PACIFIC COAST METAL TRADES DISTRICT COUNCIL
Pacific Coast Metal Trades District Council and Se-
attle Metal Trades Council and Foss Shipyard,
a Division of Foss Launch & Tug Co. (a Dil-
lingham Company). Case 19-CB-4024
March 22, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On November 5, 1981, Administrative Law
Judge Jay R. Pollack issued the attached Decision
in this proceeding. Thereafter, Respondents and the
Charging Party filed exceptions and supporting
briefs, and the General Counsel filed a brief in re-
sponse to the Charging Party's exceptions.
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 Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.2
In their exceptions and response to the Charging
Party's exceptions, Respondents request that they
be awarded attorneys' fees pursuant to Tiidee Prod-
ucts, Inc., 194 NLRB 1234 (1972), and the Equal
Access to Justice Act.3 Under Tiidee Products, the
Board may order the payment of certain extraordi-
nary remedies, such as attorneys' fees, if it deter-
mines that a party has engaged in frivolous litiga-
tion. We cannot conclude that the present case
constitutes frivolous litigation. We note that the
Administrative Law Judge's ultimate conclusion
that Respondents did not violate the Act was
based, in part, on his credibility resolution with re-
spect to the testimony of John Lappin. Had the
Administrative Law Judge viewed the evidence
differently or made contrary credibility findings, a
violation of the Act may have been established.
I The Charging Party has 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 incorrect. Standard Dry Wall Prod-
uct. 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.
I In view of the Administrative Law Judge's conclusion that the evi-
dence fails to establish by a preponderance of the evidence that Respond-
ents violated Sec 8(b)(3) of the Act, we find that it was unnecessary for
the Administrative Law Judge to have ruled on the General Counsel's
motion to withdraw the complaint. Therefore, we have modified the Ad-
ministrative Law Judge's recommended Order, and order that the com-
plaint be dismissed in its entirety.
'P.L. 96-481, Sec. 201, 94 Stat 2325 (1980).
260 NLRB No. 152
With respect to Respondents' request for attor-
neys' fees under the Equal Access to Justice Act,
we find that Respondents' request is premature and
otherwise not in compliance with the procedural
requirements for applying for an award of fees and
expenses as set forth in Sections 102.143 through
102.155 of the Board's Rules and Regulations. 4 Ac-
cordingly, we are precluded from considering Re-
spondents' premature request for fees and expenses
under the Equal Access to Justice Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, we affirm the Adminis-
trative Law Judge's finding that Respondents Pa-
cific Coast Metal Trades District Council and Seat-
tle Metal Trades Council, Seattle, Washington,
have not engaged in unfair labor practices. Accord-
ingly, we hereby order that the complaint be, and
it hereby is, dismissed in its entirety.
' For example, Sec. 102 148(a) of the Board's Rules and Regulations
states that an application for an award of fees and expenses must be filed
within 30 days after the entry of the Board's final order in a proceeding.
DECISION
STATEMENT OF THE CASE
JAY R. POLI.ACK, Administrative Law Judge: I heard
this case in Seattle, Washington, on September 17, 1981.
Pursuant to an original charge and an amended charge
filed against Pacific Coast Metal Trades District Council
and Seattle Metal Trades Council,' herein collectively
called the Unions or Respondents, on January 30, 1981,
and February 17, 1981, respectively, by Foss Shipyard, a
Division of Foss Launch & Tug Co. (a Dillingham Com-
pany), herein called the Charging Party or the Company,
the Acting Regional Director for Region 19 of the Na-
tional Labor Relations Board issued a complaint and
notice of hearing on March 26, 1981. The complaint al-
leges in substance that Respondents violated Section
8(b)(3) of the National Labor Relations Act, as amended,
by refusing to execute a collective-bargaining agreement
with the Company. Respondents do not dispute that a
collective-bargaining agreement has been reached as a
result of multiemployer/multiunion bargaining. Howev-
er, Respondents contend that the proper party to the
contract is Foss Launch & Tug Co.
On October 20, 1981, counsel for the General Counsel
filed a motion to withdraw the complaint on the ground
that the legal name of the Employer is Foss Launch &
Tug Co. (a Dillingham Company) and, accordingly, "Re-
spondents cannot be legally compelled to execute a con-
tract with a name other than the properly registered
name." On October 22, I issued a Notice To Show Cause
why the General Counsel's motion should not be grant-
ed. On October 26, the Charging Party filed a response
I The names of Respondents appear as corrected at the hearing.
1117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Notice To Show Cause stating, "granting General
Counsel's Motion to Withdraw Complaint will force ad-
ditional and costly litigation which will continue until an
Administrative Law Judge decides the merits of this dis-
pute once and for all."
All parties were given full opportunity to appear, to
introduce relevant evidence, to examine and cross-exam-
ine witnesses, to argue orally, and to file briefs 2 Based
on the entire record and from my observation of the de-
meanor of the witnesses, I make the following:
FINDINGS OF FACT AND CONCI.USIONS
I. JURISDICTION
Foss Shipyard is a trademark and trade name of Foss
Launch & Tug Co., a Washington corporation. 3 Foss
Shipyard is engaged in the business of the repair of
barges and tugboats in Seattle, Washington. During the
12 months preceding the issuance of the complaint, Foss
Shipyard purchased and received goods and materials
valued in excess of $50,000 directly from suppliers out-
side the State of Washington or from suppliers within the
State, who received such goods and materials directly
from sources outside the State. Accordingly, I find that
Foss Shipyard is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE I ABOR ORGANIZATION INVOI.VED
The complaint alleges, the answers admit, and I find
that Respondents are, and have been at all times material
herein, labor organizations within the meaning of Section
2(5) of the Act.
111. THE ALLEGED UNFAIR I.ABOR PRACTICES
A. The Evidence
For approximately 35 years, Foss Launch & Tug Co.
has been a member of the Pacific Coast Shipbuilding and
Ship Repair Association (the Association), a multiem-
ployer association, which, inter alia, bargains collectively
with the bargaining representatives of the employees of
its employer-members, including Respondents. The Asso-
ciation and Respondents have been party to a series of
multiemployer/multiunion collective-bargaining agree-
ments, the most recent of which were effective by their
terms from July 1, 1977, to June 30, 1980. 4 The 1980 ne-
gotiations resulted in a collective-bargaining agreement
effective by its terms from July 1, 1980, until June 30,
1983. Thereafter, Respondents signed separate but identi-
cal 1980-83 agreements with every employer-member of
the Association, except for the Charging Party. As stated
earlier, Respondents contend that the proper party to the
2 On the date set for the submission of briefs, I received the General
Counsel's motion to withdraw the complaint. No briefs were filed.
' Foss Launch & Tug Co., in addition to operating Foss Shipyard, op-
erates a launch and tugboat company. It is a wholly owned subsidiary of
the Dillingham Company of Honolulu, Hawaii
' There were three agreements effective during this period: an agree-
ment covering production, repair, and maintenance employees; an agree-
ment covering carpentry and related work, and an agreement covering
electrical work.
contract is Foss Launch & Tug Co. and not Foss Ship-
yard, a Division of Foss Launch & Tug Co. Thus, Re-
spondents are willing to sign a contract with Foss
Launch & Tug Co. but not with Foss Shipyard.
The Charging Party contends that the agreement is by
and between the Association and Respondents and that
the Unions cannot selectively decide that they do not
want to sign with the Charging Party because "the
Unions have already reached agreement with the Associ-
ation, acting as agent of the Charging Party." Both par-
ties agree that the contract, although unsigned, has been
put into effect by the parties.
The first alleged notice to the Unions of the Compa-
ny's name change occurred on April 28, 1980,5 when the
Company sent its reopener letter to the Unions on a let-
terhead bearing the name "Foss Shipyard, a Division of
Foss Launch & Tug Co." No other reference to a name
change was made to the Unions at that time. The first
negotiation session occurred on May 28, 1980. The sub-
ject matter of a name change was first raised at the
second bargaining session of June 12 when the minutes
of the May 28 meeting were brought up for approval.
Vernon P. (Jerry) Russell, manager of industrial relations
for Foss Launch & Tug Co., indicated to management
representatives that he wanted the Company listed as
Foss Shipyard and not Foss Launch & Tug Co. Law-
rence Hagen, spokesman for the Association, later raised
the matter with the Unions at a full bargaining session.
However, the Unions raised concerns about the name
change. Again, on June 16, Stan Jansen, spokesman for
the Unions, indicated that the Unions were concerned
about the name change of "Foss." 6 On June 17, Hagen
read to union representatives a statement given to him by
Russell indicating that the "change represented a change
in name only." The Unions, however, took the position
that their agreement was with Foss Launch & Tug and
not simply Foss Shipyard. The parties reached agree-
ment on a collective-bargaining agreement at the end of
June. However, the agreement was subject to ratification
by the membership of the Unions, which ratification was
rejected by a majority of the employees' voting.
Thereafter the parties recommended negotiations on
July 17. On that same date, Russell and Lappin met to
resolve the dispute concerning the Company's name
change. The meeting between Russell and Lappin pro-
duced the following handwritten language:
Foss Launch & Tug's shipyard is now Foss Ship-
yard, a Division of Foss Launch Tug. The name
change [was] is J.M.L. strictly for business reasons
with no intention to alter the shipyard's function or
facility. [The original had "was" inserted with
delete marks drawn through it.]
Earlier on January 30, 1980, Foss Shipyard notified the Association
of its intended name change. However, Foss Launch & Tug Co. did not
withdraw from the Association and remained a member of the Associ-
ation at the time of the instant hearing.
The Unions were concerned that by agreeing to a name change to
Foss Shipyard, they might somehow be waiving their right to work per-
formed on the Company's tugboats away from the shipyard.
1118
PACIFIC COAST METAL TRADES DISTRICT COUNCIL
Russell testified that he believed that the above language
satisfied Lappin's concerns regarding the name change.
Lappin, whom I credit, denied that he agreed that this
language resolved the Unions' concerns. Lappin stated
that he simply agreed that Russell could read this state-
ment into the joint minutes of the negotiations and that
he made a correction for the sake of grammar. The min-
utes of the meeting of July 20 indicate that Hagen read
in the above statement. The minutes do not indicate that
Lappin or the Unions joined in the statement. Subsequent
events seem to corroborate Lappin's testimony that he
did not agree that Russell's statement resolved the
Unions' concerns over the name change.
On July 20, a tentative agreement was reached, again
subject to ratification by the Unions' membership. This
time, ratification was achieved and the parties met on
August 15 to consummate the agreement. At the August
15 meeting, it was again agreed that Russell and Lappin
would draft language to resolve the Unions' concerns
over the name change and submit that language to the
joint labor-management secretaries for the minutes. How-
ever, Russell and Lappin were still unable to reach
agreement. Thereafter, the collective-bargaining agree-
ment was submitted in final form and executed by the
Unions with all employer-members of the Association
except the Charging Party.
B. Analysis
Section 8(d) of the Act explicitly requires the execu-
tion of a written contract incorporating any agreement
reached if requested by either party. H. J. Heinz Compa-
ny v. N'.L.R.B., 311 U.S. 514, 523 (1941); Retail Clerks
International Association, and Retail Store Employees
Local 322, Jack Gray and Glen Conyers, their agents
(Roswil, Inc., d/b/a Ramey Supermarkets), 226 NLRB 80,
87 (1976). However, neither party is required to sign a
bargaining agreement containing terms not previously
agreed upon. The General Counsel must show not only
that an agreement was reached, but that the document
which Respondents have refused to execute accurately
reflected that contract. Oil, Chemical and Atomic Workers
International Union and its Local 7-507 (Capitol Packag-
ing Company), 212 NLRB 98, 108 (1974).
Here, the credible evidence establishes that Respond-
ents and the Company never had a meeting of the minds
with regard to the identity of the party to the contract,
on the employer side. However, in collective bargaining,
unlike the common law of contracts, a party does not
have the right to select and determine with whom he
will contract. The employer must contract with the ex-
clusive collective-bargaining representative of its em-
ployees and the union, if it is an exclusive collective-bar-
gaining representative, must contract with the employer
of the unit employees it represents. Freedom of contract
relates to the terms of the agreement and, once an agree-
ment is reached, the parties are not free to refuse to
embody it in a signed contract. H. J. Heinz, supra.
The applicable law as set forth above leads to the con-
clusion that the Unions cannot refuse to sign the contract
with the employer of the bargaining unit employees.
Here, the record reveals that the Unions are willing to
sign with the Employer of the unit employees under that
Employer's lawful name; i.e., the name registered with
the State of Washington, the State of incorporation. The
evidence shows only that Respondents have failed to
sign a contract with an assumed name of the Employer.
Thus, the General Counsel and the Charging Party have
failed to establish by a preponderance of the evidence
that Respondents have violated Section 8(b)(3) of the
Act. As stated above, the General Counsel seeks to with-
draw the complaint on this basis.
Moreover, common law principles tend to support the
conclusion that Respondents have not violated the Act.
Under common law principles, there is an implied cov-
enant of good faith and fair dealing between the parties
to a contract. While essential terms of a contract on
which the minds of the parties have not met cannot be
supplied by the implication of good faith and fair deal-
ing, it does not appear unreasonable to expect a contract-
ing party to reveal to its counterpart its legal name and
to execute a contract under that name.
Finally, contrary to the argument of the Charging
Party, a different result is not reached by analyzing the
case under the principles of multiemployer bargaining.
An employer that wishes to withdraw from multiem-
ployer bargaining must do so prior to negotiations, or
with the assent of both the union and the multiemployer
association of which it has been a member. See, e.g.,
Charles D. Bonanno Linen Service, Inc., 243 NLRB 1093
(1979), enfd. 630 F.2d 25 (Ist Cir. 1980); Teamsters Union
Local No. 378, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Capitol Chevrolet Co.), 243 NLRB 1086 (1979).
The undisputed evidence is that Foss Launch & Tug Co.
was a member of the Association for many years and
continued to be a member of the Association at the time
of the instant hearing. That evidence clearly establishes
that the Unions never consented to any change in that
membership. Thus, Foss Launch & Tug Co. was bound
by the agreement reached by the Association. Accord-
ingly, Respondents cannot be found to have violated the
Act by insisting on an agreement with Foss Launch &
Tug Co. as opposed to Foss Shipyard.7
Upon the foregoing findings of fact, and the entire
record, I make the following:
CONCI USIONS OF LAW
1. Respondents are labor organizations within the
meaning of Section 2(5) of the Act.
2. The Charging Party is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
3. The evidence fails to establish by a preponderance
of the evidence that Respondents violated Section 8(b)(3)
of the Act, as alleged in the complaint.
I do not consider Respondents' argument that the Company's refusal
to sign the contract as Foss L.aunch & Tug Co constituted bad-faith bar-
gaining because there is no case against the Company before me for deci-
sion The tnions did file a charge In Case 19 CA 12735 alleging a refus-
al to bargain in good faith against the Company but that charge "as dis-
missed by the Regional Director on September 2h. 1980
1119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER8
It having been found and concluded that Respondents
Pacific Coast Metal Trades District Council and Seattle
8 All motions inconsistent with this recommended Order are hereby
denied. In the event no exceptions are filed as provided by Sec. 102.46 of
Metal Trades Council have not engaged in unfair labor
practices, the General Counsel's motion to withdraw the
complaint is granted and the case closed.
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
1120
