Sangamo Construction Co.

SANGAMO CONSTRUCTION COMPANY 159 Sadgamo Construction Company and Southern Illinois Contractors Association and Southern Illinois Build- ers Association Local 9U, Operative Plasterers and Cement Masons International Association and Southern Illinois Con- tractors Association and Southern Illinois Builders Association. Cases 14-CA-5233 and 14-CB-1884 January 27, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, BROWN, AND JENKINS On May 22, 1970, Trial Examiner Paul E. Well issued his Decision in the above-entitled proceeding, finding that Respondents had not engaged in the un- fair labor practices alleged in the complaint and rec- ommending that the complaint be dismissed in its entirety as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed ex- ceptions to the Trial Examiner's Decision and a sup- porting brief and Respondent Union filed cross-exceptions to certain portions of the Trial Examiner's Decision, and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed . The rulings are hereby affirmed. The Board has considered the Tri aI Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent with the Deci- sion herein. The complaint, based on charges filed jointly by Southern Illinois Builders Association and Southern Illinois Contractors Association (hereinafter called SIBA and SICA, respectively, and the Associations collectively), alleged that Respondent Sangamo Con- struction Company (hereinafter referred to as Sanga- mo), and Respondent Union, Local 90, Operative Plasterers and Cement Masons International Associa- tion (hereinafter referred to as the Union), respective- ly, violated Section 8(a)(5) and 8(b)(3) of the Act by entering into a separate interim agreement while the Union and the Associations, through which both San - gamo and the Union were bound to deal with each other on a multiemployer basis, were bargaining for a new contract. Although we agree with the Trial Examiner that Respondents did not violate the Act, our agreement is based on the following considera- tions. The evidence discloses that SIBA and SICA are related trade associations composed of various em- ployers engaged in the construction industry in south- ern Illinois. The same individuals hold the positions ofexecutive director and assistant to the executive director for each association and function as joint agent for both. SIBA and SICA occupy common of- fices and utilize common business forms. Traditional- ly the Associations have negotiated jointly with labor organizations on behalf of employer-members and other employers in a multiemployer unit culminating in an SICA contract covering highway construction and SIBA contract covering all other construction. Periodically SIBA sends all unions a list of the em- ployers for whom it holds powers of attorney and whom it represents in bargaining. SICA sends no sep- arate list. Business agents refer to the SIBA list for the names of participating road construction employers and .call the Associations if there is any question. The Union is one of the labor organizations which, over a period of years, has engaged in bargaining with the Associations. In 1966 the Union and SICA en- tered into a 3-year contract which expired on July 31, 1969. Sangamo became a member of SIBA in November 1966, and at that time executed a power of attorney authorizing SIBA to negotiate on Sangamo's behalf only with Operating Engineers.' Although Sangamo never took specific steps to become a member of SICA, at least since May 1967 it has been represented by an agent of the Associations at prejob conferences and has applied the contract between SICA and the Union. In October 1967, Sangamo executed a single power of attorney to the Associations authorizing both SIBA and SICA to negotiate on its behalf with all labor organizations in the building trades and crafts. Sangamo's name was included on the list of represented employers distributed to the unions on October 27, 1967, and July 3, 1969. A column in the latter list indicated any limitations or exceptions in the power of attorney held. Opposite Sangamo's name appeared the word "none." Prior to expiration of their contract on July 31, 1969, the Associations and the Union began negotia- tions for new contracts. No•agreement was reached by July 31, 1969, and the Union thereupon struck all employers represented by the Associations. Bargain- ing continued, and the parties reached an agreement on August 21, 1969, Meanwhile, when the strike first began Sangamo was anxious to complete a certain highway project, the only work it was currently performing in the area. Sangamo's construction engineer, Steele, approached the agent of the Associations, complaining of the de- lay caused by the strike and indicating that Sangamo 1 It appears that such authorization is not an integral part of membership in either association. 188 NLRB No. 26 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wanted to sign an interim agreement. Steele was asked to hold off for the scheduled August 9 negotiating session. On Augusttl1, Steele approached Union Rep- resentative Hayes and asked whether the Union had an interim agreement he could sign so that Sagamo could proceed with its. highway job. Hayes replied that the Union had such a contract, and handed Steele one. Under the terms of this interim contract, the parties agreed to continue the recently expired agree- ment until a new, contract was negotiated between SICA and SIBA and the Union, at which time Sanga- mo would adopt the terms and conditions of the new contract and make any wage increases retroactive to August 1, 1969. Steele signed the interim agreement and left it with the Union. Later that day Hayes in- formed the Associations' representative that the Un- ion was going to sign an interim agreement with San- gamo, at which point Hayes was warned that unfair labor practice charges would be filed if such agree- ment was executed. The interim agreement with Sanr gamo was never signed by the Union. However, the Union did carry out the terms of the agreement to stop picketing Sangamo and to refer employees to the latter. Sangamo ultimately became bound by the terms of a new agreement reached by the Union and the Associations on August 21, 1969, and it paid the employees retroactively as provided therein and by its interim agreement. There is no contention that the interim agreement was a contract covering a separate bargaining unit. There is no indication as to when, in relation to the time the interim agreement was signed, the Associations' representatives agreed in bargaining to make any negotiated wage increases retroactive. The Trial Examiner dismissed the complaint in its entirety. He found that Sangamo became a member of the SIBA group for bargaining purposes. Neverthe- less, he found that no violation could be predicated on this membership since Sangamo's only project within the Union's geographical jurisdiction was a road- building job, which activity was related solely to the SICA contract. With regard to the Sangamo-SICA relationship, the Trial Examiner found that despite Sangamo's intention to join this group and having taken all necessary steps towards this end, Sangamo's membership for bargaining was never consummated. In reaching this conclusion, the Trial Examiner viewed the evidence as insufficient to establish that the Union was aware of this and therefore Sangamo could not succeed by its action alone in becoming a member of the multiemployer group without accept- ance by the Union. He also found that as the evidence failed to show that the Union was aware of Sangamo's efforts, no inference could be drawn that the Union acquiesced in the inclusion of Sangamo in the SICA multiemployer unit. In our view, however, the evidence does establish the,Union's acceptance of.Saangamo in the SICA unit. We rely, in this connection, on the acknowledged rep- resentation of Sangamo in the prejob conference with the Union at Sangamo's bridge project and the appli- cation of the SICA contract,to that job by the Associ- ations' agent in 1967; the representation of Sangamo by the Associations' agent in both building and high- way projects in 1967 and 1969, and application in each instance of the appropriate Associations con- tract; this receipt of the SIBA list containing Sangamo's name as a multiemployer unit member, without any question being raised respecting Sangamo's inclusion within the SICA unit; the Union's advising the Associations' agent of its intent to sign an interim agreement with Sangamo; the Union's striking and picketing Sangamo along with other Association unit members; the language of the interim contract which, by its terms, provides for binding the parties to Associations bargaining then in progress. On time facts, we are satisfied that the Un- ion acquiesced in Sangsmo's participation in the mul- tiemployer group, and we accordingly find that Sangam© cpnsumniated its membership in the multi- employer unit for bargaining purposes. Although the Trial Examiner rests his dismissal of the complaint on Sangamo's failure to perfect its membership in the SICA group, he went on to state, that, assuming that Sangamo had become a member of the group, "it was bound to remain in that posture at least until after the execution of the,contract then being negotiated" and " . . . could not validly nego- tiate separately with the Union as it did and reach agreement pursuant to which it alone of the multiem- ployer group resumed work to the obvious disadvan- tage of the other members of the group." We do not agree, and conclude that the Respon- dents did not violate the Act by entering into or per- forming the terms of the interim agreement. The record does not convince us that such conduct had a significantly adverse impact upon the integrity of the multiemployer bargaining unit. Nor does the evidence show that the, agreement was in derogation of the Associations'-bargaining authority or outside the cov- erage of the ultimate Associations' contract. The facts show, rather, that bargaining did continue during the operative period and indeed resulted in an agreement which includsd Sangamo in its coverage, According- ly, we shall dismiss the complaint in .its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders,that the complaint herein be, and it hereby is, dismissed. SANGAMO CONSTRUCTION COMPANY 161 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner : Southern Illinois Contrac- tors Association, hereinafter called SICA, and Southern Illi- nois Builders Association , hereinafter called SIBA, on August 14, 1969, filed charges against Local 90, Operative Plasterers and Cement Masons International Association, hereinafter called Respondent Union, and against Sangamo Construction Company, hereinafter called Respondent Sangamo, alleging violations of Section 8(b)(3) and 8(a)(1) and (5), respectively, by the parties charged therein. On February 11, 1970, the Regional Director for Region 14 (St. Louis, Missouri) issued an order consolidating the cases together with a complaint alleging that both Respondents had engaged in unfair labor practices , as alleged in the charges, by entering into an interim contract together at a time when both Respondents were required to bargain through SICA with regard to wages, hours, and terms and other conditions of employment of Respondent Sangamo's operative plasterer and cement mason employees en gaged in road and highway construction work , the only work en- gaged in by Respondent Sangamo . Both Respondents by their duly filed answers admitted and denied various allega- tions of the complaint but denied the allegations that SIBA or SICA was the sole collective-bargammgg agent for Re- spondent Employer and both denied that Respondent Un- ion had any duty to bargain with SIBA or SICA on behalf of the Employer. Both accordingly denied the commission of any unfair labor practice. On the issues thus drawn a hearing was held at St . Louis, Missouri, before me on April 6 and 7, 1970 . The General Counsel and both Respondents were represented by coun- sel. All parties had an opportunity to be heard , to examine and cross-examine witnesses , and to introduce relevant and material evidence . At the close of the hearing both Respon- dents argued orally on the record . A brief has been received from General Counsel. Upon the entire record herein and in consideration of the arguments and briefs , I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent Sangamo in the year 1969 caused to be shipped to it goods, wares, and material valued in excess of $200,000 from points outside the State of Illinois . Respon- dent Sangamo is and at all times relevant has been an em- pplo er engaged in commerce within the meaning of Section 2(6) and (') of the Act. SIBA is a trade association of various employers engaged in the building and construction industry, one of the purposes of which is to bargain on behalf of its members and others with labor organizations, including Respondent Union, with regard to the wages, hours, and conditions of employment of the employees of its members and principals represented by said Unions. SICA is a trade association consisting of road and high- way construction contractors in a defined area in the State of Illinois. Its functions include negotiating with various labor organizations , including Respondent Union, with re- gard to wages, hours, and working conditions of employees of its members and other employers . Respondent Sangamo is not a member of SICA but has furnished it a power of attorney to negotiate on its behalf with labor organizations, including Respondent Union. I find that SIBA and SICA are employers within the meaning of Section 2(2) of the Act. II THE LABOR ORGANIZATION INVOLVED Respondent Union is and at all times material hereto has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background At all times relevant to the issues herein Respondent Union has represented the operative plasterer and cement mason employees engaged in highway and road construc- tion of a group of employers which are formed into a loose association bargained for by SICA and SIBA. A 3-year contract evolving from this bargaining relationship expired July 31.1 The employees thereupon went on strike. On August 11 Respondent Sangamo, a roadbuilding con- tractor working_ on a construction project in the territorial jurisdiction of espondent Union, entered into an interim agreement with Respondent Union pursuant to which it agreed to continue under the terms of the recently expired contract until a new contract was negotiated between SICA and SIBA on the one hand and the Union on the other, at which time it would adopt the terms and conditions of the new contract and pay any increases in wages retroactive to August 1. Respondent Sangamo warned an officer of SIBA prior to the time it entered into such an interim contract that it was contemplating doing so. On August 1 I Respondent Union informed representatives of SIBA and SICA that Respondent Sangamo was probably going to enter into an interim agreement and on August 14 informed them that this had been done. Upon being informed of the interim contract SIBA and SICA acting through a joint agent, Wayne Barber, Jr., filed the charges herein. The General Counsel contends that Respondent Sanga- mo was a member of the multiemployer associations repre- sented by SICA and SIBA, that it did not timely remove itself from either association and that accordingly it violated Section 8(a)(5) and 8(axl) and the Union violated Section 8(a)(3) by bargaining with Respondent Sangamo other than through the associations. Both Respondents contend that the General Counsel has failed in his proof, that Respondent Sangamo never effec- tively became a part of the multiemployer bargaining group and that accordingly no unfair labor practice resultedfrom the separate bargaining and the interim agreement. B. Discussion The membership in the Associations and the composition of the unit are not by any means coterminous. SICA bar- gains only for road and highway construction, SIBA for all other types of construction. SIBA and SICA have a slightly different geographical jurisdiction. SIBA derives its juris- diction from Associated General Contractors of America of which it is a chapter . SICA on the other hand has picked out for itself jurisdiction based upon highway districts , appar- ently political subdivisions of the State of Illinois. SIBA has members for whom it does not bargain with any labor or- ganization. Whether SICA has such members does not ap- pear in the record. Membership in the multiemployer group from which the unit is formed is apparently based, in the 1 All dates hereinafter are in the year 1969 unless otherwise specified. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case of each association , on the presentation by the individ- ual employer to the association of a power of attorney. Such powers of attorney may be limited to bargaining with one or more labor organitations or may be general , limited only to the geographical jurisdiction of the association. Periodically SIBA distributes to the unions with which it deals listings of all employers from whom it holds bargain- ing authorizations in the form of powers of attorney. The record reveals no instance when Respondent Union ques- tioned such authority or demured to the composition of the unit based on the flow of authorizations to the association. Norman Hayes, business representative of Respondent Un- ion, testified that he assumed that when he received a list from SIBA of employers from whom bargaining rights were held by SIBA, that what they told him was true and that if there was any question in his mind he would telephone SIBA's office and determine the question . He testified that at no time did he call with regard to Respondent Sangamo. Respondent Sangamo is not and never has been a mem- ber of SICA. Respondent Sangamo joined SIBA in 1966. Two powers of attorney appear to have been signed by Respondent Sangamo. One appoints SIBA to negotiate on its behalf only with Operating Engineers Local No . 520, the other authorizes both SIBA and SICA to represent Respon- dent Sangamo in all labor negotiations with all building crafts and trade crafts within their territorial jurisdictions. Neither power of attorney is exclusive ; that is to say, by action of neither document does Respondent Sangamo di- vest itself of negotiating authority in favor of the associa- tion. Both powers of attorney were notarized on October 4, 1967. The record also contains a carbon copy of the general power of attorney granted both SIBA and SICA containing a receipt stamp of SIBA dated May 27 , 1968, and a letter from Respondent Sangamo to SIBA which states, inter alia. "Enclosed are the power of attorney forms that you request- ed we send and return." Harold Gangnath, executive director of both associa- tions, testified that while he has no direct recollection of the incident, the date-stamped copy was a second copy of the power of attorney sent to him by Respondent Sangamo which was stamped and returned to Respondent Sangamo. Harold Gangnath had no recollection of when he first re- ceived a power of attorney but I can see no need to de- termine this date inasmuch as it is clear that at least as of May 28, 1968, the power of attorney was in the hands of SIBA. SIBA has no formal meth od of notifying labor organiza- tions of what powers of attorney it holds other than a listing periodically distributed to Respondent Union. The record contains two such listings, the first, dated October 27, 1967, on the letterhead of Southern Illinois Builders Association, is accompanied by a letter stating "We are attaching a cor- rected listing of the members of our Assocaition for whom we hold Bargaining Rights." Sangamo Construction Com- pany appears on this listing. The second such listing, dated July 3, 1969, states in the accompanying letter, the at- tached listing shows the members of our Association for whom we hold bargaining rights to date with exceptions noted." Opposite Sangamo's name is the word "none" in- dicating no exceptions. Gangnath testified that SICA does not send out a similar letter notifying any labor organization of the employers for whom it holds bargaining rights, but testified that the bus- iness agents know from the SIBA listing that, as to road- builders, SICA has such a power of attorney. There is no evidence that all powers of attorney used by employers granting bargaining rights to SIBA are on either of the forms which are in evidence . Thus it is impossible to de- termine whether the many employers listed by SIBA signed the form which gives authorizations to SIBA alone, or signed the form which gives authorization to both SIBA and SICA or signed a different form entirely. Respondent Union's Business Representative Hayes testified that he had never been specifically informed that Respondent Employ- er had authorized SICA to bargain on its behalf. He further testified that he had never seen the powers of attorney signed by Respondent Sangamo . Ganguath testified that normally when prejob conferences were held the business agents were shown the powers of attorney . Hayes denied this fact and the SIBA agent who attended the only prejob conference revealed by the record, which was held in May 1968, prior to the date on which the powers of attorney were sent to SIBA and SICA, was not called to testify. Accord- ingly there is no substantial evidence on which I could find that the Unions were ever apprised that SICA had any bargaining authority for Respondent Employer. A multiemployer bargaining unit is formulated when the members of the group have indicated from the outset an unequivocal intention to be bound in collective bargaining by group rather than by individual action and the Union has been notified of the formation of the group and the delegation of bargaining authority to it and has assented and entered upon negotiations with the group's representa- tive? Once such a bargaining relationship has been formed additional employers may enter the group with the Union's concurrence an7present members may disengage them- selves from the oup negotiations but only on "adequate written notice ofan unequivocal intent to withdraw ... given prior to the date established by the contract for mod- ification."3 Specifically the Board has found that any with- drawal is untimely if it takes place during the negotia- tions,' unless the Union and the Employer thereupon agree. It must be remembered, of course, that the "Employer" in this instance is the association rather than the individual employer-member of the association. In the instant case , assuming that Respondent had be- come a member of the multiemployer bargaining unit by its action in furnishing the authorization to SIBA and SICA, it was bound to remain in that posture at least until after execution of the contract then being negotiated between SIBA and SICA on the one hand and Respondent Union on the other. It could not validly negotiate separately with the Union as it did and reach agreement pursuant to which it alone of the multiemployer -bargaining group resumed work, to the obvious disadvantage of the other members of the group.. If this case involved only membership in the "SIBA bargaining group" I would have no difficulty with it. I find that the Union habitually acquiesced in the addition to or deletion from the list of those included in the multiem- ployer unit under the SIBA contract . I can make no such finding with regard to the SICA contract . It is clear that only the SICA contract related to the activities of Respon- dent Sangamo since its only job within the territorial juris- diction of Respondent Union was a roadbuilding job. General Counsel would have me assume, as Gangnath testified the business agents do, that an authorization to SIBA includes an authorization to SICA and that thus nec- essarily the notification to the Unions contained in the SIBA letter is adequate notification to the Unions with regard to membership in the SICA sponsored multiemploy- er bargaining group. However, since the only evidence is to the contrary, no inference to this effect is raised. In the 2 Weyerhaeuser Company, et a(, 166 NLRB No. 8. 3 Evening News Association, et a[., 154 NLRB 1482, 1483. 4 Quality Limestone Products, Inc, 153 NLRB 1009. SANGAMO CONSTRUCTION COMPANY absence of evidence that Respondent Union is ever made aware of the constituency of the unit , it can scarcely be found that it ever acquiesced in the inclusion of Respondent Sangamo after the negotiation of the last preceding contract in 1966. I believe that the Union must have an opportunity to accept or reject the inclusion of another employer in a multiemployer bargaininAl roup . I have no trouble with the situation with regard to A; here the Union was unques. tionably given the information that SIBA held bargaining authority and had an opportunity to reject it. It is clear from Hayes' testimony that if a question arose he knew that he had the option of satisfying himself by a telephone call to SIBA, and apparently he has exercised this option in the past, but this is not the evidence with regard to SICA. This entire problem is rendered even more murky by the unit description found in the contracts between SICA and the Union which state : "This Agreement between the Southern Illinois Contractors Association, Party of the First Part, hereinafter referred to as `Contractor ' and recognized as the sole and exclusive bargaining unit for employers en- gaged in road and highway construction ...... The record is clear that there is only one form of contract in the Union's jurisdiction . All terms and conditions are the same whether the contract is signed by individual employers or by SICA for its constituents . I do not believe however that this fact can be considered as evidence that all operating plasterers and cement masons in the highway district covered by the agreement comprised one single unit. Even if the operation of the contract were to have that effect, the operation of the Taft-Hartley Act would not , under the rules of the Board. I conclude that under the circumstances peculiar to this 163 case Respondent Union cannot be found guilty of an unfair labor practice for entering into the interim agreement with Respondent Employer , because neither by evidence nor in- ference can I determine that Respondent Union at any time has acquiesced in the inclusion of Respondent Employer in the multiemployer bargaining unit . The question remains however whether the Respondent Employer is guilty of an unfair labor practice in signing the interim agreement with the Union. There is no question as to notice with regard to Respondent Employer. It signed the power of attorney de- liberately attempting to become part of the multiemployer unit; that appears to be the only effect of the agreement. Thus it can scarcely be held to have been without notice of its own action. However I believe that I cannot hold that Respondent Employer as a matter of law succeeded in be- coming a part of the unit, unless and until Respondent Union had an opportunity to accept or reect or to acquiesce in silence with knowledge that Respondent Sangamo had joined with the other employers in the multiemployer asso- ciation to be bound by the Association 's action. In the absence of acceptance or acquiescence by the Union I do not believe that its membership in the multiem Toyer group was ever consummated. Accordingly it was free to go its own way, as it did, signing an interim agreement and return- ing to work. RECOMMENDED ORDER Inasmuch as I have found that neither Respondent Em- ployer nor Respondent Union has committed the unfair Labor practices alleged, I recommend that the complaint be dismissed in its entirety.