Foley Construction Co.

National Labor Relations Board - Board Decisions

Dec 20, 1961

134 N.L.R.B. 1385 (N.L.R.B. 1961)

FOLEY CONSTRUCTION COMPANY 1385
ing lithographic production employees, which. the Board in such
circumstances finds to be an appropriate unit for collective-bargaining
purposes.5
[Text of Direction of Elections omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Direction of Elections.
5If the votes are pooled they shall be tallied in the following manner: the votes for
Lithographers shall be counted as valid votes , but neither for nor against the Printing
Pressmen ; votes are to be afforded their face value whether for or against representation
by the Printing Pressmen.
Foley Construction Company and Truckdrivers , Chauffeurs and
Helpers Union Local 100, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
The W. L. Harper Company and Truckdrivers , Chauffeurs and
Helpers Union Local 100, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America
Chas. F. McCurdy, Inc.' and Truckdrivers , Chauffeurs and Help-
ers Union Local 100, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America. Cases
Nos. 9-CA-1906, 9-CA-1907, and 9-CA-1908. December 20, 1961
DECISION AND ORDER
On November 15, 1960, Trial Examiner Leo F. Lightner issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondents had not engaged in the unfair labor
practices alleged in the complaint and recommending that the com-
plaint be dismissed in its entirety, ' as 'set forth' in the Intermediate
Report attached hereto. Thereafter, the General' Counsel and the
Charging Party filed exceptions to the Intermediate Report, together
with supporting briefs. i
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
Intermediate Report and the entire record in'this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, to the extent consistent
with our decision herein.,
The Respondents, who are engaged in the heavy construction in-'
dustry, maintain, offices in Cincinnati, Ohio, and work primarily in
Ohio and Kentucky. Since 1953, the labor relations division of the
1 The name of this Respondent appears as amended at the hearing
134 NLRB No. 147.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio Contractors' Association has negotiated for its members on a
statewide multiemployer basis with unions in the construction in-
dustry. Respondents Harper and McCurdy joined the Association in
1949 and Respondent Foley in the spring of 1959. Since 1953, the
Association has been bargaining with the Ohio Conference of Team-
sters, which is comprised of, and represents for bargaining purposes,
Local 100, the Charging Party, and 17 other Teamsters locals, whose
combined jurisdiction covers the State of Ohio. The Conference
and the Association have negotiated statewide agreements since 1955.
Although Respondent Foley did not join the Association until 1959, it
claims to have signed and carried out all of these Association-
Conference statewide agreements.
On February 23, 1959, Frobe, the Local 100 secretary-treasurer,
wrote to the Conference, with copies to the Association and to Allied
Construction Industries,' that Local 100 was canceling the authority
of the Conference to negotiate on its behalf. The Conference and
Association executed a new statewide agreement on May 4, 1959, and
all three Respondents immediately notified their employees that they
were putting into effect a wage increase and a union-security clause,
the major new provisions of the contract. These provisions were
applied to members of Local 100.
On May 28, 1959, Local 100 sent copies of a mimeographed letter,
addressed merely to "Gentlemen," to each of the Respondents stating
that a meeting was to be held a week later to negotiate a new agree-
ment, a proposed copy of which was enclosed. The proposed agree-
ment was similar to that usually negotiated by Allied and Local 100.
The letter stated that the proposed agreement would take effect at
the expiration of the existing Allied agreement on July 7, 1959, and
invited the Respondents to have a representative at the negotiations.
The Respondents ignored the letter on the ground, as they stated
at the hearing, that they already had an agreement with Local 100,
the 1959 statewide contract. On July 7, 1959, upon expiration of its
1958 Allied agreement, Local 100 struck all three Respondents. On
July 10, Local 100 dispatched identical letters to the Respondents
stating that it had previously proposed negotiations and received no
reply, and requesting that the Respondents arrange a time and place
for bargaining. McCurdy did not respond, but Foley and Harper
sent identical replies protesting the picketing of their operations and
claiming that Local 100 was bound by the 1959 statewide agreement.
On July 15, Foley obtained a temporary restraining order against
2 Allied Construction Industries is a group of contractors and haulers in the Cincinnati
area who have bargained jointly with Local 100. Respondent Harper was party to this
group bargaining for only 8 months in 1951, and Respondent Foley's president served as
president of Allied during 1958. There is no other evidence that the three Respondents
had employees covered by this group's contracts.
FOLEY CONSTRUCTION COMPANY 1387
the picketing. The pickets were withdrawn and the strike terminated
the same day.
In view of the May 28 letter from Local 100 inviting the Respond-
ents to send representatives to a group bargaining session, the attach-
ment thereto of a proposed agreement similar to previous Allied-
Local 100 contracts, and the calling of a strike at the time of the
termination of the 1958 Allied-Local 100 agreement, it is apparent,
and we find, that Local 100 was not seeking individual-employer
bargaining with each of the Respondents, as the General Counsel
contends, but was attempting to, compel them to bargain jointly and
as part of the larger Allied multiemployer unit. The, Board has con-
sistently held that an employer's intent to become part of a multi-
employer unit must be manifest.3 There is no evidence that any of the
Respondents expressed an intent to bargain together or had consented
to inclusion in the Allied multiemployer unit. On the contrary, the
Respondents indicated that they were opposed to bargaining jointly
with this group of employers. Therefore, as Local 100 was seeking
recognition by the Respondents in an inappropriate unit, we find
that the Respondents have not refused to bargain with Local 100
in violation of Section 8 (a) (5) and (1) of the Act.' We shall there-
fore dismiss the complaint .5
[The Board dismissed the complaint.]
3 See Northern Nevada Chapter, National Electrical Contractors Association and Rep-
resented Employers, 131 NLRB 550; York Transfer & Storage Co ., 107 NLRB 139, 142.
* Lyon Van & Storage Co. and Lyon Van Lines, Inc., 123 NLRB 734, Joslin Dry Goods
Company, 118 NLRB 555; Atlas Storage Division , P & V Atlas Industrial Center, Inc.,
112 NLRB 1175, 1178, affd 233 F. 2d 233 (C.A. 7).
5 The Trial Examiner based his recommended dismissal of the complaint on his finding
that Local 100, which had made inconclusive attempts to withdraw from the Conference
in 1957 and 1958, demonstrated " inconsistent and equivocal conduct" in its withdrawal
attempt in 1959, and that this attempted withdrawal was not made in good faith He
concluded , therefore, that Local 100 remained part of the group represented by the
Conference, and, accordingly , that the Respondents did not refuse to bargain with Local
100 in violation of the Act. As we have found that Local 100 sought to bargain in an
inappropriate unit, we deem it unnecessary to pass upon the effectiveness of its with-
drawal attempt.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE,
This proceeding was heard before the duly designated Trial Examiner in Cin-
cinnati , Ohio, on various dates commencing April 4 and ending April 14, 1960, on
the consolidated complaint of the General Counsel and the separate answers of
Foley Construction Company, The W. L. Harper Company, and Chas. F. McCurdy,
Inc.,' hereinafter referred to as the Respondents , or in the alternative as Respondent
Foley, Respondent Harper, and Respondent McCurdy. The issues litigated were
whether the Respondents , or any of them , engaged in unfair labor practices and
thereby violated Section 8 ( a) (5) and (1) of the Labor Management Relations Act,
1947, as amended, 61 Stat. 136, herein called the Act . The parties waived oral
argument and briefs filed by the General Counsel and Respondents have been care-
fully considered . During the hearing the Trial Examiner reserved rulings on several
motions by various parties , including Respondents ' motion to dismiss the complaint.
1 Name of Respondent amended at hearing to reflect correct identity.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These motions are disposed of in accordance with findings and conclusions herein
set forth.
Upon the entire record, and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENTS
Respondents are separate Ohio corporations, having their principal offices and
places of business at Cincinnati, Ohio, engaging in the business commonly known as
the heavy and highway construction industry, as more fully described below. During
the year preceding the issuance of the complaint, November 25, 1959, each of the
Respondents received compensation in excess of $50,000 for services performed out-
side of the State of Ohio in the course of their said business operations. Respond-
ents individually admit and I find that each of them is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Truckdrivers, Chauffeurs and Helpers Union Local 100, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the
Local, and the Ohio Conference of Teamsters of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the
Conference, are labor organizations within the meaning of Section 2(5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and sequence of events
1. The issues
The principal issue raised by the pleadings and litigated at the hearing is whether
the Respondents individually, or any of them, have since on or about February 23,
1959,2 refused to recognize the Local as the exclusive collective-bargaining repre-
sentative of the particular Respondents' employees in an appropriate unit, and
whether each Respondent has failed and refused to meet and bargain with the Local
as such representative, if so, whether such conduct constituted an unfair labor
practice within the meaning of Section 8(a)(5) and (1) of the Act. Each Respond-
ent, by answer, denies the commission of any unfair labor practice. Respondent
Foley and Respondent Harper assert that: (1) they are members of a multiemployer
bargaining group; (2) the Local is a member of a multilocal conference; and (3) the
two groups described have entered into collective-bargaining agreements, commenc-
ing in 1955, to which these Respondents were parties, the last such agreement being
effective from May 4, 1959, until April 30, 1962. Said agreements allegedly cover
wages, hours, and other conditions of employment of Respondents' employees who
are members of the Local and engaged in heavy and highway construction work in
the State of Ohio. It is asserted that the Local and its members who are employees
of each Respondent and work in Ohio have ratified and approved the agreement re-
ferred to and that they are bound by and estopped to deny said agreement. It is
further asserted that these two Respondents engage in similar activity in the State
of Kentucky and that they and the Local are parties to a multiemployer-multiunion
agreement covering employment in the State of Kentucky, the current collective-
bargaining agreement being effective from July 1, 1959, to June 30, 1962.
2. The background evidence
Except where otherwise noted, the evidence recited herein may be generally
characterized as undisputed.
a. Respondents' activities
Each Respondent is engaged in what is commonly identified as the highway and
heavy construction business. As highway contractors, they build roads, streets,
bridges, airports, sidewalks, etc. As heavy construction contractors,, they build
sewers, sewage disposal plants, sewage treatment plants, waterworks, water filtration
plants, flood walls, dams, etc.,
2 However, late in the hearing, General Counsel asserted his position to be "that the
commencement of the failuie to bargain actually was the commencement of negotiations
for the 1959 (association-conference) agreement."
FOLEY CONSTRUCTION COMPANY 1389
Respondent Foley has engaged in the activity described, at all times material
herein, in the Ohio counties of: Hamilton, Butler, Clermont, Clinton, Montgomery,
and Franklin; in the Kentucky counties of: Kenton, Campbell, and Boone; also in
the States of Indiana and Alabama.
Respondent Harper has engaged in the 'activity described, during the period ma-
terial herein, in the Ohio counties of: Hamilton, Butler, Clermont, Warren, Mont-
gomery, Clinton, Highland, Pike, and Scioto; in the State of Kentucky in the coun-
ties of: Kenton, Campbell, Boone, Gallatin, Carroll, Trimble, and Henry; and in
the States of West Virginia and Indiana.
Respondent McCurdy did not engage in the described activity outside the State
of Ohio in the year of 1959, the locale of his activities in other years, and the coun-
ties in which he engaged in the described activity in 1959 are not specified.
b. Association-Conference-statewide agreements
The Ohio Contractors' Association is an organization comprised of contractors en-
gaged in the heavy and highway construction industry. There is a division of the
Association known as the labor relations division. This division is made up of vari-
ous members of the Association who desire the Association to negotiate and deal in
labor matters on their behalf. In 1953 and ever since, and apparently for several
years prior thereto, the labor relations division has negotiated statewide agreements
for its members engaging in this industry with the Unions representing the operating
engineers and laborers. Sometime in 1953, the labor relations division began
negotiations for a statewide agreement with the Teamsters Conference. The divi-
sion has since on an unspecified date after 1953 entered into statewide agreements
with the Union representing the cement finishers.
The Ohio. Conference of Teamsters, insofar as material herein, was initially com-
prised of and represented 18 constituent locals. The jurisdiction of the 18 locals
combined encompasses all 88 counties in the State of Ohio .3 Accordingly, the nomen-
clature "statewide agreement" is used herein.
The labor relations division and the Conference executed the following (Ohio)
statewide agreements:
1. Effective May 21, 1955, terminating April 30, 1956. (General Counsel's
Exhibit No. 5.)
2. Effective July 1, 1956, terminating April 30, 1957. (General Counsel's
Exhibit No. 4.)
3. Effective May 6, 1957, terminating April 30, 1958.4 (General Counsel's
Exhibit No. 3.)
4. Effective June 2, 1958, terminating April, 30, 1959. (General Counsel's
Exhibit No. 2N.)
5. Effective May 4, 1959, terminating April 30, 1962., (General Counsel's
Exhibit No. 2M.)
Each termination was upon condition that either party give at least 60 days' written
notice of such intent to terminate prior to said expiration date.
c. Association bargaining procedure
Vernon L. Stouffer, General Counsel of the Ohio Contractors' Association, since
1953, credibly testified that he participated in all negotiating` meetings commencing
in 1953, including those with the Conference which explored the advisibility of a
statewide contract. Prior to the commencement of negotiations for each contract,
the executive committee of the Association contacts its members and ascertains their
feelings on various issues which are anticipated and receives advice as to the latitude
in concessions members are willing to make. The, negotiating committee, there
being separate committees for different crafts,, are instructed as to limitations and
then meet with the various employee representatives, including the Conference.
Upon agreement, and prior to execution, the. Association secures approval from'its'
members,and apparently other contractors, and the Association representatives and
Conference representatives then execute the ' agreement and it is immediately ef=
fective as of the date of signing. The members were only advised of the parts of
the contract which were changed from the previous contract. Ratification is an
internal matter; after an agreement, had been executed and was in full force and ef-
fect the Association sent a form, out' for ratification which in no way, affected the
3 See Exhibit C attached to General Counsel 's-Exhibit No. 5..
4 However, I will treat below with the evidence relative to the, activity of, the , Local in
connection with this particular agreement. , , ,
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effectiveness of the contract. If the parties did not wish to be bound by an agree-
ment they withdrew from the Association, but as long as they were members of the
Association, i.e., the labor relations division, they are bound by it. The members
do not sign the agreement when it is transmitted. What is actually sent to the
individual members is a ratification form which indicates that they accept and ratify
the agreement and agree to be bound by it.5
d. Respondents' bargaining history
Respondent Harper has been in business since 1936; Harper has been president
since its inception. The company is a member of the Contractors' Association and
has been since 1949, and has been a member of the labor relations division since
•1953. Since 1953 the Association has, represented the company in negotiations with
crafts, ii the heavy' and highway const'ruction' industry, including operating en-
gineers and laborers in 1953, and teamsters commencing in 1955. The labor rela-
tions division represented this company in its negotiations with the Conference for
all years beginning 1955 to and including 1959. The company has operated under
the so-called statewide agreements, referred to above, and paid the rates provided
in each of said agreements. Harper was a member of the negotiating committee
which negotiated the 1958 contract, which went into effect on June 2, 1958; how-
ever, he was not on the negotiating committee which negotiated the 1959 agree-
ment. Harper denied that his company had at any time negotiated an agreement
with Local 100 entitled "Coal, Excavating and Building Material Drivers Agree-
ment.',' 6 Harper, nevertheless, acknowledged that he had signed such an agreement
and-that it was effective "for a very short.period,of time during 1951." The period
being April 10, 1951, to January 15, 1952. No other bargaining history related to
this Respondent's operations in Ohio, concerning its truckdriver employees em-
ployed in the State of Ohio, appears in this record.
Harry D. Foley is and has been president of Respondent Foley since its incep-
tion as a corporation about 1954 or 1955. His father started the operation of a
predecessor proprietorship, later a partnership, in 1904. The witness has been
associated with the enterprise since 1931. The first time he entered into any collec-
tive-bargaining, agreement covering. truckdriver employees was in 1955, when he
signed the so-called statewide agreement. (General Counsel's Exhibit No. 5.)
His firm was bound by the (statewide) agreements from' 1955 through 1959 and
during all of those years it abided by all the terms of said agreements. Respondent
Foley became a member of the Ohio Contractors' Association and its labor rela-
tions division in the spring of 1959.7 No other bargaining history related to this
Respondent's operations in Ohio, concerning its truckdriver employees employed in
the State of Ohio, appears in this record.
Charles F. McCurdy is president of Respondent McCurdy which was incorporated
in 1952; however, it appears that he was engaged in the same activity prior to that
time. He has been a member of the Association since approximately 1949, and of
the labor relations division since 1952. While he has employed one truckdriver for
13-or 14-years he did not employ more than one until March 1958. The labor rela-
tions division conducted his negotiations for him, and he never negotiated with
Local 100.8 '
'Each of-the three Respondents ratified each of the successive statewide agreements,
commencing in 1955 and including the 1959 agreement, and promptly placed the
terms and conditions of each agreement into effect.
e. The Conference-Local relationship
The Local was a party to the 1955 agreement and authorized the Ohio Conference
of Teamsters to negotiate the agreement for them. The Local was a party to the
1956 agreement and authorized the conference to negotiate this agreement. Frobe 9
and George Starling, president of the Local, had executed a power of attorney in
each instance. The alleged powers of attorney are not in evidence, nor is there
evidence that they were a requisite. Local 100 is a member of the Ohio Conference
6 To the extent the testimony of Harper varies from that of Stouffer on the modus
operandi of the Association, I credit. Stouffer , not only because of his obvious first-hand
knowledge but, also because of :the vagueness of the testimony of Harper in this area
6 The agreements so styled , and so referred to for convenience, are discussed in more
detail, snfra. Harper's denial is not disputed , his testimony is credited.
* I credit this undisputed testimony of Foley.
6I credit this testimony of McCurdy
• Otto Probe is secretary of Local 100. 1 credit this portion of Frobe's testimony.
FOLEY CONSTRUCTION COMPANY 1391
of Teamsters and has been ever since the Conference started, approximately in 1947,
and the Local pays per capita dues for its members to the Conference. Neither
Frobe nor any officer of Local 100 signed the 1956 agreement. Furthermore, the
Ohio Conference of Teamsters was authorized to sign the agreement by Local 100,
the authorization having been given by George Starling as president and Frobe as
secretary-treasurer; however, the record is obscure as to whether this was a separate
authorization after agreement was reached or was coupled with or implied by a
previous authorization to negotiate an agreement.
f. Events relative to 1957 statewide agreement
On April 13, 1957, Frobe, as secretary-treasurer of the Local, sent the following
letter to the president and'secretary-treasurer of the Conference:
This is to advise you that Truck Drivers, Chauffeurs and Helpers Local Union
No. 100 does hereby revoke the Power of Attorney previously given to you
under date of April 25, 1956, to act as its agent in the negotiation of a contract
with heavy and highway construction firms. From this date hence, this Local
Union will conduct its own negotiations with employers in the heavy and high-
way construction field and your organization is directed to cease representing
us in all and any respects. [Joint Exhibit No. 9.] 10
No contention is made that a copy of the alleged revocation was sent to the As-
sociation or the labor relations division. However, on April 13, 1957, Frobe wrote
to Respondent Harper enclosing a copy of a "revocation of a Power of Attorney
previously given to the Ohio Conference of Teamsters," and advising said Respond-
ent that the Local desired to negotiate with the Respondent for its member employed
by Harper (Joint Exhibit No. 8). There is no evidence of similar communications to
either Respondent Foley or Respondent McCurdy. There is no evidence in the
record as to the status of negotiations between the Conference and the labor relations
division at the time of this letter. However, the earlier 1956 agreement, General
Counsel's Exhibit No. 4, provided for termination upon 60 days' prior written
notice and contains an expiration date of April 30, 1957. The 1957 agreement was
executed on May 10, 1957, effective May 6, 1957. At approximately that time it was
put into effect by all three Respondents. No withdrawal of membership in the Con-
ference, by the Local, is asserted. That the withdrawal was not an unequivocal with-
drawal from the bargaining arrangement appears infra. Thereafter, on a date un-
specified, the Local called a strike which included the employees of Respondents
Harper and Foley. The strike was of 6 or 7 weeks' duration. On Sunday, July 14,
1957, Harper and Foley met with Frobe and George Starling, who stated that they
wanted considerations beyond the statewide agreement. These considerations were
specified as (1) a voluntary deduction, pursuant to appropriate authorization, from
each employee's pay of an amount to be paid into the health and welfare fund of
the Local, and (2) individual employee seniority. Harper advised them that he and
Foley were willing to act as a collection agency, and take the specified amounts from
the employees' wages and pay it into the health and welfare fund-and that the senior-
ity proposal was agreed to as a continuation of past practice. Starling stated that in
his 'opinion Harper' and Foley never should have been' struck and that' they should
have continued to work under the (1957) statewide agreement." There is no evidence
of any other meeting between the Local and Harper in 1957. No demand to bargain
was made upon Foley by the Local in 1957. The employees returned to work on
July 15, 1957, and the same day Harper wrote to the Local confirming the verbal
agreement of the prior day specifying among other things "we are to work under the
1957 agreement between the Labor Relations Division of the Ohio Contractors As-
sociation and Heavy and Highway Construction Negotiating Committee of the Ohio
Conference of Teamsters-for the period specified in the contract," i.e., the 1957
statewide agreement . (General Counsel's Exhibit No. 2L.)
10 While the record permits a reasonable inference that both the president and secretary-
treasurer were requested to execute authority for the Conference to act for the Local
initially, I find it unnecessary to pass upon the adequacy of this purported revocation, in
view of other evidence that the 1957 statewide agreement became effective and its terms
were adhered to by the Local and the , Respondents herein (Joint exhibits are those intro-
duced by all parties, by stipulation , and are, thus , distinguished from Joint Respondents'
Exhibits and General Counsel 's Exhibits.)'
"Starling was not called as a witness . Probe was reportedly ill and for that reason
was not called as a rebuttal witness ; in any event no denial of this testimony appears in
the record . I credit this testimony of Harper. It was substantially corroborated by Foley
The health and welfare and seniority matters were not covered in the statewide agreement.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
g. 1958 statewide agreement
The 1958 statewide agreement was not signed by any officer of Local 100, it was
signed by the Conference. General Counsel's Exhibit No. 7 is a copy of a purported
power of attorney dated April 9, 1958, executed by the president of the Local, giv-
ing the Conference authority to negotiate a statewide heavy and highway construc-
tion agreement, signed by Starling.12 On April 25, 1958, Frobe and James A. Webb,
business agent of Local 100, sent the following telegram (Joint Respondents Exhibit
No. 7) to Harper:
This is to notify you that no officer of this organization has the authority to
enter into a collective bargaining agreement with any employer without first
having obtained approval of the membership working in the particular field in-
volved at a meeting of such members. This is further to advise you that this
organization has not within the'past year officially given authority to the Ohio
State Conference of Teamsters to negotiate any contracts for and on behalf of
the undersigned organization.
Harper was a-member of the 1958 Association negotiation committee in the bargain-
ing with the Conference, and George Starling was a member of the Conference
negotiating committee that year.13 General Counsel contends that the telegram was
not a notice to the Ohio Conference of Teamsters, who were the bargaining agents.
General Counsel acknowledged that Local 100 abided by the 1958 statewide agree-
ment, and was bound Eby the terms of that agreement.
h. No certification -dues provision
It is undisputed that no Board certification has been issued , or sought, establish-
ing an appropriate unit.
Article IV of each of the statewide agreements , 1955 to and including 1959 , in part,
provides:
The Contractor agrees to deduct Union dues and the original initiation fee for
any employee who voluntarily and individually authorizes the deduction. It
is understood that since this Agreement covers the State of Ohio and jurisdic-
tion of more than one Local Union whose membership dues and initiation fees
may differ, each Local Union covered by this Agreement will furnish to the em-
ployees proper payroll -deduction authorizations in conformity with Federal and
State laws and upon receipt of the authorizations properly signed by the em-
ployee the Contractor will make the required deductions. The deductions will
be paid to the Secretary-Treasurer of the Local Union having proper jurisdiction
of the work and the employees covered by this Agreement.14
No union-security provision appears until the 1959 agreement , discussed infra. It
is undisputed that Respondents have complied with the recited provision since 1955.
i. Kentucky statewide agreements
Harper employs on an average of 25 truckdrivers; at the peak of the season 35 to
40. Six to eight of these employees were employed,.by him in an undertaking in
Boone County, Kentucky, from March until August 19, 1959. They were members
of Local 100 during that period. Foley employed anywhere from 10 to 40 truck-
drivers depending on the season and requirements. These employees likewise were
members of Local 100 and worked in both Ohio and Kentucky, as needed. Foley
estimated that 60 to 65 percent :of'some 40 employees who worked for him in the
spring and summer of 1959 were working in Kentucky. - When Foley and Harper
have projects in Kentucky the employees are paid according to and pursuant to the
terms of the Kentucky statewide agreement, when they are. working in Ohio they
are paid according to and pursuant to the terms of the Ohio statewide agreement.
12 The term "purported" is used in the sense that there is nothing in this record to
indicate either the necessity for such a power of attorney or the officer, or officers having
authority to effectively execute such a document.
13 This testimony,is undisputed and pis credited.
is Exhibit C, which is attached fo each of the Ohio statewide agreements, is styled as
a "list of local unions, parties to this Agreement, their representatives and jurisdiction.".
Therein are listed 18 local unions, with the name and address of,the local representative
of each, the respective counties within the jurisdiction of each, in the 1955 and 1956
agreements Local 100 is not so'listed in the 1957 agreement, but is listed among a total
of 21 unions listed in the 1958 agreement`.
FOLEY CONSTRUCTION COMPANY 1393
I have noted above that Respondent McCurdy did not engage in work in Kentucky
in the spring and summer of 1959. McCurdy employed six to eight truckdrivers in
1959, all of whom were members of Local 100.
Frobe acknowledged that Local 100 is a member of the Kentucky Conference of
Teamsters, that it has been such a member for about 8 years and was a member at
the time of the hearing herein. Harper first entered into the Kentucky statewide
agreement in 1956; he was represented in the Kentucky negotiations by the General
Contractors' Association of Louisville, Kentucky. When Foley first became a party
to the Kentucky statewide agreement is obscure, but it may be found from the
evidence, Joint Respondents' Exhibit No. 8, that he was a party to the 1958 agree-
ment, Joint Respondents' Exhibit No. 2. Respondent Foley is listed as a party to
the 1959 Kentucky statewide agreement, Joint Respondents' Exhibit No. 3. The
Kentucky statewide agreement relative to teamsters was not confined, as in Ohio,
to the Teamsters Conference, but was between the Heavy and Highway Contractors
and/or Associations and a Joint Council composed of local unions and State con-
ferences and councils, representing carpenters, teamsters, hod carriers and laborers,
and operating engineers. The 1958 Kentucky agreement was effective, by its terms,
from July 1, 1958, until June 30, 1959, with an automatic renewal provision absent
notification to the contrary. This agreement was signed by the president of the
Kentucky State Conference of Teamsters for six locals, listed therein, including Local
100. On April 30, 1959, the secretary of the Joint Council negotiating committee
advised the Foley Construction Company, by letter, of the reopening of the Kentucky
statewide agreement. (Joint Respondents' Exhibit No. 8.) Thereafter effective from
July 1, 1959, and continuing until June 30, 1962, a new statewide Kentucky agree-
ment was executed between the parties described above. It thus appears patent
that the operations of Respondents Harper and Foley in Kentucky, relative to
teamster employees, were encompassed within and governed by the Kentucky state-
wide agreements. It was stipulated that Local 100 was bound by the Kentucky state-
wide agreements.i5
3. The events on and after February 23, 1959
a. The Local's purported withdrawal
On February 23, 1959, Frobe, as secretary-treasurer of Local 100, sent the fol-
lowing letter to the Heavy and Highway Construction negotiating committee, Ohio
Conference of Teamsters of the International Brotherhood of Teamsters, Chauffeurs,,
Warehousemen and Helpers of America, with copies to the labor relations division
of the Ohio Contractors' Association and a copy to Allied Construction Industries.is
The letter (Joint Exhibit No. 1) reads:
This is to notify you that Truckdrivers, Chauffeurs and Helpers Local Union
No. 100 hereby revokes and cancels any purported power of attorney which you
may have to negotiate, enter into agreements or act in any manner whatso-
ever on behalf of this Local Union with the Labor Relations Division of the
Ohio Contractors Association or with any other employer or employers what-
soever.
We would appreciate your advising us, however, when the existing agreement
between the Labor Relations Division of the Ohio Contractors Association and
your organization is terminated.
Return mail receipts, ostensibly. indicating receipt, are attached. No copies of this
letter were directed to the Respondents herein by the Local, nor did the Union
make a demand upon the Respondents or take further action with reference to
them.prior to May 28, 1959, which action is discussed infra.
b. Association-Conference negotiations
Vernon L. Stouffer, identified above as general counsel of the Association, par-
ticipated in all negotiations with the conference. He acknowledged, however, that
= 16 It is noted, however, that on April 14, 1959, the Local (Frobe) wrote to Harper
cavating, and mixer driver agreements with LLocal 100. The letter to Allied Construction
struction in Kentucky, effective June 30, 1959 Joint Respondents' Exhibit No. 9.
18 Allied Construction Industries are elsewhere identified as a group of contractors in
the Cincinnati area, some of whom it may be inferred signed the local coal hauling, ex-
cavating, and mixer driver agreements with Local 100. The letter to Allied Construction
Industries was to the attention of Jess Higgins, not otherwise identified in this record.
030849-62-vol 134-89
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he saw a copy of the February 23 letter of the Local after negotiations started, and
before they were completed. The negotiations in 1959 started in the latter part of
February or the first part of March. It does not appear that any of the Respond-
ents directly participated in the 1959 negotiations. Stouffer was not advised by
the Conference that the Conference did not have authority to negotiate, or that
there were any limitations. At the commencement of the negotiations each year
there were two questions that were asked by Stouffer before negotiations com-
menced, (1) whether the agreement was to cover the 88 counties, and (2) whether
all of the local unions were members in good standing of the Conference, or if any
had withdrawn. Upon being advised that each local within the State of Ohio was
still a member of the Conference and paying dues upon their members, "we then
start from there, because we have always considered the Ohio Conference of
Teamsters as the Union, and the Locals as subordinates thereof." 17 It is undis-
puted that the Association and the Conference concluded and executed a statewide
agreement effective May 4, 1959, with a termination date of April 30, 1962, as
more fully described supra and infra. (General Counsel's Exhibit No. 2M.) This
agreement contained a number of changes of no consequence here; however, it is
the first of the statewide agreements containing a union-security provision (article
IV), it also provided an increase of 61/2 cents per hour effective May 4, 1959, with
a like increase on May 1, 1960, and again on May 1, 1961. This agreement was
promptly placed into effect, and the respective employees of Foley and Harper
were advised of the agreement and the amount of the increase McCurdy also
promptly put this agreement into effect. All three Respondents continued to deduct
dues, pursuant to appropriate authorizations, and transmitted them to the Local.
I have set forth above the language in the statewide agreement providing for such
dues deductions. Harper and Foley also continued to deduct, pursuant to appro-
priate authorizations, and transmit to the Local employee contributions to the
health and welfare fund. The evidence indicates however that while this deduction
was initially $2.25 per week it was increased, without further negotiation but pursu-
ant to authorization, effective July 1959 to $2.50 a week.
c The Local-"Coal Hauling" agreement
I have referred above (section 2, d-Respondents' bargaining history) to what
for convenience has been referred to as the "Coal Hauling" agreement. The
"proposal" of the Local, accompanying its alleged demand for bargaining of May
28, 1959, is a,"Coal, Excavating, Building Material and Mixer Drivers Agreement."
That such an agreement was in existence between Local 100 and a large number of
contractors engaged in activities other than highway and heavy construction, for
an unstated period of years, may be inferred. However, neither Respondent Foley
nor Respondent McCurdy were ever parties to such an agreement. Respondent
Harper was a party to such an agreement for a period of 8 months in 1951. The
record does indicate that in the summer of 1957, Foley, individually, as president
of the Allied Construction Industries (of Cincinnati), participated in the negotiation
of the "Coal Hauling" agreement negotiated that year. This agreement by its terms
became effective on July 15, 1957, and expired on July 7, 1959. (General Counsel's
Exhibit No. 9.) Respondent Foley was not a party to this agreement. It contains
a provision for a written notice of intention to terminate, at least 60 days prior to
expiration, with the alternative of an automatic renewal for 1 year.
It is undisputed that on May 28, 1959 , a letter (Joint Exhibit No. 2A) was sent
by the Local to the three Respondents herein and an undisclosed number of other
contractors in the Cincinnati area . The letter , as distinguished from the envelope,
was not individually addressed , but was merely styled "Gentlemen " the letter reads:
Enclosed is a copy of our proposed Coal, Excavating , Building Material and
Mixer Drivers Agreement to become effective at the expiration of the existing
agreement.
On Friday, June 5, 1959, at 2:00 p.m., in Parlor H, Ballroom Floor, of the
Hotel Gibson , a meeting will be held to commence negotiations on this
agreement.
The Union's committee in the negotiations will consist of the following:
Otto Frobe, chairman; Walter G. Schulze, president of Local 100; James A.
Webb and Marshall H. Tucker, business representatives for Local 100; Ray
17 No effort was made to refute this testimony No representative of the Conference
appeared at the hearing ,
FOLEY CONSTRUCTION COMPANY 1395
Black, excavating driver for Richter; Earl Weber, Mixer Driver for Hilltop
Builders; and Ed Foltz, building materials driver for Tate Building Supply.
Your firm is, of course, invited to have a representative present to participate
in the negotiations.
Enclosed in said letters was a copy of the proposed new "Coal Hauling" agreement,
Joint Exhibit No. 2B. The following sections of the proposal are noted: section 1
provides for recognition of the Local as the exclusive bargaining agent; section 3
provides that the employer will not negotiate or make collective-bargaining agree-
ment for any of the employees in the bargaining unit except through duly author-
ized representatives of the Local; section 4, in part, specifies as the "Geographical
Area" seven identified counties in southwestern Ohio and seven, substantially ad-
jacent, identified counties in the Commonwealth of Kentucky, the proposal qualifies
the area covered with the following language: "except in those cases where Local
100 has entered into a different working agreement between the parties hereto."
None of the Respondents responded; the president of each testified that he did not'
consider the proposal applicable to his activity.
When the 1957 "Coal Hauling" agreement expired on July 7, 1959, the Local
called a strike against the contractors, including the three Respondents. It is not
disputed that the Kentucky State agreement was in effect at that time. Nevertheless,
the operations of Foley and Harper in the State of Kentucky were also struck by
the Local.
On July 10, 1959, the Local sent identical letters to each of the three Respond-
ents herein, Joint Exhibits Nos. 3, 4, and 5. The letters read:
On, May 28, 1959, this organization sent you a proposed collective bargain-
ing agreement. We also requested at that time that you negotiate concerning
the proposed agreement. We have not heard from you since that time.
This is to advise you that this organization is still desirous of meeting with
you to negotiate an agreement covering your employees. As you know, those
employees are represented by this Local Union.
Please contact the undersigned as soon as possible to ,arrange for a time and
place of meeting. We will expect to hear from you within one week.
On July 14, 1959, Respondent Foley advised the Local that, as the Local knew
Foley was a party to the statewide agreement effective May 4, 1959, Foley con-
sidered the Local bound by that agreement and therefore there was no purpose in
negotiating any further agreement. Foley also took exception to the, placing of
pickets at its various construction sites. (See Joint Exhibit No. 6.) On July 15,
Respondent Harper advised the Local to the same effect in an identically worded
letter. (Joint Exhibit No. 7.) McCurdy did not respond to the Union's letter of
July 10.
On July 15, 1959, Foley sought and obtained, without hearing, a temporary re-
straining order in the Court of Common Pleas of Hamilton County, Ohio. The
following day Harper sought a similar restraining order. The latter action was
withdrawn upon a representation to the court that the ,pickets were being withdrawn.
(General Counsel's Exhibits Nos. 10A through 10F.) On July 15 the Local ceased
picketing at the premises and worksites of the three Respondents. The strike ter-
minated the same day. 18
4. The contentions of the parties
1. The consolidated complaint alleges, and General Counsel contends that (a) the
Local Union is and has been designated by the truckdriver employees of each of the
Respondents as the employees' exclusive collective-bargaining representative, and
(b) the truckdriver employees of each of the Respondents constitute an appropriate
unit.
Respondents do not contest the appropriateness of the suggested unit under other
circumstances. They contend that where an employer's association is formed to
Is In addition , there is in the record evidence relative to Webb, business agent of the
Local , having a conversation with Foley in the middle of June 1959 . which Respondents
assert constituted additional evidence of acceptance and ratification of the 1959 statewide
agreement by the Local . Testimony of a conversation between Howard L Miller, super-
intendent of McCurdy, and Webb, which is alleged to have taken place on May 7, 1959,
was submitted for the same purpose. I find it unnecessary to treat with and relate this
evidence , or, to make credibility findings in regard thereto , for,reasons set forth infra
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deal with a union on an industrywide basis, and there has been a history of such
dealing, a multiemployer, industrywide (statewide) unit is appropriate.
2. The consolidated complaint alleges, and General Counsel contends, that at all
times since February 23, 1959, the Respondents have refused to recognize the Local
as the exclusive collective-bargaining representative of the employees of each. The
date selected was the date of the Local's letter to the Conference purportedly re-
voking the authority of the Conference to conduct negotiations. Near the close of
the hearing, General Counsel sought to amend the complaint to establish the date
of the commencement of the negotiations between the Association and the Con-
ference as the day upon which the refusal to bargain commenced. General Counsel
further urges that the Respondents failed and refused to bargain with the Local by:
(a) Ratifying and giving effect to the 1959 statewide agreement, on or about May 4,
1959; (b) failing and refusing to respond to the demand for bargaining by the Local,
dated May 28, 1959; and (c) failing and refusing to bargain pursuant to the demand
of the Local contained in the letters of July 10, 1959.
3. As indicated above, Respondents do not deny that: (a) The Conference and
Association negotiated an agreement in 1959; (b) said statewide agreement became
effective May 4 and was placed into effect promptly by the Respondents herein; (c)
they received and did not respond to the Union's letter of May 28, 1959, containing
a proposed contract; and (d) Respondents Foley and Harper declined, and Respond-
ent McCurdy did not respond to, the Local's request for bargaining of July 10, 1959.
Respondents contend that these actions did not constitute a refusal to bargain within
the meaning of the Act. Respondents assert that the Local failed to withdraw or
break away from the statewide bargaining unit in 1959 because, (a) the Conference
was the exclusive bargaining agent, (b) the Conference was the only labor organiza-
tion which was a party to the 1959 agreement, and (c) the Local's letter of February
23 did not accomplish a withdrawal in that it was not timely, did not constitute a
withdrawal, no legal Tight to break up the multiemployer unit existed, the Local
was not authorized to send the letter, and a power of attorney from the Local was
not essential to give the Conference authority to negotiate a statewide agreement.
In addition, Respondents contend that by its own conduct, and that of its members
employed by the Respondents, since May 4, 1959, the Local has ratified the 1959
statewide agreement and is estopped to deny that it is bound thereby, with particular
reference to, (a) the wage increase granted in 1959 which was accepted by the
Local and its members, (b) the dues checkoff and union-security provisions which
were complied with, and (c) a wage rate grievance against Foley. Respondents also
contend that the Local failed to make a timely and proper demand in an appropriate
unit.
5. Analysis and conclusions
This case presents a matter of first impression. The first question requiring
resolution is that of the "appropriate unit" herein.
Section 9(a) of the Act provides, in part:
Representatives designated or selected for the purposes of collective bargain-
ing by the majority of the employees in a unit appropriate for such purposes,
shall be the exclusive representatives of all the employees in such unit for
the purposes of collective bargaining. . . . [Emphasis supplied.]
Section 9(b) of the Act vests discretionary power in the Board to decide in each
case the unit appropriate' for the purposes of collective bargaining, with certain
limitations not germane herein. The Board in exercising its statutory power has
in many cases found the bargaining history persuasive in its determination that a
given unit is- appropriate or inappropriate. Accordingly, the history of bargaining
revealed by this record is first examined.
a. The appropriate unit indicated by the bargaining history
It is undisputed that Respondent Harper signed the Local- "Coal Haulers" agree-
ment with the Local in 1951 and that agreement remained in effect for a period
of 8 months, and was not renewed. The Board has held in many cases that a brief
history of collective bargaining is not decisive on the question of appropriate unit.
This record reflects no evidence that Respondent Foley or Respondent McCurdy
have ever been parties to a collective-bargaining agreement with the Local, covering
wages, hours, and working conditions.
We turn next to the history of the industry in the two States with which we are
here concerned, Ohio and Kentucky. The evidence establishes that sometime prior
to 1953 the Association entered into statewide bargaining agreements with the
FOLEY CONSTRUCTION COMPANY 1397
Unions representing the Operating Engineers and the Hod Carriers and Laborers,
and sometime after 1955 with the Union representing the Cement Finishers. Com-
mencing in 1955 it entered into a similar "statewide" agreement with the Teamsters
Conference.19 I have found, supra, Section 2(d), that all Respondents operated
under these agreements, and are members of the Association.
In 1947 when the Conference was formed the Local became a member of it and
has ever since continued that membership, paying per capita dues to the Conference
on the Local's membership. That the Conference represented and bargained for
Local 100, as well as numerous other locals, in 1955, 1956, and 1958 is undisputed.
While the evidence reflects an ostensible revocation of authority issued by the Local
to the Conference in 1957, there is no evidence that either the Association or any of
the Respondent's were apprised of this action, no demand for bargaining was made
upon any of the Respondents or the Association by the Local, and the evidence per-
mits no conclusion except that the 1957 agreement was promptly placed in effect by
the Respondents and remained in effect throughout the term of that contract, with-
out objection thereto by the Local. In addition, there is no evidence which would
support a finding that the purported revocation was timely, nor in the light of this
record could it be characterized as unequivocal or in good faith. I find accordingly.
A 4-year history of multiemployer bargaining through ,the Association is thus es-
tablished, coupled with a 4-year history of multilocal bargaining through the Con-
ference, in the State of Ohio, and no other meaningful bargaining history appears.
The wages and working conditions of employees of Respondents Foley and Harper,
who were members of the Local, when employed in Kentucky were governed by
the Kentucky Association-Council statewide agreements. The Local was part of
the Kentucky Joint Council. The only bargaining history in this record, in Kentucky,
is that of multiemployer-multiunion agreements, statewide in scope.20 I so find. In
the Chicago Metropolitan Homebuilders Association case,21 the Board stated that it
is well settled that a single-employer unit is presumptively appropriate, and that
to establish a claim for a broader unit a controlling history of collective bargaining
on a broader basis by the employers and the union involved must exist. See also
Arden Farms, et al., 117 NLRB 318. The Board then noted that it has consistently
held that an essential basis for any finding that a multiemployer unit is appropriate
is that the individual employers unequivocally manifest a desire to be bound in future
collective bargaining by group rather than individual action.22 I find that such a
condition is here unequivocally manifest.
16 During the hearing there was objection to use of the term "statewide " Common to
each of the agreements commencing 1955, to and including 1959, General Counsel's
Exhibits Nos 5, 4, 3, 2N, and 2M are the following provisions:
The preamble, in part:
This AGREEMENT made and entered into as of . . . , by and between THE LABOR
RELATIONS DIVISION of THE OHIO CONTRACTORS ASSOCIATION, as the
recognized statewide bargaining representative of its duly recognized members, here-
inafter referred to as the "Contractors" and Heavy and Highway Construction
Negotiating Committee of the OHIO CONFERENCE OF TEAMSTERS of the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, hereinafter referred to as the "Union "
[Emphasis supplied ]
Article II, in part, provides:
Scope of Agreement
This agreement shall govern all Heavy and Highway Construction work which
the Contractor performs an the State of Ohio and which comes within the
jurisdiction of the Ohio Conference of Teamsters of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and
shall apply solely to workmen employed directly and exclusively in construction.
[Emphasis supplied.]
Article III, definitions, in part, provides:
"Contractors," where used in this Agreement, means any Contractor engaged in
Highway Construction or Heavy Construction work, but does not mean or include
any Contractor engaged in Building Construction
20 Joint Respondents' Exhibit No. 3, article III, in part provides: "Since this agree-
ment is statewide in scope, . . .
a 119 NLRB 1184.
za Cf. Pacific Metals Company, Ltd., et al, 91 NLRB 696, 699, and cases therein cited ;
P. E. Ashton Company, et al, 93 NLRB 1286, 1288; Charles H. Harper, The Baltimore
Towage & Lighterage Company, et al., 117 NLRB 1031.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Mohawk Business Machines Corporation, 116 NLRB 248, the Board cited as
"controlling precedent" its holding in Pepsi-Cola 23 that a multiemployer bargaining
unit is appropriate only if there is some indication that the employees in each of the
constituent employer groups, which themselves would comprise natural and inherently
appropriate units, have consented, expressly or otherwise, to be represented by a
single bargaining agent in common with the employees of other employers. I have
quoted above the provision in the statewide agreements for checkoff of dues, upon
appropriate authorization. Such authorization, by a majority or all of the employees
of each Respondent, and the remittance of such dues to the Local by the individual
employer is undisputed. The execution of such authorizations, under these circum-
stances, are an indicia of concurrence. This record is notably void of evidence of any
discontent or disagreement involving the terms and conditions of these statewide
agreements. There can be no question here that the Local, in concert with other
locals throughout the State of Ohio, authorized the Conference to carry on negotia-
tions for a statewide agreement with the Association. Neither can there be any
question, in view of the evidence, that this conduct resulted in the establishment of
a multiemployer-multiunion statewide industry bargaining unit. I find accordingly.24
The Board has stated: "Past experience reflected in a history of bona fide collective
bargaining in the plant or industry involved also carries great weight, and is often
controlling where other factors are equally balanced, and the resolution of con-
troversies concerning the basic type or scope of the appropriate unit. It is note-
worthy that, as a preliminary matter, in cases where collective bargaining history is
urged in support of a particular unit, the Board scrutinizes the negotiations and agree-
ments embodying that history to determine whether or not they were adequate to
stabilize industrial relations and to define an inherently appropriate unit." 25
In Waterfront Employers Association of the Pacific Coast, et al., 71 NLRB 80,
the Board was confronted with a situation in some respects analogous to the problem
presented here. There (at page 110) the Board said:
We believe that this Board may properly find appropriate units composed of the
employees of a number of separate and competing companies which have chosen
to associate themselves in an organization of employers for the purpose of tak-
ing action on labor matters with respect to their employees. If the Board's
power were limited to finding a unit composed of the employees of a single
individual employer, as it is contended by the companies in the employer as-
sociation, we could not, as we have previously done in a number of cases,
recognize the propriety of established multiemployer units which have evolved in
bargaining between labor organizations and employer associations. Minority
groups or individuals could seek to have the Board order employers to cease
giving effect to existing beneficial contracts and not to renew them. Thus the
Board, called upon to issue certifications and orders in conflict with existing
practices of collective bargaining which are satisfactory to the employers and
to the majority of the employees involved, would disrupt and possibly destroy
that stability in employment relations which it was the very purpose of the Act
to foster 26
The Board in this and other cases has recognized the necessity of carrying out the
dual objectives of the Act of industrial stability and protection of the exercise by
workers of full freedom of association, self-organization, and designation of rep-
resentatives of their own choosing, for the purpose of negotiating the terms and con-
ditions of their employment and other mutual aid and protection27
In the National Tube case,28 where a craft severance was sought, the factors relied
upon by the Board in the matter of Geneva Steel Company, 57 NLRB 50; 67
NLRB 1159, particularly those of the integrated nature of the operations and bar-
gaining history in the industry were found to present a compelling argument in favor
^ Pepsi-Cola Bottling Company of Kansas City, 55 NLRB 1183, 1186, 1187
"' While Respondent insists that there is a single unit of the Conference and General
Counsel insists that the unit is more accurately described as "multiunion," I consider
this a distinction without a difference and a purposeless exercise in semantics.
u See Tenth Annual Report of the National Labor Relations Board (1945), p. 28, and
cases cited in footnotes 74, 75.
26 See cases cited in footnotes 44, 45, 46, and 47 of that decision
87 Section I of the Act, in part
'8 National Tube Company, 76 NLRB 1199.
FOLEY CONSTRUCTION COMPANY 1399
of an overall bargaining unit as against separate units of particular craft employees
in the basic steel industry.29
The Board held in the Belle Vernon case,30 that previous decisions of the Board
have established the principle that participation in joint bargaining negotiations,
either directly or through authorized representatives, and the uniform adoption by the
participants of an agreement resulting from such negotiations, indicate a desire on the
part of the participants to be bound by joint rather than individual action; and
warrant the establishment of a multiemployer unit (citing Associated Shoe Industries
of Southeastern Massachusetts, Inc., et al., 81 NLRB 224; Air Conditioning Com-
pany of Southern California, et al., Supplemental Decision, 81 NLRB 946, and
cases cited therein). The Board also said: such participation and resultant agree-
ments are clearly established herein. Where a nonincumbent union, in the face of a
multiemployer bargaining history, has petitioned for a single employer unit, but
the employer and the contracting incumbent union have desired to continue bargain-
ing on the multiemployer basis, the Board has found the single-employer unit
inappropriate.31
An analogous situation was presented to the Board in the General Motors case.32
The facts found by the Board were that the union was the principal and almost ex-
clusive organizational force. It won single plant elections in 120 plants and was
certified as the exclusive representative in separate bargaining units. Later it en-
tered into single centralized bargaining resulting in a single contract nationwide
and companywide in scope, which established conditions of work, including seniority,
hours of work, etc. Ratification was obtained through the locals, and skilled classi-
fications voted separately on matters pertaining to them. The Board found that
no local or single group of employees may avoid being bound by the national con-
tract when the majority has so desired and that no single local or single plant
may make its own contract. The Board also found the intent of the employer and
union to be to establish a single bargaining unit. This finding resulted even
though minor facts in the contract might point to a contrary intent, i.e., the recog-
nition clause in the master agreement refers to the employees in "bargaining units";
selection of district committeemen and shop committeemen provisions also speak
of selection in "bargaining units"; strike and lockout provisions speak of an au-
thorized strike in one bargaining unit affecting the flow of materials in other bar-
gaining units. The Board found "that in consequence of this long history of col-
lective bargaining and the exclusive recognition accorded the UAW by GM on a
multiplant unit basis, there has come into existence and there now exists a single
companywide bargaining unit embracing all those plants of the company in which
the UAW has in the past been recognized as the exclusive representative, which
are covered by the existing national agreement (see cases cited in footnote 11). The
Board dismissed requests for craft severance elections on the ground that such a
request must be coextensive with the existing bargaining unit.
The undisputed evidence herein is that the Ohio statewide agreements were ne-
gotiated between and signed, and thus executed, only by the Association and the
Conference. Examination of the agreements, and the testimony herein, permit no
other conclusion. The fact that the preamble recites that these parties were acting
"solely as Negotiating Representatives for their respective members subscribing
hereto" does not change these facts. Stouffer, Association counsel, credibly testi-
fied this phraseology meant only that contractors and locals subscribed to the
policies and terms of the agreements, as distinguished from being actual signatories.
Frobe, secretary of the Local, acknowledged the Local was not a signatory. Re-
spondents' testimony corroborated Stouffer.
I have found above, the Ohio statewide agreements became effective as to all
members of the Association upon execution. I have also found that the Re-
spondents herein were members of the Association on May 4, 1959, when the
current statewide agreement was executed. I find no purpose in doing more than
to note that in many decisions the Board has held the refusal to enter into a
multiemployer agreement to be a violation of the provisions of Section 8(a)(5),
where respondent had not unequivocally withdrawn from the association before
29 In this case, the Board elucidated at length upon its discretionary function under the
provisions of Section 9(b) (2), as modified by the 1947 amendments. These findings need
not be set forth here.
2O Belle Vernon Milk Company, et al., 90 NLRB 717.
31 See American Writing Paper Corporation, et al., 94 NLRB 1773; Abbotts Dairies,
Inc, et al, 97 NLRB 1064; The Stouffer Corp, 101 NLRB 1331; Des Moines Packing
Company, 106 NLRB 206
32 General Motors Corporation, Cadillac Motor Car Division , 120 NLRB 1215.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an agreement was reached with the union. Anderson Lithograph Company, Inc.,
and Jeffries Banknote Company, 124 NLRB 920, affd., 281 F. 2d 893 (C.A. 9).
Considering the evidence in this record as a whole, I am constrained to find
that the multiemployer-multiunion unit reflected by the Association-Conference
statewide industry agreement is an appropriate unit herein. However, there re-
mains the question of whether the Local could withdraw from this unit, and whether
its conduct constituted a timely notice of an unequivocal intent to withdraw in
good faith.
b. The Local's alleged withdrawal from the statewide unit
I have found, supra (section 5, a), that the Conference represented and bargained
for the Local in 1955, 1956, 1957, and 1958, as part of a statewide industry unit.
General Counsel has urged that the Local is the "designated bargaining agent."
This is unquestionably true in the sense that the dues deduction authorizations were
in favor of the Local and the remittances made to the Local.33 However, there
can be no question that the Local voluntarily delegated its function as bargaining
agent, along with numerous other locals, to the Conference.
Respondents contend that the Conference is the only labor organization which is
a party to the statewide agreement. General Counsel urges that each of the Locals
were "parties," and could withdraw from multiunion bargaining and bargain in
units limited to the employees of each employer. That a contractor could, upon
timely notice, resign from the Association herein is undisputed. Having found
the existence of multiemployer-multiumon bargaining, the method of execution
of agreements or identity of signatories is not controlling in resolving the question
here, i.e., the adequacy of the Local's purported withdrawal.
General Counsel urges the application of the doctrine set forth in the Board's
decision in Retail Associates, Inc., 120 NLRB 388, 394, 395. He urges that there
was a timely notice of an unequivocal withdrawal in good faith. General Counsel
distinguishes from the Board's decision in Standard Register case 34 where the
Board refused to permit a party to withdraw from multiemployer bargaining be-
cause no evidence was introduced that any party had served a notice of an un-
equivocal intention to abandon joint bargaining at an appropriate time. Respond-
ents urge that the doctrine enunciated in the Retail Associates case is inapplicable
since in that case a single union sought to break off multiemployer bargaining in
which it had previously engaged with several employers. The Respondent correctly
points out that the Union which conducted the bargaining herein was the Confer-
ence, not the Local, and the Conference is not seeking to disrupt the historical bar-
gaining relationship. In view of the unpublished order of the Board in the Retail
Associates case, December 1, 1958, vacating the Decision and Direction of Election
and the opinion "insofar as they hold that the appropriate bargaining unit is a miulti-
employer unit" the degree to which that opinion can be relied upon as precedent
is doubtful at best. I find it unnecessary to reach that question.
The evidence here is that on February 23, 1959, Frobe, secretary-treasurer of
the Local, sent a letter to the Conference (see supra, section 3, a). In the letter
he purportedly revoked any power of attorney which had previously been issued
to the Conference. It is not claimed that the letter states anything else. This
letter is admittedly neither a resignation nor withdrawal from the Conference by the
Local. That membership continues.
Respondent urges a lack of evidence that Frobe was authorized to send the
February 23, 1959, letter. Respondent also urges that there is no evidence of
any meeting of Respondents' truckdriver employees authorizing the issuance of the
letter. Since other factors are decisive, I find unnecessary the resolution of these
questions.
The Respondent contends that the issue of timeliness has not been met by the
evidence and that the burden is upon the General Counsel to establish when nego-
tiations began in 1959. In view of the testimony of Stouffer, whom I have credited,
that negotiations did not begin until late February or early March there is a rea-
sonable basis for an inference that the letter was timely.
Assuming that the letter constituted a timely revocation, the next question is was
the withdrawal unequivocal and in good faith. In 1957, the Local stated a clear
intent to conduct its own negotiations with employers in the heavy and highway
construction industry even though no distinction between bargaining with individual
33 This record establishes that dues deductions, from a majority of each Respondent's
employees followed the execution of the statewide agreements.
34 The Standard Register Company, Pacific Division, 120 NLRB 1361.
FOLEY CONSTRUCTION COMPANY 1401
employers and multiemployer bargaining is set forth. - The 1959 letter contains no
reference to the Local's intent relative to bargaining. Concededly, no demand was
made upon Respondents prior to May 28, 1959, or 24 days after the 1959 Association-
Conference statewide agreement was executed.
The Board has repeatedly held that the intention by a party to withdraw must be
unequivocal, in good faith, and exercised at an appropriate time. McAnary & Welter,
Inc., 115 NLRB 1029; Jahn-Tyler Printing and Publishing Company, 112 NLRB 167.
The activity of the Local relative to withdrawal from Conference bargaining, and
demand for other bargaining, revealed by this record is summarized: (1) On
April 13, 1957, the Local advised the Conference of revocation of a previously
given power to negotiate an agreement with the heavy and highway construction
industry, advising that the Local would conduct its own negotiations. Management
was not so advised. No demand for bargaining was made by the Local, which
accepted the benefits of the statewide agreement effective May 6, 1957. A strike of
6 or 7 weeks duration was terminated July 15, 1957, with concurrence in and ad-
herence to the 1957 statewide agreement thereafter. (2) The Local advised Re-
spondent Harper on April 25, 1958, that the Local had not given the Conference
authority to bargain for it. This was at a time when the president of the Local
was a member of the Conference negotiating committee, and was followed by
concurrence in and adherence to the 1958 statewide agreement. (3) On Febru-
ary 23, 1959, the Local again purportedly revoked the power of attorney given to
the Conference to bargain for it. Unlike 1957 no intent to conduct separate
negotiations with the Association or Respondents is stated. A copy of the letter was
sent to the Association. No withdrawal from Conference membership is asserted.
No demand for bargaining was made prior to May 28, 1959. Meanwhile, the 1959
statewide agreement became effective on May 4, 1959. Respondents placed its
terms and conditions into effect and the Local has ever since accepted the benefits
thereof. On May 28, 1959, the Local made a demand Respondents bargain, as part
of a different multiemployer 35 group engaged in the activities of coal hauling,
demolition, excavating, hauling materials and machinery, and construction. The
geographical area specified included seven Ohio counties and seven Kentucky
counties "except in those cases where Local 100 has entered into a different working
agreement between the parties hereto." (4) On May 28, 1959, a Kentucky statewide
Association-Council agreement was in effect. A new Kentucky statewide agreement
became effective July 1, 1959. There is no dispute that Respondents Harper and
Foley and Local 100 were parties to these Kentucky agreements. (5) When the
"coal hauling" agreement expired on July 7, 1959, the Local struck and picketed
the employers, including these Respondents, and including Foley and Harper work-
sites in Kentucky. (6) On July 10, 1959, the Local made a demand the Respondents
negotiate concerning the "proposed agreement" submitted on May 28.
The inconsistent and equivocal conduct of the Local is thus demonstrated.
Particularly, it made no demand upon Respondent until after the 1959 Ohio state-
wide agreement became effective, and the Local accepted the benefits thereof. While
demanding bargaining disassociated from the statewide agreements, the Local entered
into a new Kentucky statewide agreement on July 1, 1959. This Kentucky agree-
ment concededly covered a substantial portion of the geographical area contained
in the bargaining demand of May 28, 1959. This conduct is further evidence of the
Local's inconsistent conduct. Stated in terms of a well-known cliche "The Local
wanted to have its cake, and eat it too."
While the status of the Board's opinion in Retail Associates, supra, is in doubt it
contains accurate summaries of the principles which have guided the Board in
analogous cases. The Board observed therein at page 39-3:
The right of withdrawal by either a union or employer from a multiemployer
unit has never been held, for Board purposes, to-be free and uninhibited, or
exercisable at will or whim. For the Board to tolerate such inconstancy and
uncertainty in the scope of collective bargaining units would be to neglect its
functions in delineating appropriate units under Section 9, and to ignore the
fundamental purpose of the Act of fostering and maintaining stability in
bargaining relationships.
At page 394:
The decision to withdraw must contemplate a sincere abandonment, with rela-
tive permanency, of the multiemployer unit and the embracement of a different
course of bargaining on an individual employer basis. The element of good
ss While the bargaining was multiemployer, the contracts indicate signature by individual
firms.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
faith is a necessary requirement in any such decision to withdraw, because of
the unstabilizing and disrupting effect on multiemployer collective bargaining
which would result if such a withdrawal were permitted to be lightly made.
I have found above that the statewide Association-Conference industry unit is an
appropriate unit herein. Under the facts presented herein, I am compelled to find
that the Local did not withdraw from the multiemployer-multiunion bargaining
unit in an unequivocal manner and in good faith.
In view of the above findings,36 it is my conclusion that this record does not
contain the preponderant evidence needed to establish that Respondents' conduct
constituted a refusal to bargain within the meaning of the Act. Accordingly, I
shall recommend that the complaints be dismissed.
On the basis of the foregoing findings of fact, and upon the entire record herein,
I have reached the following:
CONCLUSIONS OF LAW
1. The Respondents, Foley Construction Company, The W. L. Harper Company,
and Chas. F. McCurdy, Inc., individually, are each engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Truckdrivers, Chauffeurs and Helpers Union Local 100, and Ohio Conference
of Teamsters of the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, are labor organizations within the meaning of
the Act.
3. Respondents, and each of them, have not engaged in unfair labor practices as
alleged in the complaints within the meaning of Section 8(a)(5) and (1) of the
Act.
[Recommendations omitted from publication.]
311 find it unnecessary to reach or resolve the questions of ratification and estoppel
raised by Respondents. I also find It unnecessary to determine the appropriateness of the
unit sought by the Local under circumstances at variance with those found herein.
Mike Persia Chevrolet Corporation of Houston and Retail Auto-
mobile Salesmen Local No. 501 , affiliated with Retail Clerks
International Association , AFL-CIO. Case No. 23-CA-1150.
December 20, 1961
DECISION AND ORDER
On August 24, 1961, Trial Examiner A. Norman Somers issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the In-
termediate Report attached hereto. Thereafter the Respondent filed
execptions to the Intermediate Report, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
134 NLRB No. 135.