Iron Workers, Local 625

128 DECISIONS OF NATIONAL LABOR 'cELATIONS BOARD International Association of Bridge, Structural and Ornamental Iron Workers, Local 625, AFL-CIO and Construction Industry Bargaining Association of Hawaii International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 204, AFL-CIO and Construction Industry Bar- gaining Association of Hawaii . Cases 37-CB-158 and 37-CB-160 June 6, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On April 30, 1973, Administrative Law Judge George H. O'Brien issued the attached Decision in this proceeding. Thereafter, Respondents filed excep- tions and a supporting brief, and the General Counsel filed an answer to Respondents' 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 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondents, International Asso- ciation of Bridge, Structural and Ornamental Iron Workers, Local 625 , AFL-CIO, and International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 204, AFL-CIO, their officers, agents, and representatives, shall take the action set forth in said recommended Order. DECISION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Administrative Law Judge: On December 11, 1972, in Honolulu, Hawaii, a hearing was held in the above entitled matter. The consolidated complaint, issued October 30, 1972, is based on charges ' On February 20, 1973, Respondents' counsel moved to reopen the record, and tendered as Resp Exh 4, copies of a contract signed by Boilermakers and individual companies on January 31, 1973 A memoran- filed July 19, 1972, and amended charges filed July 20, 1972, by Construction Industry Bargaining Association of Hawaii, herein called CIBA. The complaint alleges and the answers deny that Respondents, International Association of Bridge, Structural and Ornamental Iron Workers, Local 625, AFL-CIO, herein called Ironworkers, and Interna- tional Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 204, AFL-CIO, herein called Boilermakers, violated Section 8(b)(1)(B) and 8(b)(3) of the National Labor Relations Act by refusing to bargain with CIBA and refusing to bargain with the employers of employees represented by Respondents, so long as CIBA remained the designated representative of said employers for collective bargaining. Upon the entire record 1 in this proceeding, including my observation of the witnesses and after due consideration of the post hearing briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Associated Steel Workers, Ltd., Hawaii State Steel Co., Ltd., Hawaii Reinforcing Steel Co., and Western Fabrica- tors, Inc., are employers in the building and construction industry. Hawaii Reinforcing Steel Co. annually purchases and receives goods and materials valued in excess of $50,000 which are shipped to it directly from points located outside the State of Hawaii. The contract effective from October 30, 1967, to August 15, 1972, recites: This agreement. . . . by and between the Reinforcing Steel Companies of Honolulu, Hawaii, signatory to this agreement, each signatory being hereinafter called the "Employer", and Local Union No. 625 of the Interna- tional Association of Bndge, Structural and Ornamen- tal Ironworkers, AFL-CIO, hereinafter called the "Union", witnesseth:.. . Hawaii Welding Co., Ltd., annually purchases and receives goods valued in excess of $50,000, which are shipped to it directly from points located outside the State of Hawaii. Hawaii Welding Co., Ltd., and 12 other employers in the building and construction industry are signatory to a contract effective from April 1, 1968, to August 15, 1972, which recites: This agreement. . . . by and between the Steel Fabri- cators & Erectors Association of Hawaii signatory to this agreement, each signatory being hereinafter called the "Employer," and Local Union No. 625 of the International Association of Bndge, Structural and Ornamental Ironworkers, AFL-CIO, hereinafter called the "Union", witnesseth:.. . Dillingham Corporation, d/b/a Hawaiian Dredging & Construction Co., annually purchases and receives goods valued in excess of $50,000, which are shipped to it directly from points located outside the State of Hawaii. Hawaiian Dredging & Construction Co., and nine other employers in dum opposing said motion was filed by the General Counsel on February 22, 1973 The motion is granted and the Boilermakers' agreement effective to and including August 31, 1975, is received in evidence as Resp Exh 4 211 NLRB No. 29 IRON WORKERS, LOCAL 625 129 the building and construction industry are signatory to a contract effective from April 1, 1971, to September 1, 1972, which is entitled: Articles of Agreement Between the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, and Subordinate Lodge No. 204 (herein referred to as "Union") and the Firms Whose Signatures are Affixed Hereto (herein referred to as "Contractor")... . The agreement is signed, "For Contractors' Negotiating Committee: By John Marabella, Chairman," and the same document is also signed by 10 employers. CIBA was incorporated May 31, 1972. Its bylaws adopted June 14, 1972, recite: ARTICLE I, Section 1. Organization and Purpose. The Construction Industry Bargaining Association of Ha- waii, hereinafter referred to as "CIBA-HAWAII", is a non-profit corporation organized and existing under the laws of the State of Hawaii, to negotiate and execute labor agreements which are applicable to and cover operations within the State of Hawaii in the construction industry for employer members of the corporation, all matters and things which are now or hereafter may properly be the subject of collective bargaining, to represent and act on behalf of employers generally in the construction industry, and to do all acts and things not expressly prohibited to a non-profit corporation. Steel Fabricators & Erectors Association of Hawaii The Reinforcing Steel Companies of Honolulu, Hawaii GENTLEMEN: .... we hereby serve notice prior to the expiration date of our contract. . . . Local Union #625 hereby notifies you, and each of you of its desire to modify, amend, reject or re-accept the various provisions contained therein... . It is our desire to conduct our negotiations along the same general line we have followed in the past and suggest negotiations commence as soon as possible, at any mutually agreeable time and place... . The letter was signed by Damien O. S. Kim, President, and by "Kazuto Cowboy Muramatsu, Fin. Sec'y, Treas., Business Agent." Under date of June 1, 1972, on the letterhead of CIBA-HAWAII, James G. Westlake wrote to Ironwork- ers: In connection with the forthcoming negotiations for renewal of the collective bargaining agreement between your Union and the Reinforcing Steel Companies of Hawaii, this is to officially advise you that the members of said Association have assigned their bargaining rights to our organization. H. THE LABOR ORGANIZATIONS INVOLVED Ironworkers and Boilermakers are labor organizations within the meaning of Section 2(5) of the National Labor Relations Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The controlling issue in the case is whether Respondents' refusal to bargain with CIBA had any legal justification. B. Ironworkers Bargaining Steel Fabricators and Erectors Association of Hawaii is an association which represents its member employers in collective bargaining with various labor organizations. In its negotiations with Ironworkers prior to 1972, the president of the Association named a negotiating commit- tee of five persons who, with James Westlake, Manager of General Contractors Association, Hawaii Chapter, met with Ironworker representatives. The agreements reached were subject to ratification by the membership of the Association. Reinforcing Steel Companies of Honolulu, Hawaii, is the collective designation of the four employers who have negotiated jointly with Ironworkers. Each company is represented on the bargaining committee. In 1972, five companies were represented and all five participated. Under date of May 30, 1972, Ironworkers wrote to: The above covers the following companies: Associated Steel Workers, Ltd. Atlas Prestressing Corporation Hawaii State Steel Co., Ltd. Hawaiian Reinforcing Steel Co., Ltd. Western Fabricators, Inc. I will be in contact with you shortly to arrange for the official commencement of negotiations. Under date of June 1, 1972, on the letterhead of Steel Fabricators & Erectors of Hawaii, its president, Kenneth K. Sudo, wrote to Ironworkers: In connection with the forthcoming negotiations for renewal of the collective bargaining agreement between your Union and members of our Association, this is to officially advise you that our members, through our Association, have assigned their bargaining rights to the Construction Industry Bargaining Association of Hawaii (CIBA-HAWAII). That organization will be making contact with you to arrange for the official commencement of negotiations. On June 14, 1972, the seven directors of CIBA adopted bylaws and appointed Westlake, the manager of associated General Contractors, to be the "staff" of CIBA. The bylaws contain the following provisions: 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ARTICLE X DUTIES AND OBLIGATIONS OF MEMBERSHIP Section 1. Mutual Interest in Labor Activities: Members of CIBA-HAWAII hereby acknowledge that each of them are interested and concerned in all labor negotiations conducted by other members of CIBA- HAWAII itself without regard to the current status of any collective bargaining agreement adopted by any of them for the following reasons , among others: (a) The casual nature of employment within the construction industry; (b) The fact that employees from a variety of umons may fulfill a particular employer's need in time of labor shortage, such as welders or other persons skilled in the tools of the trade of a variety of crafts; (c) Changes in contracting and subcontracting methods and competitive bidding, including specially funded and bid programs such as model cities; (d) Changes in construction equipment methods and techniques giving rise to jurisdictional disputes; (e) The co-ordinated nature of construction activities in the field which make the performance of work by any employer dependent, in fact, upon other work as a necessary pre-condition or necessarily co-ordinated with such work; (f) Local unions having associated themselves with sister locals, their international organizations and other building trades unions having long-range co-ordinated plans; (g) Construction trades' unions having developed a full time specialized staff advancing the specialized interest of organized labor; (h) Employers generally having failed to match the organization structure and planning functions of building and construction trades; (i) The interest in and encouragement of the federal government in area-wide multi-contractor organiza- tions as a balancing force in the economy; (j) The absence of any other organization to protect the common interest of the public generally and the interests of construction by tax supported public institutions. Section 2. Assignment of Bargaining Rights: For the reasons set forth in Section 1, among others, each member of CIBA-HAWAII by applying for and maintaining membership does hereby covenant and agree with all other members to be boun'.- hereunder, and does hereby designate and assign to CIBA-HA- WAII all of its bargaining and negotiating rights with the local construction unions with whom it negotiates contracts, including the rights of all of its members or other persons bound to such negotiations , for the duration of their membership (subject to binding arbitration provisions applicable to particular trades under existing collective bargaining agreements); pro- vided, however, that labor contracts binding upon CIBA-HAWAII shall be negotiated and executed by CIBA-HAWAII Negotiating Committees selected for each craft . The following principles shall govern the selection and operation of the Negotiating Committees: Each Negotiating Committee shall be selected by the Board [of Directors of CIBA] from represent- atives of the associations dominant in the employment of that craft, based upon historical bargaining rights. The Board [of Directors ] shall establish guidelines for the procedural operation of the Negotiating and Advisory Committees; provided, that the final authori- ty to negotiate, conclude and execute the substance of labor contracts binding upon all members of CIBA- HAWAII shall be with particular Negotiating Com- mittees. Upon such application for and maintenance of membership, CIBA-HAWAII does hereby accept such assignment of bargaining rights. Section 3. Negotiations through CIBA-HAWAII only- Each member hereby authorizes and empowers CIBA- HAWAII as its sole and exclusive bargaining agent to enter into and conduct negotiations in its behalf and to execute new collective bargaining agreements with the construction trade unions, (hereinafter called the "Unions") to cover wages, hours and other terms and conditions of employment of its employees represented by the unions. In consideration of the services performed and to be performed on behalf of the members of CIBA-HA- WAII, each member hereby agrees that this authoriza- tion is irrevocable and that each member will not negotiate or discuss separately a new collective bar- gaining agreement , or any of the terms thereof , or reach or attempt to reach any understanding, either formally or informally, with such umons or execute a collective bargaining agreement with such unions , unless approv- al has first been given by CIBA-HAWAII. In the event that CIBA-HAWAII is unable to reach a settlement with any of said unions on the terms of a collective bargaining agreement , each CIBA-HAWAII member agrees that: (a) If a union takes strike action against any member or members of CIBA-HAWAII who have signed similar authorizations, upon request of CIBA-HA- WAII and to the extent it may lawfully do so , will clc,se down and lock out its employees as a defensive measure to such tactics, and will take such other lawful defensive action with respect to the strike as CIBA- HAWAII deems necessary or appropriate to preserve and protect the rights of CIBA-HAWAII members to engage in collective bargaining on a multi-employer basis through CIBA-HAWAII. (b) If a union insists upon adoption of terms unacceptable to CIBA-HAWAII, each member, to- gether with all other members who have signed similar authorizations , upon request of CIBA-HAWAII and to the extent that it may lawfully do so, will close down and lock out its employees as an offensive measure and take such other lawful action as CIBA-HAWAII deems necessary or appropriate. As of June 14, 1972 the board of directors of CIBA was IRON WORKERS, LOCAL 625 131 comprised of representatives of the following employer associations : Associated General Contractors Labor Asso- ciation; Labor Association of the Home Builders Associa- tion; Steel Fabricators and Erectors of Hawaii; Reinforc- ing Steel Companies of Hawaii; Boilermaker Employers of Hawaii ; Gypsum and Drywall Contractors Association of Hawaii; Paving Companies of Hawaii; Pacific Bureau for Lathing and Plastering. On June 27, 1972, Ironworkers notified Reinforcing Steel Companies: .... This is to inform you that we do not recognize the purported assignment of the Reinforcement Steel Com- panies of Honolulu, Hawaii, bargaining rights to CIBA. We have been advised, and we believe, that the Rein- forcing Steel Companies of Honolulu, Hawaii, cannot, without our consent, assign to another organization its rights to bargain with our Union. Its so-called assign- ment does not bind us to deal with CIBA and we do not intend to do so.... We insist that negotiations between the Union and the Reinforcing Steel Companies of Honolulu, Hawaii, begin without further delay. On the same date, June 27, 1972, Ironworkers served an identical notice and demand on the Steel Fabricators & Erectors Association of Hawaii. On July 12, 1972, a meeting was held in the offices of Associated General Contractors. Ironworkers were repre- sented by Muramatsu and members of his bargaining committee. Employers were represented by members of CIBA's board of directors, by members of the Fabricators and Erectors bargaining committee and by members of the Reinforcing Steel group. Attorney Benjamin Sigal was spokesman for the Ironworkers. James Westlake was spokesman for the employers. After introductions, West- lake announced that "we were there at the Union's request to hear what the Union had in mind with respect to the two groups getting together." Sigal stated that the purpose of the meeting was to explain why Ironworkers would not recognize CIBA. His reasons were: (1) The Ironworker contracts were not association agreements. Although negotiations had been conducted jointly, the agreements had been signed individ- ually. (2) Associations, as such, did not have any authority to negotiate for the individual members. (3) Ironworkers had never consented to association bargaining. (4) If the Associations had named CIBA as their spokesman, "it might be a different story," but, the effect of CIBA's bylaws, was to make CIBA the employer, and make the employer groups agents of CIBA, and "pitting the entire construction industry against Local 625." Westlake answered that this was not the intent of the employers and "that the negotiations would be conducted just as they had in the past. The Reinforcing Steel Negotiating Committee would be made up of Reinforcing Steel Employers, and the Steel Fabricators and Erectors negotiations would be handled by a committee of Steel Fabricators and Erectors and the contracts would be signed just as they had in the past." When Sigal protested ,that CIBA's bylaws made this impossible, one of the CIBA directors, John Marabella, replied that the bylaws were an internal matter of the CIBA group, and no concern of Ironworkers. Marabella explained that although the bylaws had been written with an overall multiunion-multiemploy- .er concept in mind, the employers were reconciled to the fact that the unions were not going to accept this concept and were willing to negotiate just as they had in the past. Ironworkers were not persuaded. In exchanges of correspondence between August 10, 1972, and August 30, 1972, it was agreed that negotiations would be conducted "in the same manner and on the same basis" as they had been in the past, that the two resulting ,agreements would be signed by the individual employers bound thereby, that the employer representatives would neither represer t nor be represented by CIBA, and that the legality of Ironworkers' refusal to recognize CIBA and refusal to bargain with CIBA would be left for determina- tion by the National Labor Relations Board. On November 30, 1972, Ironworkers and the five Reinforcing Steel Companies signed an agreement effec- tive from August 14, 1972, to August 17, 1975. On December 4, 1972, Ironworkers and Steel Fabricators and Erectors of Hawaii, signed a contract effective from August 14, 1972, to August 17, 1975. C. Boilermakers Bargaining John Marabella is manager of labor relations for Dillingham Corporation. He was the chairman of the employers' committee which negotiated the 1971 contract with Boilermakers. He participated with other employer representatives in the development of the CIBA concept which was: that CIBA acting for and in behalf of the Employers would meet across the table with all of the Unions involved in the construction industry in Hawaii for the purpose of negotiating an economic package, total package. Once that total package was arrived at, then each of the Unions and Employer Associations would meet for the distribution of the package and for ironing out language and whatever other things were necessary for the agreement. The CIBA concept was presented informally to union representatives in individual and group meetings early in 1972. Marabella testified that when it became apparent that the Unions would not accept the CIBA concept, . . . then it was our judgment at that time that CIBA would be the spokesman for any Employer Association who asked them to speak in their behalf and [negotia- tions ] would be handled in exactly the same manner as they had in the past, that is that the committees would have the sole authority to negotiate and execute their contract. Under date of June 1, 1972, Marabella in his capacity of "Chairman, Boilermaker Employers Negotiating Commit- tee" wrote to Boilermakers: In connection with the forthcoming negotiations for renewal of the collective bargaining agreement by and between your union and our association, this is to officially advise you that our association, for and on behalf of its members, has assigned its bargaining rights to the CONSTRUCTION INDUSTRY BARGAIN- 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ING ASSOCIATION OF HAWAII (CIBA-HAWAII). That organization will be contacting you shortly to arrange for the official commencement of negotiations. Under date of June 16, 1972, Boilermakers sent individu- al letters to each of the employers signatory to its contract, suggesting a number of changes and modifications. One of these letters was addressed to Marabella as manager of labor relations for Dillingham Corporation. Under date of July 5, 1972, on the letterhead of CIBA, Westlake wrote to Boilermakers: In connection with the forthcoming negotiations for renewal of the collective bargaining agreement by and between your Union and various companies, this is to officially advise you that the following companies which make up the Boilermaker Employers of Hawaii have assigned their bargaining rights to our organiza- tion : Black, Wyatt & Kipper Central Pacific Boiler & Piping Ltd. Chicago Bridge Hawaii Welding Co. Hawaiian Dredging and Construction Co. Industrial Mechanical Contractors Midwestern Contractors Mutual Welding Co. Pacific Marine & Supply Co. Under date of July 10, 1972, Boilermakers sent identical letters to each of the employers party to its contract, stating: This is to inform you that we do not recognize your purported assignment of bargaining rights to CIBA. We have been advised, and we believe, that your company cannot, without our consent, assign to another organization your company's right to bargain with our Union. This so-called assignment does not bind us to deal with CIBA or any of its agents, and we do not intend to do so. We have been negotiating with you amicably and successfully for many years, and we are desirous and willing to continue negotiating as we have done during that time. Notice of our desire to reopen the agreement for negotiations has already been given to you. The deadline for commencement of such negotiations is July 16th. We are prepared to meet with you on that date at a mutually agreeable time and place to begin such negotiations . However, again we insist that negotiations be conducted between this Union and your company without the intervention of a third party. Boilermaker and Employer representatives met in the offices of Associated General Contractors on July 17, 1972. The sole purpose was to explain their relative positions with regard to CIBA. Negotiations were neither contem- plated nor attempted. Paul I. Banks, president of CIBA, and Marabella spoke for the employers. Sigal spoke for the Boilermakers. At this meeting, as descnbed by Marabella, [Mr. Banks] said originally CIBA has been intended to be a multi-employer-multi-union bargaining group, and he reviewed the experiences of collective bargain- ing on the mainland, the non-union development on the mainland. He felt that CIBA could be used as a clearing house for labor problems, could be used as a communication between Employers and could conceiv- ably coordinate collective bargaining so that we can minimize the impact of whiplash and that sort of thing which had happened in the past. Mr. Sigal made it abundantly clear that the Union was not there to bargain with CIBA. In fact they were there to explain their reasons for not bargaining with CIBA. He said the Union's being there did not constitute recognition of CIBA. He also questioned the validity of our statements regarding a Boilermaker Association. He said the Association's assignment of bargaining rights to CIBA is futile, since they have nothing to assign and that that assignment could not be made without the consent of the other party. He said that in fact, the Boilermaker Employers, in the assignment of their bargaining rights had made CIBA an employer and it was on that basis that he was refusing to either recognize or bargain with CIBA. Our response to him was that the original concept of CIBA, that is the multi-employer- multi-union bargain- ing, we were convinced now was not to take place at this time. . . . We said that we would negotiate as they had in the past, that is the same group of employers with the same Union in the same manner in which they had negotiated in the past and that the individual Employers would sign their contracts as they had in the past. Mr. Sigal indicated that that was unsatisfactory because in fact, they might be agents of CIBA. When Marabella reiterated that "it was not the intent of CIBA to change the scope of the agreement, nor was it the intent of CIBA to expand the bargaining unit in any way," Sigal answered that this intent could not be carried out under the existing bylaws of CIBA. Marabella replied that "the bylaws were none of [the Union's] business," but that "if the bylaws had to be amended to conform to the existing idea of CIBA it would be done." The meeting ended with Westlake's announcement that he "would be filing charges with the National Labor Relations Board . In exchanges of correspondence between July 24, 1972, and August 25, 1972, it was agreed that negotiations for a new agreement would be conducted in the same manner and on the same basis as was used for current and prior agreements, that the contract would be signed by the Boilermakers and by the individual employers who would be bound by it, that employer representatives would neither represent nor be represented by CIBA and that the legality of Boilermakers' refusal to recognize CIBA and refusal to bargain with CIBA would be left for determina- tion by the National Labor Relations Board. On January 31, 1973, Boilermakers and nine employers signed separate but identical contracts. D. Respondent's Argument Respondents' counsel in his brief to me states : "There can be no doubt that Respondents never agreed to bargain IRON WORKERS, LOC.".L 625 133 with CIBA." He justifies this refusal on the following grounds: A. There is no history of bargaining by Respondents on the basis of a multi-employer unit. With respect to the Boilermakers, there is no dispute that prior to CIBA there had never been an association of the Boilermaker employers; that the union was never informed of a designation of a bargaining agent for the employers; that every employer involved had a repre- sentative at the joint negotiations, and any employer was free to refuse to sign the agreement when the negotiations were completed. The history of negotiations between the Ironworkers and the Steel Companies was the same as that of the Boilermakers. With respect to the Fabricators, there was an association in existence which had a spokesman and a committee representing all the employers; however, no action was taken with respect to any absent employer before consulting him, and every employer involved was free to refuse to sign an agreement after it was negotiated. B. CIBA constituted an entirely different type of collective bargaining than Respondents had previously engaged in. As shown above, Respondents had never engaged in bargaining on a multi-employer unit basis as the Board has defined it, and did not want to engage in it. However, assuming, arguendo, that they had en- gaged in such bargaining, it is clear that CIBA constituted an entirely different kind of entity than they had known previously, and they wanted no part of it. The basic differences may be outlined as follows: 1. Assignment of bargaining rights. The so-called associations purported to assign their bargaining rights to CIBA. Assuming that the individual employers assigned their rights to CIBA, there can be no question that in previous negotiations there had been no assignment or delegation of bargaining rights. 2. CIBA was broader than any trade group. The governing body of CIBA, which determined its policies, consisted of employers from many trade groups in addition to the respective groups with which the Respondents had dealt. . . . Since each of the associa- tions had one vote on the board of CIBA, it is obvious that the policies that would govern the Boilermaker employers, or the Fabricators, or the Steel Companies would be determined by employers in other trades... . 3. The entire construction industry was expected to back up each negotiation. This was the heart of the CIBA concept and it is spelled out in various ways in the by-laws. . . . The CIBA concept included a structure which, in effect, ranged all the employers in the construction industry against a single craft union when the latter was bargaining only for its own craft... . CIBA recognized that it was markedly different from anything that went before in respect to bargaining in the construction industry, and the necessity for consent of the unions, when it stated in its letters to the Respondents that "The By-laws of CIBA-Hawaii were prepared with a view towards the possible and/or eventual joint and mutual consent and recognition of the CIBA concept on the part of all building trades unions and the employers involved"... . C. A CIBA multi-employer bargaining unit never came into being because Respondents did not consent to bargain with it, and did not enter into negotiations with it. . Evening News Association, 154 NLRB 1494, 1496- 1497... . D. CIBA was never designated a representative for purposes of collective bargaining Marabella, supported by Westlake, testified that when Respondents made it clear they would not deal with CIBA as bargaining agent, CIBA said: ... we would negotiate as they had in the past, that is, that the same group of Employers with the same Union in the same manner in which they had negotiated in the past and that the individual Employers would sign their contracts as they had in the past." This statement illustrates the deliberate obfuscation, if not duplicity, which CIBA engaged in after learning that Respondents would not recognize it. When Marabella, speaking for CIBA said "we" would negotiate, etc., he was expressing a self-contradiction, because bargaining could not, under those circum- stances, go on just as it had in the past, because CIBA had not been involved in those negotiations in the past. It was clear to Respondents that Marabella's statement was a verbal mask, inasmuch as the employers would still be subject to the commitments they had made to CIBA and CIBA would be calling the shots... . None of the emI foyers advised either of the Respondents that they were changing the role of CIBA, after informing Respondents that they had assigned their bargaining rights to CIBA. CIBA never explicitly said that it was designated and willing to act merely as a spokesman in negotiations for any of the groups of employers involved. This was not due to an oversight, nor lack of realization by CIBA of the importance of the distinction between a spokesman and a "duly designated collective bargaining represent- ative". CIBA did use that word in a different context. In letters to Respondents dated August 10, CIBA stated its willingness to act as spokesman on a "company by company" basis. The Respondents had made no request to bargain on a company by company basis. But the proposal had the effect of emphasizing both the failure of the employers to inform the Respondents that they had designated CIBA merely as their spokesman, and also the failure of CIBA to express its willingness to act in that capacity. When the employer groups did inform Respondents that they were willing to negotiate just as they had in 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the past, the Respondents did enter into negotiations with them. E. Conclusions Section 8(b)(1)(B) guarantees to employers the right to select "representatives for the purposes of collective bargaining" free from any coercion or restraint by a labor organization. Section 8(d) imposes on employers and unions a "mutual obligation" to "confer in good faith." This case is the counterpart and the mirror image of two lead cases wherein the Board held that employers had violated their duty to bargain with unions representing their employees. These are, General Electric Co., 173 NLRB 253, enfd. 412 F.2d 512 (C.A. 2, 1969), and Minnesota Mining and Manufacturing Company, 173 NLRB 275, enfd. 415 F.2d 174, 175 (C.A. 8, 1969). The following statement by Trial Examiner Fredrick U. Reel, adopted by the Board and approved by the Court of Appeals for the Eighth Circuit disposes of Respondents' contention herein that the desire of employers to expand the bargaining units justified Respondents' refusal to bargain with CIBA: The company contends that the Union's ultimate aim is "coordinated bargaining", that is bargaining which will embrace more than the single unit the Union represents and which will settle terms for other units and at other plants. The record does establish that this [is] an ultimate objective of the Union. . . . the presence of representatives of other labor organizations in the St. Paul and Hastings negotiations may well be an opening wedge in this hoped for development. The company perhaps should not be blamed for trying to keep the union camel from sticking its nose under the tent. But whatever may be the Company's fears, and however accurate its prognostication and its discernment of the Union's ultimate aims, the Company here and now is under a duty to bargain with the Union, and this encompasses a duty to bargain with whatever repre- sentatives the Union chooses to send. The mere possibility of future abuse. . . . is no justification for an anticipatory refusal to bargain. Appropriate unit is not an issue in this case and the unit descriptions in the complaint are surplusage. On this record there are three historical multiemployer units. As of June 27, 1972, prior to the commencement of bargaining for a new contract, Ironworkers had the legal right to refuse to bargain with the Fabricators Association, or with the Reinforcing Steel Companies as a group. If they had exercised this option, they would have remained under the legal duty to bargain with each individual employer, through his selected representative, CIBA. Ironworkers did not exercise their option. They demanded continuation of association bargaining, while refusing to recognize CIBA. Boilermakers, by their individual letters of July 10, 1972, may have demanded individual bargaining. Westlake, recognizing that possibility, advised the Boilermakers on August 10, 1972: This will confirm, again in the interest of getting negotiations underway, the willingness of CIBA-HA- WAII to act as spokesman on an individual company by company basis if this arrangement would be more satisfactory to you. If so, we would suggest that, in the interest of time, such individual negotiations be consolidated and conducted concurrently. Boilermakers rejected this suggestion, and reaffirmed their refusal to bargain with CIBA in any unit. In The Evening News Association, 154 NLRB 1494, the Board held at 1497 and 1500-01: the basis of multi-employer bargaining unit is both original and continuing consent by both par- ties.... Important practical considerations demon- strate the wisdom of leaving intact the freedom of the parties involved to form and dissolve, to modify and adapt, multiemployer units. Practices vary from indus- try to industry, from one section of the country to another, and from time to time even within one industry or one section of the country. No one pattern of bargaining structure has been found best adapted to all situations. The benefits that flow from multiemploy- er bargaining result from the participants' mutual agreement that their individual interests are best served by negotiating within the framework of multiemployer units... . At no time did CIBA, nor did any employer or employer association represented by it seek to expand any unit in which either Respondent was willing to bargain. Respondents' refusal to bargain is not excused by any provision or combination of provisions in the bylaws of CIBA. In Mayfair Industries, Incorporated, 126 NLRB 223, the Board held (fn. 1): The Employer moved to dismiss the petition on the ground that the constitution of the Petitioner's Interna- tional Union prohibits the Petitioner from representing the Employer's employees. We find no merit in this contention. It is the Petitioner's willingness, rather than its constitutional ability to represent these employees which is the controlling factor. In Herron Yarn Mills, Inc., 160 NLRB 629, the employer respondent pleaded in answer to a complaint alleging refusal to bargain in violation of Section 8(a)(5) of the Act: (b) The constitution of the United Furniture Workers of America does not permit it or its local unions to organize or represent employees employed in the type of business in which Respondent is engaged. The Trial Examiner on motion of the General Counsel struck this paragraph from the answer "on the ground that it was insufficient in law" to constitute a defense to the refusal to bargain. The Board adopted the "findings, conclusions and recommendations" of the Trial Examiner. The principle of mutuality demanded by Section 8(d) of the Act, as explicated in Evening News Association, supra, requires that the same rule be applied to Employer representatives. I specifically find that as of June 27, 1972, Respondent IRON WORKERS , LOCAL 625 135 Ironworkers was under a duty to bargain with CIBA as the representative chosen by the employers of employees represented by Ironworkers, and that Ironworkers' letters of June 27, 1972, constituted a refusal to bargain violative of Section 8(b)(3) of the Act. I further find that this refusal to bargain restrained and coerced employers in the selection of their representative for the purposes of collective bargaining in violation of Section 8(b)(1)(B) of the Act. I specifically find that as of July 10, 1972, Respondent,. Boilermakers was under a duty to bargain with CIBA as the representative chosen by the employers of employees represented by Boilermakers, and that Boilermakers' letters of July 10, 1972, constituted a refusal to bargain violative of Section 8(b)(3) of the Act. I further find that this refusal to bargain restrained and coerced employers in the selection of their representative for the purposes of collective bargaining in violation of Section 8(b)(1)(B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents as set forth above, occurring in connection with the operations of Hawaii Reinforcing Steel Co., Hawaii Welding Co., Ltd., Hawai- ian Dredging & Construction Co., and other employers in the building and construction industry, which is an industry affecting commerce, have a close, intimate and substantial relation to trade, traffic and commerce among the several states and have led and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It has been found that Respondents have engaged in certain unfair labor practices. It will therefore be recom- mended that they cease and desist therefrom and take certain affirmative action, as set forth in the recommended order below, designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Hawaii Reinforcing Steel Co., Ltd., and all employ- ers associated with it in bargaining with Respondent Ironworkers, are employers within the meaning of Section 2(2) of the Act engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hawaii Welding Co., Ltd., and all employers associated with it in bargaining with Respondent Iron- workers, are employers within the meaning of Section 2(2) of the Act engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. Dillingham Corporation, doing business as Hawaiian 2 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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 Dredging & Construction Co., and all employers associat- ed with it in bargaining with Respondent Boilermakers, are employers within the meaning of Section 2(2) of the Act, engaged in commerce and in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 4. Respondents are labor organizations within the meaning of Sections 2(5) and 8(b) of the Act. 5. By restraining and coercing employers in the selection of their representatives for the purposes of collective bargaining, Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 6. By refusing to bargain with employers, Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(3) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sections 2(6) and (7) of the Act. 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- ORDER2 Respondent, International Association of Bridge, Struc- tural and Ornamental Iron Workers, Local 625, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing any employer engaged in commerce or in an industry affecting commerce, in the selection of his representative for the purposes of collective bargaining. (b) Refusing to bargain collectively in good faith with Construction Industry Bargaining Association of Hawaii (CIBA-HAWAII) or any other person selected to be his collective bargaining representative by any employer whose employees are represented by Respondent Iron- workers. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with Construction Industry Bargaining Association of Hawaii (CIBA-HAWAII) or any other person selected to be his bargaining representative by any employer whose employ- ees are represented by Respondent Ironworkers, concern- ing wages, hours, and other terms and conditions of employment of such employees and, if an agreement is reached, reduce said agreement to writing and sign it. (b) Post at its business office, meeting halls and hiring halls in Hawaii, in conspicuous places, including all places where notices to members are customarily posted, copies of the notice attached hereto and marked "Appendix A." 3 Copies of said notice to be furnished by the Regional Director for Region 20, San Francisco, shall, after being duly signed by an official representative of Respondent 3 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ironworkers, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter. Respondent Ironworkers shall take reasonable steps to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the date of receipt of this decision, what steps Respondent has taken to comply herewith.4 Respondent, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 204, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing any employer engaged in commerce or in an industry affecting commerce, in the selection of his representative for the purposes of collective bargaining. (b) Refusing to bargain collectively in good faith with Construction Industry Bargaining Association of Hawaii (CIBA-HAWAII) or any other person selected to be his collective-bargaining representative by any employer whose employees are represented by Respondent Boiler- makers. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with Dated By Construction Industry Bargaining Association of Hawaii (CIBA-HAWAII) or any other person selected to be his bargaining representative by any employer whose employ- ees are represented by Respondent Boilermakers, concern- ing wages, hours and other terms and conditions of employment of such employees and, if an agreement is reached, reduce said agreement to writing and sign it. (b) Post at its business office, meeting halls and hiring halls in Hawaii, in conspicuous places, including all places where notices to members are customarily posted, copies of the notice attached hereto and marked "Appendix B."5 Copies of said notice to be furnished by the Regional Director for Region 20, San Francisco, shall, after being duly signed by an official representative of Respondent Boilermakers, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter. Respondent Boilermakers shall take reasonable steps to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the said Regional Director in writing, within 20 days from the date of receipt of this decision, what steps Respondent has taken to comply herewith .6 4 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." S Fn. 3, supra. 8 Fn. 4, supra. APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL upon request, bargain collectively in good faith with CIBA-HAWAII concerning the wages, hours, and other terms and conditions of employment of employees represented by us, and if agreement is reached will reduce the agreement to writing and sign it. WE WILL NOT restrain or coerce any employer of employees represented by us in the selection- of his representative for collective bargaining. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL 625, AFL-CIO (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1311 Kapiolani Blvd, Suite 308, Honolulu, Hawaii 96814, Telephone 808-546-5100. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL upon request, bargain collectively in good faith with CIBA-HAWAII concerning the wages, hours, and other terms and conditions of employment of employees represented by us, and if agreement is reached will reduce the agreement to writing and sign it. WE WILL NOT restrain or coerce any employer of employees represented by us in the selection of his representative for collective bargaining. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS & HELPERS, LOCAL 204, AFL-CIO (Labor Organization) IRON WORKERS, LOCAL 625 137 Dated By from the date of posting and must not be altered, defaced, (Representative) (Title) or covered by any other material. Any questions concerning this notice or compliance with This is an official notice and must not be defaced by its provisions may be directed to the Board's Office, 1311 anyone. Kapiolani Blvd, Suite 308, Honolulu, Hawaii 96814, This notice must remain posted for 60 consecutive days Telephone 808-546-5100.