Electrical Workers Local 58 (Steinmetz Electrical Contractors)

IBEW, LOCAL #58 International Brotherhood of Electrical Workers, AFL-CIO-CLC, and its Local Union No. 58 and Steinmetz Electrical Contractors Association, Inc., and Thomas Edison Club of Detroit, Inc. Case 7- CB-3562 February 1, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On August 1, 1977, Administrative Law Judge John P. von Rohr issued the attached Decision in this proceeding. Thereafter Respondents filed excep- tions with supporting briefs,' and the Charging Parties filed a brief in answer to the exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, only to the extent consistent herewith. Respondent, Local Union No. 58, International Brotherhood of Electrical Workers, AFL-CIO-CLC (herein called Respondent Local or the Union), excepts to the Administrative Law Judge's finding that it violated Section 8(b)(3) of the Act by refusing to bargain with the Charging Parties with respect to a collective-bargaining agreement covering employees engaged in commercial electrical work. We find merit to these exceptions. As set forth more fully in the Administrative Law Judge's Decision, Steinmetz Electrical Contractors Association, Inc., and Thomas Edison Club of Detroit, Inc., hereafter jointly referred to as Stein- metz-Edison, are associations of employers engaged in electrical contracting for both the residential and commercial construction industry in the Detroit metropolitan area. Prior to 1972, Steinmetz-Edison and its contractor members were represented for collective-bargaining purposes by the Southeastern Michigan Chapter of the National Electrical Con- tractors Association (herein called NECA), which bargained and negotiated with Respondent Local for contracts covering residential and commercial work. In 1972 Steinmetz-Edison withdrew from NECA. On August 8, 1977, the Administrative Law Judge corrected his Decision by noting that all of the allegations in the complaint against Respondent International were resolved in a settlement agreement reached by all of the parties at the hearing. Respondent Internatonal's exceptions are limited to the failure of the Administrative Law Judge to note that settlement in his original Decision. 2 The collective-bargaining agreement contained an article providing for mutually agreed-upon amendments 234 NLRB No. 106 Thereafter, individual members of the Steinmetz- Edison associations either by a formal letter of assent or an informal commitment agreed to be bound by the terms of the Union-NECA collective-bargaining agreements. In May 1975, the Council of Industrial Relations, a bipartite body jointly established by NECA and Respondent Local to resolve differences, directed the Union and NECA to enter into negotiations for separate residential and commercial collective-bar- gaining agreements. On June 1, 1975, the Union and NECA signed a l-year collective-bargaining agree- ment covering both commercial and residential work; however, the negotiations that had started in May for a separate residential agreement continued. 2 On or about October 2, 1975, Respondent Local separately recognized Steinmetz-Edison, for the first time, for the purpose of negotiating a collective- bargaining agreement covering only residential work. Respondent Local and Steinmetz-Edison then en- tered into collective-bargaining, and a tentative agreement covering residential work was reached on October 20, 1975.3 On January 9, 1976, the Union and NECA reached an agreement covering only employees doing residential work. That agreement modified the June 1975 Union-NECA contract to cover only commercial work. The parties have stipulated that Respondent Local has refused to bargain with Steinmetz-Edison with respect to a commercial agreement. On July 30, 1976, the General Counsel issued the complaint involved herein, alleging, inter alia, that since May 12, 1976, Respondent Local has refused to bargain with Steinmetz-Edison concerning a collective-bargaining agreement covering commercial employees. On the same day, by telegram, Respondent Local formally and unequivocally disclaimed any and all interest in representing Steinmetz-Edison employees doing commercial work. Based on the above, the Administrative Law Judge found that Respondent Local, by refusing to bargain with Steinmetz-Edison in the historically appropriate unit of residential and commercial employees, violat- ed Section 8(b)(3). The Administrative Law Judge further found that Respondent Local's disclaimer of interest in representing Steinmetz-Edison employees doing commercial work was ineffective in light of Respondent Local's "previous bargaining relation- ship." We disagree. 3 The terms of the collective-bargaining agreement required the approval of the International before it became effective. For reasons not fully developed in the record, the International never approved the October agreement or another tentative agreement signed by Respondent Local and Steinmetz-Edison in December 1975. 633 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record reveals that the parties stipulated that on October 2, 1975, Respondent Local recognized Steinmetz-Edison for the purposes of negotiating an agreement covering employees doing residential work. Thereafter, the parties entered into negotia- tions and on October 20, 1975, reached an agreement on a contract covering that unit of employees. The General Counsel contends that the parties also made an oral agreement to apply the terms of the June 1975 NECA-Union collective-bargaining agreement to Steinmetz-Edison employees doing commercial work. Respondent Local, however, categorically de- nied that it entered into any such oral agreement covering Steinmetz-Edison employees doing com- mercial work. In the face of that explicit denial and the lack of any corroborating evidence suggesting that Respondent had made such an agreement, we find that the General Counsel has failed to establish that subsequent to October 1975 Respondent Local had agreed to represent Steinmetz-Edison employees doing commercial work. We further find that, what- ever the bargaining history of the relationship be- tween Steinmetz-Edison and Respondent Local, 4 the parties mutually agreed to the establishment of a new unit of residential employees.5 It is clear that, by mutual consent, parties can voluntarily change the scope of a bargaining unit, if the new unit is not obviously improper. 6 The Administrative Law Judge, however, also found that the unit alleged in the complaint, the combined residential and commercial unit, was historically appropriate. We agree that such a unit may have been appropriate as there was at least some history of bargaining in that unit. Further, the record reveals that a number of employees are capable of doing either commercial or residential work, some employers use such employees interchangeably, and the same apprenticeship and licensing requirements apply to both residential and commercial employees. We also find, however, that the unit of residential employees agreed to in October 1975 was also an appropriate unit. Our examination of the record reveals that, in fact, residential and commercial work 4 Although individual members of Steinmetz-Edison had signed letters of assent or had informally agreed to be bound by the Union-NECA agreements, Respondent Local had never had a collective-bargaining agreement or a collective-bargaining relationship with Steinmetz-Edison prior to October 1975. Since the parties mutually agreed to a new unit, we find it unnecessary therefore to determine what if any effect the collective- bargaining relationship between Respondent Local and the individual members of Steinmetz-Edison had upon determining the appropriateness of the new separate residential unit. 5 The residential only unit was in fact identical in composition to the unit then currently approved by the area industry. 6 Miscellaneous Service Workers, Drivers and Helpers, Local 427, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Edward D. Sultan Co., Ltd.), 223 NLRB 1342 (1976). 7 Morand Brothers Beverage Co., et al.. 91 NLRB 409 (1950), enfd. 190 F.2d 576 (C.A. 7, 1951). involves different skills and capabilities and that some contractors using Respondent's hiring hall specifically request employees capable of commercial or residential work as the case may require. Based on the above, we find that the voluntarily and mutually agreed-upon unit of residential employees is not obviously improper and also constitutes an appropri- ate unit. It has long been settled that the unit sought need only be an appropriate unit, not the most appropriate unit.7 It is also clear that the Steinmetz- Edison demand to bargain on a basis broader than the established bargaining unit (here the residential unit) was not a mandatory subject of bargaining, and Respondent Local's refusal to bargain over such a demand did not violate Section 8(b)(3).8 As mentioned previously, the Administrative Law Judge also found that Respondent Local's disclaimer of interest in representing Steinmetz-Edison employ- ees doing commercial work was ineffective in light of Respondent Local's "previous bargaining relation- ship." In any inquiry into the effectiveness of such a disclaimer, the Board has always focused on the union's contemporaneous and subsequent conduct.9 In the instant case, the complaint alleges that since May 12, 1976, Respondent Local has refused to bargain with Steinmetz-Edison regarding a collec- tive-bargaining agreement covering commercial em- ployees. The record, however, contains no reliable evidence that subsequent to October 2, 1975, the date Respondent Local recognized Steinmetz-Edison for the purposes of negotiating a residential collective- bargaining agreement, Respondent Local engaged in any effort to represent Steinmetz-Edison employees doing commercial work. Thus, there is no evidence to indicate that Respondent Local engaged in any activity inconsistent with its refusal to represent Steinmetz-Edison employees doing commercial work or to bargain collectively concerning those employ- ees.' 0 This Board cannot compel a union to represent employees it no longer desires to represent, and a s N.LR.B. v. Wooster Division of Borg-Warner Corp., 356 U.S. 342 (1958). 9 Miratti's Inc., 132 NLRB 699, 701 (1961). See also Gazette Printing Company, 175 NLRB 1103, 1104 (1969), and cases cited therein. io The Administrative Law Judge's citation of International Brotherhood of Electrical Workers, AFL-CIO and Local 59, IBEW (Texlite, Inc.), 119 NLRB 1792, 1798 (1958), enfd. 266 F.2d 349 (C.A. 5, 1959), for the proposition that conduct by Respondent Local was inconsistent with its disclaimer of interest in representing Steinmetz-Edison commercial employ- ees is inapposite. In Texlite, Inc., the union disclaimed interest in representing a unit of the employer's employees; however, its subsequent behavior belied that disclaimer and indicated that in fact the Union had attempted to continue representing those employees. In the instant case there is no evidence in the record that subsequent to October 2, 1975, Respondent Local engaged in any activity indicating a desire to represent any of Steinmetz-Edison employees doing other than residential work. See, also, cases cited in fn. 9, supra. 634 IBEW, LOCAL #58 refusal to bargain over such employees does not violate Section 8(b)(3) of the Act." For all of the above reasons, we find that Respondent Local by refusing to bargain with Steinmetz-Edison in respect to a collective-bargaining agreement covering com- mercial employees did not violate Section 8(b)(3). Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. "I Local 44 and Washington State Association of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (John R. Morris), 195 NLRB 225 (1972), enfd. and reported at 82 LRRM 2687, 70 LC ¶13. 448 (C.A. 9, 1972); Sheet Metal Workers International Association, Local Union No. II (Corru- gated Asbestos Contractors, Inc.), 192 NLRB 32. 34 (1971). DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Administrative Law Judge: Upon charges and amended charges filed on June 7 and July 2, 1976, respectively, the General Counsel of the National Labor Relations Board for the Regional Director of Region 7, Detroit, Michigan, issued a complaint on July 30, 1976, against International Brotherhood of Electrical Workers, AFL-CIO-CLC, and its Local Union No. 58, herein called the Respondents, alleging that they had engaged in certain unfair labor practices violative of Section 8(bX3) of the National Labor Relations Act, as amended, herein called the Act.' The Respondents filed an answer denying the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before me on March 25, 1977, in Detroit, Michigan. Briefs were received from the General Counsel, the Respondents and the Charging Parties on May 16, 1977, and they have been carefully considered. Upon the entire record in this case, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS Steinmetz Electrical Contractors Association, Inc., and Thomas Edison Club of Detroit, Inc., are Michigan corporations having maintained their offices and places of business, respectively, in the cities of Farmington Hills and Detroit, Michigan. During the year ending December 31, 1975, Auto City Electric Company, an employer-member of Steinmetz, purchased and received materials valued in excess of $50,000 from points located outside the State of I Other unfair labor practices alleged in the complaint were resolved in a settlement agreement reached by all the parties at the hearing. The aforesaid settlement agreement included a resolution of all the Michigan. During the same period, E. R. Switzer Electric Company, an employer-member of Thomas Edison, re- ceived goods and materials valued in excess of $50,000 from points located outside the State of Michigan. During the same period, Steinmetz Electrical Contractors Associa- tion, Inc., and Thomas Edison Club of Detroit, Inc., derived an aggregate gross revenue valued in excess of $500,000, and received products valued in excess of $100,000 directly from points located outside the State of Michigan. I find Auto City Electric Company and E. R. Switzer Electric Company to be engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find Steinmetz Electrical Contractors Association, Inc., and Thomas Edison Club of Detroit, Inc., by virtue of their actions as representatives of these employees and other employer-members, also to be engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II1. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, AFL- CIO-CLC, and its Local Union No. 58 are labor organiza- tions within the meaning of Section 2(5) of the Act. I1l. THE UNFAIR LABOR PRACTICES A. The Facts Prior to 1972, the Charging Parties in this case, herein called Steinmetz-Edison, belonged to the Southeastern Michigan Chapter of the National Contractors Associa- tion, herein called NECA, which bargained and negotiated contracts on their behalf with Respondent International and Respondent Local Union No. 58. In 1972, Steinmetz- Edison timely withdrew from NECA. During the subse- quent period between 1972 and October 1975, Respon- dents continued to recognize Steinmetz-Edison for collec- tive-bargaining purposes and the contractual relationship continued by means of the members of Steinmetz-Edison executing letters of assent to the Respondent Union-NECA contracts that were negotiated during this period. In view of the issue presented in this case, it is to be particularly noted that at all times prior to January 9, 1976, the successive single collective-bargaining agreements between Respondents and NECA covered both residential and commercial work. On or about April 19, 1975, the Council of Industrial Relations, a body set up by the Union and NECA to resolve material disputes, directed the Union and NECA to negotiate a separate contract solely covering residential work, which, as noted, had previously been covered under the single industry (commercial) contract. In the meantime, on or about October 2, 1975, the Respondents recognized Steinmetz-Edison for collective- bargaining purposes and commenced negotiating a collec- tive-bargaining agreement covering residential work. A contract covering this work was reached on October 20, 1975. With respect to commercial work, however, it was stipulated that, at all times material hereto, Respondents allegations in the complaint against the International Brotherhood of Electrical Workers. AFL-CIO-CLC. 635 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have refused to bargain with Steinmetz-Edison concerning a commercial contract. A so-called disclaimer of interest by Respondents to represent employees performing commer- cial work was set forth in a telegram from Respondents to Steinmetz-Edison on July 30, 1976, which stated as follows: IBEW Local 58 herewith disclaims, fully and unequivo- cally any and all representative rights with respect to the employees of any and all contractors who have designated Steinmetz Electrical Contractors Associa- tion and/or Thomas Edison Club of Detroit as their bargaining representatives for purposes of collective bargaining for an inside commercial agreement. These contractors are as follows: [Names omitted.] B. Discussion and Conclusions From the facts hereinabove stated, the issue in this case is whether Respondents' conduct in refusing to bargain with Steinmetz-Edison concerning terms and conditions of a collective-bargaining agreement covering the commercial work performed by their member-employees is violative of Section 8(b)(3) of the Act. A principal defensive contention raised by Respondents is that the appropriate unit alleged in the complaint, namely all journeyman and apprentice wiremen employed by the employer-members of Steinmetz-Edison, is not an appropriate unit for the purposes of collective bargaining. In finding no merit to this defense, it may be simply noted, as the undisputed facts reveal, that the journeyman electrician and apprentice employees of the various con- tractors studied and worked under one apprenticeship program covering both commercial and residential work, and on the completion of their training, took a single examination covering both types of work. In addition, the employees of the contractors are interchangeably assigned to commercial and residential projects, that is the member- employees of one employer may be assigned to perform residential work one day and commercial work the next. Moreover, that Respondents have historically recognized the appropriateness of the unit in question is manifested by the previously noted fact that for a number of years prior to January 1976, there was a single collective-bargaining agreement between Respondents and NECA which cov- ered both residential and commercial work. Accordingly, and in view of all the foregoing, I find the unit alleged in the complaint to be an appropriate unit for the purposes of collective bargaining. Respondents also assert that they should not be required to bargain with respect to the commercial work performed by their member-employees because they have "formally disclaimed interest with respect to this particular commer- cial unit." In this connection, it is noteworthy that the record in this case does not reveal whatever the Respon- dents' motives or reasons for refusing to bargain with Steinmetz-Edison concerning the commercial work. I therefore must assume this to be some type of a tactical maneuver and therefore not a good-faith disclaimer of their representation rights. As the Board stated in International 2 1 find as totally without merit Respondents' further assertion that they were not obligated to bargain with Steinmetz-Edison because Steinmetz- Edison "is not a successor organization of NECA." Not only is any Brotherhood of Electrical Workers, AFL-CIO (Texlite Inc.), 119 NLRB 1792, 1798 (1958), "A union's 'bare statement' of disclaimer is not sufficient to establish that it has abandoned its claim to representation if the surrounding circumstances justify an inference to the contrary. The union's conduct must not be 'inconsistent' with its alleged disclaimer." In view of Respondents' previous bargaining relationship on behalf of their members with Steinmetz- Edison over preceding years, as previously related, I find Respondents' conduct here to be manifestly inconsistent with its disclaimer. In sum, and for the reasons set forth above, I find that Respondents' disclaimer of July 30, 1976, was not made in good faith and was therefore ineffective to relieve them of their obligation to bargain with Steinmetz-Edison for employees in the appropriate unit. By so refusing to bargain, Respondents violated Section 8(b)(3) of the Act.2 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the employers, described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices violative of Section 8(bX3) of the Act, I shall recommend that they cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The employers are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondents are labor organizations within the meaning of Section 2(5) of the Act. 3. All journeyman and apprentice wiremen employed by Steinmetz Electrical Contractors Association, Inc., and Thomas Edison Club of Detroit, Inc., excluding supervi- sors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Respondents are, and at all times material have been, the exclusive representatives of the employees in the above appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. "successor" theory inapplicable here, but the fact is that Respondents indeed did recognize Steinmetz-Edison for bargaining purposes. 636 IBEW, LOCAL #58 5. By refusing to bargain for an appropriate unit, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)3) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 637