Iron Workers, Local 625

National Labor Relations Board - Board Decisions

Jun 6, 1974

211 N.L.R.B. 128 (N.L.R.B. 1974)

128 DECISIONS OF NATIONAL LABOR 'cELATIONS BOARD
International Association of Bridge, Structural and
Ornamental Iron Workers , Local 625, AFL-CIO
and Construction Industry Bargaining Association
of Hawaii
International Brotherhood of Boilermakers , Iron Ship
Builders, Blacksmiths , Forgers & Helpers, Local
204, AFL-CIO and Construction Industry Bar-
gaining Association of Hawaii . Cases 37-CB-158
and 37-CB-160
June 6, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On April 30, 1973, Administrative Law Judge
George H. O'Brien issued the attached Decision in
this proceeding. Thereafter, Respondents filed excep-
tions and a supporting brief, and the General
Counsel filed an answer to Respondents' exceptions.
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, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondents, International Asso-
ciation of Bridge , Structural and Ornamental Iron
Workers, Local 625 , AFL-CIO , and International
Brotherhood of Boilermakers , Iron Ship Builders,
Blacksmiths, Forgers & Helpers, Local 204,
AFL-CIO, their officers, agents, and representatives,
shall take the action set forth in said recommended
Order.
DECISION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN, Administrative Law Judge: On
December 11, 1972, in Honolulu, Hawaii, a hearing was
held in the above entitled matter. The consolidated
complaint, issued October 30, 1972, is based on charges
' On February 20, 1973, Respondents' counsel moved to reopen the
record, and tendered as Resp Exh 4, copies of a contract signed by
Boilermakers and individual companies on January 31, 1973 A memoran-
filed July 19, 1972, and amended charges filed July 20,
1972, by Construction Industry Bargaining Association of
Hawaii, herein called CIBA. The complaint alleges and the
answers deny that Respondents, International Association
of Bridge, Structural and Ornamental Iron Workers, Local
625, AFL-CIO, herein called Ironworkers, and Interna-
tional Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers & Helpers, Local 204, AFL-CIO,
herein called Boilermakers, violated Section 8(b)(1)(B) and
8(b)(3) of the National Labor Relations Act by refusing to
bargain with CIBA and refusing to bargain with the
employers of employees represented by Respondents, so
long as CIBA remained the designated representative of
said employers for collective bargaining.
Upon the entire record 1 in this proceeding, including my
observation of the witnesses and after due consideration of
the post hearing briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Associated Steel Workers, Ltd., Hawaii State Steel Co.,
Ltd., Hawaii Reinforcing Steel Co., and Western Fabrica-
tors, Inc., are employers in the building and construction
industry. Hawaii Reinforcing Steel Co. annually purchases
and receives goods and materials valued in excess of
$50,000 which are shipped to it directly from points located
outside the State of Hawaii. The contract effective from
October 30, 1967, to August 15, 1972, recites:
This agreement. . . . by and between the Reinforcing
Steel Companies of Honolulu, Hawaii, signatory to this
agreement, each signatory being hereinafter called the
"Employer", and Local Union No. 625 of the Interna-
tional Association of Bndge, Structural and Ornamen-
tal Ironworkers, AFL-CIO, hereinafter called the
"Union", witnesseth:.. .
Hawaii Welding Co., Ltd., annually purchases and
receives goods valued in excess of $50,000, which are
shipped to it directly from points located outside the State
of Hawaii. Hawaii Welding Co., Ltd., and 12 other
employers in the building and construction industry are
signatory to a contract effective from April 1, 1968, to
August 15, 1972, which recites:
This agreement. . . . by and between the Steel Fabri-
cators & Erectors Association of Hawaii signatory to
this agreement, each signatory being hereinafter called
the "Employer," and Local Union No. 625 of the
International Association of Bndge, Structural and
Ornamental Ironworkers, AFL-CIO, hereinafter called
the "Union", witnesseth:.. .
Dillingham Corporation, d/b/a Hawaiian Dredging &
Construction Co., annually purchases and receives goods
valued in excess of $50,000, which are shipped to it directly
from points located outside the State of Hawaii. Hawaiian
Dredging & Construction Co., and nine other employers in
dum opposing said motion was filed by the General Counsel on February
22, 1973 The motion is granted and the Boilermakers ' agreement effective
to and including August 31, 1975, is received in evidence as Resp Exh 4
211 NLRB No. 29
IRON WORKERS , LOCAL 625 129
the building and construction industry are signatory to a
contract effective from April 1, 1971, to September 1, 1972,
which is entitled:
Articles of Agreement Between the International
Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers, and Helpers, and Subordinate
Lodge No. 204 (herein referred to as "Union") and the
Firms Whose Signatures are Affixed Hereto (herein
referred to as "Contractor")... .
The agreement is signed, "For Contractors' Negotiating
Committee: By John Marabella, Chairman," and the same
document is also signed by 10 employers.
CIBA was incorporated May 31, 1972. Its bylaws
adopted June 14, 1972, recite:
ARTICLE I, Section 1. Organization and Purpose. The
Construction Industry Bargaining Association of Ha-
waii, hereinafter referred to as "CIBA-HAWAII", is a
non-profit corporation organized and existing under
the laws of the State of Hawaii, to negotiate and
execute labor agreements which are applicable to and
cover operations within the State of Hawaii in the
construction industry for employer members of the
corporation, all matters and things which are now or
hereafter may properly be the subject of collective
bargaining, to represent and act on behalf of employers
generally in the construction industry, and to do all
acts and things not expressly prohibited to a non-profit
corporation.
Steel Fabricators & Erectors Association of Hawaii
The Reinforcing Steel Companies of Honolulu, Hawaii
GENTLEMEN:
.... we hereby serve notice prior to the expiration
date of our contract. . . . Local Union #625 hereby
notifies you, and each of you of its desire to modify,
amend, reject or re-accept the various provisions
contained therein... .
It is our desire to conduct our negotiations along the
same general line we have followed in the past and
suggest negotiations commence as soon as possible, at
any mutually agreeable time and place... .
The letter was signed by Damien O. S. Kim, President, and
by "Kazuto Cowboy Muramatsu, Fin. Sec'y, Treas.,
Business Agent."
Under date of June 1, 1972, on the letterhead of
CIBA-HAWAII, James G. Westlake wrote to Ironwork-
ers:
In connection with the forthcoming negotiations for
renewal of the collective bargaining agreement between
your Union and the Reinforcing Steel Companies of
Hawaii, this is to officially advise you that the members
of said Association have assigned their bargaining
rights to our organization.
H. THE LABOR ORGANIZATIONS INVOLVED
Ironworkers and Boilermakers are labor organizations
within the meaning of Section 2(5) of the National Labor
Relations Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The controlling issue in the case is whether Respondents'
refusal to bargain with CIBA had any legal justification.
B. Ironworkers Bargaining
Steel Fabricators and Erectors Association of Hawaii is
an association which represents its member employers in
collective bargaining with various labor organizations. In
its negotiations with Ironworkers prior to 1972, the
president of the Association named a negotiating commit-
tee of five persons who, with James Westlake, Manager of
General Contractors Association, Hawaii Chapter, met
with Ironworker representatives. The agreements reached
were subject to ratification by the membership of the
Association.
Reinforcing Steel Companies of Honolulu, Hawaii, is the
collective designation of the four employers who have
negotiated jointly with Ironworkers. Each company is
represented on the bargaining committee. In 1972, five
companies were represented and all five participated.
Under date of May 30, 1972, Ironworkers wrote to:
The above covers the following companies:
Associated Steel Workers, Ltd.
Atlas Prestressing Corporation
Hawaii State Steel Co., Ltd.
Hawaiian Reinforcing Steel Co., Ltd.
Western Fabricators, Inc.
I will be in contact with you shortly to arrange for the
official commencement of negotiations.
Under date of June 1, 1972, on the letterhead of Steel
Fabricators & Erectors of Hawaii, its president, Kenneth
K. Sudo, wrote to Ironworkers:
In connection with the forthcoming negotiations for
renewal of the collective bargaining agreement between
your Union and members of our Association, this is to
officially advise you that our members, through our
Association, have assigned their bargaining rights to
the Construction Industry Bargaining Association of
Hawaii (CIBA-HAWAII).
That organization will be making contact with you to
arrange for the official commencement of negotiations.
On June 14, 1972, the seven directors of CIBA adopted
bylaws and appointed Westlake, the manager of associated
General Contractors, to be the "staff" of CIBA. The
bylaws contain the following provisions:
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ARTICLE X
DUTIES AND OBLIGATIONS OF MEMBERSHIP
Section 1. Mutual Interest in Labor Activities:
Members of CIBA-HAWAII hereby acknowledge that
each of them are interested and concerned in all labor
negotiations conducted by other members of CIBA-
HAWAII itself without regard to the current status of
any collective bargaining agreement adopted by any of
them for the following reasons , among others:
(a) The casual nature of employment within the
construction industry;
(b) The fact that employees from a variety of umons
may fulfill a particular employer's need in time of labor
shortage , such as welders or other persons skilled in the
tools of the trade of a variety of crafts;
(c) Changes in contracting and subcontracting
methods and competitive bidding, including specially
funded and bid programs such as model cities;
(d) Changes in construction equipment methods and
techniques giving rise to jurisdictional disputes;
(e) The co-ordinated nature of construction activities
in the field which make the performance of work by
any employer dependent , in fact, upon other work as a
necessary pre-condition or necessarily co-ordinated
with such work;
(f) Local unions having associated themselves with
sister locals , their international organizations and other
building trades unions having long-range co-ordinated
plans;
(g) Construction trades' unions having developed a
full time specialized staff advancing the specialized
interest of organized labor;
(h) Employers generally having failed to match the
organization structure and planning functions of
building and construction trades;
(i) The interest in and encouragement of the federal
government in area-wide multi-contractor organiza-
tions as a balancing force in the economy;
(j) The absence of any other organization to protect
the common interest of the public generally and the
interests of construction by tax supported public
institutions.
Section 2. Assignment of Bargaining Rights: For the
reasons set forth in Section 1, among others, each
member of CIBA-HAWAII by applying for and
maintaining membership does hereby covenant and
agree with all other members to be boun' .- hereunder,
and does hereby designate and assign to CIBA-HA-
WAII all of its bargaining and negotiating rights with
the local construction unions with whom it negotiates
contracts , including the rights of all of its members or
other persons bound to such negotiations , for the
duration of their membership (subject to binding
arbitration provisions applicable to particular trades
under existing collective bargaining agreements); pro-
vided , however, that labor contracts binding upon
CIBA-HAWAII shall be negotiated and executed by
CIBA-HAWAII Negotiating Committees selected for
each craft . The following principles shall govern the
selection and operation of the Negotiating Committees:
Each Negotiating Committee shall be selected by
the Board [of Directors of CIBA] from represent-
atives of the associations dominant in the
employment of that craft , based upon historical
bargaining rights.
The Board [of Directors ] shall establish guidelines
for the procedural operation of the Negotiating and
Advisory Committees; provided, that the final authori-
ty to negotiate , conclude and execute the substance of
labor contracts binding upon all members of CIBA-
HAWAII shall be with particular Negotiating Com-
mittees. Upon such application for and maintenance of
membership, CIBA-HAWAII does hereby accept such
assignment of bargaining rights.
Section 3. Negotiations through CIBA-HAWAII only-
Each member hereby authorizes and empowers CIBA-
HAWAII as its sole and exclusive bargaining agent to
enter into and conduct negotiations in its behalf and to
execute new collective bargaining agreements with the
construction trade unions, (hereinafter called the
"Unions") to cover wages, hours and other terms and
conditions of employment of its employees represented
by the unions.
In consideration of the services performed and to be
performed on behalf of the members of CIBA-HA-
WAII, each member hereby agrees that this authoriza-
tion is irrevocable and that each member will not
negotiate or discuss separately a new collective bar-
gaining agreement , or any of the terms thereof , or reach
or attempt to reach any understanding , either formally
or informally , with such umons or execute a collective
bargaining agreement with such unions , unless approv-
al has first been given by CIBA-HAWAII.
In the event that CIBA-HAWAII is unable to reach
a settlement with any of said unions on the terms of a
collective bargaining agreement , each CIBA-HAWAII
member agrees that:
(a) If a union takes strike action against any member
or members of CIBA-HAWAII who have signed
similar authorizations , upon request of CIBA-HA-
WAII and to the extent it may lawfully do so , will clc,se
down and lock out its employees as a defensive
measure to such tactics , and will take such other lawful
defensive action with respect to the strike as CIBA-
HAWAII deems necessary or appropriate to preserve
and protect the rights of CIBA-HAWAII members to
engage in collective bargaining on a multi-employer
basis through CIBA-HAWAII.
(b) If a union insists upon adoption of terms
unacceptable to CIBA-HAWAII, each member, to-
gether with all other members who have signed similar
authorizations , upon request of CIBA-HAWAII and to
the extent that it may lawfully do so, will close down
and lock out its employees as an offensive measure and
take such other lawful action as CIBA-HAWAII
deems necessary or appropriate.
As of June 14, 1972 the board of directors of CIBA was
IRON WORKERS , LOCAL 625 131
comprised of representatives of the following employer
associations : Associated General Contractors Labor Asso-
ciation; Labor Association of the Home Builders Associa-
tion; Steel Fabricators and Erectors of Hawaii; Reinforc-
ing Steel Companies of Hawaii; Boilermaker Employers of
Hawaii ; Gypsum and Drywall Contractors Association of
Hawaii; Paving Companies of Hawaii; Pacific Bureau for
Lathing and Plastering.
On June 27, 1972, Ironworkers notified Reinforcing Steel
Companies:
.... This is to inform you that we do not recognize the
purported assignment of the Reinforcement Steel Com-
panies of Honolulu, Hawaii, bargaining rights to CIBA.
We have been advised, and we believe, that the Rein-
forcing Steel Companies of Honolulu, Hawaii, cannot,
without our consent, assign to another organization its
rights to bargain with our Union. Its so-called assign-
ment does not bind us to deal with CIBA and we do
not intend to do so.... We insist that negotiations between
the Union and the Reinforcing Steel Companies of
Honolulu, Hawaii, begin without further delay.
On the same date, June 27, 1972, Ironworkers served an
identical notice and demand on the Steel Fabricators &
Erectors Association of Hawaii.
On July 12, 1972, a meeting was held in the offices of
Associated General Contractors. Ironworkers were repre-
sented by Muramatsu and members of his bargaining
committee. Employers were represented by members of
CIBA's board of directors, by members of the Fabricators
and Erectors bargaining committee and by members of the
Reinforcing Steel group. Attorney Benjamin Sigal was
spokesman for the Ironworkers. James Westlake was
spokesman for the employers. After introductions, West-
lake announced that "we were there at the Union's request
to hear what the Union had in mind with respect to the two
groups getting together."
Sigal stated that the purpose of the meeting was to
explain why Ironworkers would not recognize CIBA. His
reasons were: (1) The Ironworker contracts were not
association agreements. Although negotiations had been
conducted jointly, the agreements had been signed individ-
ually. (2) Associations, as such, did not have any authority
to negotiate for the individual members. (3) Ironworkers
had never consented to association bargaining. (4) If the
Associations had named CIBA as their spokesman, "it
might be a different story," but, the effect of CIBA's
bylaws, was to make CIBA the employer, and make the
employer groups agents of CIBA, and "pitting the entire
construction industry against Local 625."
Westlake answered that this was not the intent of the
employers and "that the negotiations would be conducted
just as they had in the past. The Reinforcing Steel
Negotiating Committee would be made up of Reinforcing
Steel Employers, and the Steel Fabricators and Erectors
negotiations would be handled by a committee of Steel
Fabricators and Erectors and the contracts would be
signed just as they had in the past." When Sigal protested
,that CIBA's bylaws made this impossible, one of the CIBA
directors , John Marabella, replied that the bylaws were an
internal matter of the CIBA group, and no concern of
Ironworkers. Marabella explained that although the bylaws
had been written with an overall multiunion-multiemploy-
.er concept in mind, the employers were reconciled to the
fact that the unions were not going to accept this concept
and were willing to negotiate just as they had in the past.
Ironworkers were not persuaded.
In exchanges of correspondence between August 10,
1972, and August 30, 1972, it was agreed that negotiations
would be conducted "in the same manner and on the same
basis" as they had been in the past, that the two resulting
,agreements would be signed by the individual employers
bound thereby, that the employer representatives would
neither represer t nor be represented by CIBA, and that the
legality of Ironworkers' refusal to recognize CIBA and
refusal to bargain with CIBA would be left for determina-
tion by the National Labor Relations Board.
On November 30, 1972, Ironworkers and the five
Reinforcing Steel Companies signed an agreement effec-
tive from August 14, 1972, to August 17, 1975.
On December 4, 1972, Ironworkers and Steel Fabricators
and Erectors of Hawaii, signed a contract effective from
August 14, 1972, to August 17, 1975.
C. Boilermakers Bargaining
John Marabella is manager of labor relations for
Dillingham Corporation. He was the chairman of the
employers' committee which negotiated the 1971 contract
with Boilermakers. He participated with other employer
representatives in the development of the CIBA concept
which was:
that CIBA acting for and in behalf of the
Employers would meet across the table with all of the
Unions involved in the construction industry in Hawaii
for the purpose of negotiating an economic package,
total package. Once that total package was arrived at,
then each of the Unions and Employer Associations
would meet for the distribution of the package and for
ironing out language and whatever other things were
necessary for the agreement.
The CIBA concept was presented informally to union
representatives in individual and group meetings early in
1972. Marabella testified that when it became apparent
that the Unions would not accept the CIBA concept,
. . . then it was our judgment at that time that CIBA
would be the spokesman for any Employer Association
who asked them to speak in their behalf and [negotia-
tions ] would be handled in exactly the same manner as
they had in the past, that is that the committees would
have the sole authority to negotiate and execute their
contract.
Under date of June 1, 1972, Marabella in his capacity of
"Chairman , Boilermaker Employers Negotiating Commit-
tee" wrote to Boilermakers:
In connection with the forthcoming negotiations for
renewal of the collective bargaining agreement by and
between your union and our association , this is to
officially advise you that our association, for and on
behalf of its members, has assigned its bargaining rights
to the CONSTRUCTION INDUSTRY BARGAIN-
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ING ASSOCIATION OF HAWAII (CIBA-HAWAII).
That organization will be contacting you shortly to
arrange for the official commencement of negotiations.
Under date of June 16, 1972, Boilermakers sent individu-
al letters to each of the employers signatory to its contract,
suggesting a number of changes and modifications. One of
these letters was addressed to Marabella as manager of
labor relations for Dillingham Corporation.
Under date of July 5, 1972, on the letterhead of CIBA,
Westlake wrote to Boilermakers:
In connection with the forthcoming negotiations for
renewal of the collective bargaining agreement by and
between your Union and various companies, this is to
officially advise you that the following companies
which make up the Boilermaker Employers of Hawaii
have assigned their bargaining rights to our organiza-
tion :
Black, Wyatt & Kipper
Central Pacific Boiler & Piping Ltd.
Chicago Bridge
Hawaii Welding Co.
Hawaiian Dredging and Construction Co.
Industrial Mechanical Contractors
Midwestern Contractors
Mutual Welding Co.
Pacific Marine & Supply Co.
Under date of July 10, 1972, Boilermakers sent identical
letters to each of the employers party to its contract,
stating:
This is to inform you that we do not recognize your
purported assignment of bargaining rights to CIBA.
We have been advised, and we believe, that your
company cannot, without our consent, assign to
another organization your company's right to bargain
with our Union. This so-called assignment does not
bind us to deal with CIBA or any of its agents, and we
do not intend to do so.
We have been negotiating with you amicably and
successfully for many years, and we are desirous and
willing to continue negotiating as we have done during
that time.
Notice of our desire to reopen the agreement for
negotiations has already been given to you. The
deadline for commencement of such negotiations is
July 16th. We are prepared to meet with you on that
date at a mutually agreeable time and place to begin
such negotiations . However, again we insist that
negotiations be conducted between this Union and
your company without the intervention of a third party.
Boilermaker and Employer representatives met in the
offices of Associated General Contractors on July 17, 1972.
The sole purpose was to explain their relative positions
with regard to CIBA. Negotiations were neither contem-
plated nor attempted. Paul I. Banks, president of CIBA,
and Marabella spoke for the employers. Sigal spoke for the
Boilermakers.
At this meeting, as descnbed by Marabella,
[Mr. Banks] said originally CIBA has been intended
to be a multi-employer-multi-union bargaining group,
and he reviewed the experiences of collective bargain-
ing on the mainland, the non-union development on
the mainland. He felt that CIBA could be used as a
clearing house for labor problems, could be used as a
communication between Employers and could conceiv-
ably coordinate collective bargaining so that we can
minimize the impact of whiplash and that sort of thing
which had happened in the past.
Mr. Sigal made it abundantly clear that the Union
was not there to bargain with CIBA. In fact they were
there to explain their reasons for not bargaining with
CIBA. He said the Union's being there did not
constitute recognition of CIBA.
He also questioned the validity of our statements
regarding a Boilermaker Association. He said the
Association's assignment of bargaining rights to CIBA
is futile, since they have nothing to assign and that that
assignment could not be made without the consent of
the other party. He said that in fact, the Boilermaker
Employers, in the assignment of their bargaining rights
had made CIBA an employer and it was on that basis
that he was refusing to either recognize or bargain with
CIBA.
Our response to him was that the original concept of
CIBA, that is the multi-employer- multi-union bargain-
ing, we were convinced now was not to take place at
this time. . . . We said that we would negotiate as they
had in the past, that is the same group of employers
with the same Union in the same manner in which they
had negotiated in the past and that the individual
Employers would sign their contracts as they had in the
past.
Mr. Sigal indicated that that was unsatisfactory
because in fact, they might be agents of CIBA.
When Marabella reiterated that "it was not the intent of
CIBA to change the scope of the agreement, nor was it the
intent of CIBA to expand the bargaining unit in any way,"
Sigal answered that this intent could not be carried out
under the existing bylaws of CIBA. Marabella replied that
"the bylaws were none of [the Union's] business," but that
"if the bylaws had to be amended to conform to the
existing idea of CIBA it would be done." The meeting
ended with Westlake's announcement that he "would be
filing charges with the National Labor Relations Board .
In exchanges of correspondence between July 24, 1972,
and August 25, 1972, it was agreed that negotiations for a
new agreement would be conducted in the same manner
and on the same basis as was used for current and prior
agreements, that the contract would be signed by the
Boilermakers and by the individual employers who would
be bound by it, that employer representatives would
neither represent nor be represented by CIBA and that the
legality of Boilermakers' refusal to recognize CIBA and
refusal to bargain with CIBA would be left for determina-
tion by the National Labor Relations Board.
On January 31, 1973, Boilermakers and nine employers
signed separate but identical contracts.
D. Respondent's Argument
Respondents ' counsel in his brief to me states : "There
can be no doubt that Respondents never agreed to bargain
IRON WORKERS , LOC.".L 625 133
with CIBA." He justifies this refusal on the following
grounds:
A. There is no history of bargaining by Respondents on
the basis of a multi-employer unit.
With respect to the Boilermakers, there is no dispute
that prior to CIBA there had never been an association
of the Boilermaker employers; that the union was never
informed of a designation of a bargaining agent for the
employers; that every employer involved had a repre-
sentative at the joint negotiations, and any employer
was free to refuse to sign the agreement when the
negotiations were completed.
The history of negotiations between the Ironworkers
and the Steel Companies was the same as that of the
Boilermakers.
With respect to the Fabricators, there was an
association in existence which had a spokesman and a
committee representing all the employers; however, no
action was taken with respect to any absent employer
before consulting him, and every employer involved
was free to refuse to sign an agreement after it was
negotiated.
B. CIBA constituted an entirely different type of
collective bargaining than Respondents had previously
engaged in.
As shown above, Respondents had never engaged in
bargaining on a multi-employer unit basis as the Board
has defined it, and did not want to engage in it.
However, assuming, arguendo, that they had en-
gaged in such bargaining, it is clear that CIBA
constituted an entirely different kind of entity than
they had known previously, and they wanted no part of
it.
The basic differences may be outlined as follows:
1. Assignment of bargaining rights. The so-called
associations purported to assign their bargaining rights
to CIBA. Assuming that the individual employers
assigned their rights to CIBA, there can be no question
that in previous negotiations there had been no
assignment or delegation of bargaining rights.
2. CIBA was broader than any trade group. The
governing body of CIBA, which determined its policies,
consisted of employers from many trade groups in
addition to the respective groups with which the
Respondents had dealt. . . . Since each of the associa-
tions had one vote on the board of CIBA, it is obvious
that the policies that would govern the Boilermaker
employers, or the Fabricators, or the Steel Companies
would be determined by employers in other
trades... .
3. The entire construction industry was expected to
back up each negotiation. This was the heart of the
CIBA concept and it is spelled out in various ways in
the by-laws. . . . The CIBA concept included a
structure which, in effect, ranged all the employers in
the construction industry against a single craft union
when the latter was bargaining only for its own
craft... .
CIBA recognized that it was markedly different from
anything that went before in respect to bargaining in
the construction industry, and the necessity for consent
of the unions, when it stated in its letters to the
Respondents that "The By-laws of CIBA-Hawaii were
prepared with a view towards the possible and/or
eventual joint and mutual consent and recognition of
the CIBA concept on the part of all building trades
unions and the employers involved"... .
C. A CIBA multi-employer bargaining unit never came
into being because Respondents did not consent to bargain
with it, and did not enter into negotiations with it. .
Evening News Association, 154 NLRB 1494, 1496-
1497... .
D. CIBA was never designated a representative for
purposes of collective bargaining
Marabella, supported by Westlake, testified that
when Respondents made it clear they would not deal
with CIBA as bargaining agent, CIBA said:
... we would negotiate as they had in the past,
that is, that the same group of Employers with the
same Union in the same manner in which they
had negotiated in the past and that the individual
Employers would sign their contracts as they had
in the past."
This statement illustrates the deliberate obfuscation,
if not duplicity, which CIBA engaged in after learning
that Respondents would not recognize it. When
Marabella, speaking for CIBA said "we" would
negotiate, etc., he was expressing a self-contradiction,
because bargaining could not, under those circum-
stances, go on just as it had in the past, because CIBA
had not been involved in those negotiations in the past.
It was clear to Respondents that Marabella's statement
was a verbal mask, inasmuch as the employers would
still be subject to the commitments they had made to
CIBA and CIBA would be calling the shots... .
None of the emI foyers advised either of the
Respondents that they were changing the role of CIBA,
after informing Respondents that they had assigned
their bargaining rights to CIBA.
CIBA never explicitly said that it was designated and
willing to act merely as a spokesman in negotiations for
any of the groups of employers involved. This was not
due to an oversight, nor lack of realization by CIBA of
the importance of the distinction between a spokesman
and a "duly designated collective bargaining represent-
ative". CIBA did use that word in a different context.
In letters to Respondents dated August 10, CIBA
stated its willingness to act as spokesman on a
"company by company" basis. The Respondents had
made no request to bargain on a company by company
basis. But the proposal had the effect of emphasizing
both the failure of the employers to inform the
Respondents that they had designated CIBA merely as
their spokesman, and also the failure of CIBA to
express its willingness to act in that capacity.
When the employer groups did inform Respondents
that they were willing to negotiate just as they had in
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the past, the Respondents did enter into negotiations
with them.
E. Conclusions
Section 8(b)(1)(B) guarantees to employers the right to
select "representatives for the purposes of collective
bargaining" free from any coercion or restraint by a labor
organization . Section 8(d) imposes on employers and
unions a "mutual obligation" to "confer in good faith."
This case is the counterpart and the mirror image of two
lead cases wherein the Board held that employers had
violated their duty to bargain with unions representing
their employees. These are, General Electric Co., 173
NLRB 253, enfd. 412 F.2d 512 (C.A. 2, 1969), and
Minnesota Mining and Manufacturing Company, 173 NLRB
275, enfd. 415 F.2d 174, 175 (C.A. 8, 1969).
The following statement by Trial Examiner Fredrick U.
Reel, adopted by the Board and approved by the Court of
Appeals for the Eighth Circuit disposes of Respondents'
contention herein that the desire of employers to expand
the bargaining units justified Respondents' refusal to
bargain with CIBA:
The company contends that the Union's ultimate aim is
"coordinated bargaining", that is bargaining which will
embrace more than the single unit the Union represents
and which will settle terms for other units and at other
plants. The record does establish that this [is] an
ultimate objective of the Union. . . . the presence of
representatives of other labor organizations in the St.
Paul and Hastings negotiations may well be an opening
wedge in this hoped for development. The company
perhaps should not be blamed for trying to keep the
union camel from sticking its nose under the tent. But
whatever may be the Company's fears, and however
accurate its prognostication and its discernment of the
Union's ultimate aims , the Company here and now is
under a duty to bargain with the Union, and this
encompasses a duty to bargain with whatever repre-
sentatives the Union chooses to send. The mere
possibility of future abuse. . . . is no justification for
an anticipatory refusal to bargain.
Appropriate unit is not an issue in this case and the unit
descriptions in the complaint are surplusage. On this
record there are three historical multiemployer units. As of
June 27, 1972, prior to the commencement of bargaining
for a new contract, Ironworkers had the legal right to
refuse to bargain with the Fabricators Association, or with
the Reinforcing Steel Companies as a group. If they had
exercised this option, they would have remained under the
legal duty to bargain with each individual employer,
through his selected representative, CIBA. Ironworkers did
not exercise their option. They demanded continuation of
association bargaining , while refusing to recognize CIBA.
Boilermakers, by their individual letters of July 10, 1972,
may have demanded individual bargaining. Westlake,
recognizing that possibility, advised the Boilermakers on
August 10, 1972:
This will confirm , again in the interest of getting
negotiations underway, the willingness of CIBA-HA-
WAII to act as spokesman on an individual company
by company basis if this arrangement would be more
satisfactory to you. If so, we would suggest that, in the
interest of time, such individual negotiations be
consolidated and conducted concurrently.
Boilermakers rejected this suggestion, and reaffirmed
their refusal to bargain with CIBA in any unit. In The
Evening News Association, 154 NLRB 1494, the Board held
at 1497 and 1500-01:
the basis of multi-employer bargaining unit is
both original and continuing consent by both par-
ties.... Important practical considerations demon-
strate the wisdom of leaving intact the freedom of the
parties involved to form and dissolve, to modify and
adapt, multiemployer units. Practices vary from indus-
try to industry, from one section of the country to
another, and from time to time even within one
industry or one section of the country. No one pattern
of bargaining structure has been found best adapted to
all situations. The benefits that flow from multiemploy-
er bargaining result from the participants' mutual
agreement that their individual interests are best served
by negotiating within the framework of multiemployer
units... .
At no time did CIBA, nor did any employer or employer
association represented by it seek to expand any unit in
which either Respondent was willing to bargain.
Respondents' refusal to bargain is not excused by any
provision or combination of provisions in the bylaws of
CIBA. In Mayfair Industries, Incorporated, 126 NLRB 223,
the Board held (fn. 1):
The Employer moved to dismiss the petition on the
ground that the constitution of the Petitioner's Interna-
tional Union prohibits the Petitioner from representing
the Employer's employees. We find no merit in this
contention. It is the Petitioner's willingness, rather than
its constitutional ability to represent these employees
which is the controlling factor.
In Herron Yarn Mills, Inc., 160 NLRB 629, the employer
respondent pleaded in answer to a complaint alleging
refusal to bargain in violation of Section 8(a)(5) of the Act:
(b) The constitution of the United Furniture Workers
of America does not permit it or its local unions to
organize or represent employees employed in the type
of business in which Respondent is engaged.
The Trial Examiner on motion of the General Counsel
struck this paragraph from the answer "on the ground that
it was insufficient in law" to constitute a defense to the
refusal to bargain. The Board adopted the "findings,
conclusions and recommendations" of the Trial Examiner.
The principle of mutuality demanded by Section 8(d) of
the Act, as explicated in Evening News Association, supra,
requires that the same rule be applied to Employer
representatives.
I specifically find that as of June 27, 1972, Respondent
IRON WORKERS , LOCAL 625 135
Ironworkers was under a duty to bargain with CIBA as the
representative chosen by the employers of employees
represented by Ironworkers, and that Ironworkers' letters
of June 27, 1972, constituted a refusal to bargain violative
of Section 8(b)(3) of the Act. I further find that this refusal
to bargain restrained and coerced employers in the
selection of their representative for the purposes of
collective bargaining in violation of Section 8(b)(1)(B) of
the Act.
I specifically find that as of July 10, 1972, Respondent,.
Boilermakers was under a duty to bargain with CIBA as
the representative chosen by the employers of employees
represented by Boilermakers, and that Boilermakers' letters
of July 10, 1972, constituted a refusal to bargain violative
of Section 8(b)(3) of the Act. I further find that this refusal
to bargain restrained and coerced employers in the
selection of their representative for the purposes of
collective bargaining in violation of Section 8(b)(1)(B) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents as set forth above,
occurring in connection with the operations of Hawaii
Reinforcing Steel Co., Hawaii Welding Co., Ltd., Hawai-
ian Dredging & Construction Co., and other employers in
the building and construction industry, which is an
industry affecting commerce, have a close, intimate and
substantial relation to trade, traffic and commerce among
the several states and have led and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
It has been found that Respondents have engaged in
certain unfair labor practices. It will therefore be recom-
mended that they cease and desist therefrom and take
certain affirmative action, as set forth in the recommended
order below, designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Hawaii Reinforcing Steel Co., Ltd., and all employ-
ers associated with it in bargaining with Respondent
Ironworkers, are employers within the meaning of Section
2(2) of the Act engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Hawaii Welding Co., Ltd., and all employers
associated with it in bargaining with Respondent Iron-
workers, are employers within the meaning of Section 2(2)
of the Act engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
3. Dillingham Corporation, doing business as Hawaiian
2 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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
Dredging & Construction Co., and all employers associat-
ed with it in bargaining with Respondent Boilermakers, are
employers within the meaning of Section 2(2) of the Act,
engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
4. Respondents are labor organizations within the
meaning of Sections 2(5) and 8(b) of the Act.
5. By restraining and coercing employers in the
selection of their representatives for the purposes of
collective bargaining, Respondents have engaged in unfair
labor practices within the meaning of Section 8(b)(1)(B) of
the Act.
6. By refusing to bargain with employers, Respondents
have engaged in unfair labor practices within the meaning
of Section 8(b)(3) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Sections 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended-
ORDER2
Respondent, International Association of Bridge, Struc-
tural and Ornamental Iron Workers, Local 625, AFL-CIO,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing any employer engaged in
commerce or in an industry affecting commerce, in the
selection of his representative for the purposes of collective
bargaining.
(b) Refusing to bargain collectively in good faith with
Construction Industry Bargaining Association of Hawaii
(CIBA-HAWAII) or any other person selected to be his
collective bargaining representative by any employer
whose employees are represented by Respondent Iron-
workers.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
Construction Industry Bargaining Association of Hawaii
(CIBA-HAWAII) or any other person selected to be his
bargaining representative by any employer whose employ-
ees are represented by Respondent Ironworkers, concern-
ing wages, hours, and other terms and conditions of
employment of such employees and, if an agreement is
reached, reduce said agreement to writing and sign it.
(b) Post at its business office, meeting halls and hiring
halls in Hawaii, in conspicuous places, including all places
where notices to members are customarily posted, copies of
the notice attached hereto and marked "Appendix A." 3
Copies of said notice to be furnished by the Regional
Director for Region 20, San Francisco, shall, after being
duly signed by an official representative of Respondent
3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ironworkers, be posted by it immediately upon receipt
thereof, and be maintained by it for a period of 60
consecutive days thereafter. Respondent Ironworkers shall
take reasonable steps to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the said Regional Director, in writing, within
20 days from the date of receipt of this decision, what steps
Respondent has taken to comply herewith.4
Respondent, International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local
204, AFL-CIO, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Restraining or coercing any employer engaged in
commerce or in an industry affecting commerce, in the
selection of his representative for the purposes of collective
bargaining.
(b) Refusing to bargain collectively in good faith with
Construction Industry Bargaining Association of Hawaii
(CIBA-HAWAII) or any other person selected to be his
collective-bargaining representative by any employer
whose employees are represented by Respondent Boiler-
makers.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with Dated By
Construction Industry Bargaining Association of Hawaii
(CIBA-HAWAII) or any other person selected to be his
bargaining representative by any employer whose employ-
ees are represented by Respondent Boilermakers, concern-
ing wages , hours and other terms and conditions of
employment of such employees and, if an agreement is
reached, reduce said agreement to writing and sign it.
(b) Post at its business office, meeting halls and hiring
halls in Hawaii, in conspicuous places, including all places
where notices to members are customarily posted, copies of
the notice attached hereto and marked "Appendix B."5
Copies of said notice to be furnished by the Regional
Director for Region 20, San Francisco, shall, after being
duly signed by an official representative of Respondent
Boilermakers , be posted by it immediately upon receipt
thereof, and be maintained by it for a period of 60
consecutive days thereafter. Respondent Boilermakers
shall take reasonable steps to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the said Regional Director in writing, within
20 days from the date of receipt of this decision, what steps
Respondent has taken to comply herewith .6
4 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 20, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."
S Fn. 3, supra.
8 Fn. 4, supra.
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL upon request, bargain collectively in good
faith with CIBA-HAWAII concerning the wages,
hours, and other terms and conditions of employment
of employees represented by us, and if agreement is
reached will reduce the agreement to writing and sign
it.
WE WILL NOT restrain or coerce any employer of
employees represented by us in the selection- of his
representative for collective bargaining.
INTERNATIONAL
ASSOCIATION OF BRIDGE,
STRUCTURAL AND
ORNAMENTAL IRON
WORKERS, LOCAL 625,
AFL-CIO
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1311
Kapiolani Blvd, Suite 308, Honolulu, Hawaii 96814,
Telephone 808-546-5100.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL upon request, bargain collectively in good
faith with CIBA-HAWAII concerning the wages,
hours, and other terms and conditions of employment
of employees represented by us, and if agreement is
reached will reduce the agreement to writing and sign
it.
WE WILL NOT restrain or coerce any employer of
employees represented by us in the selection of his
representative for collective bargaining.
INTERNATIONAL
BROTHERHOOD OF
BOILERMAKERS , IRON SHIP
BUILDERS , BLACKSMITHS,
FORGERS & HELPERS,
LOCAL 204, AFL-CIO
(Labor Organization)
IRON WORKERS , LOCAL 625 137
Dated By from the date of posting and must not be altered, defaced,
(Representative) (Title) or covered by any other material.
Any questions concerning this notice or compliance with
This is an official notice and must not be defaced by its provisions may be directed to the Board's Office, 1311
anyone. Kapiolani Blvd, Suite 308, Honolulu, Hawaii 96814,
This notice must remain posted for 60 consecutive days Telephone 808-546-5100.