Local No. 42, Asbestos Wkrs.

National Labor Relations Board - Board Decisions

Oct 4, 1971

193 N.L.R.B. 504 (N.L.R.B. 1971)

504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 42, International Association of Heat and
Frost Insulators and Asbestos Workers and Dela-
ware Contractors Association , Inc., Allied Con-
struction Industries Division . Case 4-CB- 1766
October 4, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On February 24, 1971, Trial Examiner David S.
Davidson issued his Decision in the above-entitled
proceeding, finding that Respondent had not engaged
in certain unfair labor practices and recommending
that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Charging Party and the General
Counsel filed exceptions to the Trial Examiner's
Decision with supporting briefs. The Respondent
filed cross-exceptions to the Trial Examiner's Deci-
sion and a supporting brief, and also filed answering
briefs to the exceptions of the Charging Party and the
General Counsel. The Charging Party filed an
answering brief to the cross-exceptions of the Respon-
dent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-exceptions
and supporting briefs, the answering briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as modified herein.
For purposes of collective bargaining the Respon-
dent represents the employees of Allied Insulation
Co., Delaware Insulation Co., and A. C. & S., Inc.
(hereinafter referred to as the insulation contractors
or employers). In 1967, the insulation contractors,
who had in prior years bargained individually with
the Respondent, agreed among themselves to bargain
jointly with the Respondent for a common set of
contract terms and conditions. The Respondent,
apprised of this decision prior to negotiations,
accepted this arrangement and joint bargaining
I Menard acted as employer spokesman throughout the course of
negotiations although at various times other employer representatives were
also present
2 Specifically, article I of the proposed contract stated
This agreement is entered into this day of 1970, by and between
culminated in agreement on a 3-year contract,
identical copies of which were signed by each
individual employer.
Several months prior to the July 15, 1970, expiration
date of these aforementioned contracts the employers
decided to bargain with the Respondent through the
Charging Party, Delaware Contractors Association,
Inc., Allied Construction Industries Division
(hereinafter referred to as DCA), as an insulation
contractors trade group of DCA. Toward this end, the
employers became full members of DCA and signed
statements of intent authorizing DCA, through
Vernon Menard, DCA's director of labor relations, to
bargain on their behalf and providing that any
agreement "shall be between [the Respondent] and
the Insulation Trade Group (A. C. & S., Inc., Allied
Insulation Co., and Delaware Insulation Co.) of the
Allied Division, Delaware Contractors Association."
Although it does not appear that these statements
were ever given or shown to the Respondent,
nonetheless the Respondent was soon apprised of the
fact that the DCA represented the three member-
employers and that Menard was appointed personal
bargaining representative for them. Following corre-
spondence and conversations between the parties
concerning these developments the Respondent's
business agent, Theodore Ryan, proposed May 19 as
the date for the parties' initial meeting.
At the first meeting, which was held in the offices of
DCA, Menard was introduced to the Respondent's
bargaining committee by employer representatives
who reiterated their desire to bargain through DCA
with Menard as their spokesman. The Respondent's
committeemen at first expressed reluctance to bargain
with DCA, and the employer representatives sought
to assure them that they had nothing to fear in dealing
with DCA. These preliminary matters out of the way,
Menard requested that the Respondent open the
bargaining session with a presentation of its contract
demands, and concluded the meeting with a sugges-
tion, approved by the Respondent, that he present at
the next meeting a proposal in contract form, which
he would revise from time to time to reflect areas of
agreement until final agreement was reached.
At the next meeting between the parties, held on
June 2, Menard,1 pursuant to the procedure outlined
at the previous session, presented to the Respondent's
committee a proposed contract which among other
things provided that DCA and the Respondent were
to be the sole contracting parties.2 The Respondent's
committee continued to make side comments about
[DCA j, acting as Negotiating Agent for its present and future
members , hereinafter referred to as Agent , Association , or Employer,
and the International Association of Heat and Frost Insulators and
Asbestos Workers' Local No 42 of Wilmington , Delaware , hereinafter
referred to as the Union.
193 NLRB No. 73
LOCAL NO. 42, ASBESTOS WKRS.
the employers' need for the DCA, but at this meeting
as well as three subsequent meetings (held on June 16
and July 1 and 13) substantial progress was made on
various provisions including those stipulating recogni-
tion of DCA as the contracting party. However, other
matters including wages and the unit description
remained unsettled and as no final agreement had
been reached before the termination date of the 1967
agreements , the Respondent struck the three employ-
ers on July 15. At the time Menard issued to the press
a statement setting forth the state of bargaining
including DCA's last wage offer.
On July 20, at the first meeting following com-
mencement of the strike, the Respondent's commit-
teemen took strong exception to Menard's news
release and stated that they would not sign an
agreement with DCA, although they recognized the
employers' right to choose Menard as their spokes-
man. The parties again met twice in the months of
July, August, and September and, while some
understandings were reached, the Respondent stead-
fastly refused to execute any contract to which DCA
was a party and demanded that the employers alone
sign separate identical agreements . On November 12,
Menard met the Respondent's last wage demand,
leaving the identity of the contracting parties as the
only unresolved matter . Following another unsuccess-
ful meeting , the employers finally agreed on Novem-
ber 24 to sign separate identical contracts to which
DCA was not a party. Thereupon, the strike ended.
On these facts the Trial Examiner concluded that
there was a history of multiemployer bargaining
established in 1967, and that the multiemployer unit
of employees of the three contractors is an appropri-
ate unit for purposes of collective bargaining. The
Trial Examiner also found that at the outset of the
1970 negotiations and at all times thereafter the
Respondent agreed to, and engaged in, multiemploy-
er bargaining with the employers through the DCA.
Furthermore, he concluded that at the initial meeting
between the parties on May 19, or at least by the next
meeting on June 2, the Respondent was aware that the
employers intended to have the contract executed by
DCA. Finally, relying in part on the testimony of
Menard and Alexander Svabs, a representative of A.
C. & S., which he credited, the Trial Examiner
concluded that the Respondent accepted DCA as a
contracting party. Thus, at least until July 20 the
Respondent accepted the basic premise that DCA
would be a signatory to the agreement ultimately
reached and toward that end negotiated changes in
those provisions which clearly established DCA's
status. Finally, the Trial Examiner found that on July
20, and at all times thereafter, the Respondent refused
to sign any contract to which DCA was a party.
Despite the above findings, the Trial Examiner held
505
that the Respondent's conduct after July 20 was not
violative of its bargaining obligation because the
Respondent had not abandoned all reservations with
which it entered negotiations as in part evidenced by
its failure to agree on a unit description. We do not
agree. In our view the Respondent, once having
agreed to recognize DCA as a contracting party for
and on behalf of the employers at the outset of
multiemployer bargaining and having accepted that
basic premise throughout the following 2-month
period, could not later disregard DCA's status. We
think it is indispensable to the stability of collective
bargaining that, once recognition of the contracting
parties has been given and bargaining is well
underway, neither party may unilaterally withdraw
that recognition without the uncoerced consent of the
other party, at least in the absence of special
circumstances. As noted above, and as the Trial
Examiner found, the Respondent was fully apprised
of the employers' intention at the commencement of
negotiations and proceeded on the understanding that
the resultant contract would be "by and between" the
Respondent and DCA. On the facts of this case, we
find that the Respondent clearly assented to this
arrangement. Therefore, its subsequent refusal to
execute a contract with DCA was unjustified.
Although, as the Trial Examiner observed, the
Respondent made "side comments" about dealing
with DCA at the outset of bargaining and maintained
some "reservations" about dealing with DCA during
the bargaining, it would strain credulity to find that
those remarks, or unexpressed doubts, constituted or
could constitute an unequivocal and timely rejection
of DCA as a contracting party. On the contrary, the
facts clearly show that in the course of bargaining
both parties accepted the basic premise that DCA
would be party to any agreement ultimately reached.
Our decision in Enterprise Association of Steam, etc.,
Pipefitters of New York, Local No. 638 (HV & A C
Contractors' Association, Inc.), 170 NLRB 385, is fully
in accord. Simply stated there, as here, the employees'
bargaining representative agreed to execute a contract
with an association of employers and later reneged on
its promise. The Trial Examiner in the instant case
erroneously distinguished the two cases on the basis
that in Enterprise the union agreed in writing to
recognize the employer association as the party
entitled to sign an agreement, whereas in the instant
case the Respondent never executed such a memoran-
dum. That distinction is illusory. In this case the
Respondent's commitment is reasonably to be in-
ferred from its course of conduct, and the absence of a
written statement does not alter the fact that the
agreement to sign a contract with DCA was reached.
In conclusion, we find that the Respondent agreed
to execute with DCA any agreement reached and
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in substantial negotiations on that basis and
by refusing to abide by that agreement and insisting
on contracts to which DCA was not a party violated
Section 8(b)(3) of the Act.
CONCLUSIONS OF LAW
1. DCA and each of its members are employers
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent has refused to bargain with
DCA within the meaning of Section 8(b)(3) of the Act.
4. The aforesaid unfair labor practice affects
commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
To remedy this unfair labor practice we shall order
that Respondent upon request offer to execute
contracts identical to those it executed with each of
the three insulation contractors on November 24,
1970, but incorporating therein, at appropriate places,
the designation and recognition of DCA as the
bargaining and contracting agent for said contractors.
Accordingly, our order requires that the names of the
individual employers be deleted and that the name
DCA, as agent for the three insulation contractors, be
substituted therefor.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
its officers , agents , and representatives , shall:
1. Cease and desist from refusing , upon request, to
execute with DCA, the bargaining contracts it
executed with Allied Insulation Co., A. C . & S., Inc.,
and Delaware Insulation Co. on November 24, 1970;
from refusing to substitute for the above-named
employers the name of DCA, on each of the
contracts ; from dealing directly or attempting to deal
directly with the above -named individual employers
as the contracting parties to the agreement reached on
November 24, 1970 , in derogation of its obligation to
recognize DCA, as the contracting party; and, from in
any like or related manner, refusing to bargain with
DCA in accordance with the requirements of the Act.
2. Take the following affirmative action which we
find will effectuate the policies of the Act:
(a) Upon request of DCA, offer to execute contracts
identical to those executed with Allied Insulation Co.,
A. C. & S., Inc ., and Delaware Insulation Co. on
November 24, 1970 , but incorporating therein, at
appropriate places, the designation and recognition of
DCA as the bargaining and contracting agent for said
contractors.
(b) Post at the Respondent's offices and meeting
halls copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms
provided by the Regional Director for Region 4, after
being duly signed by an official representative, shall
be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to members are customarily posted. Reasona-
ble steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Mail to the Regional Director for Region 4
signed copies of the notice for posting by members of
DCA, named in the Appendix, said employers being
willing, at all locations where notices to their
employees are customarily posted.
(d) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
3 See Enterprise Assn of Steam, etc., Pipefitters of New York, Local No
638 (HV & AC Contractors' Assn), 170 NLRB 385, Local 964, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO (Contractors &
Suppliers Association of Rockland County, New York, Inc.), 181 NLRB No.
154.
4 In the event that 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 be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request of Delaware Contrac-
tors Association, reexecute with said Association
the bargaining contracts agreed upon on Novem-
ber 24, 1970, and signed by Allied Insulation Co.,
A. C. & S., Co., and Delaware Insulation Co.,
incorporating therein, at appropriate places, the
name of Delaware Contractors Association, as
bargaining and contracting agent for the named
contractors.
WE WILL NOT bargain directly or attempt to
bargain directly with the above-named individual
employers as the contracting parties in derogation
of our obligation to bargain with said Association
as the contracting party.
LOCAL NO. 42, ASBESTOS WKRS. 507
Dated By
LOCAL No. 42,
INTERNATIONAL
ASSOCIATION OF HEAT
AND FROST INSULATORS
AND ASBESTOS WORKERS
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 1700 Bankers Securities Building, Walnut &
Juniper Streets, Philadelphia, Pennsylvania 19107,
Telephone 215-597-7601.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner: Pursuant to a
charge filed on September 22, 1970, by Delaware Contrac-
tors Association, Inc., Allied Construction Industries
Division, hereinafter referred to as DCA, a complaint
issued on November 6, 1970, alleging that Respondent
refused to bargain with the DCA as the representative of a
multiemployer unit consisting of the insulating employees
of its Insulation Trade Group. In its answer, Respondent
denies the commission of any unfair labor practices.
A hearing was held before me in Wilmington, Delaware,
on December 14 and 15, 1970. At the close of the hearing
the parties waived oral argument and were given leave to
file briefs which have been received from all the parties.
Upon the basis of the entire record in this case and from
my observation of the witnesses and their demeanor, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYERS
Delaware Contractors Association , Inc., Allied Construc-
tion Industries Division , is an association of contractors in
the State of Delaware which among other things engages in
collective bargaining on behalf of its members with various
unions . Delaware Insulation Co., Allied Insulation Co., and
A.C. & S., Inc., are insulating contractors engaged in
business in the State of Delaware . Each is a member of
DCA and, as found below , the three insulating contractors
have engaged in point collective bargaining with Respon-
dent for a multiemployer unit of their insulating employees.
During the past year A.C. & S., Inc., purchased materials
valued in excess of $50 ,000, which have been received
directly or indirectly from points outside the State of
i Siemons Marling Service, 122 NLRB 81
2 All dates which follow fell in 1970 unless otherwise indicated
Delaware. I find that DCA, Delaware Insulation Co.,
Allied Insulation Co., and A.C. & S., Inc., are employers
engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act to assert
jurisdiction herern.i
II. THE LABOR ORGANIZATION INVOLVED
Local No. 42, International Association of Heat and
Frost Insulators and Asbestos Workers, is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The 1967 Negotiations
In 1967, Delaware Insulation Co., Allied Insulation Co.,
and A.C. & S., Inc., agreed among themselves to bargain
jointly with Respondent to reach common contract terms
for the three employers. The three contractors apprised
Respondent of their intent, and the contractors and
Respondent met and negotiated jointly, arriving at a single
set of contractual terms which were embodied in three
separate identical contracts executed by Respondent with
each of the contractors and scheduled to expire on July 14,
1970.
The Beginning of the 1970 Negotiations
In early 1970,2 the contractors approached DCA and
inquired about bargaining through it. Delaware Insulation
Co. had been a member of DCA for several years, and A.C.
& S. had been an associate member, but Allied Insulation
Co. had not previously been a member. In February or
March, Allied and A.C. & S. became full members of DCA.
On March 23, Respondent sent letters to each of the
contractors requesting negotiations for new agreements.
The contractors referred the letters to Vernon Menard,
director of labor relations for DCA, and reaffirmed to him
their desire to bargain through DCA. On April 16, the
contractors executed statements, which they gave to
Menard, authorizing DCA to bargain on their behalf and
stating that any agreement reached was to be between
Respondent and the Insulators Trade Group of DCA.3
Menard wrote Respondent on that date informing
Respondent of the contractors' desire to bargain through
the DCA as a trade group of DCA and proposing a meeting
on May I 1 at the DCA offices.
On April 20, at a membership meeting, Respondent
adopted a resolution to the effect that it would not reply to
Menard's letter but would continue to communicate
directly with the contractors.
Late in April, the three contractors wrote Respondent
stating that they had formed the Insulators Trade Group in
DCA and had asked Menard to represent them in
negotiations. On May 5, Ryan wrote the contractors
proposing a meeting with them on May 19 without
mentioning DCA. Further communications followed as a
3 It does not appear that the statements of intent were given or shown to
Respondent
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
result of which a meeting was scheduled for May 19 at the
offices of DCA.
On May 19, the meeting was held. Menard of DCA,
Svabs of A.C. & S., Carter of Delaware, and Winthrop of
Allied attended for the contractors. For Respondent, a
negotiating committee headed by its chairman, Coney,
attended 4 At the outset of the meeting, Svabs and Carter
introduced Menard to the committee and explained that
they wished to bargain through DCA with Menard as their
spokesman.5 Respondent's committee expressed some
reluctance to deal with DCA, and the employer representa-
tives sought to reassure them that Respondent had nothing
to fear in dealing with DCA.
Menard asked for Respondent's contract demands, and
Coney read a list of 21 or 22 items. Menard stated that he
wanted to study them before making any response. Menard
outlined a procedure he wished to follow in the negotia-
tions, stating that he would present a proposal in contract
form at the next meeting, which he would revise from time
to time during the negotiations to reflect areas of agreement
until at the conclusion of the negotiations it would reflect a
complete agreement. Respondent expressed no opposition
to this procedure.
The Negotiations up to July 20
The next meeting was held on June 2 After a preliminary
response to Respondent's proposals, Menard presented
Respondent's committee with a proposal in the form of an
agreement between DCA and Respondent. Menard
suggested that the committee take the proposal with it and
study it, and reserve comment until the next meeting. He
explained that in drafting the proposal he had noted that
the provisions of the expiring agreements reflected some
disorganization as a result of growth through successive
negotiations and that he had sought to regroup various
provisions in more logical order. There followed some
discussion of the early provisions of the proposal. The
critical portions of the proposal insofar as this proceeding is
concerned were the following two articles.
ARTICLE I
Agreement
This agreement is entered into this day of
1970, by and between the Allied Division of the
Delaware Contractors Association, Inc., acting as
Negotiating Agent for its present and future members,
hereinafter referred to as Agent, Association, or
Employer, and the International Association of Heat
and Frost Insulators and Asbestos Workers' Local No.
42 of Wilmington, Delaware, hereinafter referred to as
the Union.
4 Although there is some conflict in the testimony as to whether
Respondent's business agent, Theodore Ryan, attended the meeting, I
credit Ryan's denial that he was present Ryan, however, attended all later
meetings
5 According to Menard and Svabs, employer representatives specifically
stated that they wished to negotiate a contract with DCA and Respondent
as the parties, and Respondent's representatives stated that they wished to
ARTICLE II
Recognition
Section 1. Of the Union: The Employer recognizes
the Union as the exclusive representative for all Heat
and Frost Insulators and Asbestos Workers, hereinafter
referred to as Employees performing work within the
work jurisdiction of the Union and within the territorial
coverage of this Agreement.
Section 2. Association Members: Any Employer
affiliating with the Agent subsequent to the execution of
this Agreement, and who shall work under this
Agreement, shall be required to accept the provisions of
it as a condition precedent to said affiliation. The
Union shall be notified within 24 hours of the affiliation
or withdrawal of said Employers.
Section 3. Bargaining Unit: There shall be one
bargaining unit for all covered Employees who work for
all Employers signatory to this Agreement for the area
and work jurisdiction covered. That bargaining unit
shall be the Allied Division of the Association named
herein.
Section 4. Signed Relations: Employees covered
herein shall not be permitted to work for an Employer
who is not a member of this Association, unless such
Employer first shall sign a copy of this Agreement, and
thereafter follow the conditions set forth herein. The
foregoing shall not apply, however, to an Employer with
whom the International Union has a separate Agree-
ment in force, provided said Agreement requires the
Employer to follow the conditions of this local
Agreement.
The parties met again on June 16 and July 1 and 13 and
negotiated from Menard's proposal and oral statements of
Respondent's demands. At the July 1 meeting , Menard
gave Respondent a new draft of his proposal intended to
reflect the results of the June 16 meeting . At each of the
meetings, some agreements were reached as to various
provisions of the proposal. According to Menard and
Svabs, by the end of the July 13 meeting, Respondent had
agreed with an addition to article I and article II, sections 1,
2, and 4, of the DCA proposal. According to them, at these
meetings Respondent's representatives voiced no objection
to entering into an agreement with DCA as a party, other
than perhaps in side comments.
The members of Respondent's negotiating committee all
denied that they agreed to article I or article II in any of
these meetings. They testified to the contrary that from the
time Menard's proposal was first presented to them, they
voiced opposition to entering into an agreement with the
DCA at each of these meetings, while also voicing some
specific objections to aspects of articles I and II which were
discussed during the negotiations.
negotiate as in the past but at no time refused to bargain with DCA
According to Coney and other members of Respondent 's negotiating
committee, the employer representatives did not state that they wanted a
contract between DCA and Respondent until the next meeting on June 2 1
find it unnecessary to resolve this conflict as it is clear that by June 2,
Respondent was aware of the employers ' intent
LOCAL NO 42, ASBESTOS WKRS. 509
Negotiations from July 20 through October 20
At midnight July 14, Respondent struck the three
insulating contractors. That night Menard gave a statement
to the press, setting forth the state of the negotiations
including DCA's last wage offer, which appeared in the
next day's newspapers.
On July 20, the next meeting between Respondent and
Menard and the representatives of the three contractors
was held. Respondent's representatives expressed great
displeasure with Menard's statements to the press and with
bargaining with DCA.
After some further discussion, however, the parties
continued to negotiate and continued to utilize the
proposals prepared by Menard as the basis for negotiations.
Respondent acknowledged the right of the insulating
contractors to be represented by Menard or anyone else of
their choosing in the negotiations. However, Respondent's
representatives took the position from then on that they
would not enter into any agreement to which DCA was a
party.6
On July 22, the same representatives for both sides met.
At that meeting, Respondent, for the first and only time in
the negotiations, gave the employer representatives a
written proposal in the form of separate contracts with each
contractor. At that time, Respondent's representatives
voiced objection to Menard's proposals on the ground that
successive drafts did not accurately represent agreements
reached. Menard objected to starting over on the basis of
Respondent's proposal, and the parties apparently contin-
ued to negotiate on the basis of Menard's latest proposal
which was given to Respondent at that meeting. Respon-
dent objected to articles I and II of the DCA proposal and
again stated that it would not enter into a contract with
DCA as a party.
On July 29, the parties met again. Respondent again
objected to articles I and II of Menard's draft. Respondent
objected that, as drafted, the agreement would permit any
contractor in DCA not regularly engaged as an insulating
contractor to perform insulation work and would require
Respondent to furnish men for that purpose.? In response,
Menard offered to modify the proposal to make the
Insulation Trade Group of DCA the contracting party.8
Respondent did not accept, but thereafter in conversation
with one of the contractors' representatives, Ryan offered
to enter into separate contracts with each of the contractors
naming Menard as their representative for bargaining
purposes.
A further meeting was held on August 5, following which
Menard prepared a new draft proposal which he mailed to
the members of Respondent's committee. He included a
reference to the Insulation Trade Group in the new draft. A
further meeting was held on August 26, but no agreement
was reached.
6 According to Menard, Ryan said that the Union would not have
anything more to do with DCA However, in fact, Respondent continued
to meet with Menard and the contractor representatives at DCA
headquarters , and Menard testified that at that meeting and thereafter
Respondent 's representatives stated that they wanted to deal with Menard
only as a spokesman for the three contractors I credit Ryan that he
acknowledged the contractors ' right to be represented by Menard as their
representative in negotiations
On August 31, Respondent mailed identical letters to
each of the three contractors in which it offered to enter
into separate identical agreements with each of the
contractors or a single contract with an association
restricted in membership to the three contractors . Respon-
dent stated that it would not sign an agreement with the
DCA.
Further meetings were held between Menard, the
contractors ' representatives , and Respondent's committee
on September 16 and 21 and October 12 and 20. On
September 16, the Union repeated its willingness to enter
into separate contractor agreements or an agreement with
an independent association , but Ryan said that Respondent
categorically refused to sign a contract with DCA. Menard
rejected these alternative proposals , and in meetings
thereafter the Union took the position that it wanted
separate individual contracts . On and after October 12,
Menard offered Respondent three alternative proposals for
settling this issue . They were an agreement with DCA as
originally proposed, separate agreements with the individu-
al contractors accompanied by a stipulation that the signing
of such agreements would not prejudice the position of
either side in this case , or oral agreement to terms and
conditions of employment accompanied by termination of
the strike . Until November 12, other issues remained in the
negotiations as well.
The Conclusion of the Negotiations
On November 12, the parties again met. At the
conclusion of the meeting, Menard met Respondent's final
wage demand, and the only remaining issue was the
identity of the contracting parties. On November 18, the
parties again met, and agreed to enter into separate
contracts with the three contractors, accompanied by
stipulations to be worked out. Menard and Respondent
each drew up stipulations to be added to the agreement to
permit it to be signed without waiver of rights or positions
in the instant case in which charges had already been filed.
However, they were unable to agree on the terms of
stipulation, and, on November 24, each of the employers
signed separate identical agreements with Respondent to
which DCA was not a party. The strike thereupon ended.
The agreements ultimately signed were prepared by
Menard who replaced the first and last pages of the final
draft of his proposal, as amended in the last negotiating
session, eliminating reference to DCA and identifying each
of the contractors as the contracting parties.
B. Concluding Findings
The General Counsel and the Charging Party contend
that Respondent assented to multiemployer bargaining
through DCA and thereafter refused to bargain in violation
of Section 8(b)(3) by refusing to enter into an agreement
7 This contention was also made at the July 22 meeting.
8 It appears that by this Menard meant the members of DCA engaged
full time in insulation work Insofar as appears the three contractors,
Delaware, Allied, and A C & S, were at that time the only insulation
contractors who were members of the Association There is no evidence
that a formal Insulation Trade Group previously existed or was thereafter
established
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with DCA covering the multiemployer unit. Respondent
denies that it agreed to multiemployer bargaining and
contends that it was entitled to insist upon executing
separate agreements with each contractor.
Although the General Counsel at the outset appeared to
rely on Respondent's conduct in the 1970 negotiations up
to July 20 as establishing Respondent's agreement to
multiemployer bargaining, it became apparent during the
hearing that Respondent had agreed to joint bargaining
with the three insulating contractors during the 1967
negotiations which were conducted jointly and resulted in
the execution of separate identical contracts. Accordingly, I
find that a multiemployer unit of the employees of the three
contractors engaged in performing insulating work consti-
tuted an appropriate unit for purposes of collective
bargaining.9
Once a multiemployer unit has been established as an
appropriate unit, the employers and the union are obligated
to bargain on a multiemployer basis, absent a timely
withdrawal from multiemployer bargaining by either side.10
Here in fact the Union did participate in joint negotiations
through the employers' designated representative but
refused to execute a single agreement with that representa-
tive, the DCA, as a contracting party. The General Counsel
and the Charging Party contend that this refusal constitut-
ed a repudiation of joint bargaining and violated Section
8(b)(3).
It is true that in a number of cases the Board has found
that insistence upon individual contracts with members of a
multiemployer association violates Section 8(b)(3). But the
violations did not lie in the mere insistence upon separate
contracts but in the fact that by their insistence upon
separate agreements and their conduct in negotiations the
unions had demonstrated an intent to drive a coercive
wedge between the associations and their members to
compel them to abandon the associations as their
representatives and to substitute individual for group
bargaining. )1
However, here, apart from Respondent's insistence upon
separate identical agreements which did not name DCA as
a party, its conduct otherwise did not demonstrate any
intent to compel the three insulation contractors to
abandon joint bargaining or DCA as their representative.
Although Respondent refused to acknowledge Menard's
initial letter , that letter was the first notice it had of the
contractors' desire to be represented in negotiations by
DCA. Thereafter, Respondent met with Menard and
continued to deal with him at all times as the contractors'
representative. Even when Respondent on and after July 20
took the position that it would not enter into a contract with
9 Local 19, International Brotherhood of Longshoremen , AFL-CIO
(Chicago Stevedoring Co, Inc), 125 NLRB 61, enfd as modified 286 F 2d
661 (C A 7), cert . denied 368 U S 820 Although Respondent sought to
characterize the 1967 Joint meetings as merely a matter of convenience to
avoid the necessity of separate meetings with each contractor , it is clear
from the testimony of Ryan and Svabs that Respondent understood that
the contractors wanted to negotiate jointly for common terms and
negotiated toward a single set of contractual terms to be embodied in
separate identical agreements
10 Retail Associates, inc, 120 NLRB 388, The Evening News Association,
154 NLRB 1482, enfd 372 F 2d 569 (C A 6)
11 Westchester County Executive Committee (Builders Institute of
Westchester & Putnam Counties, Inc), 142 NLRB 126, Carpet, Linoleum and
DCA as a party, it recognized the contractors' right to
bargain jointly through Menard as their representative.
Although the August 31 letters were sent to the contractors
directly and not Menard, in these letters Respondent did
not seek to defeat joint bargaining by the contractors but
indicated willingness to enter into separate contracts with
the contractors or a single agreement with the three
contractors and apart from suggestions made directly to the
contractors as to the form the agreement might take, there
is no evidence that Respondent ever sought to negotiate
individually with any of the contractors. Up to the
conclusion of the negotiations and the execution of the
contracts, Respondent continued to negotiate with Menard
as the contractors' representative. It is of some significance
that, despite the fact that separate agreements were signed,
the grievance procedure set forth in the agreements
provides for grievances to be handled by a Joint Trade
Board consisting of three employers and three members of
Respondent.12
In these circumstances I cannot conclude that the
Union's refusal to sign an agreement with DCA as a party
indicated an intent to compel the contractors to abandon
joint bargaining and to bargain with Respondent as
individuals . If joint negotiations resulting in the execution
of separate identical contracts are sufficient to establish an
obligation to bargain on a multiemployer basis, then joint
bargaining accompanied by willingness to execute separate
identical agreements should be sufficient to satisfy the
multiemployer bargaining obligation so established.
Both the General Counsel and the Charging Party would
nonetheless equate Respondent's refusal to enter into an
agreement with DCA with a withdrawal from multiemploy-
er bargaining. The General Counsel contends that this
equation has been established by the Board's decision in
Enterprise Assn. of Steam, etc. Pipefitters of New York, Local
No. 638 (HV & AC Contractors' Assn.), 170 NLRB No. 44.
However, in that case a complete agreement was negotiated
between the union and an association, and the union had
signed a memorandum in which it agreed to execute a
formal agreement with the association at a later date. When
the union later insisted on separate agreements with the
employer-members of the association, it directly violated its
obligation under the Act to embody the understanding it
had reached in a written agreement . 13 But it does not follow
from that decision that participation in multiemployer
negotiations with the representative of the employers
requires execution of an agreement with their representa-
tive absent the circumstances present in that case.
The Charging Party contends that once bargaining with
an association is undertaken , the association becomes the
Soft Tile Layers Union, Local 1238 (Northwest Floor Covering Association,
Inc), 183 NLRB No. 7, and cases cited therein. In Local 964, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO (Contractors &
Suppliers Association of Rockland County, New York, Inc), 181 NLRB No
154, the union sought to destroy an existing multiemployer unit and to
compel its members to join another association or adhere to the agreement
negotiated with it
12 This provision appeared in the DCA proposal before July 20 when
the withdrawal from multiemployer bargaining is alleged to have occurred
and remained unchanged in the final agreement
13 See Chauffeurs, Teamsters and Helpers Union , Local 186 (Max Rudolf
Trucking Company), 172 NLRB No 74
LOCAL NO. 42, ASBESTOS WKRS.
entity with which the union is obligated to contract and is
not the mere representative of the employers in bargaining.
Respondent relies on the decision in Contractors and
Suppliers Association of Rockland County, New York, supra,
in support of this contention. However, as already noted
above, the facts in that case showed a clear intent to
undermine the multiemployer bargaining for which a
history had been established and to replace it by bargaining
on a different basis. The entity for which Respondent here
is obligated to bargain is the multiemployer unit consisting
of the employees of the three existing insulation contractors
with whom Respondent has historically dealt. The contract
proposed by DCA in fact would enlarge upon that entity by
adding any future members of DCA engaged in the
insulation trade to that unit. While nothing prevented the
parties from entering into such an agreement, I am not
persuaded by any of the arguments made to me that
Respondent could only satisfy its obligation to bargain for
a multiemployer unit of the employees of the three
contractors by entering into an agreement with DCA.
The General Counsel and Charging Party both contend
that practical consequences destructive of the multiemploy-
er unit flow from the execution of separate identical
agreements . The General Counsel contends that with
separate agreements if the Union were to strike one
contractor, the others would not have the right to lock out
their employees to defend the integrity of the unit and
prevent whipsawing. But, as already stated, the existence of
a multiemployer unit is not inconsistent with the signing of
separate identical agreements . Multiemployer bargaining
depends upon substance and not upon form. In the face of
a bargaining history establishing a multiemployer unit, the
employers' right to lock out in the event of a selective strike
would not be affected by the form of the agreements
executed. i 4
The Charging Party contends that if Respondent is not
compelled to sign an agreement with DCA, each of the
contractors would be free to amend its contract with
Respondent at will, and that DCA would have no rights
under Section 301 of the Act or in NLRB proceedings.
However, absent timely withdrawal from the multiemploy-
er unit , Respondent is not free to bargain with the
contractors on a single-employer basis regardless of the
form of the contract. While it may be true that DCA will be
unable to bring suit on the contracts under Section 301
unless a party to them, its capacity to sue is not essential to
preservation of the multiemployer unit . The Charging Party
is not specific as to the respect in which DCA's rights before
the Board are diminished by Respondent's refusal to sign
an agreement with it, but at least insofar as any attack on
the integrity of the unit is concerned, DCA has standing
before the Board to defend the unit
There remains for consideration the contention that
during the contract negotiations Respondent agreed to
enter into a single multiemployer agreement with DCA and
then reneged on its commitment. The facts relating to this
contention are in dispute.
According to Menard and Svabs, by the end of the July 1
15 In David Friedland Painting Co, Inc, 158 NLRB 571, enfd 377 F 2d
983 (C A 3), on which the General Counsel relies, it was not mere absence
of association membership which deprived the employer of the right to lock
511
meeting, Respondent had agreed to articles I and II,
sections 1, 2, and 4, of the DCA proposal, with the addition
of a sentence to article II, section 2, providing that any
employer who withdrew from DCA would remain bound
by the agreement. They testified that while Respondent
during the early negotiations raised some questions as to
the content of these articles, it did not object to entering
into an agreement with DCA. Rather, according to them,
Respondent questioned the significance of the date to be
inserted in the blank in article I and the effect of an
employer's withdrawal from DCA during the term of the
agreement which resulted in the addition of the sentence to
article II, section 2. Menard and Svabs conceded that
Respondent did not agree to article II, section 3, which
describes the bargaining unit, but Menard testified that the
only objection voiced by Respondent to that section was
fear that the term "covered Employees" in that section
might somehow obligate Respondent's members to join
DCA.
Menard conceded that Respondent's representatives
consistently questioned the contractors as to why they
wanted to bargain through DCA and that during the May
19 and June 2 meetings side comments were made raising
this question. He did not recall whether such comments
were made after June 2, but he and Svabs testified that from
June 2 until July 20 no formal objection was made to
contracting with DCA.
Ryan, Respondent 's business agent, testified on the other
hand that at every meeting he attended he voiced objection
to the whole first page of the DCA proposal which
contained articles I and II, and all members of Respon-
dent's negotiating committee denied that they agreed at any
time to articles I and II of the DCA proposal. Yet Ryan also
conceded in an affidavit which he acknowledged at the
hearing that Respondent tentatively agreed to article II,
section 1, of the proposal, and his testimony also confirms
that a sentence was added to article II, section 2, of the
proposal as a result of an objection raised by Respondent.
It is clear from the communications which preceded the
negotiations that Respondent entered into negotiations
with DCA as a participant with considerable reluctance
which it voiced to the contractors individually and to
Menard at the outset of the negotiations. Yet it also is clear
that despite its expressed reluctance Respondent proceeded
to negotiate on the basis of the proposal presented by
Menard on June 2. I find it difficult to credit the testimony
of the Respondent's committee members that they were
unaware that the contractors desired an agreement between
DCA and Respondent until they saw the June 2 proposal or
that they felt compelled to accept that proposal as the only
document from which they could negotiate. I credit
Menard and Svabs that until July 20 the parties negotiated
on the basis of Menard's proposal toward putting articles I
and II in acceptable form without rejecting the basic
premise of those articles that a single agreement would
ultimately be reached naming DCA as a party.
At the same time, while I find that Respondent did agree
to most of the language in articles I and II, I find it
out his employees but a finding that his employees were not part of the
multiemployer unit being struck
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
impossible to conclude that Respondent had abandoned all
the reservations with which it entered the negotiations. As
Menard's testimony indicates, he was only concerned with
formal objections voiced by Respondent's negotiators, and
side comments were made objecting to the changed method
of dealing on May 19 and June 2 and possibly later. More
important, the description of the bargaining unit, certainly
a crucial element of any agreement with DCA, had not
been settled by July 20 when Respondent announced that it
would not enter into an agreement with DCA Whatever
objection Respondent may have voiced to article II, section
3, which described the unit, that description in conjunction
with the other terms of articles I and 11 would have changed
the relationship from a simple bargaining relationship
between Respondent and the three contractors with which
it had historically dealt into a relationship between
Respondent and an open-ended multiemployer unit
including insulating employees of any employer in the area
which became a member of DCA Absent agreement upon
the unit descnption, I find it difficult to conclude that
Respondent had more than tentatively agreed to enter into
a contract with DCA before July 20 when and after which it
rejected a single agreement with DCA as the objective of
the negotiations.
But even assuming that Respondent had agreed without
reservation to enter into an agreement with DCA before
July 20 the facts in this case would still differ significantly
from those in Enterprise Assn. of Steam, etc., Pipefitters of
New York, Local No. 638 (HV & AC Contractors' Assn.),
supra. Here Respondent did not reach a complete
agreement with DCA and then refuse to execute it. Here at
most during the initial negotiations, Respondent agreed to
enter into an agreement with DCA and then withdrew from
that commitment while continuing to negotiate with the
contractors' representative for a single set of terms and
conditions of employment to cover the employees of the
three contractors then employing insulating employees in
the existing multiemployer unit There is no contention that
Responder L'S position after July 20 was taken to defeat or
frustrate the possibility of reaching any agreement with the
contractors, and in view of Respondent's continued
willingness to negotiate with the three contractors jointly
through their chosen representative, I do not find that
Respondent's insistence on a contract which did not name
DCA as a party was intended to defeatjoint bargaining.
In sum, I have found that, while Respondent was
obligated to negotiate with the contractors jointly through
their chosen representative, the matter of the identity of the
contracting party or parties remained an appropriate
15 In view of this conclusion. I find it unnecessary to consider other
contentions by Respondent in support of its position
is In the event no exceptions are filed as provided by Section 10246 of
the Rules and Regulations of the National Labor Relations Board, the
matter for resolution through collective bargaining. Al-
though the difference in consequences between an
agreement with DCA and agreements with the contractors
may appear to be slight and Respondent 's adoption of a
firm position in this case appears to have been motivated at
least in part by pique at Menard 's conduct in releasing news
of the negotiations to the press , in the negotiations
Respondent also expressed concern over the possible
consequences of signing a DCA agreement with respect to
its obligations and rights concerning other employers who
might be or become members of DCA. Whether its fears
were well- or ill-based , whether they might have been
otherwise resolved in negotiations without rejecting an
agreement naming DCA as a party, I cannot conclude that
Respondent could have satisfied its obligation to bargain in
the established multiemployer unit only by accepting the
employers ' representative as a contracting party.15
Accordingly, I shall recommend that the complaint be
dismissed.
Upon the basis of the above findings of fact and the
entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Delaware Contractors Association, Inc., Allied
Construction Industries Division, Delaware Insulation Co.,
Allied Insulation Co., and A.C. & S., Inc., are employers
within the meaning of Section 2(2) and (6) of the Act.
2. Local No. 42, International Association of Heat and
Frost Insulators and Asbestos Workers, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All employees of Delaware Insulation Co., Allied
Insulation Co., and A.C. & S., Inc., engaged in performing
insulation work constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the Act.
4. Respondent is the representative of the employees in
the unit described in paragraph 3 for purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. The General Counsel has failed to establish that
Respondent refused to bargain within the meaning of
Section 8(b)(3) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: is
ORDER
The complaint is dismissed in its entirety.
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
be deemed waived for all purposes