Arden Electric, Et Al.

National Labor Relations Board - Board Decisions

Jun 4, 1985

275 N.L.R.B. 654 (N.L.R.B. 1985)

654. . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arden Electric, et al. and Local 340, International
Brotherhood of Electrical Workers, affiliated
with International Brotherhood of Electrical
Workers,- AFL-CIO, Petitioner . Cases 20-RC-
15401 through 20-RC-15417
4 June 1985
-.DECISION ON REVIEW AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 December 1981 the Acting Regional Di-
rector for Region 20 administratively dismissed the
instant petitions, finding they did not raise a ques-
tion concerning representation in an appropriate
unit because the appropriate unit was multiemploy-
er-wide. Petitioner, and Employer Collins Electric
Co. each filed timely requests for review, arguing
that the Sacramento Valley Chapter of the Nation-
al Electrical- Contractors Association (S/NECA)
was authorized to bargain only with Petitioner, the
multiemployer unit dissolved once S/NECA ac-
cepted Petitioner's disclaimer, and therefore the pe-
titions were valid. S/NECA and certain Employ-
ers' filed responses to the requests for review, as-
serting that S/NECA had been granted broad au-
thority to bargain on its constituents' behalf and
the multiemployer unit survived Petitioner's dis-
claimer of interest. . • - .
On 5 May 1982• the Board, through its Executive
Secretary, issued a Ruling on Administrative
Action which granted the -requests for review, rein-
stated the petitions, and directed a hearing to re-
solve the issues raised. S/NECA and certain Em-
ployers filed a motion for .reconsideration. On 12
August 1982 the Board granted the motion in part,
amending its previous ruling by directing a hearing
on the continued existence of the multiemployer
unit and ordering that, after the hearing, the case
be transferred to the Board for further consider-
ation. Arden Electric, 263 NLRB 318 (1982). ' '
The case was consolidated for hearing with a re'
lated unfair labor practice case,2 and -Administra-
tive Law Judge Jay R. Pollock conducted the
hearing. On 28 February 1983 the judge issued an
ordei severing the cases and transferring the instant
case to the Board. - z '
S/NECA and Employers Arden Electric, Beard
Construction, Branstner Electric, Carlyle Electric,
Neuffer Electric, Perri Electric, Peters Electric,
and Stage I Electric filed a consolidated brief. Em-
ployer s,Luppen & Hawley, Foss Co., M&M Elec-
tric , Gatejen Electric , Stein Electric , and G.J.
Yamas Co . also filed a consolidated brief . Employ-
er Collins Electric , Petitioner , and International
Brotherhood of Electrical Workers, AFL-CIO
(IBEW), which had been permitted to intervene,
each filed separate briefs.
Having considered the entire record and the par-
ties' arguments concerning the issues under review,
the Board makes the following findings.
1. FACTS
For at least 20 years before 1981, S/NECA and
Petitioner engaged in collective bargaining in a
multiemployer unit, negotiating three, basic types of
agreements covering various electrical contracting
work.3 Before 1975 employers granted S/NECA
bargaining authority by becoming members"in the
association or signing a Letter of Assent A. Ac-
cording to. the bylaws then in effect, a member's
authority to negotiate labor agreements was "ex-
pressly and exclusively" granted to S/NECA.
Assent A was, however, more narrow, authorizing
S/NECA as the "collective bargaining representa-
tive for all matters contained in or pertaining to the
current approved . . . labor agreement between,
[S/NECA] and Local Union [340], IBEW" until
timely notice of termination.
S/NECA and its national office, National Elec-
trical Contractors Association (NECA), perceived
certain problems with the agreement. First, they
feared that Assent A's grant of bargaining author-
ity expired with the pertinent IBEW labor agree-
ment and thus freed the .signers to bargain individ-
ually during a strike.4 Second, they were con-
cerned that the bylaws' delegation of bargaining
authority required S/NECA to negotiate contracts
with unions representing other trades * if a member
wished' or, conversely, prevented employers from
entering into such contracts without the benefit of
S/NECA representation.
At a 6 November 1975 meeting S/NECA's
board of directors considered a revised letter of
assent proposed by NECA and decided to adopt it,
except for, certain. damage clauses. The new assent,
entitled "Letter of Assent Multi-Employer Agree-
ment," in pertinent part provided as follows:
1. The undersigned hereby. designates the
Sacramento Valley- Chapter, NECA, as its bar-
gaining agent, and further agrees to be bound
,by all . collective bargaining and/or other
s These contiacts' were the Inside Wiieman's Agreement, the Material
i Beard Construction Co, Carlyle Electric Co ,'and Stage I Electric Handler's Agreement , and the Line Agreement
Co 4 At its 1974 convention , IBEW adopted a resolution that in effect per-
' 2 Grason Electric Co, 20-CA-16872 ' This case is now pending before mitted its local unions to'stnke rather than submit disputes to the Council
the Board . on Industrial Relations-
275 NLRB No. 95
ARDEN ELECTRIC
agreements in effect as of this date and all
future collective bargaining and/or other
agreements executed by the Sacramento
Valley Chapter on its behalf, with the Interna-
tional Brotherhood of Electrical Workers and
its local unions and other unions as determined
necessary and authorized by the Chapter
Board of Directors covering work that is asso-
ciated with "electrical contracting."
2. The Chapter shall constitute a multi-em-
ployer bargaining unit and no unit member
shall negotiate or execute a collective bargain-
ing agreement covering unit work, (i.e., work
that is associated with electrical contracting)
other than through the Chapter or as author-
ized by the Chapter.5
In a letter dated 16 December 1975, S/NECA's
executive manager, Ken Carlson, informed the
membership of the decision to employ the m ultiem-
ployer assent. This letter, which was the only doc-
ument ever sent to employers to explain the new
assent, provided as follows:
Our- present By-Laws, -which you are a signa-.
tory to, state that the authority to negotiate
agreements with labor organizations encom-
passing wages, hours, working and other con-
ditions affecting employees is expressly and ex-
clusively delegated to the Chapter: Also, that
no member shall independently enter into any
such agreement with a labor organization.
It is the feeling of the Board of Directors that
the above type language is too broad and
covers more than just IBEW. Many "of our
members have more than one craft to deal
with and it was-never the intent that the Chap-
ter negotiate with the laborers, carpenters, op-
erating engineers, etc. -
For this reason, the Chapter has had prepared
a "Multi Employer Bargaining Agreement" to
be signed by each member that -would limit the
Chapter's authority to bargain, to the ' IBEW
and other unions as determined necessary by
the Board of Directors. '
After our' members have signed 'the enclosed
letter it is the -Board's -intent to delete all refer-
ence of bargaining rights from the By-Laws.6
There is some conflict about whether par 2 of the' multiemployer
assent included the parenthetical definition of unit work recited above In
light of all the record evidence bearing on the meaning of the document,
we find it unnecessary to resolve the conflict .
6 It is not clear why Carlson did not inform the members of the fact
that the multiemployer assent was also designed to avoid the possibility
of an employer 's lawfully abandoning the unit dung a strike
655
True to the plan outlined in the letter,
S/NECA's board of directors met on 4 May 1978
and adopted the following resolution:
WHEREAS: The Board of Directors of this
Chapter having reviewed the New Proposed
Restated By laws'[sic] and specifically Article
[16], which formally established an I.B.E.W.
Employers Section that has been in Quasi Ex-
istence for the past several years and,
WHEREAS: Article [4], Section 11 of the Re-
stated By-Laws states that Employers who
elect to hire I.B.E.W. Electrical Workers shall
delegate the authority to negotiate agreements
to - the Chapter - through a separate Employer
Bargaining Assent approved for that purpose
by the -Board of Directors, now therefore be
it,
RESOLVED: That upon approval ,by the
Membership. of the Restated By-Laws that this
Board of Directors approve the _ revised Multi;
Employer Bargaining Assent Agreement to be
signed by all NECA Members who are, or
elect to be I.B.E.W. Employers, and be it fur-.
ther, -
RESOLVED: That-this same Multi-Employer
Bargaining Assent Agreement be available to
all I.B.E.W. Employers who are not members
of this Association and who desire the Asso-
ciation to bargain in their behalf..
These bylaws were in effect in 1978.7
Article 4, section 11 of the revised bylaws re-
quired members "who elect to-hire I.B.E.W. Elec-
trical Workers" to delegate bargaining `authority
"expressly and exclusively" to S/NECA through
the multiemployer assent . Article 16 established an
"I.B.E.W. -Employers" section made, up of multi-
employer assent signers and stated that' the sec-
tion's purpose was, amonga ong other things, to negoti-
ate labor agreements.8 That article also provided
that employers would be bound-to the terms of the
relevant agreement. by,signing an Assent A. It ap-
pears that each petitioned-for employer signed one
or both of the assents S'/NECA used.9
-,The bylaws were modified in 1979, but not materially S/NECA's
bylaws use Roman numerals io designate the article and Arabic numerals
to designate the section For clarity , we will use Arabic numerals to des-
ignate both :, -, '
Art 8; sec ,1, provided- that "[w]hen the President [of S/NECA] is
ah I B E W employei he shall also be chairman of the I B E W employ-
ers section " Art 16 directed the chairman to "sign labor agreements for
the I B E W employers section" on instructions from S/NECA's board.
e The record is ambiguous on this point concerning Slater Electric Co
In,Lght of our ultimate disposition , we find it unnecessary to resolve this
ambiguity
656 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bargaining for the new contracts in 1981 was un-
successful, and in-June 1981 the employees went on
strike. As the parties' relationship deteriorated,
S/NECA heard rumors that Petitioner planned to
disclaim or decertify the unit. Through its attorney,
S/NECA contacted at least three unions about the
possibility of entering into an agreement if Petition-
er and S/NECA terminated their relationship.10
On 14 September 1981 Petitioner's membership
voted to disclaim interest in the multiemployer
unit, and on the-following day Petitioner's presi-
dent, Lee Frith, delivered a letter to S/NECA stat-
ing that Petitioner disclaimed 'interest in represent-
ing the employees in the multiemployer bargaining
unit.
Ken Carlson received the disclaimer 15 Septem-
ber 1981 and the next morning called Mark
Hughes, NECA's director of labor relations, to ask
whether IBEW permitted such disclaimers. Hughes
contacted an IBEW official and immediately called
Carlson to inform him that Petitioner did not have
authority to disclaim. Sam Myers, a member of the
board of directors, testified that the board met later
that day to consider the appropriate course of
action. Steven Moore, also a board member, testi-
fied that the board, although aware it could refuse
the disclaimer, decided to accept it. Carlson, under
directions from the S/NECA board, sent Petitioner
a telegram dated 16 September, 1981 thanking it for
the disclaimer, stating that S/NECA had begun ne-
gotiations with another union, and requesting Peti-
tioner not to contact any employers in the unit for
individual negotiations., 1 1
Soon thereafter, S/NECA began discussions
with the Steelworkers and the National Association
of Independent Unions (NAIU) about negotiating a
contract. S/NECA also `had several meetings with
representatives of Petitioner and IBEW in _ an un-
successful effort to resolve the differences. On 25
September 1981, during the midst of these discus-
sions , Petitioner filed the instant petitions:
S/NECA's attorney learned about the petitions 26
September 1981. On 1 October- 1981, however,
S/NECA signed a contract with NAIU purporting
to bind all employers which had signed either an
Assent A or a multiemployer assent . S/NECA first
notified employers of the contract 2 October 1981
at a general membership meeting.
II. ANALYSIS AND CONCLUSIONS
The- question before us is whether the petitions
should be dismissed because they seek single em-
ployer units which are inappropriate because of the
[o S/NECA apparently contemplated entering into an agreement gov-
erned by Sec' 8(f) of the Act
I I S/NECA had not in fact begun such negotiations
employer's participation in a multiemployer unit.
For'the reasons stated below, we find that the em-
ployers were not part of the multiemployer unit
when-the petitions were filed, and therefore the pe-
titions should be processed.
It is axiomatic -that the basis for multiemployer
bargaining units is the parties' consent to be bound
by group bargaining. Thus, "[t]he Board does not
find a multiemployer unit appropriate except where
all parties clearly agree to such a unit or where
there has been a history of bargaining on a multi-
employer basis and the employers and either the in-
cumbent or a rival union desire to continue bar-
gaining on such a basis. In the absence. of either of
these two factors, the Board will not find appropri-
ate a unit covering employees -of more than one
employer, regardless of the desirability of such a
unit ." Evening News Assn., 154 NLRB 1494, 1496
(1965) (footnotes omitted). The documents
S/NECA relies on do not establish that the asso-
ciation employers consented to bargaining with a
substitute for Petitioner.12
Assent A cannot be construed as a' grant of au-
thority to S/NECA to bargain with' any union
other than an IBEW local. It contains no reference
to bargaining with any other unions and states that
S/NECA is authorized as the "collective bargain-
ing representative for all matters contained in or
pertaining to - the current approved . . . labor
agreement between [S/NECA]- and Local Union
[340], IBEW." In fact, S/NECA's executive man-
ager, Ken Carlson, testified that employers who
signed only an Assent A would not have author-
ized bargaining with any union other than an
IBEW 'local.
Similarly, the multiemployer assent does not au-
thorize bargaining with a substitute for IBEW for
electrical contracting work. This is evidenced by
the 16 December 1975 letter explaining the multi-
employer assent, S/NECA's 4 May .1978, resolution
adopting that assent, and S/NECA's bylaws.
S/NECA's 16 December 1975 letter. reveals that
S/NECA itself did not perceive the assent to be a
liberal bargaining license. As the letter explained,
S/NECA's then current bylaws were "too broad
and cover[ed] more than just -IBEW" (emphasis
added). Although "it was never the intent that
[S/NECA] negotiate with the laborers, carpenters,
operating engineers , etc.," the bylaws' overbreadth
12 5/NECA's membership discussed the possibility of bargaining with
NAIU or another union at a general membership meeting on 24 Septem-
ber 1981' At the end of the meeting, many employers in attendance ap-
parently applauded the S/NECA board's decision to find a substitute for
Petitioner There is no evidence establishing the identities of the "ap-
plauding" employers Such informal action cannot supply the consent
necessary to establish a new multiemployer unit
ARDEN ELECTRIC
inadvertently required S/NECA to deal with the
members' other nonelectrical craft unions.. It was
"[f]or this reason," the letter declared, that
S/NECA decided to adopt the multlemployer
assent to "limit [S/NECA's] authority`to bargain to
the IBEW and other unions as determined neces-
sary by the Board of Directors." Reading this ex-
planation with the multiemployer assent, which
tracks the language in the letter, we find that the
assent authorized S/NECA to bargain with IBEW
locals _ such as Petitioner concerning electrical
work, and granted S/NECA the discretion to
engage in unitwide bargaining with unions repre-
senting other trades if the board determined such
bargaining appropriate. -
S/NECA's 4 May 1978 resolution adopting the
multiemployer assent lends further support to our
determination. The resolution refers to the
"I.B.E.W. Employers Section" which had been ,in
Quasi Existence 'for the past several years" and
identifies the. employer-parties to the bargaining re-
lationship" as "I.B .E.W Employers," employers
"who elect to hire I.B.E.W. Electrical -Workers,"
or employers "who are or elect to be I.B.E.W.
Employers." More importantly, the resolution ex-
pressly defines the bargaining relationship by refer-
ence to bargaining with- IBEW. Thus, it states,
"Employers who elect to hire I.B.E.W. Electrical
Workers shall delegate the authority to negotiate
agreements to [S/NECA] through a separate Em-
ployer Bargaining " Assent '[the multiemployer
assent] approved for that purpose by the Board of
Directors . . .
Finally, S/NECA's bylaws also repeatedly define
the bargaining relationship by reference to IBEW
and thus reaffirm our interpretation. Article 4, sec-
tion 11 requires members "who elect to hire
I.B.E.W Electrical' Workers" to delegate their bar-
gaining authority by signing the multiemployer
assent. Article 16, which creates S/NECA's negoti-
ating committee, is entitled "I.B.E.W Employers"
and, more significantly, states that employers will
be bound to the terms of the relevant, agreement by
657,
signing an -.Assent A, the assent discussed above
that only authorizes - bargaining with an IBEW
local.
In sum , we find that employer unit members and
S/NECA intended to limit S/NECA's authority to
bargain only with an IBEW local such as Petition-
er concerning electrical contracting work and -with
unions representing other trades. Therefore, having
accepted Petitioner 's - disclaimer , S/NECA essen-
tially agreed to the dissolution of the multiemploy-
er-IBEW unit and could not bind employers to a
non-IBEW unit without new bargaining autlioriza-
tions.13 Having determined that the employers had
not consented to a bargaining relationship with a
substitute for IBEW, we find that the former unit
was dissolved by the parties' consent to the dis-
claimer and the ' petitions for, employees of single
employers are therefore not barred. We shall
remand these cases to the Regional Director for
further appropriate action.
ORDER
The petitions in Cases 20-RC- 15401 through 20-
RC-15417 are remanded to . the Regional Director
for further appropriate action.
MEMBER HUNTER, dissenting.
For the reasons given in my dissent from. the
Order directing a hearing herein,' I would not
process the instant petitions . I therefore 'dissent
from the majority's decision to remand the peti-
tions to the Regional Director.
13 At this point in the ' proceedings , we cannot ' consider, as S/NECA
would have us do, whether Petitioner 's disclaimer constituted unlawful
whipsawing Any whipsaw effect results from the structure of the parties'
relationship and from S/NECA's• decision to substitute a new union for
IBEW before the unit's individual constitutents authorized such a change
If we were to rely on the alleged whipsawing to dismiss the petitions,
without returning the parties to the status quo ante, we would in effect
rendei moot any inquiry into the employers ' consent to bargaining with a
substitute for IBEW and obligate the employers to bargaining they, had
never authorized Neither precedent nor policy warrants such a result -
Arden Electric, 263 NLRB 318 (1982) - -
1,'