Operating Engineers, Local No. 12

430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local Union No. 12 and Associated General Contractors of America, Inc., Southern California Chapter; Engineering and Grading Contractors Association, Inc.; and Building Industry Association of Califor- nia, Inc.; d/b/a Southern California Contractors Negotiating Committee and John N. Matich, Individually and as Chairman of the Construction Interruption Insurance Committee, a Sub-commit- tee of the National AGC, and Chairman of said Sub-committee's Policy Holders Advisory Commit- tee. Cases 21-CB-3431 and 21-CB-3448 December 24, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, BROWN, AND JENKINS Upon charges duly filed, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a consolidated com- plaint and notice of hearing, dated December 19, 1969, against International Union of Operating Engineers, Local Union No. 12. The complaint alleged that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(b)(3) of the National Labor Relations Act, as amended. Copies of the charges, complaint, and notice of hearing were duly served upon the parties. On January 9, 1970, Respondent filed its answer to the complaint denying the commis- sion of an unfair labor practice and requesting that the complaint be dismissed. Thereafter, the parties entered into a stipulation of facts and jointly moved to transfer this proceeding directly to the Board for findings of fact, conclusions of law, and order. The motion states that the parties have waived their rights to a hearing before a Trial Examiner, oral argument, the making of findings of fact and conclusions of law by a Trial Examiner, and the issuance of a 7 rial Examiner's Decision. The parties also agreed that the charges, order consolidat- ing cases, consolidated complaint, notice of hearing, answer, and the stipulation of facts, including exhibits, constitute the entire record in this proceed- ing. On February 13, 1970, the Board issued its order granting motion, approving stipulation, and transfer- ring the proceeding to the Board. Thereafter, the General Counsel, the Contractors Negotiating Com- mittee, John N. Matich, and Respondent filed briefs with the Board and Associated General Contractors ' The motion to intervene is hereby granted in the absence of opposition thereto of America filed a motion to intervene, with a brief in support of the complaint.' On October 2, 1970, the National Labor Relations Board, having determined that this proceeding presented issues of importance in the administration of the National Labor Relations Act, directed a hearing before the Board on November 2, 1970, for the purpose of oral argument. The Board has considered the stipulation of facts, exhibits, the briefs, oral arguments,2 and the entire record in this proceeding, and hereby makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Associated General Contractors of America, Inc., Southern California Chapter (AGC), Engineering and Grading Contractors Association , Inc. (EGC), and Building Industry Association of California, Inc. (BIA), are employer associations which exist for the purpose of negotiating collective-bargaining agree- ments on behalf of their members. Southern Califor- nia Contractors Negotiating Committee (Committee) is an unincorporated association comprising AGC, EGC, and BIA, which exists for the purpose of negotiating collective-bargaining agreements for AGC, EGC, and BIA. The employer-members of AGC, EGC, and BIA are engaged in the building and construction industry in southern California, have their principal offices and places of business in the State of California, and, jointly, annually purchase and receive supplies valued in excess of $50,000, which come to them directly from points outside the State of California, and the employer-members furnish services valued in excess of $50,000 to customers in the State of California which , in turn, purchase goods valued in excess of $50,000 which come to them directly from points outside the State of California. Respondent admits, and we find, that the employer- members of AGC, EGC, and BIA, the associations themselves, and the Contractors Negotiating Com- mittee, collectively and individually, are, and at all times material herein have been, employers engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act, and we find that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local 2 Member Jenkins was not present at the oral argument but has read the transcript 187 NLRB No. 50 OPERATING ENGINEERS , LOCAL NO. 12 Union No. 12, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background On or about July 1, 1965, the Contractors Negotiat- ing Committee entered into a collective-bargaining agreement with the Respondent which expired June 30, 1969 . On June 17, 1969, the Respondent submitted a proposed new collective-bargaining agreement to the Committee which provided , inter aha, in article III, that it would not be a violation of the agreement, nor a cause for discharge , for employees to refuse to work for a contractor who participated as a policy- holder in an insurance plan or program which paid benefits to the contractor during an employee work stoppage, and that such action would not be subject to arbitration and grievance procedures . On July 11, 1969, the Policy Holders Committee mailed informa- tion about a Construction Interruption Insurance Plan to members of the associations . At a bargaining session held July 12, 1969, Respondent was provided with information concerning the plan and at a bargaining session held July 14 or 15, advised the Committee it was withdrawing the "Strike Insurance Strike" provisions from the proposed contract and that they were no longer a subject of negotiations. Following rejection of the Committee's final offer, Respondent struck on July 19, 1969; on July 23 the Employers instituted a lockout against their employ- ees represented by Respondent . At a bargaining session held July 30- Respondent submitted as article III, paragraph H, a proposal that: (1) the grievance and arbitration provisions of the contract would not apply to contractors with strike insurance, the no- strike, no-lockout clause would be inapplicable, and grievances and disputes should be settled solely by economic action ; (2) contractors participating in such a program should also take out a wage-continuation policy for their employees and, failing to do so, would be personally liable for such benefits and any strike or lockout insurance benefits accruing to the contractor would be paid to the contractor's employees; and (3) a contractor would be deemed to be participating when it did not deny it and permit the Union to examine its books. On August 4, 1969, the Committee proposed that bargaining on strike insurance be held in abeyance pending Board determination of whether or not it was a mandatory bargaining subject. The Respondent rejected this proposal. On August 5 Respondent submitted a revised proposal deleting the provision permitting examination of an employer's books. The Committee and the Respondent then executed a letter of understanding August 14, post- poning bargaining on strike insurance pending Board 431 determination of whether or not it was a mandatory bargaining subject . The parties reached agreement in principle on a new contract, subject to the terms of the letter of understanding, on August 27, 1969. Respon- dent's members began returning to jobsite work August 28. The Respondent concedes in its brief that it insisted, and is insisting, upon inclusion of its strike and lockout insurance proposals in any contract. The complaint alleges that this insistence, and a strike purportedly in support thereof, violates Section 8(b)(3). B. The Contract Provisions Respondent's ultimate proposal as set forth in the parties' Letter of Understanding provides that: 1. The grievance and arbitration provisions of this Agreement shall not be applicable with respect to any Contractor who participates, either directly or indirectly, in a strike or lockout insurance program . All grievances or disputes between such a Contractor and the Union shall be resolved solely and exclusively by economic action and the no-strike, no-lockout clause shall be inapplicable, and the parties agree that neither party, nor any of their successors or subrogees, shall seek an injunction or initiate any other court or arbitration proceeding against the other arising out of such a dispute. 2. Should a Contractor participate in a strike or lockout insurance program, such Contractor shall also make provisions for wage continuance insur- ance for its employees during all periods that the Contractor is receiving strike or lockout benefits. Such wage continuance insurance shall provide benefits for the Contractor's employees at the employees' average weekly earnings. In the event the Contractor fails to provide such wage continu- ance insurance , it is agreed that the Contractor shall be personally liable for such wage continu- ance benefits, and that all strike or lockout insurance benefits owing to the Contractor shall be paid instead by the Contractor or its insurance company directly to the Contractor's employees. The provisions of this Section 2 shall be enforce- able by suit initiated by the Union of the Contractor's employees, notwithstanding any oth- er provisions of this Paragraph H. Respondent makes no contention that these propos- als do not concern strike insurance. The issue, as framed by the Respondent, is ". . . whether or not strike insurance , of the particular type involved herein, is a mandatory subject of collective-bargain- ing under the Act." Respondent's insistence upon the clauses makes the 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining agreement as a whole hostage to their acceptance, and within the clauses themselves makes the price of obtaining grievance, arbitration, and no-strike provisions in the first clause, and of not providing wage-continuation insurance in the second, an employer's abstention from participation in a strike insurance plan. Since the Union conditioned the contract as a whole upon acceptance of these clauses, which in turn are conditioned on strike insurance, bargaining about the contract was condi- tioned on bargaining about strike insurance. Respondent initially argues that its proposals may be considered only in relation to the particular strike insurance plan involved in this proceeding. However, its proposals are not so limited. The clauses refer to "a strike insurance or lockout insurance program" and are not limited by their terms to any particular plan or program. Since the issue here is not the good faith of the parties, but whether or not the proposals are mandatory bargaining subjects, it is the particular proposal and not the problem it is addressed to which should be considered.3 Much of the Respondent's argument is based on its theory that the issue is confined to the particular insurance program actively being considered by the Employers. In addition, Respondent relies on the premise that if any part of the insurance plan is subject to mandatory bargaining, then it may bargain to impasse concerning the plan as whole. Nonmanda- tory bargaining subjects, however, are not trans- formed merely by their relation to mandatory subjects. The rationale for finding that insistence upon a nonmandatory subject violates the Act rests upon a contrary premise: by implication, such insistence amounts to a refusal to bargain concerning mandatory subjects.4 In view of the foregoing, we find it unnecessary to rule upon Respondent's further contention that certain aspects of the "particular insurance plan," if implemented in the manner Respondent envisions, would be unlawful and, so Respondent argues, thus render the plan a mandatory bargaining subject. The remaining issue is whether or not strike insurance, as such, is a mandatory subject for collective bargaining. Mandatory bargaining subjects are those comprised in the phrase "wages, hours, and other terms and conditions of employment" as set forth in Section 8(d) of the Act. While the language is broad, parameters have been established, although not quantified. The touchstone is whether or not the proposed clause sets a term or condition of employment or regulates the relation between the employer and its employees.5 Generally stated, the purpose of strike insurance is 3 See N L.R.B v Arlington Asphalt Co, 318 F.2d 550 at 557 (C.A. 4). 4 N L R B v Wooster Division of Borg-Warner, 356 U S 342 to indemnify an employer in the event of a strike or lockout. It is similar to union strike benefits and mutual assistance by unions, which Respondent contends are not mandatory bargaining subjects. Strike insurance is not a term or condition of employment. It does not regulate the relation between an employer and its employees. It imposes no condition or liability upon a union. Its sole effect is to buttress the economic position of an employer in the event of a labor dispute. We find nothing in the Act to suggest that Congress envisioned requiring an em- ployer to bargain with its employees concerning its economic position, save as that position is derivatively affected by "wages, hours, and other terms and conditions of employment." It appears that what the Respondent seeks is not regulation of the employer- employee relation, but regulation of the Employers' economic strength and relative bargaining position. Such an objective is understandable and the Act does not prohibit its achievement; neither, however, does the Act require an employer to bargain concerning it nor permit a union to insist upon it. We find that the Respondent, by insisting upon its proposals concerning strike insurance and by striking in support thereof, refused to bargain and violated Section 8(b)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES The conduct of the Respondent set forth above, occurring in connection with the operations of the Employers as set forth in section I, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(b)(3) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Associated General Contractors of America, Inc., Southern California Chapter; Engineering and Grading Contractors Association, Inc.; and Building Industry Association of California, Inc., are employer associations which exist for the purpose of negotiating collective-bargaining agreements on behalf of their members. The Southern California Contractors Ne- S N L R. B v. Wooster Division of Borg- Warner, supra. OPERATING ENGINEERS, LOCAL NO. 12 gotiating Committee is an unincorporated association comprising the foregoing employer associations which exists for the purpose of negotiating collective- bargaining agreements. 2. The associations listed in paragraph 1 and their members are employers engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 4. By insisting on bargaining with respect to the Employers' participation in a strike insurance plan and by striking in support thereof the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 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 Union of Operating Engineers, Local Union No. 12, Los Angeles, California, its officers, agents, and representatives, shall: 1. Cease and desist from refusing to bargain collectively by insisting that the Employers include in any collective-bargaining agreement any provision restricting or abridging the Employers' right to participate in a strike insurance plan or program and by striking in support thereof. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at Respondent's business offices and meeting hall copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by the Union's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for Region 21 copies of the aforementioned notice for posting by the Employers, the Employers willing, in places where notices to employees are customarily posted. Copies 433 of said notices, to be furnished by the Regional Director for Region 21, shall, after being duly signed by Respondent's official representative, be forthwith returned to the Regional Director. ,(c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." 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 collectively by insisting that any collective-bargaining agreement contain a provision restricting or abridging the right of employer-members of Associated General Contractors of America, Inc., Southern California Chapter; Engineering and Grading Contractors Association, Inc., and Building Industry Associa- tion of California, Inc.; d/b/a/ Southern Califor- nia Contractors Negotiating Committee, to partic- ipate in a strike insurance plan or program, or by striking in support of that insistance. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION No. 12 (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broad- way, Los Angeles, California 90014, Telephone 213-688-5200.