Walls and Ceiling Contractors

National Labor Relations Board - Board Decisions

Dec 5, 1977

233 N.L.R.B. 954 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Walls and Ceiling Contractors Association
affiliated with the Builders Association of Eastern
Ohio and Western Pennsylvania, Inc. and Wood,
Wire and Metal Lathers International Union,
AFL-CIO, Local No. 28. Case 8-CA-10321
December 5, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On July 26, 1977, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except that the
remedy is modified so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977).2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, The Walls and
Ceiling Contractors Association affiliated with the
Builders Association of Eastern Ohio and Western
Pennsylvania, Inc., Vienna, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge: This
case was heard at Youngstown, Ohio, upon a complaint
issued by the Regional Director for Region 8 on September
9, 1976, which complaint is based upon a charge filed on
July 26, 1976, by Wood, Wire and Metal Lathers
233 NLRB No. 140
International Union, AFL-CIO, Local No. 28, herein
called the Lathers or the Charging Party. The complaint
alleges, in substance, that The Walls and Ceiling Contrac-
tors Association affiliated with the Builders Association of
Eastern Ohio and Western Pennsylvania, Inc., herein
called the Respondent, has violated and is violating Section
8(a)(5) and (1) of the Act by refusing to execute a written
collective-bargaining agreement submitted by the Lathers,
the terms of which agreement had been orally agreed to by
the officers and agents of the Respondent who had also
orally agreed to execute the said agreement when reduced
to writing.
The Respondent's duly filed answer denies the commis-
sion of any unfair labor practices and alleges affirmatively
that the Lathers has submitted to the Respondent a
collective-bargaining agreement containing terms and
conditions not agreed upon by the parties, and, also, in the
alternative, denies that the parties reached an agreement
upon all the terms and conditions as alleged in the
complaint. Thus, the issues are drawn.
Upon full consideration of the contentions and argu-
ments of the parties in their duly submitted posthearing
briefs, and upon my observation of the witnesses as they
testified, and the entire record in the case, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a nonprofit Ohio corporation with
approximately 350 members, maintains its principal office
in Vienna, Ohio, where, among other things, it is engaged
on behalf of its members in collective-bargaining negotia-
tions with the Lathers and other unions on matters
pertaining to wages, hours, and other conditions of
employment and in executing such collective-bargaining
agreements reached for and on behalf of its members.
During the course of a typical year, the members of the
Respondent, either individually or collectively, in the
course of their respective business operations annually
derive gross revenues in excess of $50,000 for goods
shipped out of, or services furnished directly outside of, the
States in which such members are located (Ohio and
Pennsylvania).
It is admitted, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Lathers is a labor
organization within the meaning of Section 2(5) of the Act.
In connection therewith, it is admitted, and I find, that the
following employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All journeymen lathers and apprentice lathers, em-
ployed by employers who comprise The Walls and
Ceiling Contractors Association affiliated with the
Builders Association of Eastern Ohio and Western
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THE WALLS AND CEILING CONTRACTORS ASSN.
Pennsylvania, Inc. excluding all professional employ-
ees, guards and supervisors as defined in the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
The Lathers and the Respondent have maintained a
bargaining relationship for some years prior to the
incidents herein. Their most recent collective-bargaining
agreement executed and effective May 1, 1972, remained in
full force and effect until May 1, 1975. Among other things,
this collective-bargaining agreement recognized the Lath-
ers as the collective-bargaining agent of the employees of
the members of the Respondent in the unit above
described.
Historically, the approximately 25 or 26 separate build-
ing and construction trade unions with which the Respon-
dent negotiates have had contracts which expire, with but
few exceptions, on April 30 of the contractual expiration
year. In 1975, all but the Ironworkers contract, and
perhaps some others not here involved, expired on April 30
and, on May I of that year, all of the trade unions not
having a renewed contract went on strike. During this
period of time, both before and after the expiration of the
contracts and the ensuing strikes, the Respondent set about
negotiating with the various unions. During the 1975
negotiations, the Lathers, among other positions, desired to
establish an increase for its members' hourly rate because
their rates had fallen behind that of the Carpenters.'
Accordingly, the Lathers desired to catch up with the
Carpenters and the Respondent's negotiators were willing
to have them do so.
During the negotiations with the various unions, in the
period following the expiration of the contracts on April
30, 1975, one of the first unions to come to agreement with
the Respondent was the Carpenters whose representatives
thought they had reached an agreement with the Respon-
dent on July 3, 1975. The settlement with the Carpenters
union included, among other matters not here material, a
65-cent-per-hour increase plus provisions for wage reopen-
ers on the anniversary dates of May 1, 1976, and May 1,
1977. Included in this reopener provision was a so-called
"Me too" clause, which was proposed by the Respondent's
negotiators, which would guarantee to the Carpenters
increases on those dates equal to increases the Respondent
had settled with other trade unions. This so-called "Me
too" clause and the wording thereof and its implications
are important inasmuch as they basically constitute the
issues in the current case inasmuch as the Lathers business
representative and their other negotiators claim that they
were promised and they agreed to accept the same "Me
too" clause offered to the Carpenters. However, as will
hereinafter be related, the "Me too" clause of the
Carpenters has never resulted in a written agreement with
the Carpenters by reason of the fact that sometime
subsequent to July 3, 1975, the Carpenters ultimately
entered into a joint contract with the Respondent along
with other building trade unions for which the Building
I take notice of the many jurisdictional dispute matters which have
come before the Board and vanous other agencies for the settlement of such
disputes between the Carpenters and the Lathers because the work which
Trades Council negotiated. The Carpenters accepted and
became part of the group for which the Building Trades
Council negotiated and became parties to that later agreed
upon collective-bargaining agreement with the Respon-
dent.
The initial meeting toward a new contract between the
Respondent and the Lathers took place on March 24, 1975.
A number of bargaining sessions ensued. The Respon-
dent's bargaining team was headed by Laird Smith, the
Respondent's wage chairman for the Lathers and Plaster-
ers, who also sits on the Carpenters negotiating team for
the Respondent, and who also is a member of the
Respondent's wage policy committee. Smith was assisted
by John Logue, a staff representative for labor relations of
the Respondent whose duty, among other things, was to
keep and maintain notes and minutes of the negotiations.
Negotiating for the Lathers were James Cessna, business
agent, and, among others, Mark Thompson, a member of
the Lathers negotiating committee.
At the sixth meeting between these individuals on August
14, 1975, Laird Smith proposed to Cessna, Thompson, and
the Lathers' negotiating committee that the Union would
receive an increase of 65 cents an hour plus, on December
I, 1975, the difference between that 65 cents and the
average of the settlements negotiated by the Respondent
with the Bricklayers, Cement Masons, Plasterers and
Roofers. Additionally, Smith, for the first time, offered a
"Me too" clause to the Lathers. The minutes, kept by
Logue, of that August 14 meeting state "Effective May 1,
1976 the Lathers would receive equal to the best settlement
made by the Builders Association. A provision as agreed to
with the Carpenters that provides for no strike. The money
to be received retroactive to May 1, 1976, the same to apply
on May 1, 1977. Management stated that they would want
the Union to vote on this and report the results of the vote
on Tuesday, August 19."
After this offer was made to the Lathers, the latter held a
caucus and returned to the meeting with a counterproposal
which offered 90 cents to be received by the Lathers to
return to work, the average of the Bricklayers, Cement
Masons, Plasterers and Roofers, and any difference to be
made up the month following any settlement made with
those unions, and on May 1, 1976, a provision for wage
increases like the Carpenters (probably referring to the
Carpenters "Me too" clause). Additionally, if management
would accept, the committee would recommend it for a
vote. The representatives of the Respondent refused to
accept the Lathers 90-cent proposal and asked that the
Lathers representatives have their members take a vote on
Respondent's 65 cents and the proposed "Me too" clause,
as related above.
Thereafter, at a meeting of its 20 or so members, the
Lathers voted down the Respondent's proposal.
The next meeting between the Respondent's negotiating
team headed by Smith, and the Lathers negotiating team
headed by Cessna, took place on September 4, 1975, at the
Respondent's headquarters in Vienna, Ohio. After some
discussion of what had occurred earlier, and after the
they perform, in some respects, is quite similar and there have been disputes
over the years as to which of the two unions should be assigned certain
work.
955
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's negotiator, Smith, reminded the Lathers that
many of its jobs had been changed because of the increased
use of drywall by reason of the strike, he felt that the 65-
cent offer was a good one. Cessna reminded Smith,
however, that the Roofers was settling for $1.05 and that
the Bricklayers had gone up to a 90-cent-increase over their
previous wage rate. Thereafter a caucus was requested.
Following the same, Smith proposed a 75-cent increase for
the Lathers to return to work and, following settlement of
the Roofers, Cement Masons, and Bricklayers contracts,
that those settlements be averaged and the Lathers receives
the difference between the 75 cents and that average 30
days following such settlements. It should be noted that the
"Me too" clause proposal was not particularly discussed at
that meeting, but there is no disagreement that the parties
intended to include the same also in Respondent's offer.
After a caucus by the Lathers, the parties agreed to a 78-
cent increase immediately for the Lathers to return to
work, and then the averaging of the Bricklayers, Roofers
and Cement Masons contracts, as set forth above, 30 days
following the settlements with those other unions. The
Lathers agreed to take the proposal back to its members.
On September 5, the Lathers members voted to ratify the
contract and as a result thereof returned to work on
September 8, as their business agent, Cessna, and the
members felt that there was complete agreement on both
the present wage structure and future increments pursuant
to the "Me too" clause.
The Lathers having returned to work, on November 6,
1975, the Respondent submitted to Lathers business agent,
Cessna, galley sheets of the proposed agreed-upon contract
between the parties which had been reached on September
4. However, this written document did not provide for any
future wage provisions or, most important, the "Me too"
clause, providing only for the agreed-upon increase of 78
cents for 1975 which had been reached on September 4.
Upon receipt of these galley sheets, Cessna called Logue,
who had been a conegotiator with Smith on behalf of the
Respondent during the Lathers negotiations. When the
omission was called to Logue's attention, he informed
Cessna that there was a dispute between the Respondent
and the Carpenters negotiating committee with regard to
the "Me too" clause. Logue informed Cessna that, when
the Carpenters "Me too" clause dispute was resolved, the
Respondent and the Lathers would draw up the same
agreement. Thus the matter remained unresolved at that
time. Cessna again called Logue at the end of January
1976. In this later conversation, Cessna stated that he
wanted an agreement signed incorporating all of the wage
proposals including the "Me too" clause. At this time
Logue informed Cessna that as far as Logue was concerned
the agreement reached in September was a legitimate
agreement.2
However, no final resolution of the matter ensued and no
further documents were passed between the parties or
discussed between them until April 19, 1976, when, at the
request of the Lathers, the Respondent and the Lathers met
to discuss, once again, the terms of the new proposed
agreement.
2 All of the foregoing narrative is based upon credited portions of the
testimony of Smith, Logue. Cessna. and union negotiating committee
member Mark Thompson, conflicts of testimony having been resolved.
At that lengthy meeting, the parties reviewed the entire
preceding negotiations and, at the meeting, the Respon-
dent's representatives informed the Lathers representatives
that during the intervening period the Respondent had
reached an agreement with the Building Trades Council
and that a number of resulting agreements had been
reached or were subject to ratification by the various
building trades locals, among them the Carpenters. Cessna
and the other representatives of the Lathers informed the
Respondent's representatives that the Lathers were com-
pletely unaware that any agreements had been reached
and, in any event, the Building Trades Council was not
authorized to negotiate on behalf of the Lathers. Cessna
further stated that any agreement reached between the
Respondent and the Building Trades Council was in no
way binding upon the Lathers.
After a caucus, the Lathers representatives informed the
Respondent's representatives that the Lathers was taking
the position that the proposed "Me too" clause, as the
Lathers understood it, and which the Lathers insisted had
been proposed and agreed upon by the Respondent, would
entitle the Lathers to receive an increase equal to the
highest increase given to any union by the Respondent or
its members at any time during the year 1976 rather than
by a cutoff date of May 1, 1976, the date which the
Respondent insisted was the last date upon which any raise
to the Lathers of its hourly rate could be fixed in
accordance with Respondent's August 4, 1975, proposal
and that any raises to the Ironworkers, who was seeking a
catchup increase after that date, would not be applicable to
the Lathers under the proposed "Me too" clause. The
meeting then broke up without any agreement being
reached, but the parties agreed to a further meeting to be
held sometime around May 1, 1976, to further discuss the
contract.
The next meeting was held on May 4, 1976. Again, the
same matters were discussed. The Respondent's represen-
tatives informed the Lathers representatives that the
agreement reached with the Building Trades Council had
been voted on and accepted by the Carpenters and all the
other trades with the exception of the Structural Ironwork-
ers. Again it was explained by the Respondent that the
Ironworkers strike was not settled because it was over the
amount of the catchup adjustment to which the Ironwork-
ers insisted they were entitled and which the other trades
recognized as legitimate. In addition, the Respondent's
representative read a letter received from the Carpenters
District Council notifying the Respondent that the Carpen-
ters had accepted the Building Trades Council contract.
Additionally, a letter received from the Building Trades
Council was read and it was noted by Respondent's
representatives that the Lathers was not specifically
excluded in that letter from the Building Trades Council's
negotiations with the Respondent. The Respondent's
representatives asserted the position that the Lathers was
included in the Building Trades Council's negotiations
because the Lathers did not specifically notify anyone in
either the Building Trades Council or the Respondent that
the Council was not negotiating for the Lathers even
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THE WALLS AND CEILING CONTRACTORS ASSN.
though Lathers was a member of the Council. The matter
was evidently argued back and forth, with the Lathers
insisting that the Building Trades Council was not
authorized to negotiate on its behalf, nor was Lathers
aware of the Building Trades Council's negotiating situa-
tion.
After a caucus, the Lathers representatives stated that
they would take the entire matter back to the members and
would like to meet with the Respondent after the Respon-
dent settled with the Ironworkers, indicating thereby that
they were maintaining their position that they should
receive an hourly increase during 1976 equal to whatever
increase in hourly rate the Ironworkers received pursuant
to what the Lathers insisted was the negotiated and agreed-
upon "Me too" clause.
During this period in 1976, the Lathers had advised its
attorney with regard to the content of the wage rate
increase proposal and the "Me too" clause, which had been
voted on and accepted by the Lathers membership after the
meeting of September 4, 1975. Accordingly, pursuant to
instructions of the Lathers, its counsel on June 14, 1976,
forwarded, with an enclosing letter, a copy of the
agreement containing the Lathers version of the "Me too"
clause. This agreement, which was, in reality, an addendum
to the galley sheet copy of the agreement which had earlier
been furnished by the Respondent, contained, among other
things, a "Me too" clause as follows:
It is agreed that the economic increase to be imple-
mented on May 1, 1976 and May 1, 1977 will be the
highest economic settlement obtained by any building
trades craft union negotiated in 1976 with the Builders
Association of Eastern Ohio and Western Pennsylva-
nia. It is further agreed that the increase implemented
will be retroactive to May 1, 1976, should the
settlement be reached within 90 days of such date. If an
agreement is not reached within such period, the
negotiated economic increase will be implemented
retroactively for 90 days only.
On July 22, 1976, the Respondent, through its counsel,
informed Lathers counsel that the addendum prepared by
Lathers counsel did not reflect precisely the terms which
the parties had agreed upon. Respondent's counsel at-
tached to his letter to Lathers counsel the Respondent's
interpretation of the "Me too" clause, the pertinent part
which reads as follows:
It is agreed that the economic increase to be imple-
mented on May 1, 1976 and May 1, 1977 will be the
highest economic settlement to become effective on
May 1, 1976 for the contract year starting May 1, 1976
and to become effective on May 1, 1977 for the
contract year starting May i, 1977 obtained by any
building trades craft union with the Builders Associa-
tion of Eastern Ohio and Western Pennsylvania. It is
further agreed that the increase implemented will be
retroactive to May 1, 1976, should a settlement be
reached within 90 days of such date. If an agreement is
not reached within such period, the negotiated econom-
ic increase will be implemented retroactively for 90
days only.
In connection with all of the foregoing, at the hearing
herein, James Moore, executive secretary of the Carpenters
District Council, testified as to that Council's negotiations
with regard to the "Me too" clause which was originally
negotiated between the Carpenters District Council and
the Respondent, although with a different set of Respon-
dent's negotiators. Moore identified what had been drafted
by the Carpenters District Council as the negotiated "Me
too" clause, which draft had been submitted to, and
rejected by, the Respondent before the Respondent
reached agreement with the Building Trades Council,
which latter agreement the Carpenters District Council
ultimately executed and dropped its originally negotiated
"Me too" clause. The draft of the "Me too" clause of the
Carpenters District Council, which was received in evi-
dence, is strikingly similar to the "Me too" clause insisted
upon by the Lathers as having been negotiated by the
Respondent's representatives and agreed to by the parties
at the Lathers and Respondent's negotiating meeting of
September 4, 1975. The Carpenters "Me too" clause was
identical in many respects to the "Me too" clause
submitted by the Lathers counsel to the Respondent in
June 1976. This "Me too" clause which was rejected by the
Respondent but which Moore testified was originally
agreed to between the Carpenters negotiators and the
Respondent's negotiators reads as follows:
May 1, 1976. It is understood by the parties (union and
management) that the Builders Association of Eastern
Ohio and Western Pennsylvania will direct its members
and all employers who subsequent to July 9, 1975,
becomes signatory to the collective-bargaining agree-
ment, to pay to the Carpenters, Flooring Mechanics,
Millwrights, and Piledrivers, as a wage increase in an
amount equal to the highest hourly increase paid in
1976 to the Bricklayers, Cement Finishers, Plasterers,
Glaziers, Laborers, Latherers, Marble, Tile and Terraz-
zo Workers, and Structural Ironworkers.
1977 to 1978 wage increase. May 1, 1977. The same
provisions will apply in this period as applied in 1976
except that the Operating Engineers and Painters will
be added to the list of crafts upon whom the increases
will be calculated, to be effective on May 1, 1977.
It should be noted that in the foregoing "Me too"
provision, as submitted by the Carpenters District Council,
and signed by its representatives, there is no cutoff date for
applicable wage rate increases. The similarity to the "Me
too" provision, which the Lathers contend they agreed to
with the Respondent, is thus established.
B. Contentions, Discussion, and Conclusions
Essentially, the issue is what was actually offered and
accepted with regard to the wage rate increases for 1976
and 1977 as contained in the "Me too" clause or provision
negotiated by the parties on August 24 and September 4,
1976. The General Counsel and the Lathers maintain that
the economic increase to be implemented on May 1, 1976,
and May 1, 1977, would be the highest economic
settlement contained in any building trades craft union
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract arrived at any time during 1976 and 1977 with the
Respondent. The Respondent, on the other hand, main-
tains that the economic increase to be implemented on
May 1, 1976, and May 1, 1977, would be the highest
economic settlement to become effective on May 1, 1976,
for the contract year starting May 1, 1976, and to become
effective May 1, 1977, for the contract year starting May 1,
1977, obtained by any building trades craft union with the
Respondent. Although a quick reading of the foregoing
would seem to indicate that there is, in fact, little difference
between the two contentions of what was negotiated and
agreed upon by the parties on September 4, 1975, the
impact of the slight differences in wording are very
significant, the General Counsel and Lathers version fixing
the Lathers wage rate increase by tying it to the Ironwork-
ers increase which came or would come subsequent to May
1, 1976. This, on top of the other increases to the Lathers,
would give its members a significantly greater hourly wage
rate increase than any of the other building trades unions
with which the Respondent negotiates.
On the other hand, the version of the "Me too" clause
the Respondent maintains to be the true version of what
actually was negotiated by the Respondent and Lathers
would provide, as a cutoff date in 1976, the date of May I,
and the same day for cutoff in 1977. This would equalize
the wage rate increases for the Lathers with the other
building trades unions and, therefore, would give the other
building trades unions no reason to feel that the very small
20-member Lathers Union had been given and was being
given preferential treatment which exceeded that given to
the other unions. The thrust of the Respondent's argument,
in this respect, would be that it could easily destroy the
credibility of the Respondent as an organization for
dealing with all of the building and construction trades
unions on a fair and equable basis.
Of course, as is the usual case, each party contends that
the witnesses of the opposing party should not be credited
and that what was offered by the Respondent on August 24
and agreed to on September 4 was each party's particular
version, that its witnesses gave an exact account of what
occurred and, accordingly, what was the actual "Me too"
clause agreed upon. Thus, at the outset, there is presented a
credibility issue which must be resolved.
At first blush, considering my observation of both
Cessna, chief witness for the General Counsel, and Smith,
chief witness for the Respondent, there would be little to
choose from because their direct testimony, for the most
part, is straightforward and lacking in contradiction.
Additionally, both of these individuals comported them-
selves on the witness stand in a manner which did not
readily lend an impression that either of them was telling
less than what they thought to be the truth of the matter.
Both counsel for the General Counsel and counsel for the
Respondent, in their respective briefs, point out that on
cross-examination, with regard to certain aspects of the
negotiations and most especially the areas connected with
the "Me too" clause, the answers of each seemed somewhat
vague, hesitant, and, perhaps, unknowledgeable. However,
a careful reading of the cross-examination of both of these
individuals, although revealing some slight lack of defini-
tiveness in answers to certain questions, does not provide a
means for disposing of the general question of which was
testifying the more accurately with regard to the matters in
question. Therefore, it becomes necessary to balance their
testimony on the basis of the supportive testimony of other
witnesses and on the basis of what would seem to be the
more logical reasons for crediting one version over the
other.
Regarding the Respondent's contention that the Respon-
dent had legitimate cause to believe that the Building
Trades Council was negotiating on behalf of the Lathers,
heretofore not mentioned is the testimony of Calvin
Malone, chairman of the Building Trades Council Com-
mittee, who participated in the negotiations on behalf of
the Building Trades Council in the joint negotiations with
the Respondent. Malone credibly testified on direct
examination that all of the member unions of the Building
Trades Council received notices of the negotiating sessions
and that the Ironworkers did affirmatively declare itself not
to be a party to those negotiations. Although Malone
admitted he did not attend all of the negotiating meetings
which resulted in the contract reached between the
Respondent and the Building Trades Council through the
coalition bargaining, he testified that he never saw a
representative of the Lathers at any of those bargaining
sessions, nor did he remember ever receiving any notifica-
tion, one way or the other, from the Lathers as to whether
the Lathers did or did not intend to be bound by the
Building Trades Council's negotiations with the Respon-
dent. However, Malone further admitted, on cross-exami-
nation, that he never made contact with the Lathers to
inquire if that union was going to be bound by the Building
Trades Council's negotiation with the Respondent. Nor
could he testify whether anyone else from the Building
Trades Council inquired of the Lathers whether that Union
intended to be bound by such negotiations. Accordingly, I
cannot find that the Lathers expressed to anyone during
the 1975-76 negotiations that it would be bound by, or that
the Lathers had any direct knowledge of, the details of that
series of negotiations.
Therefore, I credit the testimony of Cessna to the effect
that the Lathers neither had knowledge of the negotiations
between the Building Trades Council and the Respondent
nor that the Lathers had given the Building Trades Council
authority to negotiate on its behalf. Accordingly, I find and
conclude, on the basis of the foregoing, that Respondent's
contention that Lathers is bound by the terms of the
Building Trades Council contract is without merit.
The Respondent further maintains, as heretofore men-
tioned, that each of the parties to the negotiations between
the Lathers and the Respondent came away from the
August 24 and September 4, 1975, meetings with a different
idea as to what the import of the proposed "Me too" clause
offered by the Respondent actually was. Therefore,
according to the Respondent, there could not have been a
meeting of the minds. This being so, continues the
Respondent, there was no contract verbally agreed upon
and, accordingly, the Respondent cannot be held to have
bargained in bad faith when it refused to execute Lathers
version of the "Me too" clause submitted by Lathers
counsel. This contention would seem to hold water if,
indeed, the testimony of both Smith and Cessna were to be
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THE WALLS AND CEILING CONTRACTORS ASSN.
completely credited, because the direct result of such
crediting would be that, in fact, there had been no meeting
of the minds inasmuch as both parties came away from the
negotiations believing, sincerely, that the particular version
of the "Me too" clause which each now advances was the
version that was negotiated. Supporting this theory, also, is
the argument of the Respondent which would seem to be
that, of all the unions with which it dealt, the Lathers was
the smallest and its economic impact would be very slight
compared to that of the larger unions. Therefore, the
Respondent would not logically have offered to the
Lathers, by way of a "Me too" clause, greater economic
benefits than the Respondent offered to any of the large,
more powerful unions. Otherwise put, this contention
would seem to have weight in that to give a small union
consisting of only 20 members a better economic package
than any of the other 26 unions with which the Respondent
negotiates and contracts would, in effect, destroy the
credibility of the Respondent as an association for dealing
with these other unions.
However, despite the appeal to logic of the foregoing
argument, there is one factor upon which the entire
legitimacy of the Lathers claim turns and which, I
conclude, effectively negates the Respondent's foregoing
contention. Aside from all the other extensive testimony
and written documents introduced in evidence, there
remains the uncontroverted testimony of James Moore,
executive secretary of the Carpenters District Council, to
the effect that the "Me too" provision offered by the
Respondent to the Carpenters in July 1975 was, with no
material variation, the same as the version which Cessna
and Thompson testified was offered by the Respondent to
the Lathers on August 24 and September 4, 1975. The
written memorandum of agreement submitted by the
Carpenters to the Respondent, pursuant to the verbal
agreement arrived at between the Carpenters and the
Respondent, and signed by the Carpenters officials,
contains, almost word for word, the "Me too" provision
advanced by the Lathers through its counsel. The purport
of both these documents, the one identified by Moore, and
the one drafted and submitted by Lathers counsel, was that
each of these unions was offered by the Respondent for the
year beginning May 1, 1976, the best wage rate increase
offered any union during that year. Neither of these
documents indicates that there was a May I cutoff date, as
contended by the Respondent which would, in effect,
prevent either of these unions from receiving a wage rate
increase equal to any wage rate increase given to any
union, and most especially the Ironworkers, after May I,
1976, or May 1, 1977, depending upon which contract year
was involved.
While the record does not show in any detail the number
of members of the various locals comprising the Carpenters
District Council, the membership of that group must
certainly have been far in excess of the membership of the
Lathers Local, the Charging Party herein. Accordingly, it
must be concluded that the Carpenters exercised a much
greater economic force than did the Lathers. This being so,
the Respondent's implied argument, that it would never
3 See Local Unions Nos. 938, 978, 1082, 1119, 1182, etc. of the
International Brotherhood of Electrical Workers, AFL CIO (Appalachian
Power Conparny),. 200 NLRB 850. 850852 (1972).
have offered a comparatively weak, small union a better
economic package than it did the other unions, would seem
to be without merit because, upon the basis of the written
documents submitted in evidence, the Respondent did,
indeed, agree to give a strong union the same economic
package it offered the Lathers.
I find and conclude, therefore, that there was, indeed, an
offer made by the Respondent on August 24, 1975, a "Me
too" provision exactly in the form submitted by Lathers
counsel to the Respondent. I, therefore, credit Cessna in all
respects with regard to his testimony as to what occurred at
the August 24, 1975, negotiating session and further find
and conclude that, for whatever reason the Respondent
may have had, it refused to sign the written version of what
it had already advanced, offered, and agreed to with regard
to the "Me too" provision. It can only be conjectured as to
the Respondent's reasons for later reneging on what it had
already agreed upon. This, however, is what I find did
occur.
Also, in support of the foregoing finding is the fact that
the minutes kept by the Respondent's own representative,
Logue, with regard to the August 14 meeting, although not
as definite in language with regard to the "Me too" offer as
was contained in the Carpenters written submission or the
Lathers written submission, significantly, did not contain
any language supporting the Respondent's contention that
there was to be a May I cutoff date for the years 1976 and
1977. It is very possible, therefore, that, having offered both
the Carpenters and the Lathers a "Me too" clause
containing similar language, and later realizing that the
opening of the Ironworkers contract might increase the
amount to be realized by the Carpenters and the Lathers
would be greater than anything being offered to any of the
other unions with which it dealt, the Respondent then felt
that its negotiators had gone too far and decided, therefore,
to attempt to withdraw that upon which it had already
agreed. The economic necessity for such attempted
withdrawal is understandable.
Accordingly, I find and conclude that the Respondent,
by refusing to execute the collective-bargaining agreement
upon the terms to which it had orally agreed on September
4, 1975, has failed and refused to bargain in good faith with
the Lathers and has thereby violated Section 8(aX5) and (I)
of the Act.
Moreover, this conclusion would remain unchanged even
assuming that the Respondent here, through its negotia-
tors, both with the Carpenters and the Lathers, may not
have used words in their respective offers to those two
labor organizations which expressed their intended offer.
What may have been the Respondent's real or unexpressed
intention is immaterial.3
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section I11I
above, occurring in connection with the operation of the
Respondent herein, described in section I, above, have a
close, intimate, and substantial relationship to trade,
959
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent herein has
violated the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that the Respondent and Local Union No.
28 of the Lathers reached agreement on all provisions of a
contract, including the so-called "Me too" clause on
September 4, 1975, and that the said contract was ratified
by the members of the aforesaid Lathers Local on
September 5, 1975, it shall be recommended that the
Respondent be ordered to execute, sign, and give effect to
all the terms and conditions of said contract.
It shall further be recommended that the Respondent
make whole the employees of the Respondent's members,
in the unit found appropriate herein, for any loss of
benefits they may have suffered from September 5, 1975,
by reason of Respondent's failure to give effect to the said
contract, to the date of compliance with the Order as
recommended herein. All moneys to be paid to such
member-employees shall be computed on a quarterly basis
in the manner described by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), and bear interest at the
rate of 6 percent per annum in accordance with the
decision of the Board in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
I. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Lathers Local No. 28 is a labor organization within
the meaning of Section 2(5) of the Act.
3. The unit appropriate for the purposes of collective
bargaining is:
All journeymen lathers and apprentice lathers, em-
ployed by employers who comprise The Walls and
Ceiling Contractors Association affiliated with the
Builders Association of Eastern Ohio and Western
Pennsylvania, Inc., excluding all professional employ-
ees, guards and supervisors as defined in the Act.
4. By refusing to execute, sign, and give effect to the
contract agreed by the parties on September 4, 1975, and
ratified by the members of the aforesaid Local on
September 5, 1975, Respondent violated Section 8(a)(5)
and (1) of the Act.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
On the basis of the foregoing findings of fact, conclusions
of law, and the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following recommended:
ORDER 4
The Respondent, The Walls and Ceiling Contractors
Association affiliated with the Builders Association of
Eastern Ohio and Western Pennsylvania, Inc., Vienna,
Ohio, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to execute, sign, and give effect to the
contract agreed upon by the parties on September 4, 1975.
(b) Refusing to bargain in good faith with Wood, Wire
and Metal Lathers International Union, AFL-CIO, Local
No. 28, as the exclusive collective-bargaining agent of its
employees in the unit found appropriate herein.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
the aforesaid labor organization as the exclusive collective-
bargaining representative of its employees in the unit found
appropriate herein.
(b) Execute, sign, and maintain in effect all the terms and
conditions of the contract agreed upon between the parties
on September 4, 1975.
(c) Make whole the employees in the unit found
appropriate herein for any loss of benefits they may have
suffered by reason of the Respondent's failure to give effect
to the terms and conditions of the said agreed-upon
collective-bargaining agreement, such restitution to be paid
to the aforesaid employees in the manner set forth in the
section of this Decision entitled "The Remedy."
(d) Post at its place of business at Vienna, Ohio, copies of
the attached notice marked "Appendix."5 Copies of said
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material. In connection therewith, copies of
the said notice are to be posted by the member-employers
of the Respondent who hire unit members in their
respective places of business for a like period of time and in
the same manner.
5 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
960
THE WALLS AND CEILING CONTRACTORS ASSN.
(e) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain upon request with
Wood, Wire and Metal Lathers International Union,
AFL-CIO, Local No. 28, as the exclusive bargaining
representative of our employees in the unit described as
follows:
All journeymen lathers and apprentice lathers,
employed by employers who comprise The Walls
and Ceiling Contractors Association affiliated
with the Builders Association of Eastern Ohio
and Western Pennsylvania, Inc., excluding all
professional employees, guards and supervisors as
defined in the Act.
WE WILL sign and maintain in effect all the terms
and conditions of a contract agreed upon between the
said Local No. 28 and us on September 4, 1975.
WE WILL reimburse our employee-members for any
loss of benefits they may have suffered because we
failed to sign and execute and give effect to such
contract on or after September 4, 1975.
THE WALLS AND CEILING
CONTRACrORS ASSOCIATION
AFFILIATED WITH THE
BUILDERS ASSOCIATION OF
EASTERN OHIO AND
WESTERN PENNSYLVANIA,
INC.
961