Sheet Metal Workers, Local 25

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers International Association, AFL-CIO, Local Union #25 and North Texas Contractors Association and Dallas Sheet Metal Contractors Association. Case 16-CB-888 September 22, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On February 28, 1975, Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, General Counsel filed cross- exceptions and a supporting brief, and the Charging Parties filed answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith. We agree with the Administrative Law Judge's conclusion that Respondent did not coerce the four individual contractors to select their own officials rather than the multiemployer committee as their bargaining representatives. We also agree with the Administrative Law Judge's conclusion that Respon- dent did not condition further negotiations with the multiemployer committee upon acceptance of the terms reached with the four individual contractors. We disagree, however, with the Administrative Law Judge's conclusion that Respondent acted in deroga- tion of its statutory bargaining obligations when it negotiated agreements with the four individual con- tractors after already participating in negotiations with the multiemployer committee, and thereby vio- lated Section 8(b)(3) of the Act. The Administrative Law Judge based his conclu- sion that Respondent violated Section 8(b)(3) upon a finding that the two associations and the four indi- vidual contractors intended to, and did, form a mul- tiemployer bargaining unit for purposes of the wage renegotiations and that Respondent acquiesced in the formation of such a unit. We find, however, that the record does not support the Administrative Law Judge's finding. Even assuming arguendo that the two associations and the four individual contractors did have an in- tention of forming a multiemployer bargaining unit, the evidence does not establish that such an intention was ever unequivocally manifested to Respondent or that Respondent acquiesced in that intention.' Hence, we find that the element of mutual consent necessary to establish multiemployer bargaining is lacking in this case. For example, the renegotiations took place under the provisions, and during the terms, of bargaining agreements which had been ne- gotiated by the two associations and the four individ- ual contractors separately, which continued to be ad- ministered with the two associations and the four individual contractors separately, and which were still binding on the two associations and the four in- dividual contractors separately' The renegotiations also sought to achieve a wage settlement which pre- sumably would be incorporated into the agreements of the two associations and the four individual con- tractors separately, and concerned economic matters which at the time affected the four individual con- tractors almost exclusively since they were then the only ones actually doing business in the 13 counties involved. Thus, the circumstances leading up to the renegotiations could reasonably have raised a pre- sumption on Respondent's part that the renegotia- tions themselves were being conducted by the two associations and the four individual contractors sep- arately, albeit to suit their convenience they had se- lected a committee to represent their interests while retaining the right to bargain individually on their own behalf. The conduct of the contractors' representatives during the renegotiations did little or nothing to re- but such a presumption of separate bargaining. Re- spondent was merely informed that "the contractor committee members represented" the two associa- tions and the four individual contractors-a state- ment which Respondent could reasonably have inter- preted as meaning that each committee member as an individual was representing one of the associa- tions or one of the individual contractors as a party separately, rather than as meaning that the commit- tee as a whole was representing both associations and all four individual contractors as a group together.' i In this regard, we do not adopt the Administrative Law Judge' s findings that at the outset of negotiations the Union was informed that the "employ- er bargaining unit was comprised of the two associations and the four ... contractors," and that the Union "was made aware and understood that the bargaining committee as constituted represented this entire group." For rea- sons explained above, the evidence simply does not support such findings. 2 Cf John E Holkko d/b/a Lifetime Shingle Company, 203 NLRB 688 (1973), where the Board held that an employer did not violate Sec. 8(a)(5) by refusing to sign a contract negotiated by a multiemployer association to which it belonged because it was still bound by a contract which it had negotiated individually before joining the association. The minutes of the first renegotiating session merely include the follow- ing language . "Present : contractors' representatives: Ed Ragsdale, Morris Carter, Oliver Martin, Jack Mosby and Jack Langthorn . . . . It was ex- plained that the contractor committee members represented the North Tex- 220 NLRB No. 96 SHEET METAL WORKERS, LOCAL 25 501 While two of the four individual contractors did exe- cute written assignments of their bargaining rights to the committee, one made such an assignment only after its representative on the committee had left its employ and the Union had struck, and another never made a formal assignment at all; and the record con- tains no evidence that Respondent even knew or had reason to know of the assignments that were execut- ed before or during the renegotiations. The conduct of the two associations and the four individual contractors after the renegotiations also did little or nothing to rebut a presumption of sepa- rate bargaining. Although Respondent had indicated neither by its words nor by its conduct any reluc- tance to continue the renegotiations with the com- mittee itself,4 the four individual contractors ap- proached Respondent on their own initiative and expressed their clear desire and preference for sepa- rate bargaining . Notwithstanding the fact that one of the association's representatives knew of the pro- posed separate bargaining and indeed registered his objection thereto with the four individual contrac- tors,5 neither he nor any other representative of the two associations ever made the slightest effort to at- tend the separate bargaining or to register their ob- jections thereto with Respondent itself. Thus, Re- spondent had every reason to believe that the four individual contractors had been amenable to sepa- rate bargaining all along, and no reason to believe that the two associations had been opposed to sepa- rate bargaining all along. On the basis of all the foregoing considerations, we find, especially in light of the history of separate units and separate bargaining, that the mere fact that the employers formed a committee to meet and nego- as Contractors Association , Dallas Sheet Metal Contractors Association, and the four contractors in East Texas ." This language does not establish that the two associations and the four individual contractors communicated any intention of forming a multiemployer bargaining unit to Respondent Respondent's representative, Crane, testified that he was "unable to de- termine exactly who represented who [sic] in the group" and that he did not think he was bargaining with the two associations and the four individual contractors "altogether." 4 As the Administrative Law Judge himself noted in dismissing the 8(b)(l)(B) allegation here , Respondent "was obviously prepared to sign a contract with the entire group had its demands been met," and "demands [which] were not aimed at any particular segment of the group ," and picket- ed Drew alone merely because Drew employees alone were not joining in the strike. 5 Even in registering his objection with the four individual contractors, the association representative merely asserted that the four individual con- tractors were acting outside of the assignment of their bargaining rights to the committee, and did not state that the associations and the four individu- al contractors had formed a multiemployer bargaining unit, or that separate bargaining would be in derogation of any of the parties' statutory bargain- ing duties tiate with Respondent only concerning the subject of the contract's limited wage reopener basically affect- ing the four contractors does not, by itself, establish a multiemployer bargaining unit. Therefore, we further find that Respondent did not act in derogation of its statutory bargaining obligations by separately nego- tiating and executing an addendum to its agreements with the four individual contractors. 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 Re- lations Board orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: Upon a charge filed jointly on July 16, 1974,' by North Texas Con- tractors Association and Dallas Sheet Metal Contractors Association against Sheet Metal Workers International As- sociation, AFL-CIO, Local Union #25, herein referred to as the Union or the Respondent, the General Counsel, by the Regional Director for Region 16, issued a complaint against the Respondent on September 20, alleging that the Respondent had engaged in unfair labor practices within the meaning of Section 8(b)(1)(B) and 8(b)(3) of the Na- tional Labor Relations Act, as amended, herein called the Act. Respondent filed an answer denying the commission of any unfair labor practices. Hearing was held before me on November 4 and 5 in Dallas, Texas. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by all parties, I make the following: FINDINGS OF FACT 1. THE BOARD'S JURISDICTION Both the North Texas Contractors Association and Dal- las Sheet Metal Contractors Association operate as mul- tiemployer bargaining groups, engaging in craft negotia- tions on a regional basis. The north Texas association represents approximately 200 contractors located through- 1 Unless otherwise noted, all dates hereinafter refer to 1974. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out north Texas who are engaged in commercial construc- tion. The Dallas association represents approximately 15 contractors located in Dallas , Texas, who are engaged in commercial construction. During the 12-month period pre- ceding the issuance of the complaint herein, the aggregate members of both associations purchased and had delivered to their locations in the State of Texas from points outside the State of Texas goods and materials valued in excess of $50,000. Also involved in this proceeding are four contractors, not members of either association-Martin Engineering Company, Holliday Sheet Metal Company, Longview Me- chanical Contractors, Inc., and Drew Woods, Inc. Each of them is located in east Texas and are referred to herein collectively as the east Texas contractors . Each of the four named companies has an indirect inflow of purchases of materials from outside the State of Texas valued in excess of $50,000. The Board's jurisdiction is not disputed . Based on the foregoing, I find that each of the two associations and each of the four contractors named above are employers en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Sheet Metal Workers International Association, AFL- CIO, Local Union # 25, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues As will be described more fully, the two associations, acting together, negotiated a contract in 1973 with the Union effective May 1, 1973 , with a termination date of April 30, 1975, and a 1974 wage reopener provision limited to 13 east Texas counties. The four east Texas contractors, not members of either association, subsequently signed similar contracts. Pursuant to the wage reopener, the Union and the four east Texas contractors, under circum- stances more fully related below, executed an addendum to the 1973 contract on June 2, 1974 . At the time of the hear- ing, the two associations had not executed any addendum pursuant to the wage reopener. The General Counsel contends that prior to the 1974 wage reopener, the four east Texas contractors banded to- gether with the two associations as a multiemployer bar- gaining group. The General Counsel alleged the Respon- dent violated Section 8 (b)(3) by negotiating , entering into, and putting into effect separate agreements with the four east Texas contractors , at a time when the Respondent was legally bound to bargain with the designated bargaining agent. The General Counsel further alleged the Respon- dent violated Section 8(b)(1)(B) and (3) by causing the four east Texas contractors to select a group other than their designated bargaining representative for the purposes of collective bargaining. At the hearing, the General Counsel was permitted to amend the complaint to add an addition- Section 8(b)(3) when it conditioned further bargaining with the multiemployer group upon agreement to the terms reached with the four east Texas contractors on June 2. B. The 1973 Contract The contract which gave rise to this proceeding was first negotiated by the Respondent with the two associations- North Texas Contractors Association and Dallas Sheet Metal Contractors Association-after a 2-week strike. The contract was effective from May 1 , 1973, until April 30, 1975. The bargaining unit covered work performed in 35 Texas counties, including 13 in east Texas . The contract provided for an immediate 42-cent increase and another 42 cents in 1974, except in the 13 east Texas counties where the basic wage rate was to remain unchanged . The contract provided for a limited wage reopener prior to April 30, 1974, "for the purpose of negotiating a wage rate" for the 13 east Texas counties . The four east Texas contractors involved herein were not part of the multiemployer group represented by the two associations in the 1973 negotia- tions. The four contractors, together with a fifth east Texas contractor, requested the Union to negotiate separately with their association-East Texas Sheet Metal Contrac- tors Association. After the Union had agreed with the two associations on contract terms, the east Texas contractors each signed identical contracts as that agreed upon by the Union and the two associations . This resulted from their independent bargaining with the Union . The record does not disclose the history or mechanics of bargaining prior to the 1973 negotiations . It does appear however that even prior to 1973 the Respondent had represented the sheet metal work employees of the employer-members of the two associations as well as of the four east Texas employers involved herein. C. The 1974 Negotiations The Union, by letter dated January 25 to Harold J. Moore, general manager of North Texas Contractors Asso- ciation, gave notice "to all interested parties" that the Union desired to open negotiations in the 13 counties pur- suant to the wage reopener provision in the 1973 contract? Lloyd Crane, the Union' s business manager, testified he also wrote letters to the four east Texas contractors on the same day in which he stated "this letter is for the purpose of notifying our East Texas subcontractors that Sheet Met- al Workers Local Union No. 25 is opening contract negoti- ations concerning wage rates." Each of the contractors tes- tified it did not recall receiving such letter . I find it unnecessary to decide whether they received the letters since they became aware of the Union's intent to act upon the wage reopener. On or about February 3, Jack Langthorn, manager of the Dallas association, discussed the upcoming negotia- tions with Jack Mosby, who was at that time the vice presi- dent of Drew Woods, Inc., one of the four east Texas con- tractors. Langthorn offered his assistance to the al allegation: that on about July 1 the Respondent violated 2 Addendum 4 to art VIII, sec. 2. SHEET METAL WORKERS, LOCAL 25 503 contractors. On February 12, Langthorn met with repre- sentatives of the four contractors 3 where upcoming negoti- ations and contemplated proposals were again discussed. Another meeting was held on February 19. This meeting was also attended by Bill Malone , president of the Dallas association, and Ed Ragsdale who had signed the 1973 contract on behalf of the North Texas association. The participants agreed to the formation of a bargaining com- mittee to represent the four east Texas contractors and the two associations in bargaining with the Union on the wage reopener. Named to the committee were Ragsdale , Morris Carter,4 Martin, Mosby, and Langthorn. By a written in- strument dated February 25, Longview authorized the named committee members "as my executive bargaining agents" with the Union and agreed to be bound by a con- tract agreed upon with the Union. By a written instrument dated March 5, Holliday authorized the Dallas association to negotiate a contract on its behalf and to be bound by a contract agreed upon with the Union. Ed McKnight, vice president of Drew, testified that Mosby, as a member of the bargaining committee and at that time a vice president of the company, initially represented Drew on the commit- tee and no authorization was therefore tendered. During the course of negotiations, Mosby left Drew and since it no longer had a company official on the committee it then assigned its bargaining rights to the named committee 5 by letter dated May 3. Oliver Martin of Martin Engineering testified he never tendered an authorization to anyone to represent his company because he himself was on the nego- tiating committee. Prior to the first negotiation meeting concerning the 13 counties, Crane questioned Moore of the north Texas asso- ciation whom he represented in that area and Moore re- plied he represented all contractors domiciled there 6 plus the normal group in the Dallas area .7 The first meeting was held on March 27. Representing the employer group were Ragsdale, Carter, Martin, Mosby, and Langthorn. Crane was informed by Ragsdale the committee members repre- sented the north Texas and Dallas associations and the four east Texas contractors . Ragsdale told Crane the nego- tiations were limited only to wages in the 13 counties in accordance with the wage reopener and proposed the scale not be increased. The Union proposed an increase totalling $1.04 while the employer group favored no increase. Subse- quent meetings were held on April 3 and April 25. At the April 25 meeting, the employer group proposed a 25-cent increase but the Union held to its $1.04 proposal. On May 1, the Union struck. Another meeting, called by the media- tor, was held on May 20. By this time, Mosby had left Drew and Funderburk of Longview had replaced him on the employer negotiating committee . At this last meeting, the employer raised its proposed increase to 42 cents and then to 84 cents an hours.' The Union stood on its $1.04 3 Sam Funderburk, president of Longview Mechanical Contractors, Inc., Mosby of Drew Woods, Inc., Hubert Holliday of Holliday Sheet Metal Co., and Oliver Martin, president of Martin Engineering Company 4 Carter had signed the 1973 contract on behalf of the Dallas association. s Funderburk of Longview replaced Mosby on the committee. 6 The four east Texas contractors were domiciled in that area 7 Employer-members of the associations occasionally performed work in the 13-county area even though domiciled outside that region proposal .9 The meeting was adjourned without agreement. No further meetings were scheduled. Failing to reach agreement by May 1, the Union struck and the sheet metal work employees of the east Texas con- tractors failed to report for work. Drew, however, contin- ued to operate on several of its projects with nonmembers of Local 25. The Union picketed several Drew projects out- side its jurisdiction, beginning on May 23. On May 31, the Union put up pickets at a Schlitz location at Longview, Texas, where Drew was a subcontractor and had employ- ees working. This was in the 13-county east Texas area. The picketing was directed at Drew only.10 As Crane ex- plained, the Union didn't picket any of the other east Tex- as contractors or members of the two associations because only Drew had employees continuing to work in the 13- county area. On May 31, McKnight, Drew's vice president, was informed by J. A. Jones, the general contractor on the Schlitz job, that if the pickets were not gone by Monday, June 3, Drew's contract would be canceled. McKnight then called Funderburk and Langthorn and informed them of the picketing at Schlitz and the possibility of losing its contract with Jones. The following morning McKnight asked Funderburk to contact Crane and ascertain what it would take to settle the dispute. Funderburk then spoke to Crane who summarized the Union's demands. A meeting was tentatively arranged for Sunday afternoon. Funder- burk then relayed this information to Martin and Holliday and the Sunday meeting was firmed up. McKnight notified Langthorn of the meeting that had been scheduled with the Union for the following afternoon. Langthorn said he was not available to attend on such short notice and told Mc- Knight "they had assigned their bargaining rights to the committee and they were acting outside of those assigned rights." Langthorn then attempted, without success, to reach Ragsdale, who had been chairman of the negotiating committee, Moore of the north Texas association, and Morris Carter. The four east Texas contractors I I met with Crane on Sunday afternoon and signed an addendum to the 1973 contract which was presented to them by Crane at the meeting.12 Prior to meeting with the Union, the repre- sentative of the employers met privately and Drew, Longview, and Holliday decided to accept the Union's terms. Oliver Martin was uncommitted but at the meeting with the Union he executed the agreement. The written bargaining authorizations executed by Longview, Holliday, and Drew were never revoked. On June 19, Langthorn was at a meeting with Crane on a nonrelated matter. Crane asked when they were going to negotiate on the east Texas counties and Langthorn indi- cated his availability at any time. On July 1, during a tele- phone conversation on other matters, Crane again raised 8 This conformed to the 84-cent increases in the other counties covered in the contract. 9 The Union's proposal of a $1.04 package increase included an increase in the basic rate and the remainder covered fringe benefits. 10 Longview also had a subcontract on the Schlitz job, but its employees had struck and it had no employees working at this time 11 McKnight, Holliday, Funderburk, and Martin. 12 The addendum included a total wage and fringe package increase of $1.005, a cancellation of contributions to two industry funds, and inclusion of a section providing particular procedures in resolving controversies or disputes 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the subject of negotiations on east Texas. According to Langthorn's credited testimony, Crane said "unofficially" there was no point in driving all the way to Tyler for a negotiating session unless the association was willing to sign the same agreement as executed by the four east Texas contractors on June 2.13 Langthorn protested that such po- sition by the Union did not constitute negotiations-the Union was setting the terms and conditions. Since July 1, neither party has asked for a meeting. Analysis and Conclusions In the 1973 negotiations, it was the two associations jointly that comprised the multiemployer group and initial- ly negotiated a contract with the Union. The four east Tex- as contractors bargained with the Union independently of the associations although ultimately they signed similar contracts. But, pursuant to the wage reopener in 1974 limit- ed to the 13 east Texas counties, the multiemployer group was expanded to include the four east Texas contractors. A request for negotiations in 1974 pursuant to the wage re- opener was initiated by the Respondent. Thereafter, four meetings were held between March 27 and May 20. Crane was informed at the commencement of negotiations that the employer bargaining unit was comprised of the two associations and the four east Texas contractors. He was made aware and understood that the bargaining committee as constituted represented this entire group . He offered no objection and, in effect, acquiesced to negotiate with this multiemployer group as to modifications to the 1973 con- tract pursuant to the wage reopener, which primarily af- fected the four east Texas contractors who were domiciled in the counties under consideration. The Respondent argues that even if the Union subse- quently engaged in individual bargaining with the four east Texas contractors and thereafter individual contracts were executed such conduct would not be unlawful because it resulted after an impasse had been reached with the mul- tiemployer group. I find this argument to be without merit. Even if an impasse had been reached , the Respondent here was not entitled to split off individual members of the group and to negotiate with them independently of the group. For, in addition to its steadfast insistence on the $1.04 increase, the Respondent was also insisting upon in- clusion of a provision clearly not within the scope of the wage reopener-section 8, article X-a provision for pro- cedures to resolve "any controversy or dispute arising out of the failure of the parties to negotiate a renewal of this agreement." Accordingly, any impasse if one existed was in part attributable to the Union's insistence upon a modifi- cation of the contract outside the ambit of the reopener. Under the circumstances , no valid impasse existed which could arguably free the Respondent to negotiate indepen- dently with members of the employer group.14 In addition 13 Crane testified he recalled talking to Langthorn about setting up a negotiating meeting but did not recall making such statement. 4I find it unnecessary to decide whether the Union could pursue such course of action had a valid impasse, without more , existed Cf Hr-Way Billboards, Inc., 206 NLRB 22 (1973), enforcement denied 500 F 2d 181 (C.A. 5, 1974). to insisting upon the inclusion of section 8, article X, above, the Union also insisted upon what the parties termed SASMI 15 and certain changes in fringe benefits, principally pertaining to contributions to health and wel- fare and industry funds. Crane admitted that the contract was open only for wages . On cross-examination, he testi- fied as follows: Q. All right, sir. But you did bargain about matters other than wages, didn't you? A. Before it was concluded we did. Q. In fact, Mr. Crane, you insisted on subjects other than wages, didn't you? A. In the latter stages, I did. The reopener spoke of negotiating "a wage rate." Lang- thorn testified items insisted upon by the Union pertaining to employer contributions to industry funds were not "wage items" but were part of the "economic package." Other employer contributions he considered questionable. I find it unnecessary to determine whether each and every one of the Union's proposals fell within the reopener provi- sion. It is sufficient to rely upon the Union's insistence on the inclusion of section 8, article X, clearly a subject not included under the wage reopener. The General Counsel does not allege in his complaint that the Respondent independently violated the Act by in- jecting demands not subject to the wage reopener as de- scribed above. He refers however to this course of conduct to support his contention that the Union engaged in these tactics in order to destroy the integrity of the multiemploy- er group and to cause individual members to split off from the group. The evidence does not support this contention. The Union met with the multiemployer group where it in- jected demands arguably not subject to the reopener clause. It obviously was prepared to sign a contract with the entire group had its demands been met. Its demands were not aimed at any particular segment of the group. The General Counsel also contends that the Union's se- lective picketing solely of Drew was designed to cause the four east Texas contractors to leave the multiemployer group and sign individual contracts with the Respondent. However the record discloses the strike covered the entire 13-county area and the Union's members refused to per- form work in that entire area, regardless of the identity of the employer. As Crane testified, Drew was the only em- ployer who continued to operate in the area and this was the reason the picketing itself was directed at Drew. I can- not agree with the General Counsel that the picketing of Drew was designed to cause the four east Texas contrac- tors to break off from the multiemployer group. Respondent's counsel argues that at the June 2 meeting the Union met with the very committee with which it met earlier in negotiations during the year. He contends that the absence of Langthorn was a matter of personal conve- nience and the absence of the other committee members of the associations 16 was because Langthorn was unable to contact them and inform them of the meeting. As he cor- rectly points out, the meeting was requested by one of the east Texas contractors and the Union was not informed of 15 A form of supplemental unemployment insurance 16 Ragsdale and Carter SHEET METAL WORKERS,' LOCAL 25 505 any objections by the associations to the meeting . Nor was there any evidence that the Union sought to exclude from the meeting the association representatives of the bargain- ing committee. Under these circumstances , he argues, the Union did not engage in individual bargaining. However, it is clear that on June 2 the only employer participants at the meeting were the four east Texas contractors, two of whom were not even on the multiemployer committee-Mc- Knight and Holliday. Although the record does not dis- close whether any mention was made as to the absence of the association representatives, and there may have been none, it is indeed proper to assume Crane was aware he was dealing with only the four east Texas contractors sepa- rate and apart from the multiemployer bargaining group. The request for a meeting made through McKnight was initiated as soon as the Union picketed Drew on the Schlitz job. It must have been apparent to Crane that with the absence of the three association representatives from the June 2 meeting 17 and with the added presence of officials of the two remaining east Texas contractors not individu- ally represented on the committee IS the Union was meet- ing and negotiating with the four east Texas contractors independently of the multiemployer group. Therefore, con- trary to Respondent's contention, I find that the Union negotiated and entered into separate agreements with Drew Woods, Inc., Holliday Sheet Metal Company, Longview Mechanical Contractors, Inc., and Martin Engi- neering Company at a time when the Union was obligated to bargain with the multiemployer group of which the four east Texas contractors were a part. I do not consider of any significance the fact that the Union was never informed of the associations' objections to the independent negotia- tions by the east Texas contractors. For Langthorn did voice his disapproval of separate negotiations to McKnight when informed of the meeting to be held the very next day. None of the east Texas contractors had revoked their au- thorization to be represented in bargaining by the multiem- ployer group. Faced with economic losses because of a dis- ruption of their operations, the four contractors were anxious to resolve the dispute and were prepared to capitu- late to the Union's demands. They therefore initiated the meeting with the Union. But at that time the contractors could not effectively withdraw from the multiemployer group. The multiemployer group objected to the separate negotiations, a valid impasse did not exist , and there were no "unusual circumstances" which would have permitted separate negotiations . The adverse economic conditions suffered by the east Texas contractors due to the Union's strike were insufficient on this record to support any "un- usual circumstances" theory.19 Accordingly, I find the Re- spondent was not lawfully free to negotiate and execute separate agreements with the east Texas contractors and thereby fracture the multiemployer bargaining unit. I find and conclude the Respondent's conduct therefore was vio- lative of Section 8(b)(3) of the Act. In support of his contention that the Union violated Sec- tion 8(b)(1XB) of the Act, the General Counsel relies upon 17 Ragsdale, Carter, and Langthorn. is Holliday and McKnight. 19 See Hi- Way Billboards, Inc., 206 NLRB 22. the insistence by the Union of demands not within the ambit of the wage reopener, the selective picketing of Drew, and the negotiating with the four east Texas con- tractors independently of the multiemployer group. The General Counsel argues that by engaging in this conduct, the Respondent restrained and coerced the individual members in the selection of their representative for collec- tive bargaining. I have already found above that the insis- tence by the Union of its proposals to be included in a modification of the 1973 contract and its picketing of Drew alone were not designed to drive a wedge into the multiem- ployer bargaining unit or to splinter off the four east Texas contractors from the remainder of the bargaining group. Negotiating separately with the four contractors under the circumstances described above is insufficient to support a finding that the Union restrained or coerced the east Texas contractors to bargain separately. It was the contractors themselves who initiated the negotiations and the Union's acquiesence in dealing separately with them alone will not compel a finding of an 8(b)(1)(B) violation. Accordingly, I shall dismiss this allegation of the complaint. The General Counsel has further alleged that the Union violated Section 8(b)(3) of the Act when, on July 1, it con- ditioned any further bargaining with the multiemployer group upon the group's acceptance of the terms reached with the four east Texas contractors on June 2. In support of this allegation, the General Counsel relies upon the July 1, 1974, conversation between Crane and Langthorn when Crane in substance said there wasn't any point in meeting unless the associations were willing to sign the agreement reached with the four east Texas contractors. This last alle- gation was included in an amendment to the complaint at the hearing. Upon reflection I have reservations whether I should have granted the motion to grant such amend- ment.20 As Langthorn testified, it had been Crane who in- quired about getting together for negotiations. And Lang- thorn characterized Crane's statement as "unofficial." Neither party has requested negotiating since that July 1 meeting. Under these circumstances, I do not consider Crane's statement as a refusal to meet or negotiate unless the associations were to agree to the same terms as reached with the east Texas contractors. Accordingly, I shall dis- miss this allegation of the complaint. CONCLUSIONS OF LAW 1. By negotiating, entering into, and giving effect to sep- arate agreements with Drew Woods, Inc., Holliday Sheet Metal Company, Longview Mechanical Contractors, Inc., and Martin Engineering Company at a time when the Re- spondent was obligated to bargain with the collective-bar- gaining group as the representative of said employers, Re- spondent has violated Section 8(b)(3) of the Act. 2. The unit appropriate for collective bargaining is all 20 When the testimony relating to this conversation was adduced by the General Counsel on the first day of the hearing, the counsel for the General Counsel specifically said it was offered , not to show any separate violation, but was offered only to show the Respondent's motivation in signing con- tracts with the four east Texas contractors on June 2. It was on the second day of the hearing that he moved to amend the complaint to include this as an independent allegation. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees engaged in sheet metal work in the employ of the members of North Texas Contractors Association and Dallas Sheet Metal Contractors Association and the four employers named in paragraph I above in the 35 Texas counties named in the 1973 collective-bargaining agree- ment. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of the Act. 4. Except for the foregoing, Respondent has committed no unfair labor practices under the Act. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices within the meaning of Section 8(b)(3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. [Recommended Order omitted from publication.]