United Slate, Tile & Composition

632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Association , Local No. 220 and Jones and Jones, Inc., and Roofing Contractors Association of Southern California, Inc. Cases 21-CB-2982, and 21-CB-3070 June 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On April 3, 1969, Trial Examiner Maurice M. Miller issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices alleged in the consolidated complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the consolidated complaint and recommended that such allegations be dismissed. Thereafter, the Respondent and General Counsel filed exceptions to the Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Association, Local No. 220, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. DECISION OF THE TRIAL EXAMINER STATEMENT OF THE CASE MAURICE M. MILLER, Trial Examiner: Upon a charge, first amended charge and second charge, filed and duly served, the General Counsel of the National Labor Relations Board has caused a Consolidated Complaint and Notice of Hearing to be issued and served upon the parties herein, under Section 10(b) of the National Labor Relations Act, as amended. (Jones and Jones Inc., and Roofing Contractors Association of Southern California, Inc., sometimes designated as Complainants within this decision, had filed their original and first amended charges on August 17th and September 13, 1967, respectively. Complainants' second charge was filed January 18, 1968. General Counsel's Order Consolidating Cases, Consolidated Complaint, and Notice of Hearing issued March 15, 1968. Most dates cited within this decision designate 1967 events, unless otherwise noted.) Therein, United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Association, Local No. 220, designated as Respondent Union herein , has been charged with the commission of certain unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(B) and Section 8(b)(3) of the National Labor Relations Act, as amended. 61 Stat. 136, 73 Stat. 519. Copies of the Consolidated Complaint and Notice of Hearing have been served upon respondent labor organization. Within Respondent Union's duly filed answer, certain factual matters set forth in General Counsel's Consolidated Complaint are conceded; Respondent Union, however, has denied the commission of any unfair labor practice. Pursuant to notice, a hearing with respect to the issues was held at Los Angeles, California, on July 10 and 11, 1968, before me. The General Counsel and Respondent Union were represented by counsel, Complainant Association by its labor relations consultant. Each party was afforded a full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence pertinent to the issues. Since the hearing's close, briefs have been received from both counsel for the General Counsel and Respondent Union; these have been duly considered. FINDINGS OF FACT Upon the entire testimonial record, documentary evidence received, and my observation of the witnesses, I make the following findings of fact: 1. JURISDICTION This case is concerned with certain collective bargaining negotiations between Respondent Union and Roofing Contractors Association of Southern California, Inc. sometimes designated RCA, and sometimes as Complainant Association , within this decision. Complainant Association is comprised of various member enterprises doing business as roofers ; it exists for collective bargaining on behalf of its member firms and negotiates collective-bargaining contracts for them with various labor organizations, including Respondent Union herein . During the particular collective bargaining negotiations with which this case is concerned, Complainant Association functioned - and continues to function - specifically on behalf of some eleven enterprises, engaged in the business of roofing and reroofing residential, commercial , and industrial buildings within Orange County, California . These business enterprises have been designated, within the present record: Atlas Roofing Co. Santa Ana , Calif. Christian & Letner Corp . Orange, Calif Courtesy Roof Co. Westminster, Calif. Earle W. Davis Rfg. Corp. Stanton , Calif. 177 NLRB No. 74 UNITED SLATE, TILE & COMPOSITION Dion Roof Co. Orange, Calif. Lee; Roofing Co. Costa Mesa, Calif. Orange County Roofing Co. Santa Ana, Calif. Own Roof Co., Inc. Santa Ana, Calif. S & S Roofing Westminster, Calif. San Marino Roof Co. Stanton, Calif. Vance Roofing Co. of Fullerton, Calif. Fullerton Seven of these roofing firms were, throughout the period with which this case is concerned, RCA members; four were nonmember firms. The latter had, however, given Complainant Association written "exclusive" rights to bargain on their behalf, with appropriate labor organizations, on matters involving wages, hours and conditions of work. (These four nonmember firms, so the record shows, were Atlas, Earle W. Davis, Lee, and S & S Roofing; when negotiations with Respondent Union began, Complainant Association designated them as contractors who had given the trade group their "power of attorney" for collective bargaining purposes.) The Complainant Association's member firms which thus participate in multiple employer bargaining - which group includes, specifically, the seven member firms previously designated - maintain their principal offices and places of business within the State of California. These firms - taken together - regularly purchase supplies, valued in excess of $50,000 annually, which come to them directly from out-of-state points; likewise they sell products and furnish services, valued in excess of $50,000 yearly, to various California firms which, in turn, ship their products, valued in excess of $50,000 per year, directly to points outside the state designated. (Respondent Union's answer - with reference to these "jurisdictional" portions of General Counsel's Consolidated Complaint specifically - reflects a contention that both Atlas and S & S Roofing, non-member firms, have been "out of business" throughout the period with which this case is concerned. Further, Respondent Union declares that Christian, Courtesy and Orange County Roofing - regardless of their purported RCA membership - are likewise members of, and represented by, Roofing Contractors Association of Orange County, Inc., another collective bargaining group. No reliable, probative, or substantial evidence has, however, been proffered for the record with respect to these contentions. Further, in any event, testimonial or documentary proof with respect thereto - within my view - should not, and would not, so far as can now be told, materially affect the Board's discretion with respect to exercising statutory jurisdiction.) With matters in this posture, I find that Complainant Association herein, together with its various members who participate in multiple employer bargaining - including the seven member firms previously designated - have been, throughout the period with which this case is concerned, and are now , employers engaged in commerce and businesses which affect commerce, within the meaning of Section 2(2), (6), and (7) of the Act, as amended. With due regard for jurisdictional standards which this Board presently applies - see Siemons Mailing Service, 122 NLRB 81, 84; Insulation Contractors of Southern California, Inc., 110 NLRB 638, in this connection - I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory objectives. II. THE LABOR ORGANIZATION INVOLVED United Slate, Tile & Composition Roofers, Damp & 633 Waterproof Workers Association, Local 220, designated as Respondent Union within this decision, is concededly a labor organization within the meaning of Section 2(5) of the Act, as amended. Throughout the period with which this case is directly concerned, and since then, Business Representative William D. Nuttall has - so I find - represented Respondent Union, and has functioned as its agent, within the meaning of Sections 8(b) and 2(13) of the Act, as amended. III. THE UNFAIR LABOR PRACTICES A. Issues General Counsel charges Respondent Union, herein, with various unfair labor practices within the meaning of Section 8(b)(1)(B) and 8(b)(3) of the statute. In connection with his first case, General Counsel charges that Respondent Union has: (1) Refused to recognize RCA as the qualified bargaining representative for certain of its various member firms, together with other roofing contractors, within a defined multipleemployer bargaining unit; (2) required that RCA members sign so-called individual contracts; (3) restrained and coerced these RCA member firms with respect to their selection of RCA as their representative for various collective bargaining purposes; and (4) persisted in demanding, until impasse was reached, that Complainant Association herein when functioning for its member firms - agree to furnish a liquidated damages bond, before any collective-bargaining contract would be signed. Complainant Association's charge - with respect to this first case - was settled by this Board's Regional Office, purportedly, pursuant to a September 28 settlement document, signed in Respondent Union's behalf, which includes a nonadmission of liability clause. Thereafter, Complainant Association's second charge was filed. The Board' s Regional Director, however, following an investigation, set aside the settlement noted, contending that Respondent Union's postsettlement conduct had violated its terms. And Complainant Association's first charge, herein, was thereupon reopened and consolidated, for the purpose of hearing and determination, with that body's second charge. The second of these cases presents General Counsel's several contentions: (1) That during bargaining, subsequent to Respondent Union's execution of the Board settlement agreement previously noted, Respondent Union herein - though purportedly bargaining "with an open mind" consistently with statutory requirements - was really participating in surface, sham and bad-faith bargaining, since its spokesmen were maintaining a fixed, predetermined, position that it would accept no contract with substantive terms different from those which had been reached during some parallel, concurrent negotiations, and which had been set forth within an October 18 collective-bargaining contract signed by Respondent Union, together with two sister locals, and two other roofing contractor trade groups; (2) that this contract contained certain nonmandatory provisions which Complainant Association was being pressed to accept; and (3) that Respondent Union, during these continued postsettlement negotiations, refused to recognize RCA's status as representative of the complete multiple employer group which it claimed to represent. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regarding the totality of these contentions, Respondent Union, substantially, declares; That its negotiations with Complainant Association, before the settlement agreement previously mentioned did not flout any statutory mandate; that postsettlement negotiations have been conducted consistently with the settlement's requirements; and that Respondent Union's general course of conduct, during these continued negotiations , has not otherwise violated the statute. B. Facts 1. The general course of negotiations a. Background Following a period of some 20 years - during which collective-bargaining relationships within the field with which this case is concerned were maintained upon a multiemployer, multiunion basis - the parties privy to that relationship negotiated and signed a Master Labor Agreement covering the period between August 15, 1963, and August 15, 1967. This contract was negotiated by and between Roofers Union Locals 36 and 72, on the one hand, and Roofing Contractors Association of Southern California, Inc. (designated Complainant Association or RCA herein) and Roofing Contractors of Orange County, Inc. (designated RCAOC herein), on the other hand. Therein, both signatory trade groups - functioning for and on behalf of their respective members and those firms which had separately executed authorizations for one association or the other to represent them in labor relations - recognized the designated locals as sole and exclusive bargaining representatives for roofing contractor workmen within a three-county geographical area - Los Angeles, Ventura and Orange Counties specifically. Reciprocally, the designated locals recognized each contractors association named, as sole and exclusive bargaining representative for its member firms, plus any further roofing contractors, within Los Angeles, Ventura and Orange Counties particularly, whom these associations might severally be authorized to represent, pursuant to contract or law. (These factual findings derive, partially, from certain stipulations proffered and received in connection with a related Board proceeding herein, United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Association, Local No. 36 (Roofing Contractors Association of Southern California, Inc.), 172 NLRB No. 249 . Beyond these stipulations, and factual determinations based thereon, with respect to which I take official notice, my factual findings derive from the present record.) During November 1965, Respondent Union (Local 220) herein received a new charter from its parent body; Local 36' s former geographical jurisdiction within Orange County was ceded to this newly chartered local. Thereupon, Respondent Union sought recognition under the Master Labor Agreement previously noted. Because of Local 36's objections, however, Respondent Union was never granted recognition as a contract party. Despite this, Respondent Union, since January 1, 1966, has maintained and operated the Roofers Union Orange County hiring hall. Roofing contractors, including RCA member firms, have looked to Respondent Union's hall for men, when performing Orange County work. Some time before the Master Labor Agreement's set termination date, Locals 36 and 72 gave timely notice to both signatory trade groups, their respective member firms, and various separate signatory contractors: (a) That they should consider the Master Labor Agreement terminated as of its stated anniversary date; (b) that both locals proposed to negotiate subsequent contracts upon an individual contractor basis, rather than upon a multiple-employer basis; and (c) that they (the locals) were ready to bargain for new contracts. Respondent Union (Local 220) herein - presumably because it shared no formal contractual privity with either trade association designated - submitted no comparable notice. On March 22, therefore, Complainant Association notified Respondent Union that it would represent its Orange County members "in all Labor Relations matters" with any labor organization claiming to represent their workers. Respondent Union was further advised that: This Association and its members will not be bound by any Agreement negotiated by any other Association, group of employers and/or individual employer. We are ready and willing to commence negotiations for our members and any other employers who give us their Collective Bargaining rights to negotiate on their behalf before a final Agreement is reached with your Labor organization. [Emphasis supplied.] On June 9, Respondent Union acknowledged Complainant Association's March 22 letter claiming to represent "certain Roofing Contractors whose main offices are located in Orange County" within Respondent Union's newly fixed geographical jurisdiction; RCA was notified that Respondent Union's representatives would be "pleased to meet" for the purpose of beginning negotiations . RCA's reply, dated June 13, suggested June 19 for the commencement of talks, and promised a list of Orange County contractors represented; Respondent Union was further advised that Complainant Association would consider any contract reached binding on any "other" contractor represented who might work within the county in the future. Meanwhile - sometime during the concurrent negotiations, which Roofers Union Locals 36 and 72 had likewise commenced, looking toward the Master Labor Agreement's revision or replacement-another contractor association had entered the field, participating in such negotiations for its member contractors, separately. This was Union Roofing Contractors Association, designated URCA herein. With matters in this posture, some time before the Master Labor Agreement's set termination date, there were - so the present record suggests - three contractual negotiations in progress . For present purposes, these several concurrent negotiations may conveniently be designated and summarized as follows: 1. Negotiations between Roofers Union Locals 36, 72 and 220, bargaining jointly, and two separate trade groups, (U RCA and RCAOC), with the latter representing their respective "individual contractor" member firms plus "other individual contractors" who might thereafter become contract signatories. The record suggests that these negotiations were concerned with contract proposals designed to govern wages, hours and conditions of work for workmen, hired by the various contractors, within the complete three-county territory previously designated . The negotiators did, finally, reach a contractual consensus; their October 18th contract drafts were signed by representatives of all three Roofers' Union locals, and representatives of both trade groups - for and on, behalf of their several contractor members and others - who, likewise, subsequently signed. UNITED SLATE, TILE & COMPOSITION 635 2. Negotiations between Roofers Union Locals 36 and 72, on the one hand, and Complainant Association on the other, calculated to fix wages , hours and working conditions for workmen , hired by various (RCA) member contractors, when they work within Los Angele's and Ventura Counties particularly. When the present case was heard , these negotiations had not yet been concluded. 3. Negotiations between Respondent Union (Local 220) herein , on the one hand, and Complainant Association, on the other, with the latter representing various member firms doing business within Orange County particularly, together with four Orange County non-member firms, previously herein designated. These negotiations - with which this case is directly concerned - will be detailed and reviewed , within this decision. The particular negotiations with which this case is concerned , noted , began on June 19th, and continued through 21 joint sessions ; following January 11, 1968, they were temporarily suspended , without a contractual consensus reached . During April, May, and June, thereaftet, three joint bargaining sessions - possibly followed by more since the present hearing's close - were convened. No final agreement has, however, thus far been reached. b. The negotiations summarized On June 19, when the negotiations with which we are concerned were convened for the first time, RCA proffered a letter listing "the contractors who are members of our Association and/or contractors who have given their Power of Attorney to this Association" for collective-bargaining purposes . (Previously, within this decision, reference has been made to this list, which included seven member contractors with Orange County places of business , and four nonmember firms). Respondent Union's representatives had no complete proposal to present . The negotiators, therefore, began to review their soon-to-be-terminated master contract, while Respondent Union's spokesmen suggested their "thinking" with regard to possible changes . Some 14 of 22 substantive contract articles were reviewed, or passed for later discussion. During their second session , July 10, the parties agreed "not to get involved" with respect to economic negotiations, until their other contract language had been settled. 1CA then presented its proposed Master Labor Agreement revision, exclusive of proposals with respect to wages and fringe benefits. The proposal's preamble, plus a suggested "Bargaining Representative" paragraph, and some 12 substantive provisions , were reviewed. When the parties met for their third session , July 17, Respondent Union's negotiators declared that RCA's previously proposed contractual language could not be considered acceptable ; they suggested that negotiations proceed, primarily, through their current contract "paragraph by paragraph " with the parties free to make whatever "modest changes" they might consider necessary . This procedural suggestion was finally accepted. The complete contract was then reviewed. Some substantive provisions were - so I find - agreed upon, while others were debated or held for future discussion. Thereafter, between July 26 and August 11, both dates inclusive, five further joint bargaining sessions were held. Various contractual proposals were debated . With respect to some, consensus was reached ; with respect to others disagreements were noted . (Within this period, Respondent Union was notified, further, that RCA would be representing one more Orange County contractor, Don's Roofing Company of Orange, California, during the negotiations then current.) The record warrants a determination that, following their August 11 session, RCA gave Respondent Union a so-called package offer which Local 220's membership subsequently rejected. Then, discussions regarding a possible master contract extension - with retroactive wages and benefits - proved fruitless. On August 15, the parties' master labor contract reached its previously set termination date; the record warrants a determination , which I make, that Respondent Union's Orange County membership, thereupon, ceased work. Within a letter - dated that day - dispatched to Respondent Union's negotiating committee, RCA declared its willingness to continue negotiations looking toward a written contract; pointed out that work was available for Respondent Union's striking membership; promised that, should any more favorable contractual consensus be reached during the concurrent negotiations then in progress between Locals 36, 72 and Complainant Association herein, such more favorable terms would be granted Respondent Union's membership retroactively; and requested that Respondent Union's committeemen submit further written proposals. On August 16, a previously scheduled joint bargaining session - which Commissioner Allen of the Federal Mediation and Conciliation Service had been requested to attend - was canceled by Respondent Union on short verbal notice, subsequently confirmed by letter. The following day, Complainant Association's first charge in this consolidated matter (21-CB-2982) was filed. Therein, Respondent Union was charged with violations of Section 8(b)(1)(B) and Section 8(b)(3) of the statute, based upon claims: - 1. That it had refused to recognize RCA's status as bargaining representative for a multiple-employer bargaining unit. 2. That it was requiring RCA member firms to sign separate contracts. 3. That it had restrained and coerced RCA member firms, in connection with their selection of that body as their collective-bargaining representative. 4. That it was persistent in demanding - to the point of impasse - that RCA accept a contractual provision for a liquidated damages bond as a condition precedent to any final agreement. The parties, nevertheless, continued to meet. Between August 18 and September 18, both dates inclusive, three sessions were held. During the last, Respondent Union reported that RCA's most recent contract proposals had been rejected by Local 220' s membership , purportedly because they differed too widely from various proposals then being considered and reviewed by Locals 36, 72, and 220, URCA and RCAOC, within their separate, concurrent negotiations. On September 28, Complainant Association's first charge was purportedly settled, with an agreement which contained a so-called nonadmission clause . Respondent Union , nevertheless , promised to post - and subsequently did post - Notices to All Members forswearing the various unfair labor practices , previously noted, with which it had been charged. Shortly thereafter, on October 18, contractual consensus was reached between Roofers Union Locals 36, 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 72, and 220, on the one hand , and URCA, together with RCAOC, on the other hand ; this contract, so the record shows, covered workmen hired by member contractors of both designated trade groups, within the complete Los Angeles, Ventura, and Orange County geographical area. On October 23, during their next bargaining session, Respondent Union presented RCA with a substantially complete written contract proposal, lacking merely a preamble and signature page. This proposal was - so I find - identical in terms with the contractual consensus which had dust been reached during Respondent Union's concurrent three-county negotiations , so recently concluded . RCA's representatives noted, further, that Respondent Union's complete proposal paralleled a proposal which Locals 36 and 72 had most recently presented, during their concurrent negotiations with Complainant Association herein , for individual member contractors working in Los Angeles and Ventura Counties particularly Respondent Union was thereupon, verbally charged with violating the September 28 Board settlement, previously noted . Respondent Union, replying, questioned RCA's representative status; Local 220's committeemen declared that some Orange County contractors, whom Complainant Association currently professed to represent, were - because of their claimed concurrent RCAOC membership - contractually already bound , since that trade group had signed the October 18 contractual understanding with Locals 36, 72, and Respondent Union herein . Despite this, Respondent Union's negotiators requested their proposal 's review . This was, so the record shows, done. Between October 23, 1967, and January 11, 1968, both dates inclusive , some ten joint bargaining sessions were held. Following the last session - for reasons which will be reviewed and discussed, further, within this decision - the Complainant Association 's negotiators concluded that Respondent Union was not, so far as they were concerned, bargaining in good faith. On January 18th, the second charge with which this case is concerned was, therefore, filed. c. The settlement agreement 's cancellation and subsequent developments With matters in this posture, the present narrative must , briefly, digress. Certain subsequent developments - which clearly merit their characterization as both relevant and material herein - require discussion. San Marino Roof Company, a California corporation - which currently maintains RCA membership - has its principal headquarters and place of business in San Gabriel, Los Angeles County; however, within Stanton, Orange County, the corporation has, since August 1966, maintained a branch location. San Marino, since it holds and has held RCA membership throughout the period within which this case is concerned , was formerly considered privy to Complainant Association's 1963-1967 master contract previously noted. Under that contract , the corporation's Stanton shop was considered substandard, since it did not conform with certain contractual requirements for such places of business . (Had various Roofers Union locals not then "recognized" the Stanton location as conforming to contractual standards , it would have been assumed - for purposes of master contract administration - that all San Marino employees were working from the firm's San Gabriel shop. This would have meant that - whenever they worked more than 25 miles from that shop - they would have been privileged to claim subsistence and travel pay.) Nevertheless, despite its physical deficiencies, San Marino's Stanton shop had been "recognized" for contract purposes ; hence, it had been considered the firm's base point for computing whatever subsistence and travel pay obligations there may have been, connected with San Marino's Orange County work When the Master Labor Agreement was terminated, San Marino's workmen - together with others within the three-county territory with which we are concerned - went on strike . They remained on strike until San Marino, among others, signed a so-called separate interim contract with Respondent Union herein. Thereafter - consistently with requirements set within the Regional Office settlement agreement previously noted - these separate " interim" contracts were invalidated for RCA members, San Marino included . The corporation was, I find , so notified. However, some time thereafter - during January, 1968, presumably - Business Representative Nuttall of Respondent Union telephoned San Marino's president, Thomas Aleto, several times; Aleto was requested to sign the previously mentioned October 18th contract, then newly negotiated between Locals 36, 72 and 220, on the one hand, and two trade associations , previously designated Finally, on Friday, January 26, or Monday, January 29, Nuttall telephoned Aleto, with word that - unless he signed the contract suggested - Respondent Union would no longer "recognize" his Stanton location (This factual determination , with respect to Nuttall' s communication, derives from Aleto' s prehearing statement , signed and subscribed by him February 28, 1968. While a witness, Aleto testified that Nuttall had - during some prior conversations - mentioned the possibility that Respondent Union might withdraw contractual "recognition" previously conceded regarding San Marino's Stanton shop ; he (Aleto) declared , further, that - during Nuttall 's late January call - he was merely requested, once more , to visit Respondent Union's office and sign a separate contract with Local 220, but that no threat regarding any withdrawal of recognition , for San Marino's Stanton location , was made. When confronted with his prehearing statement - which contained a reference to Nuttall's purported threat during their January 26/29 conversation - San Marino' s president proffered a repudiation contending , (1) that the Board representative who prepared the statement had incorrectly reported, as part of one conversation , remarks which Nuttall had made during some prior, separate, conversations , and (2) that he (Aleto) had signed the statement without a clear conception regarding its meaning or import . The witness' purported repudiation regarding his statement , however, was proffered in such a halting, embarrassed , unconvincing manner, that I find it not worthy of credit . To the contrary, I find his February 28th statement - which General Counsel submitted for the record without limitations or qualifications regarding its purpose - fully worthy of credence . With matters in this posture - so I find - Aleto' s prehearing statement may be received and considered as substantive evidence, with regard to the substance of Nuttall's late January remarks. California Statutes of 1965, Chapter 299, effective January 1 , 1967; Evidence Code: Article 3, "Prior statements of Witness," Section 1235, "Inconsistent Statement"; Section 770, "Evidence of Inconsistent Statement of Witness." See Starlite Manufacturing Company, 172 NLRB No. 2, for a full UNITED SLATE, TILE & COMPOSITION 637 discussion of the statement 's admissibility generally, under Section 10(b) of the Act, Rule 43(a) of the Rules of Civil Procedure for United States District Courts, and the State of California's Evidence Code.) Aleto, then had some contract work in Irvine, Orange County, within San Marino's permissible Stanton branch travel area, for which he would have had to pay subsistence and travel time, hid he been compelled to use his San Gabriel headquarters for base point computations. On January 30, 1968, Aleto signed the proffered separate contract, pursuant to Nuttall's request. Following his investigation with respect to Complainant Association's second charge herein, this Board's Regional Director concluded that Respondent Union herein - when it compelled San Marino to bypass its previously designated bargaining representative and sign a contract separately through threats of economic pressure - had flouted the Board's settlement terms previously noted. Consistently with this determination, the Board's Regional Director, on March 14, 1968, withdrew his previously recorded concurrence with respect to the settlement. Then, on March 15, 1968, consistently, the Regional Director reopened Complainant Association's first case, consolidating it with that body's second charge. The consolidated complaint herein was, thereupon, issued; thereby, General Counsel has placed in question Respondent Union's complete course of conduct, throughout the particular negotiations with which we are herein concerned. 2. Respondent Union's specific demands The summary narrative just concluded - regarding the general course of negotiations with which this case is concerned - will, hopefully, provide sufficient context, with relation to which Respondent Union's particularized bargaining demands may be further considered, and with relation to which its general bargaining posture may be judged. The full range of negotiations - within my view - need not presently be reviewed in detail. Rather, the discussion which follows will be limited to some of Respondent Union's specific proposals and statements of position, which General Counsel has challenged herein. a. Respondent Union's position on multipleemployer bargaining On July 10, so the record shows, RCA's negotiators proffered their first complete contract proposal; substantially, Complainant Association submitted a significantly modified Master Labor Agreement, rewritten to reflect changes dictated by the proposal's limited scope. The document's Preamble designated Complainant Association as contracting party "for and on behalf of its present, and any future members, as well as firms who have executed written authorizations for the Association to represent them" with respect to labor relations matters. Consistently, Respondent Union would have been required to recognize Complainant Association herein "as the sole and exclusive bargaining representative for its Members and such others of the Roofing Contractors of [Orange County] as this Association [is] authorized by this Agreement and/or by law to represent" pursuant to the contract's terms. On July 17, Respondent Union's negotiators - while reporting their rejection of Complainant Association's proposed language generally - noted their acquiescence with respect to RCA's rendering of the contract's preamble and bargaining representative definitions. On August 1st thereafter - when the subject was next discussed - the Respondent Union's negotiators, once more, noted the acceptability of Complainant Association's preamble language; with respect to the following "Bargaining Representatives" paragraph, the parties agreed to delete any reference to RCA's recognition as "sole and exclusive bargaining representative" for other (nonmember) roofing contractors. With these changes - so far as the record shows - the contractual language was then considered settled. With matters in this posture, the Master Labor Agreement's termination date was reached. When the negotiators convened their first joint bargaining session thereafter - August 18, 1967 - several Local 220 spokesmen declared, despite their prior consensus, that Respondent Union had never recognized Complainant Association specifically "in writing" as representing a multiple-employer bargaining group. RCA's negotiators were served with a document, signed by Local 220's chairman , which read as follows: This is to inform you that Local No. 220 of Orange County, California, does NOT recognize the Roofing Contractors Association as a multi-employer bargaining unit. Questions were raised regarding the firms which RCA purported to represent. Further, Complainant Association was requested to consider "joint" negotiations - which would, presumably, have required all three Roofers Union locals to meet and confer with URCA, RCAOC, and Complainant Association together. This suggestion was rejected. Previously, within this decision, reference has been made to the short-term roofers' strike - throughout Los Angeles, Ventura, and Orange Counties particularly - which followed the Master Labor Agreement's August 15th termination. Within a short time following that date, Locals 36, 72 "and/or" 220 prepared a so-called interim contract, which various individual contractors desiring to resume work were separately requested to sign. With respect to Respondent Union's Orange County jurisdiction, particularly, the record warrants a factual determination - pursuant to stipulation - that, before any locally based contractors were permitted to sign their "interim" contracts, they were likewise required to sign a companion document, which read as follows: TO ROOFERS UNION LOCAL NO. 36, 72 AND/OR 220 OF LOS ANGELES, LONG BEACH OR SANTA ANA, CALIFORNIA. Gentlemen: The undersigned contractor requests that Local Union No. ..., bargain with him individually in connection with negotiations for a roofing and waterproofing collective bargaining agreement. The substantive agreements, pursuant to which work was to resume, provided for continued observance of the terminated Master Labor Agreement's terms, save for some modification with respect to wages and fringe benefit payments; the contracts were to be effective for ninety days following their dates of execution, or until such time as a regular long-term collective-bargaining agreement had been finally negotiated and signed, whichever came first. Shortly thereafter, pursuant to Respondent Union's September 28 settlement agreement (21-CB-2982) with the Board's Regional Office, previously noted, these so-called 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interim separate contracts with individual roofing contractors were , largely, cancelled . (Respondent Union's posted "Notice to All Members", drafted pursuant to the settlement agreement , promised that no effect would be given these separate "interim" contracts with eleven designated Orange County contractors represented by RCA herein, except for those particular separate contracts - not specified - which had been executed by RCAOC members, for whom RCAOC had authority to bargain before August 18th . The present record, however, provides no reliable, probative or substantial evidence that this purported "exception" was really applicable, with respect to any of the 11 firms which Complainant Association herein claimed to represent.) Yet - despite this commitment - when the parties met for their next joint bargaining session , October 23, 1967, Respondent Union's spokesmen questioned "just who" the Complainant Association represented among Orange County contractors . Testimony proffered by RCA's executive director, David Van Eyk, in this connection - which stands in the record without contradiction - reads as follows: The Union again questioned the people that we represented , the contractors that we represented in Orange County, questioning whether we actually did represent them or not . . . Well, in some instances they claimed that the same people were shown as being represented by the Orange County Association. They never showed us any evidence of this, but they indicated that this was the case ... They mentioned that some of the people we had listed were no longer in business and that some one or two that we had listed , that they had told them that they weren 't represented by us. During this session , further, Respondent Union presented a proposed contract - previously mentioned within this decision - containing neither a preamble nor recognition clause; Local 220 spokesmen declared that this material had not yet been prepared. When the parties' subsequent October 30 session began, Respondent Union submitted a somewhat restrictive preamble proposal which would have defined the proposed contract as one which RCA had negotiated, "on behalf of its members who are not members of any other association of roofing contractors", with Respondent Union herein . Complainant Association's chairman counter-suggested that the parties adopt both the Preamble and "Bargaining Representatives" language of their terminated contract , striking therefrom all references to Locals 36 and 72, RCAOC, and Los Angeles and Ventura Counties, with necessary grammatical changes Following considerable discussion , this suggestion, so the record shows, received Respondent Union' s concurrence. The consensus thus "finally" reached, with respect to this matter, was - seemingly - confirmed on November 20, when the parties next met. Respondent Union further consented to add a provision which RCA spokesmen suggested, (art. V, par. 1-B), reading as follows: The exclusive bargaining rights shall be vested in the signatory parties to this Agreement and any extensions and renewals thereof. On November 27, however, this presumptive consensus was strained. George Evans , Roofers Union International vice president, again questioned RCA's representative status. Executive Director Van Eyk's notes regarding this session - which were received without objection and which have not been testimonially contradicted - reflect the parties' discussion as follows: Mr Evans, of the Union , asked us for a list of the contractors we represented in Orange County. We explained that this list had been submitted early in our Negotiations with a supplement adding one contractor shortly thereafter, and to date there are no changes. The Union then commenced a harangue as regards who we represent, stating that some of the people on our list disclaimed our representation , others not being in business, etc . . . The Union insisted upon seeing our authorization on those contractors we represent. It was finally agreed that Mr. Evans, possibly in the company of Mr. Newman , would in the next couple of days, come in to our office to visually inspect such authorizations . They further insisted on adjourning the Meeting until they accomplished their inspection. On December 4, however, without any reference to their prior "inspection" demand , Respondent Union's spokesmen requested deletion of the supplementary "exclusive bargaining rights" language (art. V, par. 1-B) which they had previously accepted. RCA countered with a suggestion that such a deletion would be acceptable, provided Respondent Union would agree to designate the proposed contract's preliminary "Bargaining Representatives" paragraph Article I, renumbering the following articles consistently therewith; Respondent Union refused . Local 220' s negotiators were then chided, with a comment that it would be impossible to reach a contractual consensus if they continued to "back off" from previous commitments Respondent Union, then, suggested the subject be temporarily dropped. When the subject was next raised - during the December 11 bargaining session - Respondent Union reaffirmed its desire to delete the article V, 1-B language previously noted . Considerable discussion ensued regarding Complainant Association's authority to negotiate for RCA member firms, plus other contractors. New arrangements were made for one Union spokesman to visit Complainant Association 's office, together with a Conciliation Commissioner , for the purpose of checking the authorizations . Regarding the challenged contract language, RCA spokesmen represented their counterproposal, which Respondent Union again rejected. No consensus was reached . During the two following bargaining sessions, the particular disputed provisions with which we are now concerned were not mentioned. Nor - incidentally - was any comment made , so far as the record shows, regarding the result of Respondent Union's previously projected "inspection" visit, for the purpose of checking Complainant Association' s bargaining authorizations. On January 11, 1968, Respondent Union herein, through Conciliation Commissioner Kennedy, presented new or revised proposals with respect to six substantive contract provisions . Inter alia, Local 220's negotiators reaffirmed their "wish" to rescind their previous concurrence regarding article V, I-B's language. When queried regarding their stated rationale for this position, Complainant Association' s executive director credibly testified, without record contradiction, that . they just wanted it deleted; the reason being ... in their opinion , this subject was covered by our preamble. However, we argued that the preamble was not basically a part of the contract and that we had to have it in this language in here, or in the preceding meeting we had given them an alternative of removing it from Article V as B-1, but labeling the paragraphs entitled "Bargaining Representatives" as Article One and then relabeling all of the articles in the book accordingly UNITED SLATE, TILE & COMPOSITION When the session was concluded , therefore, matters stood thus: The parties had reached a consensus (October 30) regarding their Preamble and further preliminary "Bargaining Representatives" language, bottomed upon modification of their terminated contract's phraseology. Howevef, because of Respondent Union's subsequent change of position regarding Complainant Association's further request , that its claimed "exclusive bargaining rights" be confirmed within some numbered contractual provision , no definitive agreement - regarding this particular question - had been reached. b. The performance bond The terminated Master Labor Agreement , so the record shows, had contained provisions pursuant to which contractors bound thereby were required to provide cash or surety bonds , guaranteeing their workers' remuneration , fringe benefit fund contributions, and liquidated damages for their violation of some contractual term or 'condition . (See art . III, E; art . IV; and art. VII, E, therein .) When Local 220 and RCA negotiators met for their first, June 19 , bargaining session , Respondent Union's negotiators - so the record shows - suggested the retention of these bond requirements , with minor modifications . However, RCA's counterproposal - presented during the parties' next session - reflected a complete deletion of contractual bond requirements. Complainant Association's spokesman declared that bonds were not mandatory subjects for collective bargaining; further, they contended that their contract 's then current bond requirements had not proven effective. On July 17, when discussions resumed, within the conceptual framework which the soon-to-be terminated contract provided , Respondent Union reiterated its bond proposal; RCA's spokesmen refused to discuss the matter. Regarding this question , therefore, negotiations produced no change, through the parties' August 11th session. When the parties' next, August 18 session , began - with the three-county strike, previously noted , then in progress - spokesmen for Respondent Union reported that RCA's proposal had been rejected through a union vote, for various reasons ; the bond requirement, so far as the record shows, was not specifically mentioned. However, the short-term "interim" contract which Respondent Union was then requiring contractors to sign committed its signatory firms to observe "all terms of the collective bargaining agreement" which had just terminated; such a commitment would, necessarily, compass the bond requirements. Consistently - when the parties' August 23 session was held - Respondent Union, once more, raised the bond question ; RCA's spokesmen, once more, refused to discuss the matter . (By this time, Complainant Association 's first charge in this consolidated matter, previously noted, had been filed. Therein, Respondent Union had been charged , inter alia, with statutory violations for demanding , to the point of impasse, that the contract under negotiation should include bond provisions .) With matters in this posture, Respondent Union's September 28 settlement commitment was signed. Therein, Respondent Union promised that it would not insist , to the point of impasse, that RCA should "agree to a liquidated damages bond" as a condition precedent to any collective-bargaining contract's execution. Despite this commitment, Respondent Union's October 23 contract proposal - previously noted - contained full-scale bond provisions, comparable with those 639 compassed within the recently terminated master labor contract . Confronted with this , Complainant Association's consistent refusal to discuss such bond provisions was reiterated. When the negotiators, then , canvassed Respondent Union's contract proposals, seriatim, consensus was reached that a bond reference , found in art. III, F, might be deleted . With respect to Article IV, however, Executive Director Van Eyk's notes - received in evidence without objection and without record contradiction - summarized the discussion as follows: ARTICLE IV . Entitled " Responsibility Bond". We asked the Union if we might tear out these pages since we will not discuss this subject . They said they wanted it left in but they would not force discussion . We asked again to have it removed and to adjust succeeding ARTICLE numbers accordingly. The Union refused to allow this. However, when the parties met November 20, Van Eyk's notes show that some presumptive consensus regarding article IV's deletion had been reached ; I so find. With matters in this posture, the subject does not appear to have been broached for several sessions. On December 18th, however, Local 220's spokesman declared that Respondent Union wanted a bond provision or some alternative; it was conceded that this proposal reopened a subject with respect to which tentative agreement had been reached . Substantially, Respondent Union' s negotiators then proposed - with a back reference regarding their previous October 23rd submission - that Article IV "Responsibility Bond" and article VII (B) "Grievance Procedure" could be deleted completely, should Complainant Association be willing to accept a substitute. Respondent Union's proposed substitute provision - essentially - would permit Local 220 to strike or shut down a contractually bound employer , should any dispute or grievance develop which could not be resolved within 24 hours . Failing RCA's concurrence with respect to this proposal, Respondent Union was proffering article IV and article VII (A) and (B) set forth within their October 23 proposal, save merely for those paragraphs within article VII (A) specifically - which referred to bonds. (Within the present record , some testimonial confusion is revealed regarding the precise thrust of Respondent Union' s December 18th proposal . On October 23, Respondent Union had proposed (article VII (A)) contractual provisions regarding its right to take economic action, should any roofing contractor - inter alia -- fail to post or maintain required bonds, or to pay liquidated damages found due thereunder. Further, Respondent Union's October 23 proposal regarding grievance procedure [article VII (B)] had contained provisions that the Joint Labor Relations Board therein provided for should have the power, inter alia, to require the payment of liquidated damages from bonds posted by contractors, upon certain specified grounds. The record , considered in totality , warrants a determination - which I make - that Respondent Union's December 18 alternative proposals were finally presented as follows: [1] articles IV, VII (A) and VII (B) set forth in Respondent Union's October 23 proposal , with only those bond references found in VII (A) particularly deleted; or [2] article VII (A), with its bond references deleted, plus Respondent Union's new "right to withdraw employees" provision.) Complainant Association's spokesman caucused; Van Eyk's testimony warrants a determination that Respondent Union's new "substitute" proposal was 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD declared unacceptable. Previously, within this decision , relevant developments during the parties' January 11, 1968, bargaining session have been summarized. With respect to bond matters, however, the present record reveals a testimonial conflict. General Counsel's documentary presentation - coupled with Executive Director Van Eyk's testimony - would warrant determinations: (a) That Respondent Union made no further January I1 reference to its December 18 "alternative" proposal; (b) that Respondent Union's negotiators then demanded RCA's concurrence with their original October 23 proposals relative to articles VII (A) and (B), which had included references to bond posting and possible assessments thereunder; and (c) that Respondent Union's negotiators - during their January 11th session - neither reiterated nor disclaimed their previously renewed December 18 demands relative to article IV, set forth within their October 23 proposal According to Van Eyk, Respondent Union's silence in this last regard left RCA's negotiators room for "inference" that Local 220's position compassed a renewed demand for article IV, as well as articles VII (A) and VII (B), set forth within their October 23 proposal. However, International Vice President Evans, when proffered as Respondent Union's witness, testified that his "notes" regarding the parties' January 11 discussion reflect less sweeping demands. Purportedly, those notes show: - . .. that the Article Seven, which was A and B, two provisions ... be submitted with the understanding that certain provisions within these would be rewritten with reference to elimination of a sentence governing bond, in reference to the bond .... With matters in this posture, Van Eyk's direct testimony, buttressed with his bargaining session notes, must - within my view - be credited. Evans, so the record shows, professed no witness-chair recollection with respect to this matter apart from his notes; those notes, however, were not produced. Further, Van Eyk's testimony and notes strike this trier of fact as more consistent with the probabilities. The record does show, clearly, that Respondent Union's December 18 proposals had, indeed, compassed a renewed demand - inter alia - for article IV, the "Responsibility Bond" so-called, should the Union's "alternative" proposal be rejected. This renewed demand for article IV specifically, so far as the record shows, was never subsequently withdrawn, during any of the bargaining sessions with which we have thus far been concerned. With matters in this posture, proposals by Respondent Union - such as those mentioned in Evans' testimony - compassing the deletion of bond references in articles VII (A) and VII (B) merely would have lacked purpose or consistency . On January 11, I find - despite counsel's contrary suggestion - that Respondent Union was renewing in Coto its October 23 bond demands. c. The Joint Labor Relations Board The negotiations between Respondent Union and Complainant Association, with respect to contractual grievance procedures , substantially parallel those detailed previously within this decision , dealing with Respondent Union's bond proposal. Full recapitulation, therefore, may not be required. The terminated master labor contract, previously noted, (article VII, "Grievance Procedure"), had established two Joint Labor Relations Boards serving the contract signatories as their final grievance adjustment bodies, short of arbitration. The Los Angeles County board had consisted of twelve members - six union representatives and six contractor representatives. (The contract, with respect to which both RCA and RCAOC were signatories, had laid down no specific requirement regarding their proportionate representation within the contractor group. Nor were any such proportions specified regarding contractor representation on the Orange County board, noted hereinafter.) The Los Angeles County board's jurisdiction had covered Los Angeles and Ventura Counties. The contracting parties' concurrently-formed Orange County board had functioned, within the particular county designated, with eight members - four union representatives and four contractor spokesmen. Within the particular contractor group serving each board, one member was designated to serve from the contracting parties' parallel county board. These boards were given the power to determine claimed contract violations, to impose penalties, to review and make recommendations "upon matters arising out of the interpretation, application and operation" of the master labor contract's provisions, and to perform certain other functions. When Respondent Union's negotiations with Complainant Association began, the Union spokesmen first proposed a single board . RCA's counterproposal reflected a conventional grievance procedure, without any Joint Labor Relations Board provision . When the parties next met, on July 17, Respondent Union's spokesmen reiterated their desire to retain the contractual board. During the parties' August 1st session, nevertheless, Complainant Association's new grievance procedure proposal was thoroughly reviewed; numerous changes were proposed, discussed, and presumptively settled by consensus. Executive Director Van Eyk' s notes regarding this session - which stand in the record without contradiction - read, in relevant part , as follows: No other changes were asked for by either side and this Grievance Procedure is now agreed to by both parties when the above changes have been incorporated. On August 11, consensus was reached regarding a further modification of management's "Grievance Procedure" proposal, with particular reference to possible arbitrations thereunder. Then, with matters in this posture, the Master Labor Agreement's termination date was reached. The parties convened their first session thereafter - with various Roofers' Union local members on strike - and Complainant Association was told that management's prestrike "package" proposal had been rejected; Respondent Union's representatives made specific reference to article VII, claiming that they could not see having two "different" grievance procedures. (Presumably, this comment was calculated to suggest the possibility that some grievance procedure "differing" from Complainant Association's pending proposal might be agreed upon within the two concurrent negotiations then in progress. This was the bargaining session - previously noted - during which Respondent Union's representatives repeatedly suggested and pressed for true joint negotiations.) Respondent Union was told, however, that RCA had "no intention of sharing positions on boards" with any other contractor's group, which the proposal then being bruited within the concurrent negotiations would require. Despite this - when the parties convened for their August 23 session - Respondent Union, consistently with its most recently declared view, presented a new grievance procedure proposal which provided for UNITED SLATE, TILE & COMPOSITION 641 two Joint Labor Relations Boards - with respect to which URCA, RCAOC and RCA would share membership proportionately, within the contractually designated employer complement. During the discussion which followed, Respondent Union finally agreed - so I find - that this particular language should be stricken , thus creating a! Joint Labor Relations Board with membership shared "just between" the Union and Complainant Association herein . With this basic modification conceded , Respondent Union's proposal,was further discussed; substantial - though not complete - consensus was reached. With matters in this presumptively settled posture - so far as the grievance procedure problem was concerned - the Regional Office settlement, previously noted, was reached. Consistently therewith, Local 220's representatives promised, inter alia, that: WE WILL NOT in any manner restrain or coerce employer-members of ROOFING CONTRACTORS ASSOCIATION OF SOUTHERN CALIFORNIA, INC., in the selection of that Association as his or its exclusive bargaining representative for the purpose of collective bargaining. Nevertheless, when the parties met October 23, Respondent Union proposed the contract - previously noted - which had just been negotiated by Locals 36, 72, and 220 with two different contractor groups . Therein was a provision, (article VII (B) "Grievance Procedure"), which called for two Joint Labor Relations Boards within Los Angeles-Ventura and Orange Counties, respectively, once more with cross membership for both union and contractor members . Complainant Association's spokesmen, so I find, noted "the inclusion of other associations and unions to share" board positions; full-scale discussion with respect to Respondent Union's proposal was, however, postponed . Further, November 13, discussions were - so far as the record shows - not conclusive. On November 20, following a thorough discussion, Complainant Association's new grievance procedure proposal, with substantial modifications - rather than Respondent Union's proposal - was next declared consensually acceptable ; Van Eyk's notes so show, and I so find. Further, on December 4, agreement was reached regarding one, additional , minor change. With matters once more moving toward a presumptive consensus, when the parties convened their December 18 bargaining session , Respondent Union presented the substitute "grievance" proposal previously noted. Substantially, this provision would have permitted Respondent Union to strike or shut down a contractor should a dispute arise which could not be resolved within 24 hours. Respondent Union proposed that RCA accept either its original proposal - which included grievance procedures culminating in Joint Labor Relations Boards, followed by arbitration - or the newly proposed substitute, which would eliminate these procedures and grievance bodies, but would permit work stoppages should the particular grievance matters not be settled within a day's time. As previously noted, RCA's spokesmen rejected this "alternative" proposal. On January 11, then, Respondent Union's representatives retracted their concurrence with respect to Complainant Association's "Grievance Procedure" proposals, and demanded concurrence with their previous article VII (A) and VII (B) submittals, in their entirety; with due regard for the whole record I so find. (Within his brief, Respondent Union's counsel cites International Vice President Evans' testimony as sufficient to warrant a finding that Respondent Union's January 11th proposal conceded revisions, regarding the contractual Labor Relations Board, calculated to meet RCA's objections. However, Evans' testimony - based completely upon purported notes, which he did not produce - cannot reasonably be so construed . He testified, merely, that Respondent Union proffered its article VII (B) proposal, rewritten to reflect a consensus reached that the Joint Labor Relations Board would be designated a joint "adjustment" board, instead. This testimony , within my view, cannot be considered a sufficient contradiction or rebuttal , with respect to Van Eyk' s positive recollection that Respondent Union's proposal compassed Labor Relations Boards with multiassociation representation, and cross-membership.) When the session terminated, Complainant Association's position - with respect to this demand , plus further demands, some of which have been previously noted - was that they would be studied. Matters stood , thus, when Complainant Association's second charge, herein , was filed. d. Further changes of position During their November 20 bargaining session, the parties reached consensus with regard to a 4-year contract, which could be reopened on anniversary dates during its term, but only by mutual consent , (article X, "Duration-Termination-Renewal"), save so far as article VII was concerned; with respect to the latter article there was a separate provision which permitted reopening by "either party" following the contract's first anniversary date. The subject was not discussed between November 20 and January 11, 1968. During the latter session, however, Respondent Union 's spokesmen declared that they were dissatisfied, inter alia, with this provision; they insisted that their own, prior, version of article X would have to be accepted. That version - set forth within Respondent Union's October 23 contract proposal previously noted - would permit either Respondent Union or signatory contractors to reopen their contract on any anniversary date during its 4 -year term, for the purpose of negotiating amendments or modifications, except with respect to wage rates or fringe benefit contributions. Respondent Union's October 23 proposal, further, contained a provision - with respect to which RCA's negotiators presumably had concurred - that employees required to work with "pitch, pitch base or pitch impregnated products or any material containing coal tar pitch" should receive premium pay. During the parties' December 4 bargaining session, the relevant contractual provisions in this respect (article XI) were consensually modified to provide, in substance, that premium "pitch" rates would be payable only to roofers working on jobs requiring such materials at times when pitch was actually being used thereon . However, when the negotiators next met - December 11 - one spokesman for Respondent Union expressed "concern" regarding this change, declaring that it could , conceivably, require a parallel modification of recently negotiated (October 18) contracts between Locals 36, 72, and 220, and URCA and RCAOC contractors, pursuant to the "most favored nations" clause (article VIII, B) therein . The subject was not revived, nevertheless, until the parties' January 11, 1968, session . During that session, inter alia, Respondent Union' s negotiators specifically retracted their December 4 concurrence regarding a modification of premium 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "pitch" pay requirements; they declared their desire to "discuss" the matter further. e. The Trust Agreements When the Local 220 - RCA negotiations, with which this case is concerned, began, the master labor contract then current contained a provision, (Article XX), pursuant to which certain collateral trust agreements were made part the contract by reference. (These trust instruments created trusts for several distinct purposes. Each trust was established for the benefit of employees working with roofing contractors privy thereto, throughout ' the three-county area with respect to which the Master Labor Agreement governed wages, hours and conditions of work. Representing management, spokesmen for both RCA and RCAOC served jointly on each trusts board of trustees.) Proposals for the creation and maintenance of comparable successor trusts - which, for present purposes, need not be described in detail - were proffered and discussed, thoroughly, during the negotiations now under consideration. No consensus was ever reached. When tentative proposals regarding the trusts were first discussed - during the parties' July 10 session - Complainant Association's negotiators suggested the possibility that specific benefits might be guaranteed for their contract's duration; on July 17, Respondent Union's spokesmen responded, designating certain benefits which were desired. Thereafter, on August 9, RCA's executive director "explained" certain aspects of Complainant Association's proposal, relative to trust matters. These discussions were essentially preliminary. During the parties' last prestrike bargaining session, August 11th, Complainant Association's article XX proposals were, however, further detailed. Local 220's spokesmen declared that they "did not like" management's "Health and Welfare" proposal; they stood firm with respect to their original demands With matters in this posture, the August 15 work stoppage, previously noted, commenced. When the negotiators next met, August 18, various health and welfare proposals, coupled with trust fund contribution proposals, were discussed on their merits. (The record warrants a determination - which I make - that Respondent Union was, then, generally pressing for joint negotiations between all three Roofers Union locals and all three contractor groups. Previously, within their separate negotiations with URCA and RCAOC noted, Locals 36, 72, and 220 had presented partial trust proposals which, inter alia, called for the creation of separate 12-man boards of trustees for each trust fund; these boards of trustees, which would be required to administer trust funds throughout the three-county area within which URCA and RCAOC member contractors functioned, and were to be composed of six union representatives - two from each of the three locals - and six association members - two each from URCA and RCAOC, plus two from Complainant Association herein. Substantially, therefore, Complainant Association was being requested to join with URCA and RCAOC in creating and maintaining these three-county trusts. RCA's spokesmen - confronted with this August 18th suggestion - replied that they had not yet been involved in joint negotiations with the other contractor groups named, and did not wish to get involved with them.) During this discussion - so I find - management's co-chairman, Ray Haddock, declared, inter alia, that Complainant Association had "no intention of sharing" positions on various boards of trustees, or other boards, with any other contractors' group. Meanwhile - as previously noted - various individual contractors were being requested to sign Respondent Union's short-term "interim" contracts; these documents expressly compassed contractor commitments with respect to various continued trust fund contributions, plus contributions toward a prospective pension fund, for deposit pending a written trust instrument's consummation. On October 23, when Respondent Union presented a proposal which matched its newly negotiated contract with URCA and RCAOC, previously noted, article XX thereof was reviewed in some detail. Van Eyk's notes regarding this matter - which I credit - read as follows: ARTICLE XX. Here, again , we note many discrepancies. First of all, they are making references to non-existent Trust Funds. They make allowances for expenditures of these contributions in unstipulated amounts prior to the establishment of the Trust and on the authority of so-called "Pro-tem" Trustees without any provision for Trustees to be appointed by an Association. Again, this is integrated with other Unions and other Associations, etc. Another point of question is that they allow for a quorum of only four Trustees out of twelve. [Emphasis supplied.] During the next four sessions, no significant progress was made. Complainant Association's spokesmen reiterated their refusal to sit on any trustee boards in conjunction with representatives of different management groups. The negotiators, however, did discuss various problems connected with the technical termination of those trusts which had functioned previously, while the recently-terminated Master Labor Agreement had been in force. When the parties' December 4 session convened, RCA's committee chairman restated Complainant Association's basic "trust" position . Van Eyk's notes with respect to this session - which I credit - summarize that statement of position as follows: Chairman Dion explained that our primary goal is to see the Health & Welfare Fund handled by an outside professional administrative firm and to take sealed bids from insurance companies, stipulating the Agent or Broker bringing in the most acceptable bid be named Broker of Record . . Later - during the same session - when Complainant Association's position was reiterated, Local 220's spokesmen declared their desire to meet with representatives of Locals 36 and 72, regarding this (trust) problem. Throughout the sessions which followed, Respondent Union's spokesmen - so I find - made clear their need in this connection, to "stick with" their sister locals . Complainant Association was asked, specifically, whether it would be willing to meet with all other parties concerned. (Locals 36 and 72, plus URCA and RCAOC) relative to trust matters; RCA's spokesmen, however, demurred , declaring that such a conference would serve no purpose. On January 4, 1968, trust fund matters were further discussed, Complaint Association's position - relative to so-called "outside" administration and sealed bids - was restated. (There seems to have been considerable discussion, likewise, regarding various suggested procedures for handling current trust fund contributions, pending a new contract' s negotiation . With respect to these problems, likewise , no consensus appears to have been reached.) When the negotiators convened for their UNITED SLATE, TILE & COMPOSITION January 11, 1968, session, their continued discussions with regard to trust matters culminated - so I find - in Respondent Union's refusal to consider RCA's trust proposals further; Local 220's spokesmen demanded Complainant Association's concurrence with their October 23 article XX formulation. With matters in this posture - so I have found - Complainant Association's spokesmen declared that Respondent Union's new demands, with respect to trust funds and various other matters, would be studied. Regarding trust fund matters specifically, however, determination seems clearly warranted that a real impasse had been reached. RCA's spokesmen were contending that - so far as they were concerned - only their Association's representatives should sit on management's side, with respect to various Trust Fund boards of trustees, Respondent Union was refusing concurrence, persistently, with respect to RCA's position. Local 220's spokesmen were contending, further, that bargaining with respect to questions of trust fund administration should not be considered bargaining concerned with "the selection of representatives for the purposes of collective bargaining or the adjustment of grievances" within Section 8(b)(I)(B)'s meaning; rather - so their argument seemingly ran - bargaining with respect to the composition of trust fund boards and trust administration should be considered closely related to bargaining about "rate of pay, wages . or other conditions of employment" which are considered mandatory subjects for negotiation. Hence, so Respondent Union's spokesmen contended, they should not be considered legally required to concede RCA's demand, with respect to board of trustees' membership. C. Conclusions 1. The bargaining unit Respondent Union's Representative Status Therein Within his complaint, General Counsel has defined the bargaining unit with which we are concerned as follows: "All roofers employed by members of RCA in the geographical area of Orange County, California" particularly. The record made warrants a determination, however, that Complainant Association herein - throughout the negotiations with which this case is concerned - claimed to represent first eleven, then twelve, Orange County roofing contractors, with no more than seven of these maintaining RCA membership. With respect to four of the five additional firms, the record reveals separate signed "Non-Membership Bargaining Agreements" whereby Complainant Association was given "exclusive . rights" to bargain on their behalf. (Regarding the fifth firm, Don's Roofing Company, the record reveals RCA's July 26 notice to Respondent Union claiming representative status. Though no "Non-Membership Bargaining Agreement" signed by Don's has been produced before me, RCA's timely claim to represent this firm has never, so far as the record shows, been specifically challenged.) This case was, thus, litigated - despite General Counsel's limited Complaint language - with a tacit consensus that RCA's negotiators were purporting to represent twelve roofing contractors - seven of them RCA members doing Orange County business, plus five nonmember Orange County firms. Concerning Complainant Association's claim, Respondent Union currently proffers several rejoinders. 643 First: Respondent Union presents a suggestion, previously noted, that two non-member contractors - Atlas and S & S, specifically - were not doing business as roofing contractors during "all times" material. Second: Respondent Union declares that three RCA members - Christian, Courtesy and Orange - likewise maintain RCAOC membership. (Logically, the first of these factual averments would seem to suggest a contention - never really set forth in detail - that nonactive contractors should not be considered compassed within a currently viable bargaining unit. Respondent Union's second declaration suggests a like contention, that RCA member-contractors with concurrent RCAOC membership should not be considered compassed within the limited multipleemployer bargaining group which Complainant Association herein claims to represent.) Respondent Union would, presumably, challenge this Board's "jurisdiction" over Local 220's dealings with firms not participating in the roofing business during the period herein material . Further, Respondent Union would, presumably, challenge any bargaining unit definition drafted to compass employees of contractors with respect to whom RCA could not, currently, show "exclusive" representative status for collective-bargaining purposes. Third: Respondent Union contends that the total number of roofers employed by those firms which may fairly be considered comprised within General Counsel's stated bargaining unit definition "constitute a minority" group when compared with the total number of roofers employed within Orange County. Counsel for Respondent Union suggests that "all roofers so employed" should be considered the sole and single appropriate unit for collective bargaining. These contentions, however, must be rejected. First: Respondent Union's charge that neither Atlas nor S & S Roofing were doing business during the period with which this case is concerned, completely lacks record support. Second: With respect to Christian & Letner, Courtesy, and Orange County Roofing, particularly, testimony proffered in Respondent Union's behalf, calculated to support their exclusion from RCA's Orange County bargaining group, cannot be considered, within my view, reliable, substantial or probative. (While a witness, Roofers Union Vice President Evans did proffer personal testimony - purportedly based upon a compilation derived from Local 220 records which he had consulted - that the three firms designated, plus "separate" contractor Earle Davis, currently held RCAOC membership, or had been represented by that trade group. He testified, further, that these three contractors were among those with whom Respondent Union presently has contracts - presumably derived from the October 18th three-county contractual consensus previously noted. However, Local 220's records were not produced; neither was Evans' purported "compilation" derived therefrom. The contracts which these three firms have supposedly signed were not produced or proffered for the record. With such documentary corroboration lacking, Evans' summary testimony, proffered in response to leading questions, fails to persuade.) Third: While denying the propriety of General Counsel's circumscribed bargaining unit definition - the respondent labor organization herein contends that a broader group, namely "all roofers" with Orange County work records, constitute the sole proper unit for collective bargaining purposes. This contention, however, both disregards and contradicts Local 220's current bargaining posture. The record shows that - during the period with which this case is concerned - this 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Union concurrently participated in collective bargaining, jointly with two sister locals, for roofers employed by various designated contractors, throughout the Los Angeles- Ventura-Orange County territory, specifically those contractors represented "individually" by URCA or RCAOC during their negotiations. And - consistently - when requested to bargain with RCA for a designated multiemployer unit compassing various designated member and nonmember contractors, doing business within Orange County particularly, Respondent Union proffered no demurrer. Having participated voluntarily in two parallel contract negotiations - so far as Orange County is concerned - spokesmen for Respondent Union can hardly now contend, persuasively, that "all roofers employed in Orange County" constitute a single appropriate collective bargaining unit for present purposes. Assuming, arguendo, that Respondent Union should not be considered precluded from such a contention, the suggestion would still merit rejection for lack of record support. General Counsel has proffered testimony - with Respondent Union's presumptive concurrence - that seven Orange County roofing contractors, whom Complainant Association claims to represent, hold RCA membership; and Respondent Union's contention that three of these firms hold concurrent RCAOC membership, which concurrent membership should be considered controlling with respect to their unit placement, has been rejected for lack of proof. With respect to RCA's five non-member contractors, General Counsel's case for their inclusion within a bargaining unit which otherwise comprises seven RCA members, likewise, has not been persuasively controverted. The record reveals formal bargaining designations signed by four firms; their viability has not been, herein, successfully challenged. And, regarding the remaining "separate" contractor - Don's - RCA's conceded claim to representative status has never been denied or controverted. With matters in this posture, General Counsel's litigated position, regarding the bargaining unit formulation which should be considered proper herein, merits Board concurrence. Upon this record, therefore, I conclude and find that, throughout the period with which this case is concerned, all roofers employed by RCA member contractors, and/or by nonmember contractors who have given RCA exclusive rights to function as their bargaining representative, within the Orange County, California, geographical area specifically, constitute a unit appropriate for collective-bargaining purposes, within the meaning of Section 9(b) of the statute. Respondent Union does not, really, challenge General Counsel's contention regarding its representative status within the bargaining unit thus defined. With specific reference to General Counsel's Complaint language, Respondent Union, within its answer, declares: . that it is the designated exclusive collective bargaining agent for all roofers employed in Orange County, and that a unit consisting of only those roofers employed by the listed members of RCA is not an appropriate unit. [Emphasis supplied.] Since Local 220, thereby, claims a statutory right to recognition as "the designated exclusive collective bargaining" representative for the larger employee group which it would have this Board find appropriate for collective bargaining purposes, that body surely cannot contend, persuasively, that it claims no comparable right to recognition with respect to the more limited employee group which I have found appropriate herein. Nor - so far as I can tell - does Respondent Union really make such a contention. Factually, General Counsel's position - regarding Local 220's representative status - has not been challenged. On this record, therefore, I find - consistently with General Counsel's contention - that, throughout the period with which this case is concerned, Respondent Union has been designated by a majority of roofing employees, within the unit found appropriate herein, as their representative for collective bargaining purposes. By virtue of Section 9(a) of the statute, Respondent Union has been, at all material times - and is now - entitled to recognition as the exclusive representative of all roofers within the previously described unit, for the purpose of collective bargaining with respect to their rates of pay, wages , hours of employment, and other terms and conditions of work. 2. The statutory violations charged General Counsel, herein, challenges Respondent Union's course of conduct - since August 15, 1967, particularly - upon several grounds. These have been previously detailed. Substantially, General Counsel suggests that Respondent Union's total course of conduct, reasonably calculated to promote the realization of certain specific bargaining goals, constituted restraint or coercion - directed against both RCA and various represented roofing contractors - with regard to their selection of representatives for the purposes of collective bargaining, or the adjustment of grievances. Further, General Counsel contends that Respondent Union's course of conduct, considered in totality, reflects a statutory "refusal to bargain" collectively with Complainant Association herein, particularly since it persisted in demands, which it pressed to the point of impasse, that RCA's negotiators concede a contractual consensus regarding certain matters not considered mandatory subjects for collective bargaining. Further, General Counsel charges Respondent Union, generally, with surface, sham and bad-faith bargaining, since the record purportedly discloses: - . that Respondent [Union] came to the bargaining table with the fixed purpose of not reaching any agreement other than that which it had negotiated jointly with Locals 36 and 72 and which was applicable to Los Angeles and Ventura [and Orange] Counties Most logically, these contentions - together with Respondent Union's defenses thereto - should be considered chronologically. First consideration will be directed, therefore, to Respondent Union's August-September course of conduct, directly following the Master Labor Agreement's termination but preceding that body's September 28th settlement commitment. (Normally - for policy reasons - this Board refuses to reconsider, within. complaint cases, charges of statutory violation which have been seemingly settled, following Regional Office investigation, without formal proceedings. This policy, however, has never been rigid. Should a respondent's postsettlement conduct reflect a resumption or continuation of prior unfair labor practices, or new conduct statutorily proscribed - thus revealing the settlement's failure to achieve its purpose - this Board will vacate the settlement, reopen all matters closed pursuant thereto, review the designated respondent's total course of conduct both presettlement and postsettlement, and require remedial action reasonably calculated to redress all statutory violations found. Southeastern Stages, Inc., 174 NLRB No. 85, fn. 1, and cases therein cited. UNITED SLATE, TILE & COMPOSITION For reasons which will become patent - subsequently - within this decision , I have concluded and found that Respondent Union's postsettlement conduct, in certain designated respects, flouted that body's settlement commitment . Consistently with Board policy , therefore, this decision will reflect my review of both Respondent Union's presettlement and postsettlement conduct.) Secondarily, Respondent Union's postsettlement changes of position will be reviewed, with a view to determining, particularly, whether that body's January 11, 1968, bargaining posture merits statutory condemnation. a. Respondent Union's presettlement conduct The present record, within my view, fully warrants a determination that Complainant Association herein - together with its seven Orange County member firms and five "individual" roofing contractors having Orange County places of business - consenusally established a multipleemployer bargaining unit, with respect to which Respondent Union subsequently consented to bargain. Weyerhaeuser Company, et al., 166 NLRB No. 7, and cases cited therein at fn. 6; Hoisting and Portable Engineers Local Union No. 701 , International Union of Operating Engineers, AFL-CIO (Cascade Employers Association, Inc.), 141 NLRB 469, 470-471. Within the decision first cited, this Board had declared the test required when determinations must be made regarding the viability of claimed multipleemployer bargaining units; that formulation reads as follows: - It is whether the members of the group have indicated from the outset an unequivocal intention to be bound in collective bargaining by group rather than individual action, and whether the union representing their employees 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 representative. This test has been fully satisfied herein . Within an historical context of so-called multi-employer , multi-union collective bargaining , Roofers Union Locals 36 and 72 gave both RCA and RCAOC timely notice that prospective 1967-71 contracts would be negotiated upon a so-called "individual" contractor basis, rather than for some consolidated multiple-employer group. However - since Local 36 previously had, during the life of its soon-to-be-terminated contract , ceded its former Orange County territorial jurisdiction to Respondent Union herein - these notices, so far as RCA was concerned, defined a basis for renewed collective bargaining with respect to represented roofing contractors doing business in Los Angeles and Ventura Counties merely. Local 220, which conceivably could have given a comparable notice - calculated to define the collective bargaining format which it proposed to follow regarding those firms doing business within Orange County which RCA represented - proffered none. Thus, RCA's March 22 letter - whereby Local 220 was notified that Complainant Association was "ready and willing to commence to negotiations for our members and any other employers who give us their collective bargaining rights" for negotiating purposes - defined the basis upon which negotiations regarding Orange County roofers would be conducted . Substantially, Complainant Association was proposing negotiations for a multiple-employer bargaining group . And Respondent Union's subsequent concurrence with Complainant Association's proposal - lacking any qualification - confirmed this collective bargaining pattern. 645 This record, shortly, warrants a determination, which I make, that - by June 19 , when negotiations began - 1I Orange County roofing contractors had "effectively" created a multiple-employer bargaining group , with which Respondent Union was willing to bargain . RCA's seven member firms with Orange County places of business, plus four Orange County nonmember firms which had, before then, given Complainant Association exclusive rights to bargain in their behalf, had revealed their "unequivocal intention " to be bound in collective bargaining by group rather than individual action. Local 220 had been notified with respect to the bargaining group's formation, and RCA's receipt of delegated bargaining authority . Following such notice, Respondent Union declared its readiness to negotiate consistently with RCA's proposal; negotiations with Complainant Association's spokesman were , thereupon, commenced. Weyerhaeuser Company, supra. Nothing more need be said. Following their master labor contract's August 15 termination, Respondent Union's spokesmen - while continuing to bargain with RCA's committee - sought, for the first time, to deny or retract their prior de facto recognition that a multipleemployer bargaining unit had come into being . That belated denial or retraction - since it was patently and completely inconsistent with Respondent Union's contemporaneous course of dealing with RCA's committee - cannot be held to have destroyed their previously "accepted" bargaining relationship. Complainant Association consistently, thereafter, refused to concur with Respondent Union's view, and consistently maintained its previously declared representative authority and status . Thus, Respondent Union's purported August 18 disclaimer, regarding its commitment to multiple-employer bargaining, must be considered untimely and without operative consequence. Universal Insulation v. N.L.R.B., 361 F.2d 406 (C.A. 6); N.L.R.B. v. Sheridan Creations, Inc., 357 F.2d 245 (C.A. 2); Cf. N.L.R.B. v. Mor Paskesz, 405 F.2d 1201 (C.A. 2). Weyerhaeuser Company , supra; Ice Cream and Frozen Custard Employees , 145 NLRB 865; Retail Associates, Inc., 120 NLRB 388, 395 . I so find. Thus - when Respondent Union's members, concurrently, ceased work for those Orange County Roofing contractors whom RCA represented - the persistent efforts of Local 220 spokesmen, directed toward the procurement of separate "individual" contracts with such contractors, must be considered violative of law. Substantially , Respondent Union herein - within a bargaining context marked by strike pressures - dealt directly with individual roofing contractors ; required those contractors to repudiate or disavow their previously designated bargaining representative, Complainant Association herein; and, thereby, restrained and coerced those contractors with respect to their selection of representatives for collective-bargaining purposes. Southern California Pipe Trades District Council No. 16 of the United Association (Aero Plumbing Co.), 167 NLRB No. 143; Operative Plasterers and Cement Masons' International Association, Local No. 2, (Arnold M. Hansen), 149 NLRB 1264, 1267; General Teamsters Local Union No. 324 (Cascade Employers Association, Inc.), 127 NLRB 488, I so find. Respondent Union's course of conduct in this connection , further, compassed a second unfair labor practice . That body's solicitation and subsequent 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD procurement of separate, short-term contracts from those roofing contractors with whom this case is concerned necessarily bypassed Complainant Association, and reflected a refusal to bargain collectively with that statutory "employer" herein, despite its previously conceded representative status. Previously, within this decision, determination has been made that Respondent Union's proffered short-term "interim" contracts - which various roofing contractors were, under strike duress, required to sign - contained further provisions regarding which Respondent Union could not be considered privileged to force or require contractual commitments. First: They required signatory roofing contractors to reaffirm their willingness to follow the grievance procedure laid down within the recently terminated master labor contract. Since the contractual Joint Labor Relations Board provided for therein compassed, within its membership, management representatives chosen neither by Complainant Association, nor by roofing contractors whom it represented, Respondent Union's ploy necessarily restrained and coerced these signatory contractors, with respect to their choice of representatives for the adjustment of grievances . Painters District Council No. 36, AFL-CIO (Commerical Drywall Constructors , Inc.), 155 NLRB 1013, 1016- 18; United Slate, Tile & Composition Roofers Damp & Waterproof Workers Association, Local No. 36 (Roofing Contractors Association of Southern California , Inc.), 172 NLRB No. 249. Likewise , Respondent Union's fixed, immutable demand - backed by strike pressure - that the terminated contract's grievance procedure be maintained reflected a refusal to bargain collectively in good faith; I so find . Second: When Respondent Union persisted in pressing for short-term contracts which necessarily reaffirmed and continued prior performance bond requirements , that body's representatives left the sphere of mandatory bargaining with regard to "terms and conditions of employment." They were, essentially, conditioning their willingness to confirm a consensus, and resume work, upon the reciprocal willingness of contractors to sign agreements dealing with matters outside the scope of mandatory bargaining . Local 164, Brotherhood of Painters, AFL-CIO ( Cheatham Painting Co.) v. NL.R.B., 293 F.2d 133 (C.A.D.C.); N.L.R.B. v Wooster Division of Borg Warner Corp , 356 U.S 342, 349. Well-established decisional doctrine teaches that - when a consensus regarding wages, hours and other terms and conditions of work has been reached , neither the employer concerned nor his workers' representative may refuse to sign a contract which embodies them, on the ground that it does not include some provision about a further matter which cannot be considered a mandatory subject for collective bargaining; such conduct, substantially, represents a refusal to bargain about those subjects which are within the scope of mandatory bargaining . (General Counsel, herein, presses similar contentions - bottomed upon Sections 8(b)(1)(B) and 8(b)(3) particularly - with respect to Respondent Union's August 1967 , bargaining posture or trust fund matters. These contentions will be separately considered, subsequently, within this decision .) The present record, therefore, provides more than sufficient justification, within my view , for a determination that Respondent Union's presettlement bargaining posture - particularly with regard to bond requirements and grievance machinery - violated the statutory provisions herein previously mentioned. b. Respondent Union's Postsettlement conduct With respect to Respondent Union's postsettlement bargaining conduct - between October 23 and January 11, 1968, particularly - the consolidated complaint herein charges further refusals to bargain, coupled with further restraint and coercion statutorily proscribed. General Counsel's brief summarizes his position, regarding Respondent Union's bargaining posture within this period, as follows: The latter [Case 21-CB-3070] is based on the theory that in bargaining subsequent to the Settlement Agreement, Respondent, while ostensibly bargaining with an open mind as required by the Statute, in fact had a fixed predetermined position that it would accept no agreement with substantive terms other than those in the agreement which it reached October 18, 1967, in joint bargaining with Roofers Locals 36 and 72 involving two other Roofing Contractors associations, that this agreement contained certain non-mandatory conditions [particularly with reference to performance bonds, grievance procedure and trust fund management] and that Respondent refused to accord RCA recognition as representative of the entire multi-employer unit which RCA represented. These contentions, substantially, pose the most significant questions with which the present consolidated case is concerned. With respect thereto, Respondent Union contends that the present record reflects its full compliance with settlement commitments; that the record, likewise, reflects its participation in collective-bargaining negotiations with Complainant Association continuing to date; and that the record "fails to manifest" statutorily proscribed restraint or coercion, directed against RCA member firms, regarding their selection of that trade group as their bargaining representative. Respondent Union's last-noted contention - particularly with reference to negotiations during the October 23 - January 11 period - must be considered meritorious. Throughout this period, joint negotiating sessions were frequent; ten were convened, four with Federal conciliators present. No strike threats, so far as the record shows were made; nor was any work stoppage, calculated to bring economic pressure upon Orange County roofing contractors, directed or commenced. Thus, through January 11, certainly, Respondent Union cannot be charged with restraint or coercion, within the meaning normally given these statutory terms. N.L.R.B. v. Drivers, Chauffeurs, and Helpers, Local Union No. 639 (Curtis Bros., Inc.) 362 U.S. 274; Cf. Metropolitan District Council of Philadelphia (McCloskey and Company), 137 NLRB 1583, 1584. Within the first cited decision, which - though it dealt with Section 8(b)(1)(A) particularly - considered and construed the statutory language with which we are now concerned, the Supreme Court held: - that Section 8(b)(1)(A) is a grant of power to the Board limited to authority to proceed against union tactics involving violence, intimidation, and reprisal or threats thereof ... Upon this record, Respondent Union's course of conduct, throughout the specific period with which we are now concerned, hardly merits such characterization. Local 220's spokesmen may have been hard bargainers. Their UNITED SLATE, TILE & COMPOSITION changes, of position while negotiations continued - with respect to which more will be said herein - may have impressed RCA's negotiators as calculated harassment. Nothing in the present record, however, would warrant a determination - within my view - that Respondent Union's bargaining-table conduct, during these negotiations, constituted "restraint or coercion" statutorily proscribed. 2. However, General Counsel's further argument - that Respondent Union's course of conduct nevertheless reflects a refusal to bargain collectively which Section 8(b)(3) proscribes - raises more subtle questions. Contentions are made: (1) that Respondent Union herein refused to recognize RCA's representative status, save for those member contractors "who are not members of any other association" concurrently; (2) that Local 220's spokesmen "bargained to impasse" regarding their proposed performance bond requirement, despite their knowledge that bond proposals could not legally be considered mandatory collective bargaining subjects; (3) that Respondent Union likewise "bargained to impasse" regarding grievance procedure and trust fund management proposals which would effectively compel Complainant Association and its represented contractors to rely upon employer representatives not chosen by them, with regard to matters compassed within such proposals; and (4) that Local 220 really bargained with a fixed predetermined position that it would accept no contract with substantive terms different from those which its representatives - together with Locals 36 and 72 spokesmen - had negotiated, previously, with two other trade groups. Confronted with such contentions, this Board must determine: First, whether Respondent Union's bargaining posture on January 11th specifically - when negotiations were temporarily suspended - did compass demands or statements of position which that body could legally present, but with respect to which it could not legally force or require concurrence. Second, whether Respondent Union was, then, really conditioning its readiness to sign a final contract upon Complainant Association's concurrence with regard to such demands or statements of position. These determinations - since they will concern factual matters - must, necessarily, derive from a record review. General Counsel's contention - previously noted - that Respondent Union's negotiators were, then, demanding a recognition clause whereby Complainant Association would be recognized as representing only those member contractors who were not, concurrently, members of some other trade group, derives - so I find - from a record misconstruction . During the parties' October 30 bargaining session, Respondent Union's spokesmen did submit such a restricted "preamble" proposal . Before the session terminated, however, Local 220's negotiators had effectively withdrawn their proposal; they had noted their concurrence with a proffered counter suggestion . The consensus thus "finally" reached regarding this preliminary language was later supplemented; Respondent Union consented to define - within a following numbered provision - the parties contractually vested with "exclusive bargaining rights" thereunder. (RCA's suggested contractual modification in this respect had first been proffered, so I find, within that body's July 10th contract proposal. The present record reflects no rationale for the proposal's October 30 revival.) 647 Between December 4 and January 11, Local 220's representatives reconsidered and pressed for deletion of this supplementary "exclusive bargaining rights" language. Thus, when the session last-designated concluded, Respondent Union was - so far as the record shows - still ready to recognize Complainant Association herein, as: - . the sole and exclusive bargaining representative for its members and such others of the roofing contractors of . Orange County as [this Association is] authorized by this agreement and/or bylaw to represent The parties' sole remaining disagreement, then, related merely to Respondent Union's refusal to consider RCA's further "alternative" proposals: (1) that previously proposed supplementary "exclusive bargaining rights" language be retained within article V, paragraph 1, specifically; or (2) that their agreed-upon recognition provision, currently set forth within a preliminary "Bargaining Representative" paragraph, should instead be designated article I, within their contract's main body. This simple textual dispute, within my view, reflects no basic refusal to concede RCA's representative status with respect to the "entire multiemployer unit" which Complainant Association represented. However, Respondent Union's further January 11 bargaining posture - with particular reference to matters regarding which RCA could not be legally forced or required to bargain - merits further consideration. General Counsel contends that Local 220's representatives "bargained to impasse" with respect to such matters; thus, Respondent Union's rigidity and persistence, so the argument runs, constituted a statutory violation . Cf. N.L.R.B. v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349; Local 164, Brotherhood of Painters, AFL-CIO (Cheatham Painting Co.), supra. This contention - within my view - must be considered meritorious. When a consensus has been reached regarding wages, hours and other terms or conditions, neither the employer nor the representative of his workers may refuse to enter into contractual commitments embodying them, basing that refusal on the ground that such commitments do not include some provision regarding matters which are not mandatory subjects for collective bargaining; such conduct, so the decisions teach, constitutes a refusal to bargain about those subjects which are within the scope of mandatory negotiations. Within his brief, Respondent Union's counsel has succinctly characterized General Counsel's testimonial presentation as calculated to demonstrate that Local 220 was not bargaining in good faith; that tentative agreements were, at later meetings retracted; and that Respondent Union made new and further proposals with respect to subjects which had, presumably, been covered. In reply, Respondent Union's counsel contends: (1) That both parties' negotiators clearly conceived their consensual commitments as tentative, with no contractual provisions to be considered finally settled pending a consensus with respect to some complete document, which Respondent Union's membership could, thereafter, consider and ratify; (2) that negotiations conducted pursuant to such a consensual understanding have continued; (3) that, since their January 11th bargaining session, Local 220's spokesmen have proffered "many concessions" with respect to various disputed nonmandatory matters, though problems related to trust fund management remain still unresolved, and (4) that Respondent Union is presently 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ready, willing and able to continue negotiations. Should the Board find merit in these contentions - certainly - no determination could be considered warranted that Respondent Union was "refusing to bargain" regarding these unsettled matters. When Section 8(d) was added to the statute, there was general agreement that this provision confirmed previous Board and judicial determinations that the duty to bargain - for both union and employer respondents - comprehended a duty to negotiate in good faith. N.L.R.B. v. Reed and Prince Manufacturing Co., 205 F.2d 131, 134 (C.A. 1). The section in question - pursuant to Board and court constructions - imposes a mutual duty upon both labor and management representatives to enter into negotiations with an "open and fair mind and a sincere purpose to find a basis of agreement." N.L.R.B. v. Darlington Veneer Co., 236 F.2d 85, 89 (C.A. 4). It condemns adoption by either party of "take it or leave it" attitudes. Such "good faith" postures are required, on the theory that discussions carried on in such an atmosphere "may narrow the issues, making the real demands of the parties clearer to each other, and perhaps to themselves, and may encourage an attitude of settlement through give and take." N.L.R.B. v. Insurance Agents International Union , 361 U.S. 477, 487-488. Firmness in negotiations - even when coupled with a readiness to use economic pressures calculated to make the other party more complaisant regarding contract terms - may still be consistent with the duty to bargain in good faith. N.L.R.B. v. Truitt Manufacturing Co., 351 U.S. 149, 154-155 (Justice Frankfurter, concurring). But whatever course negotiations may take, the designated duty must be satisfied, consistently with the legislative belief that such an approach by both sides promotes the achievement of industrial peace. What reaction does the statute command, then when the record reveals a lengthy series of conferences, without the achievement of complete contractual consenses? When required to determine whether respondent labor organizations particularly, found in such a situation, have "refused to bargain" collectively this Board must, substantially, decide - with due regard for all relevant circumstances - whether they have really been engaged in mere surface or sham bargaining, calculated to force or dictate a contractual consensus consistent with some fixed, predetermined position. When "employers" have been charged with refusals to bargain in good faith, Board determinations regarding the propriety of their conduct have generally been bottomed upon conclusions that the particular course of conduct being reviewed provided a clear manifestation of the employer's then state of mind, revealing, therefore, his lack of good faith. N.L.R.B. v. Crompton Highland Mills, 337 U.S. 217; H. J. Heinz Co., v. N.L.R.B., 311 U.S. 514; see N.L.R.B. v. Cascade Employers Association, 296 F.2d 42 (C.A. 9). And whenever particular employer conduct challenged as constituting a refusal to bargain - considered in isolation - will not justify such a conclusion regarding the respondent employer's lack of good faith, the Board must determine his state of mind by reviewing the totality of the circumstances. Compare N.L.R.B. v. Williamsburg Steel Products Company, 289 F.2d 700 (C.A. 2), in this connection. Similar considerations must, necessarily, govern Board judgments when some labor organization has been charged with refusal to bargain. Respondent Union's counsel, so far as I could tell, makes no contrary contention. With these considerations in mind - having reviewed the positions which Local 220 spokesmen took, during negotiations, particularly with regard to performance bond and grievance procedure questions - this trier of fact feels constrained to conclude that, during the October 23 - January 11 period with which we are now concerned, Respondent Union's overall course of conduct did not satisfy statutory "good faith" standards. More particularly, I find merit in General Counsel's contention, previously noted: that in bargaining subsequent to the Settlement Agreement, Respondent [Union], while ostensibly bargaining with an open mind as required by the Statute, in fact had a fixed predetermined position that it would accept no agreement with substantive terms other than those in the agreement which it reached October 18, 1967, in joint bargaining with Roofers Locals 36 and 72 involving two other Roofing Contractors associations ... Such a bargaining posture, maintained with respect to so-called mandatory subjects - wages, hours, and conditions of work - may, conceivably, flout no statutory mandate: Compare General Teamster, Warehouse and Dairy Employees, Local Union 126 (Oshkosh Ready-Mixed Co.), Case 30-CB-204, Trial Examiner's Decision 44-69, wherein Trial Examiner Reel discusses some closely related questions; Cf. United Mine Workers v. Pennington , 381 U.S. 657. When maintained, however, with respect to certain so-called "nonmandatory" subjects - responsibility bond requirements, plus proposals calling for multiple-association representation within a particular employer group designated to hold Joint Labor Relations Board membership - persistence carried to the point of obduracy may well merit Board proscription. Cf. Operative Plasterers' and Cement Masons' International Association, Local No. 2, AFL-CIO (Arnold M. Hansen), supra. Was respondent labor organization herein "demanding and insisting" that RCA's contract should contain these nonmandatory provisions, then, without having given Complainant Association's negotiators a real opportunity to bargain, and without the statutorily - requisite intention to bargain in good faith? This question, within the present record's context, merits affirmative response. Previously, within this decision, we have noted Respondent Union's participation in concurrent negotiations with URCA and RCAOC during the period with which this case is concerned, looking toward a contractual consensus with which various roofing contractors - represented by these other trade groups - within a three-county territory would subsequently be requested to concur. With respect to these concurrent negotiations, Respondent' Union's two sister locals - which shared Los Angeles and Ventura County jurisdiction - had, clearly, been prime movers; Respondent Union's participation had, realistically, been subordinated. By October 18, 1967, contractual consensus had been reached; that consensus had compassed a commitment (art. VIII) previously noted, which read as follows: B. No Contractors signatory hereto shall be required to pay higher wages or be subject to less favorable working rules than those applicable to other Contractors employing members of the Union performing similar work in the same jurisdiction. With matters in this posture, there can be no doubt that respondent labor organization herein lost considerable UNITED SLATE, TILE & COMPOSITION 649 "freedom to maneuver" within the negotiations which are now being reviewed, when dealing with Complainant Association for various Orange County roofing contractors . (The record reflects frequent contacts - between . October 23 and January 11 specifically - between Local 220's spokesmen and representatives of that body' s sister locals . Those contacts were , clearly, calculated to provide Respondent Union's negotiators with guidance regarding this continued bargaining posture.) Respondent Union's negotiators, plainly, felt themselves constrained to withhold any concessions - during the particular negotiations with which we are now concerned - which conceivably could "water down" those wage rates or working rules which had been set for roofers throughout the three-county territory, pursuant to their October 18th contractual consensus. Within such a context of constraint , Respondent Union's patent January I l determination to retract certain substantive consensual commitments previously made may be understandable, certainly . Judgment could hardly be considered warranted , however, that Respondent Union's several reversals were consistent with "good faith" negotiation . With a background of some 22 bargaining sessions - within which these negotiators had reached a number of consensual understandings - respondent's labor organization's restated January 11 bargaining posture was reasonably calculated to convey the message that contractual provisions significantly different from those which had been reached October 18 - within that body's concurrent negotiations - would not be tolerated. And disagreement between the parties was, thereby, necessarily rendered broader . Substantially , Respondent Union revealed that it had relinquished its policy of negotiation with reasonable firmness - which had brought the goal of final contractual consensus conceivably within reach - for a policy of dogged intransigence "more likely to discombobulate than to compose" differences . See Justice Frankfurter, Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 464, dissenting in another context ; Great Western Broadcasting Corporation , 139 NLRB 93, 130-135. Such conduct persuasively suggests the absence of that "state of mind" which the statute requires . Thus, RCA's negotiators could, within my view , reasonably conclude, as they clearly did, that - regarding those nonmandatory subjects of bargaining with which we are now concerned - statutorily proscribed "impasse" had been reached. c. Trust questions When negotiations were temporarily suspended - following the parties' January 11 session - no consensus whatever, regarding Complainant Association's participation in various fringe benefit trusts, had been reached. The record with respect thereto reflects protracted discussions - dating back to the time when negotiations began -- which had compassed a number of questions related to trust fund management particularly. Inter alia, these discussions - with particular reference to their January 11th status - had revealed basic disagreements concerning the projected composition of so-called employer-trustee groups which would be charged with prospective management responsibility for various trust funds. Regarding these disagreements , General Counsel's position - stated within his brief - stands as follows: In this posture, the only issue is whether Respondent [Union] can demand to point of impasse that RCA be represented by only two of the six employer-trustees and thus restrain and coerce an employer in the selection of his representatives for collective bargaining and the adjustment of grievances in violation of Section 8(b)(1)(B). RCA does not want to delegate to representatives not of its choosing the decision of how the trust funds paid by it shall be administered. The trust funds in question are the fruits of collective bargaining. Their administration is only an extension of, and hence a part of, the same collective bargaining which brought the funds into existence in the first place. Hence, insistence by Respondent [Union] to point of impasse that it control the designation of four of the six employer-trustees is violative of Section 8(b)(1)(B) and 8(b)(3) of the Act. [Emphasis supplied.] Previously , within this decision, determination has been made that Respondent Union 's January 11th bargaining posture compassed a persistent demand that Complainant Association herein "accept" that body's October 23 article XX proposal , regarding certain trust agreements and related provisions . And this trier of fact's review of Respondent Union's October 23 proposal does reveal - consistently with General Counsel's contention - that RCA's negotiators thereby were , inter alia, being pressed to "designate and appoint" certain employer-designated representatives, mentioned in various collateral trust agreements , for service as trustees, qualified to function in behalf of contractor contributors pursuant to such trust document provisions . (Contrary to General Counsel's contention previously noted, however , Respondent Union was not demanding that "it" control the designation of four out of six employer-trustees; Complainant Association was being pressed to concede the right of two different trade groups [URCA and RCAOCI to designate four out of six employer-trustees, qualified to represent all contractor contributors .) Should bargaining table pressures - directed to such contract goals - be found violative of law? Or should they be considered part of some genuine impasse, with respect to which the parties remain free to negotiate further? First: Does Respondent Union's mere persistence in negotiations, with respect to this demand, when pressed to the point of conceded impasse, constitute "restraint and coercion" directed to Complainant Association, regarding the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances? Despite General Counsel's categorical statement of position, previously noted, this question cannot be considered settled . Clearly, persistent demands regarding a business firm's "selection of representatives" purportedly for collective bargaining purposes - within a context of threats and various economic pressures - constitute restraint and coercion statutorily proscribed. Operative Plasterers' and Cement Masons' International Association, Local No. 2, AFL-CIO (Arnold M. Hansen), supra. This record , however, reveals no postsettlement threats between October 23 and January 11 particularly, nor does it reveal economic pressures brought to bear upon roofing contractors , during the period with which we are now concerned . True, such pressures had previously been brought to bear upon various contractors whom RCA represented. However, Local 220's spokesmen - pursuant to their settlement agreement - had foresworn such conduct; whatever else the record may show regarding their behavior between October 23 and January 11, no disposition to resume "violence, intimidation, and reprisal or threats thereof" has been revealed. Cf. Metropolitan District Council of Philadelphia (McCloskey 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Company), supra . General Counsel's Section 8(b)(I)(B) contention regarding this facet of his case - within my view - must be rejected . (My conclusion, stated, relates merely to Respondent Union's October 23-January 11 course of conduct . Previously , within this decision , discussion was reserved with respect to General Counsel's contention that Respondent Union's presettlement conduct - particularly so far as trust questions were concerned - presently merits formal Board proscription . Now then, upon this record , there can be no doubt that Respondent Union 's resort to strike pressures directly following the Master Labor Agreement's termination - calculated to force the concurrence of RCA - represented contractors regarding a short-term continuation of the various trusts therein provided - constituted a restraining and coercive tactic. Further, for reasons which I propose to discuss within this portion of my decision , I would find, likewise, that Respondent Union's short-term bargaining goals, with particular reference to trust fund questions, were not within the compass of those goals for which a resort to strike tactics could be considered privileged.) Second: Does Respondent Union's concededly intransigent position regarding the matter now under consideration, nevertheless, constitute a postsettlement refusal to bargain? General Counsel contends that it does, primarily because Respondent Union's article XX proposal compassed a demand - with reference to the composition of employer-trustees - which Local 220's spokesmen could not , legally , press to impasse The present state of the law , however, hardly warrants a conclusion consistent with General Counsel's contention. True, this Board has recently held that contract proposals calculated to require employer consent with respect to certain trust agreements - whereby signatory firms would be bound to "accept" representation on boards of trustees by employer representatives not of their own choosing - contain a so-called nonmandatory provision , United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Association , Local No . 36 (Roofing Contractors Association of Southern California, Inc.), 172 NLRB No. 249. And - consistently with the rationale set forth, previously , within this decision - bargaining carried to impasse, regarding such a claimed "nonmandatory" provision, conceivably could be considered a refusal to bargain statutorily proscribed . No decisional precedent cited for my consideration , however, has so held, specifically. The case just cited - which concerned a Los Angeles County roofing contractor with RCA representation - did hold Section 8(b)(3) violated when Local 36, Respondent Union's sister local, brought strike pressures to bear upon the contractor concerned , for the purpose of forcing him to sign a contract which contained such a claimed "non mandatory" provision . With all respect, however, I note that this Board, therein, merely "adopted" without discussion certain findings, conclusions , and recommendations which the Trial Examiner had proffered . The Trial Examiner's relevant conclusion regarding the respondent labor organization's refusal to bargain likewise , had been proffered - so I find - without any textual rationale ; he had, merely, cited a single case for some purported precedent value. Due consideration has persuaded me, however that the Trial Examiner's cited case, whatever its persuasive relevance with respect to matters before him, cannot reasonably be considered determinative herein . The question now posed - within my view - remains open . Some factual and legal considerations, relevant to its resolution, merit discussion. RCA's recently terminated Master Labor Agreement, previously noted, had incorporated by reference five collateral trust agreements; the last of these, designated the "Roofing Industry Trust" specifically, had created a fund for industry promotion purposes. This Board has consistently found contract proposals with respect to such promotion funds "nonmandatory" subjects for collective negotiation. Painters District Council No 36, AFL-CIO (Commercial Drywall Constructors, Inc.), supra; Metropolitan District Council of Philadelphia and Vicinity of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (McCloskey and Company), supra. These determinations, however, have not been bottomed upon factual findings regarding the composition of their trustee boards; they have seemingly been bottomed, rather, upon the Board's conclusion that such funds lack any direct relationship to "wages, hours, and other terms and conditions of employment" with respect to which collective bargaining may be compelled. (This consideration has persuaded me that - with respect to trust matters particularly - the General Counsel's Section 8(b)(1)(B) challenge, directed to respondent labor organization's presettlement conduct, should be found meritorious. Clearly, when Respondent Union resorted to strike pressures - calculated to force RCA - represented contractors to sign short-term contracts which would temporarily continue various preexistent trusts, including the Roofing Industry Trust for trade promotion purposes, previously noted - that body was pursuing a statutorily proscribed course of conduct to coerce employer concurrence regarding a "nonmandatory" substantive matter) True, both cases cited did concern preexistent funds currently being managed by boards of trustees which consisted partially of employer representatives previously designated by some employer or trade association signatory or signatories, other than the particular "employer" whose contractual concurrence was being sought. Neither case, however, reveals any Board determination - bottomed upon such a consideration specifically - that contractual proposals with respect to such funds could not, legitimately, be pressed. For example, within the case last cited, the Board decision declares: - The Trial Examiner found, and we agree, that, because the ]Industry Advancement Program] included provisions relating to matters which are not mandatory subjects of bargaining, Respondent's insistence upon inclusion of the IAP in its contract with McCloskey constituted a refusal to bargain within the meaning of Section 8(b)(3) of the Act. . . . Furthermore, we agree with the Trial Examiner that McCloskey's acceptance of the IAP, in effect, would have amounted to a designation of the [General Building Contractors Association, Inq.] as its collective-bargaining representative with respect to the subjects included therein While Respondent could propose such a designation, it could not insist upon it. Accordingly, we find, for this reason also, that Respondent's insistence upon inclusion of the IAP as a condition of signing a contract with McCloskey, constituted a refusal to bargain within the meaning of Section 8(b)(3). [Emphasis supplied.] This Board has, thus, never held definitively, so far as I can tell, that - with respect to contract proposals dealing with genuine fringe benefit trust funds solely - labor negotiations may not legally "demand" that business UNITED SLATE, TILE & COMPOSITION 651 firms accept representation on boards of trustees through "employer-trustees" not chosen exclusively by them. Respondent Union's January 11 bargaining posture, however, presents precisely such a question. Local 220's October 23 contract proposal had called for the establishment of five trust funds; no "Roofing Industry (Promotion) Trust" had, however, been suggested. This record, further, will support a determination that Respondent Union's article XX proposal - which, substantially, would have required Complainant Association's participation in trusts covering all roofers within a three-county territory, managed by boards with three locals and three employer groups represented - rested primarily upon practical considerations. No conclusion would be warranted that Respondent Union's proposal had been proffered deliberately to deprive RCA-represented contractors of complete freedom of choice with regard to their designation of trustee representatives. Within his brief, Respondent Union's counsel notes, cogently, that - with respect to negotiated fringe benefit trust funds covering an entire industry or craft, within a given geographical area, particularly in construction trades - management responsibilities have, quite commonly, been delegated to joint labor-management trustee boards with respect to which particular signatory contractors may not have had some initial or exclusive freedom of designation. Conventionally, such trusts have been created - with wide worker coverage - largely to procure whatever practical advantages or benefits the parties may derive from: 1. Their centralized administration of large funds, amassed through pooled contributions, made by nominally "separate" employer contributors; 2. Their negotiation and procurement of group "health and welfare" coverage for larger worker groups, calculated to provide maximum insurance benefits at minimum cost; 3. Their maintenance of fringe benefit programs uniformly applicable throughout a given trade, industry, or territorial labor market. RCA's trust proposals - with particular reference to the fund which would be charged with procuring health and welfare benefits for covered workers - were, within Local 220's view, calculated to frustrate the creation of consolidated, viable trust fund programs directed toward such "economic" goals. Within his brief, Respondent Union's counsel has characterized Complainant Association's trust proposals as impractical . Boards of trustees with employer representatives designated by RCA solely, charged with managerial responsibility for trust funds which would merely cover roofers hired by RCA-represented Orange County contractors - so the argument runs - could not procure health and welfare benefit coverage matching the coverage which a larger, three local-two association, trust fund with three-county coverage could provide. Further, Respondent Union's counsel suggests that: - . . . when employees from Local 220 work for other contractors in [Orange] County as well as in Los Angeles County, and when employees from Locals 36 and 72 work also for R.C.A. contractors in Orange County as well as in Los Angeles and Ventura Counties... their fringe benefit privileges, with respect to health and welfare coverage particularly, would therefore necessarily vary. With these considerations concededly present, Respondent Union's October 23 proposal - looking toward the creation of several consolidated, three local-three association, trust funds - cannot be treated merely as one primarily calculated to deprive employer signatories of statutorily protected freedom of choice, with respect to their representation on boards of trustees. Rather, Local 220's position regarding the proposed composition of such boards - within my view - should be considered part and parcel of that body's overall position relative to substantive fringe benefit programs. (To put the matter otherwise: Local 220's negotiators - who were, presumably, seeking fringe benefit programs with, (a) centralized administration calculated to minimize costs, (b) lower premium charges, and (c) benefits both made uniform and maximized - could, within my view, reasonably contend that consolidated funds, covering all roofers within a three-county territory, with all three concerned locals and three employer groups necessarily represented on their boards of trustees, would be required.) So viewed, Respondent Union's January 11 contractual trust fund "package" proposal really dealt with "wages. . . and conditions of employment" substantively. Those provisions, necessarily compassed therein, which - inter alia - would have presumptively required RCA-represented Orange County contractors to "accept" representation on boards of trustees shared with representatives designated by two other trade groups, should be considered subsidiary or collateral. (General Counsel contends that Respondent Union's several proposed trust funds represented the fruits of collective bargaining, and that their "administration" should be considered, therefore, merely an extension of whatever collective bargaining had led to their creation. The record suggests a counter-proposition, however, that union and employer trustees - when functioning as such - do not "bargain" within the statutory sense. Conceivably, this Board could conclude that trustees, functioning within the defined framework which their trust agreement provides, cannot properly be considered representatives of parties with opposed demands or conflicting claims, requiring reconciliation. Then, proposals regarding the representation of signatory firms or trustee boards might well be considered completely without relevance to "the selection of [employer] representatives for the purposes of collective bargaining." No such contention has been litigated or briefed, however, beyond General Counsel's en passant reference. I have not, therefore, found it necessary to consider the proposition's validity.) Since Respondent Union's trust fund "package" proposal - thus construed - contained no provisions regarding substantive matters which could not be considered mandatory subjects for collective bargaining - that body's renewed January 11th insistence upon RCA's concurrence, with respect thereto, reflected no bad faith refusal to bargain; I so find. My conclusion in this connection, however, constitutes no determination that Respondent Union's bargaining demands - with regard to trust fund matters - deserve RCA's concurrence; Complainant Association's position - particularly with respect to such matters as the desirability of professional administration for the parties' health and welfare fund, and the desirability of sealed bid procedures when purchasing insurance coverage - could be considered equally well taken. Such determinations, regarding the merits of the parties' substantive positions, clearly, must be considered beyond this trier of fact's province. Essentially, then, this decision can do no more than declare that - within my view - trust fund 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiations necessarily present a complex of closely meshed, practical questions for resolution, with respect to which the parties should be left free to bargain. d. San Marino Roof With respect to Respondent Union's subsequent course of conduct, vis-a-vis San Marino Roof, previously noted, little more need be said. Throughout the period with which this case is concerned , San Marino maintained Los Angeles County and Orange County places of business. With respect to both - so far as the record shows - Complainant Association had been designated San Marino's collective bargaining representative. During January 1968, that designation was, so I find, still viable. (The question of San Marino's representation for collective bargaining purposes - with particular reference to the firm's San Gabriel, Los Angeles County, place of business - has not really been litigated . However, the present record - considered together with this Board's recent decision involving Respondent Union's sister Local No. 36, previously noted - warrants a determination that RCA has, throughout, represented this firm "individually" while negotiating with Locals 36 and 72 for various Los Angeles and Ventura County roofing contractors. Concurrently, Complainant Association herein - so I have found - has likewise represented San Marino's Stanton branch, throughout those negotiations involving Local 220 with which this case is concerned. During January 1968, both negotiations were continuing, though RCA's bargaining sessions with Respondent Union's negotiators, for Orange County contractors, had been temporarily suspended.) When, therefore, Respondent Union's business representative -- during his January 26 or 29 conversation with San Marino's president - requested the latter to sign a separate "individual" contract which conformed with the contractual consensus reached October 18, 1967, by Local 220, inter alia, with URCA and RCAOC respectively, Respondent Union was clearly dealing directly with San Marino, bypassing the firm's designated representative. And San Marino's subsequent compliance with Respondent Union's demand, shown by the record, necessarily reflected its relinquishment of statutorily guaranteed freedom to select its representative for collective-bargaining purposes free of coercion. I so find. Further, Respondent Union's prior October 18 contractual consensus with two different trade groups - which San Marino was belatedly being requested to sign - did compass: (1) those whose mandatory responsibility bond requirements which previously within this decision, and (2) grievance machinery provisions, likewise discussed previously, pursuant to which San Marino would be required to accept representation partially by designated employer spokesmen not of San Marino's choice, functioning as that firm's representatives for the adjustment of grievances . Previously, within this decision, such contractual provisions have been found permissible but nonmandatory subjects for collective negotiation. Since the record, herein, clearly warrants a determination that San Marino's final concurrence - with respect to Respondent Union's proffered contract - was coerced by Business Representative Nuttall's threat of economic reprisal, should the firm's contractual commitment be delayed, a conclusion seems clearly warranted that San Marino was subjected to statutorily proscribed restraint or coercion, regarding its selection of representatives, both for the purposes of collective bargaining and grievance adjustment . (For reasons previously noted, I would find no statutorily proscribed restraint or coercion with respect to Respondent Union's late January course of conduct, so far as it concerned San Marino's concurrence regarding contractual provisions proposed on conventional fringe benefit trust fund matters .) Further, when Respondent Union resorted to threats of economic reprisal, calculated to force or require San Marino's concurrence with respect to these designated "nonmandatory" contract subjects , that body likewise was, realistically , guilty of refusing to bargain in good faith. I so find. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent Union, together with its designated representative , set forth in section III, above - since they occurred in connection with the business operations of various roofing contractors whom Complainant Association represented - have had a close, intimate, and substantial relation to trade, traffic, and commerce among the several States . Absent correction they would tend to lead, and in this instance have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that Respondent Union, together with its representative, engaged, and continues to engage, in certain unfair labor practices , it will be recommended that they cease and desist therefrom and take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act, as amended. Respondent Union suggests that its course of conduct since January 11, 1968 - specifically, its participation in further bargaining sessions - demonstrates its present readiness to confer in good faith , looking toward a contractual consensus . Counsel for respondent labor organization proposes that the Consolidated Complaint's dismissal would , therefore, be warranted . Guardian Glass Co., Inc., 172 NLRB No. 49. Counsel's cited case, however, provides no persuasive support for his suggestion . Well-established decisional doctrine teaches that when proper proceedings are brought - within the Board's discretion - judicial enforcement, with respect to Board orders, will be granted even though particular respondent parties may have previously complied with the orders. N.L.R.B. v. Mexia Textile Mills, 339 U.S. 563. Certainly, this Board retains a comparable discretion, administratively , when confronted with some respondent's plea that conduct nominally subject to statutory proscription has ceased during a given case's pendency. And nothing within the present record , within my view, would warrant a definitive conclusion that Respondent Union's most recently modified bargaining posture realistically reflects a resumption of good faith negotiations . The record does reveal certain modified proposals, presented for Complainant Association's consideration . Their propriety, however, has not been litigated . And further - assuming, arguendo, that their recent presentation may well reflect a modified bargaining stance by Respondent Union herein which flouts no statutory mandate - public policy would, within my view, still require the formal proscription of prior conduct herein found violative of law. UNITED SLATE, TILE & COMPOSITION CONCLUSIONS OF LAW In the light of these findings of fact, and upon the entire record in this case, I make the following conclusions of law: 1. Roofing Contractors Association of Southern California , Inc., plus those Orange County roofing contractors - previously specified herein - who may have designated it their representative for collective bargaining purposes , are employers within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2 (6) and (7) of the Act, as amended. 2. United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Association , Local No. 220, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits employees of various Orange County roofing contractors to membership. William D. Nuttall, Respondent Union's financial secretary and business representative , was, throughout the period with which this case is concerned, an agent of the designated labor organization , within the meaning of Section 8(b) and Section 2(13) of the Act , as amended. 3. All roofers employed by RCA member contractors and/or by nonmember contractors who have given RCA exclusive rights to function as their collective -bargaining representative within the Orange County, California geographical territory specifically , constitute a unit appropriate for collective bargaining purposes , within the meaning ' of Section 9(b) of the Act, as amended. 4. Throughout the period with which this case is concerned, Respondent Union has been designated by a majority of roofers , within the unit described previously, as their representative for the purposes of collective bargaining, with respect to rates of pay, wages , hours of employment , and other terms and conditions of employment . By virtue of Section 9(a) of the Act, Respondent Union therefore has been, and is now, entitled to recognition as the exclusive representative of all employees within the described unit, for collective-bargaining purposes. 5. Since August 15, 1967, and throughout the period with which this case is concerned, RCA, various Orange County member contractors , and nonmember contractors who had, previously given the designated trade association exclusive rights to function as their bargaining representative within the Orange County, California, geographical territory specifically , have recognized Respondent Union as the exclusive bargaining representative of employees within the unit previously described. 6. Between August 15 and September 28, 1967, Respondent Union refused to bargain with various Orange County roofing contractors, or with Roofing Contractors Association of Southern California, Inc. as their collective-bargaining representative , with respect to the worker's unit found appropriate herein , by: (1) Dealing directly with various Orange County roofing contractors, requiring these contractors to repudiate or disavow Complainant Association's previously conceded status as their designated collective-bargaining representative, and further requiring their concurrence , with respect to separate short-term contracts, without giving them a chance to bargain thereon; and (2) resorting to strike pressures calculated to force or require individual contractors to sign short -term contracts containing (a) responsibility bond requirements, (b) grievance procedure provisions which would compel signatory contractors to 653 rely partially on employer representatives not chosen by them for grievance adjustment purposes, and (c) trust fund provisions whereby a previously negotiated trade promotion fund would be continued . Respondent Union did, thereby, refuse to bargain , within the meaning of Section 8(b)(3) of the Act , as amended. 7. Between August 15 and September 28, 1967, Respondent Union restrained and coerced various Orange County roofing contractors with respect to their selection of representatives for the purposes of collective bargaining or the adjustment of grievances, by: (1) Dealing directly with individual roofing contractors, and requiring such contractors to repudiate or disavow Complainant Association's previously conceded status as their designated collective-bargaining representative; (2) demanding that such contractors sign separate short-term contracts with grievance procedure and trust fund provisions which would compel signatory contractors to rely partially on employer representatives not chosen by them for the purposes of grievance adjustment or promotional trust fund management . Thereby, Respondent committed unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act, as amended. 8. Between October 23 , 1967, and January 11, 1968, and continuing to date , Respondent Union has refused to bargain with Roofing Contractors Association of Southern California, Inc. as collective-bargaining representative for a multipleemployer group , compassing certain designated Orange County roofing contractors , by: (1) Refusing to negotiate meaningfully, or bargain collectively in good faith with regard to certain proposed "responsibility bond" requirements; (2) demanding, to point of impasse, that Complainant Association accept certain grievance procedure proposals which would compel RCA, together with its represented contractors, to rely partially upon employer representatives not chosen by them, with regard to grievance adjustment matters . Thereby , Respondent Union engaged , and continues to engage , in unfair labor practices, within the meaning of Section 8(b)(3) of the Act, as amended. 9. By threats of economic reprisal - directed to San Marino Roof Company specifically - which were reasonably calculated to force or require that designated contractor to sign a separate "individual" contract whereby: (1) The firm's previously designated collective bargaining representative, Complainant Association herein, was bypassed; and (2 ) the firm's concurrence was required with respect to certain "responsibility bond" and "grievance procedure" provisions, previously discussed, Respondent Union has restrained and coerced San Marino regarding its selection of representatives for the purposes of both collective bargaining and grievance adjustment. Further, Respondent Union has refused to bargain collectively in good faith. Thereby, Respondent Union has engaged and continues to engage , in unfair labor practices within the meaning of Section 8 (b)(1)(B) and Section 8(b)(3) of the Act, as amended. 10. The unfair labor practices herein found are unfair labor practices which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. RECOMMENDED ORDER Upon these findings of fact and conclusions of law and upon the entire record in the case, it is recommended that the Board, pursuant to Section 10(c) of the National Labor Relations Act, as amended , order that Respondent Union, United Slate, Tile & Composition Roofers, Damp 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD & Waterproof Workers Association, Local 220, its officers, representatives, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with Orange County roofing contractors, or with Roofing Contractors Association of Southern California, Inc. as their collective-bargaining representative within an appropriate multipleemployer unit, by: (1) Dealing directly with such roofing contractors, requiring them to repudiate or disavow Complainant Association's status as their designated collective bargaining representative, or further requiring their concurrence with respect to separate contracts (whether of short or long duration), without giving them an opportunity to bargain thereon; (2) Resorting to strike pressures , threats of economic reprisal , or other coercive conduct for the purpose of forcing or requiring individual contractors to sign separate contracts with "responsibility bond" requirements, grievance procedure provisions which would compel such signatory contractors to rely partially on employer representatives not chosen by them, with respect to grievance adjustment matters, or trust fund provisions whereby trade promotion funds would be created or maintained; or (3) Persistently demanding, to the point of impasse, that Complainant Association sign a contract for a multiple-employer unit with "responsibility bond" requirements, or grievance procedure provisions which would compel Complainant Association or represented contractors to rely partially on employer representatives not chosen by them, with respect to grievance adjustment matters. (b) Restraining or coercing Orange County roofing contractors, or Roofing Contractors of Southern California, Inc. functioning as their collective-bargaining representative, by resorting to strike pressures, threats of economic reprisal, or other coercive conduct: (1) For the purpose of forcing or requiring such roofing contractors to deal separately with respondent labor organization, to repudiate or disavow Complainant Association's status as their designated collective bargaining representative, or to sign separate contracts (whether of short or long duration) without giving them an opportunity to bargain thereon; or (2) for the purpose of forcing or requiring their contractual concurrence regarding grievance procedure provisions which would compel them to rely partially on employer representatives not chosen by them, with respect to grievance adjustment matters. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Notify Complainant Association, in writing, that it will not persist in demanding contractual "responsibility bond" requirements, or other contractual provisions dealing with • nonmandatory subjects for collective bargaining , with respect to which Complainant Association may object, and that it will reimburse those roofing contractors whom Complainant Association represents for any expenses which they may have incurred in connection therewith, from August 15, 1967, to date, plus 6 percent yearly interest thereon computed in conformity with current Board requirements; (b) Upon request, bargain collectively with Roofing Contractors Association of Southern California, Inc., as the exclusive representative of roofers employed by Orange County roofing contractors whom the designated trade association represents, and embody any understanding reached in a signed agreement; (c) Post at conspicuous places , within its principal office and usual membership meeting place, including all places where notices to members are customarily posted, copies of the notice attached marked "Appendix."' Copies of the notice, to be furnished by the Regional Director for Region 21 as the Board's agent, shall be posted immediately upon their receipt, after being duly signed by some official representative of Respondent Union. Once posted, they shall remain posted for 60 consecutive days thereafter in such conspicuous places. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material; (d) Furnish to the Regional Director for Region 21 sufficient signed copies of the attached notice for posting by Orange County roofing contractors whom Complainant Association represents, these contractors willing, within their principal offices or plants, particularly in places where notices to employees are customarily posted. These copies of said notice, which the Regional Director for Region 21 shall furnish, shall be returned forthwith to the Regional Director for such posting, after being duly signed by Respondent Union's official representative; (e) File with the Regional Director of Region 21, as the Board's agent, within 20 days of the date of this Decision, a written statement setting forth the manner and form in which it has complied with these recommendations.' APPENDIX NOTICE TO ALL OFFICERS, REPRESENTATIVES, AGENTS AND MEMBERS, AND TO ALL ROOFERS EMPLOYED BY ORANGE COUNTY ROOFING CONTRACTORS AFFILIATED WITH OR REPRESENTED BY ROOFING CONTRACTORS ASSOCIATION OF SOUTHERN CALIFORNIA, INC. Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, you are hereby notified that: After a hearing, during which all parties had a chance to present evidence, it has been determined that this local violated the National Labor Relations Act. In order to correct this situation, we have been required to post this notice, and to give the following reassurances. WE WILL NOT refuse to bargain with Roofing Contractors Association of Southern California, Inc., as the designated collective bargaining representative of various Orange County roofing contractors by: (1) Dealing directly with such roofing contractors, requiring them to repudiate or disavow the Association's status as their designated collective bargaining representative, or requiring them to sign contracts without giving their designated representative an opportunity to bargain thereon; (2) resorting to strike pressures, threats of economic reprisal, or other coercive conduct for the purpose of forcing or requiring the designated association or separate individual contractors to sign contracts with "responsibility bond" requirements, grievance procedure provisions which 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." '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 it has taken to comply herewith " UNITED SLATE, TILE & COMPOSITION would compel signatory contractors, or contractors otherwise bound , to rely, partially, on employer reprgsentatives not chosen by them , with respect to grievance adjustment matters, or trust fund provisions whereby trade promotion funds would be created or maintained. Wh WILL notify Roofing Contractors Association of Southern California , Inc., together with those Orange County roofing contractors whom that Association represents , in writing, that we will not insist upon contractual provisions with respect to responsibility bonds, or other contractual provisions dealing with nonipandatory subjects for collective bargaining, with respect to which the designated Association may object, and that we will reimburse Orange County roofing contractors represented by the designated Association for any expenses which they may have incurred since August 15, 1967, in connection with such provisions. WE WILL, upon request , bargain collectively with Roofing Contractors Association of Southern California , Inc., as the exclusive representative of roofers employed by Orange County roofing contractors whom the designated Association represents for the purposes of collective bargaining , and we will 655 embody any understanding reached in a signed agreement. Dated By UNITED SLATE, TILE & COMPOSITION ROOFERS, DAMP & WATERPROOF WORKERS ASSOCIATION, LOCAL No. 220 (Labor Organization) (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. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 688-5229.