Independent Association of Steel Fabricators, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 922 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Independent Association of Steel Fabricators, Inc.;
Achilles Construction Co., Inc.; Greenpoint Or-
namental and Structural Iron Works, Inc.;
Heuser Iron Works, Inc.; Ikenson Iron Works,
Inc.; Kuno Steel Products Corp.; Long Island
Steel Products Co., Inc.; Master Iron Craft
Corp.; Melto Metal Products Co., Inc.;
Mohawk Steel Fabricators, Inc.; the Peele Com-
pany; Roman Iron Works, Inc.; Spigner and
Sons Structural Steel Co., Inc.; S. Cervenka and
Sons, Inc.
Paxton Metalcraft Corp., Division of Apex Indus-
tries, Inc.; Koenig Iron Works, Inc.; Trojan
Steel Corp.; G. Zaffino and Sons, Inc.; Roma
Iron Works, Inc.
Greenpoint Ornamental and Structural Iron Works,
Inc.
Roma Iron Works, Inc. and Shopmen's Local Union
No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO and Steel, Metals, Alloys and Hardware
Fabricators and Warehousemen, Local 810, af-
filiated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Party to the Contract
Shopmen's Local Union No. 455, International Asso-
ciation of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO and Steel, Metals,
Alloys and Hardware Fabricators and Warehou-
semen, Local 810, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 29-
CA-4853, 29-CA-4922, 29-CA-4772, 29-CA-
4921, and 29-CB-2461
September 30, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 11, 1977, the National Labor Rela-
tions Board issued a Decision and Order in the
above-entitled proceeding,' finding, inter alia, that
certain Respondent-Employers had violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations
Act, as amended, by recognizing and entering into
collective-bargaining agreements with Steel.
Metals, Alloys and Hardware Fabricators and War-
ehousemen, Local 810, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (herein called Local
810), at a time when they were obligated to bar-
gain collectively through the Independent Associ-
ation of Steel Fabricators, Inc. (hereinafter called
Association), with Shopmen's Local Union No.
' 231 NLRH 264
455, International Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO (herein-
after called Local 455).
Thereafter, on June 30, 1978, upon the Board's
application for enforcement, the United States
Court of Appeals for the Second Circuit granted in
part and denied in part enforcement of the Board's
Order.2 The court designated six Respondent-Em-
ployers Class I Employers," and agreed with the
Board that each of them violated Section 8(a)(5)
and (1) by executing contracts with Local 810
before notifying Local 455 of their withdrawal
from the Association. Further, the court found that
three Respondent-Employers, designated Class II
Employers, 4 who signed contracts with Local 810
subsequent to notification of Local 455 of their
withdrawal from the Association, were under a
duty to bargain with Local 455 on an individual
basis before negotiating with Local 810. Conse-
quently, employers in Class II who executed agree-
ments with Local 810 violated Section 8(a)(5) and
(I) unless, at the time of the executions, "Local 455
had lost its majority or the employers had a ration-
al basis for doubting its majority." The court left
open whether a bargaining order or direction of
election is the more appropriate remedy for the
Class I Employers' refusals to bargain and for any
Class II Employers who are guilty of 8(a)(5) and
(I) violations.
The Board, accepting the court's decision as the
law in this case, ordered the hearings reopened for
the purpose of receiving further evidence relevant
to the appropriate remedy for Class I Employers'
violations and for any unfair labor practices com-
mitted by employers in Class II.
On February 22, 1980, Administrative Law
Judge Morton D. Friedman issued the attached
Supplemental Decision, in which he recommended
that the Board issue bargaining orders against Class
I Employers. He also found that Local 455 had not
lost its majority status among the employees of
Class II Employer Koenig, and that Koenig did
not have a good-faith doubt as to Local 455's con-
tinuing majority status. He therefore found that
Koenig violated Section 8(a)(5) and (1) by signing
with Local 810, and recommended that the Board
issue a bargaining order. Concerning Class II Em-
ployers Cervenka and Master, the Administrative
Law Judge found that each had an objective basis
for a good-faith doubt that Local 455 continued to
represent a majority of their employees, and he
recommended dismissing 8(a)(5) and (1) allegations
against both of them.
582 F2d 135
' Roman. Mohawk, Melto. (reenpoint. P'axIon, and Long Island
I Masler, Koenig. and Cervenka
252 NLRB No. 129
922
INDEPENDENT ASSOCIATION OF STEEL. FABRICATORS, INC.
Thereafter, the General Counsel, Respondent-
Employers,5 Local 810, and Local 455 filed excep-
tions and briefs in support thereof, and the General
Counsel and Local 455 filed briefs in support of the
Administrative Law Judge's Supplemental Deci-
sion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the ex-
ceptions and briefs, and in light of the court's deci-
sion, and has decided to affirm the rulings, find-
ings,6 conclusions, and recommendations of the
Administrative Law Judge, as modified herein. 7
As indicated above, the Administrative Law
Judge held that Respondent-Employer Master did
not violate Section 8(a)(5) by signing an agreement
with Local 810 in January 1976. Although he
found that at the time Respondent-Employer
Master signed that contract Local 455 had not, in
5 Respondent-Employers Greenpoint, Paxton, and Long Island have
not filed exceptions to the Administrative Law Judge's Supplemental De-
cision. In the absence of exceptions thereto. we adopt the Administrative
Law Judge's recommended bargaining orders against these three Re-
spondent-Employers for the reasons that he elaborates in sec. I11 D and
E, of his Decision
B Respondent-Employers and Local 810 have excepted to certain
credibility findings made by the Administrative Law Judge. It is the
Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950). enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing his findings
7 The Administrative Law Judge conditioned Respondent-Employer
Melto's bargaining order upon its resumption of steel fabricating. The
record is unclear whether the warehousing work now being performed
by Melto's employees was bargaining unit work prior to Melto's discon-
tinuation of its fabrication operations. We shall, therefore, order Melto to
bargain with Local 455 as the exclusive representative of its employees in
the appropriate unit of all production and maintenance employees, includ-
ing plant clericals, and delete the Administrative La Judge's condition
"[wlhen, as and if Melto resumes the business of steel fabricating." and
leave for appropriate subsequent proceedings the question whether wvare-
housing employees are properly within that unit.
The General Counsel has excepted to the Administrative Law Judge's
inadvertent failure to recommend that Respondent-Employer Koenig be
ordered to cease giving effect to its current collective-bargaining agree-
ment with Local 810, and to reimburse its employees for the dues, initi-
ation fees, and assessments it unlawfully deducted from the wages of its
unit employees pursuant to the union-security and checkoff provisions of
that contract We find merit in this exception, and will include appropri-
ate provisions in our Order Likewise, we shall require Respondeni-Em-
ployer Master, which, as stated nfra. we find, as Koenig. guilty of a re-
fusal to bargain with Local 455 by entering into a collective-bargaining
agreement with I.ocal 10 when it was under an obligation to bargain
with Local 455, to cease giving effect to its current collective-bargaining
agreement with Local 10), ad to reimburse its employees for the dues,
initiation fees, and assessments it unlawfully deducted from the wages of
its unit employees pursuant to the union-securit) and checkoff provisions
of the contract.
In the notice which our Order requires each Respondent-Employer to
post, we shall add a statement advising unit employees of their right to
petition for decertification See Glomac Plasticv, Inc v 'L.R.B. 592
F 2d 94 (2d Cir 1979). decision on remand 241 NLRB 348,. enfd 600
F 2d 3
fact, lost its majority status, he concluded that Re-
spondent "entertained a good faith doubt, objec-
tively grounded, as to Local 455's continued ma-
jority status." In reaching this conclusion, the Ad-
ministrative Law Judge reasoned that the three em-
ployees, who worked during the strike and signed
authorization cards for Local 810, "constituted a
majority of the bargaining unit of which [Respond-
ent-Employer Master] could reasonably have
known," because there was no evidence that
Master knew that any of its other employees would
return.
The General Counsel and Charging Party have
excepted to this finding, and we find merit in their
exceptions. As the Administrative Law Judge
found, the number of bargaining unit employees at
the time of the strike (July 1, 1975) was at least
seven-five currently working, and two on layoff
or leave of absence but with recall rights under the
contract. The record is devoid of any objective
factors within Master's knowledge on which it
could have reasonably relied to conclude that the
number of bargaining unit employees contracted,
or that a majority of its seven employees no longer
supported Local 455. Since the burden rests with a
respondent to advance objective considerations on
which to ground a reasonable doubt sufficient to
rebut the presumption that the union's majority
support continues, Cut & Curl, Inc., 227 NLRB
1869, 1872 (1977), we are unable to agree that
Master established a rational basis for its doubt of
Local 455's majority status. Consequently, "[i]n the
absence of evidence as to good faith doubt or
actual loss of majority status, [we] find [Master]
guilty of a refusal to bargain." 582 F.2d at 151.
As the court has already enforced our Order in
part, our Supplemental Order will be limited to the
findings herein.
AMENDED CONCLUSIONS OF LAW
We amend the Administrative Law Judge's Sup-
plemental Conclusions of Law as follows:
I. Delete from the list of Respondent-Employers
the phrase: "When, as and if Melto resumes the
business of steel fabricating."
2. Add to the list of Respondent-Employers
against whom bargaining orders are required, and
to the dates on which said Respondent-Employers
entered into bargaining agreements with Local 810:
"Master Iron Craft Corp.-January 28, 1976."
3. Delete "Master Iron Craft Corp." from the
name of Respondent-Employers who have not re-
fused to bargain with Local 455 in violation of Sec-
tion 8(a)(5) of the Act.
923
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent-
Employers named below, their officers, agents, suc-
cessors, and assigns, shall take the following action:
1. Respondent-Employer Koenig Iron Works,
Inc., and Master Iron Craft Corp. shall cease and
desist from:
(a) Recognizing Local 810 as the bargaining rep-
resentative of any of their production and mainte-
nance employees, unless and until said labor orga-
nization shall have been certified by the National
Labor Relations Board as the exclusive representa-
tive of such employees.
(b) Giving effect to their collective-bargaining
agreements with Local 810, or to any modification,
extension, supplement, or renewal thereof, or to
any superseding contracts with Local 810, unless
and until said organization shall have been certified
by the National Labor Relations Board.
(c) Refusing to recognize or bargain collectively
with Local 455 as the exclusive collective-bargain-
ing representative of the employees of said Re-
spondent-Employers in the following appropriate
units:
All production and maintenance employees, in-
cluding plant clerical employees, employed by
each Respondent-Employer, exclusive of office
clerical employees, superintendents and all su-
pervisors as defined in Section 2(11) of the
Act.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Respondent-Employers shall take the follow-
ing affirmative action necessary to effectuate the
policies of the Act:
(a) Respondent-Employers Roman Iron Works,
Inc., Mohawk Steel Fabricators, Inc., Melto Metal
Products Co., Inc., Greenpoint Ornamental and
Structural Iron Works, Inc., Paxton Metalcraft
Corp., Long Island Steel Products Co., Koenig
Iron Works, Inc., and Master Iron Craft Corp.
shall recognize and bargain collectively with Local
455, upon request, as the exclusive collective-bar-
gaining representative of the employees of said Re-
spondent-Employers in the appropriate units found
herein with respect to rates of pay, wages, hours,
and other terms and conditions of employment,
and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Respondent-Employers Koenig Iron Works,
Inc., and Master Iron Craft Corp. shall reimburse
all present and former employees for all moneys
unlawfully extracted from the said employees for
initiation fees, dues, and assessments under their re-
spective contracts with Local 810, together with
interest thereon at the rate of 6 percent per annum.
Said Respondents shall preserve and, upon request,
make available to the Board or its agents, for exam-
ination and copying, all payroll records, social se-
curity payment records, timecards, personnel re-
cords and reports, and all other records necessary
to analyze the amounts due under the terms of this
Order.
(c) Respondent-Employers Roman Iron Works,
Inc., Mohawk Steel Fabricators Inc., Melto Metal
Products Co., Inc., Greenpoint Ornamental and
Structural Iron Works, Inc., Paxton Metalcraft
Corp., Long Island Steel Products Co., Koenig
Iron Works, Inc., and Master Iron Craft Corp.
shall post at their places of business and plants lo-
cated at various places in New Yoek, New York,
and its environs, copies of the applicable notices at-
tached hereto and marked "Appendixes A through
H."8 Copies of said notices, on forms provided by
the Regional Director for Region 29, after being
duly signed by the various Respondents' repre-
sentatives shall be posted by Respondents immedi-
ately upon receipt thereof and be maintained by
them for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondents to insure that
said notices are not altered, defaced, or covered by
any other material.
(d) Each Respondent-Employer shall separately
notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps each Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint
herein against S. Cervenka and Sons, Inc., alleging
a violation of Section 8(a)(5) be, and it hereby is,
dismissed.
8 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 read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of theNational Labor Relations Board "
924
INDEPENDENT ASSOCIATION OF STEEL FABRICATORS, INC
APPENDIX A
NOTICE To EMPLIOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL recognize and bargain collectively
with Local 455, upon request, as the exclusive
collective-bargaining representative of our em-
ployees in a unit consisting of all production
and maintenance employees, including plant
clerical employees, exclusive of all office cleri-
cal employees, superintendents and all supervi-
sors as defined in Section 2(11) of the Act,
with regard to grievances, labor disputes,
wages, rates of pay, hours of employment, or
other conditions of employment.
EMPLOYEES, pursuant to Section 9(c)(1) of the
National Labor Relations Act, may petition the
National Labor Relations Board for an election to
decertify and remove Local 455 as their bargaining
representative. The filing of such a petition can
only be done as the voluntary act and choice of the
employees and on their own initiative, without co-
ercion, encouragement, or assistance from manage-
ment. All applicable rules, regulations, and stand-
ards for conducting such an election must be met.
ROMAN IRON WORKS, INC.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL recognize and bargain collectively
with Local 455, upon request, as the exclusive
collective-bargaining representative of our em-
ployees in a unit consisting of all production
and maintenance employees, including plant
clerical employees, exclusive of all office cleri-
cal employees, superintendents and all supervi-
sors as defined in Section 2(11) of the Act,
with regard to grievances, labor disputes,
wages, rates of pay, hours of employment, or
other conditions of employment.
EMPLOYEES, pursuant to Section 9(c)(1) of the
National Labor Relations Act, may petition the
National Labor Relations Board for an election to
decertify and remove Local 455 as their bargaining
representative. The filing of such a petition can
only be done as the voluntary act and choice of the
employees and on their own initiative, without co-
ercion, encouragement, or assistance from manage-
ment. All applicable rules, regulations, and stand-
ards for conducting such an election must be met.
MOHAWK STEEL FABRICATORS, INC.
APPENDIX C
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL recognize and bargain collectively
with Local 455, upon request, as the exclusive
collective-bargaining representative of our em-
ployees in a unit consisting of all production
and maintenance employees, including plant
clerical employees, exclusive of all office cleri-
cal employees, superintendents and all supervi-
sors as defined in Section 2(11) of the Act,
with regard to grievances, labor disputes,
wages, rates of pay, hours of employment, or
other conditions of employment.
EMPLOYEES, pursuant to Section 9(c)(1) of the
National Labor Relations Act, may petition the
National Labor Relations Board for an election to
decertify and remove Local 455 as their bargaining
representative. The filing of such a petition can
only be done as the voluntary act and choice of the
employees and on their own initiative, without co-
ercion, encouragement, or assistance from manage-
ment. All applicable rules, regulations, and stand-
ards for conducting such an election must be met.
MELTO METAL PRODUCTS Co., INC.
APPENDIX D
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL recognize and bargain collectively
with Local 455, upon request, as the exclusive
collective-bargaining representative of our em-
ployees in a unit consisting of all production
and maintenance employees, including plant
clerical employees, exclusive of all office cleri-
cal employees, superintendents and all supervi-
sors as defined in Section 2(11) of the Act,
with regard to grievances, labor disputes,
wages, rates of pay, hours of employment, or
other conditions of employment.
925
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
EMPLOYEESS, pursuant to Section 9(c)(1) of the
National Labor Relations Act, may petition the
National Labor Relations Board for an election to
decertify and remove Local 455 as their bargaining
representative. The filing of such a petition can
only be done as the voluntary act and choice of the
employees and on their own initiative, without co-
ercion, encouragement, or assistance from manage-
ment. All applicable rules, regulations, and stand-
ards for conducting such an election must be met.
GREENPOINT ORNAMENTAL AND
STRUCTURAL IRON WORKS, INC.
APPENDIX E
NOTICE To EMPLOYEES
POSTED BY ORDE R OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL recognize and bargain collectively
with Local 455, upon request, as the exclusive
collective-bargaining representative of our em-
ployees in a unit consisting of all production
and maintenance employees, including plant
clerical employees, exclusive of all office cleri-
cal employees, superintendents and all supervi-
sors as defined in Section 2(11) of the Act,
with regard to grievances, labor disputes,
wages, rates of pay, hours of employment, or
other conditions of employment.
EMPLOYEES, pursuant to Section 9(c)(1) of the
National Labor Relations Act, may petition the
National Labor Relations Board for an election to
decertify and remove Local 455 as their bargaining
representative. The filing of such a petition can
only be done as the voluntary act and choice of the
employees and on their own initiative, without co-
ercion, encouragement, or assistance from manage-
ment. All applicable rules, regulations, and stand-
ards for conducting such an election must be met.
PAXTON METALCRAFT CORP.
APPENDIX F
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL recognize and bargain collectively
with Local 455, upon request, as the exclusive
collective-bargaining representative of our em-
ployees in a unit consisting of all production
and maintenance employees, including plant
clerical employees, exclusive of all office cleri-
cal employees, superintendents and all supervi-
sors as defined in Section 2(11) of the Act,
with regard to grievances, labor disputes,
wages, rates of pay, hours of employment, or
other conditions of employment.
EMPLOYEES, pursuant to Section 9(c)(1) of the
National Labor Relations Act, may petition the
National Labor Relations Board for an election to
decertify and remove Local 455 as their bargaining
representative. The filing of such a petition can
only be done as the voluntary act and choice of the
employees and on their own initiative, without co-
ercion, encouragement, or assistance from manage-
ment. All applicable rules, regulations, and stand-
ards for conducting such an election must be met.
LONG ISLAND STEEl. PRODUCTS, Co.
APPENDIX G
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT recognize Steel, Metals,
Alloys and Hardware Fabricators and Ware-
housemen, Local 810, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
bargaining representative of our production
and maintenance employees, unless and until
Local 810 is certified by the National Labor
Relations Board as the exclusive representative
of such employees.
WE WILL NOT give effect to the collective-
bargaining agreement entered into by us with
Local 810 on January 30, 1976, or to any
modification, extension, supplement, or renew-
al thereof, or to any superseding contracts
with Local 810, unless and until Local 810 is
certified by the National Labor Relations
Board.
WE WILL NOT refuse to recognize or bar-
gain with Shopmen's Local Union No. 455, In-
ternational Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO, as
the exclusive collective-bargaining representa-
tive of employees in a unit consisting of all
production and maintenance employees, in-
cluding plant clerical employees, exclusive of
office clerical employees, superintendents and
all supervisors as defined in Section 2(11) of
the Act, with regard to grievances, labor dis-
926
INDEPENDENT ASSOCIATION OF STEEL FABRICATORS. INC'
putes, wages, rates of pay, hours of employ-
ment, or other conditions of employment.
WE Wll.l NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed in
Section 7 of the Act.
WE WILL recognize and bargain collectively
with Local 455, upon request, as the exclusive
collective-bargaining representative of our em-
ployees in a unit consisting of all production
and maintenance employees, including plant
clerical employees, exclusive of all office cleri-
cal employees, superintendents and all supervi-
sors as defined in Section 2(11) of the Act,
with regard to grievances, labor disputes,
wages, rates of pay, hours of employment, or
other conditions of employment.
WE WILL reimburse all our present and
former employees for any initiation fees, dues,
or any assessments of any nature they may
have paid to Local 810 pursuant to the terms
of our unlawful contract with Local 810, with
interest at the rate of 6 percent per annum,
computed from the dates the said moneys
were paid to Local 810.
EMPLOYEES, pursuant to Section 9(c)(1) of the
National Labor Relations Act, may petition the
National Labor Relations Board for an election to
decertify and remove Local 455 as their bargaining
representative. The filing of such a petition can
only be done as the voluntary act and choice of the
employees and on their own initiative, without co-
ercion, encouragement, or assistance from manage-
ment. All applicable rules, regulations, and stand-
ards for conducting such an election must be met.
KOENIG IRON WORKS, INC.
APPENDIX H
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT recognize Steel, Metals,
Alloys and Hardware Fabricators and Ware-
housemen, Local 810, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
bargaining representative of our production
and maintenance employees, unless and until
Local 810 is certified by the National Labor
Relations Board as the exclusive representative
of such employees.
WE WILl NOT give effect to the collective-
bargaining agreement entered into by us with
Local 810 on January 28, 1976, or to any
modification, extension, supplement, or renew-
al thereof, or to any superseding contracts
with Local 810, unless and until Local 810 is
certified by the National Labor Relations
Board.
WE WIl.l. NOT refuse to recognize or bar-
gain with Shopmen's Local Union No. 455, In-
ternational Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO, as
the exclusive collective-bargaining representa-
tive of employees in a unit consisting of all
production and maintenance employees, in-
cluding plant clerical employees, exclusive of
office clerical employees, superintendents and
all supervisors as defined in Section 2(11) of
the Act, with regard to grievances, labor dis-
putes, wages, rates of pay, hours of employ-
ment, or other conditions of employment.
WI WIl.L NOI in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed in
Section 7 of the Act.
WE WI. L recognize and bargain collectively
with Local 455, upon request, as the exclusive
collective-bargaining representative of our em-
ployees in a unit consisting of all production
and maintenance employees, including plant
clerical employees, exclusive of all office cleri-
cal employees, superintendents and all supervi-
sors as defined in Section 2(11) of the Act,
with regard to grievances, labor disputes,
wages, rates of pay, hours of employment, or
other conditions of employment.
WE WIl.t. reimburse all our present and
former employees for any initiation fees, dues,
or any assessments of any nature they may
have paid to Local 810 pursuant to the terms
of our unlawful contract with Local 810, with
interest at the rate of 6 percent per annum,
computed from the dates the said moneys
were paid to Local 810.
EMPLOYEES, pursuant to Section 9(c)(1) of the
National Labor Relations Act, may petition the
National Labor Relations Board for an election to
decertify and remove Local 455 as their bargaining
representative. The filing of such a petition can
only be done as the voluntary act and choice of the
employees and on their own initiative, without co-
ercion, encouragement, or assistance from manage-
ment. All applicable rules, regulations, and stand-
ards for conducting such an election must be met.
MASTER IRON CRAFT CORP.
927
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL DECISION
STAITEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge:
On August 11, 1977, the National Labor Relations
Board, herein called the Board, issued its decision,' in
the above-entitled case, finding that various Respondents
violated Section 8(a)(1), (2), (3), and (5), and Section
8(b)(l)(A) of the National Labor Relations Act, herein
called the Act. The Board found, inter alia, that certain
of Respondents had committed the 8(a)(5), (3), and (2)
violations by recognizing and entering into collective-
bargaining agreements with Steel, Metals, Alloys and
Hardware Fabricators and Warehousemen, Local 810, af-
filiated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called Local 810, at a time when they were obli-
gated to bargain collectively through the Independent
Association of Steel Fabricators, Inc., herein called the
Association, with Shopmen's Local Union No. 455, In-
ternational Association of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO, herein called Local
455.
Thereafter, upon the Board's petition for enforcement,
the United States Court of Appeals for the Second Cir-
cuit enforced in part, and denied enforcement in part, of
the Board's Decision and Order. 2 The court found, inter
alia, that a group of six Respondent-Employers, whom
the court denominated as Class I Employers, were guilty
of 8(a)(5) violations "by executing contracts with Local
810 before communicating their withdrawal [from Asso-
ciation bargaining] to Local 455." The court, however,
left open whether the appropriate remedy was that the
said Respondent-Employers be required to bargain with
Local 455, as the Board had ordered, or if an election
was preferable. With regard to a group of three Re-
spondent-Employers, whom the court denominated as
Class II1 Employers, the court was not willing to find
that on the record evidence these Respondent-Employers
committed 8(a)(5) violations. Rather, the court invited
any party to the proceeding to petition the Board to take
evidence as to whether any of the said Respondent-Em-
ployers, at the time each signed collective-bargaining
agreements with Local 810, which agreements contained
union security and checkoff provisions, either had a
"rational basis for doubting" that Local 455 had lost its
majority status among their employees, or, whether, in
fact, Local 455 had lost its majority status among the
employees of any of those Respondent-Employers. 4
If either could be established, the court was prepared
to find no 8(a)(5) violations on the part of these Class II
Respondent-Employers and, further, that by entering
into collective-bargaining agreements with Local 810
they had not violated the Act.
On the other hand, if the evidence failed to establish
that Local 455 had lost majority status and that no Class
I Independent Association of Steel Fabricators, Inc., 231 NLRH 264
(1977).
2 N.L.R.B. v. Independent Avsociation of Steel Fabricators. Inc.. et al.,
582 F 2d 135 (2d Cir 1978)
3 Id at 150.
41d. at 151, 153, fn. 37.
11 Employer had a rational doubt based upon objective
considerations that Local 455 had lost majority status at
the time the Class II Respondent-Employers signed col-
lective-bargaining agreements with Local 810, then, in
that event, the court would find that the Class II Em-
ployers were guilty of 8(a)(5) violations.5
The court's opinion further directed that if the Board
concluded that any Class II Respondent-Employers had
committed 8(a)(5) violations the Board was to decide
whether a bargaining order or an election was the pre-
ferred remedy.
In accordance with the Court's decision, as set forth
above, on August 18, 1978, Local 455 filed a motion to
reopen the hearing in the present proceeding for the pur-
pose of taking evidence with respect to the imposition of
a bargaining order upon Employers in Classes I and II.
On August 28, 1978, the Respondent-Employers filed a
memorandum in opposition to the motion to reopen the
hearing, urging that the Board deny the motion and
process certain petitions for election now blocked by the
instant proceeding. Thereafter, on December 11, 1978,
the General Counsel filed a motion for the issuance of
bargaining orders with respect to those Respondent-Em-
ployers in Class I and for a hearing with respect to the
remedy for Respondent-Employers in Class II. Thereaf-
ter, by Order dated February 1, 1979, and a Supplemen-
tal Order dated April 9, 1979, the Board ordered the
hearing reopened and remanded to the Regional Direc-
tor for Region 29 for the purpose of arranging such fur-
ther hearing in accordance with the motions and memo-
randa filed. The Board further ordered that a hearing be
held before an administrative law judge for the purpose
of receiving further evidence relevant to the appropriate
remedy, if any, with respect to the 8(a)(5) violations
committed by Employers in Classes I and II and with re-
spect to the issue of majority status of Local 455 as it re-
lates to Class II Respondent-Employers and/or those
Employers' rational doubt with regard to the majority
status of Local 455 at the critical times.
Pursuant to the Board's aforesaid order and supple-
mental order of remand, a hearing was held at Brooklyn,
New York. At the hearing, all parties were given oppor-
tunity to present evidence and to make oral argument.
Thereafter, briefs were filed by the General Counsel, the
Respondents, and the Charging Party.
Upon my observation of the witnesses, and upon the
entire record in the supplemental and original proceed-
ings, I make the following:
FINDINGS OF FACT
1. THE ISSUES
As noted, the court of appeals, enforcing the Board's
Decision and Order, in part, held that six Respondent-
Employers 6 whom the court designated as Class I Em-
ployers, violated Section 8(a)(5) of the Act by entering
into collective-bargaining agreements with Local 810
before giving notice of withdrawal from the Association,
s Id.
Roman, Greenpoint, Paxton, Melto, Long Island, and Mohawk.
928
INDEPENDENT ASSOCIATION OF STEEFI FABRICATORS, INC
thereby disabling themselves from bargaining with Local
455, at that time still recognized by the Association as
the bargaining agent of the Association members' em-
ployees. The court further designated as Class II Em-
ployers, two who signed agreements with Local 810
after giving notice,' and one which did not give notice,"
but signed with Local 810 after January 19, 1976, the
date on which written notice was received by the Union
of the withdrawal of multiemployer bargaining of a ma-
jority of the members of the Association and when mul-
tiemployer bargaining had effectively collapsed. With
regard to the Class II Employers the court held:9
So far as respondents in the second class are con-
cerned, since they intended to sign with some
union, we believe that they were under a duty to
seek bargaining with Local 455 on an individual
basis before negotiating with Local 810. Their ex-
ecution of agreements with Local 810 constituted a
refusal to bargain which is excusable only if, at the
time of execution, Local 455 had lost its majority or
the employers had a rational basis for doubting its
majority. In the absence of evidence as to good
faith doubt or actual loss of majority status, the
Board may find respondents in class two guilty of a
refusal to bargain. '
Finally, the court held, insofar as the appropriateness
of bargaining orders with regard to both Class I and
Class 11 Employers are concerned:'
However, in view of the fact that the unfair labor
practices did not taint election machinery, and be-
cause of the lapse of time and our lack of informa-
tion concerning current labor relations in the indus-
try, we believe that the Board should have an op-
portunity to consider whether an election rather
than an order to bargain with Local 455 might be a
more appropriate sanction for the Section 8(a)(5)
violations here involved. Cf. N.L.R.B. v. Gissel
Packing Co., supra, 395 U.S. at 610-618, 89 S.Ct.
1968. Accordingly, we enforce those portions of the
Board order requiring respondents in class one to
cease recognition of and to abrogate their contracts
with, Local 810 unless and until it is certified. We
leave to the Board's discretion whether to impose
bargaining order on respondents in class one and on
any respondents in class two who are guilty of Sec-
tion 8(a)(5) violations.
Accordingly, under the Board's supplemental remand
order issued pursuant to the court's decision, three issues
are presented. They are:
I. The appropriateness of a bargaining order against
each of the six Class I Respondents found by the Board
and sustained by the Court to have violated Section
8(a)(5) of the Act as a result of entering into separate
bargaining contracts with Local 810 during the period of
I Master and Koenig
8 Cervenka.
9 582 F.2d 135 at 151.
'i Citations omitted.
I Id at 151 and 152
contract negotiations between the Association and Local
455 and prior to the Respondents' withdrawal from the
Association and the consequent disintegration of the mul-
tiemployer unit.
2. Whether the three Class II Respondents, who timely
withdrew from the Association, violated Section 8(a)(5)
by subsequently executing separate contracts with Local
810.
3. If found guilty of thus unlawfully refusing to bar-
gain with Local 455, whether a bargaining order should
issue against each of the three Class II Respondents in
favor of Local 455.
II. THI CASS I RSPONDI)FNT-EMPl.OYE R
Because the court did not hold that a bargaining order
would not be appropriate, but left it to the Board's ex-
pertise and discretion to determine the matter in the light
of the lapse of time and current labor relations in the in-
dustry, it is necessary for the Board to determine from
the evidence presented by all parties in both the first and
second hearings to evaluate whether a bargaining order
or an election would be more appropriate. In connection
with this, the court also observed that although Mohawk
and Paxton violated Section 8(a)(5) "regardless of any
shift in loyalties among their own employees at the
time"' 2 they executed contracts with Local 810, the
Board was, nevertheless, free to consider such evidence
of Mohawk's and Paxton's good-faith doubt of Local
455's majority status at that time "in determining wheth-
er an election rather than a bargaining order would at
this point be a more appropriate sanction."
A. fohawk Steel Fabricators, Inc.
Warren Reis, president of Mohawk, testified that as of
the day the strike began, on June 30, 1975, Mohawk em-
ployed 11 employees and I who was on layoff. Of these
12 employees, 3 were employed as of the date of the sup-
plemental hearing herein. These three returned to work
and crossed the picket line sometime in January 1976.
Additionally, according to Reis, there has been no pick-
eting by Local 455 at Mohawk's place of business since
sometime in 1977. Even when there was picketing, the
picketing was conducted by strangers and not by the em-
ployees or past employees of Mohawk, except on rare
occasions; none since the spring of 1976. The three em-
ployees who returned to work in January 1976, did not
do so until after Reis had signed the contract with Local
810. However, the record reveals, also, that despite the
fact that the Local 455 contract with Reis expired in
June 1975, and despite the fact that, therefore, there was
no active union security or checkoff provision in effect
thereafter, 6 of the 12 employees of Mohawk continued
to pay dues to Local 455 after January 9, the date Reis,
on behalf of Mohawk, signed with Local 810.
According to Reis, in early January 1976, striking em-
ployees White, Michaud, and Hicke, the three employees
presently employed by Mohawk, told Reis they had
signed cards with Local 810 and desired to be represent-
ed by that Union. As a result of this information, Reis
12 Id at fn 34
DECISIONS OF NAIIONAl. L.ABOR RELATIONS OARD
arranged an appointment with Local 810, attended a
meeting with Local 810 together with two of the three
employees and negotiated and executed a contract with
Local 810 on January 9. Reis testified that he had not
spoken to any of these employees prior to this time re-
garding Local 810 and had had no contact whatsoever
with Local 810. Nor had he attended any meetings in
which the Local 810 president, Silverman, had addressed
the members of the Association.
John Zito, the treasurer of Local 455, testified that
every employee of Mohawk employed by Mohawk as of
June 30, 1975, has since, with the exception of employee
O'Connor, been either suspended or has died. The record
further shows, however, that White and Michaud paid
dues to Local 455 only through December 1975 and that,
coincidentally, Hicke made his last dues payment to
Local 455 on January 9, 1976. All three of these employ-
ees, presently employed by Respondent Mohawk, were
suspended either in June or July 1976, and are no longer
members of Local 455. Nevertheless, under International
Iron Workers Union policy, they remained members
until suspended. Additionally, there is no record showing
of the number of employees, in addition to the three
above-named, who are employed currently by Mohawk.
Neither does the record show that any other Mohawk
employee is currently a member of Local 455, even as-
suming that there are other Mohawk employees.
B. Roman Iron Works. Inc.
Merigo Salvatore, president of Roman, testified, with-
out contradiction that at the time the strike began on
July 1, 1975, Roman employed five employees all of
whom were at that time members of Local 455. These
men were Richard Catilano, Reynold Diuro, Lucio Per-
ruzza, Michael Shurra, and Rufus Ziegler. At an unspeci-
fied time, but a time during which the strike was still on,
Ziegler, Shurra, and Diuro returned to work and, ac-
cording to Salvatore, are still employed by Roman. Cati-
lano and Perruzza have not returned, Catilano having re-
tired and Perruzza evidently not having returned to
work at all. The record does not reveal whether Per-
ruzza is still employed in the industry. In addition to the
three former Local 455 members who returned to work,
Respondent Roman also has two other employees who
never were, and are not now, members of Local 455.
Moreover, there have been no pickets from Local 455
for over I year prior to the hearing date.
On the other hand, introduced into evidence are the
records of the dues paid by the five individuals above-
named, all of whom with the possible exception of
Diuro, remained members of Local 455 for a consider-
able time after Roman signed a contract with Local 810.
As found in the original Board and court decisions,
Roman executed a collective-bargaining agreement with
Local 810 on November 18, 1975. With regard to the
employees' continued membership in Local 455, the re-
cords of the Union show that Catilano last paid dues on
March 31 for March 1976, Diuro paid dues on June 9,
1975, for June 1975, Perruzza paid dues on March 31,
1978, for April 1978, Shurra paid dues on August 31,
1976, for June 1976, and Ziegler paid dues on March 24,
1976, through November 1976. Thus, on the date that
Roman signed, which is the critical date, four out of its
five striking employees were members of Local 455. Fur-
thermore, four out of the five remained members long
after the execution of the contract with Local 810. Final-
ly, two out of the three presently employed former union
members, Shurra and Ziegler paid dues to Local 455
long after the execution of the said collective-bargaining
agreement with Local 810.
C. Melto Metal Products Co., Inc.
According to Melto's president, Bernard Liebman, his
Company employed two Local 455 members, Joseph
Bergman and Anthony Barelli, at the time the strike
began. The latter employee never returned to work but
continued his dues and payments to Local 455 through
January 1976. He was subsequently suspended from
membership 6 months thereafter. Bergman returned to
work for Melto in mid-1976. His last payment of dues to
Local 455 was made for November 1978 and, therefore,
he was suspended from membership 6 months thereafter.
At some time during the strike, Melto discontinued its
steel fabrication operation and now employs two nonfa-
bricating warehouse employees, one of whom is Berg-
man. Its business now consists entirely of purchasing pre-
fabricated aluminum store-front material and erecting the
same at customers' places of business. Local 455 has not
picketed-Melto's premises since early 1976.
Although William Colavito, Local 455 president, testi-
fied that Local 455 represents employees who do ware-
house work at other employers' plants, counsel for Gen-
eral Counsel virtually concedes that the original Melto
bargaining unit has disappeared for all intents and pur-
poses.
D. Greenpoint Ornamental and Structural Iron
Works, Inc., Paxton Metalcraft Corp. and Long
Island Steel Products Co.
No evidence was offered on behalf of Greenpoint,
Paxton, or Long Island. Counsel for the other Respond-
ents stated on the record that he was informed these
three Respondents are out of business. However, inas-
much as there was no actual evidence with regard to
whether they are out of business, they will be treated as
though they did not present any evidence and, therefore,
their actions must stand upon the basis of whatever infor-
mation there is with regard to them in the record of the
first hearing on these cases. However, it should be noted,
that the court sustained the independent 8(a)(1) and (2),
as well as the 8(a)(5), violations against Greenpoint,
Paxton, and Long Island.
E. Conclusions as to the Class I Respondent-
Employers
It is significant that the court in its opinion did not
hold that a bargaining order could not be found to be ap-
propriate, but left it to "the Board's expertise" and "dis-
cretion" to determine the matter in the light of the lapse
of time (probably since the commission of the unfair
labor practices) and current labor relations in the indus-
try. It is difficult, in view of all of the facts presented, to
determine what the "current labor relations in the indus-
INI)FPFNDFNT ,ASS()CIATION O() STEEL FABRICATORS. INC
try are, and, parenthetically, what the court meant by
thecurrent labor relations in the industry." If the court
was referring to the number of Local 455 employees still
engaged in the employ of any of the Class I Respondent-
Employers, it must be noted that I.ocal 455 has few
members, if any, currently employed by them as of the
date of the second hearing herein. The said Respondents
contend that at the present time the best way to remedy
their unlawful refusal to bargain is to direct representa-
tion elections and thus protect the freedom of choice of
their current employees. In support of their position,
they rely on the court's statement to the effect that the
election machinery remains untainted: the lapse of time
since the commission of the unfair labor practices; the
fact that no employee of Melto or Roman who was em-
ployed at the time of the strike has remained a member
of Local 455; the fact that perhaps 2 of approximately 10
to 12 employees of Mohawk, have remained in that labor
organization; the fact that Melto is no longer engaged in
fabricating union work, and that the one former Local
455 member in its present employee complement per-
forms only nonunit warehouse work; the fact that three
of Roman's and three of Mohawk's former Local 455
members have abandoned the strike; the fact that since
1976 picketing of these Respondent-Employers has been
minimal and, in some instances, abandoned for as long as
2 years; and finally, the fact that Mohawk, Roman, and
Melto have not been found guilty of any unfair labor
practices other than Section 8(a)(5) of the Act.
Further, Respondents maintain, quite correctly, that
that court's opinion has become the law of the case. Re-
spondents further imply that not only the letter of the
opinion as pronounced by the court of appeals, but also,
the spirit of that decision, constitute the guidelines by
which the facts, heretofore presented, must be assessed
and interpreted. Respondents would seem, therefore, to
be urging that the spirit of the court's decision is such
that in the light of these above-recited factors there is
left no alternative but to permit the said Respondents'
current employees to vote in a Board conducted election
as to whether they desired to.be represented by Local
455, Local 810, or by no representative whatsoever.
However, it must be noted, once again, that the court, in
its opinion, did not proscribe a bargaining order, but
merely left it to the Board's discretion as to whether a
bargaining order or an election would be the proper road
to travel.
In connection with above, and contravening the con-
tentions of Respondents, the General Counsel and the
Charging Party urge that there is nothing in the record
developed at the remand hearing or in the court's deci-
sion warranting denial of the customary bargaining order
against the six Class I Respondent-Employers.
Within the framework of the court's opinion, it would
seem that the resolution of the issue raised b the forego-
ing conflicting contentions can be arrived at only by a
balancing approach, that is, whether the factors cited by
the Respondents in support of election are of sufficient
weight to persuade the Board that a bargaining order
should not issue. To this end, reliance on Board decisions
is indicated where the courts have referred like issues
back to the Board ltr the exercise of the Board's exper-
tise.
In a case in some respects similar to the case at bar. "
the United States Court of Appeals for the Second Cir-
cuit, while sustaining the Board's decision that the re-
spondent had refused to bargain in iolation of Section
8(a)(5) of the Act, was troubled by the Board's delay of
over 4 years between the decision of the Administrative
Law Judge and the Board's decision. The court there-
upon withheld for 60 days the entry of judgment enforc-
ing the Board's bargaining order and remanded the case
to the Board for the purpose of the Board's deciding if,
in view of the fregoing, a revision of the remedy would
be advisable. On the remand the Board affirmed its origi-
nal order requiring the respondent to bargain, stating: 14
Such an order is the only effective remedy for the
violations found. Its implementation at this time is
required, in our judgment, despite the unfortunate
passage of time since our original decision, in order
to effectuate the purposes of the Act. To do other-
wise would give an employer an incentive to disre-
gard its duty to bargain in the hope that over a
period of time a union would lose its majority status
or abandon the unit, and the employer would then
not be required to bargain or can seek another elec-
tion.
The employees here ... do not petition us to
free Respondent from the bargaining order remedy
and such a petition would, in any event, be
irrelevant,for the Board enforces the statute to im-
plement public rights thereunder and not to adjudi-
cate private disputes.
For the foregoing reasons we find that the bar-
gaining remedy remains appropriate even assuming
the accuracy of the Respondent's claim of substan-
tial employee turnover in the unit and/or abandon-
ment of the unit by the Union. Accordingly, we
hereby affirm the remedy and order heretofore
issued. 5
Subsequent to the Board's above-cited decision affirm-
ing its original bargaining order, the Second Circuit ap-
proved the Board's affirmance and the Board's order to
bargain despite the long delay in the issuance of the
Board's original decision and bargaining order. 16
Indeed, the Supreme Court using similar language 7
expressly reaffirmed the continued validity of its prior
decisions upholding the Board's expertise to issue a bar-
gaining order to remedy an unlawful refusal to bargain in
preference to a representation election to ascertain the
employees' current desires. "
: Gloma, Plauriw, In. X .\'L.R.B., 586 F 2d 185(2d (' 17)
'4 Glomac Plasic. Inc. 241 Nl.RH 34 (W79)
. IFor a lralilar 1i", and approxa)l h the Second Circult Court of
Appeaks, sete V1..R i Patren lader In,. 42h F 2dI ?71 (2d Cir 197()
"' Ghmloac Plails. li \ I.. R . X F. 2d 3 12d1 C r 19791
' . . R B (ihlw Packing ( Inc, 395 U S 575. hil) 1I 1h)
Hi o r ita omechl a similar si1alon on ;1 remand from Ihe LI'lted
State, (ourl of Appeal otr te [:;F1 Circtll, see te H.,ard's declion i
(h fm Proli tti ( ,ompla ot/ ,ingtgot Irih, l.a . Inc .1 149 NlRH 794,
7 7 ( 1472
931
DECISIONS OF NATI()NAL LABOR RELATIONS BOARD
Additionally, the Supreme Court in N.L.R.B. v. Benne
Katz, etc., d/b/a Williamsburg Steel Products Co.,1' in re-
sponse to the argument of the Respondent-Employer that
the passage of time and/or the repudiation by employees
subsequent to the unfair labor practices of the Employer
called for denial of a bargaining order or that the direc-
tion to bargain should be conditioned upon an election,
held, "inordinate delay in any case is regrettable, but
Congress has introduced no time limitation into the Act
except that in Section 10(b)."
Thus, it is concluded that the indicated authorities jus-
tify a bargaining order to deter future misconduct; to
vindicate employees' statutory rights existing at the time
of the unfair labor practices to bargain collectively
through a representative of their own choosing; to pre-
vent the violator from profiting from his own wrong;
and to expunge the potential lingering effects of the
unfair labor practices. The cited cases clearly indicate
that, on balance of conflicting interest and equities, lapse
of time, substantial employee turnover, loss of union
membership or lack of support for the strike, and the
possibility that present conditions are sufficiently antisep-
tic for the holding of a fair election, do not warrant
denial of a bargaining order. There is no question that
such an order is not intended to fix a permanent relation-
ship so that at an appropriate future time an election
could be sought to ascertain the employees' then current
representation desires.
In coming to the foregoing conclusion. I do not ignore
the precedent of the second circuit's decisions as cited by
the Respondents in their brief.20 In each of the cited
cases, the court did make note of the lapse of time and
the uncertainty of whether the Union actually did, at
that time, represent the employees. It emphasized that
the interest to be protected are those of the employees,
rather than those of the Union itself, and, therefore, en-
forcement of the bargaining orders in each of those cases
was not granted immediately but, rather, the Second Cir-
cuit Court of Appeals conditioned the bargaining orders
upon ascertainment by a new Board election as to
whether the employees desired to be represented by the
particular unions in each of those cases. It is also clear
that the Gibson Products Company case, heretofore
cited, 2 ' in which the Board ordered bargaining after a
remand from the Fifth Circuit for like reason as in the
above-cited cases, when again presented to the Fifth Cir-
cuit that court refused enforcement of that bargaining
order 22 holding that where the Board issues a bargaining
order at a time when the free choice of the employees
involved can be determined by a Board-conducted elec-
tion the remedy becomes punitive rather than remedial.
The court then refused to enforce the Board's bargaining
order as affirmed by the Board.
However, as heretofore stated, the court of appeals in
the instant case, did not determine that a bargaining
I' 369 U S. 736 (1972).
" N.L.R.B. .vldhesive Products Corporuation, 281 F 2d 89 (2d Cir
1960); N..L.R.B. v Marcus Irucking Co., 286 F2d 583 (2d Cir. 1961);
N.L.R.R. v Superior Fireproofj Door & Suh Company, Inc., 289 .2d 713
(2d Cir. 1961)
2' 199 NI.RB 794
22 494 F2d 762 (5th Cir 1974)
order would be improper but rather left it to the Board's
expertise. In such a context, it is obligatory that the facts
of this case must be regarded in the light of the Board's
decision in the Glomac case z a and other like decisions
and, therefore, the above conclusion has been arrived at
by the force of those decisions.
111. THE CI.ASS II RFSPONDIENT-FMPI.OYFRS
As indicated above, the Class II Respondents relate to
the three Employers who signed individual contracts
with Local 810 after the Association had notified Local
455 by letter dated January 16, 1976, which was received
by Local 455 on January 19, 1976, that 19 named mem-
bers had withdrawn bargaining authorization from the
Association. The three Class II Employers are Master
Iron Craft Corp., which signed a contract with Local
810 on January 28, 1976; Koenig Iron Works, Inc.,
which signed a contract with Local 810 on January 30,
1976; and S. Cervenka and Sons, Inc., which signed a
contract with Local 810 on February 17, 1976. None of
these Employers was found to have committed any inde-
pendent 8(a)(1) or (2) violations. 24
The court held that the Employers' withdrawal of bar-
gaining authorization from the Association, and, there-
fore, from the multiemployer bargaining unit, on notice
to Local 455, was permissible because at that time, Local
455 negotiations with the Association had reached an im-
passe without any realistic prospect that further discus-
sions would be fruitful. However, the court further held
that each of these Employers, nevertheless, remained ob-
ligated to bargain with Local 455 on an individual basis
with respect to its own employees unless Local 455 had
lost its majority status in such unit or such Employer had
a reasonably grounded good-faith belief that Local 455
no longer enjoyed the support of a majority of that Re-
spondent's employees. 25
In other words, to exonerate a Class II Respondent of
the charge of unlawfully refusing to bargain with Local
455, the burden rested upon Respondent to prove that
when it executed its contract with Local 810, Local 455
had already lost its majority status in the unit of the par-
ticular Employer's employees or that the Employer at
that time had a good-faith, rationally grounded doubt
that Local 455 continued to enjoy majority support. It is
within these foregoing guidelines that the facts regarding
each Class II1 Employer must be considered.
A. Cervenka
At the time the strike began on July 1, Cervenka had
in its employ four employees, Richard L. Kleiner, Bene-
detto Salerno, Joseph Carpanzano, and Andrew Szan-
iszlo. Although all of the employees went on strike on
July 1, none picketed the plant, instead, during the ensu-
ing 6 months, all, except Szaniszlo, visited the plant with
some regularity where they drank coffee and spoke to
President George Cervenka, even though pickets were
':' Glomac Plastics, Inc., 241 NLRB 348.
24 The court reversed the Board's finding that Master solicited em-
ployees to join Local 810 in violation of Section 8(a)(1) and (2) of the
Act 582 F.2d 135.
Z5 Id at 150
932
INDEPENDENT ASSOCIATION OF STEEL FABRICATORS, INC.
outside the building. As for Szaniszlo, Cervenka did not
see him again after the inception of the strike. According
to George Cervenka, he believed Szaniszlo had retired 6
or 8 months thereafter. In early January 1976, Kleiner,
Salerno, and Carpanzano had advised Cervenka that they
were going to visit Teamsters Local 819 to speak to one
of that Local's business agent. However, Cervenka heard
nothing about the outcome of this visit. Later, in Janu-
ary, these employees informed Cervenka that they had
gone to Local 810, which they wanted to represent
them, and requested Cervenka "possibly" to sign a con-
tract with that Union so that they could return to work.
During these conversations with Cervenka regarding the
possibility of going to 819, but eventually expressing
their desire to join Local 810, Salerno acted as the
spokesman. As a result of this request by the three em-
ployees, Cervenka, who had never previously been in
contact with Local 810, or discussed that organization
with the employees' subsequently, at the employees, re-
quest, went to a Local 810 office and negotiated and
signed a contract with that Union on February 17, 1976.
Thereafter, the three employees returned to work and
continued their employment to the date of the hearing
herein as Cervenka's sole employees. This was so, not-
withstanding the fact that Local 455 picketed Cervenka's
premises in March and April 1976. The original contract
with Local 810, signed on February 17, 1976, was re-
newed in 1979.
Counsel for the General Counsel and Local 455 cite
that Carpanzano, in testifying, stated that he had never
told Cervenka that he did not want Local 455 to repre-
sent him. Furthermore, the record shows that on January
27, 1976, Kleiner paid dues for November 1975, but
never paid thereafter. Salerno, on November 28, 1975,
paid dues for the last time for September 1975, and Car-
panzano paid dues on April 27, 1976. That was the
month in which Carpanzano returned full time to work
for Cervenka. It should be noted that Carpanzano did
not return to work before that period of time, not be-
cause he did not so desire, but because he had been in-
jured and on the day the strike began was on "disabil-
ity." He did not come off that status until April 1976, al-
though, as noted, he did visit the Respondent's plant fre-
quently during that period of time. It should also be
noted, that although these above-named, employees, who
visited the plant quite regularly, did so only after the
pickets had left for the day or before the pickets had ar-
rived and did not otherwise cross the picket line. 26
From the foregoing, it cannot be readily concluded
that Local 455 had lost its majority by February 17, the
date on which Cervenka signed a collective-bargaining
agreement with Local 810. However, the factors recited
above, lead to the conclusion that Cervenka did not vio-
late Section 8(a)(5) of the Act when it negotiated with
Local 810 because Cervenka had ample grounds to ratio-
nally believe the Union had lost its majority status. The
three employees, themselves, came to Cervenka and
z All of the foregoing from credited. uncontradicted testimony of
George Cervernka as substantiated, in part, by the estimony of Carpal-
7ano. Although there 'were some minor conflicts beteen the testirnon
of Carpantano and Cersenka they ere not serious enough to conllcliide
that either of these indiiduall , should be discredited
asked him to accompany them to Local 810 to sign the
agreement. They had originally told him that they were
interested in Local 819. Cervenka had not, up to the date
of the agreement had any communication with Local
810. Finally, the employees made almost daily visits to
Cervenka's shop during the period of time extending
from the date the strike started until the date the agree-
ment with Local 810 was executed and did not, them-
selves, ever picket.
Accordingly, I find and conclude that Cervenka pos-
sessed an objective basis for a good-faith belief that
Local 455 by the date of the execution of the agreement
had lost the support of a majority of Cervenka's employ-
ees. Accordingly, I further find and conclude that Cer-
venka did not violate Section 8(a)(5) or (1) of the Act in
this respect.
B. Koenig
It appears that at the time of the expiration of Koen-
ig's contract with Local 455 on June 30, 1975, Koenig
employed nine unit employees who continued in Koen-
ig's employ through January 30, 1976, the date upon
which Koenig executed a bargaining agreement with
Local 810. It further appears that only six employees
were actually working for the Respondent on January
30, 1976. They were Arniello Pirozzi, Gelsomino Tri-
marco, Vincent Marano, Umberto D'Urso, Christopher
Brown, and Michele Ferrari. The other employees were
either on layoff status or had applied for pension, al-
though at the time of the signing of the contract with
Local 810 they had not been permanently laid off or dis-
charged. Additionally, Brown, D'Urso, Ferrari, Marano,
and Trimarco had ceased paying dues after December
1975. However, there is no showing on the record by
Respondent that Respondent had ever been informed
that any of its employees had ceased paying dues to
Local 455 on December 31, 1975. In fact, the record
shows that they paid their dues on the last day of De-
cember 1975, which would indicate that it was custom-
ary for them to pay on the last day of the month in
which the dues were payable. Moreover, as heretofore
noted, the record establishes that under policy of the In-
ternational Iron Workers members retain their member-
ship for 6 months after the last dues payment is made.
Accordingly, on January 30, 1976, all of the above em-
ployees were members of the Union, including the six
employees who were employed actively by Koenig on
the date of the signing of the contract.
It is undisputed that from the inception of Local 455's
strike, Koenig's unit employees did not participate in the
walkout, but continued to work for Koenig. Neverthe-
less, these employees respected Local 455's picket line by
not reporting for their work assignment at Koenig's pick-
eted shop. Instead, they assembled each morning at a
garage six or seven blocks away to receive their daily
work assignments. From there, they proceeded to what-
ever project was necessary for the work to be per-
formed. 2 7
2 At Ihe Ioriginal hearing herein, employee Ken I eistncr. the son of
Koenig's presideil. and employee Bro,. n. testified the' trosed the l.ocal
(Comilnued
933
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the evening of January 29, 1976, the employees
were called at their homes28 and told to report to the
Respondent's place of business and not to the garage
where they had reported during the entire period of the
strike. Accordingly, contrary to their normal practice
during the strike, the employees reported to Respond-
ent's shop on the morning of January 30. When they ar-
rived on the first floor of Respondent's plant, two repre-
sentatives of Local 810 greeted them. They were told by
these representatives that they would be joining Local
810, but that before they could do so, they would have
to go outside the shop and picket for a short period of
time. The six went outside for a period of approximately
5 to 10 minutes. Then, they were called back in, and
they thereupon signed the agreement presented to them
by Local 810. Sol Leistner, Koenig's president, also
signed at that time or shortly before or after. With the
exception of employee Marano, the other employees
who signed the agreement that day all testified that they
had never previously been contacted by, or had visited
the quarters of, Local 810.29
In connection with the employees being called into the
shop on that morning, they testified that they had no
reason to report to the shop, other than the request tele-
phoned to them, inasmuch as there was no work to be
done in the shop at that time. Additionally, the employ-
ees testified they had never informed any of the officials
of Koenig that they no longer wanted Local 455 to rep-
resent them. Although Barry Leistner, Koenig's vice
president, testified Koenig never had contact with Local
810 before that morning of January 30, minutes after the
extremely short "strike" on behalf of Local 810, the
I-eistners signed the bargaining agreement with that
Union.
From all of the foregoing, I find and conclude that
Local 455 had ot, at the time of the execution of the
contract, lost its majority status as the bargaining repre-
sentative of Koenig's employees. Moreover, I cannot
credit Barry Leistner in his testimony either at the first
hearing or at the supplemental hearing to the effect that
the Leistner's knew nothing about Local 810 before the
morning of January 30, 1976. The peculiar, to say the
least, happenings of that morning; the calls to the various
employees to come into the shop when for the months
before that morning they had always reported to the
garage six or seven blocks away in order to receive their
work instructions each day; the so-called strike and pick-
eting which lasted for but a few minutes; the immediate
signing of the contract; and the admissions by the em-
ployees in testifying that they liked Local 455 but joined
455 picket linc at Kienig's li p. Marano, als o testified to the efflc Ihat
he crossed the picket line b ut for reasons slated elsewhere, Marano's ts-
limo yN is tot redited.
H rhe record does nt reeal u ho called them
" It ployee Ma irano testified to the effect that some tirie before this
date the employees had decided to oin l Local 80I ad had sirted Local
81)'s headquarters hlowever, Ince of the other employees so testif ied
[or thi s easo1 ad other contradictions i Marant', testii tly , and frIonI
iny oberatolin of hif ant d [he manner in hich lie testified. I coincluide
lhit Maraito. f r t he niotI prt. ciitlit be crediled It shild he noed
thlt he e ttnpl C y ce us ,} o te ified. rlth Ihc exceptti tif I'iro,,i acre still
lrkilng fur Rspionden at tie ine the tt t' lilyiti) was gi\' it. ailll there-
ore, ale credit ed bl caus e if Ihi fact that their empliiyct is i i pI tionl tIo
v iI re prpi sals II iheli
Local 810, obviously to keep on working, are convincing
factors which lead to the conclusion that the officials of
Koenig, Sol and Barry Leistner did know, or had been
approached by, or had themselves approached Local 810
before that morning. Therefor, they could not have en-
tertained a good faith doubt that Local 455 had lost its
majority status among the employees in the unit in the
Koenig shop.
Accordingly, I find that by signing with Local 810,
Koenig violated Section 8(a)(5) of the Act. I further con-
clude that Koenig has failed to establish that Local 455
had either lost its majority status among Koenig's em-
ployees or that Koenig entertained a good-faith doubt
that Local 455 had lost its majority status.
C. Master Iron Craft Corp.
On June 30, 1975, the date of the expiration of Mas-
ter's contract with Local 455, Master employed seven of
the eight unit employees listed on the then existing se-
niority roster, all of whom were members of Local 455.
Thus, Anthony Ariano, Robert Scott, Vincent J. Can-
gemi, Enrico Amico, and Guido Pagan were working on
that date. Moshe Waldman and Ben Braver were then on
layoff status, or on leave of absence. According to the
record, Waldman and Braver, although on leave or
layoff status from April 1975, had recall rights under the
contract with Local 455 which expired on June 30, 1975.
From the inception of the Local 455 strike, which began
on July 1, 1975, four of the seven employees, Ariano,
Braver, Cangemi, and Waldman continued the payment
of their dues to Local 455 through the end of January
1976. Pagan made his last payment in December 1975;
Amico in September 1975; and Scott paid in March 1976
for dues owed for November 1975. Of course, as is true
of all members of Local 455, International Iron Workers
provides that all of these employees retained their mem-
bership for 6 months after their last payment of dues.
Accordingly, all Master's employees were members of
Local 455 during the month of January 1976 whether or
not they actively supported that union. Additionally, the
record does not show that there were any new unit em-
ployees hired during the strike and before Master execut-
ed its bargaining agreement with Local 810 on January
28, 1976. Nor is there any evidence that any unit em-
ployee was discharged or quit or retired from the indus-
try during that time, although Local 455 records show
that two members who were not working on the day the
strike began, or on the last day of the contract with
Local 455, Waldman and Braver, have since become in-
active, Waldman having joined the plumbers union and
having taken a job with a plumbing contractor, and
Braver having retired in 1977. In any event, neither of
these two employees ever returned to work for Master.
As noted, on January 28, Master signed a collective-
bargaining agreement with Local 810. On that date,
Master had in its active employ three of the employees
above-mentioned, Amico, Ariano, and Pagan. These
three employees crossed the picket line to go to work
some time before that date. According to Murray
Scheiner, president of Master, none of his employees
934
INDEPENDENT ASSOCIATION OF STEEL FABRICATORS, INC
ever picketed at Master's shop, all the picketing having
been conducted by strangers.
Concerning the circumstances of Master's signing of
the Local 810 agreement, the uncontroverted testimony
of Scheiner shows30 that in late December 1975,
Scheiner was approached by a Local 810 representative
who advised him that Local 810 represented a majority
of Master's employees and requested negotiations.
Scheiner put him off, but in January 1976, he was again
approached by Local 810's representative who exhibited
the signed cards of Amico, Ariano, and Pagan, who
were the only employees working in the shop at that
time.3 ' As a result of this meeting, Scheiner negotiated
and signed a collective-bargaining agreement with Local
810, as stated above, on January 28, 1976.
Although at the time Scheiner signed the collective-
bargaining agreement with Local 810, Local 455 had not
lost its majority status because of the extension of the
time given by the International Iron Workers' policy of
extending membership for 6 months after the last date
upon which dues of a member is paid, there is reason to
conclude that Scheiner entertained a good faith doubt,
objectively grounded, as to Local 455's continued major-
ity status.
Counsel for the General Counsel and the Charging
Party contend Counsel for the General Counsel and the
Charging Party contend that the three signed designation
cards could not constitute a showing of a majority of the
seven employees in the unit as of the date of the strike,
there is, likewise, no evidence that Scheiner had knowl-
edge that any of the other employees would be returning
to work for Master. The record shows that employee
Scott, who eventually came back to work for the Re-
spondent, did not do so until some time after the signing
of the agreement. Furthermore, as noted above, the last
month for which Scott paid dues was November 1975.
Because of this, the three employees, who were the only
employees in the shop on January 28, constituted a ma-
jority of the bargaining unit of which Scheiner could
reasonably have known. None of the employees ever ap-
peared, beside these three, during the strike, nor had any
of them picketed. Furthermore, these three employees
crossed the picket line and never did support the strike.
Moreover, it should be noted, that Master, like the other
Class 11 Employers, has been held by the court of ap-
peals not to have committed any other unfair labor prac-
tices.
Accordingly, I agree with Respondent that all of the
foregoing establishes, at a minimum, a rational basis for
Master's believing that Local 455 no longer enjoyed ma-
jority status as of the date of the agreement vsith Local
810.
I find and conclude that in the case of Master no un-
lawful refusal to bargain with Local 455 was proved.
:" From he origirnal hearing herein
: Although the signer, of the cardts crc no1l specifiTca;ls Identified
the signers would have neessaril hbeen Amico. Ariano. illld Pagan. ainil-
much as t he were Iht onl, ermploscs working at Illthat tlie
D. Conclusions as to the Class II Employers
With regard to Cervenka and Master, I find and con-
clude that neither of these Respondent-Employers were
guilty of a Section 8(a)(5), bad-faith refusal to bargain
with ocal 455 inasmuch as they both had an objectively
grounded, rational belief that Local 455 had lost its ma-
jority status on or before the date upon which they
signed collective-bargaining agreements with Local 810.
However, as to Koenig, I find that the entire circum-
stances surrounding the execution of its contract with
Local 810, and the fact that its employees were still
members of Local 455 at the time, warrant the conclu-
sion that Koenig deliberately signed a collective-bargain-
ing agreement with Local 810 in order to rid itself of its
obligation to bargain with Local 455. Accordingly, I find
and conclude, for the reasons set forth in the cases of the
Class I Respondents, that a bargaining order is the only
proper remedy under Board precedent with regard to
Koenig.
CONCLUSIONS OF LAW
Effectuation of statutory policy requires the issuance
of bargaining orders against all the Class I Employers
and Koenig to restore the status existing prior to the
dates enumerated on which the following Respondents
entered into bargaining agreements with Local 810:
Roman Iron Works,
Inc.
Greenpoint
Ornamental and
Structural Iron
Works, Inc.
Paxton Metalcraft
Corp.
Long Island Steel
Products Co.
Mohawk Steel
Fabricators, Inc.
Koenig Iron Works,
Inc.
Melto Metal Products
Co., Inc. (When,
as and if Melto
resumes the
business
of steel
fabricating.)
November 18, 1975
November 20, 1975
December 5, 1975
January 6, 1976
January 9, 1976
January 30. 1976
December 22, 1975
It is further concluded that by signing collective-bar-
gaining agreements with Local 810, S. Cervenka and
Sons, Inc. and Master Iron Craft Corp., have not refused
to bargain with Local 445 in violation of Section 8(a)(5)
of the Act.:12
[Recommended Order omitted from publication.]
:2 rror, irl hi tranhe r ripl hac bheel lolted anlld corrected
935