J-H Electric

National Labor Relations Board - Board Decisions

Sep 29, 1969

178 N.L.R.B. 690 (N.L.R.B. 1969)

690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K. Jacobson & R. Haberman d/b/a J - H Electric and
International Brotherhood of Electrical Workers,
Local Union No. 68 , AFL-CIO. Case 27-CA-2562
September 29, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On February 18, 1969, Trial Examiner Fannie M.
Boyls issued her Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending dismissal of the
complaint in its entirety, as set forth in the attached
Trial Examiner's Decision. Therafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision together with a supporting brief, and the
Respondent filed cross-exceptions to the Trial
Examiner's Decision and a supporting and
answering 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
powers in connections with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions,
cross-exceptions and briefs, and the entire record in
this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner only insofar as they are consistent with
the following.
The record shows that prior to 1965, the charging
local represented employees working in the electrical
contracting industry in some 21 counties in the
northeast section of Colorado. This geographical
area contained the counties of Weld and Larimer,
which, until 1965, were covered by a separate
collective-bargaining agreements from that which
was applicable to some 19 other counties.
Throughout the 21-county area, during this period
of time, the employers covered by contracts with the
Union were represented by the National Electrical
Contractors Association.' The Respondent Company
participated in such negotiations as a part of the
Weld County bargaining committee, and abided by
the contract covering Weld County.
On June 16, 1965, the Weld County contractors
and the Union commenced negotiations for a new
contract. The parties discussed the question of
whether the Weld County agreement should be
continued, or whether exceptions to the broad area
agreement should be executed.' On July 27, 1965,
'Hereinafter referred to as the NECA
NECA advised the Union that the Weld County
contractors had adopted the Union's proposal to
include Weld County in the area agreement, except
for certain clauses, among which was the retention
of the same wage rates enumerated in the old Weld
County agreement. Thereafter, on September 15,
1965, the NECA and the Union signed two
agreements. In the first, entitled "Cancellation
Agreement", NECA and the Union agreed that as
of October 1, 1965, the current Weld County
agreement would be null and void and that the
terms and conditions of employment in the Weld
County geographical area would thenceforth be
covered by the area agreement between the parties
dated November 23, 1959 (the Denver agreement, as
amended). The other agreement, entitled
"Agreement Covering Weld County, Colorado,"
provided, inter alia , that the current agreement was
to be null and void as of October 1, 1965, made
provision for adding Weld County to the provision
relating to the "Normal Construction Labor
Market," but also made provision for specified wage
rates for workmen in the Weld County area, and
excluded Weld County from the new provision for
contributions to a health benefit account. These
provisions were incorporated into the area
agreement, and referred to as the Red Book
Agreement, or the April 1, 1965 agreement.
On March 2, 1966, the Respondent Company
executed a Letter of Assent, which bound it to the
area agreement and reaffirmed the bargaining
authority of NECA. On March 17, 1966, the
Respondent executed, in favor of NECA, a
"Bargaining Authorization Agreement," whereby it
authorized NECA to act as its bargaining Agent
and to negotiate with the Union on its behalf.
Pursuant to the 1965 Red Book Agreement, referred
to above, the NECA and the Union met, on
December 15, 1966, for the purpose of discussing
proposed changes. The record reflects, however, that
the Weld County contractors not only did not
participate in these discussions, they formally voted
to withdraw the notice to the Union of desire to
renegotiate contract changes with respect to the
wage provisions for Weld and Larimer Counties and
this limitation was communicated to the Union in
writing by NECA. On December 21, 1966, NECA
representative John Hecht met with Larimer' and
Weld County contractors, at which time the
contractors again took the position that they should
have separate negotiations with the Union. In
January 1967, these contractors agreed to grant the
hourly rate increases negotiated by NECA, thereby
retaining existing differentials between their rates
and those in the 19 counties. On October 16, 1967,
the NECA and the Union executed an agreement,
effective April I, 1967, purporting to be
'Prior to this meeting, NECA and the Union had discussed
modifications of the Weld County agreement
'The Larimer County contractors, like the Weld County contrac,ton,
were not covered by the broad area agreement
178 NLRB No. 108
J-H ELECTRIC 691
.,amendments " to the April I. 1965 agreement,
which provided , inter alia , that "The amendments
herein contained constitute such changes as were
jointly and locally negotiated " Special lower wage
rates resulted for Weld and Larimer Counties.
Since the 1967 agreement between the NECA and
the Union was due to expire April 1, 1968, the
parties, in November 1967, entered into new
negotiations . On No%cmbcr 29, 1967. the Union
advised NEC'\ that uniform wage rates should
prevail throughout the entire 21-county area. By
letter dated December 1, 1967, NECA agreed in
principle, but the record retlects that the Respondent
Company was not informed of these proposals. On
January 11, 1968, NECA and the Union agreed on a
common wage scale for all 21 counties. with lower
wage rates prevailing for Larimer and Weld Counties
for contracts under $5,000 . Also, in January NECA
informed the Weld County contractors of these
negotiations . The record shows, however , that some
contractors , including the Respondent Company,
indicated that they would not go along with the
uniform wage proposals . On February 6, 1968. the
NECA submitted to all its members , including the
Respondent . a bulletin showing, inter alia, new wage
rates, and on February 7, 1968, N L_C A and the Union
signed a 13-page document , setting forth all the
amendments to the 1967 contract which the parties
had agreed upon, and which were to remain in effect
until -April 1. 1970. On March 27, 1968, the
Respondent Company advised the NECA that it
would not go along with wage increases proposed
for the Weld County contractors . By letter dated
April 9, 1968, the Union advised the Respondent
Company that it was insisting on the Respondent's
compliance with the terms and provisions of the
current agreement in response thereto, the
Respondent Company, on April 12, 1968, stated that
it intended to terminate its agreement with Union,
adding that it could not go along with the wage
increases since it would be unable to compete with
local nonunion contractors .' On the same day. the
Respondent Company asked NECA to withdraw
its name from NECA's negotiating list The instant
charges were tiled on August 14, 1968.
The General Counsel contends that the
Respondent violated Section 8(a)(5) of the Act by
refusing to sign, or abide by, the jointly-negotiated
collective-bargaining agreement . The Trial Examiner
recommended that the complaint be dismissed,
primarily on the basis that the joint action of the
NECA and the Union in this case , in not according
the Respondent any meaningful opportunity to
participate in the 1968 negotiations, amounted to a
"breach of faith," and, under such circumstances,
concluded that the Board should "stay its hand" in
this proceeding . We agree with the Trial Examiner's
conclusion, but for a somewhat dillerent reason.
The fundamental question here is whether the
Union comtemplated, in the negotiations leading to
the 1968 contract, that the agreement reached in
joint bargaining sessions would be binding on all
area employers in the NECA, contrary to the past
practice for Weld County, or whether it was
contemplated that an individual variance would
again be negotiated with respect to the Respondent
Company, as well as the other Weld County
contractors. A careful rev iew of the record convinces
us that the Union had no reason to believe that
Respondent Company intended to abandon its prior
practice of bargaining separately with the Union
regarding wage rates in Weld County. Rather, on
December 21, 1966, the Weld County contractors
told the NECA that they should have separate
negotiations with the Union; and in the agreement
executed by NECA and the Union on October 16.
1967. it was expressly stated that the amendments
therein constituted changes that were jointly and
locally negotiated, and wage differentials for the
Weld County contractors were retained and agreed
to by the Union. Moreover, in January 1968, prior
to the execution of the new contract, the
Respondent Company, and other Weld County
contractors, advised NECA that they would not go
along with the proposed uniform wage proposals.
Under these circumstances, we conclude that the
parties mutually understood that an individual
variance in the multiemployer bargaining agreement
could be negotiated by the Respondent Company
and other Weld County contractors.
Accordingly, in refusing to execute. and abide by,
the February 7, 1968, contract, and in insisting upon
separate negotiations with respect to Weld County
contracts, the Respondent Company exercised a
prerogative established by past practice, and did not,
therefore, refuse to bargain in violation of Section
8(a)(5) and (1) of the Act.` Accordingly, we shall
dismiss the complaint
ORDER
Pursuant to the provisions of Section 10(c) of the
National Labor Relations Act, as amended, the
National Labor Relations Board hereby adopts as
its Order the Recommended Order of the Trial
Examiner, and orders that the complaint herein be.
and it hereby is, dismissed in its entirety.
MEMBER ZAGORIA, dissenting:
I am constrained to disagree with the finding of
my colleagues that the 8(a)(5) and (1) charge herein
should be dismissed on grounds that the parties to
the multiemployer negotiations contemplated, as
evinced by past practice, that the Respondent was
entitled to negotiate separate wage rates or other
economic benefits which varied from those
established by bargaining and agreement between
'the Respondent Company also advised the Union that there were 17
nonunion contractors, and only 3 union contractors, in Greeley, Colorado
'The Kroger Company . 141 NLRB 564
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NECA and the Union in multtemployer
negotiations.
On December 15, 1965. the Respondent and other
Weld County electrical contractors executed a
cancellation of their separate bargaining agreement
with the Union. and simultaneously approved a
second written agreement whereby the terms and
conditions of employment for their employees were
established by the provisions of an areawide contract
between the Union and NECA (hereinafter called
the Denver agreement). Thereafter, on March 17,
1966. the Respondent executed and returned to
NECA a "Bargaining Authorization Agreement,"
pursuant to which the Respondent authorized
NECA to act as its bargaining representative with
the Union, and which further provided that the
authorization would-remain in lull force and effect
until cancelled by the Respondent in accordance
with the terms thereof. The authorization contains
no reservations, express or implied, which can he
construed to impose any limitations on NECA as
the Respondent's full authorized bargaining
representative, and the Respondent makes no
contention that it ever attempted to cancel or
modify the authorization in accordance with the
terms thereof, or otherwise. Similarly. the
Respondent makes no contention that it otherwise
made any attempt to effectuate a timely withdraNVl,
in whole or in part, from inultiemploycr
negotiations. In summary, the Respondent gave full
authorization to NECA to bargain on its behalf in
multicinployer negotiations, the authorization was
conveyed to the Union, and it remained in full force
and effect at all times material to this proceeding.
On November 29. 1967, the Union served written
notice on NECA of its intent to reopen the Denver
agreement, scheduled to expire on April 1, 1968,
and proposed, inter alia, that the special wage rates
for contractors' employees in Weld and Larimer
counties be eliminated, and that the parties agree to
the substitution of a provision for uniform and
substantially increased wage rates for the employees
of all contractors covered by the agreement. In
reply, on December 1. 1967, NECA advised the
Union that renegotiation of the Denver agreement
was desired, and NECA also proposed that the new
contract establish uniformity of wages, benefits,
classifications, and residential agreement
applicability for the entire geographic jurisdiction
covered by the agreement. When the Union and
NECA met in a point negotiating session on
December 28, 1967, the Union proposed that the
wage differentials applicable to the Weld and
Larimer contractors he eliminated, except to the
extent they would continue to apply on jobs where
the total electrical cost was $5,000 or less. NECA
tentatively agreed, and on January 11, 1968, after
conducting research on the applicability of the
$5,000 figure. NECA agreed to the Union's
proposal, and this provision was incorporated into
the new Denver agreement executed by the Union
and NECA on February 7, 1968. During the course
of these negotiations, and before the new agreement
.as executed, Respondent and other Weld and
Latimer County contractors were advised by a
NECA representative that the Union was
demanding single negotiations for all the contractors
in the multtemployer association, and that the
Union had also proposed that the wage rates
negotiated for the Denver contractors would apply
equally to the contractors in Weld and Larimer
Counties. Although the record reveals that the
Respondent voiced protest over this proposal to the
NECA representative, there is no evidence in the
record that the Respondent indicated to the Union
its desire for separate negotiations on wages, or that
it ever notified the Union that NECA's authority to
bargain on the Respondent's behalf was in any way
restricted.
The stability of the bargaining relationship
requires that parties to multiemployer negotiations
can abandon that relationship only by a timely and
unequivocal notice of intent to withdraw. The
Respondent makes no contention here that it
complied with the standards established by the
Board for a timely and effective withdrawal, but, on
the contrary, and notwithstanding the unequivocal
wording of the Bargaining Authorization agreement
given to NECA, it contends that it retained the
privilege of separate bargaining with the Union on
wages and other economic benefits. The record fails
to sustain the Respondent's contention The
Respondent's secret mental reservations on the
authority granted to NECA, even if known to
NECA, are not notice to the Union that NECA was
bargaining on Respondent's behalf with less than
full authorization. Lamentable as it may he that
NECA failed to keep the Respondent apprised of
meetings, proposals, and counter-proposals during
the 1967-68 negotiations, the alleged omissions of
NECA are not attributable to the Union. As to the
pattern of past bargaining, the factor on which my
colleagues so firmly rely, the mere willingness of the
Union to bargain on past occasions with NECA for
a separate wage and benefit schedule for the
Respondent and other non-Denver contractors, is
not evidence that the Union was on notice in the
1967-68 negotiations that NECA's authority to
bargain and execute a whole agreement was in any
way restricted. I would find that the Respondent
violated Section 8(a)(5) and (I) of the Act, and I
would require the Respondent to sign and
retroactively apply the terms of the bargaining
agreement entered into between the Union and
NECA on February 7, 1968.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FANNIE M. Boit.s, Trial Examiner. This case was tried
before me at Greeley, Colorado, on November 21 and at
Denver, Colorado, on November 22, 1968. The complaint,
J-H ELECTRIC 693
which was issued on September 27, 1968. is based upon a
charge filed on August 14, 1968, by international
Brotherhood of Electrical Workers, Local Union No. 68,
AFL-CIO, herein called the Union, and alleges that
Respondent, K Jacobson & R. Haberman. d/b/a J-H
Electric, had engaged in an unfair labor practice within
the meaning of Section 8(a)(5) and (1) of the Act.
Respondent filed an answer, denying that it had engaged
in the unfair labor practice alleged. After the conclusion
of the hearing both counsel for the General Counsel and
for Respondent filed helpful briefs.
Upon the entire record, upon my observation of the
witnesses, and upon a consideration of the briefs of the
parties, I make the following
FINDINGS Of FA( T
1. THL BUSINFSS OF RFSPONDENT
K. Jacobson and R. Haberman, doing business as a
partnership under the name of J-II Ilectric. maintains its
office and principal place of business in Greeley,
Colorado. where it is engaged in the installation and
servicing of electrical equipment During the year
preceding the issuance of the complaint, Respondent
purchased and caused to be delivered to its place of
business in Greeley goods and materials valued in excess
of $50,000, which goods and materials were transported
indirectly to it from points outside the State of Colorado.
On the basis of these facts, which were stipuhited, it is
found that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein
11. Till' I ABOR ORGANIZATION INVOL\i'i)
It is admitted and I find that the Union is a labor
organization within the meaning of Section 2 ( 5) of the
Act.
Ill. THE UNFAIR LABOR PRACTICi S AI.i.1 GED
A Issues
The General Counsel contends that Respondent's
employees were part of a multi-employer bargaining unit
coextensive with the geographical jurisdiction of the
Union, comprising 21 counties in northeast Colorado; that
Respondent was bound by the terms of a
collective-bargaining agreement between Rocky Mountain
Chapter, National Electrical Contractors Association, inc.
(herein called NECA) and the Union dated April 1. 1965,
as amended on April 1, 1967. and as again amended on
April 1. 1968. and that Respondent on or about April 1,
1968. and thereafter has unlawfully refused to bargain
with the Union by refusing, after that date, to be hound
by and to carry out the terms of said agreement.
Respondent, on the other hand, contends that by
designating NECA to represent it in bargaining
negotiations with the Union, it never consented to become
a part of the 2I-county unit, but instead remained, as it
had been prior to 1965, a part of a multi-employer unit
consisting only of electrical contractors in Weld County,
Colorado, until the Union itself abandoned the Weld
County unit, and that at present its employees may
properly be considered only as belonging in a single
employer unit.'
Respondent has concededly refused to be bound by the
1968 amendments to the area agreement. The issues
before me are (1) whether Respondent, in fact, became a
part of' the area-wide multiemployer appropriate
bargaining unit and (2) even it it did, whether it would
effectuate the policies of the Act, under the circumstances
of this case, to require Respondent to abide by the terms
of said agreement
B Bargaining History Prior to 1965
NLCA is an association of employers in the electrical
contracting industry which for many years has been
representing its members and other employers consenting
to he represented by it in labor relations matters.
including the negotiation of collective-bargaining
agreements with the Union John W Hecht, executive
manager of NECA for about 10 years, has participated in
negotiating the agreements and amendments thereto and
has signed the agreements on behalf of NECA.
The record does not show that Respondent has ever
been a member of NECA but since 1956 when it began
operations, it has. like most other employers under
contractual relations with the Union, designated NECA to
represent it in collective bargaining with the Union. Prior
to 1965 it had been the practice for NECA to negotiate
one contract (sometimes referred to as the Denver
contract, the area agreement or the Base agreement) for a
19-county group of electrical contractors, including those
in Denver, and separate contracts for the electrical
contractor groups in Weld and Larimcr Counties.
Respondent's place of business is at Greeley, in Weld
County. Respondents representatives participated as a
part of a bargaining committee of Weld County
contractors in negotiating contracts affecting the Weld
County employers. Hecht, as manager of NECA, assisted
in the negotiations and signed the contracts negotiated
On June 25, 1963, Respondent signed a "Letter of
Assent" agreeing "to comply with all the terms and
conditions of employment contained" in the labor
agreement between NECA and the Union for Weld
County dated and effective November I. 1959, "and any
approved amendments thereto " (G.C Exh 2.)= In signing
the letter, Respondent also authorized NECA to act "as
its collective bargaining representative for all matters
contained in this agreement or pertaining to this
agreement" and agreed that the authorization should
remain in effect until terminated by written notice to the
parties to the agreement 30 days prior to the notification
date provided in the agreement.
Except for wages and economic benefits, the provisions
of the contracts for Weld County contractors tended to
follow the provisions of the contracts covering the
19-county or Denver area (G C. Exh. 15). The termination
dates of the two contracts, however, were different. The
last Weld County contract negotiated prior to 1965
became effective on December 23, 1963 and was, by its
terms, to remain in effect until October 1, 1965 and from
'There is no dispute as to the classifications of employees appropriately
in a bargaining unit; these consist of all journeymen electricians, cable
splicers, technicians and apprentices , excluding office clerical employees,
estimators , professional employees and supervisors as defined in the Act
'Most of the evidence presented at the hearing by both the General
Counsel and Respondent is in documentary lorm 1-or the convenience of
the reader , when one of the documents is referred to, at least for the first
time, it will be identified , in abbreviated form, by reference to its exhibit
number General Counsel's Exhibits will be referred to as "G C Exh " and
Respondent ' s Exhibits will be referred to as "Resp Exh "
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
year to year thereafter until changed pursuant to written
notice of change or termination at least 120 days prior to
an anniversary date (G.C. Exh. 8) The last Denver
agreement negotiated prior to 1965, which was dated
November 23, 1959 and thereafter amended, had April 1.
1965 as its expiration date (G.C. Exh. 12).
C Negotiations in 1965 and 1966 Resulting in a
Single Contract (the Red Book Agreement) for the 21
County Area, Respondent's Letter of Assent and
Bargaining A uthorization
It is a fair inference from the evidence summarized in
the preceding subsection that prior to 1965 NECA had
represented Respondent in a multi-employer Weld County
unit rather than as a part of the larger multi-employer
unit covered by the 19 or 20 county area agreement.
Respondent contends that despite some changes in the
bargaining pattern in 1965 and thereafter, it never
intended to and never in fact did abandon the Weld
County bargaining unit and become a part of the
area-wide multi-employer bargaining unit as the General
Counsel contends it did. A resolution of this question can,
I believe, best be made after a consideration of the actions
of the parties catalogued in chronological order
On or about March 27, 1965, NECA sent to all
contractors who were signatory to the Weld County
agreement (including Respondent) a "Negotiations
Bulletin " in regard to negotiations had with the Union at
a meeting on March 23, 1965, and enclosed certain
proposed amendments which NECA requested each
signatory to approve and return to NECA (G.C Exh. 12)
Among the proposed amendments were the following.
GENERAL CONDITIONS
A Provided the following amendments are mutually
agreed to by both parties, the Weld County Agreement
as it now exists shall be cancelled and made null and
void after April 1, 1965.
B The Rocky Mountain Chapter [NECA1 will
appoint a resident contractor of Weld County to act as
advisor to the area Negotiating Committee.
It was also proposed that certain amendments, when
agreed to by the parties, would he incorporated into the
Denver agreement dated November 23, 1959 and its
amendments. Among these proposed amendments was
"Sec. 5 24. Normal Construction Market, of the area
agreement is to include the geographical area of Weld
County "' Other proposed amendments pertained to the
wage rates to be paid for work performed in Weld
County. including those rates effective as of April I, 1965,
as of October 1. 1965, as of April I, 1966, and as of
October 1, 1966 (G C Exh. 12).
On April 1, 1965, NECA sent to the electrical
contractors who were covered by the Weld County
agreement another bulletin informing them that the
proposed amendments previously distributed on March 27
were "to be completely disregarded" because the Union at
a special meeting held on March 30 had voted against
ratification of the proposed amendments
On April 26, 1965, however, Respondent indicated its
approval of the proposed amendments mailed to it on
'The Weld County agreement then in effect (C C Lxh 8) defined the
normal wnstruction market, considered by the secretary of Labor as the
basis for defining the appropriate prevailing wage under the Davis-Bacon
Act, as consisting only of Weld County The effect of the proposed
amendment would apparently be to place Weld County in the expanded
21-county wage area for Davis-Bacon Act purposes
March 27 by signing the document and returning it to
NECA, as NECA had requested in the March 27 bulletin
(B C. Exh. 12).
On May 17. 1965, the Union wrote NECA listing
certain changes it desired in the current Weld County
agreement (Resp. Exh 3). Among the changes proposed
was one providing that the agreement to take effect on
October I. 1965 should remain in effect to April 1. 1967,
the anniversary date of the Denver area agreement (Resp.
Exh. 3, Sec. 1 03).
On May 28, 1965, NECA wrote to the "Weld County
Division" of the Union a letter which served as its notice
of a desire to reopen negotiations on the 1963 contract
and listed the changes which NECA desired (Resp. Exh.
4). Among the changes proposed was one substituting
"Weld County Division of Local Union No 68, IBEW"
for "Local No. 68. IBEW" as a party to the contract. a
provision that the "Weld County Division" of the Union
should he the exclusive source of referral of applicants for
employment, and a provision establishing -'a combined
Negotiating and Joint Conference Committee." The
proposed termination date of the new agreement was to be
October 1, 1968.
On June 16, 1965, representatives of the Union and of
the Weld County contractors, including Respondent, held
their first negotiating session for a new contract (G.C.
Exh. 18). At this meeting the parties discussed , inter alia,
whether the Weld County agreement should he continued
or whether exceptions to the area agreement should be
negotiated. The minutes of the meeting show the following
positions taken by the contractors and the Union
CONTRACTORS. We desire that we negotiate
exceptions to the area agreement. We fail to understand
why the Greeley unit rejected the agreement proposals
we extended in March of this year. We have some
doubt as to whether the significance of the proposal was
understood by the fact that as we proposed it, it would
have provided work for a number of the Greeley men
where the present condition does not give them
opportunity to man the work that their own contractors
have required outside of the County. We don't know
that they fully understand that deletion of the current
agreement would afford the contractors opportunity to
hid jobs outside the County and further give the
contractor opportunity to man that work with his own
Greeley employees. As the agreement is now written, it
restricts Greeley employers doing work outside the
Greeley area to take more than one Greeley man with
them to perform the work on these jobs Our March
proposals would permit the employer to take as many
of his Greeley employees with him as he needed to
perform work outside of Weld County.
In view of the above, we fail to understand how the
Greeley unit would knowingly reduce their work
opportunities by the rejection of the proposal. We know
that the work opportunities fluctuate over the entire
geographical jurisdiction. This condition requires that
the contractor have one restricted opportunity to bid
work any where in the geographical area. Our March
proposal would allow the employer to hid this work,
and further permit him to man his work with his
Greeley employees On the contrary, a continuation of
the current agreement and/or further restrictions in this
agreement would limit the contractor from successfully
bidding work outside of the County, due to the tact
that he would not utilise the productive experience of
his Greeley employees. but would be required to man
the job with Hiring flail labor whose experience and
J-H ELECTRIC 695
productivity are unknown to him.
Examples were given by the contractors wherein they
could currently use Greeley men to a greater advantage
on some jobs they were now performing outside of the
County.
UNION Perhaps your people would like to make
some sort of proposal which would introduce the idea
of deleting the current agreement and adopting the area
agreement. The union committee is not in a position.
due to the instructions of the membership. to make
such a proposal, but we would certainly be willing to
discuss any proposal and take same back to the
membership for their reaction.
Following a caucus, the contractors proposed, among
other things. to "delete current agreement: adopt area
agreement with the applicable exceptions " The Union
pointed out that if the area agreement with exceptions was
adopted, the parties would have to change the anniversary
date of their agreement to correspond with the anniversary
date of the area agreement. Following another caucus the
contractors submitted a proposal along that line which
included a 30-cent wage package. The Union at first
refused to take the proposals back to its membership with
a recommendation for its adoption unless a 40-cent wage
package was included, but finally agreed to do so.
The next negotiating session, and the last one held in
1965, between the Union and Weld County contractors
was held on July 7, 1965 (Resp. Lxh. 2) The minutes
show a report by the Union to the effect that at a special
meeting held on June 23, the membership had voted, inter
alia, to "accept Weld County into Base agreement: accept
30 cents per hour wage increase effective immediately.
contract to expire April 1, 1967." After a caucus. the
contractors rejected the Union's proposals and offered as
a counterproposal to maintain the Weld County
agreement with its current 2-year status and October 1
anniversary date and to increase wages 40 cents an hour
in 10-cent increments every 6 months. They also proposed
that the Weld County resident contractors not be
considered outside contractors under the area agreement
and that their crews have complete mobility anywhere
within the Union's jurisdiction The Union accused the
contractors of a "complete turn around" since the June 16
meeting, withdrew its last proposals and reinstated its
original proposals. Toward the conclusion of the meeting
Respondent's representatives, Haberman and Jacobson,
voiced a desire to discuss further "the Area Joint
Conference and/or Negotiating Committee" which had
been proposed by the contractors in their opening letter on
May 28 and stated that they felt that Weld County
problems could be handled by Weld County people (Resp.
Exh. 2).
On July 27, 1965 NECA wrote the Union regarding a
meeting of Weld County contractors held on July 23
(G.C. Exh. 19).' In this letter NECA informed the Union
that the contractors had determined to accept the Union's
proposal to include Weld County in the area agreement
with certain enumerated exceptions, among which was a
retention of the same wage rates enumerated in the old
Weld County agreement (G.C. Exh. 8). NECA also stated
that wage demands in excess of those provided in the old
contract "would but improve the already advantaged
position of the local nonsignatory Electrical Contractor"
(G.C. Exh. 19)
The parties being unable to agree upon the wage issue.
this matter was submitted to the Council on Industrial
Relations, a body composed of an equal number of
management and labor representatives, which sits on a
national level to settle disputes between locals of the
Union and chapters of NECA The parties, under their
contracts, are bound by the Council's decisions. The
Council on August 20, 1965 handed down its decision on
the wage issue.
Following the decision of the Council, the Union and
NECA on September 15, 1965 signed two agreements
(G.C. Ekh. 17 and G.C. Exh 16). One was entitled
"Cancellation Agreement." By its terms NECA and the
Union agreed that as of October 1, 1965 the current Weld
County agreement would be null and void and that the
terms and conditions of employment in the Weld County
geographical area would thenceforth be covered by the
agreement between the parties dated November 23, 1959
with all amendments thereto (G C Exh. 17) The latter
referred to the area or Denver agreement.
The other agreement signed by the Union and NECA
on September 15, was entitled "Agreement covering Weld
County, Colorado" (G.C. Exh 16). It recited, inter a/ia,
that the anniversary date of the current agreement was
October 1, 1965, that the current agreement was to be null
and void as of October 1, 1965; that the current Denver
agreement which had been amended on April 1, 1965
would be further amended on October 1, 1965. (1) to
provide for a contribution of 15 cents to a Health Benefit
Account for each hour worked by an employee but would
exclude the geographical areas of Larimer and Weld
Counties from this provision, (2) to add Weld County to
the provisions relating to the Normal Construction Labor
Market. and (3) to provide specified wage rates for
workmen in the Weld County area effective on October 1,
1965. on April 1, 1966, and on October 1, 1966 (G C.
Exh. 16). These and all other provisions of the agreement
were incorporated into the Base agreement and presented
as one document under a red cover. sometimes referred to
as the Red Book agreement, or the April 1, 1965
agreement (G.C. Exh. 9).
Rueben Haberman, one of the two co-partners
comprising Respondent. testified that he did not recall
seeing the September 15 agreements prior to the hearing.
However, Respondent was bound by the Council's
decision regarding the wage rates and had apparently
already agreed on July 23, along with the other Weld
County contractors, to be included in the Base agreement
with the other 21 county area contractors (see NECA's
July 27 letter, G.C Exh. 19) The September 15
agreements, it would appear, merely implemented the
understanding of the parties already reached Moreover as
shown below. Respondent was furnished a copy of the
base agreement, dated April 1, 1965 (which in its printed
Red Book form had been amended to include the
substance of the provisions of the September 15
agreements), prior to March 2, 1966 when Haberman's
co-partner, K. L Jacobson, signed the Letter of Assent
described below on behalf of Respondent
The body of the Letter of Assent which Jacobson
executed and transmitted to the Union on March 2, 1966,
reads as follows (G.C. Exh. 3):
'No other evidence of a meeting on Jul), 23 between NECA and the
Acid County contractors appears in the record. Since Respondent has not
disputed the accuracy of the statements contained in the July 27 letter and
the contents are consistent with the actions subsequently taken by
Respondent. I am persuaded that the statements in the letter are factually
accurate
69 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LOCAL UNION No.68, 1BEW, DENVER,
COLORADO
This is to certify that the undersigned tirm has
examined a copy of the labor Agreement between the
Rocky Mountain Chapter, NECA. Inc , and Local
Union No. 68, IBEW, dated and effective the 1st day
of April, 1965.
The undersigned firm hereby agrees to comply with
all the terms and conditions of employment contained
in the aforementioned Agreement and all approved
amendments thereto. It is further agreed that the
signing of this Letter of Assent shall he as binding on
the undersigned firm as though it had signed the above
referred to Agreement and any approved amendments
thereto
In signing the letter of Assent the undersigned firm
does hereby authorize the Rocky Mountain Chapter,
NECA, as its collective bargaining representative for all
matters contained in this Agreement or pertaining to
this Agreement This authorization to the Rocky
Mountain Chapter, NECA, shall remain in effect until
terminated by written notice to the parties to the
aforementioned Agreement 30 days prior to the
notification date provided for therein
On March 14, 1966, NECA issued and distributed to
the contractors at "Labor Bulletin" in which the
contractors were requested. inter alias to sign and return
to the Union all Letters of Assent which had been mailed
to them in order to put the contractors "in proper
compliance with the terms and conditions of the April
1965 (Red Book) agreement" (Resp Exh. 14).5 The
bulletin also advised and requested all electrical
contractors "signatory by practice or assent to the April
1965" agreement to sign and return to NECA a copy of
the "Bargaining Authorization Agreement" which was
enclosed with the Bulletin (Resp. E.xh. 14).
On March 17, 1966 Respondent executed and returned
to NECA that "Bargaining Authorization Agreement."
The body of it reads as follows (G.C. Exh. 4)-
BARGAINING AUTHORIZATION
AGREEMENT
IT IS HPRFBY AGREED between the undersigned firm
engaged in the business of electrical contracting and the
Rocky Mountain Chapter, National Electrical
Contractors Association, hereinafter referred to as the
"Association."
That the undersigned firm does hereby authorize and
appoint the Association to act as bargaining agent and
representative in matters of labor negotiations and
labor relations, and authorize said Association to
negotiate agreements and amendments to agreement on
behalf of this firth with Local Union No 68 of the
international Brotherhood of Electrical Workers, and
the Association agrees to act as bargaining agent and
representative and to use its best et forts to secure the
most reasonable terms obtainable on behalf of the
undersigned firm and other firms represented by the
Association. This authorization and agreement shall
continue in effect from year to year unless and until
terminated by either the undersigned firm or the
Association upon sixty (60) days' written notice,
provided that this agreement is coupled with an interest
and is irrevocable by either party and may he
'Respondent, as shown abose, had already executed its letter of assent.
terminated only on consent of both parties during the
period between December 1st of any year and April 1
of the year immediately following.
D. Negotiations Resulting in the April 1, 1967
Amendments of the April 1, 1965 Red Book
4gree>•nent
In 1965 Red Book agreement described in the preceding
subsection, by its terms provided that it should remain in
effect until April 1, 1967. and should continue in effect
from year to year thereafter unless either party (NECA or
the Union) should notify the other party in writing at least
120 days prior to April 1. 1967, or April 1 of any
anniversary' year thereafter of any changes desired (G.C.
Exh 9, Art. 1, Sec. 1.03 and 1.06)
Pursuant to this provision, the Union on November 29,
1966, gave notice to NECA, and NECA on December 1,
1966, gave notice to the Union, of the desire of each to
negotiate changes in the 1965 agreement (Resp. Exh. 5
and 6).
On December 15, 1966, a Joint Negotiating Committee
meeting of NECA and union representatives was held in
Denver for the purpose of discussing the proposed changes
(Resp Exh. 10) ' No representative of Respondent (other
than Hecht from NECA who was representing all of the
electrical contractors) was present at this meeting. During
the meeting NECA representatives stated: "It is
understood that Section 6 18 L [pertaining to Larimer
County wage rates] and W [pertaining to Weld County
wage rates], would be considered by the people in the
areas covered by the same" (Resp. Exh. 10). To this, the
Union replied
Union Why aren't representatives of the Larimer
and Weld Counties' area here? We would like to make
it clear that we do not intend to travel into their areas
to have them negotiate parts of this agreement. We
consider that all negotiating concerning this agreement
are carried on in this location at this table. If they have
any interest in these matters, this is where the action is,
this is where the things will happen and we don't intend
to sit around for hours negotiating small parts and
pieces of this agreement to satisfy their particular
situation. Our representatives are here This is where
the decisions are made concerning the entire jurisdiction
and if they are interested they should be here.
On December 21, 1966. NECA representative Hecht
met at Loveland. Colorado, with the Larimer and Weld
County contractors who had agreed to be bound by the
1965 area agreement and amendments thereto (Resp. Exh.
9). Both partners of Respondent were present at this
meeting Copies of the Letter of Notice from the Union to
NECA dated November 29. 1966, and the Letter of
Notice from NECA to the Union, dated December 1,
1966. were distributed to the contractors in attendance.
The contractors noted that the Union's Letter of Notice
had not mentioned that part of Section 6.18 of the current
agreement which pertained to wage rates in Weld and
Larimer Counties Hecht then told them about the
Union's inquiry as to why no contractor representatives
from Weld and Larimer Counties were present at the
December 15 Denver negotiations and read from the
minutes the Union's position quoted above about not
intending to negotiate separately with the contractor
'Copies of the minutes of the Joint Negotiating Committee meetings
were customarily sent only to those attending the meetings to enable them
to review the minutes prior to the next meeting
J-H ELECTRIC 697
representatives from Weld and Larimer Counties (Resp
Exh. 9) The contractors present took the position that
they should have separate negotiations with the Union
After discussion, the contractors voted to withdraw from
NECA's December 1 Letter of Notice, the proposals for
revision of Section 618 (L) and (W). The contractors
voted to meet again if and when the Union requested
negotiations regarding those sections (Resp. Exh. 9).
Pursuant to instructions from the Larimer and Weld
County contractors at their December 21 meeting, Hecht
wrote the Union on December 27. 1966, that NECA,
acting for and in behalf of the Weld and Larimer County
contractors, was withdrawing proposals made in its
December 21. 1966 Letter of Notice which pertained to
Sections 6 18 W. 6.18 (W), 7.03 (L) and 7.03 (W). Copies
of this letter were sent to the Weld and Larimer County
contractors as well as all members of the NECA
Negotiating Committee (Resp. Exh 11).
Thereafter, on January 27, 1967, another meeting
between Hecht and the Weld and Larimer County
contractors was held at Loveland, Colorado (Resp. Exh.
12). Both partners of Respondent were present At the
meeting it was voted that the Larimer County contractors
would grant the hourly rate increases negotiated by
NECA, the amount to be added to the current scale set
forth in Section 6.18 (L) of the contract A notation on
the minutes of the meeting shows, and Hecht credibly
testified. that on January 30, 1967, Respondent agreed, by
telephone, to concur in and abide by the rate increases
which Larimer County contractors had agreed to accept
(Resp. Exh. 12)
Because the Union and NECA were unable to agree
upon a number of terms during the negotiations for the
1967 agreement, their differences were submitted to the
Industrial Relations Council for decision As shown by a
"Negotiations Bulletin" sent to all signatory contractors,
including Respondent, the Council's decision was handed
down on February 17, 1968 (Resp. Exh. 13). The
contractors were told that all changes in the contract
which were contained in the Council's decision would
become effective on April 1, 1967 All contractors,
including nonmenhers of NECA, were invited to attend a
general meeting at Denver on February 28, 1967
Attached to the bulletin was a copy of the Council's
decision. This decision, among other things, contained
several provisions giving Weld County contractors special
treatment Weld County and Larimer County contractors
were required to grant greater wage increases than the
other contractors for certain classifications of workers, but
these increases were added , to those specified in the
current agreement and, as shown in the resulting contract
(G.C. Exh. 10), the wage rates remained lower for Weld
County contractors than the wage rates paid by the other
contractors, including those in Larimer County. though
Larimer County wage rates were lower than those in the
remaining 19 counties covered by the contract (G C. Exh
10).
The resulting agreement, though by its terms effective
as of April 1, 1967, was not executed by NECA and the
Union until October 16, 1967 (G.C. Exh. 10) It purported
to be "amendments" to the April 1, 1965, agreement. The
opening sentence states. "The amendments herein
contained constitute such changes as were Jointly and
locally negotiated and those set forth in Decision No.
1309 of the Council of Industrial Relations dated
February 17, 1967." (Emphasis supplied.) As NECA's
representative, Hecht, testified, the negotiating position of
the Union throughout the negotiations for the 1967
agreement had been that wages for Weld County and the
Denver area should be the same, but NECA, in behalf of
the Weld County contractors had opposed the abolition of
the wage differentials and had prevailed.
E. Negotiations Resulting in April 1. 1968,
Amendments of the April 1, 1965. Red Book
Agreement, the 1968 Green Book Agreement
Section 1.03 of the 1967 agreement provided that it
should remain in effect until April 1. 1968. That part of
Section 1.03 of the 1965 Red Book Agreement which had
provided for a continuation of the agreement from year to
year unless changed by the parties, had been stricken
under the 1967 amendment, as required by the Council's
decision. No new document incorporating all provisions of
the complete agreement appears to have been compiled.
The new provisions agreed upon in 1967 were, as already
noted, labeled "Amendments" to the 1965 agreement and
both documents must be read together to ascertain the
complete 1967 agreement.
On November 29, 1967, the Union sent NECA a letter
listing changes which it desired to negotiate in the April 1,
1967 agreement. Among the changes proposed was an
elimination of Sections 6.18 (A). 6.18 (L) and 6.18 (W)
which provided for a differential in wage rates for workers
in the 19 counties including the Denver area, in Larimer
County and in Weld County and the substitution of a
provision for uniform and substantially increased rates for
all the classifications of workmen (Resp Exh. 8).
On December 1, 1967, NECA sent a letter to the
Union proposing changes in the current agreement. It
proposed , inter alias to change or delete Section 6 18 (L)
and 6.18 (W) in such a manner as "to establish wage
scales, classifications and job size limits as will best
establish a uniformity of wages, benefits, classifications
and Residential Agreement Applicability to the entire
geographical jurisdiction covered by this agreement"
(Resp Exh 7). Respondent was not furnished with a copy
of NECA's proposals to the Union. Nor was it furnished
a copy of the Union's proposals to NECA
On December 28, 1967, the Union and NECA held a
Joint Negotiating Committee meeting in Denver to discuss
the proposed changes in their contract (G.C. Exh. 20).
Most of the discussion was devoted to the subject of
wages and the Weld and Larimer County situations. The
Union proposed inter alia, one wage scale for all
contractors in the 21 county area covered by the current
agreement, with the exception that on jobs in Weld and
Larimer Counties whose total electrical cost was $5,000 or
less, wage rates lower than those provided for generally
were to be permitted. NECA expressed the wish to do
some additional research on the propriety of the $5,000
figure for the split scale proposed by the Union.
NECA Representative Hecht went to Greeley. in Weld
County, and to Fort Collins, in Larimer County,
presumably before the next negotiating meeting, to
investigate the propriety of using the $5.000 figure as the
limitation for negotiating different wage rates in Weld and
Larimer Counties. He did not consult Respondent or any
of the other contractors to be affected by the wage
negotiations but ascertained that a high percentage of the
building permits in those counties were for work under
$5,000 in cost.
On January it, 1968, NECA and the Union held
another Joint Negotiating meeting at which the parties
agreed that the $5,000 figure was reasonably based on a
review of the monthly electrical permit reports from the
69 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Larimer and Weld County areas ( Resp E 'sh. 16). They
then proceeded to negotiate wage rate increases on the
basis proposed at the December 28 meeting.
Respondent did not attend or receive copies of the
minutes of either of these negotiating meetings held on
December 28 and January 11.
In January 1968 NECA Representative Hecht held two
meetings with Larimer and Weld County contractors,
including Respondent , about the negotiations which were
taking place in Denver . At these meetings Hecht informed
the contractors that the Union was refusing to bargain
with NECA for Weld and Larimer Counties as separate
groups He also told them that the wages being negotiated
for the Denver area would apply to them also. Some of
the contractors present. including Respondent , stated that
they could not go along with that agreement . At the time
these meetings were held, NECA and the Union had not
reached final agreement on a contract '
On Januaiy 30, 1968, an "Amendment Outline" was
issued , summarizing the changes and additions to the
current contract which the Union and NECA had agreed
upon (G.C. EKh . 14).i A copy of this outline was received
by Respondent but the date of its receipt does not appear
in the record.
On February 6, 1968, NECA issued and distributed to
all the contractors it purported to represent , including
Respondent , a bulletin entitled " Watts-What," to which
was attached the wage classifications and rates provided
foi in the newly negotiated contract ( Resp. Exh. 17). The
contractors were informed that the amendments contained
in the 1968 contract were approved by the membership of
both signatory parties, that formal amendments would be
submitted for approval by the National Offices of each of
the parties signatory and that, after approval , the new
contract would be printed and distributed . This bulletin,
according to Haberman , was Respondent ' s first knowledge
of the results of the negotiations which had taken place in
Denver. While the negotiations were in progress, Hecht
had never discussed the $5,000 split scale for wage rates
incorporated in the area agreement
On February 7, 1968, NECA and the. Union signed a
13-page document which set forth all the amendments to
the 1967 contract which the parties had agreed upon (G.C.
Exh. 13). This is the document submitted for approval to
the National Offices of NECA and the Union . After its
approval its contents were incorporated into the complete
agreement and printed in a green covered booklet as the
April 1, 1965 agreement, as amended on April 1, 1967,
and on April 1. 1968 (G.C Lxh 11) By its terms, it is to
remain in effect until April 1, 1970, and to continue in
effect from year to year thereafter unless changed or
terminated pursuant to notice by either party at least 120
days belore April I of any anniversary date.
On March 27, 1968, Jacobson had a telephone
conversation with Union Rcspresentative Wright in
Denver He told Wright that Respondent had not been
notified of the meetings at which wage increases had been
negotiated and that Respondent could not go along with
the increases
On April 9, 1968, Union Representative Stone wrote
Respondent . directing its attention to Section 1.06 of the
'the exact date of these two meetings does not appear in the record, but
based on Haberman 's testimony that NECA and the Union had not yet
reached an agreement at the time Hecht talked to the Respondent and
other weld County contractors , 1 find that the meetings must have been
before the end of January
The document is unsigned and there is no evidence as to who issued it
contract which requires any party desiring to change or
terminate the contract to give notice thereof at least 120
days prior to April 1 of any contract anniversary year.
Stone also called Respondent's attention to the fact that it
had not rescinded the authorization of NECA to represent
it in collective bargaining with the Union. He stated that
for these reasons the Union was insisting that Respondent
comply with all the terms and provisions of the current
agreement (G.C. Exh. 5)
After the receipt of this letter, Respondent, on April 12,
1968. wrote the Union, informing it of Respondent's
intent to terminate its agreement with the Union "at the
earliest possible date" and to abide by the agreement with
respect to union employees in its shop as of the date of
the letter.' It stated, however, that it could not go along
with the increase in wages then in effect under the
contract or the increases to become effective on April 1,
1969. because it would not be able to compete with the
nonunion contractors in Greeley (G.C. Exh. 6).
Respondent stated that there were 17 nonunion to only 3
union contractors there.
On the same day, Respondent wrote NECA, enclosing
a copy of its letter to the Union and requesting that
Respondent's name be withdrawn from NECA's
negotiating list (G.C. Exh. 7).
Respondent has admittedly failed to pay the newly
negotiated wage increases since April 1, 1968, and make
contributions to the Health Benefit and Vacation Funds
required by the contract
F A nalysis and Conclusions
The word "unit" does not appear to have been
mentioned during the discussions leading up to the change
in the bargaining pattern which took place in 1965 or in
subsequent discussions between the parties. Moreover.
none of the bargaining agreements received in evidence in
this case purports specifically to describe the unit covered
by the agreements. However, It is a fair assumption that
Sec 5 24 of each of the agreements, which defines the
"Normal Construction Labor Market" as consisting of
the geographical area included in specifically listed
counties. was meant to describe the scope of the unit
covered by the respective agreements Thus, the Weld
County Agreement expiring by its terms on October I.
1965 mentioned only Weld County as included in the
"Normal Construction Labor Market," whereas the area
agreements as amended in 1965, 1967, and 1968 listed all
21 counties, including Weld County, as within that labor
market.
The record makes clear that Respondent, prior to
agreeing to a change in the bargaining pattern, was aware
of the significance of the change in the scope of the labor
market which would result from its being covered by the
area agreement and that this was considered by
Respondent and other Weld County contractors to be an
advantage both from the standpoint of the employers and
their employees The fact that there was vacillation in
1965 on the part of Respondent and other Weld County
contractors, as well as the Union, on the question whether
they should abandon their separate Weld County contracts
and he covered, instead, by the area agreement tends to
show that all parties were weighing the pros and cons of
their contemplated action and that they intended that
Weld County contractors should become a part of the
'Jacobson testified that Respondent in fact had no union members as of
that date
J-H ELECTRIC
larger unit for bargaining purposes. A careful reading of
the Letter of Assent signed by Respondent on March 2,
1966, and the Bargaining Authorization Agreement singed
by it on March 17, 1966, can leave little doubt but that
Respondent meant to and did become a part of the broad
area-wide multi-employer bargaining unit . This unit. I
find, is an appropriate bargaining unit 10
This conclusion, however, does not, in my view.
automatically dispose of the question whether Respondent
should be required in the circumstances of this case to
accept and abide by the terms of the area agreement as
amended in 1968.
It is a reasonable inference from all of the evidence that
in the 1965 negotiations for a change in the bargaining
pattern, the parties contemplated separate negotiations for
Weld County contractors on wage rates and other
economic issues and that the agreements reached in those
negotiations were to he incorporated into "exceptions" to
the area agreement. Such separate negotiations were had
in 1965 and their results, with possible modifications by
the Industrial Relations Council. were incorporated as
exceptions into the 1965 area agreement as amended and
printed in the Red Book Agreement. There was no
suggestion during the 1965 negotiations that the Union
would subsequently refuse to meet and bargain with Weld
County contractors regarding these exceptions to the area
agreement or that NECA Representative Hecht, who
agreed in the Bargaining Authorization Agreement to use
his "best efforts to secure the most reasonable terms
obtainable on behalf of" Respondent, would later side
with and cooperate with the Union in an effort to abolish
the exceptions for Weld County contractors in the area
agreement
The first inkling Respondent and other Weld County
contractors had of any unwillingness on the part of the
Union to meet separately with Weld County contractors
came in connection with the negotiation of the 1967
amendments when Hecht informed the Weld County
contractors of the Union's position. These contractors,
including Respondent, promptly objected to the Union's
position and instructed their representative, Hecht, to
withdraw from NECA's letter of notice the proposal it
had made for some increase in the wage scale to be paid
by Weld County contractors. Acting under instructions
from Respondent and other Weld County contractors,
Hecht did withdraw this proposal. While the final area
agreement reached in 1967 did contain provisions for
some wage increases. Respondent expressly agreed to
them and the area agreement continued to provide
exceptions for Weld County, in accordance with the
understanding reached in 1965.
The opening sentence of the 1967 contract, moreover,
expressly acknowledged that the amendments to the 1965
contract constituted such changes as were jointly and
"locally" negotiated. The Union and NECA thereby in
effect recognized the validity of the position of
Respondent and other Weld County contractors that the
exceptions to the area agreement which were to embody
the wage rates and economic items affecting Weld County
contractors must be negotiated on a local basis
The fact that the parties contemplated the negotiation of different wage
rates for some employers in the unit does not preclude a finding that a
multi-employer unit is appropriate This practice of separate bargaining on
some issues , as the Board has pointed out , is not uncommon in
multi-employer bargaining units Furniture Employers' Council. 96 NLRB
1002. Weyerhaueser Compant-, 166 NLRB No 7
699
Nevertheless, in connection with negotiating the 1968
amendments to the area agreement, NECA and the Union
completely ignored the repeated insistence by Respondent
and other Weld County contractors that there must be
negotiation on a local level regarding the economic items
theretofore contained in the exceptions to the area
agreement. Hecht did not even bother to furnish
Respondent with copies of the proposals affecting its
economic life which NECA and the Union were making
to each other until tentative agreement had been reached
regarding these matters and the agreement was in effect a
Jail accompli. Even when visiting Greeley to investigate
what he considered the reasonableness of the $5,000 figure
proposed by the Union for a split scale of wage rates for
Weld County. Hecht did not inform Respondent of the
drastic changes allecting it which were being negotiated.
In this case, it seems to me. that we have more than a
mere dissatisfaction by an employer with the terms of a
contract which his duly designated agent has negotiated
for him.ii We are faced basically with action taken by the
agent, NECA. and the Union, purporting to bind
Respondent in a manner which both knew was contrary to
the bargaining pattern agreed to by Respondent. Even if
there was room for a misunderstanding during the 1965
negotiations as to Respondent's willingness to relinquish
its right to separate negotiations and separate provisions
in the area agreement pertaining to wages and other
economic items affecting the Weld County contractors,
both the Union and NECA knew when the occasion for
the next negotiations arose that neither Respondent nor
any of the other Weld County contractors had intended to
relinquish any such right
In the circumstances outlined above, the actions of the
Union and NECA in denying to Respondent any
meaningful opportunity to participate in the 1968
negotiations on matters affecting its economic life
amounted, in my view, to a breach of faith on their part.
Regardless of whether, technically, NECA and the Union
had a right under the strict terms of the Letter of Assent
and Bargaining Authorization Agreement to make the
contract it did without consulting the wishes of
Respondent, and whether Respondent's attempt to
withdraw from the multi-employer bargaining
arrangement was technically untimely. I do not believe it
will effectuate the policies of the Act to require
Respondent to abide by the terms of the area agreement
as amended in 1968, in the negotiation of which it had no
opportunity to participate.
In applying principles of equity, "the Board should stay
its hand in this case" and not lend its processes to assist
NECA and the Union in profiting from their breach of
faith with Respondent See Industrial Engineering Co
Inc.. 173 NLRB No. 18, and cases cited therein
Accordingly, I shall base no unfair labor practice
finding upon Respondent's refusal to abide by the terms
of the area agreement as amended in 1968 and shall
recommend that the complaint be dismissed.
"Such dissatisfaction , of course , cannot in and of itself furnish a lawful
basis for renouncing the contract negotiated by the agent or a refusal to
abide by its terms Tulsa Sheet Metal Works. 149 NLRB 1487
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings and conclusions and the RECOMMENDED ORDER
entire record, and pursuant to Section 10(c) of the Act, The complaint herein is hereby dismissed in its entirety.
there is hereby issued the following: