Painters Local 1247 (Linoleu Studio, Inc.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Resilient Floor and Decorative Covering Local Union No. 1247 of Brotherhood of Painters and Allied Trades, AFL-CIO (Linoleum Studio, Inc.; James Worwick, Inc., et al.) and Terence P. Daly. Cases 31 -CB-2364 and 31-CB-2397 December 7, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On June 22, 1977, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and supporting brief, and Respon- dent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge as modified herein and to adopt his recommended Order. The Administrative Law Judge recommended dismissal of the complaint which alleges that Re- spondent violated Section 8(b)(1)(B) and (3) of the Act by striking to compel the Employers herein to sign contracts whereby each agreed to accept the terms of a collective-bargaining agreement to be negotiated by the Union and representatives of four multiemployer associations to which none of the Employers belonged. For the reasons set forth below, we agree that the complaint should be dismissed in its entirety. Facts Respondent represents employees of contractors in the building and construction industry who sell and install various types of floor coverings. Since 1973 and for many years prior thereto, Respondent has negotiated standard area contracts with four multi- employer associations (hereinafter referred to as the Associations). 2 Subsequent to negotiation of the standard contract, copies of the agreement were distributed to and executed by those employers in the area who employed members of Respondent but who The original complaint herein was based upon a charge filed on August 17, 1976, by Terence Daly, employer representative, on behalf of I I employers. Thereafter, four employers withdrew from the proceedings. The complaint names seven employers (hereinafter referred to collectively as the Employers): Linoleum Studio. Inc.; James Worwick, Inc.; Curtis Carpet Installation, Incorporated; Jess Herrara d/b/a Custom Carpets City; Jost 233 NLRB No. 134 were not members of any of the Associations. The Employers were familiar with the above pattern and practice and individually had followed such practice for many years prior to 1976. All were nonmember signatories to the 1973-76 master contract negotiated by Respondent and the Associations. In addition, in past years when Respondent instituted strike action, it developed a practice whereby many employers (both independents and association members) accepted its offer to execute "interim agreements." Under the terms of such agreements, Respondent agreed to refrain from striking the signatory employer's facility and the employer agreed to accept the terms of any master contract subsequently negotiated between Respon- dent and the Associations. On May 25, 1976, Respondent notified the Associ- ations, their members, and all nonmember signatory employers that it desired to terminate the 1973-76 master contract as of the July 31 expiration date and requested negotiations for a new agreement. Respon- dent, by letter sent to all independent employers, further requested that the latter attend a meeting scheduled for June 15 to present any contract proposals and to discuss those of Respondent. None of the Employers did so. Negotiations with the Associations commenced in June and continued through late July when Respondent presented the Associations' final offer to its members for consider- ation. The members voted to reject the Associations' offer and to strike in support of Respondent's contract demands commencing the first working day after expiration of the contract on July 31. None of the Employers participated in any negotiations nor submitted contract proposals to Respondent prior to July 30, or the strike that ensued. The strike commenced on Monday, August 2. On or about the same date, representatives of Respon- dent began to contact both independent employers and employer-members of the Associations for the purpose of offering to execute the interim agreements described above. In the meantime, late in July, II employers (including the 7 named in the complaint) formed an association, denominated the Tri-Counties Floor Association (hereinafter called Tri-Counties), and authorized Terence P. Daly, an independent labor relations consultant, to represent Tri-Counties and to request Respondent to bargain with the new multi- employer unit concerning wages, hours, and working Floor Company; Lester's Carpet, Inc.; Ethel Pauline Skipton d/b/a Skippy's Custom Floor and Drapes. 2 Floor Covering Association of Southern California, Inc.; Harbor Floor Covering Institute, Inc.; Floor Covering Contractors Association of Orange County, Inc.; and San Gabriel Valley Floor Covering Association, Inc. 980 RESILIENT FLOOR AND DECORATIVE COVERING conditions of their employees who were members of that Union. By letter dated July 28, 1976, and received by Respondent on August 3, Daly requested that the latter bargain with the newly formed multiemployer unit (without naming the employers involved). Meanwhile, on July 30, Daly telephoned Respon- dent's business manager, Watkins, informed him of the July 28 letter, and at that time requested that Respondent bargain with Tri-Counties. 3 By letter dated August 4, Respondent notified Daly, inter alia, that it stood ready to continue collective-bargaining negotiations with any employer with whom it had a bargaining relationship concern- ing a new agreement. Thereafter, Daly and Respondent agreed to an August 11 meeting. At that meeting Daly identified the employers he represented and presented their bargaining proposal. Watkins requested that Daly reduce his proposals to writing. By letter dated August 12, Daly proposed "on behalf of Tri-Counties Floor Covering Assn" that the association's mem- bers, "individually and as a member of the Associa- tion," would accept the terms and conditions of the new master contract negotiated by Respondent and the four Associations "on the following terms and conditions": a. Retain the current Contract wage rate in effect until settlement is reached with retroactive pay back to August 1, 1976 in the event a settlement is reached by October 1, 1976. b. Our agreement is to be for one year only until August 1, 1977 at which time Local 1247 agrees to negotiate an agreement for the Tri- Counties area only, including Ventura, Santa Barbara and San Louis Obispo counties. Watkins rejected Daly's proposals by telephone. Daly submitted no further proposals nor did he request further bargaining. On August 6, Employer Skipton accepted Respon- dent's offer to sign the interim agreement. Between August 16 and 30, five of the remaining six Employers similarly agreed to execute interim agreements binding them to accept the terms of a subsequently negotiated master contract. Respon- dent and the Associations reached agreement on a new master contract on or about October 11, 1976. On February 7, 1977, Lester's Carpet, Inc. (the only 3 Daly further testified to informing Watkins then that he represented the Employers individually as well as in their capacity as members of Tn- Counties. Although Watkins admitted that Daly requested the Union to bargain with Tri-Counties as a newly formed multiemployer unit, he could not recall that Daly requested bargaining with any employer on an individual basis. 4 Contrary to the Administrative Law Judge, we find that none of the Employers was a member of any of the Associations with whom one of the seven Employers who did not sign the interim agreement) executed the new master contract as a nonmember signatory. Discussion The question presented for our consideration herein is whether Respondent engaged in conduct proscribed by Section 8(b)(1)(B) and (3) of the Act by (I) directing a strike against the Employers herein notwithstanding their request to bargain on an association or individual basis and/or (2) by its continuing offer to execute interim contracts where- by the Employers agreed to abide by the terms of the master contract negotiated by Respondent and four multiemployer Associations to which none of the Employers belonged. Although none of the Employers herein was a member of any of the four multiemployer Associa- tions,4 each was a party of the 1973-76 master agreement negotiated by Respondent and those Associations. Accordingly, when Respondent reached the decision to terminate the master contract as of the July 3 expiration date, it so notified the Employers, as signatories to the contract, and offered to bargain with each of them, as it did with all other signatory employers. None of the Employers then replied to this offer. In addition, none of them attended the scheduled June 15 bargaining sessions or then submitted any contract proposals as request- ed by Respondent. Indeed, throughout the course of events leading to Respondent's decision to strike, not one of the Employers in any way indicated that it would not accept the contract to be negotiated by Respondent and the Associations. In light of these facts, therefore, Respondent could reasonably have interpreted the Employers' lack of response as meaning that the latter parties intended to adhere to the practice of letting the Associations handle negotiations and to accept the contract that resulted therefrom. Following the offer to bargain, Respondent entered into negotiations with the Associations and, having failed to reach agreement, voted, in late July, to strike as of August 2 in support of its contract proposals. Thus, the sequence of events establishes that Respondent offered to bargain with all employ- ers, independents or otherwise, negotiated to impasse with the Associations, and reached a decision to strike in support of its contract proposals prior to the Respondent had in prior years negotiated standard area contracts. Each had signed prior contracts negotiated by those parties as "non-member signatories" and had at no time participated in the group bargaining process. Under these circumstances, we find that none of the Employers evinced an unequivocal intent to be bound in collective bargaining by group action. York Transfer & Storage Co., 107 NLRB 139 (1953). Accordingly, we conclude that each of the Employers herein could properly request to bargain on an individual basis. 981 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employers' request to bargain. Under these circum- stances, we find that the Employers' request to bargain, made after the decision to strike was reached and on the last working day before the strike was scheduled to commence, did not abrogate Respondent's right to institute a lawful strike in support of its contract demands against the Employ- ers because, as of the date of the strike, Respondent had done everything in its power to meet its obligation to bargain with them.5 Nor do we find that Respondent's offer to execute interim contracts with the Employers was coercive within the meaning of Section 8(b)(1)(B) or (3) of the Act. Daly's first request to bargain with Respondent occurred on July 30. The parties agree that, on this occasion, Daly requested Respondent to bargain with the Employers as members of a newly formed multiemployer unit. It is well settled that multiem- ployer bargaining units are consensual in nature and require an unequivocal manifestation of intent by all parties to be bound by collective bargaining on a group basis rather than by individual action.6 Accordingly, we find that Respondent was under no obligation to bargain on a multiemployer basis and lawfully refused to bargain with the Employers as members of the Tri-Counties Floor Association. However, there is conflicting testimony as to whether Daly, in addition, then requested that Respondent bargain with each of the Employers individually. We find it unnecessary to resolve that conflict since we conclude that Respondent, by its subsequent conduct, met its statutory obligation to bargain. Thus, assuming arguendo, that Daly in- formed Respondent that he represented each of the Employers individually, and as a member of Tri- Counties, Respondent agreed to a meeting with Daly on August 11 to discuss the Employers' bargaining proposals. On that occasion the sole proposal presented was an agreement whereby the Employers (whether as a multiemployer group or singly) would abide by the new master contract to be negotiated by Respondent and the Associations for 1 year and, at s There is no contention that Respondent failed to submit the appropriate 30-day notices to Federal and state mediation services, and the case was not litigated on that basis. " York Transfer & Storage Co., supra. T Retail Clerks Union, Local 770, Retail Clerks International Association, AFL-CIO (Fine's Food Co.), 228 NLRB 1166 (1977), relied on by the General Counsel in support of the violations alleged herein is distinguish- able. The employers therein were parties to a collective-bargaining agreement negotiated by a respondent union and a multiemployer association due to expire on July 27, 1975. Following the employers' request to bargain individually with the respondent, submitted in Apnl 1975, respondent and the employers entered into negotiations on July 24, 1975. A second negotiating session was held on August 12 and the parties agreed to a further meeting on August 20. Respondent's members, at a meeting held on August 4, voted to authorize strike action against the employers and scheduled such strike to commence on August 14. On the same date, the employers signed interim contracts whereby they agreed to abide by the terms of a contract to be negotiated by the respondent and a multiemployer association to which the employers did not belong. the expiration thereof, Respondent would agree to recognize and bargain with Tri-Counties as a multiemployer unit. Respondent refused the Employ- er's proposal and Daly at no time presented any further proposals for Respondent's consideration. Under these circumstances, we find nothing unlawful in Respondent's continuing offer to execute interim contracts with each of the Employers. As noted, supra, Respondent lawfully rejected the request to bargain with the Employers as members of a multiemployer unit. In the absence of any further bargaining proposals as to wages, hours, or other terms and conditions of employment, Respondent's offer to execute interim contracts represented neither a refusal to recognize or bargain with the Employers as individual employers, nor an attempt to coerce those employers in the selection of their bargaining representative.7 In this connection we note, as did the Administrative Law Judge, that the Employers themselves proposed continuation of the adoption of the terms agreed to between Respondent and the four Associations, albeit only for the following year, and the Employers wanted a limitation on the retroactivity of any agreement reached. Thus, both the Employers and Respondent tied their final agreement in large measure to the results of Respon- dent's bargaining with the Associations. In these circumstances, Respondent's offer, in accordance with past practice, merely presented an alternative proposal whereby the Employers could avoid further strike action.8 In sum, we find that Respondent's August 2 strike action against the Employers herein was lawfully instituted following timely offers to bargain with all Employers and negotiation to impasse with the Associations. We further find that the Employers' sole bargaining proposal was lawfully rejected by Respondent and, in the absence of any further request to bargain, Respondent's continuing offer to execute interim contracts constituted neither a refusal to bargain within the meaning of Section 8(b)(3) nor an attempt to unlawfully coerce the The Board concluded that respondent, by the above conduct, violated Sec. 8(b)(IXB) and (3) of the Act. However, unlike the instant case, the sequence of events in the cited case clearly establishes unlawful motivation on the part of the respondent. Thus, the respondent in Fine's Food Co., by instituting a strike prior to reaching impasse on negotiations and by thereafter presenting the employers with interim contracts at a time when they had agreed to submit and consider further bargaining proposals, evinced an intent to coerce them in the selection of their bargaining representative in violation of Sec. 8(b)(IXB) and to refuse to bargain with the employers in violation of Sec. 8(bX3). We therefore find that the cited case is distinguishable on its facts and does not affect our fminding that Respondent herein acted in a lawful manner. 8 We note the Employers could have advanced further bargaining proposals in an effort to reach agreement with Respondent and bring an end to the strike. In the alternative, agreement to accept Respondent's contract demands as currently promulgated would have resulted in immediate cessation of strike activity. 982 RESILIENT FLOOR AND DECORATIVE COVERING Employers in the selection of their bargaining representative in violation of Section 8(b)(l)(B). Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts the recommended Order of the Administrative Law Judge and orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge: On March 8, 1977, I conducted a hearing at Los Angeles, California, to try issues raised by a consolidated complaint issued on November 26, 1976,' against Resilient Floor and Decorative Covering Local Union No. 1247 of Brother- hood of Painters and Allied Trades, AFL-CIO. 2 The complaint was based upon a charge and amended charge filed on August 17 and September 29, respectively, by Daly on behalf of Linoleum Studio, Inc. and James Worwick, Inc. (hereafter called Linoleum and Worwick) in Case 31- CB-2364, and a charge filed on September 29 by Daly on behalf of Curtis Carpet Installation, Inc.; Jess Herrara d/b/a Custom Carpets City; Ted Schiefen d/b/a Tri- County Installation; Chester Jost d/b/a Jost Floor Com- pany; Abe Lamanno d/b/a Lamanno and Sons; Lester's Carpet, Inc.; J. O. Miller Construction Co., Inc.; Bill Paulin d/b/a Paulin's Floor Covering; and Ethel Pauline Skipton d/b/a Skippy's Custom Floors (hereafter called Curtis, Custom, Tri-County, Jost, Lamanno, Lester's, Miller, Paulin's, and Skippy's, respectively) and an amend- ed charge filed on November 8 by Daly on behalf of the employers just named other than Tri-County, Lemanno, Miller, and Paulin's in Case 31-CB--2397. The complaint alleged the Union violated Section 8(b1))(B) and (3) of the National Labor Relations Act, as amended (hereafter called the Act), by striking to cause the 7 remaining Charging Parties3 and 186 other employers similarly situated, as well as 76 employer-members of 4 Associations, to sign agreements wherein they agreed to accept whatever terms the Union and representatives of the 4 Associations reached in negotiations then in progress between the latter parties. 4 The Union denied it violated the Act. The issue is whether the Union violated the Act by striking to cause the seven Independents named in the complaint to sign agreements wherein they agreed to I Read 1976 after all further date references omitting the year. 2 Hereafter called the Union. 3 Tri-County, Lamanno, Miller, and Paulin's, who were parties in the original charge in Case 31-CB-2397, withdrew with the filing of the amended charge in that case. 4 The Union and Floor Covering Association of Southern California, Inc., Harbor Floor Covering Institute, Inc., Floor Covering Contractors Association of Orange County. Inc., and San Gabriel Valley Floor Covering accept the terms of the new master agreement subsequently negotiated by representatives of the Union and the four Associations. The parties appeared by counsel at the hearing and were afforded full opportunity to produce evidence, examine and cross-examine witnesses, argue, and file briefs. Briefs have been received from the General Counsel and the Union. Based upon my review of the entire record, observation of the witnesses, perusal of the briefs and research, I enter the following: FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the answer admitted, and I find at times pertinent the seven Independents named in the complaint were employers engaged in commerce in a business affecting commerce and the Union was a labor organization within the meaning of Section 2(2), (5), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Union represents employees of contractors in the building and construction industry who sell and install vinyl, linoleum, tile, and other types of floor coverings. Its jurisdiction extends over much of southern California. The bargaining pattern which has evolved over the years is negotiation of a standard area or master agreement between representatives of the four employer-associations named heretofore and the Union, followed by execution of copies of that master agreement by the Union and those employers in the area who employed members of the Union and were not members of any of the Associations. In some instances (when negotiations were prolonged or a strike occurred) many employers (both Independents and association members) accepted union offers to execute agreements (hereafter termed interim agreements) wherein the employer in question and the Union agreed to accept the terms of the master agreement eventually negotiated between representatives of the Union and the Associations, thereby avoiding any interruption of work. All seven remaining Charging Parties were familiar with the pattern, all but one of them (Custom) followed and acquiesced in the pattern over many years prior to 1976, and all seven were nonmember signatories to the union- associations 1973-76 master agreement. In accordance with usual practice, on May 25 the Union sent identical letters to the Associations, their members, and the Independents, notifying them the Union was terminating the 1973-76 master contract on its July 31 Association, Inc., were parties to a master agreement for a term extending from August I, 1973, through July 31, 1976. The 6 remaining Charging Parties and 186 other employers who were not members of any of the 4 Associations were "non-member signatory employers" to the same agree- ment (such nonmember signatories shall hereafter be called the Indepen- dents). The Union struck both the Independents and the Association members on the Monday following the expiration of the 1973-76 agreements. 983 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expiration date and requesting negotiations for a new agreement. In the letter sent to the Independents the Union requested they attend a June 15 meeting to discuss their and the Union's proposals for a new agreement. The seven Charging Parties neither attended the June 15 meeting (which was not unusual; several testified they never attended such meetings but simply awaited the outcome of the associations-union negotiations) nor made any contract proposals to the Union. The Union commenced negotia- tions with the Associations in the same month and continued through late July, when it presented the Associations' final offer to its members for their consider- ation. The members voted to reject the offer and to strike in support of their demands commencing the first working day after the expiration of the contract (July 31). Following previous practice, the Union immediately prepared interim agreements for the purpose of offering same to all the employers who were parties to the expiring master agreement in the event they desired to avoid any interrup- tion of work and dispatched representatives to proffer those agreements to all the employers who were signatory to the expiring agreement. The Union also began to notify all its members of the date for commencement of strike action. The strike commenced on Monday, August 2. About the time negotiations between the Union and the Associations recessed for consideration by the Union's members of the final offer of the Associations (in late July), the original 11 Charging Parties (Curtis, Custom, Jost, Lamanno, Lester's, Linoleum, Miller, Paulin's, Skippy's, Tri-County, and Worwick) formed an association, named it the Tri-Counties Floor Association, 5 and authorized Daly to request the Union to recognize and bargain with the new association concerning the wages, hours, and working conditions of those members of the Union employed by the 11. On Tuesday, August 3, the day after the strike com- menced, the Union received a letter from Daly informing it of the formation of a "multi-employer bargaining unit here in Santa Barbara," accusing the Union of a failure to bargain with the employers within that unit over the wages, etc., of their employees, 6 and requesting that the Union meet with Daly to negotiate an agreement covering the wages, etc., of the employees represented by the Union within such unit. Prior to the Union's August 3 receipt of Daly's letter, its representatives began to contact the 193 independents and 76 members of the 4 Associations who were parties to the expired July 31, 1976, agreement and to offer to execute interim agreements with them. On August 2, the Union's offer was communicated to Skippy's owner, Mrs. Ethel P. Skipton. At the time Skippy's employed two members of the Union, both of whom joined in the strike. On August 5, one of Skippy's customers advised Mrs. Skipton unless she started work the following day on a large job Skippy's had contracted to perform, the customer was going to cancel the contract. Mrs. Skipton informed the customer Skippy's would start the job the 5 The II were located in Ventura, Santa Barbara, and San Luis Obispo Counties. 6 Without naming the employers in the alleged new bargaining unit or enclosing authorizations to represent same. following day and called the Union to advise it Skippy's would accept the proffered interim agreement and to request the Union to instruct its members employed by Skippy's to resume work the following day. The Union complied with Mrs. Skipton's request, the men reported for work the following day (August 6), and Mrs. Skipton signed the proffered interim agreement the same day. On the same date (August 6) Daly received the Union's response to his communication. The Union informed Daly it asked all the Independents to attend a negotiating session on June 15, that its first knowledge of the existence of the new association came from the letter it received from Daly on August 3, that the only previous request or proposal it received from any of the Independents concerning negotiations consisted of an inquiry about the status of the negotiations between representatives of the Union and the four Associations, that the Union struck all the parties to the previous agreement following the July 31 expiration of that agreement, that a number of employers covered by the previous agreement had elected to sign interim agreements with the Union to avoid any interrup- tion of their business, and that the Union was ready to negotiate with any employer with whom it had collective- bargaining relations concerning the terms of a new agreement. Daly contacted the Union and secured agreement from Herbert Watkins, the Union's business manager, to an August I I meeting. At the outset of the meeting Watkins asked Daly to identify the employers he represented. Daly informed Watkins he represented the original II Charging Parties,7 that the new association consisted of those I I employers, and orally presented a number of contract proposals. Watkins requested Daly reduce his proposals to writing and Daly agreed to do so. On August 13, the Union received Daly's written contract proposals. Daly, "on behalf of the Tri-Counties Floor Covering Association," proposed that the associa- tion's members "individually and as a member of the Association" would accept the terms of the new master agreement negotiated by representatives of the Union and the four Associations provided: (I) the current contract rates remained in effect until agreement on a new master agreement was reached, (2) retroactive pay would be paid back to August I only if such agreement was reached prior to October 1, (3) the new master agreement expired not later than August 1, 1977, and (4) the Union agreed to recognize and bargain with the new association as the representative of the 1 I original Charging Parties following the August 1, 1977, expiration of the new master agree- ment. The same day Watkins received Daly's proposals he rejected them (by telephone). Throughout the contacts between Daly and Watkins, the latter made it clear the Union did not recognize the new association as an appropriate multiemployer bargaining unit and considered its request for bargaining untimely. On August 16, Curtis signed the interim agreement proposed by the Union; on August 19, Worwick signed; on August 23, Jost signed; on August 24, Linoleum signed; I Though he failed to produce any written authorizations from any of the I I at that time or any other time. 984 RESILIENT FLOOR AND DECORATIVE COVERING and on August 30, Custom signed. By the latter date 75 to 80 percent of the struck employers, including both Independents and members of the four Associations, had signed the proposed interim agreements. As each employer signed, its employees returned to work. In each case the reasons advanced by the various Charging Parties for signing were similar to those voiced by Mrs. Skipton - to avoid further loss of business. The interim agreements contained provisions wherein the signatories thereto agreed to comply with the provi- sions of the expired 1973-1976 union-associations master agreement except: 1. Wage rates were substantially increased effective August I in varying amounts, depending on job classification; 2. Payments to the Apprentice & Training fund, Health & Welfare fund, Pension fund and Vacation- Holiday fund were substantially increased, effective August 1; 3. The interim agreements expired on July 31, 1977 or the date the Union and the 4 associations reached agreement on a new master agreement; in the latter case, the interim agreements automatically were termi- nated and the terms of the new master agreement substituted; 4. The grievance, arbitration and no strike-no lockout provisions were deleted; 5. The employer signatories to the interim agree- ments, at their option, could meet and select members to serve on a joint contract administration committee with an equal number of members selected by the Union. On October 7 representatives of the Union and the four Associations agreed on terms for a new master agreement. The 1976-77 master agreement, for the most part, incorporated the same changes from the 1973-76 master agreement set forth in the 1976-77 interim agreements (there were a few differences in the wage schedules; increases in the mileage and subsistence allowances were added; and contributions or payments to the various funds were lower). On February 7, 1977, Lester's executed the new master agreement as a "non-member signatory." B. Analysis and Conclusions The General Counsel relies upon Watkins' conduct vis-a- vis Daly as the basis for his allegation the Union failed or refused to bargain in good faith with Curtis, Custom, Jost, Lester's, Linoleum, Skippy's, and Worwick, thereby violat- ing Section 8(b)(3) of the Act. B N.L.R.B. v. George M. Hart, d/b/a San Diego Cabinets, et at., 453 F.2d 215(C.A. 9, 1971), enfg. 183 NLRB 1014, cert. denied 409 U.S. 844 (1972); United Fr)yer and Stillman, Inc., 139 NLRB 704 (1962); Moveable Partitions, Inc., 175 NLRB 915 (1969); Chicago Metropolitan Home Builders Associa- tion, 119 NLRB 1184 (1957); Cab Operating Corp., et at., 153 NLRB 878 (1965); Electric Theatre, etc., 156 NLRB 1351 (1966). 9 N.L.R.B. v. John J. Corbett Press, Inc.. 401 F.2d 673 (C.A. 2, 1968), enfg. 163 NLRB 154 (1967); N.L.R.B. v. Tulsa Sheet Metal Workers, Inc., 367 F.2d 55 (C.A. 10, 1966). enfg. 149 NLRB 1487 (1964): N.LR.B v. Jeffries Banknote Company. 281 F.2d 893 (C.A. 9. 1960), enfg. 124 NLRB 920(1959). It is doubtful, however, the Union had any duty to bargain with Daly. Daly demanded the Union recognize and bargain with him as the representative of a newly created multiemployer bargaining unit consisting of the seven Charging Parties and the four other employers who withdrew from this proceeding. His demand came long after the Union served its notices terminating the 1973-76 contracts and requesting bargaining for new agreements to the 4 Associations, their members and the 193 Indepen- dents, including the 11 original Charging Parties, after bargaining commenced for a new agreement, after the Union prepared and distributed to the Association mem- bers and Independents proposals for new contract terms, and after the Union struck to secure same. In the absence of any history of bargaining between the Union and the new association concerning the wages, etc., of the employees of the employers constituting the new multiemployer unit, or agreement between the Union and that association to bargain on the new unit basis, the Union had no duty to recognize or bargain with Daly as the representative of the newly constituted unit,8 particu- larly where the request for bargaining was so untimely (after service of notice, bargaining, and strike) and ambiguous (in failing to specify the composition of the proposed new unit and to include authorization from its purported members for such representation). 9 While the General Counsel contends Daly sought to bargain with Watkins on behalf of the I I original Charging Parties as individual units, the thrust of his communica- tions to the Union express a contrary intent and, in any event, in the one exchange between Daly and Watkins prior to acceptance by Curtis, Worwick, Jost, Linoleum and Custom of the Union's contract proposal, m ' the evidence does not support a finding Watkins dealt in bad faith with Daly. Under these circumstances, I find and conclude the Union did not fail or refuse to bargain in good faith with Daly as the duly designated representative of an appropri- ate bargaining unit and therefore shall recommend dismis- sal of those portions of the complaint so alleging. The General Counsel also contends because the duration provision of the proposed interim agreements provided those agreements would expire on July 31, 1977, unless prior to that date representatives of the four Associations and the Union reached agreement on terms for a new master contract (in which event the interim agreements would terminate automatically and be succeeded by the terms of such new master contract), the Union's strike constituted unlawful coercion of the Charging Parties in the selection of their bargaining representative, a nonman- datory subject of collective bargaining. Had there been no prior history of collective bargaining between the parties and an unequivocal and timely i' Skippy's accepted the union contract proposal on August 5, only 2 days after the Union received Daly's initial demand for recognition and bargaining; Lester's never sought to bargain with the Union, either directly or through Daly, after receipt of the Union's contract proposals and notice of the Union's rejection of Daly's contract proposals, finally agreeing on a new contract on February 7. 1977; and the record does not disclose when or if the other four employer-members of the new association (and proposed multiemployer bargaining unit) settled their contract dispute with the Union nor when the other 186 Independents did so. 985 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expression by the Charging Parties of a desire to bargain individually, the General Counsel's theory of the case might have merit. However, for many years the Charging Parties (and 186 other Independents) participated in bargaining on a multiemployer basis wherein representa- tives of the 4 Associations and the Union worked out uniform terms governing the wages, hours, and working conditions of union-represented employees of employers in the floor installation industry in southern California and executed agreements authorizing representatives of the 4 Associations to represent them for collective-bargaining purposes during the terms of those agreements, raised no objection in 1976 to continuation of that practice before the strike commenced, and only then, after the strike commenced, made a belated and ambiguous effort to bargain through a newly formed, multiemployer unit. In view of the Charging Parties' participation in prior bargaining on the multiemployer basis in which it was conducted prior to 1976, their prior authorization of representatives of the four Associations to represent their interests under the successive master agreements negotiat- ed prior to 1976, and the untimely and equivocal nature of their abortive effort to escape from a continuation of the I It is further noted Daly did not propose abandonment of the practice of assuming the terms of the 1976-77 master agreement, including representation by representatives of the four Associations during its term; he sought to condition continuation of the practice on the Union's recognition of the newly formed multiemployer unit thereafter. 12 In the event no exceptions are filed as provided by Sec. 102.46 of the 1976 negotiations, I find the General Counsel's theory without merit. " I therefore shall recommend the dismissal of the complaint in its entirety. CONCLUSIONS OF LAW 1. At times pertinent Curtis, Custom, Jost, Lester's, Linoleum, Skippy's, and Worwick were employers engaged in commerce in a business affecting commerce and the Union was a labor organization within the meaning of Section 2(2), (5), (6), and (7) of the Act. 2. The Union did not violate Section 8(b)(1)(B) and (3) of the Act by its actions vis-a-vis Daly and the Charging Parties in the 1976 negotiations. On the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the the following recommended: ORDER 12 The complaint is dismissed in its entirety. Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 986