International Brotherhood of Electrical Workers

National Labor Relations Board - Board Decisions

Feb 28, 1958

119 N.L.R.B. 1792 (N.L.R.B. 1958)

1792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers, AFL-CIO, and
Local 59, International Brotherhood of Electrical Workers,
AFL-CIO and Texlite, Inc. Case No. 16-CB-90. February 28,
1958
DECISION AND ORDER
On January 11, 1957, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel and the Charging
Company filed exceptions to the Intermediate Report together with
supporting briefs.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case,' and finds merit in some of the General Counsel's and the
Charging Company's 2 exceptions. Accordingly, the Board adopts
the findings of the Trial Examiner only to the extent that they are
consistent with this Decision and Order.
The complaint alleges that the Respondent Unions refused to bar-
gain with Texlite for an appropriate unit of Texlite's employees in
violation of Section 8 (b) (3) of the Act. The Respondents defend
on the grounds that: (a) The single employer unit alleged in the
complaint as appropriate is in fact inappropriate because of a long
history of bargaining on a multiemployer basis; (b) the Respondents
did not insist on an illegal condition when they refused to sign a collec-
tive-bargaining contract unless it included an enlarged "scope" clause;
(c) Respondent Local 59 unequivocally disclaimed interest in Texlite's
employees after the expiration of the 1954 agreement, thereby reliev-
ing it of the obligation to bargain further with Texlite; and (d)
Respondent International has never been the collective-bargaining
representative of Texlite's employees and therefore could not have
violated Section 8 (b) (3). The Trial Examiner upheld the first two
defenses and recommended dismissal of the complaint. He found it
unnecessary to pass upon the other two defenses.
1. For more than 10 years Texlite bargained with Respondent Local
59 as a member of an employer association, Neon and Electrical Sign
Companies of Dallas, Texas. The last contract signed by the employer
i The Charging Company's request for oral argument is hereby denied as the record, the
exceptions, and the briefs, in our opinion , adequately present the issues and the positions
of the parties.
2 Hereinafter called Texlite
119 NLRB No. 232.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 1793
group, including Texlite, was in 1954 and was for a 2-year term end-
ing June 30, 1956. We agree with the Trial Examiner that this bar-
gaining was for a multiemployer unit. However, an employer may
withdraw from an existing multiemployer unit provided that it clearly
evinces at an appropriate time its intention of pursuing an individual
course in bargaining.' Unlike the Trial Examiner, we believe that
the evidence establishes that Texlite did evince such an intent at an
appropriate time.
The 1954 agreement provided that it could be amended or termi-
nated by appropriate notice given at least 75 days before any June 30
anniversary date. Pursuant to this provision, Local 59 notified the
employers on April 7, 1955, that it desired to make certain economic
changes in the agreement. The employers jointly submitted counter-
proposals. Among other things, they asked for the amendment of the
recognition clause in the existing contract so as to "specify more
clearly the classifications of employees who are represented by the
Union and their duties." 4 In response to the latter request of the
employers, the union representatives submitted a detailed statement
of the work to be covered by the agreement. Specifically, it provided
that the contract was to cover "the layout, forming, fabrication, and
assembling of all metal parts." After protracted negotiations, Local
59 and all the employer-members of the association, except Texlite, on
February 23, 1956, signed a new collective-bargaining agreement
which included the above-described "scope" clause. Texlite refused
to sign because, the work of laying out, forming, fabricating, and
assembling of metal parts in its operation was being performed by
employees who were members of another union, United Steelworkers
of America, AFL-CIO, which in 1943, following an election, had been
certified as bargaining representative of Texlite's production and
maintenance employees excluding those represented by Local 59.
On April 13, 1956, Local 59 wrote Texhte that, in accordance with
the terms of the 1954 contract it desired to terminate that contract
as of June 30, 1956. On April 27, Texlite replied and, referring to
a provision in the 1954 agreement calling for a meeting of the parties
60 days before the termination date, invited the union's representatives
to a bargaining session on May 9, 1956. The parties met and Texlite
proposed an agreement which was identical with that signed by other
employers on February 23, 1956, except that it named only Texlite
as the employer, covered only Texlite's employees and had a narrower
"scope" clause than the contract signed with other Dallas employers.
No agreement was reached. Meanwhile on March 21, 1956, Texlite
3 York Transfer & Storage Co , 107 NLRB 139, 142; Pacific Metals Company, Ltd,
et al , 91 NLRB 696, 699.
4 The existing recognition clause provided that the contract covered "all employees
performing work within the jurisdiction of the Union
47 6321-5 8-vol 119-114
1794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had filed a representation petition with the Board seeking an election
in a unit of its own employees engaged in "layout, forming, fabrica-
tion, and assembling of all metal parts of electrical signs, including
the assembly of all plastic parts." 5 The Board dismissed the petition
upon the grounds that Texlite's existing contract with the Steel-
workers was a bar and the unit sought was inappropriate. Thereafter,
on June 1, 1956, Texlite wrote a letter to Local 59 referring to the
Board's decision and asking for the resumption of negotiations. Local
59 replied that after June 30, 1956, it was disclaiming any interest in
representing Texlite's employees.
The facts thus show that Texlite refused to sign the February 23,
1956, agreement which the other members of the association had ap-
proved because of disagreement over a material term of that agree-
ment-the "scope" clause, and that thereafter it unsuccessfully
attempted to negotiate an individual contract with Local 59 embody-
ing what it believed to be an appropriate "scope" clause. We believe
that this evidence warrants a finding, and we find, that on and after
February 23, 1956, Texlite abandoned multiemployer bargaining and
clearly indicated its intention of thereafter pursuing an individual
course of action with respect to its labor relations. Local 59 so con-
strued Texlite's action at that time for, while adhering to its recently
signed contract with other members of the employer association, it
canceled contract relationships with Texlite and disclaimed interest
in representing that company's employees.
We also find that, as Texlite refused to sign the February 23, 1956,
multiemployer collective-bargaining agreement, its withdrawal from
the multiemployer unit was timely. The case of McAnary c1 Welter,
Inc.,6 upon which the Trial Examiner relied for his finding that
Texlite's withdrawal from the multiemployer unit was not made at
an appropriate time, is not apposite. In the McAnary & Welter case
the employer attempted to withdraw from the multiemployer unit
after agreement on terms of a contract had been reached, the employees
had approved the contract, and one of the company's officers had
actually signed the contract. In the present case, unlike in the
McAnary c Welter case, the outcome of the association bargaining
affected the individual "employer's" relationship with, and obligation
to another union. For here, the expanded "scope" clause, if agreed to
and implemented by Texlite, would undoubtedly have had a serious
impact on Texlite's relations with, and legal obligation to, the Steel-
workers, the contractual representative of most of Texlite's plant
employees. Consequently, Texlite's opposition to a contract contain-
ing the enlarged "scope" clause was adamant and was expressed
throughout the negotiations. At no time did it indicate approval of
616-RM-112 (not reported in printed volumes of Board Decisions and Orders).
0 115 NLRB 1029 (Chairman Leedom and Member Bean dissented).
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 1795
the final agreement or its intention to sign it. Moreover, it also
appears here, unlike the situation in the McAnary cC Welter case, that
the union involved in the multiemployer bargaining itself recognized
the timeliness of the individual "employer's" withdrawal, for Local
59 in fact engaged in individual bargaining with Texlite after Texlite
had refused to sign the new contract.
Accordingly, as Texlite withdrew from the multiemployer unit on
February 23, 1956, we find that a unit limited to Texlite's employees
was thereafter appropriate for the purposes of collective bargaining.
2. The General Counsel contends that the Respondent Unions un-
lawfully refused to bargain with Texlite by adamantly insisting as a
condition to signing an agreement that the scope of the historical
bargaining unit be enlarged to include classifications of work which
are covered by a Board certificate to, and a collective bargaining unit
with, another labor organization. The Trial Examiner found that
the certificate to the Steelworkers, the other labor organization, did
not preclude Texlite from assigning the requested work tasks to
-employees in the unit represented by the Respondent Local, and
that the Respondent Local's insistence upon such an assignment as
a condition to signing a collective-bargaining agreement was not a
violation of Section 8 (b) (3). We do not agree with this finding of
the Trial Examiner.
There is no substantial dispute about the facts and the Intermediate
Report reflects them accurately. Since before 1943, Respondent Local
59 has had successive collective-bargaining contracts with Texlite and
,other members of the neon and electrical sign manufacturers associ-
ation in Dallas for a unit of employees classified as journeymen sign
electricians, erectors, tube benders and pumpers, apprentices, and
helpers. In 1943, following a consent election, the Regional Director
certified the Steelworkers as bargaining representative of all Tex-
lite's production and maintenance employees, excluding, among
others, the employees represented by Local 59. Since the certification,
Texlite and the Steelworkers have had collective-bargaining contracts
covering the certified unit. The contract current at the time of the
hearing was scheduled to expire in November 1957.
Until 1953 there was a well-recognized division of duties between
employees in the separate units. The electricians, represented by the
Respondents, did the electrical work connected with the fabrication,
installation, and servicing of neon and electrical signs. The produc-
tion and maintenance employees, principally sheet metal workers, did
the metal "facing" work on these signs. In 1953 the Respondent
International decided as a matter of national policy to lay claim to all
,operations, including nonelectrical work, in the manufacture of neon
and electrical signs. Pursuant to a directive from the International,
Local 59 thereafter contended that employees in the unit it represented
1796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were entitled to perform the sheet metal operations on the "faces" of
neon and electrical signs. As a basis for this claim, Local 59, sup-
ported by the International, relied on the word "manufacture"
contained in the collective-bargaining agreement with Texlite v The
latter refused to accede to this claim because of the Steelworkers'
certificate and the bargaining history in the plant. After a protracted
dispute, the Respondents refused to sign any collective-bargaining
contract with Texlite unless the latter accede to its jurisdictional
claims and agreed to assign the work requested to its members.
A union which is the statutory representative of employees in an
appropriate unit has the obligation, as does the employer, to bargain
in good faith with respect to terms and conditions of employment for
employees in that unit. A refusal "to enter into a collective bargain-
ing agreement, unless the other party to the negotiations agrees to.
to a provision or takes some action which is unlawful or inconsistent
with the basic policy of the Act is a refusal to bargain in violation
of the Act." 8 Hence a union which insists upon bargaining only for
an inappropriate unit does not fulfill its obligation to bargain as
defined in the Act.9
There is, contrary to the implied finding of the Trial Examiner, no
question of good-faith doubt on the part of the Respondents as to
the appropriateness of the unit for which the Respondents are bar-
gaining representatives. There has been a long history of collective
bargaining between Texlite and the Steelworkers on the one hand and
Texlite and Local 59 on the other; there was also a certification of
representatives issued to the Steelworkers in 1943. The word "manu-
facture" contained in Local 59's contract with Texlite is not a new
phrase. It is merely the continuation of a word which has appeared
in previous contracts between Texlite and Local 59. By practical
construction over a long period of time, all parties understood that
Local 59's contract covered only the electrical work in the manufacture
of neon and electrical signs and that the so-called "facing" work fell
within the province of the Steelworkers. The present controversy
7 The contracts covering electricians provided that "the electrical work to be performed
by employees covered by this Agreement shall include the manufacture, assembly, erec-
tion, cleaning and maintenance of all electrical signs . . (Emphasis supplied].
8 American Radio Association, 82 NLRB 1344, 1346.
In Douds v International Longshoremen's Association , 241 F. 2d 278 ( C. A 2), the
respondent union refused to bargain with employers except for a unit which was larger
than that found appropriate by the Board in a representation proceeding In upholding
a Board finding that the respondent union had thereby violated Section 8 (b) (3) of the
Act, the court said ( at p. 283) :
The process of change not permitted by the Act is one that denies the Board this
ultimate control of the bargaining unit and disrupts the bargaining process itself
This is precisely what occurs, when, after the Board decided what the appropr_nte
bargaining unit is, one party over the objection of the other demands a change in
the unit. Such a demand interferes with the required bargaining "with respect to
rates of pay, wages, hours and conditions of employment" in the manner excluded by
the Act It is thus a refusal to bargain in good faith within the meaning of Sec-
tion 8 ( b) (3).
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 1797
arose entirely from the fact that the Respondent International had
decided as a matter of national policy that henceforward its local
unions were to insist upon the performance of all production work
in the manufacture of signs, including nonelectrical work. Unless
agreement on such coverage clause was reached, no contracts were
to be signed and the union label was not to be awarded to a recalcitrant
(employer. The inability to use the union label is a severe handicap
to an employer in the sign business. The threat to withhold the union
label was thus the sanction which the Respondents employed to compel
compliance with their demands.'°
The Trial Examiner found that the Respondents did not insist
upon an illegal condition as a prerequisite to entering into a contract
because they sought only to have certain work assigned to their mem-
bers and did not also seek to have the employees then performing such
work transferred from one unit to another. In other words, he con-
cluded that it was not unlawful for the Respondents to have insisted
upon the assignment of work to members of the unit of electricians
so long as the Respondents did not also seek to represent the employees
in the production and maintenance unit then performing such work.
However, as the General Counsel points out in his brief, if the Trial
Examiner is correct, the Respondents could lawfully have destroyed
the entire production and maintenance unit by insisting upon the
reassignment of all the work being done by employees in that unit
provided they disclaimed any intention of representing the existing
employees presently doing such work. Moreover, in a realistic sense,
the Respondents wanted both the disputed work and the right to
represent employees who would perform that work, albeit they desired
to represent prospbctive rather than the presently employed employees.
This is obvious from a recital of what would happen if Texlite com-
plied with the Respondents' demand. About 90 sheet metal workers
now spend about 10 percent of their time in the work which the Re-
spondents insist upon having. This is equivalent to the full-time
work of about nine employees. There are 15 employees in the unit
now represented by Local 59. Assuming that both groups of employees
are now fully employed and that conditions otherwise remain un-
changed, it is obvious that the number of employees to be represented
by Local 59 would be sharply increased, whereas those represented by
the Steelworkers would be reduced by a substantially equivalent
number.
This brings us to the question of the nature of appropriate bar-
gaining units. The appropriate bargaining unit is described in terms
of people in certain job categories : for example, all production and
maintenance employees, or all electricians. In actual practice, how-
i°A strike to compel Texlite to assign the "facing" work to members of the Respondents
would have violated Section 8 (b) (4) (D).
1798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, this means all employees doing production and maintenance
work in one case, and all employees doing the work of electricians
in the other. It is the kind of work performed which is the principal
determinant of groupings in bargaining units. The Board in its unit
determinations does not decide who shall do certain work. That is-
ordinarily for the employer to decide. But when the employer has-
decided that certain work shall be performed by a certain class of
employees, and the union is certified as the representative of such:
employees in an appropriate unit, the union is thereafter protected:
under the Board's certificate from encroachment by another labor
organization.
Thus, in the present case, employees doing "facing" work have been
included in the unit represented by the Steelworkers, and necessarily
excluded from that for which Local 59 is bargaining representatives.
Texlite has refused to change its method of operations and the Steel--
workers has refused to relinquish its representation rights over the
disputed employees to the Respondents. Under the circumstances, by
refusing to enter into a collective-bargaining contract with Texlite•
unless "facing" work was transferred from employees in the pro-
duction and maintenance unit to those in the electricians unit, the
Respondents have in substance insisted upon bargaining only for any
inappropriate unit. We find that the Respondents have thereby
failed to discharge their bargaining duty under the Act.
3. We find no merit in Local 59's contention that its disclaimer of
interest in the employees it had theretofore represented relieved it of
any further obligation to bargain with Texlite. On June 5, 195&,.
Local 59 wrote a letter to Texlite which reads as follows :
Enclosed for your information is a copy of a letter to Dr.
Edwin A. Elliot, Regional Director, National Labor Relations
Board, Sixteenth Region, which is self-explanatory.
Please be advised that if the current agreement between Local
Union No. 59, I. B. E. W. and Texlite, Inc. expires at 12 mid-
night June 30, 1956, Local Union No. 59, I. B. E. W., AFL-CIO,
disclaims any further interest in representing any employees of
Texlite, Inc.
This letter was obviously Local 59's answer to Texlite's letter of
June 1, 1956, which called attention to the Board's decision in Case
No. 16-RM-112 and asked for a new bargaining session.
Coming more than a year after negotiations on a new contract had
first begun, first on a multiemployer and later on a single-employer
basis, this'alleged letter of disclaimer was too late to render nugatory
its previous unlawful refusal to bargain. Moreover, a disclaimer to
be effective must be unequivocal and must have been made in good
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 1799
faith.ll A union's "bare statement" of disclaimer is not sufficient to
establish that it has abandoned its claim to representation if the sur-
rounding circumstances justify an inference to the contrary.12 The
union's conduct must not be "inconsistent" with its alleged disclaimer.13
All the evidence suggests that Local 59's disclaimer was a tactical
maneuver and not a good-faith renunciation of its representation
rights. Thus, since the disclaimer the electricians have continued to
be members of Local 59; on June 30, 1956, Local 59 restrained the
electricians from striking; Local 59 continues to receive contributions
to its welfare fund from Texlite in behalf of the electricians; and at
the hearing Local 59's business representative stated that he was will-
ing to sign a contract with Texlite provided the latter agreed to the
enlarged "scope."
Accordingly, we find that Local 59's alleged disclaimer of June 5,
1956, was not made in good faith and was therefore ineffective to
relieve it of its obligation to bargain with Texlite. As Local 59
refused to bargain for employees in an appropriate unit, we find that
it violated Section 8 (b) (3) of the Act.
3. Having found Local 59 in violation of 8 (b) (3), the question
remains whether, as the complaint alleges, the Respondent Interna-
tional shares in the liability for the unfair labor practices found.
The International's constitution provides in the pertinent parts of
its article XVII as follows :
SEC. 7: . . . all bylaws, amendments and rules, all agreements,,
jurisdiction, etc., of any kind or nature, shall be submitted in
duplicate form to the I. P. [International President] for approval.
In case of agreements, however, additional copies are required by
the 1. 0. Therefore, 6 signed copies of construction trades agree-
ments and 5 signed copies of all other agreements shall be sub-
mitted to the I. P. No L. U. [Local Union] shall put in effect
any bylaw, amendment, rule or agreement of any kind without
first securing such approval. All these shall be null and void
without I. P. approval. The I. P. has the right to correct any
bylaws, amendments, rules or agreements to conform to those in
the Constitution, and the policies of the IBEW.
SEC. 10: Except when decided otherwise by the I. P. agree-
ments between the L. U.'s and employers must contain a condition
that the L. U. is part of the IBEW and that a violation or annul-
ment of agreement with any L. U. annuls all agreements entered
into with the same employer, corporation or firm and any other
L. U. of the IBEW.
11 Mississippi Valley Structural Steel Company, 115 NLRB 1288, 1289 , footnote 1
Standard Automotive Manufacturing Company, 109 NLRB 726.
12 3 Beall Brothers 3, et at, 110 NLRB 685, 687.
Is McAllister Ti ansfer, Inc., 105 NLRB 751, 753
1800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SEC. 11: All L. Us. shall be compelled to live up to all approved
agreements unless broken or terminated by the other party or
parties, which fact shall first be ascertained by the I. P. No
agreement of any kind or nature shall be abrogated without
sanction of the I. P. [Emphasis supplied.]
The record shows that Local 59 and the International adhered to
these provisions with respect to the collective-bargaining agreements
which Local 59 had signed with the Neon and Electrical Sign Com-
panies of Dallas, Texas. These success ve contracts were submitted
by Local 59 to the International's president for approval before being
put into effect and were approved by the international president.
Moreover, the record shows that the present conflict between Local 59
and Texlite as to the scope of Local 59's bargaining unit had its origin
in a policy established by the International in 1953 for the complete
takeover of all operations involved in the production of neon and
electrical signs in the whole industry. The conflict was, therefore, not
of a local nature but part of a pattern designed to implement the
International's policies.
The record also shows that during the multiemployer stage of
bargaining in 1955 and the early part of 1956, 3 high ranking officers
of the International were personally present at and took an active
part in the bargaining sessions.
Finally, at a meeting with representatives of Texlite who came to
him requesting that an exception be made to the International's policy
because of the Steelworkers' certificate, the international president
declined to grant the request and insisted that the International was
going to take over all operations in the neon and electrical sign
industry without exception.
On these facts and the record as a whole, we find that the Inter-
national's constitution empowers the International to supervise, con-
trol and direct the bargaining negotiations of its locals, and that in
the instant case the International has exercised such powers, with
Local 59 following such directions and submitting to such control
and supervision. We further find, therefore, that in addition to
Local 59, the International was also, at all times here material, under
the statutory duty to bargain collectively imposed upon employee
representatives by Section 8 (b) (3) of the amended Act.14
As the International induced Local 59 to insist on bargaining in
an inappropriate unit, and as the International directed and con-
trolled the unlawful actions of Local 59, we find, accordingly, that
the International thereby also violated Section 8 (b) (3) of the Act.
14 Chicago Typographical Union No 16, 86 NLRB 1041, 1045, enfd. American Newspapers
Publishers' Association v N L R B., 193 F. 2d 782, 804 (C. A 7) ; International
Typographical Union, et al., 104 NLRB 806, 807.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 1801
THE REMEDY
Having found that the Respondents have refused to bargain with
Texlite, Inc., we shall order the Respondents to cease and desist from
engaging in such unlawful conduct and to take certain affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Texlite, Inc.,, is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, AFL-CIO,
and Local 59, International Brotherhood of Electrical Workers,
AFL-CIO, are labor organizations within the meaning of Section
2 (5) of the Act.
3. All tube benders, journeymen sign electricians, erectors, appren-
tices and helpers of Texlite, Inc., employed at its Dallas, Texas, plant,
excluding all clerical, technical and other employees, and supervisors,
as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act.
4. The Respondents are, and at all times material herein have been
the exclusive representatives of the employees in the above appropriate
unit for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
5. By refusing to bargain for an appropriate unit, the Respondents
have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (b) (3) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, International Brother-
hood of Electrical Workers, AFL-CIO, and Local 59, International
Brotherhood of Electrical Workers, AFL-CIO, their successors,
assigns, officers, representatives, and agents, shall :
1. Cease and desist from :
(a) Insisting, as a condition of executing a collective-bargaining
agreement with Texlite , Inc., Dallas, Texas, covering employees in the
unit found appropriate in paragraph 3 of the conclusions of law,
above, that the "scope" of such contract cover duties presently being
performed by employees in a unit currently represented by another
labor organization , United Steelworkers of America, AFL-CIO.
1802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Texlite, Inc., Dallas,
Texas, on the basis of the aforesaid appropriate unit and subject to
the provisions of Section 9 (a) of the Act, with respect to rates of
pay, wages, hours of employment, or other terms and conditions of
employment, and if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post in conspicuous places in their respective business offices
and meeting halls and on the bulletin boards of Texlite, Inc., the
latter willing, including all places where notices to members and
employees are customarily posted, copies of the notice attached hereto
and marked "Appendix A." 15 Copies of said notice to be furnished
by the Regional Director for the Sixteenth Region, shall, after being
duly signed by representatives of Respondents, be posted by Respond-
ents immediately upon receipt thereof and be maintained by them
for sixty (60) consecutive days thereafter. Reasonable steps shall be
taken by Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, what steps
Respondents have taken to comply herewith.
MEMBERS JENKINS and FANNING took no part in the consideration
of the above Decision and Order.
ss In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enfoicing an Order."
APPENDIX A
NOTICE TO ALL MEMBERS OF THE INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO, AND LOCAL 59, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, AND TO EM-
PLOYEES OF TEXLITE, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT insist as a condition of executing a collective-
bargaining agreement with Texlite, Inc., Dallas, Texas, covering
employees in the appropriate unit described hereinafter, that
the "scope" of such contract cover duties presently being per-
formed by employees in a unit currently represented by another
labor organization, United Steelworkers of America, AFL-CIO.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 1803
WE wiLL bargain , upon request , with Texlite , Inc., Dallas,
Texas , on the basis of the appropriate unit described hereinafter
and subject to the provisions of Section 9 (a) of the National
Labor Relations Act, with respect to rates of pay, wages, hours
of employment , or other terms or conditions of employment, and
if an understanding is reached , embody such understanding in
.a signed agreement.
The appropriate bargaining unit is : all tube benders , journey-
men sign electricians , erectors , apprentices and helpers of Texlite,
Inc., employed at its Dallas , Texas , plant, excluding all clerical,
technical and other employees , and supervisors as defined in the
Act.
INTERNATIONAL BROTHERHOOD OF ELEC'IitI-
CAL WORKERS , AFL-CIO,
Labor Organization.
By----------------------------------
(President)
LOCAL 59, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO,
Labor Organization.
Dated------------- By----------------------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Texlite, Inc., herein also sometimes called the
Charging Party or Texlite, the General Counsel of the National Labor Relations
Board , herein called the General Counsel and the Board, respectively, by the
Acting Regional Director for the Sixteenth Region (Fort Worth , Texas ), issued
his complaint , dated July 27, 1956, against International Brotherhood of Electrical
Workers, AFL-CIO, and against Local 59, International Brotherhood of Electrical
Workers, AFL-CIO, herein respectively called the Respondent International or
The IBEW , and the Respondent Local or the Union. With respect to the unfair
labor practices , the complaint alleges that : (1) At all material times the Respondents
have been the exclusive bargaining representatives of all the employees of Texlite
in a specified appropriate unit, ( 2) on or about February 23, 1956, and at all times
thereafter , the Respondents refused to sign a contract , as to which oral agreement
had been reached on all terms, unless the contract covered an inappropriate unit
in that the Respondents were demanding to represent by said contract employees
who were represented by Local 3146, United Steelworkers of America , AFL-CIO,
pursuant to its certification in Case No. 16-R-728; and ( 3) by such conduct the
Respondents have refused to bargain collectively with Texlite and thereby have en-
gaged, and are engaging , in unfair labor practices within the meaning of Section
8 (b) (3) and Section 2 (6) and ( 7) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act.
In their duly filed answers , the Respondents denied the commission of any
unfair labor practices . In addition , the Respondent International affirmatively
averred that it owed no duty to bargain with Texlite because it had never been
certified or otherwise designated as bargaining agent for any employees of Texlite.
The Respondent 's answers also deny the appropriateness of the unit alleged in the
complaint and affirmatively allege that : ( 1) An industry-wide unit has been
1804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established as appropriate by custom, practice and history of collective bargaining;
(2) in December 1955 Texhte orally agreed to a certain collective-bargaining agree-
ment between the Neon and Electrical Sign Companies of Dallas, Texas, and Re-
spondent Local; and (3) thereafter Texlite refused to sign the contract to which
it had agreed.
Pursuant to due notice, a hearing was held from October 31 to November 2,
1956, inclusive, at Dallas, Texas. The General Counsel, the Charging Party,
and the Respondents were represented by counsel at the hearing, and afforded
full opportunity to be heard, to examine and cross-examine witnesses, to introduce
relevant evidence, to present oral argument at the close of the hearing, and there-
after to file briefs as well as proposed findings of fact and conclusions of law.
Subsequent to the hearing, all parties filed briefs, which I have fully considered.
Upon the entire record in the case, and from my observations of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF TEXLITE, INC.
Texlite, Inc., a Texas corporation with its main office and place of business at
Dallas, Texas, maintains and operates a plant at Dallas, Texas, where it is en-
gaged in the manufacture of electrical signs, plastic and other types of commercial
signs, aircraft detail parts , and porcelain and enamel detailed walls . During the
period from July 1 , 1955, to June 30, 1956 , Texlite purchased materials, supplies
and equipment , valued at $1 ,747,141.74, approximately 53 percent of which, in
value, was purchased and shipped to Texlite 's plant from points outside the State
of Texas, during the same period Texlite manufactured and sold at its Dallas plant
products valued at $3 ,341,506.05, approximately 52 percent of which, in value, was
shipped to points outside the State of Texas.
Upon the foregoing undisputed facts, 1 find that Texhte, Inc . is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answers admit , and I find, that International Brother-
hood of Electrical Workers, AFL-CIO, the Respondent International , and Local
59, International Brotherhood of Electrical Workers, AFL-CIO, the Respondent
Local, are labor organizations within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and background 1
Pursuant to a consent election agreement, entered into on October 12, 1943,
in Case No. 16-R-728 between Texhte and United Steelworkers of America, Local
3146, AFL-CIO, herein called the Steelworkers, the Regional Director for the
Sixteenth Region certified 2 the Steelworkers on October 21, 1943, as the exclusive
bargaining representative for a unit of all employees at Texlrte's plant, excluding
sign electricians, sign erectors, tube men, clerical, technical, and supervisory em-
ployees.3 Neither the consent election agreement nor the certificate enumerated
the classifications included in the unit. From that time to date, the Steelworkers
has represented the employees in the above unit under successive contracts with
Texlite, with the last contract executed on November 10, 1955, for a 2-year
period.
Since before 1943 the Respondent Local has had successive contracts with the
Neon and Electrical Sign Companies of Dallas, Texas, which included Texlite,
covering a unit of employees classified as journeymen sign electricians, erectors,
tube benders and pumpers, apprentices, and helpers. The Respondent Local has
'Unless otherwise indicated, the findings in this section are based on evidence and
testimony which is either admitted, undenied, or mutually consistent
2 In Tezlste, Inc, 16-RM-112, the Board in its decision, dated May 24, 1956, erroneously
refers to this as a Board certification.
3 There is some confusion in the record as to the precise classifications excluded from
the Steelworkers' unit The General Counsel stated at the hearing that a search of
Regional Office files failed to disclose a copy of the certification or of the consent-election
agreement. The preponderance of the evidence, however, warrants the finding made in
the text as to the unit for which the Steelworkers was certified.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 1805
continuously been recognized as the bargaining representative of the employees in
these classifications at the plants of the Neon and Electrical Sign Companies of
Dallas, Texas, including the plant of Texlite. The last contract to which Texlite
was a signatory ran from July 30, 1954, to June 30, 1956.
Briefly , the following sequences and operations are performed at Texlite 's plant
in the manufacture or fabrication of a sign, whether it be an electrical or nonelec-
trical sign: A sheet metal bench worker prepares a cutting list, which is turned over
to a material handler who fills the requisition for steel. The sheets of steel are then
cut to the desired size on a shear machine , operated by two men . The sheet metal
steel is then moved to the sheet metal bench worker, where a sheet metal mechanic
lays it out and scribes it, preparing it for any holes that might be placed in the sign.
This is called a bench operation . The steel is then moved to a housing hole punch
machine for punching housing holes or filler fastener holes. The material is then
moved to a break machine for a bending operation. Employees operating this
machine are classified as break operators. The steel is then moved back to a
table, where the corners are welded and a grinding and filling operation is performed
by sheet metal bench workers. There is also a spot-welding operation to spot
attachment clips onto the sign or to the frame. At this point, the sign is inspected
by sheet metal inspectors. All this work is performed in Texhte's sheet metal
department. The sign is then moved to the pickle room for processing. It is loaded
in a pickle basket, taken to a cleaner and degreased. A pickling operation is
then performed whereby the sign is put into acid, pickled, and derusted. The sign
is then moved to the porcelain enamel department for processing. The next opera-
tion is a brushing operation or a screen processing operation , after which the sign
comes through for final inspection by the final inspectors. Some operations are
also sometimes performed in the metal department on a hydro-press, which is a
hydraulic machine which blanks out parts for signs; on a punch press machine, used
for smaller signs; on a drill press machine, used in drilling holes in heavier steel;
and on a unishear machine, which is an operation performed on a piece of metal
when the line is irregular and follows a cutout such as a circle . Different types of
welding operations may also be performed such as arc welding , spot welding, and
gas welding . After final inspection , if the sign is to be nonelectrical , it either goes
to the shipping department for shipment as a knockdown sign, or to the assembly
department for assembly and shipment as an assembled sign. If however, the sign
is to be a neon or electrical sign, it then goes to the neon-electrical department where
the employees represented by the Respondent Local perform their work on the sign.
All of the above-described operations have been traditionally performed at
Texlite's plant by the employees represented by the Steelworkers. The same opera-
tions have been, and are, performed by the same employees on electrical, neon, or
nonelectrical signs. The employees who perform these operations in the metal
department on both electrical and nonelectrical signs are classified by Texlite as
break operators, hydro-press operators, machine operators, punch press operators,
setup men, shearmen, sheet metal mechanics (class #1 to #4), unishear operators,
arc welders , spot welders , gas welders , and general helpers; the employees who per-
form these operations in the plastics department on both electrical and nonelectrical
signs are classified by Texlite as special fabricator, general fabricator, machine opera-
tor, painter, and press operator. All employees in these classifications have been,
and are, represented by the Steelworkers and covered by the Steelworkers' contracts
with Texlite.
The employees treated by the Respondent Local and Texlite as being represented
by Respondent Local and covered by the contracts between the Respondent Local
and the Neon and Electrical Sign Companies of Dallas, Texas, are classified as tube
benders, journeymen sign electricians, foremen, apprentices, and helpers. These are
the classifications which are listed by Texhte for its neon-electrical department. The
journeymen sign electricians also performed maintenance work, which included sign
erection or hanging. Tube benders are also known as tube pumpers. In these
contracts, the Neon and Electrical Sign Companies of Dallas, Texas, recognized the
Respondent Local as the exclusive representative of all their employees performing
work within the jurisdiction of the Respondent Local for the purpose of collective
bargaining in respect to rates of pay, wages , hours of employment , and other condi-
tions of employment. The contracts also provided that "the electrical work to be
performed by employees covered by this Agreement shall include the manufacture,
assembly, erection , cleaning and maintenance of all electrical signs, the manufac-
ture of neon tubes, the manufacture of cold cathode lighting tubes, together with
their installation , whether of the neon gas tube, receptacle, or reflector type, and
shall also include all neon window signs or other work, the bending, pumping and
1806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
repairing of all tubes used as a conductor of electricity, for whatever purpose
intended." (Emphasis supplied.)
The meaning of the word "manufacture" in connection with electrical signs was
a source of dispute between the Respondent Local and Texlite. The Respondent
Local, maintaining that all the work performed on an electrical sign was within its
jurisdiction, contended that the word "manufacture" covered all work on an elec-
trical sign, including the sheet metal work on the face of the sign; while Texlite con-
tended that it covered only the manufacture of the frame or filler and did not include
any of the work performed on the face of the sign in the metal department by the
employees represented by the Steelworkers. Thus, L. E. Darsey, business manager
of Respondent Local, credibly testified, without contradiction, that when the con-
tract of June 30, 1953, was negotiated, he informed Lindsey, Texlite's then personnel
director who participated in the negotiations, that the Respondent Local regarded
the word "manufacture" as covering the sheet metal work on the face of the sign.
Also, in 1954, Respondent Local refused to furnish the IBEW label to Texlite unless
Texlite would abide by the agreement defining the scope of the work to be per-
formed by the employees represented by Respondent Local as including the "manu-
facture" of electrical signs, which the Local contended included sheet metal work
on the face of the signs. In the settlement of the litigation arising out of this
dispute, the Respondent Local agreed to have no further dispute "relative to the
manufacture of sign faces and letters" during the term of the contract and Texlite
agreed "to meet with the Union for the purpose of clarifying this and any other
misunderstandings."
Despite the claims and contentions of the Respondent Local, the fact remains that
in actual practice the employees in the classifications represented by Respondent
Local did not perform the sheet metal work on the face of the signs at Texlite's
plant or any of the work performed by the employees represented by the Steel-
workers. They did however manufacture the angle iron frames for the interior of
the electrical signs and the nonporcelain filler; fabricate the I-beam and the angle
iron pickups; wire the signs; install sockets and lamps; put neon tubing under the
letters; place housings into the sign frame and tube supports onto the sign; fasten
letters onto the sign; and assemble the filler of the outer rim to the frame. Wit-
nesses for the General Counsel testified that in connection with these operations,
these employees also had occasion to do some layout work, cutting, shearing, punch
work, drill work, welding and paintwork. Thus, they would cut the angle irons to
size and weld them together. This was performed on a machine called a buffalo
iron worker, located in the department. When they had to do shearing on heavy
gauge material ironwork, they used an old shearer in the department. They per-
formed punch work on the buffalo iron worker and they drilled through heavy plate
on a drill press. They welded together the angle iron and all component parts in a
jig, and did touch up paintwork when necessary.4
Employees in the classifications represented by the Respondent Local received
from 40 cents to 1 dollar more than the employees in the above-described classifica-
tions represented by the Steelworkers.
B. The 1955-56 negotiations 5
1. The negotiations from April to December 6, 1955
The 1954 contract between the Respondent Local and the Neon and Electrical
Sign Companies of Dallas, Texas, which included Texlite, was to continue in effect
until June 30, 1955, and from year to year thereafter unless changed or terminated
pursuant to written notice given at least 75 days prior to June 30 of any year. The
contract also provided that when notice for changes only is given, the nature of the
changes desired must be specified in the notice and that the original provisions shall
remain in full force and effect until a satisfactory conclusion is reached in the matter
of such changes.
Pursuant to these provisions, Darsey, business manager of Respondent Local,
wrote identical letters, dated April 7, 1955, to each of the Neon and Electrical Sign
* H B. Guernsey, general superintendent of Texlite for 16 years until April 1956, testi-
fied, as a witness on behalf of the General Counsel, that on occasion these employees also
did some break work. Clayton J. Wolf, plant superintendent since 1956 and assistant
plant superintendent prior thereto, testified, as a witness for the General Counsel, that
to his knowledge the assemblers represented by Respondent Local never encountered an
operation which required breaking.
5 Unless otherwise indicated, the findings In this section are based on evidence and
testimony which is either admitted, undenied, or mutually consistent.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 1807
Companies of Dallas, Texas, including Texlite, indicating a desire to make certain
changes and amendments and specifying 4 proposed amendments pertaining to holi-
day pay, wages , vacation pay, and the appointment of a foreman when 4 or more
men are appointed on a job outside the shop . At that time, the Neon and Electrical
Sign Companies of Dallas, Texas, were comprised of the following four companies:
J. F. Zimmerman & Sons, Federal Sign Company of Texas, McMath-Axilrod Corpo-
ration , and Texlite , Inc. Upon receipt of this letter, the 4 companies got together
as a group , and prepared and sent to Darsey a joint reply on a single document,
dated April 15 and signed by the 4 companies , setting forth 17 proposed amendments
which the companies jointly desired to make in the agreement . The first proposed
amendment provided that the heading of the agreement should make the Respondent
International a party to the contract as well as the Respondent Local and that the
Respondent International should sign the agreement as a party . Another proposed
amendment provided that the contract should "specify more clearly the classifications
of employees who are represented by the Union and their duties."
By a single joint letter dated April 19, 1955, the four companies advised Darsey
that the first conference be held on April 29 or 30. The first negotiating meeting
was held on April 29 and thereafter numerous negotiating conferences were held
until December 6, usually twice a week . Each of the four companies was represented
at these meetings by its own duly authorized representatives who participated jointly
in the negotiations . Texlite was represented by Curtis W. Thompson, a labor rela-
tions consultant with full authority to negotiate and sign the contract on behalf of
Texlite. In some meetings , Texlite was also represented by its then vice president
and general manager, Dumond . The Respondent Local was represented by Business
Manager Darsey and a representative of the Local at the plant of each of the four
companies . Also present were some International representatives who were assigned
to aid Respondent Local in its negotiations , in response to Darsey's request. Thus,
Albert M. Lindstrom , Jr., was present at all meetings ; Otto Rieman , the Interna-
tional 's chief advisor on the neon and electrical sign industry , appeared at about
three meetings; and E. A. Edwards, an International vice president, appeared at the
first meeting because of the companies ' proposal that the Respondent International
became a party to the contract.
Negotiations on all proposals advanced by the 4 companies and the Respondent
Local were conducted at these meetings between the Respondent Local on the one
hand and the 4 companies jointly on the other hand . The Respondent Local had
submitted a proposed contract which served as a basis for negotiations at some of
the meetings . The classifications of employees covered by this proposed contract
were identical with those in prior contracts , that is, journeymen sign electricians,
tube benders and pumpers , apprentices , and helpers . However, in response to the
companies ' proposal that the contract should "specify more clearly the classifications
of employees who are represented by the Union and their duties," the proposed con-
tract contained a "scope," clause , which detailed in four paragraphs the work to be
performed by the employees in these classifications . The coverage of the second
paragraph included , among other things, "the building, wiring , and assembling of all
electrical signs or displays ; including the layout, forming, fabrication , and assembling
of all metal parts." 6 [Emphasis supplied. ] The forming and fabrication of metal
parts on electrical signs included sheet metal work on the face of the signs, which
involved some of the work tasks performed at Texlite by employees represented
by the Steelworkers . The controversy over the assignment of this work to the
employees in the classifications represented by Respondent Local has brought about
this proceeding.
The Union pointed out that before the companies would be entitled to the use of
the IBEW label, they would have to comply with the provisions of the "scope" clause.
Consequently, the scope of the work to be performed by the employees covered by
the agreement with Respondent Local became a matter of great importance. Texlite
objected to assigning to employees in the classifications represented by Respondent
Local work which had long been , and still was, performed at the plant by employees
in classifications represented by the Steelworkers . One objection was the wage
differential between the two groups . The Union contended that the wages and con-
ditions under which the electrical signs were being manufactured at Texlite did not
meet union standards and therefore made the sign an uncompetitive product for
other IBEW shops. Mr. Dumond recognized this factor but pointed out that in
order to meet the competition in shipping porcelain enamel faces to other producers
8 Originally , the phrase also referred to "plastic parts " However , during the course of
the negotiations , the Respondent Local yielded to Texlite 's objections and agreed to con-
fine the work on plastic parts to their assembling.
1,808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of neon signs, Texlite would have to have a lower average wage rate for that work.
At one point during the negotiations, Respondent Local offered to have that work
performed by its represented employees at Texlite at a lower differential than was
then in effect. Mr. Thompson took the position that, as the fabrication of the metal
sign had been and still was being performed by employees in the Steelworkers' unit,
Texlite could not agree to assigning that work to the employees in the Local's unit
without violating the Steelworkers' 1943 certification and the National Labor Rela-
tions Act. The Local took the position that all work on an electrical sign was within
its jurisdiction, that it had always regarded the word "manufacture," contained in all
prior contracts, as covering the sheet metal work on the face of the signs; and that
it was Texlite who had failed to live up to the prior agreements in this respect. Dis-
cussions on this phase of the "scope" clause were held throughout the meetings.
The possibilities of moving the neon and electrical sign work into a new building of
Texlite, then being constructed, or of rearranging production facilities so that the
Local would not claim the work performed on certain heavy machinery and equip-
ment, were discussed and explored at some of the negotiating conferences and also
at a meeting with representatives of the Steelworkers.
2. The meeting of December 6, 1955
This meeting was held in Texlite's conference room. The union committee and
representatives of each of the four companies were present. A final review of a
draft of the agreement was made. In addition to the "scope" clause, about five
items,7 were still open for negotiations. After negotiations had been conducted on
these items, a temporary recess was called and the union representatives were excused
from the room. The representatives of the four companies, including Texlite, then
held a caucus. At its conclusion, the union representatives were called back into
the room and oral agreement was reached on all outstanding items. Oral agreement
had now been reached on all items of a draft contract. Business Manager Darsey
was to have the agreement typed from the draft and his notes. Thompson stated
that Texlite could not agree to the "scope" clause in the draft because of the question
in his mind as to whether certain work performed by employees in the Steelworkers'
unit could lawfully be assigned to the employees in Respondent Local's unit. He was
in agreement with all terms of the contract and the "scope" clause provided they
could work out a side agreement which would change the effect of the "scope"
clause with respect to the assignment of such work. It was decided that representa-
tives of Respondent Local would meet with representatives of Texlite and McMath-
Axilrod Corporation the next day to study certain factors applicable only to those
two companies with respect to the rearrangement of production facilities, and to
draft an addendum agreement which would be an exception to the "scope" clause
insofar as it referred to the fabrication of metal parts on electrical signs.
3. The meeting of December 7, 1955
On December 7, representatives of Texlite and of Respondent Local made a tour
of inspection through Texhte's plant to see how the production facilities could be
rearranged so as to exempt work on certain heavy equipment and machinery from
the coverage of the contract as to which oral agreement had been reached the
preceding day. The representatives then returned to Texlite's conference room
and dictated to Texlite's stenographers a memorandum agreement which would
exempt work on certain machinery from the "scope" clause of the contract.
Guernsey, Texlite's then general superintendent, testifying as a witness for the
General Counsel, admitted that he dictated part of this draft. It was agreed that
Business Manager Darsey would return to the Local's office to have the main contract
drafted and that at the next meeting of Respondent Local and the four sign companies,
Texlite would have a typed copy of the addendum agreement ready.8
4. Meeting of February 23, 1956
Representatives of the Respondent Local and of each of the four sign companies
met again at the Local's office on February 23, 1956, for the purpose of signing the
contract and the addendum agreement. Darsey had previously mailed copies of
7 These pertained to work on outdoor billboards, wording of the notice of change or
termination of the agreement, painting of the companies' names on then respective trucks,
traveltime, and vacation pay
s The testimony is in dispute as to whether Texlite's representatives agreed to the
contents of the addendum agreement on that day. I find it unnecessary to resolve this
conflict.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 1809
the main contract to each company. The "scope " clause of this contract contained
the phrase , "including the layout , forming, fabrication , and assembling of all metal
parts." At that meeting , minor changes in the wording of some of the contract
provisions , not here material , were agreed upon, and the entire contract was retyped
to encompass these changes . The contract was dated as being "entered into this
7th day of December 1955," and was to remain in effect through June 30, 1958,
with a reopening clause on wages during midterm and an annual 75-day automatic
renewal clause. Attached to the main contract was a page entitled "Memorandum
Regarding the Use of IBEW Label." This memorandum accorded the employers
who signed the contract permission to use and display the appropriate IBEW label
on electrical signs produced under the terms of the agreement on condition that
said employers recognize the "Union" as the "sole collective -bargaining agency for
all work covered under the scope of said agreement dated December 7, 1955."
Business Manager Darsey admitted that the label agreement would necessarily follow
if they agreed on the "scope" clause of the main contract . A draft of the addendum
agreement , which exempted work on certain heavy equipment and machinery from
the "scope" clause of the main contract , was also ready for signature.
The Respondent Local and all the companies , except Texlite , signed the same
copy of the main agreement , dated December 7, 1955, the Memorandum Regarding
the Use of the IBEW Label , and the addendum agreement , entitled "Memorandum
of Agreement ." Thompson stated that he could not sign for Texlite because of
the "scope" clause. According to his testimony , he "was in agreement with all of it
with the exception of giving the IBEW any more of the jurisdiction that they
wanted."
Darsey credibly testified , without contradiction , that under the addendum agree-
ment ,9 the Respondent Local would not be entitled to claim any work on electrical
signs which had to be performed on such machines as the brake , hydro-press,
punch press, drill press , spot welding, the pickling operations , the operation of fusing
the porcelain enamel to the steel in the furnaces , the dipping operations ( the Local
never claimed this operation ), the spraying operations and the screening operations.
He also admitted that under the addendum agreement the Local still would have
claimed such operations as gas welding and small bench work not involving heavy
equipment , operations which admittedly were then being performed by employees
in the Steelworkers' unit.
The record is clear, and I find, that by the terms of the addendum agreement,
the Respondent Local had receded from its prior position of claiming for the
employees in its unit all the work performed in the manufacture of electrical or
9 The full text of the addendum agreement is as follows :
MEMORANDUM OF AGREEMENT
The signatory Companies to this agreement have agreed to ie-arrange their pio-
duction facilities so as to be in compliance with the scope of a labor agieenient dated
December 7, 1955 and such transition will be completed not later than July 1, 1956
Coinciding with the start of the physical changes to re-arrange such production
facilities, the Union shall fuinish Union Labels.
In re-arranging these production facilities, it is understood that certain heavy pro-
duction equipment , which is used for the processing of certain quantity production
metal parts for signs , will not be moved into the new facilities It is further under-
stood that the Union will not claim the operation of said heavy equipment , consisting
of Hydro Press, Punch Press of 20 tons or over , Whistler Punch , Power Rolls, Circle
Shears, Heliare Welder and Power Brakes , which are not ordinarily in the average
sign shop
It shall not be considered a violation of the Scope of Agreement dated December 7,
1955, between the parties, to continue doing the processing of such quantity parts
which are used in conjunction with the Companies ' other business This Memorandum
shall run concurrently and/or terminate with the agreement between the parties
dated December 7, 1955.
Signed this 23 day of Feb., 1956
For the INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, Local #59 For the Companies
-----------------------------------------
-----------------------------------------
-----------------------------
By -------------------------
----------------------------------------- -----------------------------
----------------------------------------- By. -------------------------
----------------------------------------- -----------------------------
By: -------------------------
476321-58-vol. 119-115
1810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neon metal signs by employees in the Steelworkers' unit It is also clear, and I find,
that, even with the addendum agreement, Texlite would still be required to assign
to employees in the unit represented by the Respondent Local, some work tasks on
neon or electrical metal signs, though fewer in number, which had been and were
being performed by employees in the Steelworkers' unit.
5. Events subsequent to February 23, 1956
It is conceded that after February 23, 1956, Respondent Local initiated no
further efforts to bargain with Texlrte Although it did not sign the agreement on
February 23, 1956, Texlrte nevertheless put into effect the terms and conditions of
the agreement, dated December 7, 1955, except for the "scope" clause. Up to the
time of the hearing in this proceeding, the Respondents made no effort to withdraw
Texlite's permission to use the IBEW label on electrical or neon signs.
a. Respondent Local terminates 1954 agreement
By letter, dated April 13, 1956, and addressed to Texlite, Respondent Local, by
Business Manager Darsey, advised that, pursuant to the provisions of the 1954
agreement, it was giving notice of its "desire to terminate said agreement and any
other agreement or understanding, either written or verbal that may exist between
Local Union No. 59 and Texlite, Inc., said termination to be effective at 12 o'clock,
midnight, June 30, 1956 "
b. Meeting of May 9, 1956
By letter dated April 27, 1956, addressed to Darsey, Texlite's Personnel Director
Young acknowledged receipt of Darsey's letter terminating the 1954 agreement,
invoked another clause of that agreement calling for a meeting of the parties 60
days prior to the anniversary date of the agreement, and requested a meeting for
May 9 to negotiate a proposed enclosed contract.
Pursuant to this request, Darsey met with Young and Leach, a staff analyst of
Texlite, at Texlite's office. Darsey and Young were in agreement that, with 1
exception, the proposed contract submitted by Young was identical with the con-
tract, dated December 7, 1955, and signed by the other 3 sign companies on
February 23, 1956 The exception was the wording of the "scope" clause. In
Young's proposed contract, the "scope" clause was the same as that appearing in
all prior contracts with the additional deletion of the word "manufacture," which
had been the source of controversy in prior contracts.1° Darsey objected to this
definition of the scope of the work to be performed by the employees in the Local's
unit because he considered that the deletion of the word "manufacture" narrowed
the work coverage from what it had been in the prior contracts. Darsey informed
Young of the previous negotiations which had taken place from April to December
7, 1955, and expressed a willingness to sign the same kind of agreement executed
by the other three companies on February 23, 1956. Young's position was that
Texlite could not sign a contract with the kind of "scope" clause which Darsey
wanted; Darsey's position was that the Local could not sign a contract with the
kind of "scope" clause proposed by Young. As oral agreement had already been
reached on all the other terms of Young's proposed contract and as an impasse was
reached on the "scope" clause, there was nothing further to negotiate.
c. The Board's decision in 16-RM-112
On March 21, 1956, Texlite filed with the Board a representation petition for an
election in a unit of employees engaged in "layout, forming, fabrication, and assembly
of all metal parts of electrical signs, including the assembly of all plastic parts."
The Respondent Local did not appear at the hearing on this petition and notified
the Board's Regional Office that it had no interest in this proceeding. On May 24,
1956, the Board issued its decision, dismissing the petition on the grounds that:
(1) The Steelworkers' contract, executed prior to the filing of this petition, was a
bar to an election at this time; and (2) the employees named in the petition did
'0 Permission to use the II3EW label was incorporated in one of the clauses of Young's
proposed contract instead of being a separate, attached agreement as in the case of the
contiact signed by the other three companies However, the Union's position has always
been that the use of the label was tied to the "scope" clause and that permission to use
the label would automatically be granted if agreement was reached on the "scope" clause
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 1811
not constitute an identifiable craft or departmental group appropriate for severance
from the existing production and maintenance unit.
In its decision, the Board states that early in 1956 the Local made a claim to
represent employees engaged in the work set forth in the petition, that such em-
ployees are represented by the Steelworkers as part of its existing unit, and that the
Local has in the past represented only employees classified as tube benders,
journeymen sign electricians and erectors, apprentices, and helpers. While these
findings are based on the evidence offered by Texlite at the hearing in that pro-
ceeding, the fact remains that they do not reflect the true facts as conclusively
demonstrated by the record in this proceeding. For it is conceded by witnesses,
testifying for the General Counsel, that at no time did Respondent Local seek or
claim to represent the employees represented by the Steelworkers as part of its
existing unit, or to have such employees transferred to the unit represented by
Respondent Local. At no time did Respondent Local seek to represent any em-
ployees other than those already classified as journeymen sign electricians, tube:
benders and pumpers, apprentices, and helpers This was admitted by Thompson,
Texlite's labor relations consultant, and by Young, Texlite's personnel director.
The record in this proceeding clearly shows that what the Respondent Local did claim
was to have the employees in the classifications already represented by it perform
some of the work tasks which were being performed by the employees represented
by the Steelworkers as part of its unit. Stated differently, the Respondent Local
sought to have Texlite assign certain work tasks then being performed by employees
iepresented by the Steelworkers as part of its existing unit to the employees in the
classifications represented by the Local as part of its existing unit.
d. Young requests further meeting
By letter dated June 1, 1956, addressed to Darsey, Personnel Director Young called
attention to the Board's decision in 16-RM-112 as settling "the matter of the unit
involved, which is the only issue existing between us," and requested a meeting to
be held on or before June 6 "for the purpose of concluding the contract between
your Union and our Company."
Although Darsey received this letter, he made no reply. There has been no
further contact between Respondent Local and Texlite.
e. Respondent Local's disclaimer of interest
By separate letters dated June 5, 1956, addressed to Texlite, the Board's Regional
Director for the Sixteenth Region, and to the Executive Secretary of the Board in
Washington, D C., the Respondent Local gave notice that upon the expiration of
its contract with Texlite on June 30, 1956, it disclaims any further interest in
representing any employees of Texlite, Inc.
Darsey testified that he took this action because Texlite had refused to sign the
agreement executed by the other sign companies, he felt Texlite should sign the
same contract signed by the rest of the industry, the Local had done everything it
could to reach an agreement, and there was no use to try any further because he
felt they had arrived at an impasse.
The position of the parties with respect to the "scope" clause has remained the
same to the date of the hearing in this proceeding.
C. Analysis and conclusions 11
The complaint alleges that: (1) At all times since 1943 the Respondents have been
designated as collective-bargaining representative by a majority of the employees
of Texlite in a described appropriate unit and by virtue of Section 9 (a) of the Act
have been the exclusive representative of all the employees in such unit for collective-
bargaining purposes; and (2) the Respondents' conduct on and after February 23,
1956, constituted a refusal to bargain within the meaning of Section 8 (b) (3) of
the Act. This section makes it an unfair labor practice for a labor organization
or its agents "to refuse to bargain collectively with an employer, provided it is the
representative of his employees subject to the provisions of Section 9 (a)." Section
9 (a) provides that "representatives designated or selected for the purposes of
collective bargaining by the majority of the employees in a unit appropriate for
n In view of the findings and conclusions in this section, I deem it unnecessary to deter-
mine (1) the effect of Respondent Local's letter of June 5, 1956, disclaiming any further
interest in representing Texlite's employees, and (2) the liability of Respondent Inter-
national for any alleged unlawful refusal to bargain by Respondent Local.
1812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such purposes, shall be the exclusive representative of all the employees in such
unit for the purposes of collective bargaining in respect to rates of pay, wages, hours
of employment, or other terms or conditions of employment."
The principal issues raised by the pleadings and the positions of the parties are
(1) whether the unit described in the complaint is an appropriate unit, and (2)
whether the conduct of the Respondents constituted a statutory refusal to bargain.
1. The issue concerning the appropriate unit
The General Counsel's complaint alleges that the following constitutes an ap-
propriate unit: all tube benders, journeymen sign electricians, erectors, apprentices,
and helpers of Texlite employed at its plant, exclusive of all other employees and
supervisors. The Respondent's, in their answers and throughout this proceeding,
deny the appropriateness of this unit on the ground, among others, that it is confined
to the employees of Texlite alone; they contend that, even assuming the correctness
of its composition, the only appropriate unit under the circumstances is a multi-
employer unit encompassing the employees of the Neon and Electrical Sign Com-
panies of Dallas, Texas. If a unit confined to the employees of Texlite alone, as
alleged in the complaint, is not an appropriate unit, then the refusal to bargain
allegation cannot be sustained.
The criteria on which the appropriateness of a multiemployer unit depends has
been summarized by the Board in the following terms: i2
Under Board law, it is not a prerequisite for the establishment of an association-
wide or multiemployer unit that there be evidence of an employer association
with formal organizational structure, or that the members delegate to the
association final authority to bind them, or that the association membership
be nonfiuctuating. The settled criterion for the inclusion of an employer in a
multiemployer bargaining unit is whether the employer unequivocally intends
to be bound in collective bargaining by group, rather than individual , action.
Thus, participation by an employer in group bargaining provides such evidence
of the employer's intention. But whatever an employer's previous bargaining
policy or practice may have been, there is no question as to the principle that
the employer may properly withdraw from an existing multiemployer unit, pro-
vided it clearly evinces at an appropriate time its intention of pursuing an
individual course in bargaining. [Footnotes omitted.]
For a period of approximately 15 years, the Respondent Local has negotiated
and executed contracts with the Neon and Electrical Sign Companies of Dallas,
Texas, including Texlite. These negotiations were conducted in the same manner as
the 1955 negotiations, as previously described. The Local was represented at these
negotiations by a committee, consisting of its business manager and a member of the
Local at the plant of each employer; each employer comprising the Neon and Elec-
trical Sign Companies of Dallas, Texas, including Texlite, participated in the nego-
tiations through its own duly authorized representatives. The negotiations were
conducted between the representatives of each employer jointly and the representa-
tives of the Local. Whenever the Local gave notice of a desire to open the contract
to negotiate changes or amendments , identical letters to that effect were sent to
each employer. Any employer position was communicated to the Local by all
employers jointly, in a single signed document. The employers met in advance
as a group and agreed upon any proposed changes or amendments which they
desired to negotiate, and submitted such proposals, as joint proposals, to the Local
in a single signed document. In the 1955 negotiations, which Thompson admitted
was typical of prior negotiations, no major differences of opinion were expressed
among the employers in any meetings with the Local, except for the "scope" clause.
At the December 6 meeting, the employers caucused among themselves before reach-
ing final agreement with the Local on the other remaining outstanding items. All
contracts and amendments which were negotiated were signed by all participating
employers, including Texlite, on a single document. These contracts, by their
substantive terms, established uniform wages, hours, and other conditions of employ-
ment for the same group of employees of all the employers. Such contracts named
as the "Employer" the Neon and Electrical Sign Companies of Dallas, Texas, and
throughout reference is made, not to the individual companies, but to the "Employer."
In these contracts the Union is recognized by the "Employer" as the exclusive col-
lective-bargaining representative of all "its employees" performing certain described
12 York Transfer ct Storage Co., 107 NLRB 139, 142; Nineteenth Annual Report of the
National Labor Relations Board, p. 44; Seventeenth Annual Report of the National Labor
Relations Board, p. 72.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 1813
work tasks. The contracts also provided for automatic renewal unless timely notice
of a desire to change or terminate were given by "either party" to "the other" and
further provided for amendment at any time upon mutual consent of "the parties
thereto." 13
The record clearly shows, and I find, that over a substantial period of time Texlite
has participated personally with the other Neon and Electrical Sign Companies of
Dallas, Texas, in joint or group negotiations, thereby evincing an unequivocal inten-
tion to be bound in collective bargaining by group, rather than individual, action.
Applying the established Board criteria, hereinabove set forth, I find that there is a
controlling bargaining history on a multiemployer basis which renders inappropriate
a unit confined to the employees of Texlite alone, unless the record warrants a finding
that Texlite has at an appropriate time manifested an unequivocal intent to pursue
an individual course in labor relations.
The record clearly demonstrates that Texlite at no time orally evinced an unequivo-
cal intention to withdraw from group action and to pursue an individual course in
labor relations. The question remains whether such an intent was manifested at
an appropriate time by Texlite's conduct subsequent to February 23, 1956. Texlite
had personally participated in the group negotiations for the new contract from
April 29, 1955, to February 23, 1956, thereby clearly evincing its intention to remain
with the existing multiemployer bargaining unit for the purpose of negotiating a
new contract. Assuming that Texlite attempted to withdraw from the multiemployer
unit by its conduct in refusing to sign the contract unless the "scope" clause were
changed, in filing the RM petition on March 21, and in requesting the Local in May
and June to bargain with respect to its proposed contract, which was identical with
the contract negotiated jointly with the other sign companies and signed by the latter,
except for the "scope" clause, such attempted withdrawal "at this late stage" has been
regarded by the Board "as having been made at an inappropriate time and as ineffec-
tive." McAnary & Welter, Inc., 115 NLRB 1029, 1032. In this case,14 on facts
very similar to those appearing in this record, the Board held that the multiemployer
unit continued to be the only appropriate bargaining unit at this time and dismissed
both the employer's petition and a decertification petition for a single employer unit
because they sought elections in an inappropriate unit.
Moreover, Texlite's conduct subsequent to February 23, 1956, did not, in my
opinion, constitute a clear manifestation of an unequivocal intent to pursue an
individual course in its labor relations. Except for the "scope" clause, Texlite was
in full agreement with all the terms of the contract jointly negotiated with, and
signed by, the other sign companies, and put such terms into effect although refusing
to sign the contract. Group action is not abandoned merely because of a failure
to agree on all the terms of, or to sign, the last contract negotiated through group
action.15 Nor may the filing of the RM petition by Texlite be regarded as evidencing
an intention to abandon group action. Although confined to the employees of
Texlite, the composition of the unit requested in said petition, unlike that in the
McAnary & Welter case, supra, was completely different from that for which either
Texlite or Respondent Local was contending in the present proceeding or for which
the parties had bargained in the past on a multiemployer basis. Indeed, the Board
dismissed the petition on the ground, among others, that the requested unit was
inappropriate.16 The proposed contract concerning which Texlite sought to bargain
with Respondent Local in May and June was the identical contract, except for the
"scope" clause, to which Respondent Local and Texlite had already agreed in the
joint negotiations with the other sign companies and which the latter had signed on
February 23, 1956. The unit classifications in Texlite's proposed contract were not
changed. The only change appeared in the "scope" clause and involved the work
Is See Electrical Contractors of Troy and Vicinity, 116 NLRB 354, where the facts were
identical in many respects.
14 The employer had refused to sign the contract resulting from group negotiations and
signed by the other participating employers, demanded 6 substantive changes in the con-
tract including either elimination of the company welfare contributions or reductions of
wage rates and extension of the contract terms from 1 to 5 years, and filed an RM
petition for the same classifications of employees but limited to a single employer unit.
115 NLRB 1029, 1031. In the instant case, the unit set forth in the RM petition com-
pletely differed in composition from that for which either of the parties sought to bargain
or had bargained in the past, as well as from that alleged in the complaint
'S See , e g., Arena-Norton, Inc., et al ., 93 NLRB 375, 378, 379; Jahn-Tyler Printing
and Publishing Company, 112 NLRB 167, 168-169.
16 The Respondents did not appear or participate in the representation proceeding, and
the issue of the appropriateness of a single or a multiemployer unit was neither litigated
in that 'proceeding nor decided in that decision
1814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tasks to be performed by the employees in such classifications. Compliance with
Texlite's request would have resulted in a situation essentially similar to that in
cases where the results of joint negotiations have been incorporated in separate
uniform contracts rather than in one group contract, and in cases where individual
employers in the group negotiate changes in the master contract on some matters
affecting their individual plants. The Board has held that group action is not
abandoned, and the multiemployer unit not destroyed, by such conduct.17 Moreover,
as the basis for its bargaining requests in May and June, Texlite specifically relied
on and invoked the very terms of the 1954 multiemployer contract, which did not
terminate until June 30, 1956.
Upon the basis of the entire record, I find that Texlite has not clearly evinced
at any appropriate time its unequivocal intention of pursuing an individual course
in bargaining. Accordingly, I find that, at all times material herein, a unit confined
to the employees of Texlite alone has been and is inappropriate, and that the only
appropriate bargaining unit has been and still is the multiemployer unit of the
Neon and Electrical Sign Companies of Dallas, Texas. As the single employer unit
in which the Respondents are alleged to have refused to bargain is inappropriate,
it follows, and I find, that any refusals to bargain which may have occurred did
not violate Section 8 (b) (3) of the Act. This ground alone, therefore, requires
a dismissal of the General Counsel's complaint.
2. The issue concerning the refusal to bargain
The treatment of this issue will proceed on the assumption that the complaint
alleges an appropriate unit.
The General Counsel's brief discloses some confusion as to the real issue between
the parties. Thus, at one point the General Counsel states in his brief that the
"only difference between Texlite and Respondent that had kept them from signing
a contract including the attached label agreement, was that the IBEW wanted to
take over the Steelworkers' represented employees who performed operations
necessary to the manufacture of electrical and neon signs." If that is the theory of
the General Counsel's refusal to bargain allegation, then it must be dismissed as
being unsupported by the record. For the record conclusively demonstrates, as
Labor Relations Consultant Thompson and Personnel Director Young admitted,
that Respondents never claimed nor sought to represent any employees represented
by the Steelworkers nor requested that such employees drop their Steelworkers'
membership and become members of Respondent Local. Respondents neither
sought nor desired a transfer of employees from the Steelworkers' unit to the unit
represented by Respondent Local. What Respondent Local did seek, and this is
what became the stumbling block to the signing of a contract, was the inclusion of a
clause which would require Texlite to assign to the employees in the existing
classifications, comprising the unit represented by Respondent Local, certain duties
or work tasks then being performed by employees in the unit represented by the
Steelworkers. The General Counsel seems to recognize this issue at another point
in his brief. He contends, however, that these duties or work tasks were assigned
to the employees in the Steelworkers' unit by the 1943 Regional Director's
certification; that an assignment of such duties or work tasks to employees in the
unit represented by Respondent Local would constitute an infringement upon the
Steelworkers' 1943 certificate; and that the Respondent Local's insistence upon such
a clause as a condition to signing a contract, with respect to which agreement had
been reached on all other terms, constituted an insistence upon an illegal condition
and hence was a refusal to bargain in violation of Section 8 (b) (3) of the Act.
Thus, the real issue between the parties was more in the nature of a jurisdictional
dispute over the performance of certain duties or work tasks, that is, whether they
should be performed by the employees in the unit represented by the Steelworkers
or whether they should be performed by the employees in the unit represented by
Respondent Local. The fallacy in the General Counsel's theory stems from the
erroneous premise on which it is based, that is, that the work tasks in question
were awarded to the Steelworkers by the 1943 Regional Director's certificate. This,
however, is not the effect of a certificate. Thus, in The Plumbing Contractors Assn.
of Baltimore, Maryland, Inc., 93 NLRB 1081, 1087. the Board stated: 18
We believe that the Intervenors misapprehend the effect of a Board certi-
fication in a representation proceeding As the Board has heretofore held,
11 See, e. g, Arena-Norton, lite, et al, supra, at 378; 17th Annual Report of the National
Labor Relations Board, pp 73 75
is See also, General Analtne & Film Corporation, Ansco Division, 89 NLRB 467;
Anheuser-Busch, Inc, 112 NLRB 686, 691; cf. Anheuser-Busch, Inc, 116 NLRB 1988.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS 1815
and as we here reiterate a Board certification in a representation proceeding
is not a jurisdictional award; it is merely a determination that a majority of
the employees in an appropriate unit have selected a particular labor organiza-
tion as their representative for purposes of collective bargaining. It is true
that such certification presupposes a determination that the group of em-
ployees involved constitute an appropriate unit for collective bargaining
purposes, and that in making such determination the Board considers the gen-
eral nature of the duties and work tasks of such employees However, un-
like a jurisdictional award, this deteimination by the Board does not freeze
the duties or work tasks of the employees in the unit found appropriate Thus,
the Board's unit finding does not per se preclude the employer from adding
to, or subtracting from, the employees' work assignments. While that finding
may be determined by, it does not determine, job content; nor does it signify
approval, in any respect, of any work task claims which the certified union
may have made before this Board or elsewhere.
In the instant case, the Steelworkers' certificate does not set forth the work
tasks or duties to be performed by the employees in the certified unit. It resulted
from a consent election agreement to which Respondents were not a party, and
without any hearing before the Board. There has been no proceeding in which
the Board has determined the proper placement of the work tasks or duties which
Respondent Local sought to have Texlite assign to the employees in the unit repre-
sented by Respondent Local. Contrary to the General Counsel's assertion, the
Board's decision in the RM proceeding made no such determination. 19 Thus,
it is clear, and I find, that the Steelworkers' certificate did not preclude Texlite from
assigning the requested duties or work tasks to the employees in the unit represented
by the Respondent Local. It accordingly follows that Respondent Local's refusal
to sign the contract, unless it included a clause covering such assignments, did
not constitute an insistence on an illegal condition.
Respondent Local acted in good faith in seeking the assignment of these duties
or work tasks. It had always taken the positid'n that the word "manufacture" in
its prior contracts encompassed these duties or work tasks over which it claimed
jurisdiction. They were work tasks which were not completely unrelated to
some of the work tasks already being performed by the employees in the unit
represented by Respondent Local. The performance of these work tasks by the
employees in Respondent Local's unit would not change the existing classifica-
tions of these employees or convert them into a different craft. The classifications
represented by the Steelworkers would continue to exist and to be represented by
the Steelworkers
Had Texlite yielded to Respondent Local's good-faith insistence upon the as-
signment of the requested duties or work tasks to the employees in its unit, Texlite
would neither have violated the Steelworkers' certificate nor would have violated
Section 8 (a) (5) of the Act in any other respect. Conceivably, Texlite's conduct
in making the requested assignments without bargaining with the Steelworkers about
it might constitute a violation of Section 8 (a) (5).20 But Respondent Local at
no time. foreclosed such bargaining. Indeed, at one point representatives of Re-
spondents and of Texlite met with representatives of Steelworkers and discussed
this matter, without reaching agreement. Any possible failure to bargain with
Steelworkers would not have resulted from any position taken by Respondent
Local, but would be due to Texlite's own independent action. Nor would Texlite's
conduct in this respect constitute a breach of its contract with the Steelworkers.
That contract does not define the work tasks to be performed by the employees in
the unit represented by Steelworkers, it merely enumerates classifications and sets
forth the wage rates for each classification. None of the listed classifications would
be eliminated or destroyed by Texlite's assignment of the requested work tasks to
Respondent Local's unit. Moreover, the mere failure to perform a contractual
commitment is not per se an unlawful refusal to bargain 21
19 All that the Board decided in that case was that a unit of employees engaged ex-
clusively in the layout, forming, fabrication, and assembly of all metal pacts of electrical
signs , including the assembly of all plastic parts, could not appropriately be served from
the production and maintenance unit represented by the Steelworkers. The Respondent
Local never claimed nor sought to represent a unit of such employees
9° See, e. g , Kerrigan Iron Works, Inc., 108 NLRB 933, 941-942; McDonnell Aircraft
Corporation, 109 NLRB 930, 934.
2i Old Line Life Insurance Company of America, 96 NLRB 499, 500.
1816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Local had bargained in good faith during numerous and lengthy
sessions over a period of some 10 months. From the outset, Texlite and Respondent
Local had made their respective positions clear on the "scope" clause. Neither
party's position was acceptable to the other on this issue. The Respondent
Local made some concessions and counterproposals on this issue, which were
still unacceptable to Texhte. The negotiations finally resulted in a tentative
agreement with respect to all matters , except the "scope" clause. The. failure to
execute this contract on February 23, 1956, was due to the fact that a genuine
impasse had been reached on this one remaining issue, considered by both parties
as basically important. The position of the parties remained unchanged on this
issue at the meeting with Personnel Director Young on May 9, 1956. Young's
letter of June 1, requesting another meeting "for the purpose of concluding the
contract," gave no indication that Texlite had altered its position on this issue,
as in fact it had not. On the contrary, the implication of Young's letter was that
the Board's decision in the RM proceeding had upheld Texlite's position. Thus,
further negotiations on this issue were rendered futile by the continued existence
of the good-faith impasse.22 The "duty to meet" imposed by the Act "of course
does not mean that parties must engage in futile bargaining in the face of a genuine
impasse." United States Cold Storage Corporation, 96 NLRB 1108-1109.23 Under
the circumstances, Respondent Local's failure to answer Young's June letter did not
constitute an unlawful refusal to bargain.
Upon the basis of the entire record considered as a whole, I find that Respondent
Local's insistence, to the point of a good-faith impasse, upon the inclusion of a
clause which would require Texlite to assign to the employees in its unit certain
duties or work tasks performed by the employees in the Steelworkers' unit, as a
condition of signing the contract with respect to which agreement had been reached
on all other terms , did not constitute a refusal to bargain within the meaning of
Section 8 (b) (3) of the Act. I will accordingly recommend that on this ground
alone the complaint also be dismissed.
On the basis of the foregoing findings and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Texlite, Inc., is engaged in commerce within the meaning of Section 2 (6)
and (7 ) of the Act.
2. International Brotherhood of Electrical Workers, AFL-CIO, and Local 59,
International Brotherhood of Electrical Workers, AFL-CIO, are labor organizations
within the meaning of Section 2 (5) of the Act.
3. All tube benders, journeymen sign electricians , erectors , apprentices, and
helpers of Texlite, Inc., employed at its plant , exclusive of all clerical , technical,
and other employees and supervisors, as alleged in the complaint , do not con-
stitute a unit appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
4. The Respondents have not engaged in unfair labor practices , as alleged in
the complaint , within the meaning of Section 8 (b) (3) of the Act.
[Recommendations omitted from publication.]
22Central Metallic Casket Co., 91 NLRB 572, 573; Harcourt and Company, Inc., 98
NLRB 892, 902.
23 The Supreme Court has held that "the Act does not encourage a party to engage In
fruitless marathon discussions at the expense of frank statement and support of his
position." N. L. R B. v. American National Insurance Co., 343 U. S. 395, 404.
Building & Construction Trades Council of Boston , AFL-CIO
(Metropolitan District) and John E. Deady and J. J. Redding-
ton Electric Service Co. Case No. 1-CC-177. February 28,1958
DECISION AND ORDER
On September 19, 1957, Trial Examiner Albert P. Wheatley issued
his Intermediate Report in the above-entitled proceeding, finding
119 NLRB No. 227.