James Luterbach Construction Co.

National Labor Relations Board - Board Decisions

Dec 16, 1994

315 N.L.R.B. 976 (N.L.R.B. 1994)

976
315 NLRB No. 147
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
James Luterbach Construction Co., Inc. and Inter-
national Union of Operating Engineers Local
139, AFL–CIO. Case 30–CA–10989
December 16, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
DEVANEY, BROWNING, AND COHEN
On October 24, 1991, Administrative Law Judge
Leonard M. Wagman issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel and the Charging Party each filed
an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order as modified.
The complaint alleges that the Respondent violated
Section 8(a)(5) and (1) of the National Labor Relations
Act by refusing to adhere to a collective-bargaining
agreement executed about June 28, 1990, by the Inter-
national Union of Operating Engineers, Local 39,
AFL–CIO (Local 139 or the Union), the Allied Con-
struction Employers’ Association (ACEA), and the As-
sociated General Contractors of Greater Milwaukee
(AGC). The judge concluded that the Respondent’s re-
fusal violated Section 8(a)(5) and (1) of the Act. The
Respondent filed exceptions to the judge’s decision.
We find in agreement with the judge and for the rea-
sons set forth below that the Respondent’s refusal to
adhere to the agreement violated Section 8(a)(5) and
(1) of the Act.
I. BACKGROUND
The facts of this case may be summarized as fol-
lows. The Respondent has been a general contractor in
the building and construction industry for about 33
years. It employs laborers, cement masons, carpenters,
bricklayers, and operating engineers. The Respondent
has usually employed about 45 to 50 employees from
those trades, including 4 or 5 operating engineers. It
has had a collective-bargaining relationship with the
Unions representing each of these trades for at least 20
years.
Pursuant to Section 8(f) of the Act, the Respondent
has recognized Operating Engineers Local 139 as the
exclusive bargaining representative of its operating en-
gineers for more than 20 years. The Union and the Re-
spondent were parties to a series of multiemployer
agreements, the most recent of which, the Area I Mas-
ter Building Agreement (Area I or Area I Agreement),
was effective from June 1, 1987, to May 31, 1990.
Before the 1987 agreement, the ACEA negotiated
contracts with the Union for the Respondent and other
members of the AGC. The Respondent has been a
member of the AGC for about 20 years. William P.
Luterbach, president of the Respondent since 1983, has
held various offices in the AGC, culminating in the
presidency in 1987. Until 1987, AGC was a member
of ACEA. Luterbach, as AGC president, represented it
on ACEA’s board of directors.
Early in January 1987, the AGC decided to with-
draw from the ACEA bargaining unit. In letters to
Local 139 and other craft unions having collective-bar-
gaining relationships with its members, AGC an-
nounced its withdrawal and stated that it was willing
to begin negotiating a new agreement to be effective
on or after June 1, 1987. Attached to each letter was
a list of AGC contractors, including the Respondent,
who had authorized the AGC to bargain for a new
agreement.
In February 1987, AGC and ACEA agreed that from
then on they would negotiate agreements as separate
entities and that each one would bargain for its own
members. They also agreed to bargain ‘‘alongside of,
contiguous with, and adjacent to and in conjunction’’
with each other. In preparation for the 1987 negotia-
tions, AGC and ACEA set up a joint committee. The
two associations signed the 1987 Area I Agreement
with Local 139 as separate entities.
During the negotiations for the 1987 Area I Agree-
ment among ACEA, AGC, and Local 139, Luterbach
became a member of the joint bargaining committee.
He participated in the committee caucus on June 18,
1987, and sat with the committee during July 2, 1987
negotiations with Local 139.
In August 1989, the AGC sent letters to its members
announcing preparations for the 1990 negotiations. It
attached collective-bargaining authorization forms and
a list of the AGC bargaining committees. Luterbach
was listed as the chairman of the 1990 AGC collec-
tive-bargaining committee regarding operating engi-
neers. The authorization form had spaces for an em-
ployer to check ‘‘yes’’ or ‘‘no’’ next to the names of
the five unions, to show which union, if any, the em-
ployer authorized AGC to bargain with on its behalf.
On August 15, not having received a reply from
Luterbach, the AGC sent the Respondent a followup
letter requesting the return of the authorization.
On August 30, 1989, the Respondent returned its
form to the AGC, authorizing the association to rep-
resent it regarding bricklayers, carpenters, cement ma-
sons, and laborers. Concerning operating engineers, the
Respondent marked neither ‘‘yes’’ nor ‘‘no.’’ The
AGC, which did not ask the Respondent to make a
specific election, concluded that it was not authorized
to bargain with the Union on the Respondent’s behalf.
In February 1990, Local 139 sent letters to ACEA
and AGC requesting negotiations for a new agreement.
977JAMES LUTERBACH CONSTRUCTION CO.
1 It appears from the record that these sessions included Local 139,
but not the other crafts’ representatives.
2 The judge found that under Retail Associates, 120 NLRB 388
(1958), discussed infra, the Respondent failed to timely withdraw
from multiemployer bargaining and was therefore bound to the con-
tract reached by that bargaining. The Respondent contended, inter
alia, that its withdrawal was permissible in light of the Board’s deci-
sion in John Deklewa & Sons, 282 NLRB 1375 (1987).
At the first bargaining session,1 on April 19, Local 139
asked for a list of employers for whom the associations
had bargaining authority. The committee gave Local
139 the list, which included the Respondent as an em-
ployer for whom AGC had such authority. At the April
19 session, Luterbach chaired the joint bargaining
committee and was its main spokesman.
On April 20 Local 139 filed an election petition
with the Board seeking certification as the representa-
tive of the Respondent’s operating engineers. On the
same day the Regional Director notified the Respond-
ent of the petition. The Union later withdrew the peti-
tion. On May 21 the Union filed a second petition
similar to the first one in all material respects. On the
same day the Regional Director notified the Respond-
ent of the new election petition.
On May 10, at the next negotiating session,
Luterbach again chaired the committee and spoke for
the employers. He also served as chairman at the third
meeting, on May 22, when the parties negotiated
through a Federal mediator.
On May 29 Luterbach learned from Richard Snow,
executive vice president of AGC, that the Respondent,
Luterbach Construction of which he was president, had
erroneously been placed on the list of employers that
had authorized AGC to represent them with the operat-
ing engineers. Luterbach was absent from the next ne-
gotiating session, May 30. At that session, Henry
Hunt, AGC’s executive director, announced that Bill
Emory, an official of another company included on the
list of AGC members, was chairman of the committee.
Emory continued to function in that capacity until ne-
gotiations concluded. Luterbach did not attend the re-
maining sessions.
In a May 31 letter to Donald Shaw, Operating Engi-
neers Local 139 president and business manager,
Luterbach announced to the Union his withdrawal as
chairman of the committee and the Respondent’s intent
to conduct its relations with the Union as an individual
employer. He stated that any further role he might play
in the negotiations would be as an advisor to the em-
ployers whose bargaining authority the associations
held, and that the Respondent was not among them. He
also wrote:
I am writing in response to recent develop-
ments between your union and the James
Luterbach Construction Company. You know by
now that those developments placed me in a posi-
tion where I had no choice but to resign as chair-
man of the negotiating committee in the
AGC/ACEA collective bargaining negotiations.
I am referring, in particular, to the recent filing
by your union of two election petitions. In evalu-
ating the election issue it became clear to me that
the company should exercise its rights under the
law, as set forth in the Deklewa case. It also be-
came clear to me that your union does not rep-
resent an uncoerced majority of our employees in
a bargaining unit that is appropriate under the
law. Accordingly, we plan to proceed on the basis
of an individual relationship with your union, if
and when one is required by law.
On May 31, the Respondent filed an RM petition for
an election in a unit of its operating engineers, truck-
drivers, and mechanics, naming the Union as the labor
organization claiming representative status for the unit.
On June 26 the committee and the Union reached an
agreement, which they executed on June 28. The
agreement is effective from June 1, 1990, until May
31, 1993. On July 2 and again on July 3, Luterbach
rejected the Union’s requests that the Respondent ad-
here to the agreement. The Respondent has persisted in
that refusal.
II. DISCUSSION
At issue in this case is whether the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by failing to
adhere to the agreement executed June 28.2 This case
involves the obligations of an 8(f) employer in the
context of multiemployer bargaining. To resolve this
issue, we shall examine Deklewa and post-Deklewa
cases for guidance.
In Deklewa, the Board summarized the framework it
was providing for interpretation and application of
Section 8(f) as follows:
When parties enter into an 8(f) agreement, they
will be required, by virtue of Section 8(a)(5) and
Section 8(b)(3), to comply with that agreement
unless the employees vote, in a Board-conducted
election, to reject (decertify) or change their bar-
gaining representative. Neither employers nor
unions who are party to 8(f) agreements will be
free unilaterally to repudiate such agreements.
During its term, an 8(f) contract will not act as a
bar to petitions pursuant to Section 9(c) or (e). In
determining the appropriate unit for election pur-
poses the Board will no longer distinguish be-
tween ‘‘permanent and stable’’ and ‘‘project by
project’’ work forces, and single employer units
will normally be appropriate.
In the event of an election, a vote in favor of
the signatory union, or a rival union, will result
in that union’s certification and the full panoply
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Under that doctrine a single employer that joins a multiemployer
association and adopts its collective-bargaining agreement, is
‘‘merged’’ into the multiemployer unit and the requisite inquiry into
majority support is made in that multiemployer unit.
4 See, e.g., Sheet Metal Workers Local 9 (Concord Metal), 301
NLRB 140 (1991) (the Board found that where the parties were
bound by an 8(f) agreement but the union was not a 9(a) representa-
tive, there was no duty to bargain for a successor agreement); Yel-
lowstone Plumbing, 286 NLRB 993 (1987) (though an employer
subject to Sec. 8(f) unlawfully encouraged a decertification effort,
employer did not violate Sec. 8(a)(5) by refusing to bargain and
making unilateral changes because it was under no obligation to bar-
gain over a successor agreement). See also Garman Construction
Co., 287 NLRB 88 (1987) (an 8(f) employer that timely withdrew
from multiemployer bargaining may, on expiration of the 8(f) agree-
ment, lawfully withdraw recognition from the union).
5 The Board, citing Deklewa, stated that it would not extend the
make-whole remedy for noncompliance with the 1983–1986 contract
beyond that contract’s expiration date. 286 NLRB at 836.
of Section 9 rights and obligations. A vote to re-
ject the signatory union will void the 8(f) agree-
ment and will terminate the 8(f) relationship. In
that event, the Board will prohibit the parties from
reestablishing the 8(f) relationship covering unit
employees for a 1-year period. The purpose of
this general prohibition is to preclude an employer
and a union both from ignoring the electorally ex-
pressed preference of a majority of unit employ-
ees and from maintaining an 8(f) relationship dur-
ing a period when the Act precludes holding an-
other election, the availability of which is the sine
qua non safeguard to permitting and enforcing an
8(f) contract. Failure to terminate the 8(f) relation-
ship or its premature reestablishment after an elec-
tion will subject the parties to 8(a)(2) and
8(b)(1)(A) liability.
Even absent an election, upon the contract’s ex-
piration, the signatory union will enjoy no major-
ity presumption and either party may repudiate
the 8(f) relationship. The signatory employer will
be free, at all times, from any coercive union ef-
forts, including strikes and picketing, to compel
the negotiation and/or adoption of a successor
agreement. [Footnotes omitted. 282 NLRB at
1385–1386.]
The Deklewa Board, at 282 NLRB at 1385 fn. 42,
in discussing its rejection of the merger doctrine,3
noted as follows regarding multiemployer bargaining
in the construction industry:
Accordingly, these rules reject the so-called
merger doctrine’s application to 8(f) cases. As-
suming that the merger doctrine fosters a certain
amount of stability in labor relations, we believe
that in the construction industry the cost of
achieving that stability in terms of employee free
choice is too high. As we have explained, in this
industry the merger doctrine can operate to bind
a single employer and its employees to full 9(a)
status without providing the employees any op-
portunity to express their representational pref-
erences because Sec. 8(f) eliminates majority sta-
tus as a prerequisite for signing a contract. On
balance, therefore, we find that the overall objec-
tives of the Act will be better served by abandon-
ment of the merger doctrine in these cir-
cumstances. In so doing, we do not imply that
multiemployer associations and multiemployer
bargaining are no longer appropriate in the con-
struction industry. Rather, we hold that the em-
ployees of a single employer cannot be precluded
from expressing their representational desires sim-
ply because their employer has joined a multiem-
ployer association.
Generally, under this framework, an employer, on
expiration of an 8(f) agreement, is free to withdraw
recognition of the union and avoid any obligation to
bargain for a successor contract.4 Such an employer
may, however, obligate itself to abide by a successor
agreement and the Board—in varying contexts—has so
found.
In Kephart Plumbing, 285 NLRB 612 (1987), the
employer had authorized an association to negotiate on
its behalf with the union. The employer did not with-
draw its authorization until after a new agreement had
been negotiated, executed, and ratified. Applying
Deklewa, the Board found that the new agreement was
binding and not subject to unilateral repudiation. The
Board also noted, however, that the union enjoyed no
presumption of majority status after the new agree-
ment’s expiration and that the employer would be free
to repudiate the 8(f) relationship at that time.
In Reliable Electric Co., 286 NLRB 834, 836
(1987), the Board held that an 8(f) employer who had
not withdrawn bargaining authority previously given to
an association was bound to the association contract:
[T]he Respondent’s authorization to NECA did
not terminate at the end of the then current com-
mercial agreement, but bound it to succeeding
agreements as well. Authorization continued un-
less the Respondent subsequently took some ac-
tion effectively withdrawing the multiemployer
group’s authority to bargain on the Respondent’s
behalf. As found by the judge, no such notice had
been given at the time the 1983–1986 successor
commercial agreement was executed or the fol-
lowing winter when the Respondent repudiated
that agreement. Under the Deklewa principles, the
successor commercial agreement was ‘‘binding,
enforceable, and not subject to unilateral repudi-
ation by the Respondent.’’ Thus, the Respondent’s
unilateral repudiation of the contract violated Sec-
tion 8(a)(5). [Footnotes omitted.]5
979JAMES LUTERBACH CONSTRUCTION CO.
6 Twin City Garage Door Co., 297 NLRB 119 (1989).
7 John Deklewa & Sons, supra, 282 NLRB at 1377–1378.
8 Our concurring colleague asserts that the association can take ac-
tion to bind the employer. However, where, as here, the employer
has not renewed the agency relationship between itself and the asso-
ciation, the association does not have the power to bind the em-
ployer. Thus, the association’s claim that it represents the employer
is essentially without foundation. Nor can it be said that the associa-
tion has apparent authority to act for the employer. In 8(f) multiem-
ployer relationships, the expiration of the contract means that the
bargaining obligation itself has ended. The parties may create a new
relationship by entering into bargaining for a new multiemployer
contract. However, inasmuch as an individual employer has a right
not to bargain at all, and a right to bargain individually if it wishes,
we would not find a waiver of these individual rights based on ac-
tions of a nonagent association. Compare Kephart, supra, 285 NLRB
612, where the association, because of the language of the authoriza-
tion previously signed by the employer, remained the agent of the
employer and thus had the power to bind that employer to a new
contract.
The Board similarly has held that an employer,
which had agreed to a settlement binding it to a July
1, 1981, to June 30, 1984 union association contract
and also, ‘‘clearly,’’ to the successor contract, violated
Section 8(a)(5) in February 1984 by withdrawing rec-
ognition and repudiating the existing contract. The
Board also found that the employer’s March 30, 1984
withdrawal of bargaining authority from the associa-
tion did not relieve the employer of its obligation to
comply with its existing contractual obligations.
Carthage Sheet Metal Co., 286 NLRB 1249 (1987).
An 8(f) employer that signs an agreement to adhere
to an association contract is also bound to that contract
for its term under Deklewa. In Twin City,6 the em-
ployer notified the union during the term of the asso-
ciation contract, that it was repudiating ‘‘any agree-
ment’’ it had with the union. The Board held that the
employer was bound to its Section 8(f) relationship
with the union until the contract expired.
In each of these cases, the 8(f) employer (i.e., the
employer who has an 8(f) relationship with the union)
was free to refuse to bargain for a new contract. How-
ever, in each case, the 8(f) employer clearly and un-
mistakably bound itself to a successor contract.
The issue posed here is whether an 8(f) employer,
in a multiemployer unit, is bound, by inaction, to the
successor multiemployer contract. In a Section 9 con-
text, the inaction of the employer, during the multiem-
ployer negotiations, would bind it to the successor
multiemployer contract. In Retail Associates, supra,
120 NLRB at 395, the Board set forth certain guide-
lines governing the withdrawal from multiemployer
units:
We would accordingly refuse to permit the
withdrawal of an employer or a union from a duly
established multiemployer bargaining unit, except
upon adequate written notice given prior to the
date set by the contract for modification, or to the
agreed-upon date to begin the multiemployer ne-
gotiations. Where actual negotiations based on the
existing multiemployer unit have begun, we
would not permit, except on mutual consent, an
abandonment of the unit upon which each side
has committed itself to the other, absent unusual
circumstances.
The Retail Associates’ rule was developed, and has
been applied, to multiemployer union collective-bar-
gaining relationships governed by Section 9 of the Act.
That is, each of the employers has a Section 9 bargain-
ing relationship with the union, and the multiemployer
group (consisting of those employers) has a Section 9
bargaining relationship with the union. Accordingly, at
the expiration of the multiemployer contract, the em-
ployers have a statutory obligation to bargain for a
successor contract. The only issue is whether they
must bargain on a multiemployer basis or on a single
employer basis. The Retail Associates’ rule addresses
that issue. The rule requires that if an employer wishes
to abandon multiemployer bargaining and wants to
bargain on a single employer basis, that employer must
withdraw from the multiemployer unit in advance of
multiemployer negotiations.
By contrast, employers who have an 8(f) relation-
ship with a union do not have an obligation to bargain
for a successor contract.7 Accordingly, if a multiem-
ployer group consists wholly of such employers, nei-
ther the multiemployer group nor any of its employer-
members would have an obligation to bargain for a
successor contract. Hence, the underlying premise for
the Retail Associates’ rule—an obligation to bargain in
some unit—does not exist in the context of an 8(f) re-
lationship. Since the underlying premise for Retail As-
sociates does not exist with respect to 8(f) relation-
ships, we decline to apply the Retail Associates’ rule
to such a relationship.
Nonetheless, as previously discussed, an 8(f) em-
ployer may obligate itself to be bound by a successor
agreement. Indeed, Deklewa recognized that the policy
of labor relations stability generally favors requiring
parties to abide by their agreements. Thus, the question
becomes under what circumstances will we find that an
8(f) employer—in a context of multiemployer bargain-
ing—has agreed to be bound by the results of that bar-
gaining?
In the 8(f) context, we conclude that in order for an
employer to obligate itself to be bound by multiem-
ployer bargaining, there must be more than inaction,
i.e., the absence of a timely withdrawal. Thus, unlike
in Retail Associates, supra, mere inaction during the
multiemployer negotiations will not bind an 8(f) em-
ployer to a successor contract reached through those
multiemployer negotiations.8 Rather, the following two
part test will be used to decide whether an 8(f) em-
ployer has obligated itself to be bound by the results
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Thus, an individual 8(f) employer meeting our two part test will
be bound by the actions and the bargaining undertaken by the multi-
employer association. Our holding does not preclude a multiem-
ployer association, consisting solely of 8(f) employers, from exercis-
ing its rights under Deklewa. That is, absent agreement to the con-
trary, the employer association may exercise the rights granted em-
ployers under Deklewa and withdraw recognition from the union on
expiration of the collective-bargaining agreement. 10 See Secs. 8(b)(1)(B) and (4)(A) and 9(b) of the Act.
of the multiemployer bargaining. First, we will exam-
ine whether the employer was part of the multiem-
ployer unit prior to the dispute giving rise to the case.
If this first inquiry is answered affirmatively, then we
will examine whether that employer has, by a distinct
affirmative action, recommitted to the union that it will
be bound by the upcoming or current multiemployer
negotiations.
The first part of the test is similar to the sort of in-
quiry pursued in Retail Associates. That is, a union
would typically rely—absent notice to the contrary—
on an employer’s prior membership or participation in
multiemployer bargaining, or both, as demonstrating
that the employer would be bound by the results of the
upcoming multiemployer bargaining.
The second part of the test recognizes the dif-
ferences between bargaining in the 9(a) context and
bargaining in the 8(f) context. As noted, an employer,
under Deklewa, supra, on expiration of an 8(f) agree-
ment, is not generally obligated to negotiate a succes-
sor agreement and is free to withdraw recognition from
the union. In these circumstances, mere inaction by an
employer during the multiemployer negotiations is not
sufficient to show that the 8(f) employer has re-
affirmed its intention to be bound by the results of
multiemployer bargaining. If, however, that 8(f) em-
ployer affirmatively agrees to be bound by the results
of group bargaining, we will, consistent with Deklewa,
hold that employer to its obligations. Thus, an 8(f) em-
ployer that engages in a distinct affirmative act that
would reasonably lead the union to believe that the
employer intended to be bound by the upcoming or
current negotiations will be deemed to have agreed to
be bound by the results of that bargaining. Ultimately,
that employer—meeting both parts of our test—will be
deemed to have clearly and unmistakably waived both
its right to withdraw recognition on contract expiration
from the union and its right to bargain as an individ-
ual.9
We differ substantially with the views of Members
Devaney and Browning. Their full application of Retail
Associates to 8(f) employers and signatory unions sug-
gests, contrary to Deklewa, that 8(f) signatory unions
are in fact vested with all the rights and privileges of
a 9(a) union. As discussed, the Board in Deklewa
struck a delicate balance in applying the principles of
Sections 8(a)(5), 8(b)(3), 8(d), and 9(a) to 8(f) relation-
ships. Applying Retail Associates to 8(f) relationships
would upset that delicate balance by imposing new
postcontract obligations on 8(f) employers. That is, the
application of Retail Associates would impose on such
employers the duty to bargain in a multiemployer unit
as well as the duty to honor any contract resulting
therefrom, unless the employer takes steps to avoid
that result. Under Deklewa, an employer’s inaction
does not bind it to bargain at all, much less to bargain
in a multiemployer unit. Members Devaney and
Browning would stretch Sections 8(a)(5) and (f) to
achieve this result. Further, by binding an individual
8(f) employer to a multiemployer contract simply be-
cause of a failure to timely withdraw form multiem-
ployer bargaining, Members Devaney and Browning
would impose on that employer an obligation whose
source is not that employer’s agreement to an 8(f) con-
tract but rather the individual 8(f) employer’s prior re-
lationship with an association.
Members Devaney and Browning speak of the vir-
tues of mutiemployer bargaining and of the need for
stability in connection with such bargaining. We do
not necessarily disagree. However, we believe that our
colleagues have failed to take congnizance of two im-
portant limitations on such bargaining. Since both of
these limitations are statutory, they cannot be ignored.
The first limitation is that an employer has a right
to bargain for itself.10 Thus, in our view, absent a clear
and unmistakable consent to be bound to multiem-
ployer bargaining, an employer has a right to eschew
such bargaining.
Secondly, an employer who has only an 8(f) con-
tract with a union has a right to refuse to bargain for
a successor contract. Thus, in our view, absent a clear
manifestation of consent, the 8(f) employer can eschew
such bargaining.
These principles assume importance in connection
with the issues concerning an employer’s effort to
withdraw from multiemployer bargaining. If an em-
ployer has a Section 9 relationship with a union, the
obligation to bargain is a continuing one. Thus, if that
employer is part of a multiemployer unit, it is therefore
appropriate to hold that the employer’s obligation to
bargain in that unit will likewise continue, unless the
employer timely chooses to bargain on a single em-
ployer basis. See Retail Associates, supra, 120 NLRB
395.
However, if the employer has only an 8(f) relation-
ship with the union, there is no obligation to bargain
for a successor contract. Thus, at the end of each con-
tract, the employer has an opportunity to decide anew
whether to bargain for a successor contract. And, if the
employer chooses to bargain, it will also decide wheth-
er to bargain in a multiemployer unit. The fact that an
employer chose to bargain a past contract on a multi-
employer basis does not establish that the employer
has agreed to bargain a successor contract, much less
981JAMES LUTERBACH CONSTRUCTION CO.
11 Concededly, there can be cases where the employer has ex-
pressly given continuing consent to bargain a successor contract on
a multiemployer basis. See Kephart, supra, and Reliable, supra.
However, there is no such consent here.
12 In this regard, we note the following. At the first negotiating
session held April 19, the Union requested and received a list of em-
ployers for whom the ACEA and the AGC had bargaining authority.
The Respondent’s name was on the list. According to William
Luterbach, the Respondent’s inclusion on the list was an error and
he did not learn of the error until May 29. As William Luterbach’s
active participation in the first three sessions of the 1990 bargaining
constituted distinct affirmative acts demonstrating a commitment to
be bound by group bargaining, we do not rely on the Respondent’s
inclusion on the list in reaching our decision.
13 In deciding whether an 8(f) employer has engaged in a distinct
affirmative act that recommits it to group bargaining, we note, as did
the judge, Custom Colors Contractors, 226 NLRB 851, 853 (1976).
There, the Board held:
The manifestation of an ‘‘unequivocal intention’’ to be bound
requires something less, however, than a solemnly executed doc-
ument signed and sealed with hot wax. A commitment to bar-
gaining on a multiemployer basis will not be made to depend
on the presence of a formal associational structure among the
bargaining participants or on the formal delegation of authority
from the individual employer to the multiemployer group. Nor
will the Board, faced with outward manifestations of intent to
engage in group bargaining, consider as controlling an employ-
er’s private manifestation of dissent. An employer who, through
a course of conduct or otherwise, signifies that it has authorized
the group to act in its behalf will be bound by that apparent cre-
ation of authority. [Footnotes omitted.]
14 We assume that under our analysis there will be, as in a Retail
Associates’ analysis, ‘‘unusual circumstances’’ that may justify an
8(f) employer’s withdrawal from group bargaining even after its re-
affirmance that it will abide by that bargaining. Here, we find, as
did the judge, that no unusual circumstances exist.
15 The Board, Chairman Gould, and Members Stephens, Devaney,
and Browning, agree as follows. We shall modify par. 2(b) of the
judge’s recommended Order to provide that any additional amounts
due the trust funds shall be computed in accordance with
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). In
addition, we shall provide for reinbursement of employee expenses
ensuring from the Respondent’s failure to make the required con-
tributions. Finally, we shall modify par. 2(b) to make clear that the
Respondent’s payment of the employees’ medical and other expenses
has no effect on its obligation to make the trust fund contributions.
Employees not only have a right to receive the benefits the Union
negotiated for them; they also have a clear economic interest in the
viability of the funds. Stone Boat Yard v. NLRB, 715 F.2d 441, 446
(9th Cir. 1983) (‘‘the diversion of contributions from the union funds
undercut[s] the ability of those funds to provide for future needs’’).
Therefore, the Respondent’s payment of employee expenses does not
offset its obligation to make the fund contributions.
Member Cohen would not at this time order the Respondent both
to reimburse employees for expenses and reimburse the trust funds.
Assuming the employees are made whole for expenses resulting
from the Respondent’s failure to make benefit funds payments, the
Respondent, in Member Cohen’s view, may be additionally ordered
to make the funds whole if, and only if, the General Counsel dem-
onstrates with concrete evidence that the employees on whose behalf
payments are ordered have an economic interest in the future of
those funds. See Manhatten Eye, Ear & Throat Hospital v. NLRB,
942 F.2d 151 (2d Cir. 1991); Ron Tirapelli Ford v. NLRB, 987 F.2d
433 (7th Cir. 1993).
that the employer has consented to bargain a successor
contract on a multiemployer basis. Some affirmative
act is necessary to establish that consent.11
Applying our two part test to the facts of this case,
we find that the Respondent was obligated to abide by
the contract that resulted from the 1990 negotiations.
First, the Respondent had historically been a member
of the AGC and had been bound by the previous
agreements reached through multiemployer bargaining.
Indeed, in 1987 William Luterbach served as president
of the AGC. Also, during the 1987 bargaining,
Luterbach played a role in the negotiations with the
Union that led to the 1987–1990 contract—a contract
that the Respondent honored. Without doubt, the Re-
spondent meets the first part of our test.
Second, as noted previously, William Luterbach, the
Respondent’s president, served as chairman of the
AGC’s bargaining committee for the first three 1990
negotiating sessions.12 Concededly, William Luterbach
could have been wearing only an ‘‘AGC hat’’ and not
a ‘‘Luterbach Construction hat.’’ However, even were
this so, it was not told to the Union. Luterbach’s overt
affirmative actions reasonably conveyed a commitment
by the Respondent to continue, as it had in the past,
to participate in, and be bound by, group negotia-
tions.13
Based on the foregoing, we find that the Respondent
obligated itself to abide by the results of the 1990 ne-
gotiations between the AGC and the Union. Accord-
ingly, the Respondent’s refusal to abide by and honor
the collective-bargaining agreement reached during
those negotiations violated Section 8(a)(5) and (1) of
the Act.14
ORDER15
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, James
Luterbach Construction Co., Inc., New Berlin, Wiscon-
sin, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
1. Substitute the following for paragraph 2(b):
‘‘(b) Pay to the appropriate fringe benefit trust funds
the contributions required under the 1990–1993 Area I
Master Building Agreement, between the ACEA, the
AGC, and the Union, retroactive to June 1, 1990, to
the extent such contributions have not been made, in-
cluding any additional amounts due the funds in ac-
cordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979). In addition, the Respondent
shall reimburse unit employees for any expenses ensu-
ing from its failure to make the required contributions,
as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981),
such amounts to be computed in the manner set forth
in Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 120 NLRB 388 (1958).
2 285 NLRB 612 (1987).
3 282 NLRB 1375 (1987).
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
CHAIRMAN GOULD, concurring.
I write separately because although I agree with
much of the opinion authored by Members Stephens
and Cohen, I am unable to endorse the test articulated
by them. Like them, I find the Retail Associates’1 rule
inapplicable to multiemployer bargaining in the con-
struction industry, and I agree that in an 8(f) context
an affirmative showing is required to bind an individ-
ual employer to a multiemployer successor contract.
I part company with them, however, in delineating
what this affirmative requirement entails. They require
that the 8(f) employer, ‘‘by a distinct affirmative ac-
tion, recommitt[] to the union that it will be bound by
the upcoming or current multiemployer negotiations.’’
I find this requirement too restrictive.
The facts presented in a prior Board case illustrate
this point. In Kephart Plumbing,2 Kephart, an 8(f) em-
ployer, in 1977 and again in 1979 signed an authoriza-
tion for a multiemployer association to negotiate on its
behalf with the union. The 1979 authorization con-
tained no time limitation. Before negotiations began in
1980 for a successor contract, the association notified
Kephart of a general membership meeting to discuss
the upcoming negotiations. Kephart did not respond.
At the first negotiating session the association gave to
the union copies of the authorization forms of the em-
ployers on whose behalf it was negotiating, including
that of Kephart. The association continued to keep
Kephart informed of the status of the negotiations, and
when a new 3-year contract was finalized, it mailed a
copy of it to Kephart. The next month Kephart in-
formed the union for the first time that it was not a
member of the association, and it repudiated the con-
tract.
The Board found that Kephart’s authorization in the
multiemployer association continued until it took some
action effectively withdrawing the association’s author-
ity to bargain on its behalf and that since Kephart did
not take any action until after the contract was nego-
tiated, executed, and ratified, the contract under
Deklewa3 principles was binding and enforceable on
Kephart.
Members Stephens and Cohen would effectively
overrule the principles underlying Kephart, supra, and
allow the employer to repudiate the contract after rati-
fication since it never recommitted to the union that it
would be bound by the 1980 multiemployer negotia-
tions. Such a result would, in my opinion, substantially
undermine the stability of multiemployer bargaining in
the construction industry because any employer, al-
though historically a member of an association, could,
by remaining silent throughout the association negotia-
tions, choose at any point during or after the negotia-
tions simply to walk away if the deal being struck was
not to its liking. Surely such a scheme was not con-
templated by the Board in Deklewa, supra, when it
stressed that multiemployer associations and multiem-
ployer bargaining remained appropriate in the con-
struction industry.
To strike a proper balance between an individual
employer’s Deklewa rights and the promotion of stabil-
ity of multiemployer bargaining in the construction in-
dustry, I would require an affirmative expression from
the association to the union at the beginning of nego-
tiations specifying the individual employers on whose
behalf it was negotiating. From that point forward, I
would find that the union is entitled to rely on the as-
sociation’s representation, and the individual employer
is bound by the results of the multiemployer negotia-
tions.
This scheme comports with the expectations of the
parties. Absent notification to the contrary, the associa-
tion can reasonably expect that it continues to rep-
resent its members in future negotiations. And once
notified by the association that it represents specified
employers, the union, which has also not been notified
to the contrary, can reasonably assume the accuracy of
the association’s representation. Nor does this scheme
create an undue burden for an individual member of
the association wishing to escape liability under a suc-
cessor contract since it remains free to notify the asso-
ciation and the union prior to the beginning of negotia-
tions that it has withdrawn from the association.
Here, at the first negotiation session on April 19,
1990, the AGC submitted to the Union a list of em-
ployers for whom it had bargaining authority, and the
Respondent was specifically included. Thus, I find the
Respondent thereafter bound by the AGC negotiations,
and I agree with my colleagues that the Respondent’s
subsequent refusal to abide by and honor the multiem-
ployer contract violated Section 8(a)(5) and (1) of the
Act.
MEMBERS DEVANEY AND BROWNING, concurring.
We join our colleagues in affirming the judge’s find-
ing that the Respondent violated Section 8(a)(5) and
(1) of the Act by refusing to adhere to the collective-
bargaining agreement executed on June 28, 1990, by
the International Union of Operating Engineers, Local
139, AFL–CIO (Local 139), the Allied Construction
Employers’ Association (ACEA), and the Associated
General Contractors of Greater Milwaukee (AGC). Al-
though we join our colleagues in the result they reach,
we do not agree with their conclusion that the rules set
forth in Retail Associates, 120 NLRB 388 (1958), for
983JAMES LUTERBACH CONSTRUCTION CO.
1 Id.
2 282 NLRB 1375 (1987), enfd. 843 F.2d 770 (3d Cir. 1988), cert.
denied 488 U.S. 899 (1988).
3 House Minority Report No. 245 on H.R. 3020, reprinted in 1
Leg. Hist. (NLRA 1948) 1947, at 377 (1948).
4 Id. at 378–379.
5 Id. at 379.
6 S. Rep. No. 105, Pt. 2, on S. 1126 (1947), reprinted in Leg.
Hist. at 468.
7 353 U.S. 87 (1957).
withdrawal from multiemployer bargaining do not
apply to 8(f) relationships, and thus we do not rely on
their rationales for finding the violation. Instead, we
find the violation for the reasons that follow.
I.
The facts in this case, set forth in the plurality opin-
ion of Members Stephens and Cohen, are not in dis-
pute. In concluding that the Respondent violated the
Act, the judge found that under Retail Associates,1 the
Respondent failed to timely withdraw from the multi-
employer bargaining unit and was therefore bound to
the contract reached in multiemployer bargaining. The
judge rejected the Respondent’s contention that the
Board’s decision in John Deklewa & Sons2 precluded
application of Retail Associates to the parties’ 8(f) bar-
gaining relationship.
We agree with the judge that the Retail Associates’
principles limiting withdrawal from multiemployer bar-
gaining units apply to 8(f) bargaining relationships and
that the Respondent’s withdrawal from the multiem-
ployer unit was untimely under those principles. Retail
Associates established that, absent mutual consent or
unusual circumstances, a party may not withdraw from
a multiemployer bargaining unit after the date set by
the contract for notice of contract modification, after
the agreed-upon date to begin multiemployer negotia-
tions, or after negotiations have begun. The Retail As-
sociates’ principles were designed to promote stability
in multiemployer bargaining units, as multiemployer
bargaining furthers the Act’s purpose of minimizing
industrial strife.
The Retail Associates’ rules maintain the stability of
multiemployer bargaining by recognizing one simple
principle: that both parties are entitled to know who is
being represented at the other side of the bargaining
table prior to the commencement of negotiations. They
insure that this is the case by recognizing the effect of
each employer’s designation of bargaining authority to
the employer association. Once this authority has been
designated, the association becomes the authority’s
agent, with the authority to bind the employer by its
actions in bargaining with the union. Thus, only the as-
sociation, and not the individual employers, can take
action regarding the bargaining relationship as long as
the association still has the agency authority which was
delegated to it by the individual employers. The union
is entitled to rely on that designation of authority un-
less and until the employer takes an affirmative action
to withdraw it, by notifying both the association and
the union that it is doing so. Retail Associates, supra,
holds that this withdrawal of agency authority is timely
only if the employer notifies the union prior to the date
set for notice of contract modification, prior to the
agreed-upon date to begin negotiations, or, at the very
latest, prior to the start of the multiemployer negotia-
tions.
The value of multiemployer bargaining has long
been recognized. In approving the Taft-Hartley amend-
ments, Congress rejected proposals that would have
prohibited or restricted multiemployer bargaining. The
minority report of the House Education and Labor
Committee, expressing the view that ultimately pre-
vailed, stated of proposals to limit multiemployer bar-
gaining that ‘‘provision[s] more inconsistent with the
policy . . . to minimize industrial strife and to encour-
age peaceful settlement of labor disputes, could scarce-
ly be imagined.’’3 ‘‘[I]mpairment of industry-wide bar-
gaining . . . would upset existing collective-bargaining
practices which have proved successful in many indus-
tries and made important contributions to industrial
peace,’’ according to the report, because ‘‘industry-
wide bargaining has made a valuable contribution to
the promotion and maintenance of fair standards in
wages, hours, and working conditions, to the benefit
not only of . . . the wage earners of this country but
also the prosperity of the employers in the industry.’’4
The report further declared: ‘‘The weakening of indus-
try-wide bargaining would also harm rather than serve
the cause of industrial peace because . . . [p]arties to
such negotiations would [then] naturally await the re-
sults between other employers and employees before
coming to terms on such important matters as wages,
hours, and working conditions.’’5 Similar sentiments
were expressed by the Senate Committee on Labor and
Public Welfare minority report, which likewise re-
flected the prevailing position. Significantly, that report
noted that multiemployer bargaining had particular ad-
vantages in ‘‘such industries as longshoring and build-
ing construction—where workers change employers
from day to day or week to week.’’6
Congress’s endorsement of multiemployer bargain-
ing has been recognized by the Supreme Court. In
NLRB v. Truck Drivers Local 449 (Buffalo Linen),7 the
Court observed:
Multi-employer bargaining long antedated the
Wagner Act, both in industries like the garment
industry, characterized by numerous employers of
small work forces, and in industries like
longshoring and building construction, where
workers change employers from day to day or
week to week.
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 353 U.S. at 94–95 (footnote omitted) (emphasis added).
9 454 U.S. 404 (1982).
10 454 U.S. at 409 fn. 3 (citations omitted).
11 Indeed, the Board in Deklewa stated that it did not ‘‘imply that
multiemployer associations and multiemployer bargaining are no
longer appropriate in the construction industry.’’ 282 NLRB at 1385
fn. 42.
12 Hardin, Developing Labor Law 508 (3d ed. 1992) (citation omit-
ted).
. . . .
At the time of the debates on the Taft-Hartley
amendments, proposals were made to limit or out-
law multi-employer bargaining. These proposals
failed of enactment. . . . They were met with a
storm of protest that their adoption would tend to
weaken and not strengthen the process of collec-
tive bargaining and would conflict with the na-
tional labor policy of promoting industrial peace
through effective collective bargaining.
. . . .
The debates over the proposals demonstrate that
Congress refused to interfere with such bargaining
because there was cogent evidence that in many
industries the multi-employer bargaining basis
was a vital factor in the effectuation of the na-
tional policy of promoting labor peace through
strengthened collective bargaining.8
Returning to this theme in Charles D. Bonanno
Linen Service v. NLRB,9 the Court enumerated the ben-
efits of multiemployer bargaining:
As the Court of Appeals explained in this case:
‘‘Multiemployer bargaining offers advantages to
both management and labor. It enables smaller
employers to bargain ‘on an equal basis with a
large union’ and avoid ‘the competitive disadvan-
tages resulting from nonuniform contractual
terms.’. . . At the same time, it facilitates the de-
velopment of industry-wide, worker benefit pro-
grams that employers otherwise might be unable
to provide. More generally, multiemployer bar-
gaining encourages both sides to adopt a flexible
attitude during negotiations; as the Board ex-
plains, employers can make concessions ‘without
fear that other employers will refuse to make
similar concessions to achieve a competitive ad-
vantage,’ and a union can act similarly ‘without
fear that the employees will be dissatisfied at not
receiving the same benefits which the union might
win from other employers.’. . . Finally, by per-
mitting the union and employers to concentrate
their bargaining resources on the negotiation of a
single contract, multiemployer bargaining en-
hances the efficiency and effectiveness of the col-
lective bargaining process and thereby reduces in-
dustrial strife.’’10
Recognizing these advantages of multiemployer bar-
gaining, the Court in Bonanno Linen Service, supra,
upheld the Board’s Retail Associates’ rules, which, as
the Court noted, emphasized maintaining stability of
multiemployer units. In particular, the Court, like the
Board, rejected an impasse in bargaining as an unusual
circumstance warranting an exception to the rules’
general prohibition on withdrawal from multiemployer
bargaining once negotiations have begun. The Court
accepted the Board’s view that permitting withdrawal
at impasse would undermine the utility of multiem-
ployer bargaining; the Court found that if withdrawal
were permitted at impasse, the parties would bargain
under the threat of withdrawal by any party not com-
pletely satisfied with the results. Such a threat, of
course, would undercut the parties’ ability, gained
through multiemployer bargaining, to grant concessions
without being put at a competitive disadvantage—an
ability that greatly facilitated the reaching of agree-
ments.
In the present case, the same reasons that the Court
found in Bonanno Linen Service, supra, to militate
against allowing withdrawal from multiemployer bar-
gaining after impasse is reached weigh all the more
against allowing totally unrestricted withdrawal from
multiemployer bargaining in much of the construction
industry. This, however, will be the natural result of
finding Retail Associates inapplicable to 8(f) bargain-
ing relationships, as our colleagues do today.
Such a finding is not required by the Board’s deci-
sion in Deklewa, supra, 120 NLRB 388. Deklewa does
not make Retail Associates’ limitations on withdrawal
from multiemployer bargaining units inapplicable to
8(f) relationships, and the two cases, indeed, concern
totally different concepts. Retail Associates deals with
multiemployer bargaining units. To maintain the stabil-
ity of such units, Retail Associates restricts the times
at which a party to a multiemployer bargaining unit
may withdraw from the unit and bargain on an individ-
ual basis. Deklewa, on the other hand, addresses the
bargaining obligations of an employer and a union in
an 8(f) relationship.11 Deklewa holds that, on expira-
tion of an 8(f) agreement, an employer is not obligated
to negotiate a successor agreement but, rather, may
withdraw recognition from the union as the representa-
tive of the employer’s employees.
In applying Deklewa to multiemployer bargaining, it
must be recognized that in multiemployer bargaining
the employer association assumes the role of the em-
ployer in the relationship with the union. It is beyond
dispute that
[o]nce the unit is formed, the multi-employer
group becomes the employer for purposes of bar-
gaining. . . . The bargaining obligations of the
‘‘multi-employer’’ are substantially the same as
for any employer.12
985JAMES LUTERBACH CONSTRUCTION CO.
13 It is inherent in the nature of multiemployer bargaining that each
employer member is ‘‘bound in collective bargaining by group rather
than by individual action.’’ Ruan Transport Corp., 234 NLRB 241,
242 (1978) (footnote omitted); see Kroger Co., 148 NLRB 569, 573
(1964); see generally NLRB v. Strong Roofing & Insulating, 393
U.S. 357 (1969).
14 287 NLRB 88 (1987).
15 Deklewa does not represent a judgment by the Board that labor
relations stability is unimportant in the 8(f) context. In explaining its
overruling prior law that permitted repudiation of 8(f) agreements,
the Board in Deklewa reasoned that ‘‘a rule that sanctions unilateral
contract repudiation . . . is not conducive to labor relations stabil-
ity.’’ 282 NLRB at 1383.
Moreover, in multiemployer bargaining, the actions of
the employer association are binding on the rep-
resented employers.13 Therefore, although an employer
has a right under Deklewa to withdraw recognition
from a union on expiration of an 8(f) agreement, it
does not follow that an employer in a multiemployer
bargaining relationship may exercise that right individ-
ually. Rather, in an 8(f) context, the employer associa-
tion may exercise the right granted employers under
Deklewa to withdraw recognition from the union on
expiration of the agreement. It is not the province of
the represented employers to do so individually.
Any employer that has timely withdrawn from mul-
tiemployer bargaining may, of course, individually
elect to withdraw recognition from the union on expi-
ration of the 8(f) agreement. See, e.g., Garman Con-
struction Co.14 Such individual action, however, is
predicated on the employer’s timely prior withdrawal
from multiemployer bargaining. As long as the em-
ployer remains in the multiemployer unit, it is bound
by the actions of its representative.
The absence of a Section 9 bargaining relationship
compels no different result. Although the employer, or,
in the multiemployer context, the employer association,
is not required to continue recognition of the union be-
yond contract expiration, it is certainly not barred from
doing so. As long as the parties continue their relation-
ship, the Retail Associates’ rules limiting withdrawal
from multiemployer bargaining should apply, because
they seek to effectuate the statutory objectives of main-
taining bargaining stability and avoiding industrial
strife. Indeed, the rules do more to provide bargaining
stability in the 8(f) context, where not only withdrawal
from multiemployer bargaining units but also total
withdrawal of union recognition is possible. Thus, the
Retail Associates’ rules permit employers represented
by the employer association to negotiate successor 8(f)
agreements without fear that some of the members will
seek to gain competitive advantage by withdrawing
recognition from the union.15
II.
Members Stephens and Cohen state that in cases
where an employer was part of a multiemployer unit,
they are unwilling to bind the employer to multiem-
ployer bargaining for a successor contract in the 8(f)
setting based on what they term ‘‘mere inaction.’’ We
disagree with their premise that an employer’s delega-
tion of its bargaining rights to a multiemployer asso-
ciation constitutes ‘‘mere inaction.’’ Absent some time
limitation in the authorization signed by the employer,
the designation of the multiemployer association as the
employer’s bargaining agent continues until the em-
ployer acts to withdraw the agency authority. To rec-
ognize this principle is to do no more than respect a
‘‘fundamental polic[y]’’ of the Act, ‘‘freedom of con-
tract.’’ See H. K. Porter Co. v. NLRB, 397 U.S. 99,
108 (1970).
Members Stephens and Cohen refer to an 8(f) em-
ployer’s ‘‘right’’ to withdraw recognition from the
union on contract expiration. They assert that the em-
ployer must engage in a ‘‘distinct affirmative act’’ in
order to clearly and unmistakabaly waive that ‘‘right.’’
They are thus analogizing the ‘‘right’’ of an 8(f) em-
ployer to withdraw recognition to rights which are ex-
plicitly protected by the statute, which cannot be
waived without some ‘‘clear and unmistakable’’ mani-
festation. Cf. Metropolitan Edison Co. v. NLRB, 460
U.S. 693 (1983). We do not necessarily agree that this
is a sound analogy, but assuming arguendo that it is,
its application in this context is flawed because it fails
to recognize the import of the employer’s designation
of bargaining authority to the multiemployer associa-
tion. Once that authority has been delegated, the asso-
ciation becomes the employer’s agent, and the em-
ployer is bound by the association’s actions. It is there-
fore the association, not the employer, which is the re-
pository of this ‘‘right’’ to withdraw recognition from
the union, unless and until the employer timely with-
draws its agency authority. Because Retail Associates
prescribes the rules for timely withdrawal of that au-
thority, unless the employer has withdrawn within the
timeframe set forth in Retail Associates, only the asso-
ciation, and not the employer, can lawfully withdraw
from the bargaining relationship after contract expira-
tion.
The position of Members Stephens and Cohen also
intrudes deeply into the internal affairs of the multiem-
ployer associations. They would rewrite and, in effect,
extinguish the contractual agency relationship between
the multiemployer association and its member employ-
ers at the end of each contract with the union. The as-
sociation would have to reform at the end of each col-
lective-bargaining agreement, notwithstanding the con-
trary arrangement contracted for by the association and
its members.
Absent ‘‘a distinct affirmative action,’’ Members
Stephens and Cohen would allow employers part of a
multiemployer unit to withdraw at any time prior to
the multiemployer association’s reaching a new agree-
ment with the union. Their rule would have a serious
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 If the multiemployer association does not submit a list of em-
ployers it purports to represent, and there is no other ‘‘distinct af-
firmative action,’’ then Chairman Gould’s position, combined with
that of Members Stephens and Cohen, results in a rule permitting
any employer to walk away from the negotiations up until the point
the multiemployer association—or what’s left of it—reaches agree-
ment with the union.
17 Cf. South Texas AGC, 238 NLRB 156 (1978) (the multiem-
ployer association’s presentation to the union at the commencement
of negotiations of a list of employers who had withdrawn bargaining
rights was effective notice of withdrawal); Lenox Grill, 170 NLRB
1027 (1968) (the multiemployer association’s oral communication to
the union at the commencement of negotiations that the respondent
had withdrawn from the association was effective notice of with-
drawal).
destabilizing effect on multiemployer bargaining in the
8(f) setting, contrary to the congressional intent dis-
cussed above.
Chairman Gould also requires an affirmative show-
ing of commitment to bargaining for a successor con-
tract, and therefore his concurrence suffers from the
same flaws as the plurality opinion. In addition, his
concurrence appears to have a serious internal incon-
sistency of its own. On the one hand, he claims that
the Retail Associates’ rule is ‘‘inapplicable to multi-
employer bargaining in the construction industry.’’
(Emphasis added.) On the other hand, he would release
an individual employer from the multiemployer unit if
it ‘‘notif[ies] the association and the union prior to the
beginning of negotiations that it has withdrawn from
the association,’’ which is precisely what an employer
must do if the Retail Associates’ rule is applicable ‘‘to
multiemployer bargaining in the construction indus-
try.’’
The practical effect of today’s decision, by combin-
ing Chairman Gould’s concurrence with ours, is that
any employer named on the list given by the multiem-
ployer association to the union at the commencement
of negotiations for a successor agreement is bound to
any ensuing contract.16 Chairman Gould’s concurrence
does not address the situations where the multiem-
ployer association mistakenly lists the name of an em-
ployer that submitted its resignation to the association,
or mistakenly omits the name of an employer that has
not withdrawn its bargaining rights from the associa-
tion. Our position would include in the unit any em-
ployer that has not notified the union, prior to the
commencement of negotiations, of its withdrawal from
the multiemployer association.17
III.
Turning to the facts of this case, it is undisputed that
the Respondent, for many years prior to the 1990 ne-
gotiations, had designated the AGC as its agent for the
purpose of negotiating collective-bargaining agree-
ments with Local 139. At no time prior to the negotia-
tions, which commenced on April 19, 1990, did the
Respondent, or any other party, notify Local 139 that
the Respondent had withdrawn that authority from the
AGC to bargain on its behalf. Indeed, both the AGC
and the Respondent acted, at all relevant times, as
though the Respondent remained a participant in the
multiemployer unit. Under the principles of Retail As-
sociates, therefore, we conclude, in agreement with the
judge, that the Respondent’s attempt to withdraw from
the multiemployer unit and to repudiate its 8(f) bar-
gaining relationship with Local 139 after negotiations
commenced was untimely. As we have set forth above,
we believe that although, pursuant to Deklewa, an em-
ployer is entitled to withdraw from a bargaining rela-
tionship after the expiration of an 8(f) contract, the Re-
spondent, having delegated its bargaining authority to
the AGC, no longer was entitled to withdraw individ-
ually from the bargaining relationship absent timely
withdrawal from the multiemployer unit. Local 139
was entitled to rely on the Respondent’s prior designa-
tion of the AGC as its bargaining agent, because it had
received no timely notice of the withdrawal of that
agency authority. Because, under the principles of Re-
tail Associates, the Respondent had not effected such
a timely withdrawal from the multiemployer unit, we
find the Respondent’s failure to abide by and honor the
collective-bargaining agreement reached during the
1990 multiemployer negotiations violated Section
8(a)(5) and (1) of the Act.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to adhere to and implement the
terms and conditions of the Area I Master Building
Agreement, negotiated between Allied Construction
Employers Association, the Associated General Con-
tractors of Greater Milwaukee, and the International
Union of Operating Engineers Local Union No. 139,
AFL–CIO, effective from June 1, 1990, until May 31,
1993.
987JAMES LUTERBACH CONSTRUCTION CO.
1 Henceforth, unless otherwise stated, all dates referred to in this
decision occurred in 1990.
2 On June 13, 1991, counsel for the General Counsel filed a mo-
tion to strike a portion of the Company’s reply brief designated ‘‘ap-
pendix A’’ (omitted from publication) on the ground that it included
a new argument regarding the credibility of witness Don Shaw
which neither she nor counsel for the Union had addressed in their
original briefs. Counsel for the General Counsel also filed a response
to appendix A.
On reviewing the Union’s original brief, I find that it raises an
issue of credibility between the testimony of witnesses Don Shaw
and William Lutterbach, regarding the disposition of an employer list
at the outset of negotiations, on April 19. I, therefore, find no merit
in the General Counsel’s motion and deny counsel’s request to file
a response to appendix A.
3 I have found no issues of credibility regarding my findings of
fact.
4 Sec. 8(f) of the Act provides:
It shall not be an unfair labor practice under subsections (a) and
(b) of this section for an employer engaged primarily in the
building and construction industry to make an agreement cover-
ing employees engaged (or who, upon their employment, will be
engaged) in the building and construction industry with a labor
organization of which building and construction employees are
members (not established, maintained, or assisted by any action
defined in section 8(a) of this Act [subsection (a) of this section]
as an unfair labor practice) because (1) the majority status of
such labor organization has not been established under the provi-
sions of section 9 of this Act [section 159 of this title] prior to
the making of such agreement, or (2) such agreement requires
as a condition of employment, membership in such labor organi-
zation after the seventh day following the beginning of such em-
ployment or the effective date of the agreement, whichever is
later, or (3) such agreement requires the employer to notify such
Continued
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed to them by the Act.
WE WILL forthwith accept, give effect to, and imple-
ment the terms of the 1990–1993 collective-bargaining
agreement referred to above.
WE WILL make whole our employees covered by the
agreement for any loss of pay or other employment
benefits they may have suffered by reason of our re-
fusal to accept, give effect to, and implement the
aforesaid collective-bargaining agreement.
WE WILL make whole those fringe benefit funds that
did not receive the contributions required by the afore-
said collective-bargaining agreement.
JAMES LUTERBACH CONSTRUCTION CO.,
INC.
Lucinda L. Flynn, Esq., for the General Counsel.
Thomas W. Scrivner and Jonathan O. Levine, Esqs. (Michael,
Best Friedrich), of Milwaukee, Wisconsin, for the Re-
spondent.
Warren Kaston, Esq., of Pewaukee, Wisconsin, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Milwaukee, Wisconsin, on January 23 and
24, 1991, and on March 11 and 12, 1991. On an unfair labor
practice charge filed by the Union, International Union of
Operating Engineers Local 139, AFL–CIO, in Case 30–CA–
10989, the Regional Director for Region 30 issued a com-
plaint and notice of hearing on August 14, 1990, against the
Company, James Luterbach Construction Co., Inc. The com-
plaint, as amended at the hearing, alleges that the Company
violated Section 8(a)(5) and (1) of the National Labor Rela-
tions Act (the Act) by refusing to adhere to a collective-bar-
gaining agreement executed on or about June 28, 1990,1 by
the Union and two multiemployer associations.
In its answer, as amended at the hearing, the Company de-
nied that it had committed the alleged unfair labor practices.
Each of the parties timely filed a brief and a reply brief.2
On the entire record, including my observation of the wit-
nesses and their demeanor, and after considering the
posthearing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, with an office and place of
business at New Berlin, Wisconsin, is engaged as a general
contractor in the building and construction industry. The
complaint alleges, the answer admits, and I find, that during
the calendar year 1989, a representative period, the Com-
pany, in the course of its business operations, purchased and
received goods and materials valued at more than $50,000
from suppliers located outside the State of Wisconsin. I find
that the Company is, and has been, at all times material to
this case, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
International Union of Operating Engineers Local 139, AFL–
CIO is a labor organization within the meaning of Section
2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts3
The Company, founded by James Luterbach, currently its
vice president, has been a general contractor in the building
and construction industry for approximately 33 years. The
Company employs laborers, cement masons, carpenters,
bricklayers, and operating engineers. Typically, the Company
has had an average of 45 to 50 employees from those five
trades. Included in that employee group have been four or
five operating engineers. The Company has had collective-
bargaining relationships with the Unions representing the five
trades, respectively, for at least 20 years.
I also find from the testimony of William P. Luterbach,
the Company’s president since 1983, that its collective-bar-
gaining relationship with the Union has existed for more than
20 years. During that time, pursuant to Section 8(f) of the
Act,4 the Company recognized the Union as the exclusive
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
labor organization of opportunities for employment with such
employer, or gives such labor organization an opportunity to
refer qualified applicants for such employment, or (4) such
agreement specifies minimum training or experience qualifica-
tions for employment or provides for priority in opportunities for
employment based upon length of service with such employer,
in the industry or in the particular geographical area: Provided,
That nothing in this subsection shall set aside the final proviso
to section 8(a)(3) of this Act [subsection (a)(3) of this section]:
Provided further, That any agreement which would be invalid,
but for clause (1) of this subsection, shall no be a bar to a peti-
tion filed pursuant to section 9(c) or 9(e) [section 159(c) or
159(e) of this title].
5 The unit described in the Union’s petition was:
Included
All full-time and regular part-time equipment operators, welders,
apprentices, mechanics, apprentice mechanics, greasers and oil-
ers employed at or out of the Employer’s New Berlin,Wisconsin
facility,
Excluded
Office clerical employees, guards and supervisors as defined in
the Act, as amended.
collective-bargaining representative of its operating engi-
neers. The Company and the Union have been parties to a
series of multiemployer collective-bargaining agreements,
covering those employees, the most recent of which was ef-
fective from June 1, 1987, until May 31, and was entitled
‘‘Area I Master Building Agreement’’ (Area I or Area I
Agreement).
Prior to the 1987 agreement, the Allied Construction Em-
ployers’ Association (ACEA) negotiated contracts with the
Union on behalf of the Company and other members of the
Associated General Contractors of Greater Milwaukee
(AGC). The Company has been a member of AGC for ap-
proximately 20 years. Through the years, William P.
Luterbach has held a succession of offices in AGC, culminat-
ing in that of president, in 1987. Until 1987, AGC was a
member of ACEA. As president of AGC, Luterbach was its
representative on ACEA’s board of directors.
In early January 1987, AGC decided to withdraw from the
ACEA bargaining unit. In letters to the Union and the other
craft unions having collective-bargaining relationships with
its members, AGC announced its withdrawal of bargaining
authority from ACEA and stated that it was willing to begin
negotiating a new collective-bargaining agreement to become
effective on or after June 1, 1987. Attached to each letter
was a list of AGC contractors who had authorized AGC to
bargain with the recipient union for the 1987 collective-bar-
gaining agreement. Thus, attached to the letter addressed to
the Union was a list of nine AGC contractor employers, in-
cluding the Company.
In February 1987, AGC and ACEA agreed that henceforth,
the two associations would negotiate collective-bargaining
agreements as separate entities. Each would bargain on be-
half of its own member employers. However, AGC and
ACEA also agreed to bargain ‘‘alongside of, contiguous
with, and adjacent to and in conjunction’’ with each other.
In preparation for the 1987 contract negotiations with the
Union and other labor organizations, AGC and ACEA set up
a joint committee. The two associations signed the 1987
Area I collective-bargaining agreement with the Union as
separate entities.
During the negotiations leading to the 1987 Area I Agree-
ment between ACEA, AGC, and the Union, Company Presi-
dent Luterbach became a member of the joint bargaining
committee. He participated in a committee caucus on June
18, 1987, and sat with the committee during negotiations
with the Union on July 2, 1987.
In August 1989, AGC, by letter to its corporate members,
announced preparations for collective-bargaining negotiations
scheduled for 1990. Attached to the letter, was a list of the
AGC’s collective-bargaining committees and a collective-bar-
gaining authorization form. The letter showed that Company
President Luterbach was chairman of the committee charged
with bargaining for operating engineers. The collective-bar-
gaining authorization form had spaces for an employer to
check under ‘‘yes’’ or ‘‘no,’’ next to the Union’s name, to
indicate whether or not AGC was authorized to bargain for
the employer’s operating engineers. The Company did not re-
spond to this letter. Nor did the Company respond to a sec-
ond letter, dated August 15, from AGC to its corporate mem-
bers, who had not responded to the first letter. In that letter,
AGC asked for the return of its authorization form.
On August 30, 1989, the Company returned its collective-
bargaining authorization form to the AGC. The entries on the
form show that the Company authorized AGC to represent
it with regard to bricklayers, carpenters, cement masons, and
laborers. The Company did not mark either ‘‘yes’’ or ‘‘no’’
with respect to bargaining about its operating engineers with
the Union. AGC never asked the Company to remedy that
omission. AGC concluded that it was not authorized to bar-
gain with the Union on the Company’s behalf.
In February, the Union, in letters to ACEA and AGC, re-
quested negotiations for a new Area I Master Building
Agreement. The first bargaining session occurred on April
19. Company President Luterbach was present and chaired
the ACEA-AGC bargaining committee. He was the commit-
tee’s primary spokesman. In the give-and-take of negotia-
tions, at this early stage, Luterbach did most of the talking
for the employers.
Early in the meeting, on April 19, the Union asked for a
list of employers for whom the AGC and ACEA had bar-
gaining authority. The ACEA-AGC bargaining committee
provided the requested list to the Union. The list included the
Company as one of eight contractors from whom AGC had
received bargaining authority for negotiating with the Union.
On April 20, the Union filed with Region 30, a petition
in Case 30–RC–5090, seeking certification as the exclusive
collective-bargaining representative of the Company’s operat-
ing engineers.5 On the same date, the Regional Director for
Region 30 notified the Company of the petition. Thereafter,
the Union withdrew the petition because the Region was un-
able to process it within its time limits. On May 21, the
Union filed a second petition, which was similar to its first
petition in all material respects. On the same date, the Re-
gional Director notified the Company of the new election pe-
tition.
William Luterbach chaired the ACEA-AGC bargaining
committee at the next session of negotiations with the Union,
on May 10. Again, he was the spokesperson for the employ-
ers’ side. Luterbach continued as chairman of the employers’
bargaining committee at the third meeting, on May 22. How-
ever, the parties did not engage in direct negotiations. In-
stead, each side caucused in a separate room and negotiated
989JAMES LUTERBACH CONSTRUCTION CO.
6 The unit described in the Company’s petition was:
Included
All full-time and regular part-time equipment operators, mechan-
ics and truck drivers employed by the Employer at or out of its
facility located at 2880 South 171st Street, New Berlin, WI
53151.
Excluded
All clerical workers, guards and supervisors as defined in the
Act and all other employees.
through a Federal mediator. At no time, during the meetings
with the Union, at which he acted as the chair of the ACEA-
AGC bargaining committee, did Luterbach announce that he
was acting in a limited capacity, or that his Company had
withheld bargaining authority from that committee.
On May 29, William Luterbach learned in a conversation
with AGC’s executive vice president, Richard E. Snow, that
the Company’s name had appeared erroneously on the list of
employers which had authorized AGC to represent them in
bargaining with the Union. That same day, Snow confirmed
the conversation in a letter to Luterbach.
When the ACEA-AGC bargaining committee next met
with the Union’s bargaining committee, on May 30, William
Luterbach was absent. ACEA’s executive director, Henry S.
Hunt, announced that Bill Emory, an official of Klug and
Smith Company, was chairman of the employers’ committee.
The list of employers which the Union had received from the
ACEA-AGC bargaining committee on April 19, had included
Klug and Smith Company with the AGC members. There-
after, until the conclusion of the negotiations, Emory was
chairman of the employers’ committee and Luterbach ab-
sented himself from the negotiations.
By letter dated May 31, to the Union’s president and busi-
ness manager, Donald Shaw, William Luterbach announced
his withdrawal as chairman of the ACEA-AGC bargaining
committee and the Company’s intention to conduct its rela-
tions with the Union as an individual employer. Luterbach
wrote that any further role he might play in the negotiations
with the Union, would be as an advisor to the employers.
Luterbach explained his withdrawal as chairman and his de-
cision to abandon multiemployer bargaining as follows:
I am writing in response to recent developments be-
tween your union and the James Luterbach Construc-
tion Company. You know by now that those develop-
ments placed me in a position where I had no choice
but to resign as chairman of the negotiating committee
in the AGC/ACEA collective bargaining negotiations.
I am referring, in particular, to the recent filing by
by your union of two election petitions. In evaluating
the election issue it became clear to me that the com-
pany should exercise its rights under the law, as set
forth in the Deklewa case. It also became clear to me
that your union does not represent an uncoerced major-
ity of our employees in a bargaining unit that is appro-
priate under the law. Accordingly, we plan to proceed
on the basis of an individual relationship with your
union, if and when one is required by law.
Not until Luterbach’s letter of May 31, had the Union re-
ceived word that the Company had not authorized AGC or
ACEA to be the Company’s bargaining agent. Luterbach
made the revelation as follows:
Any further role that I might play in the industry ne-
gotiations with the [Union] would be as adviser to the
employers whose bargaining authority the associations
hold. Our company is not one of those contractors.
On May 31, the Company filed a petition with the Re-
gional Director of Region 30, for a representation election in
a unit of its operating engineers, truckdrivers, and mechan-
ics.6 The petition named the Union as the labor organization
claiming representative status for the described unit.
On June 26, the ACEA-AGC bargaining committee and
the Union reached an agreement, which they executed on
June 28. The agreement, the Area I Master Building Agree-
ment, is effective from June 1 until May 31, 1993. On July
2, and again on July 3, William Luterbach, on the Compa-
ny’s behalf, rejected union requests that it adhere to that
agreement. To date the Company has persisted in that re-
fusal.
B. Analysis and Conclusions
The General Counsel and the Union contend that the Com-
pany violated Section 8(a)(5) and (1) of the Act by refusing
to honor the 1990–1993 Area I Master Building Agreement,
which ACEA and AGC executed with the Union on June 28.
The Company urges rejection of the General Counsel’s and
the Union’s contention on two grounds. The initial ground is
that Board policies governing bargaining relationships arising
under Section 8(f) of the Act shielded the Company’s refusal
from the operation of Board policy regarding multiemployer
bargaining. The second component of the Company’s posi-
tion is that even if its obligations under the Board’s multiem-
ployer bargaining policy were unaffected by Board policies
governing 8(f) bargaining relationships, unusual cir-
cumstances excused its refusal to abide by the 1990–1993
Area I Master Building Agreement. Finding no merit in the
Company’s explanation, I agree that, by its refusal to adhere
to the current Area I Master Building Agreement, the Com-
pany has violated its bargaining obligation under the Act.
In Retail Associates, 120 NLRB 388, 395 (1958), the
Board announced the following guidelines for withdrawal
from multiemployer units:
We would accordingly refuse to permit the withdrawal
of an employer or a union from a duly established mul-
tiemployer bargaining unit, except upon adequate writ-
ten notice given prior to the date set by the contract for
modification, or to the agreed-upon date to begin the
multiemployer negotiations. Where actual bargaining
negotiations based on the existing multiemployer unit
have begun, we would not permit, except on mutual
consent, an abandonment of the unit upon which each
each side has committed itself to the other, absent un-
usual circumstances.
The Court in Charles D. Bonanno Linen Service v. NLRB,
454 U.S. 404, 412–413 (1982), approved the Board’s guide-
lines for multiemployer bargaining. Further, the Court in that
case upheld the Board’s determination that an impasse was
not an unusual circumstance permitting a union or an em-
ployer to withdraw unilaterally from multiemployer bargain-
ing. Id. at 416–417. In passing, the Court noted with ap-
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
proval, that the courts had upheld the Board’s decisions
‘‘that unusual circumstances will be found where an em-
ployer is subject to extreme financial pressures or where a
bargaining unit has become substantially fragmented. [Cita-
tions omitted.]’’ Id. at 411–412.
In applying the Retail Associates, supra, guidelines, the
Board has given them definition, particularly with regard to
the notice requirement. Thus, the Board requires that an em-
ployer seeking to withdraw timely from multiemployer bar-
gaining must give written notice to the union. J & L Paint-
ing Contractors, 239 NLRB 867, 870 (1978). Also, under
Board law, an employer’s notice to a multiemployer associa-
tion that it intends to withdraw from multiemployer bargain-
ing does not satisfy the employer’s obligation to afford writ-
ten notice to the union. Goodsell & Vocke, 223 NLRB 60,
66 (1976), enfd. 559 F.2d 1141 (9th Cir. 1977).
A formal delegation of bargaining authority is not required
to show an employer’s unequivocal intention to be bound by
a collective-bargaining agreement negotiated by a multiem-
ployer group. City Roofing Co., 222 NLRB 786, 788 (1976).
In Custom Colors Contractors, 226 NLRB 851, 853 (1976),
enfd. 564 F.2d 190 (5th Cir. 1977), the Board provided the
following guidance for determining an employer’s intention
to be bound:
The manifestation of an ‘‘unequivocal intention’’ to
be bound requires something less, however, than a sol-
emnly executed document signed and sealed with hot
wax. A commitment to bargaining on a multiemployer
basis will not be made to depend on he presence of a
formal associational structure among the bargaining
participants or on the formal delegation of authority
from the individual employer to the multiemployer
group. Nor will the Board, faced with outward mani-
festations of intent to engage in group bargaining, con-
sider as controlling an employer’s private manifestation
of dissent. An employer who, through a course of con-
duct or otherwise, signifies that it has authorized the
group to act in its behalf will be bound by that apparent
creation of authority [footnotes omitted].
In light of the teachings of Retail Associates, supra, and
its progeny, I find that the Company, by its conduct prior to
May 31, outwardly manifested to the Union an unequivocal
intention to bargain on a multiemployer basis. I also find that
the Company did not give timely notice of its withdrawal
from the ACEA-AGC bargaining unit. The record amply
supports these findings.
The Company and the Union have been parties to a series
of multiemployer collective-bargaining agreements covering
the Company’s operating engineers. In addition, Company
President Luterbach actively participated in this multiem-
ployer bargaining with the Union in 1987, as a member of
the ACEA-AGC bargaining committee in 1987. Those nego-
tiations produced the 1987–1990 agreement, which was ef-
fective until May 31. The Company considered itself bound
by that collective-bargaining agreement.
In 1989, AGC asked the Company to indicate on a form
whether it authorized AGC to bargain on its behalf in the
contemplated negotiations with the Union. The Company re-
turned the form without indicating ‘‘yes’’ or ‘‘no.’’ Neither
AGC nor the Company apprised the Union of this cir-
cumstance.
In February, the Union notified AGC and ACEA of its de-
sire to negotiate a new agreement. The associations agreed
to the Union’s request. However, in response to the Union,
there was no word from either the associations or the Com-
pany that the Company had not authorized the joint commit-
tee to bargain on its behalf. Nor did the Company or the as-
sociations advise the Union that William Luterbach’s partici-
pation in the forthcoming negotiations would not signify the
Company’s intention to be bound by the resulting agreement.
When negotiations began on April 19, the Union received
from the ACEA-AGC bargaining committee a list of employ-
ers who had authorized that committee to bargain on their
behalf. The Company’s name appeared on that list. Again,
neither the associations nor William Luterbach said or did
anything to apprise the Union that the Company’s name
should not have been on the list or that William Luterbach
was not negotiating for the Company. Indeed, William
Luterbach chaired the ACEA-AGC negotiating committee,
and was its spokesperson.
When negotiations between the Union and the ACEA-
AGC committee resumed on May 10, William Luterbach
chaired the joint committee, and was its lead negotiator.
Again, the Union received no inkling from Luterbach,
ACEA, or AGC that the Company had not agreed to multi-
employer bargaining.
On May 22, a third meeting between the Union and the
ACEA-AGC committee was scheduled. However, the parties
caucused in separate rooms and negotiated through a Federal
mediator. Again, William Luterbach chaired the employers’
committee. Again, neither Luterbach nor the associations
gave the Union any ground for suspecting that the Company
was abandoning multiemployer bargaining.
When negotiations resumed on May 30, William
Luterbach was absent. Bill Emory replaced him as chairman
of the ACEA-AGC bargaining committee. However, neither
the Company nor anyone on the management side of the ne-
gotiations gave any explanation of Luterbach’s absence, or of
his departure from chairmanship of the ACEA-AGC bargain-
ing committee, to the Union.
Finally, by his letter of May 31, William Luterbach, for
the first time, told the Union that the Company was abandon-
ing the multiemployer bargaining group. He also advised the
Union that he had resigned as chairman of the ACEA-AGC
bargaining committee and that the Company had not author-
ized the associations to bargain on its behalf with the Union.
Under Retail Associates, supra, the company’s effort to free
itself of the multiemployer bargaining relationship came too
late. However, the company claims that it is exempt from the
operation of Retail Associates.
I find no merit in the Company’s position that the policies
announced in John Deklewa & Sons, 282 NLRB 1375
(1987), exempted its conduct toward the Union from the re-
quirements of Retail Associates, supra, and its progeny. In
Deklewa, supra, the Board announced a set of principles ap-
plicable to bargaining relationships arising pursuant to Sec-
tion 8(f) of the Act. Absent from Deklewa is any reference
to either multiemployer bargaining or Retail Associates. Nor
has the Board given any indication that Deklewa limits the
application of Retail Associates. On the contrary, following
the issuance of its decision in Deklewa, the Board has con-
991JAMES LUTERBACH CONSTRUCTION CO.
sistently applied the requirements of Retail Associates to
multiemployer bargaining involving employers with 8(f) bar-
gaining relationships. E.g., Twin City Garage Door Co., 297
NLRB 119 (1989). Thus, I find that Deklewa does not bar
application of Retail Associates to the Company’s conduct in
this case.
The Company also argues that even if Deklewa, supra, did
not permit it to escape from multiemployer bargaining, un-
usual circumstances did. The unusual circumstances listed in
the Company’s posthearing brief include the assertion that
the Company did not authorize the AGC to bargain on its
behalf with the Union. However, as pointed out earlier,
Board law does not require a showing that the Company for-
mally authorized AGC to bargain on its behalf with the
Union. Instead, the Company’s intent to give such authoriza-
tion may be shown by ‘‘outward manifestations. Custom Col-
ors Contractors, supra.
Here, as set forth above, the Company’s conduct prior to
May 31 clearly manifested an intent to authorize AGC to
bargain with the Union on the Company’s behalf, through a
joint committee. Hillsdale Inn, 267 NLRB 982 fn. 2 (1983).
In any event, I find that the Company’s failure to authorize
AGC, in accordance with the latter’s procedure, to bargain
on its behalf for the 1990–1993 Area I collective-bargaining
agreement with the Union was not an unusual circumstance
under the Retail Associates doctrine.
The Company contends that the Union’s petitions for a
Board-held election among the Company’s employees, and
the Company’s petition for a Board-held representation elec-
tion among its employees, were unusual circumstances ex-
cusing compliance with Retail Associates. However, the
Company has not cited any Board authority which would
support this contention. Nor would such holding be likely
under current Board policy. See NLRB v. Custom Wood Spe-
cialties, 622 F.2d 381, 385 (8th Cir. 1980). For, as the Court
pointed out in Charles D. Bonnano Linen Service v. NLRB,
supra, the Board has found unusual circumstances ‘‘where an
employer is subject to extreme financial pressures or where
a bargaining unit has become substantially fragmented.’’
(Citing among other cases, Connell Typesetting Co., 212
NLRB 918 (1974), and Atlas Electrical Service Co., 176
NLRB 827 (1969).) I find, therefore, that neither the Union’s
two RC petitions, nor the Company’s RM petition were un-
usual circumstances which would have excused the Company
from adhering to the 1990–1993 Area I collective-bargaining
agreement with the Union.
Equally without merit are the Company’s arguments that
its good-faith doubt that the Union represented a majority of
its employees, and the Union’s insistence upon recognition
pursuant to Section 9(a) of the Act, were unusual cir-
cumstances excusing compliance with Retail Associates. The
Company has not shown any Board precedent in support of
these arguments. Indeed, under Board law, as set forth above,
neither a good-faith doubt of majority status, nor a demand
for recognition under Section 9(a) of the Act, qualify as un-
usual circumstances.
Nor has the Company shown that a conflict of interest re-
quired its untimely withdrawal from the negotiations leading
up to the Area I collective-bargaining agreement. The record
does not show that there was any actual conflict of interest
between the Company and the other employers represented
at these negotiations. William Luterbach, without elaborating,
testified that he saw a conflict growing out of his Company’s
differences with the Union regarding 9(a) recognition and the
unit placement of a mechanic. Neither he nor any other wit-
ness provided further substance to the Company’s claim. In-
stead the Company, in its posthearing brief, speculated on
how the Union could have harmed the Company at the bar-
gaining table. This speculation did not enter into William
Luterbach’s letter of July 31 to the Union. Nor did he men-
tion any of it in his testimony before me. In any event, the
Company did not show that the asserted conflict of interest
seriously threatened the vitality of its business. Accordingly,
I find that the Company has not shown a conflict of interest
which would allow it to withdraw from multiemployer bar-
gaining unilaterally. NLRB v. Custom Wood Specialities,
supra.
Finally, the Company would have me find that the Union
implicitly consented to its withdrawal from the Area I nego-
tiations. In support of its position, the company points, first,
to the Union’s continued bargaining with the ACEA-AGC
committee after July 31, and the Union’s failure to challenge
the Company’s withdrawal prior to the execution of the con-
tract on June 28. The final proof, according to the Company,
is found in the preamble to the 1990–1993 Area I agreement,
to which it refuses to adhere. The language upon which the
Company relies states:
This Master Agreement, made and entered into this 1st
day of June, 1990, by and between the Allied Construc-
tion Employers Association and the Associated General
Contractors of Greater Milwaukee, hereinafter called
the ‘‘Associations’’ for and on behalf of those persons,
firms or corporations who have authorized the Associa-
tions to negotiate and conclude a labor agreement on
their behalf, hereinafter called the ‘‘Contractor,’’ and
International Union of Operating Engineers Local No.
139, hereinafter called the ‘‘Union.’’
At the outset, I note that the Company is careful to ignore
conduct which strongly suggested that the Union had not
consented to the withdrawal. Thus, in early July, the Union
asked the Company to adhere to the 1990–1993 Area I col-
lective-bargaining agreement. The record also shows that on
June 28, the Union filed an unfair labor practice charge
against the Company, alleging that:
On or about May 31, 1990, and continuing to date, [the
Company] has failed and continues to fail to bargain
collectively in good faith with the union.
To prove that the Union consented by its conduct, the
Company must show that the conduct added up to ‘‘a course
of affirmative action which is clearly antithetical to the
[U]nion’s claims that the [C]ompany has not withdrawn from
multi-employer bargaining.’’ Preston H. Haskell Co., 238
NLRB 943, 948 (1978). The Company has failed to make
such a showing. Neither the Union’s failure to object to the
Company’s announced withdrawal, nor the Union’s accept-
ance of the preamble to the 1990–1993 Area I agreement
showed that the Union was consenting to the withdrawal an-
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The Company insists that the Board’s decisions in Publicity En-
gravers, 161 NLRB 221, 227–228 (1966); C & M Construction Co.,
147 NLRB 843, 845–846 (1964); and, Metke Ford Motors, 137
NLRB 950, 953–954 (1962), provide guidance in this case. I dis-
agree.
In Publicity Engravers, supra, the Board found acquiescence,
where the union never objected to the employer’s withdrawal, never
insisted that the employer adhere to the agreement reached after its
departure, and had accepted a contract which stated that it covered
only the employers named in it, who had ratified it, and which did
not include the employer’s name. In the instant case, the Union filed
an unfair labor practice charge alleging that the Company’s an-
nounced withdrawal violated the Act. Further, the 1990–1993 Area
I agreement did not expressly excuse the Company from adhering
to it. Indeed, unlike the union in Publicity, the Union, in the instant
case has demanded that the Company adhere to the agreement
reached in the multiemployer bargaining.
In C & M Construction Co., supra, the Board found consent to
untimely withdrawal, where the union showed interest in separate
negotiations and did not insist that the employer was bound by the
multiemployer agreement. In the instant case, the Union has dem-
onstrated an abiding interest in obtaining the Company’s adherence
to the Area I agreement, and has not sought a separate agreement
with the Company.
In Metke, supra, the Board found consent where the union raised
no objection to the omission of the employer’s name from a list of
employers represented in the multiemployer bargaining group. In the
case before me, the only list which the Union received, announced
that the Company had authorized AGC to bargain on its behalf.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
nounced in William Luterbach’s letter of July 31.7 On the
contrary, the Union, by filing the unfair labor practice charge
in the instant case, and by insisting that the Company adhere
to the 1990–1993 Area I agreement, clearly showed that it
had not consented to the Company’s withdrawal from the
multiemployer negotiations. Reliable Roofing Co., 246 NLRB
716 (1979). Without the Union’s consent, the Company was
not free to withdraw from multiemployer negotiations and
thereafter refuse to adhere to the collective-bargaining agree-
ment reached between the ACEA-AGC bargaining committee
and the Union. Reliable Roofing Co., supra.
In sum, I find that the the Company’s withdrawal from
multiemployer bargaining was untimely, and that there were
neither special circumstances nor consent by the Union to re-
lieve the Company of its obligation to adhere to the 1990–
1993 Area I Agreement between ACEA, AGC, and the
Union. I further find that by failing to adhere to and imple-
ment that agreement on and after June 28, the Company has
violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. James Luterbach Construction Co., Inc. is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. International Union of Operating Engineers Local 139,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. All of the Company’s heavy equipment operators and
other employees covered under article 1, section 1.1 of the
Area I Master Building Agreement, effective from June 1,
1990, until May 31, 1993, constitute an appropriate unit for
the purpose of collective bargaining under the Act.
4. Since July 2, 1990, by refusing to comply with the
Union’s request that it adhere to and implement the Area I
Master Building Agreement, executed on June 28, 1990, be-
tween Allied Construction Employers Association, the Asso-
ciated General Contractors of Greater Milwaukee, Inc., and
the Union, the Company has refused to bargain with the
Union as the representative of the employees in the unit de-
scribed in paragraph 3, above, for purposes of collective bar-
gaining in violation of Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. I shall recommend that the
Company be ordered to adhere to and implement the Master
Building Agreement Area 1, effective from June 1, 1990,
until May 31, 1993. I shall also recommend that the Com-
pany be ordered to make its employees covered by that col-
lective-bargaining agreement whole for any loss of earnings
or other benefits suffered as a result of the Company’s fail-
ure to apply it, such compensation or other payments to be
computed as set forth in Ogle Protection Service, 183 NLRB
682 (1970), with interest thereon as prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). I shall also
recommend that the Company be ordered to make such other
payments as were required under the 1990–1993 Area I Mas-
ter Building Agreement, retroactive to June 1, 1990.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, James Luterbach Construction Co., New
Berlin, Wisconsin, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to adhere to and implement the terms and
conditions of the Area I Master Building Agreement, nego-
tiated between Allied Construction Employers Association
(ACEA), the Associated General Constractors of Greater
Milwaukee, Inc. (AGC), and the Union, International Union
of Operating Engineers Local Union No. 139, effective from
June 1, 1990, until May 31, 1993.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Accept, give effect to, and implement the terms and
conditions of the 1990–1993 Area I Master Building Agree-
ment, negotiated between ACEA, AGC, and the Union, and
give it retroactive effect to June 1, 1990, making its employ-
ees covered by that agreement whole for any loss of earnings
suffered since that date as a result of the Company’s failure
to implement the agreement.
(b) Pay to the appropriate fringe benefit trust funds the
contributions required under the 1990–1993 Area I Master
Building Agreement, between ACEA, AGC and the Union,
to the extent such contributions have not been made or that
993JAMES LUTERBACH CONSTRUCTION CO.
9 If this 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 read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
the employees have not otherwise been made whole for med-
ical and other expenses in accordance with that agreement.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary or useful
to the analysis of the amount of backpay due under the terms
of this Order.
(d) Post at its facility in New Berlin, Wisconsin, copies of
the attached notice marked ‘‘Appendix.’’9 Copies of the no-
tice, on forms provided by the Regional Director for Region
30, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.