Industrial Engineering Co., Inc.

National Labor Relations Board - Board Decisions

Oct 4, 1968

173 N.L.R.B. 77 (N.L.R.B. 1968)

INDUSTRIAL ENGINEERING CO. 77
Industrial Engineering Co., Inc . and Local Union No.
101, United Brotherhood of Carpenters and Join-
ers of America , AFL-CIO. Case 5-CA-3894
October 4, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On March 15, 1968, Trial Examiner Owsley Vose
issued his Decision in the above-entitled proceeding,
finding that Respondent had not engaged in certain
unfair labor practices and recommending that the
complaint be dismissed in its entirety, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel, the Charging Party, and the
Respondent filed exceptions to the Trial Examiner's
Decision and supporting briefs, and the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
I We do not adopt the Trial Examiner's comments and argument
based on Section 8(e) and the policy considerations underlying that
section It is sufficient merely to point out that subcontracting
provisions are common in the building and construction industry, and
are specifically made lawful by virtue of Section 8(e) of the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner This case, heard at Balti-
more, Maryland, on December 18 and 19, 1967, pursuant to a
charge filed on the preceding September 12 and a complaint
issued on October 25, presents the question whether under all
the circumstances of this case, including particularly an Interim
Agreement which the Respondent entered into with the
Charging Party (hereinafter called the Union) on March 5,
1967, the Respondent violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, by refusing to sign
the contract subsequently negotiated between the Union and
the Baltimore Builders Chapter of the Associated General
Contractors of America, Inc. (hereinafter called the A.G Q.
Upon the entire record in the case,` my consideration of
the briefs filed by the General Counsel and the Respondent,
and from my observation of the witnesses, I make the
following
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Maryland corporation having its princi-
pal office in Baltimore, Maryland, is a general contractor in the
building and construction industry. During the year preceding
the issuance of the complaint the Respondent purchased from
out-of-State sources and had shipped to various building sites
in Maryland more than $50,000 worth of building materials
Upon these facts, I find, as the Respondent admits, that it is
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, Local Union No. 101, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The History of the Respondent's
Relations With the Union
The Respondent was incorporated in 1950. Its president,
Walter Davis , had been a member of the Union from 1941 up
until the time the business was incorporated , and before that
was a member of locals of the Carpenters in Richmond and
Petersburg , Virginia. From the inception of the Respondent's
business it has been its policy to employ union members
whenever they are available . During all the years that the
Respondent has been in business , it has either had written
contracts with the Union covoring its journeymen carpenters
and apprentices, or has strictly followed the terms of the
collective -bargaining contract negotiated by the Union and the
A.G.C.
The Respondent started out with small-scale operations but
its business has grown and it now acts as general contractor on
construction jobs that range in cost from $ 50,000 to
$1,300,000. The latter figure is the contract figure on the
largest job handled by the Respondent. According to President
Davis, with the Respondent 's operations within this range, it is
among the smaller of the middle -sized general contractors
Ninety percent of the Respondent 's competitors in bidding on
contracts within this range , so Davis testified , are nonunion,
i.e., they may or may not have union employees on their own
payroll and they use nonunion subcontractors in whole or in
part. As a result the Respondent has found it necessary in
selecting subcontractors to chose the qualified subcontractor
I Both the Respondent and the General Counsel have filed
motions to correct the transcript of record in this case. No
opposition having been filed thereto and the corrections appearing
proper, both motions to correct transcript are hereby granted
173 NLRB No. 18
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
submitting the lowest bid. Frequently it turns out that such
subcontractors are nonunion
In 1955 the Union took the lead in a movement sponsored
by an employer's association and various building trades locals
to unionize the building and construction industry in the
Baltimore area. In an effort to achieve this goal, the Union
asked the Respondent, among others to use union subcontrac-
tors 2 exclusively, and assured the Respondent that it and other
building trades locals would see to it that the Respondent did
not suffer from nonunion competition The Respondent
agreed to go along with this arrangement. However, after
submitting bids figured on using union subcontractors the
Respondent found itself receiving very few contract awards In
February 1956 the Respondent complained to the employers
association that the local unions were not living up to their
part of the arrangement, asserting that members of the Union
and other building trades locals were working for nonunion
contractors with whom he was in competition Notwithstand-
ing this, the Respondent continued to use union subcontrac-
tors exclusively until some time in 1957. As a result of
adhering to this policy, the Respondent lost money in the
latter part of 1955 and all of 1956 and 1957. In 1957 the
Respondent returned to its former policy of awarding subcon-
tracts to the lowest reliable bidder, regardless of whether the
subcontractor was a union subcontractor or not From 1957
on the Respondent has continued to operate under this policy.
However, for its own operations the Respondent has continued
to employ union members exclusively
Early in 1964, the A.G C. and the Baltimore Building and
Construction Trades Council (hereinafter called the Council)
reached an accord on a 3-year trade agreement which became
effective on April 1, 1964. Thereafter, the Respondent and the
Union signed an agreement embodying the terms agreed upon
in the A.G.C.-Council negotiations. This agreement was for a
3-year term and was to expire on March 31, 1967 This
agreement, like its predecessors to which the Respondent was a
party, did not contain any clause relating to subcontracting.
All these contracts covered only wages, health and welfare and
other fringe benefits, and the year-to-year changes made in
these contracts had affected only wages and fringe benefits,
according to Davis, the Respondent's president.
In the late fall of 1964 the Union and other building trades
locals worked out in conjunction with the Council, a supple-
mental agreement with the A.G.C. and various participating
specialty trade associations whereby the employer trade
associations, and also certain individual employers not mem-
bers of any association, agreed to use only union subcontrac-
tors at certain jobsites which were listed in an appendix to the
agreement. This agreement is referred to as the Pinpointing
Agreement. The Respondent was never asked to sign this
agreement. However, President Davis, was aware of the
existence of the agreement and its purpose, to extend the use
of union subcontractors.
In June of 1966 the A.G.C. and the Council, which was
acting on behalf of itself and its affiliated local unions,
including the Union, were negotiating for a 3-year contract
which Was to supercede the Pinpointing Agreement and was
further to extend the obligation of general contractors to use
union subcontractors for work to be done at the jobsites. This
agreement provided, during the first year of its term, for the
use of union subcontractors exclusively on all jobs on which
the contract bid was in excess of $1,500,000, and during the
remainder of the contract term for the use of union subcon-
tractors exclusively on all jobs regardless of the dollar value of
the contract, with the exception of schools and churches as to
which the $1,500,000 figure was retained. This agreement was
signed by the A G C. and the Council on July 6, 1966, and, as
stated above, was to run for 3 years and purported to bind not
only the Council but also its affiliated local unions, of which
the Union was one. Like its predecessor, the Pinpointing
Agreement, the agreement of July 6, 1966, was devoted
entirely to the subcontracting of work to be performed at the
jobsites and related matters.
While negotiations for the subcontracting agreement of July
6, 1966, were under way late in June, Guido Iozzi, the
president of the Council, asked Davis, the president of the
Respondent, to sign the agreement. Davis refused. On July
26, 1966, the Council picketed two of the Respondent's jobs,
one at Friendship Airport and the other at the Keystone
Electric Co , Inc.
The next day the Respondent filed a charge with the Board
alleging that the Council's action violated Section 8(b)(4)(i)
and (n)(B) of the Act A complaint was issued by the General
Counsel in Case 5-CC-368 and eventually the Council
consented to the issuance of a Board order and a United States
Court of Appeals enforcing decree prohibiting violations of
Section 8(b)(4)(i)(B) of the Act.
The latter part of August 1966, Posey, a business agent of
the Union, also asked Davis to sign the July 6, 1966,
subcontracting agreement. Posey pointed out that lozzi, the
president of the Council, was a nice fellow and, after
mentioning that the Union was affiliated with the Council,
urged the Respondent to "go along and sign." Davis refused,
saying as follows, as he testified
I told him that I couldn't operate under the all union
subcontractor and I explained it to him, that I had tried
once before and it had almost taken me broke and I was
lucky to survive it It would just put me out of business if I
tried to do so.
Posey asked Davis two or three times thereafter to sign the
Council subcontracting agreement, but Davis refused, declaring
on one occasion that he "had continuously been getting
pressure from the Trades Council from here and in Washington
to sign this subcontractor's agreement but that [he] could not
have survived under this "
B. Events Involved in This Case
During the week of February 20, 1967, Business Agent
Posey approached President Davis at the construction site of
the Cherry Hill School on which the Respondent was the
general contractor. Posey states that the A.G.C., the Council,
and the Union were engaged in negotiations for a renewal of
their collective bargaining contract but that agreement had not
yet been reached. As stated above, at this time the Respondent
and the Union were parties to the 1964 trade agreement,
which was due to expire March 31, 1967. At the time of this
conversation in the latter part of February, Posey demanded
that Davis send him a letter agreeing to pay the wage and
fringe benefits ultimately agreed upon by the Union and the
2 This term is used throughout this decision to refer to
contractors whose employees are represented for collective bargain-
ing purposes by the Union
INDUSTRIAL ENGINEERING CO. 79
A.G.C. retroactive to the expiration of the preceding contract.
The Union then mailed to the Respondent a proposed Interim
Agreement together with a form covering letter which stated
that union members would go out on strike on April 1, 1967,
if agreement were not reached on a new 3-year contract with
the A G.C., and that employers could protect themselves
against a strike by signing the Interim Agreement. The Interim
Agreement provided, among other things, that the employer
would "sign and adopt the collective bargaining agreement
eventually consummated by the Union and the A.G.C." and
that the wages and fringe benefits therein provided would be
paid by the employer "retroactively to April 1, 1967.s3 Posey
spcke to Davis several times in the last part of February and
the early part of March about signing the Interim Agreement
On the last occasion Davis asked why he had to sign an
agreement since in the past he had always signed the same
agreement as was signed between the A G.C. and the Union or
paid the benefits provided therein retroactive to the effective
date without signing an agreement. Posey said that this time
Mr. Johns, the president of the Union, had decided that all
contractors would have to sign an interim agreement and that
any contractor which did not sign the agreement would have
its jobs picketed. This time Davis signed the Interim Agree-
ment
No agreement was reached between the A.G.C and the
Union by April 1, and the Union picketed the jobs of
employers who had not signed the Interim Agreement. The
Respondent's jobs were not picketed at this time.
On April 19, 1967, the A.G.C., the Council and the Union
signed a new 3-year trade agreement which was made
retroactive to April 1, 1967. Included in the contract was
Article XVII, which covers "Contracting and Sub-contracting."
In this article, in words almost identical with those contained
in the July 6, 1966 subcontracting agreement between the
A G.C., the Council, and its affiliated local unions, the parties
adopted the subcontracting provisions of the July 6, 1966,
agreement, except that for the period commencing on July 1,
1967, the applicability of the subcontracting provision was
limited to jobs on which the general contractors' contract
figure exceeded $500,000. (In the July 6, 1966, A.G C -
Council agreement the subcontracting provisions for this
period applied to all jobs "without regard to the dollar amount
of the contract ") In Article XVII, general contractors whose
contracts were in excess of the dollar limitations stated above
bound themselves "with respect to work to be done at all sites
of construction"
not to sublet, assign or contract out any work which is of
the type normally performed under the jurisdiction of the
various local trades unions which at the date of the
subletting, assigning or contracting out of the work are
affiliated with . the Council, to any person, firm corpora-
tion, contractor, employer or association which does not
have in effect a signed collective bargaining agreement with
a local trade union affiliated with said Council which
represents the employees engaged in the performance of
such work.
On July 26, 1967, the A.G.C. and the Council entered into
an Amendment Agreement which revised Articles III and IV of
the July 6, 1966, A.G.C -Council agreement to bring them into
conformity with the corresponding articles of the 3-year trade
agreement entered into by the A G.C and the Council on April
19, 1967. This agreement named the employer-members of the
A.G C who were covered by the agreement and recited that
the Council was acting "on behalf of itself and its affiliated
local unions."
In April, after the execution of the new 3-year trade
agreement between the A G.C., the Council, and the Union,
the Union sent the Respondent a copy thereof naming the
Respondent as a party of the agreement, and requested that
the Respondent sign it. Later in April, Business Agent Posey
inquired of President Davis if he had received a copy of the
agreement. Davis replied that he had, and to quote Davis,
.. I said that there were things in there that I have been
fighting all these years and I just can't live with and I just
can't sign .. .
On September 6, 1967, Benjamin Catterton, the president
of the Union, called President Davis and asked him to sign the
new 3-year trade agreement Davis refused, saying that he
could not accept the subcontracting clause, but offered to call
Catterton back on the following Friday, September 8, after
consulting with his son, an official of the Respondent, and also
his attorney. Davis called Catterton back on Friday and told
3 This full text of the Interim Agreement is as follows
INTERIM A GREEMENT
THIS AGREEMENT is made and entered into by and
between
hereinafter referred to as the Contractor , and Local Union No 101
of the United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, hereinafter referred to as the Union.
WHEREAS, the collective bargaining agreement that exists
between the Union and The Baltimore Builders Chapter Of The
Associated General Contractors Of America, Inc., hereinafter re-
ferred to as the A G.C., will terminate on March 31 , 1967, and
WHEREAS, the Union and the A.G.C. are negotiating in an
effort to reach an agreement on a new collective bargaining
agreement but no agreement has yet been reached, and
WHEREAS, the collective bargaining agreement between the
Union and the A G.C traditionally sets an area pattern for those
phases of the construction industry in which the Contractor and
Union are engaged, and
WHEREAS, in the past, the Contractor has accepted and adopted
the collective bargaining agreement negotiated between the A G C.
,and the Union as the collective bargaining agreement between the
Contractor and the Union.
THEREFORE, in the light of the foregoing and in consideration
of the Union continuing to furnish qualified journeymen and
apprentices to the Contractor and not taking strike action against
the Contractor notwithstanding any strike action the Union may take
against the A G C., the parties agree as follows
I The Contractor agrees to pay the existing scale of wages
and existing fringe benefits, and observe all other terms and
conditions in the collective bargaining agreement in effect
between the Contractor and the Union at the present time, until
the consummation of a new agreement between the Union and
the A G C
2 Upon the consummation of said new agreement between
the Union and the A G.C , the Contractor agrees to pay the scale
of wages, fringe benefits and observe all other conditions of
employment established in said new agreement for the duration
of that agreement Said wages, fringe benefits and other
conditions of employment provided in said new agreement shall
be paid and provided by the Contractor retroactively to April 1,
1967, that is, the increase of the new scale of wages and fringe
benefits over the old scale shall be paid by the Contractor to his
employees for the work performed in said interim period so that
all work performed on and after April 1, 1967, shall be
eventually paid for at the new scale of wages and fringe benefits
The same shall be true of all other conditions of employment
which are capable of being applied retroactively.
3. The Contractor will sign and adopt the collective bargain-
ing agreement eventually consummated by the Union and the
A.G C. when the Union presents it to the Contractor for signing
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him that he had consulted his attorney and that he could not
sign the agreement because of Article XVII , the subcontracting
provision.
On the following Monday the Union commenced picketing
at least one of the Respondent's jobs.
C. The Contentions of the Parties,
Conclusions
The General Counsel urges that since the Respondent signed
the Intenm Agreement, it was obliged, by virtue of the
undertakings therein contained, to sign the agreement which
was reached by the A G.C. and the Union on April 19, 1967.
Its refusal to do so, the General Counsel contends, constitute a
refusal to bargain collectively in good faith with the Union, in
violation of Section 8(a)(5) and (1) of the Act. The General
Counsel relies mainly on that portion of Section 8(d) of the
Act which, in defining the scope of the duty to bargain
collectively in good faith, includes as one of the obligations of
the parties "the execution of a written contract incorporating
any agreement reached if requested by either party." While
recognizing that other forums have jurisdiction to pass upon
the scope and extent of the contractual obligations flowing
from the Respondent's execution of the Interim Agreement,
the General Counsel contends that the Respondent's conduct
is of such a character as to warrant the Board in asserting
jurisdiction and issuing a remedial order requiring the Respon-
dent to sign and honor the agreement reached by the Union
and the A.G.C. on April 19, 1967.
The Respondent, by its president, asserts its willingness to
sign the 1967 A.G.C.-Union trade agreement, if only Article
XVII, the subcontracting clause, is eliminated, and argues that
construing the Interim Agreement as a whole it is a reasonable
conclusion, that the parties thereto did not contemplate
including a provision binding the Respondent to use union
subcontractors exclusively In support of this argument the
Respondent cites the fact that the first two clauses of the
Interim Agreement involve primarily "wages and fringe bene-
fits" which affect the compensation of the Respondent's
carpenters and apprentices-paragraph 1 obliging the Respon-
dent to continue the existing scale of wages and fringe benefits
pending the execution of the new agreement, and paragraph 2
binding the Respondent to pay the wages, fringe and other
benefits agreed upon in the new agreement "retroactively to
April 1, 1967," the expiration date of the 1964-1967
agreement. The Respondent also notes the fact that the first,
third, and fourth "Whereas" clauses refer to the past practice
of the parties in adopting A.G.C.-Union trade agreements and
to the "traditional" role of A.G.C.-Union agreements in setting
an area pattern. The Respondent argues from this that the
parties contemplated the negotiation of an agreement between
the A.G.C. and the Union "of the same nature and quality as
the agreements negotiated between them in the past and
adopted in the past" by the Respondent
The Respondent also contends, in view of the background
of its relations with the Union and its repeated refusals of
requests to assume subcontracting obligations of the kind
4 During one or the other of these conversations with Catterton,
Davis brought up the matter of the failure of his carpenters and
apprentices to sign dues checkoff authorizations , as required by the
agreement , as a consequence of which he was unable to check off the
union dues of one cent per hour worked , in accordance with Article XX
of the contract.
provided in Article XVII, that to find that the Respondent's
refusal to sign the 1967 trade agreement constitutes a refusal
to bargain collectively in good faith would be "a subversion of
the collective bargaining process and a disregard of the real
purposes of Section 8(a)(5) "
The Respondent makes the further argument that under the
ordinary principles of contract law the Interim Agreement is
not enforceable against it because of its mistake of fact-the
fact that a subcontracting clause was or would be a subject of
discussion in the 1967 negotiations-which, if known to the
Respondent, would have vitally affected its decision to enter
into the Interim Agreement. In view of the Respondent's
repeated refusals of requests to sign subcontracting clauses like
that contained in Article XVII, so the argument goes, the
Union must have been aware of the Respondent's mistake of
fact, and in these circumstances the Union's nondisclosure is
not privileged, and renders the Interim Agreement voidable In
support of this argument the Respondent cites Restatement of
the Law, Contracts, American Law Institute, Sections 472(b)
and (e), 476(1), 479, and 505 s
Consideration of the foregoing contentions requires a brief
summary of certain undisputed background facts The Respon-
dent has bargained collectively with the Union as the statutory
bargaining representative of its carpenters and apprentices
since the early 1950's. Throughout the years the Respondent
has either had contracts with the Union covering its carpenters
and apprentices or has strictly adhered to the terms of the
contracts negotiated between the A.G.C and the Union The
Respondent has made payments covering its carpenters and
apprentices into the Union's Health and Welfare Fund since its
inception in 1956. In 1955, the Respondent, at the request of
the Union, adopted the policy of using union subcontractors
exclusively and continued this policy well into 1957. However,
the Respondent found itself losing so much money as a result
of following this policy that it abandoned the policy in 1957
There is no suggestion in this record that the Respondent in its
many years of dealing with the Union has not conducted its
labor relations strictly in accordance with the mandate of the
statute
Up until the signing of the Interim Agreement, none of the
trade agreements negotiated between the Union and the
A.G.C. had contained any provision regarding subcontracting
In late 1964 the Union and other locals affiliated with the
Council requested contractors to sign a side agreement called
the Pinpointing Agreement, in which they agreed to limit
subcontracting on certain jobs to union subcontractors. In
June and July 1966, the Council, acting on behalf of itself and
the Union, among others, requested contractors to sign a new
supplemental agreement further limiting subcontracting. While
many general contractors signed, the Respondent refused. Late
in July the Council picketed two construction sites on which
the Respondent was the general contractor On several
occasions in August 1966 Business Agent Posey of the Union
urged Davis, the Respondent's president, to sign the July 6,
1966, subcontracting agreement but Davis refused, saying that
it would put him out of business.
This was the situation when Business Agent Posey ap-
proached President Davis in late February or early March 1967
5 The Respondent also makes other technical arguments based upon
the nature of the Union's demand for bargaining and the alleged
inclusion in the appropriate unit of supervisors . In view of my ultimate
conclusion herein it is unnecessary for me to reach these contentions.
INDUSTRIAL ENGINEERING CO.
and threatened to picket the Respondent's jobs unless Davis
signed the Interim Agreement. Posey said nothing about a
subcontracting clause being under discussion in the negotia-
tions. The subcontracting provisions of the July 6, 1966,
agreement between the Council and the employer signatories
thereto were then in effect and still had more than 2 years to
run As indicated above subcontracting clauses had never been
included in past 3-year trade agreements between the A.G.C.
and the Union, which the Respondent had signed or adopted
in the past.
The basic question before me in whether in these circum-
stances the Board should step in and require the Respondent
to agree to a contract provision obliging it to limit its
subcontracting to union subcontractors, and thereafter police
the Respondent's compliance with this provision. For this is
what the General Counsel asks in this case-that the Respon-
dent "sign and honor the collective-bargaining agreement
negotiated between the A G.C. and the Union covering the
period from April 1, 1967, through March 31, 1970."
In my opinion, the Board should stay its hand in this case.
While the General Counsel regards that portion of Section 8(d)
of the Act requiring the "execution of a written contract
incorporating any agreement reached" as compelling a finding
of a refusal to bargain in this case, I do not regard it as
necessarily being applicable to the instant situation. For this
provision in my opinion contemplates a consciously arrived at
understanding and a refusal thereafter to reduce it to writing.
That plainly is not the situation here. President Davis
obviously had no idea that the A.G.C. and the Union, contrary
to past practice, would seek to incorporate in the regular
3-year trade agreement the subcontracting provisions which
were already in effect by virtue of the July 6, 1966,
supplemental agreement While Davis may not have exercised
the best judgment in signing an agreement which was
susceptible of being construed as a wide-open commitment io
sign whatever agreement was reached between the Union and
the A G.C., there can be no doubt that Davis in signing the
Interim Agreement did not contemplate agreeing to limiting
subcontracting to union subcontractors. The Union knew that
Davis had repeatedly refused to agree to such a subcontracting
provision previously, and had refused even when faced with
the threat of picketing of the Respondent's jobs by the
Council, a threat which the Council actually carried out. Thus
the Union had amply basis for anticipating that Davis would
not have signed the Interim Agreement if the possibility of
including a subcontracting clause in the final agreement had
been broached at the time the Interim Agreement was signed
Plainly there was no meeting of the minds between the
Union and the Respondent on the subcontracting issue at the
time the Interim Agreement was signed. The Union's effort to
use the Interim Agreement which Davis had unwittingly signed
as the means of obtaining the one provision which the Union
knew the Respondent had steadfastly refused to grant to it in
collective bargaining in the past hardly reflects the good faith
81
which the Act requires of parties to the collective bargaining
process It should be noted that we are not concerned here
with a recalcitrant employer who is acting in bad faith but one
who through the years has bargained in good faith with the
Union as the exclusive representative of its carpenters and
apprentices, and which stands ready today to fulfill the
commitment which it thought it was making when it signed
the Interim Agreement, that is by signing the A.G.C -Union
agreement, omitting only Article XVII, the provision limiting
subcontracting to union subcontractors.
The Respondent points out, and I think it is worthy of
note, that a subcontracting provision such as is contained in
Article XVII is inconsistent with the scheme of the Act as a
whole and would be illegal under Section 8(e) of the Act in
any business or industry other than the construction industry
and the apparel and clothing industry. Such provisions are
lawful in collective bargaining agreements in these industries
only by virtue of special exceptions written into Section 8(e)
of the Act. The fact that the only provision involved herein is
one which cannot be reconciled with the basic policy of the
Act of assuring to employees a free choice of representatives,
in my opinion, merits consideration in deciding whether the
Board should make available its processes to enable the Union
to obtain and enforce contract provision which it had
theretofore been unable to secure through genuine face-to-face
good-faith collective bargaining.
I have considered the numerous decisions of the Board and
the Courts which have been cited to me by the parties, but I
find none of them controlling on the unusual facts of this case.
As indicated above, other tribunals are available in which the
Union can obtain a legal determination of the extent of the
Respondent's obligations under the Interim Agreement Under
all the circumstances I conclude that the Board should not
permit its processes to be utilized by the Union to enable it to
saddle the Respondent with a contract provision limiting its
choice of subcontractors in a way which the Respondent
sincerely believes will put it out of business. To do so, in my
opinion, would subvert rather than effectuate the policies of
the Act. Compare J & H Food, Inc., 139 NLRB 1398, and
Indiana Limestone Company, Inc., 136 NLRB 697, which are
cited with approval in Retail Clerks Union No. 1550 v.
N.L R.B., 330 F.2d 210 (C.A.D.C.), cert. denied 379 U.S. 828.
See also Genesco, Inc. v. Joint Council 13, United Shoe
Workers of America, AFL-CIO, 341 F.2d 482,488-489 (C.A.
2)
Accordingly, my Recommended Order will direct the
dismissal of the complaint in its entirety.
Upon the foregoing findings and conclusions and the entire
record, and pursuant to Section 10(c) of the Act, there is
hereby issued the following
RECOMMENDED ORDER
The complaint herein is hereby dismissed in its entirety