Vincent Electric Co., Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 903 (N.L.R.B. 1986)

VINCENT ELECTRIC CO. 903
Vincent Electric Company, Inc. and Anthony R.
Staffiere, Jr. and Alfred H. Joyal, Joint Peti-
tioners and Local Union 588, International
Brotherhood of Electrical Workers. Case 1-
UD-189
30 September 1986
DECISION ON REVIEW AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 28 April 1983 the Regional Director for
Region 1 issued a Decision and Direction of Elec-
tion in which he found that the Employer had not
become part of a multiemployer bargaining group,
and therefore directed a deauthorization election in
a bargaining unit confined to the employees of the
Employer. Thereafter, in accordance with the Na-
tional Labor Labor Relations Board Rules and
Regulations, the Union filed a timely request for
review of the Regional Director's decision and a
supporting brief. The Employer filed an opposition
to the Union's request for review.
The Union contends that the Regional Director's
decision is contrary to established Board precedent
holding that an employer which signs an IBEW
"Letter of Assent-A," as the Employer did here,
thereby authorizes a multiemployer association to
act as its collective-bargaining representative and
unequivocally agrees to become part of a multiem-
ployer bargaining group. Thus, the only appropri-
ate unit in which an election may be held, the
Union asserts, is a multiemployer bargaining unit.
On 26 August 1983 the National Labor Relations
Board, by telegraphic order, granted the Union's
request for review. The Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in
this case and the attached Regional Director's De-
cision and Direction of Election (in pertinent part)
in light of the request for review and opposition
thereto. For the reasons stated below, we have de-
cided to reverse the Regional Director's decision
and to dismiss the deauthorization petition.
As more fully set forth in the attached Regional
Director's decision, the Employer signed an IBEW
Letter of Assent-A1 following a strike and picket-
ing by its employees. P The Employer and Union
also negotiated a separate memorandum of under-
standing, under the terms of which the Employer
was permitted to pay then existing wages and bene-
fits for 6 months or until work on existing con-
tracts was completed. The memorandum also pro-
vided that the Employer could give any wage in-
creases it desired for as long as the existing work
continued, but all future jobs had to be contracted
under the terms of the master agreement between
NECA and the Union. The Employer executed
both the Letter of Assent-A and the memorandum
of understanding on 18 October 1982.
The Regional Director found that although the
Employer signed the Letter of Assent-A it did not
become a member of the multiemployer association
and has not authorized NECA to negotiate future
contracts on its behalf. He found, rather, that the
Employer merely adopted, with substantial modifi-
cations, the results of the negotiations between the
Union and NECA. The Regional Director based
this finding on his conclusion that the memoran-
dum negotiated with the Union demonstrates indi-
vidual rather than group bargaining, and belies the
clear evidence of required unequivocal intent to be
mutually bound in a larger multiemployer unit.
Contrary to the Regional Director, we find this
case is controlled by longstanding Board precedent
holding that signers of an IBEW Letter of Assent-
A become part of a multiemployer bargaining
group.
As pointed out by the Union in its requests for
review of the Regional Director's decision, IBEW
local unions have been utilizing letters of assent
identical in all material respects to the letter of
assent signed by this Employer for over 20 years,
and the Board consistently has held that an em-
ployer who signs a Letter of Assent-A has agreed
to become part of a multiemployer bargaining
group. Indeed, in Central New Mexico Chapter,
NECA,3 the Board specifically rejected the conten-
tion that signers of the letters of assent had bound
themselves only to the terms of the multiemployer
agreement then in effect, as the Regional Director
here finds the Employer to have done, stating:
I The Letter of Assent-A signed by the Employer stated in relevant
part:
In signing this letter of assent , the undersigned firm does hereby au-
thorize Northeast New England Chapter, N.E.C.A., Inc. as its col-
lective bargaining representative for all matters contained in or per-
taining to the current approved inside labor agreement between the
Northeast New England Chapter , N.E C.A., Inc. and Local Union
588, IBEW This authorization , in compliance with the current ap-
proved labor agreement , shall become effective on the 18th day of
October, 1982 It shall remain in effect until terminated by the under-
signed employer giving written notice to the Northeast New Eng-
land Chapter, N.E.C.A., Inc. and to the Local Union at least one
hundred fifty (150) days prior to the then current anniversary date of
the aforementioned approved labor agreement.
2 For the dissent, the circumstances surrounding the Employer 's execu-
tion of the IBEW Letter of Assent -A are of "considerable significance in
inferring [the Employer's] intent ." We fail to see how these circum-
stances, standing alone, shed any light on the Employer's intent . Contrary
to the dissent , we do not view the Employer 's asserted lack of voluntari-
ness in entering into the IBEW Letter of Assent -A as evidence of wheth-
er or not the Employer intended to bargain on a multiemployer or indi-
vidual basis.
a 152 NLRB 1604, 1606-1607 (1965).
281 NLRB No. 122
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Such an interpretation renders nugatory the
. . . language contained in the Letter of
Assent pertaining to the termination of the
Chapter's bargaining authority, the clear mean-
ing of which is to continue the authority re-
posing in the [NECA] Chapter to represent a
signatory unless such authority is expressly
withdrawn . .. .
In a number of subsequent decisions the Board
has reaffirmed the principle that an employer who
signs an IBEW Letter of Assent-A thereby be-
comes part of the multiemployer bargaining group.
See, for example, Wayne Electric, 226 NLRB 409
(1976); H.S. Brooks Electric, 233 NLRB 889 (1977);
Nelson Electric, 241 NLRB 545 (1979). See also
McCormick Electrical Construction Co., 240 NLRB
418, 424 (1979), in which the administrative law
judge, whose decision was adopted by the Board,
again noted that the assents looked toward future
contracts as well as current ones. We have recently
reaffirmed this principle in Leapley Co., 278 NLRB
981 (1986). Thus, the Regional Director's finding
that the Employer, by signing a Letter of Assent-
A, did not authorize NECA to negotiate contracts
on its behalf but merely adopted, with substantial
modifications, the results of the negotiations be-
tween the Union and NECA contravenes a long
line of Board decisions on this issue.4
Nor is the applicability of these precedents ne-
gated by the Employer's separate memorandum of
understanding with the Union permitting it to pay
then existing wages for 6 months or until the work
on existing contracts was completed. The execution
of that memorandum fails to demonstrate that the
Employer did not intend to pursue group bargain-
ing. Kroger Co., 148 NLRB 569, 573 (1964). Permit-
ting an employer to pay its current wages for 6
months or until its current contracts were complet-
ed is in no way inconsistent with an intention to be
bound by group bargaining. The Letter of Assent-
A looks toward future contracts as well as the cur-
rent one and the Employer's memorandum of un-
derstanding also provides that all future jobs are to
be performed under NECA contractual terms. Fur-
ther, the Employer based all bids for work follow-
ing its execution of the letter of assent on NECA-
negotiated wage rates.5 In these circumstances, the
a The dissent's attempt to discern ambiguity runs counter to many
years of consistent Board interpretation of the IBEW Letter of Assent-A
Unlike the dissent , we believe that one cannot simply ignore the interpre-
tation given to this document by many past Board decisions To confine
the meaning of this document to its "plain language" at this late date, in
our opinion , is unfair to those who have specifically relied on the docu-
ment's longstanding interpretation by the Board
5 After the Employer signed the Letter of Assent -A, NECA and Local
588 negotiated a lower wage rate for projects costing less than $50,000
The Employer thereafter based its bids for new work on these lower
wages
Employer's separate memorandum of understand-
ing with the Union cannot be read to overcome its
clear designation of the multiemployer bargaining
association as its collective-bargaining representa-
tive.6 Accordingly, the unit encompassed by the
instant petition, which includes the employees of
the Employer only, is inappropriate, and we shall
dismiss the deauthorization petition.
ORDER
It is ordered that the petition is dismissed.
CHAIRMAN DOTSON, dissenting.
Unlike my colleagues, I agree wih the Regional
Director's finding that Vincent Electric Company
never intended to become, nor did it ever become,
part of a multiemployer bargaining group. It is ele-
mentary that the creation of a multiemployer bar-
gaining unit is consensual , and must be voluntarily
entered into by the employers and the union. As
the Board long ago determined, "the essential ele-
ment warranting the establishment of multiple-em-
ployer units is clear evidence that the employers
unequivocally intend to be bound in collective bar-
gaining by group rather than by individual action.
The correlative standard for excluding an employer
from such a unit is evidence of an intent to pursue
an individual course of action with respect to labor
relations."'
An employer's objective intent may be manifest
through its express delegation of bargaining author-
ity to an association or through conduct evidencing
an intent to be mutually bound, such as by partici-
pating in group bargaining . Where the delegation
of bargaining authority is ambiguous or merely im-
plicit, however, the Board requires some conduct
on the part of the employer which indicates that it
actually pursued a group course of action with
regard to labor relations before it will find it to
have become part of a multiemployer group.2
The Board has well summed up the applicable
precepts regarding multiemployer bargaining as fol-
loWS:3
A multiemployer unit will be found to exist
where the parties have indicated an unequivo-
cal intention to be bound in their collective
bargaining by group rather than individual
action. When employers have banded together
B By this finding , we do not mean to suggest that the unequivocal in-
tention to be bound by group bargaining , as indicated by the execution of
the IBEW Letter of Assent-A, can never be overcome by individual bar-
gaining reflected in individual side agreements between an employer and
the union.
Pacific Metals Co, 91 NLRB 696, 699 (1950)
2 Ruan Transport Corp, 234 NLRB 241, 242 (1978), and cases cited
therein
3 Van Eerden Co, 154 NLRB 496, 499 (1965)
VINCENT ELECTRIC CO. 905
informally to bargain , without expressly docu-
menting their relationship to each other or to
the unions involved , we have often inferred
the presence of the requisite intention from the
facts that the employers have participated for
a meaningful period of time in joint bargaining
negotiations and have adopted substantially
uniform contracts resulting therefrom . The ul-
timate question in these cases , however, is the
actual intent of the parties, since multiemploy-
er bargaining is a voluntary arrangement, de-
pendent upon the real consent of the partici-
pants to bind themselves to each other for bar-
gaining purposes . And where there is specific
evidence, beyond the mere circumstances of
joint negotiations and uniformity of contracts,
indicating that the parties did not intend to
accept the obligations and benefits of multiem-
ployer bargaining , that evidence must be
equally considered in determining the basic
issue [footnote omitted].
In this case , Vincent Electric signed the IBEW
Letter of Assent-A thereby ostensibly authorizing
NECA to bargain on its behalf, but at the same
time engaged in a course of individual bargaining
which, as the Regional Director states, belied the
clear evidence of the required unequivocal intent
to be mutually bound by group bargaining. Thus,
although execution of the IBEW Letter of Assent-
A might in other circumstances indicate that the
employer intends to be bound by group bargaining,
here Vincent 's conduct in simultaneously engaging
in individual bargaining clearly demonstrates a con-
trary intent.
Of considerable significance in inferring Vin-
cent's intent are the circumstances under which it
executed the Letter of Assent-A. Vincent Electric
recognized the Union on 18 October 1982 in order
to settle a labor dispute and remove a picket line
which was having a serious adverse impact on its
financial viability . It was on that date that it both
signed the Letter of Assent-A and "cut its own
deal" by also obtaining a memorandum of under-
standing permitting it not to abide by the terms of
the contract it was simultaneously adopting. As of
the time of the hearing in this proceeding , Vincent
had never joined the Northeast New England
Chapter, NECA, or paid NECA contract rates and
fringe benefits on any of its jobs.
Although my colleagues emphasize the line of
Board cases construing IBEW Letters of Assent-A
to bind signatories to multiemployer bargaining, I
do not find the plain language of that document to
be so clear . When combined with Vincent's actions
which were blatantly contrary to the delegation
which it was signing , I would find its execution of
the Letter of Assent-A does not constitute clear
evidence of the required unequivocal intent to be
mutually bound by group bargaining . Lacking evi-
dence of that intent, I would find that it has not
been shown that Vincent became part of a multi-
employer group . Accordingly , I would find that
the unit confined to the employees of Vincent
Electric is appropriate and would direct a deau-
thorization election in the single employer unit.
APPENDIX
The Joint Petitioners herein seek , pursuant to Section
9(e)(i) of the Act, an election among the Employer's em-
ployees on the question whether these employees wish to
be bound by the union security provision under the cur-
rent collective bargaining agreement.
The Union contends that the Employer is bound by its
bargaining contract with the New England Chapter of
the National Electrical Contractors Association, Inc.
(hereinafter referred to as N.E.C.A.); that the appropri-
ate unit is multi-employer in scope under that contract
and since the unit encompassed by the instant petition is
inappropriate , the petition should be dismissed . The Em-
ployer contends that the unit encompassed by the instant
petition is appropriate and has not been merged in the
overall multi-employer unit . Thus an election is warrant-
ed.
About October 18, 1982, in order to settle a labor dis-
pute and remove a picket line, the Employer recognized
the Union as the collective-bargaining representative.
Thereafter, the parties executed a Letter of Assent-A
whereby the Employer authorized N.E.C.A . as its col-
lective-bargaining representative for all matters con-
tained in or pertaining to the current approved inside
labor agreement between N.E.C.A. and the Union which
was effective on June 1, 1982 and expires on May 31,
1984 . In addition, the Employer and Union entered into
negotiations which resulted in execution of a Memoran-
dum of Understanding about October 18, 1982. Under
the latter document, the parties agreed that the Employ-
er would continue to pay the same wage rates and pro-
vide the same benefits then in effect for a period of six
months or until the work on existing contracts were fm-
ished. The existing wages and benefits were also to be
paid on all routine maintenance and installation work. In
addition, the Employer is allowed to give any wage in-
crease its desires for as long as his existing work contin-
ued. The wage rates and benefits of the Employer are
lower than those called for under the N.E.C.A. master
agreement and the increase the Employer can grant
differ from those called for by the latter. At the time of
the hearing, all of the Employer's work consisted of the
contracts in effect at the time of the execution of said
memorandum . Under the terms of the memorandum,
wages and benefits to be paid on any future jobs con-
tracted by the Employer would be done under the terms
of the master agreement between N.E.C.A and the
Union. Although the Employer has bid on several new
jobs since the execution of these agreements with the
Union, it has been unsuccessful in securing new work.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer has not paid wages called for under the
master agreement nor has it made any contributions to
any of the funds specified therein. There is no evidence
that the Employer has adhered to any of the other terms
and conditions of employment under the master agree-
ment.
Although the Employer signed the Letter of Assent-A,
it did not become a member of the multi-employer asso-
ciation whose representatives were involved in the nego-
tiations of the N.E.C.A. master agreement nor has it au-
thorized that association to negotiate future contracts on
its behalf. The Employer merely adopted, with substan-
tial modifications, as set forth, above, the results of the
negotiations between the Union and N.E.C.A.
As a general rule, the Board has found that an employ-
er does not become a part of a multi-employer bargain-
ing group where it merely adopts a collective-bargaining
agreement in the negotiation of which it did not actually
participate and which it did not authorize another to ne-
gotiate on its behalf. Ruan Transport Corporation, 234
NLRB 241, 242 ( 1978). See also Schaetzel Trucking, Inc.,
250 NLRB 321, 323 ( 1980).
The conduct of the Employer in the instant case clear-
ly demonstrates that it did not intend to pursue group
bargaining . The evidence shows that the Employer and
the Union bargained with each other on an individual
basis which led to the execution of the Memorandum of
Understanding executed on October 18, 1982 containing
provisions entirely separate and distinct from those con-
tained in the N.E.C.A. master agreement. This individual
agreement belies the clear evidence of the required un-
equivocal intent to be mutually bound in a larger collec-
tive-bargaining unit . See Ruan Transport Corporation,
supra , pp. 242-243. Etna Equipment & Supply Co., Inc.,
236 NLRB 1578 ( 1978).
In view of the foregoing , I find that the Employer
never intended to become nor did it ever , become part of
the multi-employer unit . Therefore, I find that the unit
confined to the employees of the Employer is appropri-
ate.