hinson d/b/a Hen House Market No. 3, 175 NLRB 596. In the instant case, Aero, by Calhoun's letter of June 27, agreed in effect to be bound by the provi- sions of the standard Independent Agreement when settled, which related to "rates of pay, hours of work, and other conditions of employment." The remainder of the provisions which Respondents sought by unlawful tactics to impose are nonman- datory subjects of bargaining, and Aero cannot be compelled to bargain about their retention in its present agreement with Respondent Council. Operative Plasterers' and Cement Masons' Interna- tional Association , Local No. 2 (Arnold M. Hansen), 149 NLRB 1264, 1266. 1 shall therefore recommend that the Board again direct Respondent Council to take the same action required by the Board's Order of October 24, 1967 (167 NLRB 1004). This is not imposing a contract term on the parties or interfering with the bargain- ing process, compare Porter Co. v. N.L.R.B., 397 U.S. 99, but is merely restoring to the extent feasi- ble the status quo ante, albeit a status previously dictated by the Board. For the foregoing reasons and on the record as a whole I find that by engaging in a strike without complying with any of the provisions of Section 8(d) of the Act and by insisting upon the standard Independent Agreement containing nonmandatory subjects of bargaining, Respondents refused to bar- gain in violation of Section 8(b)(3) of the Act. I further find that by striking and picketing Aero and by insisting upon the provision in the standard Inde- pendent Agreement that Aero appoint Plumbing- Heating and Piping Employers Council of Southern California as its representative for the purposes of collective bargaining and the adjustment of grievances, Respondents violated Section 8(b)(1)(B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the opera- tions of Aero Plumbing Co., and Mayer Construc- tion Company described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow thereof. 404 DECISIONS OF NATIONAL V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I will recommend that they cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Aero Plumbing Co. and Mayer Construction Company are employers within the meaning of Sec- tion 2(2) of the Act engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondents are labor organizations within the meaning of Section 2(5) of the Act. 3. All employees of Aero performing plumbing, heating, and piping work, exclusive of all other em- ployees and all supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Respondent Council at all times material herein has been and is the exclusive collective-bar- gaining representative within the meaning of Sec- tion 9(a) of the Act of all the employees in the ap- propriate unit described in paragraph 3, above. 5. Respondent Local is a constituent or affiliated local union of Respondent Council, having territori- al jurisdiction over Aero's employees, and is an agent of Respondent Council within the meaning of Section 2(13) and 8(b) of the Act 6. By engaging in a strike and by inducing by means of picketing the employees of Aero to en- gage in a strike for the purpose of modifying or ter- minating the collective-bargaining agreement with that company without first serving the notices upon Aero Plumbing Co., the Federal Conciliation and Mediation Service, and the California State Con- ciliation Service required by Section 8(d)(1) and (3) of the Act, and without meeting and conferring with Aero for the purpose of negotiating a new con- tract or proposed contract changes, as required by Section 8(d)(2) of the Act, Respondent Council and Respondent Local have failed and refused to bargain collectively with Aero, and thereby have engaged in and are engaging in unfair labor prac- tices within the meaning of Section 8(b)(3) of the Act. 7. By insisting as a condition of signing a con- tract that Aero agree to accept Plumbing-Heating and Piping Employers Council of Southern Califor- nia, Inc., as its agent for the purposes of collective bargaining and the adjustment of grievances, to post a bond, to pay sums of money to industry promotion fund, and to apply the terms of the con- tract to owners or supervisors, Respondents have refused to bargain with Aero and thus have en- LABOR RELATIONS ROARD gaged in unfair labor practices within the meaning of Section 8(b) (3) of the Act. 8. By engaging in a strike and by inducing by means of picketing the employees of Aero to en- gage in a strike and by otherwise restraining and coercing Aero to force it to accept Plumbing-Heat- ing and Piping Employers Council of Southern California-:'to represent it for purposes of collective bargaining and the adjustment of grievances, Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case I hereby recommend that Respondents, Southern California Pipe Trades District Council No. 16 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO , and its affiliated Local Union No. 280 shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Aero Plumbing Co. by failing to serve written notice upon the Company of proposed modification or ter- mination of an existing collective-bargaining con- tract, as required by Section 8(d)(1) of the Act, or by failing to meet and confer with Aero for the pur- pose of negotiating a new contract or a contract containing proposed modifications, as required by Section 8(d)(2) of the Act, or by failing to notify the Federal Mediation and Conciliation Service and the California State Conciliation Service of the ex- istence of a dispute as required by Section 8(d)(3) of the Act. (b) Engaging in a strike, or by means of picket- ing or other means inducing employees of Aero to engage in a strike for the purpose of modifying or terminating a collective-bargaining contract without first having complied with the requirements of Section 8(d) of the Act. (c) Refusing to bargain with Aero Plumbing Co. by requiring as a condition of agreement that Aero (1) appoint the Plumbing-Heating and Piping Em- ployers Council of Southern California as Aero's agent for the purpose of collective bargaining or the adjustment of grievances; (2) post a bond; (3) pay sums of money to an industry promotion fund; or (4) apply the terms of the contract to owners or supervisors. (d) Coercing or restraining Aero Plumbing Co in the selection of its representative for the pur- poses of collective bargaining or the adjustment of grievances. PIPEFITTERS, LOCAL UNION NO. 280 (e) Applying or enforcing those portions of the existing contract with Aero Plumbing Co. requiring (1) the appointment of the Plumbing-Heating and Piping Employers Council of Southern California as Aero's agent for the purpose of collective bargain- ing or adjustment of grievances; (2) posting of a bond by Aero; (3) payment by Aero of sums of money to an industry promotion fund; (4) applica- tion of the terms of the contract to owners or su- pervisors of Aero, or the acceptance of any modifi- cation, extension, or renewal of that contract or the resolution of any grievances thereunder except as agreement in such matters may be reached by representatives chosen by Aero Plumbing Co. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Notify Aero Plumbing Co. in writing that they will not insist upon the Plumbing-Heating and Piping Employers Council of Southern California acting as Aero Plumbing Co.'s agent for the pur- poses of collective bargaining or the adjustment of grievances; the posting of a bond by Aero Plumbing Co.; the payment of sums of money by Aero Plumbing Co. to the industry promotion fund; or the application of the terms of the contract to owners or supervisors of Aero Plumbers Co. (b) Reimburse Aero Plumbing Co. for expenses incurred to date in connection with the posting of a bond or the payment of sums of money to the in- dustry promotion fund (c) Post at their principal offices and usual meeting places, including offices and meeting places of all constituent locals of Respondent Council, copies of the attached notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for Region 21 of the Na- tional Labor Relations Board, shall, after being signed by duly authorized representatives of Respondents, be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that such notices are not altered, defaced, or covered by other material. (d) Mail copies of said notice to said Regional Director in Los Angeles, California, after such co- pies have been signed, as provided above, for post- ing by Aero Plumbing Co if willing. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' ' In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant 405 to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 21, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith " APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain with Aero Plumbing Co. by insisting as a condition of agreement that it accept a contract requiring: (1) the appointment of the Plumbing- Heating and Piping Employers Council of Southern California as Aero Plumbing Co.'s agent for purposes of collective bar- gaining or the adjustment of grievances; (2) the posting of a bond by Aero Plumb- ing Co.; (3) the payment of sums of money by Aero Plumbing Co. to the industry promo- tion fund; (4) application of the terms of the con- tract to owners or supervisors of Aero Plumbing Co. WE WILL NOT apply or enforce such provi- sions in the contract we now have with that employer. WE WILL NOT coerce or restrain Aero Plumbing Co. in its selection of a representa- tive for purposes of collective bargaining or the adjustment of grievances. WE WILL NOT apply or enforce such provi- sions as now exist in our contract with that em- ployer. WE WILL notify Aero Plumbing Co. that we will reimburse it for expenses incurred to date by reason of the provisions in the contract relating to the posting of a bond or the pay- ment of sums of money to the industry promo- tion fund. SOUTHERN CALIFORNIA PIPE TRADES DISTRICT COUNCIL No. 16 OF THE UNITED ASSOCIATION (Labor Organization) Dated By (Representative ) (Title) UNITED ASSOCIATION OF JOURNEYMEN AND 427-835 0 - 74 - 27 406 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, LOCAL No. 280 (Labor Organization) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5229.