International Brotherhood Of Electrical Workers Local Union No. 617, Afl-Cio

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1226 (N.L.R.B. 1986)

1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers
Local Union No. 617, AFL-CIO and San
Mateo Chapter, National Electrical Contractors
Association , Inc. Case 20-CB-6714
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 11 June 1986 Administrative Law Judge
Harold A. Kennedy issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , International
Brotherhood of Electrical Workers Local Union
No. 617 , AFL-CIO, its officers , agents, and repre-
sentatives, shall take the action set forth in the
Order , except that the attached notice is substituted
for that of the administrative law judge.
' In paragraph following fn 10, the judge inadvertently referred to 1
May 1985 as the date Thomas agreed to execute the Manpower Recipro-
cal Agreement Based on the judge's earlier discussion of this issue, that
date should read "1 July 1985 "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
the San Mateo Chapter of the National Electrical
Contractors Association, Inc., regarding the wages,
hours, and other terms and conditions of employ-
ment by failing and refusing to sign the Mutual Re-
ciprocal Agreement.
WE WILL NOT withdraw, after executing the
Manpower Reciprocal Agreement, from participa-
tion in the Manpower Reciprocal Agreement
except in accordance with provisions of the agree-
ment itself.
WE WILL NOT engage in any like or related con-
duct in derogation of our duty to bargain with the
San Mateo Chapter of the National Electrical Con-
tractors Association, Inc.
WE WILL reinstate the Manpower Reciprocal
Agreement, abide thereby, and not withdraw there-
from except in accordance with the provisions of
such agreement.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL
UNION No. 617, AFL-CIO
Sally M. Spencer, Esq., for the General Counsel.
Robert E. Jesinger, Esq. (Wylie, Blunt, McBridge, Jesinger
& Sure), of San Jose, California, for the Respondent.
Mark R. Thierman and Jay Alan Ginsberg, Esqs. (Thier-
man, Simpson & Cook), of San Francisco, California,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
HAROLD A. KENNEDY, Administrative Law Judge.
This case was before me on a charge filed by San Mateo
Chapter of National Electrical Contractors Association
(NECA or the Association) on 31 October 1985. The
General Counsel's complaint, which issued on 6 Decem-
ber 1985, charges Respondent, the International Brother-
hood of Electrical Workers Local Union No. 617, AFL-
CIO, with violating Section 8(b)(3) of the National
Labor Relations Act (Act)' by failing and refusing to
execute a written contract embodying an agreement
which allegedly had been reached about 1 July 1985.
The case was heard in San Francisco, California, on 25
February 1986.
Few matters are in dispute. Respondent admits that
the Association is an organization of employers in the
construction industry existing for the purpose of negoti-
ating and administering collective-bargaining agreements;
that Association employer-members purchased and re-
ceived products, goods, and materials valued in excess of
$50,000 directly from points outside the State of Califor-
nia; and that employer-members are "employers" en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. In addition, Respondent admits
that it is a "labor oganization" as that term in used in
Section 2(5) of the Act; that Wayne K. Thomas has been
at times material the business manager and an agent of
Respondent as "agent is used in Section 2(13) of the Act;
that Respondent is and has been exclusive collective-bar-
gaining representative of all employees employed by the
employer-members of the Association and has been so
' Sec 8(b)(3) makes it an unfair labor practice for a labor organization
or its agents "to refuse to bargain collectively with an employer , provid-
ed it is the representative of his employers subject to the provisions of
Section 9(a) " All dates refer to 1985 unless otherwise stated
281 NLRB No. 163
ELECTRICAL WORKERS IBEW LOCAL 617 (SAN MATEO CHAPTER NECA)
recognized in successive collective-bargaining agreement,
including the most recent one that covers the period 1
September 1985 to 31 May 1988.
The critical allegations of the complaint, which were
put in issue by Respondent's answer, read as follows:
9. On or about July 1, 1985, the Association and
Respondent reached full and complete agreement
with respect to certain terms and conditions of em-
ployment of the Unit that was to. be incorporated
into a memorandum of understanding between Re-
spondent and the Association.
10. Since an unknown date in late August 1985,
the Association has requested Respondent to exe-
cute a written contract with it embodying the
agreement described above in paragraph 9.
11. Since an unknown date in late August 1985,
Respondent has failed and refused to execute the
written contract described above in paragraph 10.
In December 1983, Local 617 and other IBEW Locals
became parties to a "Manpower Reciprocal Agreement"
(MRA), which provided for the "portability of key su-
pervisory employees across jurisdictional lines." The San
Mateo Chapter of NECA and', other employer associa-
tions were also signatory to MRA.
Respondent Local 617 and the Charging Party Asso-
ciation met during the period March 1984-June 1985 in
an effort to negotiate a collective-bargaining agreement
that would replace the one due to expire in May 1984. In
May 1985, the Union advised the Charging Party that ef-
fective 6 June 1985 it would terminate its participation in
the MRA (G.C. Exh. 4). The parties reached an impasse
in their negotiations in June 1985,'but the parties, acting
through Patrick'D'Antonio, the Charging Party's execu-
tive manager, and Wayne Thomas, business manager-of
Local 617, agreed that the unresolved issues should be
submitted to a two-step interest arbitration procedure.
The parties met on 1 July with representatives of the
National NECA and IBEW International being present.
The parties agreed at that meeting that the outstanding
issues were to be submitted on 16 July to Jack McCann
of the National NECA and Dan McPeak of the IBEW
International for resolution. The parties met on 16 July
as agreed and presentations were made to McPeak and
McCann, but no agreement was reached. Thereafter, on
30 July, the parties submitted to a Council on Industrial
Relations for the Electrical Contracting Industry (CIR)
panel six disputed issues for resolution, but the MRA
question was not one of them. The CIR panel issued its
award on 14 August (G.C. $xhs. 8 and 9),' and on 6 Sep-
tember the,parties executed a new collective-bargaining
agreement covering the period 1 September 1985-31
May 1988.2
There is no dispute about the fact that Local 617 offi-
cial Thomas had indicated to NECA executive D'An-
tonio, either'at the 1 July meeting or.at the 16 July meet-
ing, that the MRA would be reinstated if a collective-
2 At the time of the hearing, however, the IBEW International had not
approved of the new collective-bargammg agreement.
1227
bargaining agreement was reached.3 Although requested
to do so, Thomas refused to reinstate the MRA.
Three witnesses testified-Patrick D'Antonio, execu-
tive manager of the Association; Dale Moulder, another
official' of the Association; and Wayne -Thomas, Re-
spondent's business manager and principal official. A
summary of their testimony follows.
Patrick D'Antonio explained that NECA is it National
Association of Electrical Contractors and that he is the
executive manager of the Association's San Mateo
County Chapter. He told of having negotiations with' the
Union in 1984 and 1985, of reaching an impasse in June
1984, of having outstanding issues resolved by arbitra-
tion, and of the ultimate execution of a new collective-
bargaining agreement in September 1985.
D'Antonio testified that the MRA issue was discussed
throughout the negotiations. At the 1 July 1985 meeting,
which was held in IBEW Vice President Jack McCann's
,office, it was agreed, after' it became apparent that no
collective-bargaining agreement could be reached at that
time, that all outstanding issues should be submitted to a
final and binding arbitration. Present at the meeting, in
addition to D'Antonio and Thomas, were other repre-
sentatives of the NECA-Dan McPeak and Dale
Moulder-and of the IBEW-Jack McCann, Hank
Zeiman, and Gil Duvey. D'Antonio stated that the MRA
issue was not presented to arbitration because Local
617's Thomas indicated it was not necessary. Quoting
from D'Anotonio's direct testimony (p. 24):
At that time, Mr. McCann wanted to review the
issues that would be submitted. We reviewed the
issues that would be submitted which had to do
with wages, terms, travel pay, and work week, and
Mr. McCann, at that point, asked if there were any
other issues to be decided, and I brought up the
issue of the Manpower Reciprocal Agreement and
the fact that the Local did not,have the unilateral
right to cancel it, and I wanted to submit that to Ar-
bitration. Mr. McCann then turned to Mr. Thomas
and said, "Do you agree?" And Mr. Thomas says
that he did not feel it `was necessary to submit that
to arbitration,, that he would agree that Ias soon as
we had a signed agreement that he would reinstate
the Manpower Reciprocal Agreement.
D'Antonio then explained that the parties agreed that
if McCann and McPeak were not able to resolve the' out-
standing issues at the 16 July meeting, "then we would
automatically submit our arbitration to the Council of In-
dustrial'Relations which was to meet in August."
Following the issuance of the CIR award on 14
August, D'Antonio asked Thomas to reinstate the Man-
power Agreement, but Thomas refused.4
3 D'Antonio testified that Thomas made such a promise at the I July
meeting, but Thomas said he made the statement on 16 July.
4 The General Counsel introduced a letter dated 23 October sent by
D'Antomo, which requested Thomas to reinstate , the MRA The letter re-
cites that when D'Antonio indicated at the 1 July meeting that the MRA
issue should be arbitrated, Thomas said, "it would not be necessary to
arbitrate, that as soon as we have a signed agreement, then I would rem.
state the Manpower Reciprocal Agreement."
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Asked by his Association's counsel about the "one-
man-in" rule, D'Antonio explained that the collective-
bargaining agreement between the parties "allows a con-
tractor who comes into another Local Union 's jurisdic-
tion [to] bring one wireman from his home jurisdiction."
On the other hand, "the MRA allows for a contractor
who crosses a jurisdictional line and goes into another
jursidiction to bring in one man per job-not just one
man." The MRA applies to supervisors as well as nonsu-
pervisors. D'Antonio said : "If a contractor wants to
leave San Mateo County and go into Santa Clara
County, and he's got five or six jobs working in Santa
Clara County, he can bring five or six supervisory per-
sonnel to run his jobs in those counties ." D'Antonio also
explained the composition and operation of the CIR and
referred to other provisions of the collective-bargaining
agreement . He stated that the issue of reinstatement of
the MRA was not submitted to the CIR for resolution
because Local 617 Business Manager Thomas had agreed
to reinstate it once the collective-bargaining agreement
was signed.
On cross-examination by Respondent , D'Antonio testi-
fied that the possibility of incorporating the MRA as an
addendum to the new collective -bargaining agreement
had been mentioned during the negotiations prior to 6
May, but, he said, "it really wasn't a big discussion" as
the MRA agreement was then in effect.
Later, after impasse had been reached, D'Antonio
orally proposed that McCann and McPeak consider the
issue as a subject of arbitration. Union Official Thomas
indicated, according to D'Antonio, that the MRA ques-
tion "didn't need to be submitted," although the Charg-
ing Party did refer to it in its brief (R. Exh. 1).
D'Antonio testified that the MRA allows an employer
to go out of his jursidiction, taking with him a wireman
who may supervise a job or "run men." The employer
must pay the wages and fringes applicable in the new ju-
risdiction, but his personal fringes-pension and health
and welfare benefits-"come back to the man's home
local."6
Dave Moulder, an employee of NECA, testified he
was involved in the negotiations for the Charging Party
with Local 617 and had attended the 1 July meeting held
in the office of IBEW Vice President McCann. He cor-
roborated D'Antonio's testimony that McCann and
McPeak could not settle the differences between the
Charging Party and Local 617 and that it was decided to
present the outstanding issues to CIR for determination.
McCann asked D'Antonio at the end of the McCann-
McPeak meeting, according to Moulder, whether any
other items needed to be settled. Moulder testified that
Thomas spoke as follows:
D'Antonio explained on redirect that without MRA an East Bay
contractor working in San Mateo County would sign an assent form and
thus become part of the multiemployer bargaining group . Such contrac-
tor would make use of the Local's union hall but would be allowed to
bring only one person from out of the jurisdiction (and such person must
have a valid IBEW card) Also, a worker would be paid, whether work-
ing under MRA or not , the local wage rate , but his personal fringes (pen-
sion and health and welfare) would be reported to his home local D'An-
tonio agreed the MRA contains a provision that allows parties to with-
draw from it if there is an adverse impact on membership or the bidding
by an employer
Well, then, Mr. Thomas stated that there was no
need to discuss that because as soon as there was a
signed agreement that the Manpower Reciprocal
Agreement would be reinstated.
Wayne Thomas, Respondent's principal officer, stated
that D'Antonio had "originally" proposed in March 1984
that the MRA be made a part of the collective-bargain-
ing agreement that the parties were seeking to negotiate.
The new collective -bargaining agreement that was ex-
ecuted (in September 1985) was drafted by Thomas and
presented to D'Antonio once "it was put together."
D'Antonio never requested that the MRA be part of the
agreement, according to Thomas . Thomas stated that the
MRA "is separate and apart from the collective-bargain-
ing agreement because we can incorporate nothing in a
collective-bargaining agreement that's going to bound
[sic] parties from another jurisdiction."
Thomas testified that if a San Mateo contractor were
to go into another county, such as Santa Clara, he would
need to sign an assent form and pay wages and fringes
per the collective -bargaining agreement applicable in the
latter jurisdiction.
Thomas stated that the only changes resulting from his
cancellation of the MRA was modification of "the addi-
tional man beyond the one-man-in." Thomas agreed that
representatives of the Charging Party and IBEW had
met in IBEW Vice President McCann's office on 1 July.
Thomas identified Jack McCann , Dan McPeak, Hank
Zeiman, Gil Duvey, Pat D'Antonio, and himself as being
present, but not Dale Moulder . He later acknowledged
that Moulder was present at the 1 July meeting.6 The
purpose of the meeting, he said, was not to negotiate but
"to identify the outstanding issues and to discuss the up-
coming arbitration ." McCann and McPeak were to act as
a two-man arbitration panel, and they agreed to meet for
that purpose on 16 July. There was no mention of the
MRA being submitted to McCann and McPeak at that
time (1 July), according to Thomas. The same persons,
including Dale Moulder, attended the 16 July meeting.
According to Thomas, D'Antonio reluctantly agreed
at the 16 July meeting that he was representing the mul-
tiemployer group as well as "the so-called independent
employers." Thomas agreed that he did say at the 16
July meeting-when asked about the MRA issue, by
McCann, he thought-that "if we got an agreement, I
would sign the document."7
6 After the hearing the parties submitted a joint exhibit , which recited
that the parties stipulate that Thomas has corrected his testimony so that
he agreed that Moulder was present at the 1 July meeting
7 On redirect, Thomas said he "probably would" have signed the
MRA agreement as he said he would if McCann and McPeak had
reached agreement on a collective-bargaining agreement 16 July He also
stated on redirect that MRA does not mandate payment of any fixed rate
of fringes; he said applicable collective-bargaining agreements specify the
rates of fringes and wages On recross-exammation by Charging Party
Thomas testified that while the MRA has no wage scale itself, it refers to
collective-bargaining agreements of the home Local and another local
where an employee may be working The employer pays the higher
wage rate called for between the two agreements , but he explained (on
further direct) that the MRA "does not say that."
ELECTRICAL WORKERS IBEW LOCAL 617 (SAN MATEO CHAPTER NECA)
The parties submitted briefs at the 16 July meeting and
were allowed to make verbal presentations . Thomas
stated that "nothing came out of that session whatso-
ever." About 24 July he was told by another IBEW offi-
cial to prepare a submission for the CIR. Briefs were
then submitted to the CIR, which met 14 August. When
CIR made its award , Thomas prepared a draft of, Gener-
al Counsel 's Exhibit 6, the current collective -bargaining
agreement and presented it to D'Antonio . The agreement
was signed by Thomas and D 'Antonio after some insig-
nificant changes were made . Thomas said he had submit-
ted the agreement to IBEW 's International office, but so
far it had not been approved.
Testifying on cross-examination by the General Coun-
sel, Thomas stated that the parties had signed the MRA
agreement around December 1984-some months after
the parties had begun negotiations on a new collective-
bargaining agreement . Thomas said he recalled no dis-
cussion concerning MRA at the 1 July meeting but there
was discussion "just prior to the arbitrations" at the 16
July meeting . He agreed that he had stated at that time
that he would sign the MRA if the parties reached an
agreement.
Thomas testified on cross-examination by the Charging
Party that when he withdrew the Union from MRA in
July 1985 he was anticipating an impact on his member-
ship. Thomas repeated that he could recall no discussion
of the MRA at the 1 July meeting . McPeak and
McCann , who represented the IBEW and the national
NECA, respectively, were hopeful of resolving the dif-
ferences of the parties before arbitration began but were
unable to do so on 16 July . It was agreed that if these
two men could not settle the differences the parties
would then turn to CIR for solution. Asked if there was
some negotiating on 16 July, Thomas replied that "there
was some clarification ." Thomas said he and D'Antonio
made presentations to McCann and McPeak at 1 p.m. on
16 July . He agreed that before the session began, howev-
er, he stated to D'Antonio, "If we got an agreement, we
would sign the MRA ." Thomas agreed that a collective-
bargaining agreement was ultimately reached after issu-
ance of the CIR award , but he added that it was "not
from the process of the July 16th." Quoting from
Thomas' cross-examination:
Q. Well, did you tell Mr. D'Antonio on July 16th
if you got an agreement that day and only that day,
and this offer's going to expire by 12:00 o'clock
midnight, you would sign the MRA?
A. I didn't tell him in that sense, no.
Q. In fact, the only thing you said is if we got an
agreement, you would sign the MRA:
A. That's right. 8
Thomas stated that he was "not really" happy with
the agreement that came out of the CIR determination
8 Thomas was questioned in some detail about operation of the collec-
tive-bargaining agreement and MRA with respect to a "traveling con-
tractor." Thomas explained such a contractor could bung in 16 foremen
under MRA, but he would have to also employ that number of Local 617
journeymen.
1229
but that was not the reason he had refused to reinstate
MRA after it made its award.9
It is settled that the failure to sign a written document
incorporating an agreement reached by the parties is a
per se violation of the National Labor Relations Rela-
tions Act. See NLRB v. Midvalley Steel Fabricators, 621
F.2d 49 (2d Cir. 1980), and cases cited in The Developing
Labor Law (BNA 2d ed., pp. 566-567, fns. 94-96). The
failure of an employer to sign such a document consti-
tutes an 8(a)(5) violation (NLRB v. Strong, 393 U.S. 357;
NLRB v. Midvalley Steel Fabricators, supra). The failure
of a union to do so constitutes an 8(b)(3) violation
(NLRB v. Longshoremen ILA (Lykes Bros Steamship
Co.), 443 F.2d 218 (5th Cir. 1971)). Section 8(d), added
to the Act by the Taft-Hartley Act in 1947, expressly
provides that the duty to bargain collectively requires
"execution of a written contract incorporating any agree-
ment reached if requested by either party." 1 ° This prin-
ciple is dispositive of this case.
I am persuaded that Thomas agreed on 1 May 1985 to
execute the Manpower Reciprocal Agreement as soon as
a collective-bargaining agreement was signed . D'Antonio
relied on Thomas' promise to sign the MRA, and the
Union, acting through its business agent, Wayne Thomas,
violated the Act as charged when it refused to do so.
It is of no particular significance whether Thomas
made the promise on 16 July as he testified or on 1 July
as D'Antonio testified . I t I believe , and find, that Thomas
made the promise on 1 July because D'Antonio im-
pressed me as being the more certain and reliable wit-
ness.12
Respondent concedes that its business agent , Thomas,
promised to sign the MRA "if we got an agreement." It
attempts to avoid responsibility for his refusal to do so
by claiming the meaning of Thomas' promise was limited
and misunderstood by the Charging Party. Thomas'
statement, says Respondent , "obviously referred to the
present process engaged in by McCann and McPeak, and
did not refer to any possible subsequent actions by third
parties such as CIR." Respondent 's contention is without
merit . Thomas placed no limitation or condition on his
promise to reinstate the MRA, however, the parties
should conclude a new collective-bargaining agreement.
Such agreement was concluded , and Respondent was
bound to reinstate the MRA as Thomas had promised.
The failure to do so constituted a violation of Section
9 Thomas said he won two items (wages and timing of increases) with
CIR and lost three items.
10 Even before the passage of Taft-Hartley, the Supreme Court had
ruled that the failure by an employer to execute an agreed-on contract
constituted an unlawful refusal to bargain (J. J. Heinz v. NLRB, 311 U.S.
514 (1941))
11 It is also of no particular significance that the IBEW International
has not approved the current collective -bargaining agreement as Re-
spondent Local Union No. 617 is the exclusive collective-bargaining rep-
resentative of the bargaining unit.
12 When testifying on cross-examination , Thomas did not exclude the
possibility that it was on 1 July when he told D'Antonio that he would
reinstate the MRA on obtaining a new collective -bargaining agreement
Initially, Thomas had maintained that Dale Moulder did not attend the I
July meeting , but later changed his testimony so as to agree , as D'An-
tonio had testified , that Moulder was present that day.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b)(3). Cf. Sea Bay Manor Home for Adults, 253 NLRB
739 (1980), enfd. mem. 685 F.2d 425 (2d Cir. 1982).
I also reject Respondent's contention that Thomas'
promise to reinstate the MRA "was non-binding as it in-
volved a non-mandatory subject of bargaining." 13 As the
General Counsel's attorney points out in her brief, "the
explicit terms of the MRA dictate basic terms and condi-
tions of employment," and the fact that "the MRA does
not contain a separate wage or benefit rates schedule is
of no moment since it implicitly and explicitly incorpo-
rates the wage or benefit rate schedules of the various
contracts of the home and foreign jurisdictions." The
MRA permits the "portability of key supervisory em-
ployees across jurisdictional lines." The MRA requires
the "traveling employer to hire one additional employee
through the Local Union" for each employee brought
into another jurisdiction. "Personal benefits" of an em-
ployee brought into another jurisdiction by a traveling
employer are to be reported to the jurisdiction where the
work is performed. It is thus clear that the MRA "vitally
affects the terms and conditions" of bargaining unit em-
ployees and involves mandatory subjects of bargaining.
Allied Chemical Workers Local 1 v. Pittsburgh Plate Glass
Co., 404 U.S. 157 (1971). See also NLRB v. Borg-Warner
Corp., 356 U.S. 342 (1958), and Fibreboard Corp. v.
NLRB, 379 U.S. 203 (1964).14
CONCLUSIONS OF LAW
1. The employer-members of the San Mateo Chapter,
National Electrical Contractors Association, Inc. are em-
ployers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Respondent International Brotherhood of Electrical
Workers Local Union No. 617, AFL-CIO is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. All employees employed by the employer-members
of the Association covered under the current collective-
bargaining agreement between the Association and Re-
spondent constitute an appropriate unit for purposes of
13 Sec 8(d) of the Act requires an employer and the representative of
employees to "confer in good faith with respect to wages, hours, and
other terms and conditions of employment "
14 The "no conflicting agreements" clause in Associated General Con-
tractors Y. NLRB, 637 F 2d 556 (8th Cir 1981), the case Respondent prin-
cipally relies on, regulated the terms of bargaining between local unions
and nonassociation members and did "not directly affect the wages, hours
and conditions of employment of the employees" as the MRA would in
this case Thus, Associated General Contractors is inapposite
Also, the provision involved in NLRB v Laborers Local 264, 529 F 2d
778 (8th Cir 1976), cited by Respondent, required an employer to con-
tribute to a labor administrative expense account and is not analogous to
the provisions of MRA. Such expense account provision did not attempt
to regulate the employer-employee relationship but was "concerned
solely with supplying management with sufficient funds to compensate
the administrator of the pension and welfare funds, as well as to defray
other incidental expenses of the employers " Further, Mine Workers (Lone
Star Steel), 231 NLRB 573 (1977), modified 639 F 2d 545 (10th Cir
1980), also cited by Respondent, does not aid its cause That case held
that an "application-of-contract" provision that extended a collective-bar-
gaining agreement to employees outside of the bargaining unit was a sub-
ject for mandatory bargaining Finally, Robertson v. NBA, 389 F Supp
867 (S D N Y 1975), affd 556 F 2d 682 (2d Cir 1977), an antitrust case,
is not apposite Judge Carter in that case only concluded "tentatively"
that the reserve clause, the player draft, and the merger or noncompeti-
tion agreements were nonmandatory subjects
collective bargaining within the meaning of Section 9(b)
of the Act.
4. At all times material , Respondent has been the ex-
clusive representative of the above unit for purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment , and terms and conditions of em-
ployment.
5. By refusing to reinstate the Manpower Reciprocal
Agreement on the execution of the collective- bargaining
agreement about 6 September 1985, Respondent engaged
in unfair labor practices in violation of Section 8(b)(3) of
the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend entry of an order requiring
Respondent to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act. Because I have found that Respondent
unlawfully refused to reinstate the MRA agreement, my
recommended Order shall require that Respondent sign
such agreement so as to put its provisions into effect.
Further, my recommended Order shall require Respond-
ent prospectively not to withdraw from the MRA except
in accordance with the provisions of Section 6 of the
MRA. See Ogle Protection Service, 149 NLRB 545 (1964),
modified 375 F.2d 497 (6th Cir. 1967).115
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent , International Brotherhood of Electri-
cal Workers Local Union No. 617, AFL-CIO, its offi-
cers , agents, and representatives, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
the San Mateo Chapter of the National Electrical Con-
tractors Association, Inc., regarding the wages , hours,
and other terms and conditions of employment of the
unit described above by failing and refusing to sign the
Mutual Reciprocal Agreement.
15 Respondent argues that even if it had a duty to reinstate the MRA,
its liability therefor "would be limited to a period between September 1,
1985 and 3 days after notice of withdrawal , i e , December 27, 1985 "
(Anticipating the possibility that it could be construed that the MRA was
still in effect, Respondent in a letter (R Exh 2) dated 27 November ad-
vised the Charging Party that it was "once again" withdrawing from the
MRA as "permitted under Paragraph 6 ") I reject such contention As
the Charging Party points out, there would be no effective remedy if Re-
spondent were only ordered to reinstate the agreement without further
restriction on its revocation I also agree with the Charging Party that
Respondent has indicated a disregard for the limitations contained in par
6, which allows withdrawal from the MRA on 30 days' notice only if
there is an "adverse impact on its membership in a manner to cause un-
employment among local employees or unfair bidding opportunities for
the local employers " (See Tr 118-122) Accordingly, my recommended
Order will not only require Respondent to reinstate the MRA , but also
not withdraw from it except as expressly allowed by the MRA itself
16 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
ELECTRICAL WORKERS IBEW LOCAL 617 (SAN MATEO CHAPTER NECA)
(b) Withdrawing, after executing the Manpower Re-
ciprocal Agreement, from participation in such Mutual
Reciprocal Agreement except in accordance with provi-
sions of the agreement itself.
(c) Engaging in any like or related conduct in deroga-
tion of its duty to bargain with the San Mateo Chapter
of the National Electrical Contractors Association, Inc.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Execute the Manpower Reciprocal Agreement, de-
liver a signed copy thereof to the San Mateo Chapter of
the National Electrical Contractors Association, Inc.,
abide thereby and not withdraw therefrom except in ac-
cordance with the provisions of such agreement.
(b) Post at business offices and meeting halls copies of
the attached notice marked "Appendix." 17 Copies of the
17 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
1231
notice, on forms provided by the Regional Director for
Region 20 , after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced , or covered by
any other material.
(c) Mail to the Regional Director for Region 20 signed
copies of the aforementioned notice for posting.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."