Southern California Pipe Trades District Council No 16

270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Southern California Pipe Trades District Council No 16 and Plumbing and Piping Industry Council, Inc and R P Richards, Inc, Becotte Mechanical Contractors, Inc, Nor-Wel Plumb- ing, Inc , Apartment Plumbing, Inc, and Davies and Howells Mech Co, Parties in Interest Case 21-CB-9949 January 12, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On July 20, 1988, Administrative Law Judge Earldean V S Robbins issued the attached deci sion The Respondent, the Charging Party, and the General Counsel filed exceptions and supporting briefs The Charging Party filed an answering brief to the Respondent's exceptions and the Respond- ent's motion to file an answering brief was denied as untimely The National Labor Relations Board has delegat- ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified We agree with the judge that the Respondent, since June 19, 1987, has violated Section 8(b)(3) of the Act by soliciting member-employers of the Plumbing and Piping Industry Council, Inc (PPIC), and nonmember-employers represented by PPIC, to abandon multiemployer bargaining at a time when withdrawal from the multiemployer unit would be untimely, and to adopt certain midterm contract modifications proposed by the Respond ent We also agree with the judge that, subsequent to June 19, 1987, the Respondent has violated Sec tion 8(b)(3) by entering into individual collective- bargaining agreements with at least 13 employees who had designated PPIC as their exclusive, au thorized collective bargaining representative within the multiemployer unit In defense of its actions, the Respondent con- tends, inter alia, that PPIC had, long before June 1987, waived its right to assert multiemployer unit representative status The Respondent argues that this waiver is established by the following conduct ' The Respondent has excepted to some of the judge s credibility find ings The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings (1) PPIC failed to act when the Respondent, during the contract term, negotiated with individ ual employers in the multiemployer unit concern ing the Respondent's proposed housing addendum to the parties' contract and (2) PPIC sought au thorization from the individual members of the multiemployer unit before agreeing to the Re- spondent's proposed extension of the 1983-1986 agreement to 1988 We find no merit to this argu- ment As the judge found, the record does not sup port an inference of waiver by PPIC As to the first of the Respondent's grounds, the record shows that, in a letter to the Respondent, PPIC objected to the Respondent's attempts to bypass it when the Respondent tried to obtain indi vidual employer approval of the latter's proposed housing addendum In addition, the judge found that there is no support in the record for inferring a waiver We interpret this finding as an implicit crediting of PPIC Executive Vice President Payne's testimony that he had complained to a local union official about his solicitation of individ ual employers in the multiemployer unit to sign the housing addendum Further, PPIC not only object ed to being bypassed by Respondent, but also exer cised its authority as bargaining representative on this issue, as shown by PPIC's letter which it sent to all contractors announcing that it had negotiated a housing agreement with District Council No 16 Regarding the second point of the Respondent's waiver argument, the record shows that, in the 1985 negotiations to extend the 1983-1986 agree ment to 1988, PPIC agreed to the extension, sub sect to individual employers in the multiemployer unit notifying PPIC that they did not want to be bound to the extension This condition was placed on the agreement because PPIC had received legal advice that it could not bind the employers in the unit to a premature extension of the contract with out giving the employers the option of adhering to the contract's original term 2 Accordingly, we find that the evidence does not establish a clear and unmistakable waiver by PPIC of its right to assert its multiemployer unit repre- sentative status concerning the Respondent's con duct in 1987 that we have found, in agreement with the judge, violated Section 8(b)(3) As a remedy for the 8(b)(3) violations, the judge ordered the Respondent, inter alia, to rescind the individual collective-bargaining agreements entered into and to make each member-employer and non 8 There was also discussion that many members were considering the option of going nonunion and would not wish to delay that option by an additional 2 years All employers in the multiemployer unit were advised that if they failed to advise PPIC of their wishes by a certain date they would automatically be covered by the extension 292 NLRB No 37 SOUTHERN CALIFORNIA PIPE TRADES COUNCIL (PLUMBING INDUSTRY) 271 member-employer in the multiemployer bargaining unit who signed individual collective -bargaining agreements whole for any financial expenditures in- curred under the individual contracts that would not have been incurred under the multiemployer agreement The General Counsel and the Charging Party except to the judge's failure to provide reme- dial relief concerning the elimination of employer payments to certain funds that resulted from the Respondent's unlawful conduct Specifically, they claim that the terms of the unlawful individual con- tracts allowed the signatory employers to eliminate payments due to the Vacation and Holiday Fund and to the Contractors ' Education and Develop- ment Fund (CED) Thus, they contend that the Plumbing and Piping Industry Council , Inc should be made whole by requiring the Respondent to re imburse these funds for the contributions the funds would have received from the signatory employers absent the latter's entry into the unlawful individ- ual contracts We find that the remedy is insufficient to the extent that it does not require the Respondent to reimburse the funds which involve matters that constitute mandatory subjects of bargaining 3 In this regard, the Vacation and Holiday Fund ap- pears to involve a mandatory subject of bargaining, while the CED fund appears to be an industry ad- vancement type fund for which the Board should not order reimbursement 4 Should these conclu sions as to the mandatory nature of the funds based on the current state of the record be incorrect, however, the parties will have the opportunity at the compliance stage to present the evidence neces- sary to make any corrections To the extent reim bursements are due any fund , any additional amounts shall be determined in accordance with Merryweather Optical Co 240 NLRB 1213 (1979) ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Southern California Pipe Trades District Council No 16, its officers , agents, and representa tives, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 2(d) and re- letter the subsequent paragraphs "(d) Reimburse the Vacation and Holiday Fund for losses it may have suffered as a result of the Respondent's entering into collective bargaining agreements with individual employers on and after 8 See generally Allied Chemical & Alkali Workers Local 1 v Pittsburgh Plate Glass Co 404 U S 157 (1971) 4 See Finger Lakes Plumbing Co 254 NLRB 1399 (1981) June 19, 1987, in the manner described in the Board's decision " 2 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT refuse to recognize and bargain with Plumbing and Piping Industry Council, Inc (PPIC) as the collective-bargaining representative of the employers in the following unit All employees of member employers of PPIC and nonmember-employers covered under the 1983-1988 master agreement for the Plumbing and Piping Industry of Southern California be- tween PPIC and us who have designated PPIC as their exclusive authorized bargaining representative in a multiemployer bargaining unit who perform work as defined in Section 3 of that agreement WE WILL NOT solicit employers represented by PPIC in the above-described multiemployer bar- gaining unit to abandon multiemployer bargaining and to sign individual collective-bargaining agree ments with us at a time when withdrawal from such multiemployer unit would be untimely WE WILL NOT give effect to, or seek to enforce, the 1983- 1990 contracts executed in 1987 by us and employers represented by PPIC in the above de scribed multiemployer bargaining unit or any ex tensions or renewals thereof WE WILL honor and give effect to the 1983-1988 master agreement between us and PPIC and we will notify PPIC and the employers represented by it in the above described multiemployer bargaining unit that we will do so WE WILL rescind the individual 1983-1990 col lective bargaining agreements entered into with in dividual employers represented by PPIC in the above-described multiemployer unit and we will make each of them whole for any financial expend- itures made pursuant to the 1983-1990 individual collective-bargaining agreement signed with us which it would not have been obligated to make under the 1983-1988 agreement between us and PPIC 272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL reimburse the Vacation and Holiday Fund for losses it suffered as a result of our unlaw- ful action SOUTHERN CALIFORNIA PIPE TRADES DISTRICT COUNCIL No 16 Joel Martinez Esq for the General Counsel George A Pappy Esq (Pappy & Davis) Los Angeles California, for the Respondent Stuart H Young Jr Esq (Hill Farrer & Burrell), Los Angeles, California for the Charging Party DECISION STATEMENT OF THE CASE EARLDEAN V S ROBBINS, Administrative Law Judge This case was heard before me on November 17 1987 and January 4, 1988 The charge was filed by Plumbing and Piping Industry Council, Inc (PPIC) on June 23 1987, and served on Southern California Pipe Trades District Council No 16 (Respondent) on June 24, 1987 A complaint issued on July 10 and on September 14, 1987, an amended complaint issued alleging that Re spondent has violated Section 8(b)(3) of the National Labor Relations Act (the Act) The basic issues are (1) whether a multiemployer bar gaining unit existed at times material, and (2) if so, whether Respondent violated Section 8(b)(3) of the Act by soliciting employers in the unit to enter into individ ual collective bargaining agreements without the consent of their authorized exclusive collective bargaining repre sentative On the entire record, including my observation of the demeanor of the witnesses and after due consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT I JURISDICTION PPIC is and at all times material has been an associa tion comprised of various employers who are engaged in business as contractors or subcontractors in the plumbing and piping industry in southern California and exists in part for the purpose of, and does engage in collective bargaining on behalf of its respective member employers and certain nonmembers who have designated PPIC as their exclusive authorized bargaining representative with Respondent The member employers of PPIC in the ag gregate, annually purchase and receive goods and prod ucts valued in excess of $50,000 directly from suppliers located outside the State of California The complaint alleges and I find that at all times ma terial PPIC and its member employers are employers, and each of them is an employer engaged in commerce and in businesses affecting commerce within the meaning of Section 2(6) and (7) of the Act II LABOR ORGANIZATION The complaint alleges, Respondent admits and I find that Respondent is now and has been at all times a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Relevant Collective Bargaining History Since at least 1945, PPIC or its predecessor association has been the exclusive collective bargaining representa tive of its members and certain nonmember contractors in a multiemployer bargaining unit Each PPIC member (member employers) signs an application for membership that designates PPIC as the sole and exclusive collec tive bargaining representative for and on behalf of the undersigned, and PPIC and its officers and other desig nated representatives are authorized to execute any and all labor agreements and documents which are to be binding upon the members of PPIC in accordance with the bylaws On acceptance by PPIC s board of gover nors, copies of these applications are sent to Respondent and the various trust funds The PPIC bylaws provide inter alia i Section 14 01 Bargaining Agent Every Member in accordance with the terms and conditions of his Appointment and Authorization of Bargaining Representative, hereby appoints the Council, acting through the Board and the Negotia tion and Arbitration Committee, as his exclusive collective bargaining agent for purposes of all deal ings whether negotiation arbitration or otherwise with the United Association or any other labor union or organization as provided hereinafter In particular, without limiting the scope of the author ity heretofore granted, every Member grants com plete and exclusive authority to the Council to do any and all of the following (a) To negotiate conclude and execute contracts and agreements, including collective bargaining and trust agreements subject to written ratification by each member on an individual basis Section 14 02 Labor Agreements The Council Negotiation and Arbitration Com mittee shall report its activities to the Board on a timely basis No offer or final agreement of major importance made by such Committee when acting in its negotiation capacity shall be binding on a member without the written notification of such member Nonmember employers who have designated PPIC as their collective bargaining representative (nonmember employers) sign a bargaining authorization which desig nates PPIC as the employer's exclusive collective bar gaining agent in all matters related to negotiations with Respondent and its affiliated local unions over the terms and conditions of employment of employees represented I This is taken from the 1984 bylaws The record establishes that the previous bylaws contained the same provision SOUTHERN CALIFORNIA PIPE TRADES COUNCIL (PLUMBING INDUSTRY) 273 by [Respondent] By signing the bargaining authoriza tion the nonmember employer further agrees to and hereby does, become a part of the multi employer bar gaining unit under the master agreement for the plumb ing and piping industry of Southern California PPIC s principal source of income is contributions made by member employers and nonmember employers to the Education and Development Fund (the C ED Fund) These contributions, at the rate of 10 cents an hour worked by each unit employee are remitted to the trust fund monthly along with the employers benefit contributions and are transferred to PPIC by the trust fund Until 1983, the bargaining between Respondent and PPIC or its predecessor organization was always in a multiemployer bargaining unit The 1980-1983 collec tive bargaining agreement between PPIC and Respond ent provides, inter alia Section I RECOGNITION [1 ] B The Union hereby recognizes the Contrac tors Association as the sole and exclusive collective bargaining representative for all present and future members, and/or other Contractors who may desig nate the Contractors Association as their bargaining representative who are engaged on work covered by this Agreement and agrees not to negotiate indi vidually with them during the terms of this Agree ment Section XVII EXISTING & OTHER AGREEMENTS 81 The Contractors agree that any agreement that is alleged by the Contractor to be more favorable to another Contractor must be applied in its entirety at the beginning of any given job and shall apply only to that local union participating in said agreement The Contractor agrees to notify the Local involved before invoking this Paragraph By letter dated February 7 1983 PPIC informed Re spondent that it would no longer represent contractors on a multiemployer basis That letter reads inter alia PPIC has full authority subject to ratification by each contractor to bind the contractors it repre sents to such an agreement Contrary to past prac tices, PPIC will represent the contractors whose names are set forth on the lists on an individual and not on a multi employer basis However it is PPIC s intention that the negotiated agreement become the Master Agreement with such supple mental agreements as the negotiating committee(s) may develop Further PPIC intends to continue to share responsibility with District Council 16 for all aspects of contract and trust administration and to work toward preservation of the high standards within the industry which have been made possible by day to day cooperation between labor and man agement The shift from traditional multi employer bar gaining to negotiations conducted by PPIC on behalf of its members and other contractors on an individual basis is a necessary accommodation to those contractors facing intense non union competi tion who desire to remain union contractors but as a matter of economic reality cannot accept the risks that are inherent should they participate in multi employer bargaining The present arrange ment provides such contractors with an option to reject the negotiated agreement in the event they believe it fails to address their requirements I have every reason to believe that had PPIC been unresponsive to the need for flexibility by these contractors they would have resigned their PPIC membership and reluctantly joined the ranks of the non union contractor Thereafter the 1983 negotiations commenced During the course of the negotiations, Respondent proposed de leting paragraphs 1 B and 81 In support of this proposal Respondent argued that, because the agreement covers nine counties it needed flexibility to make adjustments so that union contractors could remain competitive with nonunion contractors thereby generating more employ ment for union members PPIC proposed a reduced wage rate for residential construction Respondent took the position that it could not secure Council wide ac ceptance of a contract containing such a provision but promised that during the life of the contract it would seek approval from its affiliate locals for an addendum to the contract covering residential construction No agree ment was reached and on the June 30 expiration of the 1980-1983 agreement the Union commenced a strike that lasted for approximately 2 weeks Negotiations continued and, on July 19, the parties reached agreement At that bargaining session the parties agreed inter alia to delete the language in paragraph 81 and that portion of paragraph 1 B whereby Respondent agrees not to negotiate individually with [PPI member employers and nonmember employers] during the terms of this agreement The parties also agreed to include in the contract a provision that purports to reestablish the multiemployer bargaining unit This provision reads 2 A The persons firms corporations, joint venture or other business entities bound by the terms of this Agreement are referred to in this Agreement as Employer or Employers The Employers and the Union by entering into this Agreement intend to and agree to establish a single multi employer col lective bargaining unit Any Employer who be comes party to this Agreement shall thereby become a member of the multi employer collective bargaining unit established by this Agreement B Employers covered by the Agreement shall be free to designate their own representatives for the purpose of collective bargaining and contract ad 2 Sec III par 11 274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ministration, however, such designation shall not affect the Employers membership in the collective bargaining unit established by this Agreement During the course of that bargaining session PPIC representatives informed Respondent that at a meeting to be held later that night for the purpose of ratifying the agreement each contractor would be asked to sign an in dividual letter of agreement that recites this agreement shall be deemed executed when the parties signing shall have affixed their signature hereto According to Re spondent s business manager Ray Foreman Jerry Hen derson, executive director of PPIC, and Bill Deel stated that PPIC needed to secure these individual letters of agreement because their bylaws stated that each employ er had to accept or reject the agreement individually On July 21, 1983, PPIC sent a memo to member em ployers and nonmember employers that refers to the en closure of a letter of agreement and signature sheet re garding the 1983-1986 Labor Agreement negotiated be tween PPIC and District Council No 16 and requests the employers to fill out and sign the signature sheet and return it to PPIC The letter of agreement, approximate ly 1 1/2 pages in length recites, inter alia 1 The contractor acknowledges that the fol lowing clauses in the master agreement ( agree ment ) have not as yet been agreed upon by the parties, and that negotiations on these clauses are still in progress The contractor further gives full authorization to PPIC to negotiate final prove sions of the clauses listed above and any modifica tion of the agreement necessary to effectuate the purpose of these clauses and agrees to be bound by the results of all such negotiations and agreements between PPIC and District Council No 16 6 In executing this letter of agreement contractor agrees that he is party to and part of the multi em ployer bargaining unit described herein as PPIC Also enclosed was a signature page headed Letter of Agreement which recites inter alia This agreement shall be deemed executed when the parties signing shall have affixed their signature herein Foreman admits he and Kirshman agreed on the language for the signature page but denies ever agreeing to or seeing the language in the 1 1/2 page letter of agreement or the accompany ing cover memo Later that day PPIC held a meeting of member em ployers and nonmember employers During this meeting the final provisions of the contract were discussed, and individual contractors signed the letters of agreement Over the course of the next 2 or 3 months, other member employers and nonmember employers signed letters of agreement 1 The 1984 housing addendum In 1984, Respondent's negotiating committee com prised of the business managers of its affiliate Locals, agreed that each Local could have the option of offering contractors working in its territorial jurisdiction a re duced wage and benefit package for wood frame residen tial construction This reduced package was set forth in an addendum agreement to the 1983-1986 master labor agreement between PPIC and Respondent to be signed by the individual contractor and the Local Union The addendum referred to as the housing agreement or the stick agreement, specifies that it covers residential con struction that it applies only to the contractor and Local Union signatory thereto, and that it shall cover only the territorial jurisdiction of the signatory Local Union Al though PPIC had proposed the concept of a lower rest dential construction wage and benefit rate during the 1983 negotiations there was no negotiations between Re spondent and PPIC in this regard The drafting of the housing addendum was done solely by Respondent The housing agreement provides ADDENDUM AGREEMENT between the Employers and Local Unions signatory to the 1983-1986 Agreement for the Plumbing Heat ing and Piping Industry of Southern California com monly known as the District Council No 16 Master Labor Agreement This Addendum agreement is in full force and effect for the Contractor and the Local Union sig natory hereto, and shall cover only the territorial jurisdiction of said signatory Local Union This shall not be applied to any Contractor or Local Union not signatory to said Addendum Agreement as set forth herein Addendum agreement covering Residential Con struction defined as stick construction of single family housing dwellings including multiple story dwellings condos, apartments and townhouses 1 Residential Construction Journeymen Plumb er s Wage Rates and benefits per hour effective July 1 1984 through June 30 1985 shall be as follows Base rate-$17 98 Pension-$2 80 H&W-$1 92 A&J-$0 10 P I P E -$0 20 Total-$23 2 All provisions of the 1983-1986 agreement for the Plumbing Heating and Piping Industry of Southern California which this Addendum is a part of shall be binding on the Employer and the Union Only one local union Local 545 adopted the housing addendum in 1984 3 It is undisputed that PPIC was not immediately notified that Local 545 had adopted the agreement and at least two contractors-Nat Taylor & Sons Plumbing Inc and B & J Plumbing Inc -signed the housing addendum prior to any notification being given to PPIC 4 However according to Foreman prior 3 Local 545 adopted the housing agreement in November 1984 4 Local 545 also signed an agreement with Apartment Plumbers on July 29 1985 SOUTHERN CALIFORNIA PIPE TRADES COUNCIL (PLUMBING INDUSTRY) to Local 545 adopting the housing agreement he in formed PPIC President Merlin Geddes and Executive Director Jerry Henderson that Respondents Council had adopted the addendum and gave them a copy He told them the agreement was optional for each Local Union and that PPIC could tell their contractors to contact the individual Local Union to inquire if that Union would offer the housing agreement Foreman admits that the PPIC representatives expressed some opposition to the agreement He does not recall what it was but thinks the principal objection was that it was not Council wide Foreman also admits that local unions solicited individual contractors to sign the housing agreement despite PPIC s opposition By letter dated January 29, 1985, Respondent informed PPIC that Local 545 had implemented the housing agreement and enclosed copies of the Nat Taylor and B & J plumbing agreements According to Foreman, Re spondent received no response from PPIC concerning this letter In 1985, Local 582 adopted the housing agree ment and, according to PPIC Executive Vice President Robert Payne, began calling on PPIC members soliciting them to sign the agreement In response thereto, on March 8, 1985 PPIC sent Respondent a letter the body of which reads As you know, this firm represents the Plumbing & Piping Industry Council ( PPIC") Our client has recently learned that District Council No 16, through one or more affiliated Locals has negotiat ed a separate agreement entitled Addendum Agreement with members of the multi employer bargaining unit This action of course unlawfully by passes PPIC s exclusive bargaining representa tive status constitutes an unlawful mid term modifi cation of the Master Agreement, and is otherwise a breach of the Master Agreement In addition since the Addendum Agreement governs residential construction, and since District Council No 16 re fused to agree to proposals submitted by PPIC during the course of negotiations over the Master Agreement on the subject of residential construc tion entering into this Addendum Agreement constitutes evidence of bad faith bargaining, as well as further evidence of undermining PPIC s repre sentative status Lastly setting aside its illegality this action is hardly conducive to a mutually re sponsible labor management relations between the parties As you will deduce from the foregoing, our client is considerably disconcerted by this action and is contemplating instructing our office to pro ceed with appropriate legal action However it will forebear from doing so provided that you are will ing to meet and confer with PPIC towards the end of reaching a residential agreement to which PPIC is a party Please advise me of what dates you and any other necessary parties would be available for that purpose as soon as possible Despite this threat of legal action no unfair labor prac tice charges were filed Respondents affiliate Locals 275 continued to enter into housing addendum agreements with individual contractors 2 The 1985 extension of the master labor agreement and the modification of the housing addendum On May 22, 1985, Respondent sent a letter to all con tractors signatory to the 1983- 1986 master agreement including those members of and/or represented by PPIC, the body of which reads As you are aware, your current collective bar gaining agreement with District Council No 16 provides for an increase in rates of $100, effective for all hours worked on and after July 1, 1985 The $100 increase is to be applied as directed by the District Council This collective bargaining agree ment will expire on June 30 1986 The Delegates of the District Council have met and have considered the distribution of the $100 in crease The decision of the Delegates is to offer each signatory contractor a choice between two op tions Only one or the other option is offered Each contractor may choose only between them *OPTION ONE is to increase the hourly con tributions to the Vacation and Holiday Trust Fund by $100 for each hour worked on and after July 1 1985, with a contract expiration date of June 30, 1986 **OPTION TWO offered as an alternative, is that no increase in rates be implemented on July 1, 1985 Instead the contract expiration date would be extended until June 30 1988 Further the $100 due July 1 1985 would be deferred during the two year contract extension-$0 50 in crease per hour worked being applied to the Va cation and Holiday Fund effective July 1 1986, and $0 50 increase per hour worked being applied to the Vacation and Holiday Fund effective July 1 1987 The District Council No 16 requests that you advise us of your choice between these two options no later than June 21 1985 If we have not received a reply from you by that date, we must apply OPTION ONE and your Va cation and Holiday hourly contribution will be in creased by $100 effective July 1 1985 Attached thereto was a prepared response to be signed by the individual contractor selecting one of the two op tions On May 23 a letter was sent to PPIC that was identi cal to the May 22 letter except in the second paragraph where your group of contractors was substituted for each signatory contract By letter dated June 24, 1985 PPIC accepted the option of extending the contract to June 30, 1988 The body of the letter reads In reply to your letter of May 23 1985 the PPIC Board of Governors have voted to amend the cur rent contract, as stated in your option two, with sub 276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sequent minor modifications agreed upon by both parties In compliance with our by laws and agreement with the Independent Contractors we represent we cannot bind these parties to the Amended Agreement without prior notification This process will be completed by June 28, 1985 at which time we will submit to you a list of the contractors we represent and will be covered under our amended Master Agreement With regard to the last paragraph of this letter, Payne and PPIC President A E Barrington testified that on advice of counsel the PPIC board of governors conclud ed that because their member employers and non member employers had agreed to a contract terminating in 1986 they could not prematurely extend that agree ment without affording them the option of adhering to the original term of the agreement There was also some discussion that many members were considering the option of going nonunion and would not wish to delay that option by an additional 2 years Therefore, each member employer and nonmember employer was note feed by letter of the two options and informed that if they did not response by June 28 PPIC would sign the extension and they would be automatically covered by it According to Barrington PPIC received both positive and negative responses to the proposed extension and some contractors did not respond at all Consequently all contractors represented by PPIC were bound by the extension unless they notified PPIC to the contrary In 1986, after the expiration of the 1983-1986 master agree ment Respondent negotiated to impasse with the con tractors who chose not to extend that agreement In late 1985 or early 1986 according to Foreman two members of the PPIC board of governors Merlin Geddes and George Benoit told him PPIC would not encourage any contractors to sign the housing addendum because it did not contain a provision for C E D contra butions In an effort to overcome this opposition Re spondent amended the housing addendum to require PPIC members to make a 3 cent per hour C E D contri bution According to Foreman nonmembers were not required to make such contributions Approximately 6 of the 14 affiliated Local Unions adopted the housing agree ment PPIC and Respondent according to Foreman reached an oral agreement as to the housing addendum in late 1985 or early 1986 but did not actually execute one Thereafter the housing addendum was amended to specifically set forth all contributions including wages benefits, and C E D contributions It also included a time and a half overtime rate and a note as to the amount of Respondents dues checkoff and certain other contri butions A special modification of the housing addendum approved by Respondent was used by Local 114 That modified agreement includes the following additional provisions Contractors signing this agreement will agree to employ only one pipetradesman per shop (This will include pipetradesmen under all agreements ) All stick jobs will be posted at the contractors shop The union will be notified of each stick job prior to the start of construction and the steward will be notified of all stick jobs The employer has to notify each employee if he is going to send the employee to a stick job and if the man does not wish to work under the stick agreement the man will be entitled to a reduction in force Contractors signing this agreement agree to pursue single house construction Further the journeymen wage rate also included a vaca tion and holiday rate of $ 1 per hour for a total wage rate of $24 an hour instead of the $23 an hour in the standard housing addendum The foremen s vacation and holiday rate was changed from $2 93 an hour to $1 93 an hour for a total wage rate of $29 60 per hour instead of the $30 60 per hour rate in the standard housing addendum Jim Naumann , business manager of Local 545 and John Patterson business manager of Local 582 , testified that they implemented the amended housing addendum within their territorial jurisdiction without objection from PPIC However Robert Payne, PPIC s executive vice president testified he had two or three discussions with Patterson and some correspondence with regard to the housing agreement The first discussion was a phone conversation initiated by Payne in late spring or early summer 1986 According to him after receiving some calls from contractors that Patterson had solicited them with regard to signing the housing agreement he called Patterson told him PPIC was not against the housing agreement but Patterson would have to go through PPIC when talking to a PPIC member Payne said he would send out a request for anyone that wanted to sign the addendum and would then send Patterson a list At some time prior to June 9, 1986 the following notice was sent to employers represented by PPIC NOTICE To All Contractors From George Benoit President PPIC Re Two New Contracts The PPIC Negotiating Committee is please to advise you that it has recently negotiated two agreements with District Council No 16 The desire is to append these two agreements to the Master Agreement The first is a Housing Agree ment, with a total wage and fringe package of $23 00/hr for a journeyman The second agreement covers Industrial, Commercial, Manufacturing and Oilfield Maintenance, with a total wage and fringe package of $23 25 for a journeyman As you know, the Master Agreement calls for Contractor Education and Development (C E D ) contributions to be paid to PPIC We would appre ciate your signing and returning this notice Your signature below indicates both (1) your authoriza tion to PPIC to enter into these two agreements on your behalf and (2) your acknowledgment that any C E D contributions under these two agreements SOUTHERN CALIFORNIA PIPE TRADES COUNCIL (PLUMBING INDUSTRY) 277 shall be paid to PPIC just as is the case under the Master Agreement On August 14 1986 Payne sent the following letter To Contractors Who Granted PPIC Bargaining Authority From Bob C Payne, Executive Vice President Re Industrial, Commercial Manufacturing and Oil field Maintenance Agreement & The Housing Agreement Dear Contractor The enclosed agreement has been finalized and signed by PPIC President George Benoit, and Ray Foreman business manager secretary of DC# 16 Enclosed are three (3) #14 pages (signature page) which you must completely fill out and then return all three (3) copies to the PPIC office When we are in receipt of all three of your copies we will keep one (1) for our files one (1) will go to DC#16, and then DC# 16 will send the third copy to the appro priate locals DC# 16 will also notify the Southern California Pipe Trades Trust Fund (SCPTTF) When PPIC has received all of the signed agree meets we will then send a list of all the signed con tractors to all of the locals The Maintenance Agreement is good throughout DC#16 but you must get prior approval from the business manager if you wish to use it on new construction The Housing Agreement must be approved by each local As of this date locals 545 and 582 have already approved the Housing Agreement (It is not necessary to sign the Housing Agreement, it is al ready part of the Master Agreement We are enclos ing a copy for your files ) Thereafter, according to Payne he sent all Respond ent s affiliate locals a list of member employers and non member employers who were bound by the housing ad dendum Payne further testified that he believes a copy of this notice was also sent to Respondent According to him he instructed his secretary to send the list to all the locals to the trust fund and to Respondent He has no reason to believe that his instructions were not followed Payne also testified that in a conversation with Patter son, he stated that Patterson should be dealing through PPIC and not directly with contractors Patterson agreed and Payne promised him a list of contractors bound by the housing addendum Patterson specifically denied ever receiving a call from Payne complaining that he had approached contractors directly to solicit them to sign the stick agreement rather than going through PPIC B The Alleged Refusal to Bargain Payne testified that on April 2 1987 Foreman came into his office and informally proposed a contract exten sion from 1988 until 1990 According to him Foreman proposed that the wage provision of the contract be modified to cancel the 50 cents increase due July 1 1987, and to provide for a 25 cents wage increase on July 1 1988, and another 25 cents wage increase on July 1 1989 with a new expiration date of June 30 1990 He further proposed that Respondent have the right to um laterally shift trust fund contributions from one trust fund to another as needed Payne said he felt C ED contributions should be increased 5 cents for service and repair plumbers and the pipe tradesmen and apprentices inasmuch as they were paying dues on them with no off setting income Foreman said okay and proposed an ad ditional 5 cents contribution for the California Pipe Trades Fund Payne said he did not think PPIC would agree to the unilateral shifting of funds from one trust to another by Respondent He further said he would have to take the proposal back to the appropriate committees Foreman requested that Payne get back to him by April 21 because he had a District Council meeting Payne further testified that on May 14, 1987 at the conclusion of a joint arbitration meeting Foreman for mally proposed the same wage and contract extension modification he had proposed to Payne in April PPIC counterproposed eight additional modifications that the PPIC spokesman said were all negotiable The counter proposal included free trade of employees from one local to another more employer supervision over foremen, a change in the ratio of journeymen to apprentice and also tradesmen the initiation of a drug abuse program, and C E D contributions of 10 cents for journeymen and 5 cents for apprentices, service and repair plumbers, and tradesmen and that contributions could be shifted from one fund to another only on agreement between Re spondent and PPIC Respondents representatives said they would get back to PPIC on May 26 According to Foreman PPIC further proposed that the dispatch procedure be modified to provide for 100 percent calls by name that the housing agreement be Council wide instead of at the discretion of the Local Union and that the employer have complete control of supervision without any contractual ratio as to when there would be a foreman or general foreman They also wanted to preclude the Union from making special deals with individual contractors including the most favored nation clause that had been deleted from the contract in the 1983 negotiations Another meeting was held on May 26 1987 Payne and Foreman were present but Payne does not recall whether Frank Graham was present According to Payne Foreman said Respondent was going to meet on Friday and they were going to go to the street with the contract Foreman further said Respondent would get rid of all employer association What good are they I could do it better without you " Payne said Respondent had the right to go to any independent contractor but did not have the right to solicit any PPIC member or contractors that had granted PPIC their bargaining au thonty Foreman said, We re going to the street with it Payne further testified that Foreman also said, on May 26 or during other conversations between them he would get rid of the joint arbitration board would de stroy PPIC that he hates all contractors and all employ er associations and would get rid of them Foreman denies telling Payne he hated all contractors, would de 278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stroy PPIC, or would get rid of all employer associa tions On May 28, 1987, PPIC sent Respondent a letter, the body of which reads, inter alia You are not legally permitted to deal or attempt to deal individually with any of the employers on this list with respect to matters pertaining to collective bargaining, rather any dealings must be through this Association and then only on the basis of a multi employer bargaining unit Attached thereto was a list of 146 member employers and 73 nonmember employers In late May or early June 1987, PPIC Southern Cali fornia Mechanical Contractors and Associated General Contractors jointly drafted a letter that was sent to sig natories, including those represented by PPIC over the signature of Bob Payne and Jim Burge of Southern Cali fornia Mechanical Contractors Association The body of the letter reads District Council No 16 has informally offered to extend our existing 1983-1988 Master Agreement by two years and defer the July 1, 1987 $ 50 per hour increase (July 1988-$ 25 and July 1989- $ 25) In addition the union has requested the rignt to move fringe contributions from one fund to an other as they wish to cover benefit needs The offer does not address our ability to effective ly compete against non union competition or make the union contractor more competitive in today s market place Discussions with District Council No 16 are open and continuing If you are directly solicited by District Council No 16 or local business agents, exercise caution) In view of the recent NLRB decision in DekleH a and Sons as well as proposed legislation currently pend ing in Congress your associations recommended that prior to signing any extension you contact a competent Labor Law attorney On June 5 1987 PPIC sent the following letter to member employers and nonmember employers Recently there have been some Informal Dis cussions between District Council No 16 and the Plumbing & Piping Industry Council Inc The fol lowing items were offered by District Council No 16 for management consideration 1 Extend the current Master Agreement through June 30, 1990 2 Forego the fifty cent increase scheduled for July 1, 1987 in the following manner twenty five cents to be effective July 1 1988 and twenty five cents to be effective July 1 1989 3 District Council No 16 labor representatives are to have full authority to shift any and all trust fund contributions at their discretion, without management s consent It was the opinion of managements negotiation committee that more was needed over this long a term in order to allow us to be more competitive with the horrendous impact of the non union sector on our segment of the industry For this reason, a counter proposal of additional items (copy attached) was given to District Council No 16 To date man agement has received no informal response to this list of items In order to be able to move timely in a direction that best suits the majority of our signatories we urge you to fill out the attached form and return it in the enclosed envelope as soon as possible A meeting A ill be scheduled in the immediate future to allow open discussions by all signatories relating to this subject SPECIAL NOTE A recent landmark decision of the National Labor Relations Board has completely reversed prior rulings as to demands that could be placed on an individual company regarding extending an expiring working agreement You are urged not to sign any agreement for extension until you understand the potential consequencies of signing such an exten Sion 5 Attached thereto was a form requesting signatories to indicate support or nonsupport for the following propos als made by PPIC to Respondent 1 Free movement of men throughout Los Ange les and Orange County 2 Favored Nations Clause (All contractors are entitled to same special Agreement given to any other contractors) 3 Management to have full control of supervi sion with no set ratios to journeymen However this would have no effect on current 3 man transfer clause 4 Ratio of Apprentices to Journeymen A 1 Apprentice to 1 Journeyman for first man B 1 Apprentice to 3 Journeymen thereafter C If no apprentices available, a Tradesman may be used 5 100% call by name 6 The Housing Agreement to be made part of the Master Agreement and not solely at the discre tion of Business Manager 7 Elimination of Subsistence and Travel Pay anywhere in District Council No 16 8 Minimum of $ 05 C E D contributions on all classifications Journeyman contribution to stay as is On June 19 1987 Respondent sent a letter to all signa tories including those represented by PPIC which reads, inter alia Recently you have received from several indus try employers associations communications regard ing the offer of the Southern California Pipe Trades 5 The italicized portion was typed in red ink SOUTHERN CALIFORNIA PIPE TRADES COUNCIL (PLUMBING INDUSTRY) 279 Distract Council No 16 to extend the current 1983- 1988 Master Agreement 5 WAGE RATES AND BENEFITS, Section XVIII Because we believe that these communications misrepresent the District Councils proposal, we offer you the opportunity to review our offer your self In simple terms our motivation for making this offer is threefold 1 To maintain and extend a sustained period of industrial peace 2 To avoid a long drawn out fight in an ad verse climate where no one wins and 3 To refrain from being used as a tool by some special interest employers who do not in any way by their actions reflect the best interest of our industry With this objective in mind , we are enclosing a copy of an extension contract of our existing 1983- 1988 Master Agreement for your study and action After you have reviewed this document, I am sure that you will agree with us that approval of this ex tension contract will maintain industrial peace for an additional three years To assist you in analyzing this enclosed contract, we are providing a brief description of the changes to our agreement as follows 1 RENUMBERING OF PARAGRAPHS This is necessary because of changes and a new numbering system which will make it easier to reference 2 HIRING PROVISIONS AND REGISTRA TION RULES, Sections IV and V This largely has been changed to allow for the initiation of the P I P E Certification of Journey man effective July 1 1988 By this effort, we hope that all journeyman [sic] will upgrade their skills and keep them upgraded through the P I P E Certification Program Registration of Book No 2 has been lowered from 3 000 to 2 000 hours The 3 000 hour rule proved too restrictive for Book No 2 3 UNION SECURITY SECTION VIII We have added a $ 05 per hours worked de duction to pay per capita dues to our state asso ciation because of action taken at our state pipe trades convention held last month 4 GRIEVANCE PROCEDURE AND NEW TITLE IMPARTIAL ARBITRATOR Section XIII and XIV These two sections have been changed to make them more up to date in the handling of grievances, and to put an end to the rumors that contractors who are PPIC members receive more favorable treatment Compliance with these sec tions will provide equal treatment for everyone We have a $ 50 increase due on July 1, 1987 payable to the vacation and holiday fund that we are willing to forgo [sic] We will hold our cur rent wage and benefits as they are are [sic] this year and we will eliminate the $ 10 C E D -for a total savings of $ 60 per hour worked this year (July 1, 1987 to June 30, 1988) Effective July 1 1988, a $ 30 increase on wages ($ 25 from $ 50 increase of the vacation and holiday fund and $ 05 from C E D) and $ 05 increase to the AGC/UA training trust fund which comes from the left over $ 05 of CED s$10 Effective July 1, 1989, a $ 25 increase on wages 6 BENEFIT TRUST FUND Section XIX These changes allow all participating employ ers, like yourself, to either run for election as Trustees of the Trust Fund of your choice and/or to vote for the Trustee candidates of your choice 7 FLEXIBLE TRUST CONTRIBUTION, Sec tion XXXII (A New Section) Since we have boxed ourselves in a corner with no increases , we need to protect our trust funds in case one fund gets into difficulty We need to be able to distribute the contributions among the trusts as the needs arise In conclusion this extension offer is made to you by our District Council because we are the only ones who can make this offer We wish to point out, however that this offer is subject to withdraw al at anytime by District Council No 16 If you be lieve as we do, please sign the enclosed agreement, return it to this office and we will send you signed copies In the latter part of June Respondent distributed to employers covered under the 1983-1986 master agree ment a 1983-1990 master labor agreement between Southern California Contractors and Respondent re vised as of July 1 1987 which had been drafted solely by Respondent The new agreement reflects the changes indicated in Respondents June 19 letter The total number of trustees was changed from 26 to 14 and the selection of employer trustees was changed from election by PPIC to trustees elected from among the contribut ing employers signatory to the master agreement The new agreement sets out a detailed election procedure for employer trustees No such procedure was detailed in the 1983-1988 agreement The arbitration procedure was also changed from a joint arbitration board comprised of an equal number of union and employer representatives to a permanent impartial arbitrator with all costs of the arbitration and of the conduct of the hearing to be borne by the losing party The 10 cent an hour C E D contri bution was eliminated as of July 1 1987 5 cents of this saving to be added to the July 1 1988 wage increase for 280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a total of a 30 cent increase , and the remaining 5 cent saving from the elimination of the C E D contribution to be contributed to the AGC/UA training trust fund The hiring provisions were changed from a requirement of 3000 hours of employment under an agreement with Re spondent to 2000 hours None of these provisions were ever proposed to PPIC On July 31 , 1987 Respondent sent a letter to all signa tory contractors asserting that the new master labor agreement is advantageous to employers and accusing PPIC of not acting in the best interest of the employers or of the industry The letter also notes that PPIC lead ership wishes to increase C E D contributions to cover all employees covered under the contract and asserts since 1983, we have seen very few of these C ED funds being put back into the industry for benefiting you the competing employer The letter further states that Southern California Mechanical Contractors Association has signed the agreement quite a few PPIC members have resigned from PPIC and signed the agreement and an important and large number of our independent sig natory contractors also have signed The letter then con cludes In answer to the question raised by the PPIC offs cial- Who do you think acts in the best interest of the contractors-PPIC or District Council No 16? ', I think that it is very evident from reading the above list of contractors, who have signed our con tract, that these contractors have recognized the District Council No 16 has the best interest of the contractors at heart On September 3 1987 Respondent sent a letter to member employers and nonmember employers requesting that they indicate in the space provided whether as al leged by PPIC, they hold your firms exclusive collec tive bargaining rights and that they have your authori zation to bind you to the District Council No 16 ` master agreement The following member employers did resign their PPIC membership on the dates indicated Becotte Mechanical Contractors, Inc July 3 R P Richards Inc July 9 Nor Wel Plumbing, Inc Davies & Howells July 10 Mech & Paby Co Inc July 16 Apartment Plumbers Inc July 28 Also several member employers and nonmember em ployers signed the 1983-1990 agreement on the dates in dicated SPA Plumbing Inc June 25 C L Stegall Co , Inc June 30 Becotte Mech Contractors Inc June 29 PAL Welding Inc July 1 Wel Plumbing Inc July 7 H E Williams Plumbing, Inc July 8 R P Richards, Inc July 10 Matt s Plumbing Service July 13 Davies & Howells Mech & Paby Co Inc July 16 Laidlaw Welding, Inc July 23 D Z Plumbing July 30 Apartment Plumbers Inc July 30 White Bros Plumbing Aug 18 All these employers were named in the attachment to PPIC s May 28 letter to Respondent that listed the member employers of PPIC and the nonmember employ ers that had given PPIC their bargaining authorization and were members of the multiemployer bargaining unit Conclusions The complaint alleges that since June 19, 1987, Re spondent has violated Section 8(b)(3) of the Act by solic iting individual member employers of PPIC and other nonmember employers who had designated PPIC as their exclusive, authorized bargaining representative to negotiate , enter into and give immediate effect to mdi vidual collective bargaining agreements , without the con sent of PPIC Respondent does not dispute that it direct ly solicited member employers and nonmember employ ers to enter into individual midterm modifications of the 1983-1988 master agreement without the consent of PPIC However Respondent argues that the multiem ployer bargaining unit that was abandoned in 1983 was never reestablished and therefore its actions in dealing directly with the individual contractors was lawful Re spondent further argues that, even assuming arguendo, the multiemployer unit was reestablished at the conclu sion of the 1983 negotiations, PPIC waived its right to assert multiemployer unit representative status by agree ing to delete the clause restricting Respondents right to deal directly with contractors and by its failure to take affirmative steps to prevent Respondent from negotiating separately in 1984 with member employers and non member employers regarding the housing agreements I find no merit in this latter argument A waiver will not lightly be inferred by the Board but must be clear and unmistakable Park Ohio Industries, 257 NLRB 413 (1981) It is immaterial that the waiver asserted here ap plies to the bargaining representative of employers Em ployers are entitled to the same presumption afforded unions that they have not abandoned their statutory rights The record does not support the inference of a waiver by PPIC Respondents business manager Foreman testi feed that when he first proposed deletion of the most fa vored nation clause that granted signatory employers the benefits of any more favorable contract negotiated with other employers and the portion of the recognition clause whereby the Union agreed not to negotiate indi vidually with unit employers during the term of the con tract, he argued that Respondent needed flexibility to SOUTHERN CALIFORNIA PIPE TRADES COUNCIL (PLUMBING INDUSTRY) make adjustments in order for unit employers to be more competitive with nonunion employers PPIC s response at that time was negative and Foreman does not recall the discussion on this item during the negotiating session when agreement was reached There is nothing in the record to establish whether agreement was reached on these deletions as part of ad mitted single employer unit bargaining or whether agree ment was reached thereon after the alleged recreation of the multiemployer bargaining unit In any event, I find it is not sufficient to negate the unambiguous language agreed on by the Respondent and PPIC that The Em ployers and the Union by entering into this Agreement intend to and agree to establish a single multi employer collective bargaining unit At most the elimination of the clauses may indicate that the parties contemplated some separate negotiations on limited matters of particu lar concern to the individual employer and/or Union Such individual adjustments are not antithetical to the concept of multiemployer multiunion bargaining See Kroger Co, 148 NLRB 569 1964) Lathers Local 260 (As sociated Plastering) 228 NLRB 1347 (1977) As to Respondents position regarding the existence of a multiemployer bargaining unit, it is well established that a multiemployer unit is consensual in nature The es sential elements are clear evidence that the employers unequivocally intend to be bound in collective bargain ing by group rather than by individual action and the assent of the Union to such group bargaining Weyer haeuser Co 166 NLRB 299 (1967) It is also well estab lished that, as a general rule, an employer does not become a part of a multiemployer bargaining unit by merely adopting a collective bargaining agreement when it did not actually participate in the negotiations either personally or through an authorized representative Ruan Transport Corp 234 NLRB 241 (1978) Here PPIC was the authorized collective bargaining representative of the member employers and the non member employers in a multiemployer bargaining unit As a group strategy the multiemployer bargaining unit was abandoned by the employers prior to the commence ment of the 1983 negotiations PPIC continued to repre sent these employers, on an individual basis, in negotia tions for the 1983-1986 master agreement On the final day of negotiations, PPIC and Respondent agreed to the recreation of the multiemployer bargaining unit This agreement was memorialized in the contract by a provi sion that reads inter aha The Employers and the Union by entering into this Agreement intend to and agree to establish a single multi employer collective bargaining unit Any Em ployer who becomes party to this Agreement shall thereby become a member of the multi employer collective bargaining unit established by this Agree ment Thus the language reestablishing the multiemployer bargaining unit was negotiated by the authorized repre sentative of the member employers and the nonmember employers Further this language was specifically brought to their attention through a written notification 281 from PPIC that accompanied the signature page jointly drafted by PPIC and the Union, and titled letter of agreement, sent to the member employers and non member employers The letter of agreement states that by signing it the 1983-1986 agreement shall be executed In these circumstances, I find that the necessary consent existed and that the multiemployer bargaining unit was reestablished It is immaterial that PPIC s bylaws provide that every member grants PPIC complete and exclusive authority to negotiate, conclude, and execute contracts and agree ments, including collective bargaining, subject to written ratification by each member on an individual basis This language was in the bylaws at a time when the existence of a multiemployer unit is undisputed and does not negate the necessary element of consent I further find that the employers in the appropriate multiemployer bar gaining unit are (1) member employers and nonmember employers who signed the letter of agreement adopt ing the 1983-1986 master agreement and (2) employers who became members of PPIC or authorized PPIC as their collective bargaining representative after the 1983- 1986 master agreement was executed As set forth above, in 1985 PPIC and Respondent agreed to extend the 1983-1986 contract to June 30, 1988 In April and May 1987, Respondent proposed ex tending the 1983-1988 contract to 1990 and adjusting the wage increase to cover the extended period PPIC coun terproposed additional modifications to the contract After failing to reach an agreement with PPIC on June 19 1987 Respondent sent all signatories including those represented by PPIC 6 a copy of a proposed 1983-1990 contract that had been drafted solely by Respondent and that contained significant modifications never proposed to PPIC Accompanying the contract was a letter that described these changes and solicited the employers to sign the enclosed agreement On July 31 1987 Respond ent sent another letter to all signatories that set forth the alleged advantages of the proposed agreement and ac cured PPIC of failing to act in the best interest of the employers and the industry Subsequent to the June 19 1987 letter at least five member employers resigned their PPIC membership, and at least 13 member employers and nonmember employers signed the 1983-1990 agree ment Based on the above I find that Respondent has violat ed Section 8(b)(3) of the Act by soliciting member em ployers of PPIC and nonmember employers represented by PPIC to abandon multiemployer bargaining at a time when withdrawal from the multiemployer unit would be untimely and to adopt the midterm contract modifica tions proposed by Respondent I further find that Re spondent has violated Section 8(b)(3) by entering into in dividual collective bargaining agreements with at least 13 member employers of PPIC and/or nonmember employ ers who have designated PPIC as their exclusive author ized collective bargaining representative within the mul 6 On May 28 1987 PPIC sent Respondent a list of the employers it represented The list included 146 member employers and 73 nonmember employers 282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tiernployer bargaining unit found appropriate Carpenters Local 964 (Contractors Assn ), 181 NLRB 948 (1970) CONCLUSIONS OF LAW 1 Respondent is and has been at all times material a labor organization within the meaning of Section 2(5) of the Act 2 PPIC, its member employers, and nonmember em ployers who had designated PPIC as their exclusive au thorized bargaining representative are and each of them is and have been at all times material employers engaged in commerce and in businesses affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act 3 At all material times the following unit has been ap propriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act All employees of member employers of PPIC and nonmember employers covered under the 1983- 1988 Master Agreement for the Plumbing and Piping Industry of Southern California between PPIC and Respondent who have designated PPIC as their exclusive authorized bargaining representa tive in a multiemployer bargaining unit who per form work as defined in Section 3 of that agreement constitute an appropriate multiemployer unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act 4 Since at least 1960, Respondent has been the repre sentative for the purposes of collective bargaining of a majority of the employees in the above described unit 5 Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(3) of the Act by soliciting employers represented by PPIC in the above described multiemployer bargaining unit to abandon multiemployer bargaining at a time when withdrawal from the muhiemployer unit would be untimely and to adopt the midterm contract modifica tions proposed by Respondent, and by entering into indi vidual collective bargaining agreements with certain em ployers represented by PPIC in the multiemployer unit 6 The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has violated Section 8(b)(3) of the Act, I shall recommend that Respondent cease and desist therefore and take certain affirmative action in order to effectuate the purposes of the Act Because I have found that Respondent has unlawfully entered into individual collective bargaining agreements with certain employers represented by PPIC in the mul tiemployer unit found appropriate I shall recommend that it rescind the individual collective bargaining agree ments and make each member employer and non member employer in the multiemployer bargaining unit who is signatory to such individual collective bargaining agreement whole for any financial expenditure made pur suant to the 1983-1990 contract signed with Respondent that it would not have been obligated to make under the 1983-1988 agreement between PPIC and Respondent On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed7 ORDER The Respondent Southern California Pipe Trades Dis trict Council No 16 its officers, agents, and representa tives, shall 1 Cease and desist from (a) Soliciting employers represented by PPIC in the multiemployer bargaining unit found appropriate to abandon multiemployer bargaining and to sign individual collective bargaining agreements with Respondent at a time when withdrawal from the multiemployer unit would be untimely (b) Giving effect to, or seeking to enforce the 1983- 1990 contracts executed in 1987 by Respondent and the employers represented by PPIC in the multiemployer bargaining unit found appropriate or any extensions or renewals thereof 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Recognize PPIC as the exclusive collective bar gaining representative in a multiemployer bargaining unit of its member employers and nonmember employers who have designated PPIC as their exclusive authorized col lective bargaining representative in the multiemployer unit found appropriate and notify PPIC and each of the employers represented by PPIC that it will do so (b) Honor and give effect to the 1983-1988 master agreement and notify PPIC and the employers represent ed by it in the multiemployer bargaining unit that it will do so (c) Rescind the individual 1983-1990 collective bar gaining agreements entered into with individual employ ers represented by PPIC and make each of them whole for any financial expenditures made pursuant to the 1983-1990 individual collective bargaining agreement signed with Respondent which it would not have been obligated to make under the 1983-1988 agreement be tween Respondent and PPIC (d) Post at Respondents business office and meeting places copies of the attached notice marked Appen dix 8 Copies of the notice on forms provided by the Regional Director for Region 21 after being signed by the Respondents authorized representative shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are cus tomarily posted Reasonable steps shall be taken by the 7 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 8 If this Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the Na tional Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board SOUTHERN CALIFORNIA PIPE TRADES COUNCIL (PLUMBING INDUSTRY) Respondent to ensure that the notices are not altered de faced, or covered by any other material (e) Forward to the employers represented by PPIC in the multiemployer bargaining unit found appropriate, for posting on their premises at their option, copies of the notices signed by Respondents representative (f) Preserve and, on request, make available to the Board or its agents for examination and copying all pay 283 roll records, social security payment records, timecards personnel records and reports, and all other records nec essary to analyze the amount of backpay due under the terms of this Order (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply