McAX Sign Co.

McAX SIGN COMPANY McAx Sign Company, Inc. and Local Union 59, International Brotherhood of Electrical Workers, AFL-CIO. Case 16-CA-6726 August 31, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On May 4, 1977, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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, to modify his Remedy,' 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 the Respondent, McAx Sign Company, Inc., Dallas, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977). we shall apply the current 7-percent rate for periods pnrior to August 25. 1977. in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge: This proceeding involves allegations that the above-named Respondent violated Section 8(a)(5) and (1) of the Act by refusing to sign a collective-bargaining agreement, the terms of which had been agreed to by an alleged multiemployer association. The issue presented is whether or not Respondent is bound by the agreement reached by the alleged association. The proceeding was initiated by a charge filed on August 9, 1976,1 by the above-named Union, pursuant to which complaint issued on September 231 NLRB No. 158 23. On December 3 and 4, hearing was held in Dallas, Texas. Upon the entire record, including my observation of the witnesses, and after consideration of the briefs filed by the parties, I hereby make the following: FINDINGs OF FACT I. THE FACTS Respondent is an employer engaged in the design, manufacture, and erection of electrical signs. 2 Prior to 1976, Respondent was a party to three collective-bargain- ing agreements with the Union for periods from June 20, 1968, to June 30, 1971; July 1971 to June 30, 1973; and July 1, 1973, to June 30, 1976. These agreements purported to be between the Union and the Neon and Electric Sign Companies of Dallas, Texas (herein called NESCDT), but the contracts were signed by individual contractors. When the time for renewal of the contracts arrived, it was the practice of the Union to submit proposed changes to the individual contractors and the individual contractors would, in turn, submit their proposed changes directly to the Union. On April 30, Respondent, Heath and Company, and J. F. Zimmerman & Sons, each submitted proposals to the Union. Thereafter, a negotiating meeting was sched- uled for May 18. The May 18 meeting was attended by Respondent's president, Donald Simpson, and the two contractors named above, plus a representative of the A.B.C. Sign Company. Union Business Agent Herbert Hicks was made chairman of the meeting and Dan Rippe, the representative of Heath and Company, was made secretary with the duties of keeping minutes of the meeting and making necessary contacts with the contractors in between meet- ings. After May 18, the parties met again on May 25 and June 1, 8, 15, and 22. At the end of the June 22 meeting, according to Hicks, the parties had pretty well ironed out all the problems except for a difference of 10 cents with regard to an hourly wage increase and Hicks told the contractors that a mediator should be obtained for the next meeting. The following day, Mahaffey of Heath and Company called and asked to meet again. Because the contract was about to expire and the Union had a membership meeting sched- uled for June 28, the parties agreed to meet on June 28. On that date, the union representatives and all the contractors who had been meeting since May 18, except Respondent, held a meeting at which an agreement was reached providing, inter alia, for a wage increase 10 cents per hour more than had been agreed to earlier. That same day, the union membership ratified the agreement. On July 2, in accordance with past practice, Hicks mailed to each contractor a copy of the changes agreed to. Thereafter, each contractor, except Respondent, notified the Union by mail or telephone that the changes as set forth in his letter were as agreed to in negotiations. The Union received no reply from Respondent and Hicks testified he telephoned on July 12 but was unable to speak to Simpson. On July 22, the Union wrote to Respondent ' Lnless otherwise indicated all dates hereinafter are in 1976. 2 Jurisdiction is not in issue. Respondent admits it meets the Board's direct inflow standard for the assertion of jurisdiction. 957 DECISIONS OF NATIONAL LABOR RELATIONS BOARD serving notice of the change in the rate of pay of journeymen effective July I and advising Respondent to take appropriate action if the rate had not been raised as of July I. Respondent did not reply to this letter and it was not until July 29 that Hicks was able to reach Simpson by telephone after several unsuccessful calls. On that date, Simpson told Hicks he had not had a chance to review the changes, but he would do so and call Hicks the next day. When he did not do so, Hicks hand delivered a copy of the contract on July 30. On August 2, Respondent sent a letter to the Union in which it stated that it would not sign the agreement because it failed to include requested changes and it included changes to which it had not agreed. Analysis and Conclusions General Counsel contends that Respondent violated Section 8(a)(l) and (5) of the Act by refusing to sign the agreement orally agreed to on June 28. Whether Respon- dent was obligated to sign that agreement depends on whether or not Respondent had indicated an unequivocal intention to be bound in collective bargaining by group rather than individual action.3 In this case, there are no express statements either by Respondent or by the other contractors engaged in group negotiations signifying what their intention was in bargaining as a group, nor is there a formal delegation of authority from the individual employ- er to the multiemployer group. Moreover, there is no formal association structure binding the bargaining partici- pants. (The agreements which the contractors have negoti- ated over the years purported to be between the Union and NESCDT; however, there is no organization of that name, and no one knew when, where, or how such a name came into existence.) On the basis of the foregoing facts, plus the facts that the Union submitted its contract proposals to the individual contractors, who, in turn, submitted separate proposals, formulated by each individual contractor without consulta- tion with other contractors, and that the contractors participated individually in the negotiations without a spokesman (if one contractor spoke more than others, there is no evidence it was attributable to his having been designated spokesman), Respondent contends a finding that it had agreed to be bound by group bargaining is not warranted. I do not agree. In evaluating an employer's intention when engaged in group bargaining, the Board has pointed out that: 4 The manifestation of an "unequivocal intention" to be bound requires something less, however, than a solemnly executed document signed and sealed with hot wax. A commitment to bargaining on a multiem- ployer basis will not be made to depend on the presence of a formal associational structure among the bargain- ing participants or on the formal delegation of authority from the individual employer to the multiem- ployer group. Nor will the Board, faced with outward manifestations of intent to engage in group bargaining, : Bill O'Grady Carpet Service, Inc., 185 NLRB 587 (1970). 4 Joseph McDaniel, an Individual Proprietorship d/b/a Custom Colors Contractors, 226 NLRB 851, 853 (1976). consider as controlling an employer's private manifes- tations of dissent. An employer who, through a course of conduct or otherwise, signifies that it has authorized the group to act in its behalf will be bound by that apparent creation of authority. From that statement, it can clearly be seen that the absence of evidence of a formal delegation of authority by Respondent to the contractors engaged in negotiations with him and the absence of any evidence that NESCDT had any formal structure do not preclude a finding of the requisite unequivocal intention. The objective facts appear- ing in the record are that for a number of years Respondent and the other contractors referred to above, have negotiat- ed jointly and have been cosignatories to a single contract. While NESCDT did not have any existence in the sense of having a constitution and bylaws, membership require- ments, a place of business, and the like, its name did appear on the contracts which Respondent and his fellow contractors have signed for years as the "Employer" and it may reasonably be inferred that its use reflected the fact that those contractors had agreed to act jointly. As to the prenegotiation procedure of individual submis- sions of proposals, Respondent rightly argues that such procedure is an indicium of individual bargaining; how- ever, union representative Hicks testified that during the negotiations, after caucusing, the contractors consolidated the separate proposals into a single set of proposals which formed the basis of negotiations thereafter. The minutes of the May 25 meeting confirm the testimony. Section IV thereof states: "It was agreed to try for a package to present Local 59 covering all parties involved at the next meeting, i.e., to drop or hold on proposals." The minutes of the June I meeting reveal in section VI that the contrac- tors' proposals were consolidated. Section VII of the minutes recites that "Union agreed to take under advise- ment as a committee proposals: e, f, h, g, i." Such conduct is patently group action. Respondent argues otherwise on the ground that at no time during the negotiations did Simpson state that he was dropping any of his proposals. However, Respondent adduced no testimony whatsoever that at any of the meetings did Simpson assert a position independent of the group position and that he told the Union he reserved the right to reject any contract that did not include his proposals. In effect, then, Respondent's position is reduced to a "private manifestation of dissent." The evidence of Respondent's intention to be bound by group action does not end with the June 22 meeting. As Hicks testified, on July 2 he mailed to Respondent a copy of the contract changes agreed to. Respondent never replied and offered no explanation for not doing so. Nor did it reply to Hicks' letter of July 22. Even on July 29, 1 month after the meeting at which agreement was reached, when Hicks finally succeeded in reaching Simpson, and when Simpson knew that the Union deemed him bound by the contract as evidenced by its July 22 letter, Simpson did not assert that he was not bound. To the contrary, he stated he had not had a chance to review the changes. Even if that were the case, he knew the contract called for a 10-cent 958 McAX SIGN COMPANY wage increase more than he had agreed to and could have so stated. In short, Respondent's reasons for rejecting the contract as set forth in its August 2 letter are clearly a belated attempt to avoid the legal consequences of its past conduct. As to the June 22 meeting, there is a conflict in testimony regarding which issues remained unresolved at the end of the meeting and whether or not Hicks admitted to an impasse. Were it necessary for decision, I would credit Hicks' testimony; however, assuming, arguendo, that Simpson's testimony was credited, it would not alter the result. Simpson said nothing at the meeting to negate the conclusion that he was committed to group action, and, if Hicks declared an impasse, it avails Respondent nothing as it did not withdraw from the multiemployer group either then or until its rejection of the contract on August 2 after the impasse had been broken. It was then too late. In summary, in light of a bargaining history which was to all outward appearances on a group basis, including the use of an association name, with all the contractors cosigning the same contract, plus the fact that the negotiations revealed a group approach to bargaining, the conclusion is warranted, and I find, that Respondent had manifested an intention to be bound by group rather than individual action and that its refusal to sign the agreement agreed to by the group on June 28 was a refusal to bargain within the meaning of Section 8(a)( ) and (5) of the Act. II. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with its operations described 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 com- merce and the free flow of commerce. III. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take appropriate affirmative action designed to effectuate the policies of the Act. In particular, I shall recommend that Respondent be ordered to execute and honor the collective-bargaining agreement containing all of the provisions of the collective-bargaining agreement entered into by the other members of the Neon Electrical Sign Contractors of Dallas, Texas.5 It appears that employees of Respondent have suffered loss of earnings and other benefits by reason of Respon- dent's refusal to sign the above-mentioned agreement. Accordingly, it is hereby recommended that Respondent I The record indicates that sec. 2.29 of the contract which was ultimately signed by the other members of NESCDT was different from sec. 2.29 in the contract submitted to Respondent for execution on July 30. This is no reason to excuse Respondent from executing the contract as it is clear that the other members of NESCDT have acquiesced in the change in sec. 2.29 (which relates to the submitting of work) and Respondent is bound bhy that action. 15 No affirmative evidence of the Union's majonty status in the appropriate unit was adduced at the hearing, but there is a presumption of make its employees whole for any loss of earnings or benefits they may have suffered to be computed in accordance with the formula set forth in F W. Woolworth Company, 90 NLRB 289 (1950), with interest at the rate of 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In addition, Respon- dent shall make all payments to the Local Employees Benefit Board as provided for in said agreement. N.LR.B. v. Joseph T. Strong, d/b/a Strong Roofing and Insulating Co., 393 U.S. 357 (1969). CONCLUSIONS OF LAW I. McAx Sign Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 59, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees engaged in manufacturing, assembling, erection, service, disman- tling, and removing operations employed by Employer members of Neon and Electrical Sign Companies of Dallas, Texas, and by McAx Sign Company, Inc., but excluding office clericals, guards, watchmen, and 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. Local Union 59, International Brotherhood of Electrical Workers, AFL-CIO, has been at all material times herein, and is now, the representative of a majority of the employees in the aforesaid unit, and by virtue of Section 9(a) of the Act, has been, and is, the exclusive representative of all employees of said unit for the purposes of collective bargaining.6 5. By failing and refusing to execute or become party to the collective-bargaining agreement negotiated by the Employer members of Neon and Electrical Sign Compa- nies of Dallas, Texas, and Local Union 59, International Brotherhood of Electrical Workers, AFL-CIO, Respon- dent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(aX)(1) and (5) and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER7 The Respondent, McAx Sign Company, Inc., Dallas, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: majonty ansing out of the history of collective bargaining and the Union's incumbency as representative of the unit employees, a presumption which was not rebutted by Respondent. 7 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings. conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 959 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Refusing to bargain with Local Union 59, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of its employees in the unit described above, by failing and refusing to execute or become party to the collective-bargaining agreement negotiated between Neon and Electrical Sign Companies of Dallas, Texas, and Local Union 59, International Brotherhood of Electrical Workers, AFL-CIO. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the above-named labor organization, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act or to refrain from any or all activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Forthwith execute and honor the agreement negotiat- ed by the Employer members of Neon and Electrical Sign Companies of Dallas, Texas, and Local Union 59, International Brotherhood of Electrical Workers, AFL- CIO. (b) Make its employees whole for any loss of earnings or other benefits they may have suffered by reason of Respondent's failure and refusal to execute and abide by the aforesaid agreement in the manner set forth in the section entitled "The Remedy." (c) Pay to the Local Employees Benefit Board the sums provided for in the aforesaid agreement. (d) Post at its Dallas, Texas, facility, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (e) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Local Union 59, International Brotherhood of Electri- cal Workers, AFL-CIO, by failing and refusing to execute and honor the agreement negotiated with said Union by The Neon and Electrical Sign Companies of Dallas, Texas. The appropriate bargaining unit is: All production and maintenance employees en- gaged in manufacturing, assembling, erection, service, dismantling, and removing operations, employed by Employer members of Neon and Electrical Sign Companies of Dallas, Texas, and by McAx Sign Company, Inc., but excluding office clericals, guards, watchmen, and supervi- sors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. WE WILL NOT in any like manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL forthwith execute and honor the agreement negotiated by Neon and Electrical Sign Companies of Dallas, Texas, and Local Union 59, International Brotherhood of Electrical Workers, AFL-CIO. WE WILL make our employees whole for any loss of earnings or other benefits they may have suffered by reason of our failure and refusal to execute and abide by the aforesaid agreement. WE WILL pay to the Local Employees Benefit Board the sums provided for in the aforesaid agreement. McAx SIGN COMPANY, INC. 960