VFL Technology Corp.

National Labor Relations Board - Board Decisions

Dec 15, 2000

332 N.L.R.B. 1443 (N.L.R.B. 2000)

VFL TECHNOLOGY CORP. 1443
VFL Technology Corporation and Truckdrivers,
Chauffeurs and Helpers, Local Union No. 100,
affiliated with the International Brotherhood of
Teamsters, AFL–CIO, Petitioner and Interna-
tional Union of Operating Engineers, Local 18,
AFL–CIO, Petitioner and Laborers Interna-
tional Union of North America, Laborers Local
Union No. 265, AFL–CIO, Petitioner. Cases 9–
RC–16740, 9–RC–16743, and 9–RC–16745
December 15, 2000
ORDER DENYING REVIEW
BY CHAIRMAN TRUESDALE AND MEMBERS
FOX, LIEBMAN, AND HURTGEN
On December 7, 1999, the Regional Director for Re-
gion 9 issued a Supplemental Decision and Order (rele-
vant portions are attached as an appendix) finding that
the United Steelworkers of America (USWA) had effec-
tively disclaimed interest in representing the Employer’s
employees and, therefore, that its contract with the Em-
ployer did not operate to bar the petitions. In accordance
with Section 102.67 of the National Labor Relations
Board’s Rules and Regulations, the Employer filed a
timely request for review of the Regional Director’s sup-
plemental decision. Having carefully considered the
entire matter in light of the uncontested facts, we deny
the request for review.
The facts are more fully set forth in the Regional Di-
rector’s decision. Briefly, the Employer loads and trans-
ports fly ash from the Zimmer generating plant in Mos-
cow, Ohio, to landfill cells. The Employer and the in-
cumbent USWA signed a prehire collective-bargaining
agreement on February 3, 1994, effective from March 3,
1994, through March 6, 1997. Subsequently, on March
11, 1994, the Employer signed a recognition agreement
with the USWA based on a contemporaneous card check,
which showed that a majority of the employees in the
unit had designated the USWA as their bargaining repre-
sentative. Thereafter, in May 1996, the Petitioners filed
petitions seeking to represent separate units of craft em-
ployees employed by the Employer at the Zimmer job-
site. An election was held on July 31, 1996, and the bal-
lots were impounded.1
Subsequently, in VFL Technology Corp., 329 NLRB
458 (1999), the Board found that the contract between
the Employer and the USWA was a 9(a) contract, which
would bar the petitions unless the incumbent USWA’s
disclaimer of interest in representing the Employer’s
employees was effective. The Board concluded, how-
ever, that the evidence was conflicting regarding whether
the USWA’s disclaimer was effective and, therefore,
remanded the case for further evidence and a supplemen-
tal decision with respect to the disclaimer. After further
hearing, the Regional Director, as noted, found that the
USWA’s disclaimer of interest was effective and, there-
fore, that its contract with the Employer did not bar the
petitions. We agree.

1 On July 3, 1996, the Acting Regional Director issued a decision
finding that the contract between the USWA and the Employer did not
bar the petitions. The Employer filed a timely request for review of the
Acting Regional Director’s decision.
It is well settled that a contract does not bar an election
when the contracting union has validly disclaimed inter-
est in representing the employees covered by the agree-
ment. To be effective a disclaimer must be clear and
unequivocal and made in good faith. American Sunroof,
243 NLRB 1128 (1979).
The facts concerning the USWA’s disclaimer establish
that it should be given effect. In September 1994, the
Petitioners instituted a jurisdictional complaint against
the incumbent USWA pursuant to article XX of the
AFL–CIO’s constitution. An impartial umpire found that
the USWA was in violation of the AFL–CIO’s constitu-
tion, and further found that the Petitioners should be
given an opportunity to establish themselves as the repre-
sentative of the Employer’s employees. Although the
USWA thereafter advised the Employer that it could
make no claim on the Employer’s work, the USWA con-
tinued to represent the Employer’s employees and con-
tinued to assert itself as their bargaining agent. As a re-
sult of a noncompliance complaint filed by the Team-
sters, the AFL–CIO thereupon instructed the USWA to
comply with the umpire’s decision. Consequently, on
April 3, 1996, the USWA again advised the Employer
that it renounced any intention to act as the employees’
bargaining representative; that it would cease and desist
from acting in any way as the employees’ bargaining
representative; and that it would not seek to be the em-
ployees’ bargaining representative.
We find that the USWA’s disclaimer of interest was
clear and unequivocal, and expressly stated not only the
USWA’s intention to cease and desist from currently
representing the Employer’s employees, but also re-
nounced any future representational interest. Although
the Employer argued that the USWA had acted in a man-
ner inconsistent with its disclaimer, thereby rendering the
disclaimer ineffective, we agree with the Regional Direc-
tor for the reasons he stated that the few arguably incon-
sistent postdisclaimer actions do not negate the effec-
tiveness of the USWA’s clear and unequivocal dis-
claimer of interest.
Our dissenting colleague argues that because the
USWA disclaimed only after the Petitioners prevailed in
the “no-raid” procedures under article XX of the AFL–
332 NLRB No. 159
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1444
CIO’s constitution, the disclaimer cannot be effective as
the Board will not allow a union’s no-raiding agreement
to be used to supercede a binding collective-bargaining
agreement, relying on Mack Trucks, Inc., 209 NLRB
1003 (1974).2 According to our dissenting colleague, as
there is no evidence that the incumbent USWA is either
defunct or unable to administer the extant contract, to
give effect to the USWA’s disclaimer would permit a
vital labor organization to disavow its lawful contractual
obligations. We cannot agree that Mack Trucks should be
read so broadly.
In American Sunroof, 243 NLRB at 1129, the Board
explained that “the essential fact in Mack Trucks was that
the disclaimer by the contracting union resulted from a
collusive agreement between the contracting union and
the union which was seeking the election.” Furthermore,
in NLRB v. Circle A & W Products Co., 647 F.2d 924
(9th Cir. 1981), the court approved American Sunroof’s
interpretation of Mack Trucks. The court agreed that ab-
sent collusion between the parties—i.e., two or more
unions, or a union and employees—to avoid the terms of
a collective-bargaining agreement, a union’s disclaimer
in representing the unit will be effective. 647 F.2d at 924
fn. 1 926.
Here, the evidence does not establish that the dis-
claimer arose from a collusive agreement between the
USWA and the Petitioners, or from any other improper
motive. There is no indication or claim that the dis-
claimer was a tactical maneuver, a sham, or made in bad
faith. Significantly, there is no evidence or contention
that the USWA disclaimed interest in an attempt to
avoid, or have the employees avoid, the terms and obli-
gations of the collective-bargaining agreement. The dis-
claimer here stemmed from the independent article XX
“no-raid” procedures, a process long recognized and ac-
corded deference by the Board. Cf. Casehandling Man-
ual (Part Two), Representation Proceedings, Section
11017 et. seq.3 Those procedures are clearly adversarial

2 Our dissenting colleague says that he would not permit a ‘“union-
union’ agreement to trump the stability of a collective-bargaining
agreement.” However, there is no evidence here of any “union-union”
agreement. The AFL–CIO’s art. XX dispute resolution machinery long
predates the events of this case. Dispositions in cases brought under
those procedures are reached through an adversarial process, and there
is no indication that the art. XX proceedings here deviated from normal
practice; nor is there any evidence of any “agreement” among the un-
ions as to the outcome of the art. XX proceeding.
3 See also Food & Commercial Workers Local 158 (Queen Fisher-
ies), 208 NLRB 58 (1974). In that case, the union failed to execute a
contract with one employer and refused to bargain with another. The
union stated it was barred from these actions “by reason of Article
XX.” Prior to an unfair labor practice proceeding, the international
union advised the Board that the local no longer wished to represent the
involved employees. The Board concluded that the union “validly
in nature as between the unions claiming the right under
the AFL–CIO constitution to represent the unit employ-
ees. Thus, in no way can utilization of the procedures be
considered collusion.
We therefore find, in accord with the Regional Direc-
tor, that the USWA’s disclaimer is valid. Because the
USWA has validly disclaimed interest in the employees
covered by the agreement, the contract between the Em-
ployer and the USWA does not operate to bar the peti-
tions. In giving effect to the USWA’s disclaimer, we are
giving full expression to the Board’s dual purposes of
fostering labor relations stability and employee freedom
of choice.4
Accordingly, the Employer’s request for review of the
Regional Director’s supplemental decision finding the
disclaimer to be effective is denied.

MEMBER HURTGEN, dissenting.
I disagree with my colleagues’ finding that the dis-
claimer by the incumbent Union was effective. The
Board’s contract-bar rule is designed to preserve stability
in collective-bargaining relationships. Indeed, the Board
refuses to “permit an incumbent and vital labor organiza-
tion to disavow its lawful contractual obligations.”1 In
the instant case, the incumbent Union has done precisely
that, apparently out of deference to a rival union which
wants to represent these employees. The rival union pre-
vailed in the “no-raid” procedures under article XX of
the AFL–CIO constitution. The Board has indicated that
it will not allow a union’s “no raiding” agreement “to be
used to supercede a binding collective-bargaining agree-
ment interposed as a bar to an immediate election.”2
The incumbent Union’s disclaimer effectively takes
away the Employer’s contract rights as well as the stabil-
ity afforded by the contract-bar doctrine. Moreover,

disclaimed representation of the units . . . . There is no evidence to
indicate that the disclaimer was a mere tactical maneuver to avoid the
effects of the collective-bargaining agreement . . ., or to avoid bargain-
ing, . . . or otherwise not made in good faith.” Id., at 59. The Board
agreed that “it appears that the disclaimer was intended as a formal
announcement that [the union], in compliance with the ‘no-raid’ provi-
sions of the AFL–CIO constitution, was no longer interested in or will-
ing to represent the employees involved here, and was renouncing its
claim to act as their representative. In these circumstances, we find [the
union's] disclaimer was effective as of the date made.” Id.
4 It is well settled that the Board cannot compel a union to represent
employees that it no longer desires to represent. See, e.g., Electrical
Workers Local 58, 234 NLRB 633, 634 (1978).
1 East Mfg. Corp., 242 NLRB 5, 6 (1979).
2 Mack Trucks, Inc., 209 NLRB 1003, 1004 (1974). In Mack, the
Board refused to honor a disclaimer by an incumbent union. The Board
stated that, although it had a policy of seeking in a representation pro-
ceeding to accommodate efforts to resolve disputed between unions
under “no-raiding” agreements, it would not permit such agreements to
be used to supercede a binding contract interposed as a bar to an elec-
tion .
VFL TECHNOLOGY CORP. 1445
there is no evidence that the incumbent Union is either
defunct or unable to administer the extant contract. Ac-
cordingly, I would decline to give effect to the dis-
claimer, and I would find the incumbent Union’s contract
with the Employer bars the petitions.
My colleagues say that Mack Trucks, supra, is distin-
guishable because it involved a “collusive agreement”
between the incumbent and the petitioner whereby the
incumbent would disclaim representation and let the peti-
tioner seek representation. However, that phrase was not
used in that case. Further, irrespective of phraseology,
that case and the instant one involve an agreement be-
tween an incumbent union and a petitioner whereby the
incumbent would disclaim representation and let the peti-
tioner seek representation.
In American Sunroof, 243 NLRB 1128 (1979), the
Board sought to distinguish Mack Trucks. The American
Sunroof decision said that there was a “collusive agree-
ment” in Mack Trucks. In fact, there was no agreement
at all in American Sunroof. The incumbent, on its own,
disclaimed representation because of a UD petition. In-
deed, there was no contact at all, prior to the disclaimer,
between the incumbent and the petitioner.3
Based on the above, the following principles emerge.
If the incumbent and a petitioner agree to have the in-
cumbent disclaim representation and to have the peti-
tioner seek representation, the Board will not permit this
“union-union” agreement to trump the contract-bar sta-
bility of a collective-bargaining agreement. On the other
hand, if the incumbent union, on its own, disclaims rep-
resentation, the Board will permit a subsequent RC peti-
tion by another union.
The instant case involves the former situation. The in-
cumbent Union did not simply decide, on its own, to
disclaim representation. Rather, the incumbent and the
petitioner were mutually bound to the article XX dispute
resolution machinery, and were mutually bound to honor
the decision that emerged therefrom. That is precisely
what the incumbent Union did here, and that is a far cry
from the unilateral action in American Sunroof. Thus, I
would not permit the “union-union” agreement to over-
come the contract bar.4

3 Similarly, in NLRB v. Circle A & W Products Co., 647 F.2d 924
(9th Cir. 1981), the incumbent union disclaimed because of a UD peti-
tion.
4 As my colleagues note, a union’s disclaimer of representation will
preclude a bargaining order remedy in an unfair labor practice case.
See Food & Commercial Workers Local 158 (Queen Fisheries), 208
NLRB 58 (1974). That is, the Board will not force representation on an
unwilling union. However, the instant case is a representation case, and
the issue is whether the Employer-Union contract will be a contract bar
to another union’s petition.
APPENDIX
SUPPLEMENTAL DECISION AND ORDER
Pursuant to petitions filed on various dates in May 1996 by
Truck Drivers, Chauffeurs and Helpers Local Union No. 100,
affiliated with the International Brotherhood of Teamsters,
AFL–CIO (Teamsters 100) (Case 9–RC–16740); International
Union of Operating Engineers, Local 18, AFL–CIO (Operating
Engineers Local 18) (Case 9–RC–16743); and Laborers Inter-
national Union of North America, Laborers Local No. 265,
AFL–CIO (Laborers Local 265) (Case 9–RC–16745), seeking
to represent separate units of craft employees employed by the
VFL Technology Corporation (the Employer) at its Zimmer
jobsite, Moscow, Ohio, an initial representation hearing before
a designated hearing officer of the Board closed on June 6,
1996.
The Employer, contrary to the Petitioners, maintained that a
contract between the Employer and United Steelworkers of
America (the Steelworkers) was a bar to the processing of the
petitions. The contract between the Employer and the Steel-
workers covered all construction employees and truckdrivers
employed by the Employer at its Zimmer jobsite and was effec-
tive by its terms from February 5, 1994, through March 6,
1997. The Petitioners took the position that the contract be-
tween the Employer and the Steelworkers was not a bar since it
was entered into at a time when the Steelworkers did not repre-
sent a majority of the Employer’s employees and, in any event,
the Steelworkers had on two occasions effectively disclaimed
interest in representing any of the unit employees. The record
discloses that at the time the contract was executed on Febru-
ary 3, 1994, the Employer had not commenced work at the
Zimmer jobsite and had not hired any employees. On Febru-
ary 21, 1994, the Employer hired its work force and has ac-
tively been engaged in on-site work since that date.
On March 11, 1994, after the prehire contract was executed
and after employing its work force, the Employer and the Steel-
workers signed a recognition agreement based on a card check
which disclosed that a majority of the Employer’s construction
employees and truckdrivers had designated the Steelworkers as
their bargaining representative. The recognition agreement
specifically provided that the Employer recognized the
Steelworkers as the representative of its employees and that the
parties would meet for the purposes of negotiating a mutually
acceptable collective-bargaining agreement. However, the
Employer and the Steelworkers did not meet for bargaining and
never executed a new collective-bargaining agreement. The
Employer merely continued to apply the terms of the previous
prehire agreement.
The Acting Regional Director found that regardless of
whether the Employer was engaged in the construction indus-
try, the contract with the Steelworkers was not a bar to the peti-
tions. In the opinion of the Acting Regional Director, if the
Employer were not in the construction industry, the prehire
agreement with the Steelworkers would not, under General
Extrusion, 121 NLRB 1165 (1958), bar the petitions. If the
Employer were in the construction industry, the Steelworkers
majority showing and the Employer’s card check and recogni-
tion created a 9(a) relationship. However, because the Em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1446
ployer and the Steelworkers did not subsequently execute a
contract or refer to the prehire contract in their recognition
agreement, there was no bar to processing the petitions. Al-
though noting that the first disclaimer filed by the Steelworkers
was clearly ineffective, the Acting Regional Director found,
under the circumstances, that it was unnecessary to rule on the
effectiveness of the Steelworkers’ second disclaimer. Accord-
ingly, the Acting Regional Director directed separate elections
in the three-craft groups. While the Employer’s request for
review was pending before the Board, the elections were held
on July 31, 1996, and the ballots in all three elections were
impounded.
The Board disagreed with the Acting Regional Director’s
finding that the agreement between the Employer and the
Steelworkers was not a bar to the petitions. The Board held
that regardless of the nature of the contract between the Em-
ployer and the Steelworkers at its inception, following the es-
tablishment of the 9(a) relationship, the contract between the
parties was from that point forward a 9(a) agreement. Accord-
ingly, the Board found that the contract was a bar to the peti-
tions unless the Steelworkers effectively disclaimed interest in
representing the unit. The Board, therefore, remanded the case
to me to reopen the hearing, receive additional evidence, and
issue a supplemental decision solely with respect to whether the
Steelworkers effectively disclaimed interest in representing the
unit and, thereafter, take any further appropriate action neces-
sary to resolve the petitions.
Pursuant to the Board’s Order, on November 9, 1999, I re-
opened the record and scheduled an additional hearing on the
issue of whether the Steelworkers effectively disclaimed inter-
est in representing the unit. On November 19, 1999, a further
hearing was held before a hearing officer of the Board. The
hearing officer’s rulings made at the hearing are free from
prejudicial error and are hereby affirmed.1
The record discloses that after the Employer recognized and
entered into the contract with the Steelworkers, the Petitioners
filed a complaint with the AFL–CIO, alleging that the Steel-
workers violated sections 2 and 3 of article XX of the AFL–
CIO constitution. The dispute was submitted to an impartial
umpire, Howard Lesnick, on a stipulation of facts for a deter-
mination as to whether the Steelworkers had violated the AFL–
CIO constitution. On September 27, 1994, the umpire issued
his decision finding that the Steelworkers had violated sections
2 and 3 of article XX of the AFL–CIO constitution. No appeal
was filed to the umpire’s decision.
On November 15, 1994, the assistant to the president of the
Steelworkers, Bernard Hostein, wrote to the president of the
Employer, Richard W. Patton, and advised that the Steelwork-
ers could no longer claim the work at the Zimmer facility in
Moscow, Ohio, and released the Employer from the obligations
under the collective-bargaining agreement. The Employer

1 At the remand hearing, Operating Engineers Local 18 and Laborers
Local 265, without objection, moved to withdraw their petitions based
on the passage of time from their filings. Accordingly, the motions to
withdraw their petitions filed by Operating Engineers Local 18 (Case
9–RC–16743) and Laborers Local 265 (Case 9–RC–16745) are granted
and those cases are closed.
declined to accept the “disclaimer” and the Steelworkers did
not cease representing the employees. It appears clear that this
disclaimer was not effective based on the Steelworkers’ subse-
quent conduct.
On May 4, 1995, the general president at that time of the
AFL–CIO, Ronald Carey, advised the then-president of the
Steelworkers, Lynn Williams, in writing, that Teamsters Local
100 had requested that he seek enforcement of the above-
described umpire’s decision. On March 7, 1996, the secretary-
treasurer of the AFL–CIO, Richard Trumpka, convened a sub-
committee of the executive council to consider the complaint
filed by the Teamsters alleging noncompliance by the Steel-
workers with the umpire’s decision. The subcommittee deter-
mined that the Steelworkers were in noncompliance with the
umpire’s decision. Thereafter, on March 18, 1996, the presi-
dent of the AFL–CIO at that time, John J. Sweeney, advised the
then-president of the Steelworkers, George Becker, in writing,
of the committee’s finding and specifically directed the Steel-
workers to:

1. . . . [i]mplement the agreement made at the non-
compliance subcommittee to try and work with the Em-
ployer and IBT to gain the Employer’s cooperation in rec-
ognizing IBT, Local 100 as the collective-bargaining rep-
resentative of all truck drivers presently employed by
VFL Technology Corporation doing fly ash removal work
at the Wm. H. Zimmer generating station in Moscow,
Ohio.
2. If the Employer refuses to recognize the IBT as the
representative of those employees within 30 days from the
date of the March 7, 1996 subcommittee meeting, the
USWA must:

(a) Promptly renounce any intent to act as the exclu-
sive collective-bargaining representative of those em-
ployees.
(b) Cease and desist from acting in any way as the
bargaining representative of those employees; and
(c) Advise both the Employer and those employed,
in writing, by April 8, 1996 that the USWA is not now,
and does not seek to be, the employees’ bargaining
representative.

Sweeney also advised the Steelworkers that although the subcom-
mittee’s decision technically applied only to the Teamsters, if any
other union involved in the article XX case filed a noncompliance
complaint, the subcommittee would make the same finding.
The Steelworkers were apparently unsuccessful in obtaining
the Employer’s agreement to recognize any of the Petitioners.
Therefore, on April 3, 1996, Hostein advised Patton, in writing,
that the AFL–CIO subcommittee’s directives were unequivocal
and that the Steelworkers effective immediately:

(a) Renounces any intent to act as the exclusive col-
lective-bargaining representative of the employees of
VFL performing fly ash removal work at the Wm. H.
Zimmer generating station;
(b) Cease and desist from acting in any way as the
bargaining representative of those employees; and
VFL TECHNOLOGY CORP. 1447
(c) Does not and will not seek to be the bargaining
representative of those employees.

The record discloses that Hostein also advised the local union offi-
cials and all of the unit employees, in writing, that the Steelworkers
had disclaimed interest in representing the employees and that the
Steelworkers was no longer their collective-bargaining representa-
tive.
On April 4, 1996, in writing, the Employer’s president ad-
vised the Steelworkers that it “declined the Steelworkers’ offer”
to disclaim representing the employees and insisted that the
Steelworkers fulfill its obligations under the collective-bargain-
ing contract. Thereafter, the Employer, on two occasions, re-
quested the Steelworkers to extend the collective-bargaining
contract. The Steelworkers declined to extend the agreement
and again advised the Employer that they had disclaimed any
interest in representing the employees. However, the record
discloses that the Employer continued to apply the contractual
wages and other terms and conditions of employment to the
employees.
On September 12, 1996, the Steelworkers requested a re-
sponse from the Employer regarding two grievances which had
been filed under the contract. However, the record discloses
that these two grievances were both filed prior to the time the
Steelworkers disclaimed interest in representing the unit. The
Employer took the position that the grievances were untimely
and they were subsequently dropped by the Steelworkers. In
addition, it appears that an employee attempted to file a griev-
ance with the Steelworkers after the disclaimer. Although this
grievance was apparently presented to the Employer, the record
discloses that it was never processed by the Steelworkers and
local union officials were informed that they were not to proc-
ess grievances.
It appears from the record that the Steelworkers on one occa-
sion requested that dues money be submitted after the dis-
claimer. However, the dues were apparently for the 2 months
immediately preceding the disclaimer. The Employer also
submitted dues moneys as well as dues-checkoff cards from
employees for a number of months after the disclaimer. The
dues-authorization cards were received by the financial depart-
ment of the International Union and were retained. The record
discloses that the International normally would return such
dues-authorization cards to the local for its records. However,
the dues-authorization cards in question were retained by the
International because the Steelworkers no longer represented
the employees. Moreover, the Steelworkers subsequently re-
turned to the Employer all dues which had been deducted and
submitted to the Steelworkers after its disclaimer.
The record reflects that sometime after the disclaimer, the
Employer requested that the Steelworkers provide it with the
names of some potential employees. Pursuant to this request,
the Steelworkers sent the Employer a list containing the names
of several out-of-work members. It appears that the Employer
employed at least some of these individuals. However, the
record discloses that the Steelworkers have, on occasion, re-
ferred out-of-work members to other employers with whom it
does not have a collective-bargaining contract. There is no
evidence that the Steelworkers made any effort to require that
the Employer utilize any of its referral systems or that the
Steelworkers attempted to represent any of the referred em-
ployees.
A careful review of the Steelworkers’ conduct as detailed in
the record convinces me that its second disclaimer of April 3,
1996, was effective and that its contract with the Employer was
not a bar to the petitions.2 The Board has consistently held that
a contract does not bar an election when the contracting union
has properly disclaimed interest in the employees covered by
the agreement. Plough, Inc., 203 NLRB 121 (1973); American
Sunroof, 243 NLRB 1128 (1979). However, a disclaimer will
not remove the existing contract as a bar if the labor organiza-
tion acts inconsistent with its disclaimer. East Mfg. Corp., 242
NLRB 5 (1979).
The record here discloses that the Steelworkers about April
3, 1996, unequivocally disclaimed interest in representing the
employees. The disclaimer was made known to the Employer,
local union officials and all employees. Moreover, the record
discloses that the Steelworkers did not engage in any subse-
quent conduct sufficient to render its disclaimer ineffective.
Although local union officials may not have been pleased with
the disclaimer, they did not engage in sufficient conduct to
nullify the disclaimer. Moreover, the Employer clearly did not
agree with the Steelworkers’ disclaimer. However, it is the
action of the Steelworkers, not the Employer, that determines
the effectiveness of the disclaimer. The fact that the Employer
continued to apply the terms of the agreement to the employees
does not negate the disclaimer. Indeed, the Steelworkers’ re-
fusal to agree with the Employer’s proposal to extend the prior
contract is strong evidence that Steelworkers was giving effect
to the disclaimer.
Contrary to the Employer’s position in its brief, the fact that
dues were deducted by the Employer and submitted to the
Steelworkers after the disclaimer does not render it ineffective.
American Sunroof, supra. Indeed, the Steelworkers subse-
quently returned to the Employer the dues submitted after the
disclaimer. This is similar to the situation in American Sun-
roof, where the labor organization involved placed dues that
had been submitted by an employer after a disclaimer in an
escrow account. The Board found that the union’s conduct in
placing the dues in escrow did not detract from its disclaimer.
Moreover, the fact that health, welfare, and pension payments
were submitted on behalf of employees to union funds does not
adversely impact the disclaimer. The record discloses that the
funds are separate entities from the Steelworkers.
Likewise, contrary to the Employer’s position in its brief, the
fact that a local steward may have presented or even pursued a
grievance on behalf of an employee after the April 3, 1996
disclaimer is not inconsistent with the disclaimer. Miratti’s,
Inc., 132 NLRB 699 (1961); Cf. Franz Food Products of Green
Forest, Inc., 137 NLRB 340 (1962). The record discloses that

2 The Employer argues that the effectiveness of the Steelworkers’
disclaimer must be determined based on the Steelworkers’ conduct at
the time the petitions were filed rather than by its subsequent action. I
agree that the relevant issue is whether a contract bar existed at the time
the petitions were filed. However, the Steelworkers’ subsequent con-
duct, consistent with its disclaimer, is relevant in determining whether
the disclaimer was effective.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1448
the steward was advised by officials of the Steelworkers that
grievances were not to be processed. Indeed, the grievance in
question was never processed by the Steelworkers.
I do not agree with the Employer’s position that there is con-
flicting evidence as to whether local officials were instructed to
continue to represent the unit. Although the local steward, at
the initial hearing, indicated that the local president informed
him to continue his duties as in the past, it is clear that the
steward was informed by the International that the Steelworkers
had disclaimed interest in the unit. Finally, the fact that the
Steelworkers, in response to a request from the Employer, fur-
nished the names of some out-of-work members for possible
employment is not inconsistent with the disclaimer. The evi-
dence discloses that the Steelworkers has made referrals to
other employers with whom it does not have a collective-
bargaining relationship.
I agree with the Employer’s position expressed in its brief
that the Board and courts have held that a disclaimer will not be
given effect, if under the surrounding circumstances, such dis-
claimer is inconsistent with a union’s conduct. Dycus v. NLRB,
615 F.2d 823 (9th Cir. 1980); Electrical Workers (Texlite, Inc.),
119 NLRB 1792 (1958). However, the cases cited by the Em-
ployer in its brief in support of its position are clearly distin-
guishable from our circumstances. For example, Hershey
Chocolate Corp., 121 NLRB 901 (1958); and Polar Ware Co.,
139 NLRB 1006 (1962), do not specifically involve the effec-
tiveness of a disclaimer. In Hershey and Polar Ware, supra, it
was alleged that the incumbent labor organizations were de-
funct or that a schism existed. Here, there is no contention that
the Steelworkers could not represent the unit employees be-
cause of defunctness or schism. On the other hand, in Electri-
cal Workers Local 58, 234 NLRB 633 (1978), and Hartz Moun-
tain Corp., 260 NLRB 323 (1982), cited by the Employer for
the general proposition that for disclaimers to be effective, they
must not be accompanied by inconsistent action, are remarka-
bly similar to the instant case. In both Local 58 and Hartz
Mountain, the Board found that the disclaiming unions, like the
Steelworkers here, had not engaged in sufficient inconsistent
action to nullify their disclaimers. In 3 Beall Bros 3, 110
NLRB 685 (1954), the Board found that the disclaiming union
had engaged in action inconsistent with its disclaimer by pick-
eting in an effort to continue its status as bargaining representa-
tive of the unit employees. In Texlite, Inc., supra, the disclaim-
ing union, subsequent to its disclaimer, restrained members
from striking and stated it would be willing to sign a new con-
tract covering the employees. Here, the Steelworkers did not
engage in any affirmative action after its disclaimer in an effort
to continue its status as the bargaining representative of the unit
employees. Finally, in East Mfg. Corp., supra, relied on by the
Employer, the incumbent local labor organization, consisting
only of employees of the employer therein, filed a disclaimer
because some unit employees expressed dissatisfaction with its
representation. The Board found that the mere dissatisfaction
of certain members with the adequacy of the union’s represen-
tation did not provide grounds to disclaim and that the incum-
bent union was able and willing to continue to represent the
employees. Here, by contrast, the Steelworkers disclaimed
because it no longer desired or was willing to represent the unit
employees. Moreover, the fact that it was instructed to dis-
claim by its parent organization does not render the disclaimer
a nullity.
Based on the foregoing, the entire record and after careful
consideration of the arguments of the parties at the hearings and
in their briefs, I find that the Steelworkers effectively dis-
claimed interest in representing the unit employees and that its
contract with the Employer is not a bar to the petitions. Ac-
cordingly, I shall order that the ballots cast and impounded in
the unit sought by Teamsters Local 100 (Case 9–RC–16740) be
opened and counted to determine whether the employees in
such unit wish to be represented by that labor organization for
the purposes of collective bargaining. Inasmuch as I have ap-
proved the motions by Operating Engineers Local 18 and La-
borers Local 265 to withdraw their petitions, the ballots cast by
employees in the Operating Engineers Local 18 unit (Case 9–
RC–16743) and Laborers Local 265 unit (Case 9–RC–16745)
shall be neither opened nor counted.
ORDER
It is hereby ordered that the ballots cast and impounded in
the Teamsters Local 100 unit (Case 9–RC–16740) shall be
opened and counted at a time and place to be established by me
to determine whether or not the employees in the unit desire to
be represented for collective-bargaining purposes by Truck
Drivers, Chauffeurs and Helpers, Local Union No. 100, affili-
ated with the International Brotherhood of Teamsters, AFL–
CIO.