The Leapley Co.

National Labor Relations Board - Board Decisions

Mar 14, 1986

278 N.L.R.B. 981 (N.L.R.B. 1986)

LEAPLEY CO. 981
The Leapley Company and Local Union 26 , Interna-
tional Brotherhood of Electrical Workers, AFL-
CIO. Case 5-CA-15157
14 March 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 3 February 1984 Administrative Law Judge
Sidney Barban issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party
filed answering briefs in support of the judge's de-
cision.1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended. Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, The Lea-
pley Company, Washington, D.C., its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
I The General Counsel filed a motion to strike certain portions of the
Respondent 's brief and an attachment to that brief describing certain al-
leged events not encompassed by the stipulated record. The General
Counsel's motion is granted , and the additional representations have not
been considered.
Charles L. Posner, Esq., for the General Counsel.
Frank Kollman, Esq. (Blum, Yumkas, Mailman &
Gutman), of Baltimore, Maryland, for the Respondent.
Brian A. Powers, Esq. (O'Donoghue & O'Donoghue), of
Washington, D.C., for the Charging Party.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge. This
matter was submitted to the Division of Judges on a stip-
ulated record, executed by the parties on September 22
and 26, 1983, and assigned to me for the issuance of a
decision and other appropriate action.'
The complaint in this matter alleges that the above-
named Respondent violated Section 8(a)(1) and (5) of the
National Labor Relations Act by alleged untimely with-
drawal from multiemployer bargaining by withdrawing
authorization to Washington, D.C. Chapter, National
Electrical Contractors Association (the Association) to
represent Respondent in collective bargaining with the
above-named Charging Party (the Union) and by refusal
to bargain with the Union except on an individual basis.
The answer denies the unfair labor practices alleged,
but admits allegations sufficient to justify the assertion of.
jurisdiction in this case under current standards of the
Board (Respondent, an electrical contractor in the build-
ing and construction industry, with an office and place of
business in the District of Columbia, in a recent annual
period performed services valued in excess of $50,000 in
States outside the District of Columbia), and to support a
finding that the Union is a labor organization within the
meaning of the Act.
On the entire record in this case, and after due consid-
eration of the briefs filed by the General Counsel, Re-
spondent, and the Union, I make the following
FINDINGS OF FACT
A. The Union 's Representative Status
It is stipulated and I find that since April 19, 1979, the
Union has been and continues to be the duly designated
collective-bargaining representative of Respondent's em-
ployees in each of the following units (referred to as
Unit A and Unit B), which are appropriate units for the
purposes of collective bargaining within the meaning of
the Act:
Unit A consists of "All residential wiremen and res-
idential wiremen trainees who perform construction,
renovation and alterations of electrical facilities
within the areas covered by the current contract be-
tween the Union and the Association for speculative
high rise apartments, schools, churches, stores and
warehouses and [not] over five (5) stories in one
common building, gasoline service stations and
building of four (4) stories or less, excluding all
other employees, guards and supervisors as defined
in the Act."2
Unit B consists of "All journeymen wiremen, ap-
prentices, foremen and sub-foremen who perform
work within the jurisdiction of the Union as set
forth in Section 3.03 of the current Inside Wiremen
Agreement bgtween the Union and the Association,
excluding all other employees, guards and supervi-
sors as defined in the Act."
B. The Collective-Bargaining Agreements
At the times material to this proceeding, the Union
was accustomed to negotiate bargaining agreements cov-
ering the two units set forth above with the Association,
for the employers who had authorized the Association to
represent them by the execution of certain "Letters of
Assent." On April 9, 1979, Respondent signed two such
"Letters of Assent," one for each of the two units. The
8 I have inserted the bracketed word "not." See par . 6 of the com-
plaint , which was admitted and also Exh . 5A attached to the stipulation
' The complaint was issued on May 26, 1973, based on a charge filed of facts setting forth "THE TYPE OF WORK COVERED BY THIS
February 28, 1983. AGREEMENT."
278 NLRB No. 140
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two forms are identical except that one is designated as
covering the "residential " unit (Unit A) and the second
for the "inside" unit (Unit B). They read as follows:
LETTER OF ASSENT-A
In signing this letter of assent, the undersigned firm
does hereby authorize the Washington, D.C. Chap-
ter, N.E.C.A. as its collective bargaining representa-
tive for all matters contained in or pertaining to the
current approved residential labor agreement be-
tween the Washington D.C. Chapter, National
Electrical Contractors Association and Local Union
26, IBEW. This authorization, in compliance with
the current approved labor agreement, shall become
effective on the 9th day of April, 1979. It shall
remain in effect until terminated by the undersigned
employer giving written notice to the Washington,
D.C. Chapter N.E.C.A., and to the Local Union at
least one hundred fifty (150) days prior to the then
current anniversary of the aforementioned labor
agreement. 3
Both letters of assent were signed by the president of
Respondent and the business manager of the Union.
At the time these Letters of Assent were executed on
April 9, 1979, there was in effect between the Union and
the Association a "residential" agreement due to expire
on May 31, 1979. This was followed by an agreement ef-
fective from June 1, 1979, through April 30, 1981, and a
second successor agreement effective from May 1, 1981,
through April 30, 1983. As of the date of the stipulation
of facts "[t]he Association and the Union are currently
engaged in negotiations over the terms for a new 'resi-
dential' agreement to succeed the agreement that expired
on April 30, 1983; in the interim the Association and the
Union are continuing to apply the terms of' the contract
which expired on April 30, 1983.
It is noted that the "residental" contracts which ex-
pired on May 31, 1979, and April 30, 1981, provided that
a party desiring to change or terminate the agreement
must give not less than 120 days' notice "prior to the an-
niversay date of any year," stating the nature of the
changes sought, and further providing that the original
provisions of the contract remain in effect until "a satis-
factory conclusion is reached." In the contract expiring
on April 30, 1983, it was provided that notice of changes
or termination must be given at least 90 days prior to the
anniversary date.
Also at the time the Letters of Assent were executed,
there was in effect between the Union and the Associa-
tion an "inside" agreement due to expire on April 30,
1979. This was followed by an agreement effective from
May 1, 1979, through April 30, 1981; a second successor
agreement effective from May 1, 1981, through April 30,
1983, and a third successor, in effect at the time of the
stipulation, running from May 1, 1983,'through April 30,
1984. Each of these provided that 120 days' notice
S In the second Letter of Assent-A, of course, the work "residential"
is replaced by the word "Inside "
should be given of a desire to change or terminate the
agreement.4
The Association in each case notified Respondent of
the changes in the contracts which had been negotiated
and furnished copies of the contracts. Although Re-
spondent has not signed any of the agreements referred
to above, has applied the terms of the " residential"
agreements to employees in Unit A, and has applied the
terms of the "inside" agreements to employees in Unit B.
Except as noted below, Respondent has not informed the
Union or the Association that it did not consider itself
bound by the agreements referred to above.
Similarly, other employers signatory to Letters of
Assent such as those signed by Respondent were not
asked by the Union or the Association to sign the "resi-
dential" or "inside" agreements referred to above as they
became effective. It has been the longstanding practice
of the Union and the association not to require such em-
ployers to execute new letters of assent every time such
a contract expires, but to interpret letters of assent as
binding such employer to the agreement in effect on the
date of execution of the letter of assent as binding such
employer to the agreement in effect on the date of exe-
cution of the letter of assent and to successors to that
agreement. Respondent was never advised by the Union
or the Assoication of this practice or interpretation.
C. Respondent 's Withdrawal of the Letters of Assent
On December 28, 1982, Respondent gave written
notice to the Association and to the Union, advising:
Gentlemen, this is to notify you the Leapley Co.,
Inc., is withdrawing from the National Electrical
Contractors Association effective immediately and
intends to negotiate all future contracts with Local
Union 26 IBEW in its own behalf.
By letters dated December 28, 1982, received by the
Union on December 30, 1982, Respondent confirmed
that it had withdrawn from the Association and would
handle its contract negotiations personally. Respondent
advised that it wished "to begin negotiations immediately
on new agreements to be effective May 1, 1983," and
wanted to know when the Union would be available for
negotiations.
The Union replied to these letters by letter dated Janu-
ary 26, 1983, asserting in pertinent part:
As you know, your company signed a Letter of
Assent "A" granting bargaining rights to the Wash-
ington Chapter. By the terms of this Letter of
Assent, a timely withdrawal of bargaining rights
4 The Union's request to the Association for negotiations for contracts
to succeed the "residential" and "inside" agreements expiring on April
30, 1983, dated November 21, 1982, did not contain contract proposals.
The Association sent the Union its contract proposals about January 3,
1983. The initial bargaining session between the Association and. the
Union for the new agreements took place, on, January 20, 1983. The Re-
spondent did not personally attend or participate in this or any prior ne-
gotiations between the Association and the Union As has been noted, at
the time of the stipulation of facts, an agreement had been reached on the
"inside" agreement, and bargaining was continuing on the "residential"
agreement
LEAPLEY CO.
must occur at least 150 days prior to the termina-
tion date of the contract. Since your withdrawal did
not take place 150 days prior to the contract's ter-
mination , the Washington Chapter continues to
have bargaining rights for your company.
Accordingly, it would be inappropriate for this
Local to meet with you on an individual basis.
Analysis and Conclusions
Respondent contends that the two Letters of Assent
which it signed on April 9, 1979, authorizing the Asso-
ciation to represent it in multiemployer collective bar-
gaining with the Union for agreements in two units (an
"inside" unit and a "residential" unit) expired by their
own terms when the agreements then in effect for the
"inside" unit and the "residential" unit expired, and
therefore the Association thereafter no longer represent-
ed Respondent. This contention will be considered first.
The pertinent terms of the Letter of Assent are:
[Respondent] does hereby authorize the [Associa-
tion] as its collective bargaining representative for
all matters contained in or pertaining to the current
approved residential labor agreement . . . . This au-
thorization, in compliance with the current ap-
proved labor agreement, shall become effective on
the 9th day of April, 1979. It shall remain in effect
until terminated by the [Respondent] giving written
notice to the [Association] and to the [Union] at
least one hundred fifty (150) days prior to the then
current anniversary of the aforementioned labor
agreement.5
Respondent argues (br. 10); "The letters of assent
clearly provided that [the Association's] authorization
applied only to the 'current approved . . . labor agree-
ment.' Even the language concerning • termination re-
ferred to the 'aforementioned approved labor agreement.'
[Emphasis added.] The 'current approved' agreements
expired on May 31, 1979, and April 30, 1979, respective-
ly. Upon expiration of these agreements, Respondent was
no longer a member of [the Association's] multiemployer
unit."
I find this argument unpersuasive . Unquestionably,
these forms could have been written more clearly, but it
is quite obvious that it was intended that the authoriza-
tion should continue in effect until an affirmative action
was taken by the Employer, that is, until the Employer
notified the Association and the Union, in writing, 150
days before "the then current anniversary" of the agree-
ment in effect when the authorization was signed that
the Employer desired to cancel the authorization. There
is no indication that it was intended that the authoriza-
tion would automatically expire on the termination of the
labor agreement in effect when the authorization was
signed . It is stipulated that the Association and the Union
understood that the authorization continued until. can-
celed in writing according to its terms. The fact that Re-
spondent also understood this is evidenced by the fact
5 In the second Letter of Assent, the word "residential" is replaced by
the word "inside."
983
that some 2-1/2 years after the termination of the origi-
nal bargaining agreements Respondent did not consider
that the authorization of the Association had lapsed, but
thought it necessary to attempt to cancel the authoriza-
tion in writing. During this 2-1/2 year period the Asso-
ciation notified Respondent of the results of the negotia-
tions that occurred and furnished Respondent with
copies of the new bargaining contracts, and Respondent
continued to apply the terms of these agreements to the
employees in each of the two units.°
Respondent argues, however, that even if Respond-
ent's authorization of the Association to represent Re-
spondent in mutiemployer bargaining with the Union
survived the termination of the original contracts, Re-
spondent's attempt to withdraw from the multiemployer
units was timely and valid under the Board's precedents,
citing particularly Retail Associates, 120 NLRB 338
(1958).
In Retail Associates, in order to promote stable and
consistent labor-management relationships in multiem-
ployer bargaining situations, thus furthering the basic
purpose of the Act, the Board held, in pertinent part,
that it would not "permit the withdrawal of an employer
or a union from a duly established multiemployer bar-
gaining 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."
Respondent clearly gave written notice prior to the
contractual date set for notice to modify the contract
and prior to the start of actual bargaining for a new
agreement. The General Counsel and the Union, howev-
er, contend that Respondent's failure to give timely
notice of withdrawal in accordance with the terms of the
Letters of Assent authorizing the Association to repre-
sent Respondent prevents the notice from being timely
or valid. Respondent replies that such a holding would
permit the parties, by agreement, to supersede the
Board's decision in Retail Associates.
In this argument, Respondent misapprehends the
meaning and intent of the Board's decision. As the Board
noted in that case, a multiemployer unit is created by the
mutual assent of the employers and the union involved
and it may be altered or dissolved by the agreement of
the parties.' The purpose of the Board was to establish
minimum rules that would prevent either the employers
or the union from unilaterally withdrawing from the unit
any time it appeared to be in short-term strategic interest
of the party irrespective of the threat to bargaining sta-
bility and consistency. Here the parties agreed in writing
to the terms on which the multiemployer unit was to be
constituted and the terms on which it might be altered or
dissolved. The terms appear to be reasonable-Respond-
ent could have met them by giving notice less than 30
6 Respondent suggests that it continued to abide by these contracts
merely to maintain labor peace . There is no indication in the stipulation
to this effect , but the point is not relevant or material in any event.
T For example , the Board said that, even though the Board would not
permit a party to unilaterally withdraw from multiemployer bargaining
after bargaining has begun , absent unusual circumstances , such abandon-
ment of the unit was permitted by mutual consent.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days earlier than it actually did, and there is nothing in
the terms of authorization agreement which is inconsitent
with the purpose of the Act or the purpose and intent of
the Board's decision in Retail Associates. In the circum-
stances, I find that Respondent's notices of withdrawal
from the multiemployer bargaining units was untimely.
In coming to the conclusion that Respondent's attempt
to withdraw from multiemployer bargaining was untime-
ly, I have fully considered Respondent's argument that
its action was justified by special circumstances, contend-
ing that "the employer in effect has been frozen out of
negotiations, thus giving it no real participation in the
outcome. This is certainly a special circumstnace war-
ranting withdrawal at any time." (Br. 12.) However,
there is no need to consider whether such a situation, if
it existed, would justify unilateral withdrawal from the
unit, since the facts do not justify a finding that Re-
spondent has been excluded from the bargaining in the
manner suggested. The stipulated facts merely show that
Respondent did not at any time participate in the negoti-
ations.
On the basis of the above and the record as a whole, I
find that Respondent's untimely attempt to withdraw
from the multiemployer units and insistence upon indi-
vidual bargaining constituted conduct inherently destruc-
tive of multiemployer bargaining in the units involved
and an impediment to stable collective bargaining in vio-
lation of Section 8(a)(5) and, (1) of the Act. See Team-
sters Local 378 (Capitol Chevrolet), 243 NLRB 1086
(1979); Polar Air Sheet Metal Co., 264 NLRB 1331 (1982).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The bargaining units set forth below are units ap-
propriate for collective bargaining within the meaning of
Section 9(b) of the Act:
(A) All residential wiremen and residential wiremen
trainees who perform construction, renovation and
alterations of electrical facilities within the areas
covered by the current contract between the Union
and the Association for speculative high rise apart-
ments, schools, churches, stores and warehouses and
not over five (5) stories in one common building,
gasoline service stations and buildings of four (4)
stories or less, excluding all other employees,
guards and supervisors as defined in the Act.
(B) All journeymen wiremen, apprentices, foremen
and subforemen who perform work within the juris-
diction of the Union as set forth in Section 3.03 of
the current Inside Wiremen Agreement between the
Union and the Assoication, excluding all other em-
ployees, guards, and supervisors as defined in the
Act.
4. At all times material to this proceeding, the Union
was and continues to be the exclusive representative of
the employees in the aforesaid units for the purposes of
collective bargaining within the meaning of Section 9(a)
of the Act.
5. Respondent, by its unilateral and untimely attempt
to withdraw from multiemployer bargaining with respect
to the aforesaid units and by its insistence on individual
bargaining with respect to such units, violated Section
8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Section
8(a)(1) and (5) by certain acts and conduct, I recommend
that the Respondent be order to cease and desist from
unfair labor practices and take certain affirmative action
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds
ORDER
The Respondent, The Leapley Company, Washington,
D.C., its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
Local Union 26, IBEW, AFL-CIO or any other union
representing an appropriate unit of its employees, by
(1) Withdrawing authorization from the Washington,
D.C. Chapter, National Electrical Contractors Associa-
tion to represent Respondent in multiemployer bargain-
ing with the Union at a time when Respondent is obli-
gated to bargain through the Association, on a multiem-
ployer basis.
(2) Insisting on bargaining with the Union on an indi-
vidual basis at a time when Respondent is obligated to
bargain through the Association, on a multiemployer
basis.
(3) Refusing or failing to abide by and honor a collec-
tive-bargaining agreement negotiated by the Association
with the Union at a time when Respondent is represent-
ed by the Association or to which Respondent has
agreed to be bound.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify the Association and the Union, in writing,
that the Respondent continues to authorize the Associa-
tion to represent it in bargaining with the Union, in ac-
cordance with the Letters on Assent-A executed by Re-
spondent on April 9, 1979, and it will continue to author-
ize the Association to represent it in collective bargain-
ing in accordance with those Letters of Assent until such
time as those authorizations may be withdrawn in ac-
8 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses
LEAPLEY CO.
cordance with the terms of those Letters of Assent, or
by mutual consent of the parties, or in accordance with
the law.
(b) Post at its operations in Washington, D.C., copies
of the attached notice marked "Appendix."9 Copies of
the notice, on forms provided by the Regional Director
for Region 5, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
B 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 Nation-
al 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
985
WE WILL bargain collectively through the Washing-
ton, D .C. Chapter, National Electrical Contractors Asso-
ciation with Local 26, IBEW , AFL-CIO, for collective-
bargaining contracts , covering employees negotiated by
the Association , until we are no longer obligated by
agreement, or by law, to do so.
WE WILL NOT withdraw, or attempt to withdraw, au-
thorization form the Association to bargain with Local
26 on an individual basis until such time as we may, by
law or by agreement do so.
WE WILL NOT in any like or related manner refuse to
bargain with the Union for employees of the Company
in an appropriate unit which the Union represents, or
interfere with , restrain , or coerce employees in the exer-
cise of the rights guaranteed them by the National Labor
Relations Act.
THE LEAPLEY COMPANY