Masonry Magazine July 1963 Page. 8
Important NLRB Decision
By Peer Pedersen
Legal Counsel
Mason Contractors
Association of America
The National Labor Relations Board handed down a decision recently which is of interest to the Mason Contractors Association, since it concerns an effort by a union to bargain individually with members of a multi-employer trade association, which association has been the members' bargaining representative with the union. Such practice is sometimes "whipsawing" and may constitute an unfair labor practice under Section 8 (b) (1) (B) of the National Labor Relations Act, as amended.
The case is entitled "The Westchester County Executive Committee Representing the Subordinate Unions numbers 20, 22, 27, 48, 51, 55, 75 and 83 of the Bricklayers, Masons & Plasterers International Union of America of Westchester and Putnam Counties and Builders Institute of Westchester and Putnam Counties, Inc., No. 2-CB-3460-5, (New York)." The facts, as found by the trial examiner, were not materially in dispute. It appears that the Builders Institute of Westchester and Putnam Counties, Inc., is an association of some 500 or 600 builders, contractors, suppliers, manufacturers, and financial institutions directly or indirectly engaged in the construction of residential and other buildings. More than 100 of its members are employers of bricklayers and masons. It has represented those employers in collective bargaining with the union since 1956.
The 1960-62 contract was due to expire on April 30, 1962 and the Institute and union entered into negotiations on March 8th and April 30th, at which time the contract was extended to May 2nd, because agreement had not been reached on wages and certain "fringe" items. No agreement could be reached at the May 2nd meeting, but the state mediator said another meeting would be held, without specifying a date. Thereafter, the parties met on May 11th and May 15th. Several union locals, however, on May 3, approached some of the Institute members separately, and requested them to sign individual contracts with the locals. Work was stopped as long as a month in one case, until contracts were signed.
The Institute filed charges on May 18. The union urged that the actions by its Locals were justifiable since an "impasse" had been reached in negotiations with the Institute. The trial examiner did not agree and held that the union had engaged in unfair labor practices within the meaning of Section 8 (b) (1) (B) and 8 (b) (3) of the Act, which prohibits a labor organization from restraining or coercing "an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances" and refusing "to bargain collectively with an employer." The examiner found that the facts did not support the union's contention of "impasse" and further that even if a situation of impasse or deadlock had been reached, its effect was waived by continuing negotiations with the Institute on May 11th and May 15th.
The examiner recommended that the union be ordered to cease and desist from coercing the member employers in the selection of the Institute as their bargaining representative, refusing to bargain collectively with the Institute, and giving effect to the individual contracts executed with employer-members on and after May 2nd.
The recommendations of the trial examiner were adopted by the National Labor Relations Board and the order was so ordered.
The Board's decision and order stated that the failure by the parties to make any concessions on the wage issue at the May 2nd meeting does not establish that an impasse had been reached and that further negotiations would have been valueless. The Board said:
"An impasse should not be mechanically inferred simply because the parties have failed to reach complete agreement after some specified number of negotiating sessions or whenever one party announces that his position is henceforth fixed and no further concessions can be expected. Under the facts presented here, we agree with the Trial Examiner that no impasse had been reached by May 2nd. Only a few negotiating sessions had been completed. Although the parties had not as yet made any progress on the wage issue, measured by concessions actually offered, the Institute had left open the possibility of some give-and-take by explaining that it would go back for further instructions. Also, the Union had agreed to poll its members." (Continued on Page 10)