Sangamo Construction Co.

National Labor Relations Board - Board Decisions

Jan 27, 1971

188 N.L.R.B. 159 (N.L.R.B. 1971)

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