Interstate Construction Co.

National Labor Relations Board - Board Decisions

Apr 26, 1977

229 N.L.R.B. 271 (N.L.R.B. 1977)

INTERSTATE CONSTRUCTION CO.
Interstate Construction Company and Local Union
No. 226, International Brotherhood of Electrical
Workers. Case 17-CA-6905
April 26, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On November 9, 1976, Administrative Law Judge
Elbert D. Gadsden issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, the General
Counsel filed cross-exceptions and a supporting
brief, and the Charging Party filed an answer to the
Respondent's exceptions and cross-exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
The Administrative Law Judge found that the
Respondent had delegated authority to National
Electrical Contractors Association, hereinafter re-
ferred to as NECA, to act as collective-bargaining
representative; the Respondent did not revoke such
authority; the Respondent is bound by the resulting
collective-bargaining agreement; the Respondent did
not effectuate a valid withdrawal from the multiem-
ployer bargaining unit; and the Respondent's failure
and refusal to sign and pay certain fringe benefits
specified under the new agreement constituted a
violation of Section 8(a)(1) and (5) of the Act. While
we agree with the Administrative Law Judge's
findings that the Respondent failed and refused to
pay certain fringe benefits specified under the new
agreement in violation of Section 8(a)(1) and (5),
since it did not effectuate a valid withdrawal from
NECA, we also find merit in the Charging Party's
cross-exception contending that the Administrative
Law Judge's further finding that the Respondent
unlawfully failed and refused to sign the new
agreement is inconsistent with the complaint and not
supported by the record. Accordingly, the Conclu-
sions of Law have been revised and amended to
reflect the above findings.
I In adopting the Administrative Law Judge's Decision, we note the
following inadvertent error which does not affect our agreement with his
conclusions herein: the testimony referred to in sec. B should be that of
229 NLRB No. 37
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 4 and 5, and substitute
therefor the following:
"4. By failing and refusing, subsequent to July 1,
1975, to pay certain fringe benefits specified under
the new collective-bargaining agreement effective
September 1, 1975, the Respondent has interfered
with, restrained, and coerced, and is interfering with,
restraining, and coercing, employees in the exercise
of rights guaranteed in Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.
"5. By failing and refusing, subsequent to July 1,
1975, to pay certain fringe benefits specified under
the collective-bargaining agreement effective Sep-
tember 1, 1975, the Respondent is engaging in an
unfair labor practice within the meaning of Section
8(a)(5) of the Act."
AMENDED REMEDY
The Administrative Law Judge recommended that
the Respondent sign the agreed-upon contract and
pay the several fringe benefits specified thereunder, if
NECA and the Union so request, and if no such
request is made the Respondent shall, upon request,
bargain with NECA and the Union as a member of
NECA and, if an understanding is reached, embody
such understanding in a signed agreement. We find
merit in the General Counsel and the Charging
Party's contentions that the Administrative Law
Judge has erroneously concluded that the Union is a
member of NECA, the employer bargaining associa-
tion and not a party herein; that NECA must, in
addition to the Union, request that the Respondent
sign the collective-bargaining agreement and initiate
the appropriate payments; and that the requirement
that the Respondent sign the contract, or any
agreement reached, is inconsistent with the Adminis-
trative Law Judge's finding that the Respondent is
already bound by the contract between the Union
and NECA, which it authorized as its bargaining
representative.
As neither the complaint nor the record supports
the Administrative Law Judge's recommended Order
in these respects, we shall modify his recommenda-
tions accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
Coleman Moms and not Paul LaForge; and the termination date of the
collective-bargaining agreement also referred to in sec. B should be June 30.
1975. rather than July 30. 1975.
271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
modified below and hereby orders that the Respon-
dent, Interstate Construction Company, Parsons,
Kansas, its officers, agents, successors, and assigns,
shall take the action set forth in said recommended
Order, as herein modified:
i. Substitute the following for paragraph !(a):
"(a) Refusing to bargain collectively in good faith
with Local Union No. 226, International Brother-
hood of Electrical Workers, by refusing to pay the
contributions on the fringe benefits specified in the
new collective-bargaining agreement which resulted
from the collective-bargaining sessions in which the
Respondent fully participated."
2. Substitute the following for paragraph 2(a),
delete paragraphs 2(a) and 2(c), and reletter the
remaining paragraphs accordingly.
"(a) Pay the contributions required by the fringe
benefit provisions specified in the new collective-
bargaining agreement effective September 1, 1975,
and comply with the agreement that resulted from
the negotiations in which Respondent was an active
participant."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Local Union No. 226, International Brotherhood
of Electrical Workers, by refusing to pay the
contributions to fringe benefits specified in the
contract which we, as a member of National
Electrical Contractors Association, Parsons' Divi-
sion (Section), Kansas (Topeka) Chapter, negoti-
ated and executed on September 1, 1975.
WE WILL NOT in any like or related manner
interfere with the efforts of Local Union No. 226,
International Brotherhood of Electrical Workers,
to bargain collectively on behalf of the employees
in the appropriate unit.
WE WILL pay the contributions to fringe
benefits as required by the contract which we, as
a member of National Electrical Contractors
Association, Parsons' Division (Section), Kansas
(Topeka) Chapter, negotiated and executed with
Local No. 226, International Brotherhood of
Electrical Workers, on September 1, 1975.
WE WILL comply with the contract we, as a
member of National Electrical Contractors Asso-
ciation, Parsons' Division (Section), Kansas
(Topeka) Chapter, had agreed upon with Local
Union No. 226, International Brotherhood of
Electrical Workers, in August 1975, the aforesaid
contract to be effective from September 1, 1975,
to the next renewal date as provided therein, and
bargain with respect to bargainable issues within
the scope of the bargaining authority of the
representative parties.
WE WILL bargain collectively, as a member of
National Electrical Contractors Association, Par-
sons' Division (Section), Kansas (Topeka) Chap-
ter, with Local Union No. 226, International
Brotherhood of Electrical Workers.
INTERSTATE
CONSTRUCTION COMPANY
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon
an original and an amended charge filed on December 31,
1975, and February 11, 1976, respectively, by Local Union
No. 226, International Brotherhood of Electrical Workers,
herein called the Charging Party, against Interstate
Construction Company, herein called the Respondent, a
complaint was issued by the General Counsel of the
National Labor Relations Board on February 26, 1976.
The complaint alleged that by denying it is bound by the
collective-bargaining agreement and by refusing to pay
certain fringe benefits pursuant thereto, the Respondent
has violated Section 8(aXl) and (5) of the Act.
The Respondent filed an answer on March 12, 1976,
denying that it has engaged in any unfair labor practices in
violation of the Act.
The hearing in the above matter was held before me at
Parsons, Kansas, on April 29, 1976. Briefs have been
received from counsel for the General Counsel, counsel for
the Charging Party, and counsel for the Respondent,
respectively, which have been carefully considered.
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FnNDrNos OF FACT
1. JURISDICTION
Respondent is now, and has been at all times material
herein, a corporation engaged in the business of electrical
contracting from its place of business located at Parsons,
Kansas.
In the course and conduct of its business operations from
Parsons, Kansas, the Respondent annually purchases
goods and/or services valued in excess of $50,000 directly
from sources located outside the State of Kansas.
The complaint alleges, the Respondent admits, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I find
that Local Union No. 226, International Brotherhood of
272
INTERSTATE CONSTRUCTION CO.
Electrical Workers, is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
The complaint alleges, the answer admits, and I find that
the Parsons Division, Kansas (Topeka) Chapter, National
Electrical Contractors Association, Inc., hereinafter re-
ferred to as NECA, is an association of multiemployer
business enterprises engaged in the business of electrical
contracting; and that NECA has existed, and continues to
exist, for the purpose, in whole or in part, of representing in
collective bargaining with the Union, those employers who
have authorized NECA to represent them.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is a corporation with a facility in Parsons,
Kansas, where it is engaged in the business of electrical
contracting.
About January 1973 the Respondent, in a letter of assent
authorized NECA to represent it for purposes of collective
bargaining with the Union concerning its employees in the
unit described as follows:
All journeymen and apprentice electricians, all journey-
men and apprentice wire men, and journeymen
technicians, employed by members of the Parsons
Division, Kansas (Topeka) Chapter, National Electri-
cal Contractors Association, Inc., but excluding office
clerical employees, professional employees, guards and
supervisors as defined in the Act, and all other
employees, constitute the unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
Originally, the Respondent was organized to engage in
several kinds of construction work. However, it was not
until December 13, 1972, that it became engaged in
electrical contracting work. It met with Local 718 of the
IBEW and later contacted the International Brotherhood
of Electrical Workers (IBEW) relative to hiring union
employees in April 1973. The Union told Respondent (Mr.
Paul E. LaForge) that it would have to sign a letter of
assent and join NECA. Respondent thereupon signed a
letter of assent (Joint Exh. 1) in which it assented to be
bound by and comply with the agreement between the
Kansas chapter, NECA, Inc., and Local Union No. 718,
which was dated the first day of July 1972 and effective
December 8, 1972. Respondent also authorized said
chapter of NECA to be its collective-bargaining represen-
tative for all matters contained in the agreement, with the
understanding that it shall remain in effect until terminated
by written notice to the parties 30 days prior to the
notification date provided for therein. Respondent there-
upon signed the assent letter in the name of Interstate
Electrical Construction Co.,' Respondent joined NECA in
April 1973, paid the $50 membership fee and proceeded to
hire union employees through the Union.
There is no dispute in the record that Interstate Electrical Construction
Co. and Interstate Construction Co. has been and are now one and the same
Respondent herein.
NECA is a national employer's organization with 133
chapters and headquarters in Washington, D.C. In 1972 it
had a statewide chapter in Kansas that included divisions
in Wichita, Topeka, Parsons, and Salima, Kansas. As a
result of some dissension amongst the electrical contrac-
tors, the chapter was divided into two chapters, one by the
Wichita group and one by the Topeka group, which
became known as the Kansas-Wichita chapter, and the
Kansas-Sunflower chapter, respectively. Early in 1975
there was an amalgamation or merger of Local 718 with
Local 226. Pursuant to national policy of NECA to
determine chapter jurisdiction based on Local Union
(IBEW) jurisdiction, the Parsons' division was assigned to
the Topeka chapter. The Kansas-Sunflower chapter (unof-
ficially) and the Kansas-Topeka chapter are one and the
same chapter. The collective-bargaining agreement was
then amended by a successor amendment which recited the
merger of Local Union 718 IBEW into Local Union 226,
IBEW, effective March 1, 1975; and it declared that the
Parsons' section of the Kansas State chapter of NECA
recognizes Local Union 226, IBEW, as the successor to the
aforementioned agreement. The amended agreement was
executed February 28, 1975 (Joint Exh. 4). The heretofore
mentioned amended collective-bargaining agreement by
which Respondent assented to be bound, was effective
from July 1, 1972, until July 30, 1975.2
B. Respondent's Transaction With the Union and
NECA Subsequent to the Merger of Union Local
718 Into Local 226
Article 1, section 2, of the collective-bargaining agree-
ment by which Respondent assented to be bound provides
as follows:
Either party desiring to change or terminate this
agreement must notify the other in writing at least 60
days prior to June 30 of any year. When notice for
changes only is given, the nature of the changes desired
must be specified in the notice, and until satisfactory
conclusion is reached in the matter of such changes the
original provisions shall remain in full force and effect.
(Joint Exhibit No. 3)
The credible testimony of record established that Mr.
Coleman Morris, business manager of Local 226 of the
IBEW, had mailed letters to members of the Union and
NECA scheduling negotiation sessions for a new contract,
since the current contract was to expire June 30, 1975.
Subsequently, Mr. Dick Holt, assistant business manager
for Local Union 226 of the IBEW received a letter from
Respondent (Paul E. LaForge) dated April 30, 1975, in
which Respondent advised that it would be unable to be a
party to the present agreement from and after June 30,
1975. It further advised that it would be glad to enter into
negotiations with the Union concerning a new contract.
The Union (Dick Holt) sent a letter to Respondent
acknowledging receipt of Respondent's letter of April 30,
1975, and advising that as of May 1, 1975, the Union was
2 The facts set forth above are undisputed and are not in conflict in the
record.
273
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
open for negotiations and that all parties concerned had
been notified and will be further notified as to the date and
place of the first meeting. Shortly thereafter Respondent
Paul LaForge, Jr., placed a telephone call to Dick Holt
during which he advised that Respondent has sent the
letter because it was dissatisfied with some aspects of the
current contract, such as travel time, etc. Mr. Holt
understood Respondent was trying to give notice of
termination of its being a party to the agreement within the
60-day provision. However, he did not indicate that he
wanted to terminate Respondent's relationship with Local
226 but, rather said he hoped Respondent and the Union
could have successful negotiations and continue to work
together.
Thereafter, Respondent through Mr. Paul E. LaForge
and Mr. Paul LaForge attended and actively participated
in some six or so negotiation sessions which commenced in
May 1975. Upon the expiration of the agreement on June
30, 1975, Respondent discontinued paying the fringe
benefits under the contract. The parties, including Respon-
dent, nevertheless continued to negotiate and an agreement
was reached which became effective September 1, 1975.
According to the credited testimony of Coleman Morris,
business manager of Local 226, the Respondent, through
its representatives (Paul E. LaForge and Paul LaForge),
participated fully in negotiation sessions and at no time did
either of them indicate that they were not negotiating on
behalf of NECA, but rather, on behalf of Respondent
alone. Nor did Respondent ever ask for a separate
negotiation session to bargain on its own behalf. Mr.
Morris' testimony was essentially corroborated by manager
William E. Farrill, of the Kansas (Topeka) chapter of
NECA, Dick Holt, assistant business manager of Local
226, and Gerald W. Bowman, an electrical contractor and
member of NECA.
Although the Respondent did not ever indicate to any of
the members in negotiation sessions or otherwise, that it
was withdrawing from NECA, or that its presence in the
bargaining sessions was on its own behalf instead of
NECA's, Respondent now testifies that it first became
dissatisfied with the arrangement in NECA in April of
1975, when Local 718 merged with Local 226; that it was
concerned about what Local 226 demands would be, how
the merger would affect the negotiations and its own ability
to enter into a contract, and therefore, it did not want to be
bound by the old contract on a holdover basis. Respondent
contends that it therefore thought that it was notifying the
Union in its letter of April 30, 1975 (Joint Exh. 3), that it
desired to terminate the old agreement.
Subsequent to July i, 1975, Mr. Coleman Morris noted
that several of the contractor members were delinquent in
making contributions to their fringe benefit provisions of
the new agreement which became effective on September 1,
1975. He thereupon sent the delinquent members, includ-
ing the Respondent, a letter calling a meeting scheduled for
December 18, 1975. During that meeting Mr. Morris said
he learned for the first time from Mr. Paul LaForge, that
the reason Respondent terminated the contribution pay-
ments to fringe benefits was because it did not believe it
was bound by the new collective-bargaining agreement.
Respondent said it was not signatory to the agreement and
therefore did not want to convey the impression, by
making such contributions, that Respondent was bound by
the agreement.
Respondent said it advised the Union that if the Union
would accept the contributions without considering it
bound by the agreement, Respondent would then readily
submit the contributions. It further advised that Respon-
dent changed and paid the new wage scale rate called for
by the new contract after September 1, 1975, but it did not
pay the travel time or other fringe benefits. It said it
changed the wage scale because it wanted to keep its
employees who might have left its employ to work with
other NECA employers. It did not change the wage scale to
comply with the new contract because it did not want to be
bound by the old contract on holdover. Mr. LaForge
continued to testify as follows:
A. But that he didn't want to be a party to the
agreement for the reasons of if a picket went up our
members would recognize the picket and therefore he
couldn't man the job. If he did sign it, possibly he might
have to form a new corporation to manage those types
of jobs with open shop or non-union member in order
to complete his job.
I assured him of his desire to not be a party to the
agreement but if he would pay the funds that we would
sign a mutual letter to terminate the agreement upon
receipt of those funds. In a conversation he indicated
that he would think about it over the weekend and
determine whether he was going to pay the funds or
not. He said he probably would but he would let me
know the first of the week. I never received any
notification from him whether he accepted, no re-
sponse.
Subsequently, Dick Holt called Mr. Morris and advised
him that Respondent had informed him that Paul LaForge
Jr., had told him that Respondent did not consider itself
bound by the new agreement.
Mr. Paul E. LaForge, president of Respondent, testi-
fied that the purpose of his letter of April 30, 1975 (Joint Exh.
5) was sent at that time because the agreement provided that a
party desiring to terminate further negotiations was obligated
to advise the Union of such fact 60 days prior to expiration of
the agreement, unless it shall be presumed bound to negotiate
as it had in the past. He also thought that this letter would
cancel any further contractual obligations with the Union.
Respondent intended to negotiate with the Union on
behalf of Respondent because it felt it could benefit from
the Union on a one-to-one contract, and it wanted to
advise the Union that NECA was no longer Respondent's
bargaining representative. Mr. LaForge further testified
that he interpreted Mr. Holt's letter advising that the
Union was opened to negotiations, as an invitation to let
him know that he was welcome to negotiate in NECA on
behalf of Respondent alone.
Mr. Paul E. LaForge said he talked with Mr. Holt on a
subsequent occasion during which time he explained that
he wrote the letter because he understood if Respondent
did not agree with the new negotiations, Respondent could
withdraw from the binding effect of any agreement
reached. However, he acknowledged in this proceeding
274
INTERSTATE CONSTRUCTION CO.
that he attended the NECA sessions and admitted that he
did not state therein that Respondent was not negotiating
on behalf of NECA, but rather, on behalf of Respondent
alone. On the contrary, Mr. Paul E. LaForge said he did
state on several occasions that if the agreement reached by
NECA did not accord with Respondent's views, Respon-
dent would not sign it; that just because NECA came to an
agreement did not mean that Respondent was going to sign
it; and that such statements should have been understood
by the NECA group that Respondent was negotiating on
its own behalf.
Mr. LaForge further testified that he did not receive a
letter indicating the substance of the agreement and he had
difficulty learning what it was. About 2 months later, he
received a copy of the agreement with which he did not
agree. He also received a new letter of assent (Joint Exh. 9)
from the Union which he elected not to sign. Thereafter he
discussed the possibility and the feasibility of separate
negotiations for Respondent with the Union (Dick Holt
and Coleman Morris). According to his testimony, their
conversations were as follows:
A. I discussed it with both Dick Holt and Coleman
Morris.
Q. Approximately what time?
A. Towards the end of negotiations. Whether it be
exactly after all the meetings or at the beginning, or
what-
Q. (Interrupting) What were you told by them in
regard to separate negotiations?
A. I was told that their union couldn't do it, that
there was no way that they could enter into negotia-
tions with anybody but NECA. And, at that point, I
said, "Fine, I guess we just can't get together then
because we are not going to sign our corporation over
to NECA."
Q. Can you tell me approximately-you say this
was after August?
A. This would have been, it would have to have
been after all of the meetings. At that time when things
were going to council and probably afterwards also. In
fact I know it would have been afterwards.
Q. Would this have been prior to December 18?
A. Prior to December 18, 1 would say both before
and after, yes. It was brought up several times.
Q. So, prior to December 18, this Mr. Morris and
Mr. Holt both knew that you were operating for
Interstate Construction Company, Incorporated and
not for NECA, negotiating I should say?
A. They had been told, let's put it that way. I can't
say whether they knew.
Q. You told them?
A. They had been told.
Q. Then did there come a time when you were
asked to come to a meeting on December 18, 1975, with
the labor management committee?
A. Yes.
Q. What took place at that meeting?
A. At that meeting, we were more or less, or we
were being told that we were in violation of the contract
agreement and that we had not been paying benefits.
And so, it was just-the Labor Relations Board went
into discussions on the matter.
Q. Were you there while they discussed it?
A. Yes.
Q. What did you tell them your position was in this
regard?
A. My position was that they could assess that I
had not been paying these dues-
Mr. Paul E. LaForge testified that he did not authorize
payment of other fringe benefits because (I) they were
inflationary and (2) he felt paying such benefits might be
construed as Respondent's consent to the agreement,
thereby binding Respondent to the current agreement. He
acknowledged that he was aware that parties to the prior
agreement had to give notice of any changes 60 days prior
to the expiration to the said agreement. On cross-examina-
tion he admitted his letter of April 30, 1975 (Joint Exh. 5) did
not notify the Union that NECA was not its bargaining agent.
He continued to testify as follows:
Q. Why didn't you ever tell any representatives of
NECA that you no longer wanted them to represent
you as your bargaining agent?
A. Why didn't we tell them that?
Q. Yes.
A. I had thought that we had.
Q. Who did you tell it to?
A. Well, in the meeting with-number one, we were
not aware that NECA was our bargaining agent to begin
with. We just didn't know that they were in this to begin
with. I mean he came in and tried to do it in this one
meeting where he told me let him do the talking. I told
him, "Back off, I will talk for our own corporation
Analysis and Conclusion
In evaluating Respondent's (Mr. Paul E. LaForge, Jr.,
president, and Mr. Paul F. LaForge, Sr.) testimony with
respect to having given the Union and/or NECA oral
notice of withdrawal from collective bargaining on behalf
of NECA, I find the record wanting for proof of such fact.
Not only does Respondent (Mr. Paul E. LaForge or Mr.
Paul LaForge) admit that they did not give the parties a
clear or unequivocal statement of withdrawal, but it
(neither) could not advise the court, with reasonable
approximation, when such conversations occurred. It's
testimony in this regard was uncertain, ambiguous, and
inconsistent, as partially reflected on the record, both as to
substance of what was said and as to time. Under these
circumstances, I conclude and find that Respondent did
not give the Union or NECA such oral notice. To the
extent to which Respondent suggests it gave oral notice, it
was equivocal, and even so, thereafter revoked by Respon-
dent's subsequent conduct in actively participating in the
collective-bargaining sessions.
The crucial questions raised by the pleadings, the
evidence, and arguments in the instant proceeding are as
follows:
275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Did the Respondent ever properly and effectively
revoke or terminate its authorization of NECA as its
collective-bargaining representative?
2. Did Respondent ever properly and effectively notify
the parties (NECA and the Union, Local 226, IBEW) to
the collective-bargaining agreement of its withdrawal from
collective bargaining?
3. Did Respondent, by participating in the negotiation
sessions with full knowledge of NECA's function, as
contrasted with an employer's own bargaining goals and
without ever notifying NECA or any of the parties in the
negotiation sessions of its withdrawal from bargaining,
become bound by the collective-bargaining agreement
negotiated by NECA and effectuated on September 1,
1975?
With respect to question No. 1, it is readily observed that
the Letter of Assent (Joint Exh. 1) which Respondent
signed in late 1972 or early 1973 provided, in pertinent
part, as follows:
This is to certify that the undersigned firm has
examined a copy of the labor agreement between the
Parson's Section Kansas Chapter, NECA, Inc., and
Local Union No. 718, IBEW, dated the first day of
July, 1972: and effective the 8th day of December, 1972
In signing this Letter of Assent the undersigned firm
does hereby authorize the Parson's Section Kansas
Chapter, NECA, as its collective-bargaining represen-
tative for all matters contained in this agreement or
pertaining to this agreement. This authorization to the
Parson's Section Kansas Chapter, NECA, shall remain
in effect until terminated by written notice to the parties of
the aforementioned agreement thirty (30) days prior to the
notification dateprovidedfor therein.
Further, a successor amendment to the aforedescribed
agreement provided as follows:
This agreement between the Parson's Section of
Kansas State Chapter of the National Electrical
Contractors Association, and Local Union 718, of the
International Brotherhood of Electrical Workers dated
July 1, 1974. Is hereby amended as follows:
Effective March 1, 1975, Local Union 718 IBEW
was merged into Local Union 226 IBEW.
The Parson's Section of the Kansas Chapter of
NECA recognizes Local Union 226, IBEW as the
successor to the aforementioned agreement.
Executed this 28th day of February 1975 (Joint
Exhibit No. 4).
Joint Exhibits I and 2 are items of evidence of
Respondent's cashed check to NECA further established to
have been paid for membership dues.
The above-described documentary evidence establishes
beyond question that Respondent properly authorized and
designated NECA as its collective-bargaining representa-
tive, and thereafter paid its membership dues to NECA in
the amount of $50 on April 17, 1973. The record is barren
of any evidence showing that Respondent ever orally or in
writing revoked NECA's authorization to bargain on the
joint behalf of Respondent and other member electrical
contractors (NECA).
The record does show, however, that in a letter addressed
to Local Union No. 718 dated April 30, 1975, the
Respondent advised as follows:
This letter is to inform you that we will be unable to be
a party to the present agreement from and after June
30, 1975. We will be glad to enter into negotiations with
you concerning a new contract.
It is this letter that Respondent contends was designed
and transmitted to notify NECA and the Union that it
intended to withdraw from collective bargaining and
terminate its obligations under any future agreement
reached by NECA. In reading this letter, with the most
reasonable interpretive latitude, I cannot arrive at the
construction placed upon its language urged by the
Respondent. At most, it is clear that the language of the
above-described letter advises the Union that it does not
intend to be bound by the provisions of the current
contract on holdover after its expiration on June 30, 1975. I
interpret this statement as a mere recitation of what the
contract already provides, except that it makes clear
Respondent's intention not to be bound on holdover.
Additionally, Respondent expressed its willingness to enter
into negotiations with the Union concerning a new
contract. This latter statement, following Respondent's
prior statement in the letter, reasonably conveys the
impression that Respondent was dissatisfied with the prior
contract and indicated its hopes of achieving an agreement
more satisfactory to itself once negotiations were undertak-
en. The Union's reply letter (Joint Exh. 6) to Respondent's
letter of April 30, 1975, is consistent with the above
interpretation. That is, the Union simply acknowledged the
receipt of Respondent's letter and advised it that the Union
was open for negotiations and that all parties had been so
notified, and would be further advised of the date and
place of the first meeting. Although counsel for the
Respondent contends that Respondent's letter connoted its
intention to withdraw from collective bargaining on behalf
of NECA, such connotation, if it exists at all, is so vague
and ambiguous that at most, could raise an inference of
such contention. However, assuming that such an inference
can be drawn from the language of Respondent's letter,
such would be undoubtedly insufficient to satisfy the law
that a notice of withdrawal from collective bargaining must
be unequivocal and exercised within the appropriate time
provided for by agreement.
With respect to question No. 2, the credited and
undisputed testimony of record shows that at no time prior
to June 30, 1975 (date current contract expired), on
September 1, 1975 (the date the parties reached a new
agreement), did the Respondent ever notify the other
employer members of NECA of its withdrawal from
collective bargaining, as provided in the last paragraph of
its Letter of Assent (Joint Exh. 1). In view of this omission
by Respondent, it is clear from the evidence that although
the first and current contract expired on June 30, 1975,
NECA's capacity as the collective-bargaining representa-
tive for the Respondent was not terminated but continued.
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INTERSTATE CONSTRUCTION CO.
Subsequent to its letter of April 30, 1975, Respondent did
not properly and effectively notify the parties of the first
collective-bargaining agreement of withdrawalfrom collective-
bargaining.
With respect to question No. 3, the evidence of record is
essentially free of conflict that the Respondent, in the
persons of Mr. Paul F. LaForge, Sr., and/or Mr. Paul E.
LaForge, Jr., president, fully participated in all of the
NECA negotiation sessions without ever stating or reason-
ably intimating: that it was not negotiating on behalf of
NECA; that it was negotiating only on its own behalf; that
it had revoked its authorization for NECA to bargain
collectively for it; or that it had withdrawn from collective
bargaining as a member of NECA. In the absence of
evidence of such notice to the parties (NECA members and
the Union) I cannot conclude and find that Respondent
clearly and unequivocally communicated a notice of its
withdrawal from the collective-bargaining process. On the
contrary, I conclude and find that since Respondent
attended and fully participated in every collective-bargain-
ing session held by the parties between May and Septem-
ber 1, 1975, the parties were justified in assuming and
relying upon Respondent's continued participatory mem-
bership in the bargaining sessions. Nor does the evidence
of record show that any of the employee-members of
NECA had any actual or implied knowledge of Respon-
dent's intent or effort to withdraw from the bargaining
process.
If it can be construed at all that the Union had
inferential knowledge of Respondent's intent and effort to
withdraw from collective bargaining, such inferential
knowledge does not constitute unequivocal and timely
notice of withdrawal. Hence, the Board's decision in Retail
Associates, Inc., 120 NLRB 338 (1958), appropriately cited
by counsel for the General Counsel, is controlling on the
facts of the Respondent's letter of April 30, 1975, and any
prior and subsequent conversations it contends it held with
the parties. Even if such conversations occurred they did
not relieve Respondent of its contractual obligation to give
written and timely notice.
Counsel for the Respondent's argument of notice upon
the theory of agency is ineffective since Respondent's letter
of April 30, 1975, was not unequivocal, and therefore not
timely. If Respondent's letter was unequivocal in fact, I
would have no difficulty finding it was transmitted to the
Union in compliance with the collective-bargaining agree-
ment 60-days provision. However, it does not appear to be
timely in accordance with Respondent's letter of assent
and the collective-bargaining agreement.
Not having given timely and unequivocal notice of with-
drawal, Respondent's full participation in the bargaining
sessions of NECA bound it to the agreement reached by the
members thereof
As counsel for the General Counsel points out, once a
mutliemployer bargaining unit has been established as in
the case herein, the employer-members are subject to the
rule enunciated by the Board in Retail Associates, supra.
That is, the withdrawal must occur before the commence-
ment of negotiations or, if attempted after negotiations
have begun, be based upon (1) unusual circumstances or
(2) the acquiescence of the Union. Hi-Way Billboards, Inc.,
206 NLRB 22 (1973). In the instant case Respondent-
Employer fully participated in the negotiations and did not
make a subsequent attempt to withdraw from collective
bargaining. It did not submit any unusual circumstances to
justify withdrawal, and the Union nor the other members
of NECA did not at any time acquiesce in any withdrawal
effort by the Respondent.
Moreover, as further pointed out by counsel for the
General Counsel, a member's decision and effort to
withdraw from multiemployer collective bargaining must
contemplate its sincere abandonment, with relative per-
manency of the multiemployer unit and the embracement
of the different course of bargaining on an individual basis.
Here the Respondent did not at any time abandon its
active participation in the collective-bargaining sessions,
but through its own testimony, stated that it participated
with some anticipation that the bargaining parties would
reach an agreement also acceptable to the Respondent. In
fact the Respondent testified that it could not agree with
the agreement reached because it was inflationary but that
it would have accepted and signed the agreement had it
been more financially satisfactory. Beyond that explana-
tion, the Respondent introduced no evidence which
indicated it was confronted with a financial crisis which
threatened its existence as a viable business entity.
Although the Respondent contended it requested the
Union to bargain with it individually, if in fact it could, this
contention was not significant to the issues in this case
since the Respondent did not effectuate a valid withdrawal
from the multiemployer bargaining unit. On the contrary,
since the Respondent had delegated authority to NECA as
its collective-bargaining representative, which authority it
did not revoke, it is bound by the resulting collective-
bargaining agreement. Consequently, Respondent's failure
and refusal to sign and pay certain fringe benefits specified
under the new agreement constituted an interference with,
restraint upon, and coercion against unit employees in the
exercise of Section 7 rights, in violation of Section 8(aX I),
of the Act. Such failure or refusal on the part of
Respondent also constitutes a refusal to bargain in
violation of Section 8(aX)(5) of the Act. See H. J. Heinz
Company v. N.LR.B., 311 U.S. 514 (1941).
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting remedial Order, I shall recom-
mend that it cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act.
277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It having been found that Respondent has unlawfully
failed and refused to sign and pay certain fringe benefits
specified under the new collective-bargaining agreement
negotiated by its duly designated multiemployer bargain-
ing representative, because Respondent deems said agree-
ment inflationary, the recommended order will provide
that Respondent sign the agreed upon contract and pay the
several fringe benfits specified thereunder, if NECA and
the Union so request, and if no such request is made, the
Respondent shall, upon request, bargain collectively with
NECA and the Union as a member of NECA, its exclusive
bargaining representative, and the Union, the representa-
tive of Respondent employees and members of Local 226,
and, if an understanding is reached, embody such under-
standing in a signed agreement.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Interstate Construction Co., the Respondent herein,
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local Union No. 226, International Brotherhood of
Electrical Workers, the Union herein, is a labor organiza-
tion within the meaning of the Act.
3. The Parson's Division, (Section), Kansas (Topeka)
Chapter, National Electrical Contractors Association, Inc.,
herein referred to as NECA, is an association of multiem-
ployer business interprises engaged in the business of
electrical contracting, and exists for the purpose of
representing in collective bargaining with the Union, those
employers who have authorized NECA to represent them.
4. By failing and refusing, subsequent to July 1, 1975,
to pay certain fringe benefits specified under the new
collective-bargaining agreement effective September I,
1975, and by failing and refusing to sign said agreement,
the Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and coercing,
employees in the exercise of rights guaranteed in Section 7
of the Act, in violation of Section 8(aX)1) of the Act.
5. By failing and refusing, subsequent to July 1, 1975,
to pay certain fringe benefits specified under the collective-
bargaining agreement affective September 1, 1975, and by
refusing to sign said agreement, Respondent has refused,
and is refusing, to bargain collectively, and has withdrawn
from the negotiations with Local 226, International
Brotherhood of Electrical Workers, and NECA, and is
engaging in an unfair labor practice within the meaning of
Section 8(a)(5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices effecting commerce within the meaning of
Section 2(6) and (7) of the Act.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
Upon the foregoing findings of facts, conclusions of Law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 3
The Respondent, Interstate Construction Co., Parsons,
Kansas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Local Union No. 226, International Brotherhood of
Electrical Workers and National Association of Electrical
Contractors (NECA), by refusing upon request, to pay the
contributions on the fringe benefits specified in the new
collective-bargaining agreement, and to sign said agree-
ment which resulted from the collective-bargaining sessions
in which the Respondent fully participated.
(b) Interfering with, restraining, and coercing its employ-
ees in the exercise of rights guaranteed in Section 7 of the
Act.
(c) In any like or related manner interfering with the
efforts of Local No. 226, International Brotherhood of
Electrical Workers, to bargain collectively on behalf of
employees in the appropriate unit.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, pay the contributions to the fringe
benefits specified in the new collective-bargaining agree-
ment effective September 1, 1975, the negotiations for
which Respondent was an active participant.
(b) Upon request, sign the collective-bargaining agree-
ment effective September 1, 1975, the negotiations for
which the Respondent was an active participant.
(c) If no request is made as provided in paragraphs 2(a)
and (b) hereof, upon request, bargain collectively with
Local 226, International Brotherhood of Electrical Work-
ers, as a member of National Electrical Contractors
Association (NECA), Parson's Division (Section), Kansas
(Topeka) Chapter, to negotiate a collective-bargaining
agreement, and embody any understanding which may be
reached in a signed agreement.
(d) Post at Respondent's plant at Parsons, Kansas, copies
of the attached notice marked "Appendix." 4 Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by Respondent's
representatives, shall be posted by it immediately upon
receipt thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
4 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
278