International Brotherhood of Electrical Workers, Local Union No. 1186, AFL-CIO (Pacific Electrical Contractors Association, the Honolulu Chapter of the National Electrical Contractors Association)

DECISIONS OF NATIONAL I ABOR RELATIONS BOARD International Brotherhood of Electrical Workers, Local Union No. 1186, AFL-CIO and Pacific Electrical Contractors Association, the Honolu- lu Chapter of the National Electrical Contrac- tors Association. Cases 37-CB-437, 37-CB- 438, and 37-CB-442 September 30, 1982 DECISION AND ORDER BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER On April 6, 1982, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting memoranda, and the Charging Party filed a memo- randum in opposition to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and memoranda' and has decided to affirm the rulings, findings,2 and conclusions 3 of the Administrative I Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the supporting memoranda ade- quately present the issues and the positions of the parties. 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. However, we hereby correct the following inadvertent errors of the Ad- ministrative Law Judge: (I) Respondent represents employees employed by affiliates of Pacific Electrical Contractors Association (PECA) in three separate bargaining units consisting of "inside" employees, "out- side" employees, and office clerical employees, respectively, not one combined unit as found by the Administrative Law Judge; (2) the Ad- ministrative Law Judge, at part III,B,I, of his Decision, erroneously refers to "August letters requesting execution of new contracts." The ref- erence should be to "December letters." 3 In par. 5 of his Conclusions of Law, the Administrative Law Judge finds unlawful Respondent "attempting to bargain and bargaining directly with PECA's affiliates concerning the rates of pay, wages, hours and working conditions of those affiliates, bypassing PECA, those affiliates' duly designated representative for collective bargaining purposes," and its striking in support of such bypassing. This conduct was not alleged in the complaint, nor was Respondent otherwise put on notice that the evidence of this conduct might be the basis of a finding of an independent viola- tion. Even after the hearing, the General Counsel did not argue before the Administrative Law Judge that this conduct violated the Act, and the Administrative Law Judge did not include it in his Statement of the Case setting forth the issues before him In these circumstances, we find that these issues have not been fully litigated and that the Administrative Law Judge's conclusion that this conduct constituted a violation improperly intrudes on the General Counsel's authority to frame the affirmative case. Accordingly, we shall amend the Administrative Law Judge's Conclu- sions of Law by deleting those portions. Such deletion does not affect the validity of the Administrative Law Judge's conclusion that Respondent violated the Act by threatening to strike in support of demands that em- ployers disaffiliate from PECA and negotiate new agreements, which conduct was alleged as a violation. Law Judge and to adopt his recommended Order, as modified herein. We agree with the Administrative Law Judge that by attempting to terminate prematurely the three collective-bargaining agreements it had with PECA, and by certain conduct that followed from this attempted rescission, Respondent violated Sec- tions 8(b)(3), 8(d), and 8(b)(1) of the Act. In assert- ing that it had the right to rescind the agreements in response to perceived violations of the agree- ment by PECA, Respondent relies on a section of each agreement which provides as follows: Enforcement. Notwithstanding any provisions of this agreement to the contrary, the Union has the right to terminate this Agreement with respect to any Employer on one week's writ- ten notice if he fails to comply with any provi- sion of this Agreement. We are unable to construe this provision as giving Respondent the right to terminate the agreements because of PECA's alleged contract violations-its attempt to control the individuals appointed to act as its representatives to the contractual Joint Con- ference Committee (JCC) and its removal and re- placement of a representative who failed to obey PECA's instructions. Given the history of the negotiations for the agreements in question, it is at least arguable that PECA's conduct, seemingly within the ordinary prerogatives of an employer association acting as a bargaining agent, conflicted with those provisions of the agreements setting forth the composition and powers of the JCC. Thus, the terms of years set forth for the representatives of each party to the JCC could be argued to give them a form of tenure, and the JCC's authority to amend the agreement after submitting proposed amendments to their respective principals "for discussion" could be argued to give the representatives autonomy in such matters, thereby restricting PECA's authority to control or remove them.4 But we need not 4 The pertinent contract provisions are as follows: Section 1.06. Joint Conference Committee-Composition. There shall be a Joint Conference Committee, hereinafter called "Commit- tee," consisting of three (3) representatives of the Union and three (3) representatives of the Employer, except as provided in Section 1.07(c). One of the three representatives of each of said parties shall serve for six years; one shall serve for eight years; and the third shall serve for ten years. Their successors shall serve for ten years. Section 1.07. Functions of Committee. Functions of the Committee include the following: Continued 264 NLRB No. 97 712 IBEW LOCAL NO. 1186 decide to what extent these provisions limit PECA's authority, or whether PECA's actions ex- ceeded any such limits. For, even assuming that PECA exceeded its authority, Respondent did not thereby obtain the right unilaterally to declare a re- scission. The "Enforcement" section, set forth above, if read in isolation, might arguably give Respondent the right so to respond to the perceived contract violation by PECA. But such a reading runs con- trary to the agreement as a whole. Article I of each agreement provides, inter alia, for no strikes or lockouts and for arbitration of grievances, but gives employees the right to stop work while their employer is in noncompliance with an arbitrator's award. On the other hand, pending the arbitrator's decision, the status quo is to be maintained in all respects. Recognizing that the "Enforcement" section gives Respondent a right which supersedes any provision to the contrary, we are reluctant, never- theless, to read the right to terminate so broadly as to render meaningless the careful balance drawn in article I between maintenance of the status quo pending arbitration and the self-help measures available after the other party's noncompliance with an award.5 The "Enforcement" section is not specific as to the manner of determining that an employer has violated the agreement, and we do not construe it as authorizing Respondent unilater- ally to make such a determination concerning a contract dispute that is subject to arbitration. Here, both parties recognized the dispute over PECA's attempt to control its representatives as ar- bitrable. Respondent requested arbitration over PECA's authority to take such action. PECA ini- tially rejected that request, whereupon Respondent declared the agreements terminated. PECA then immediately agreed to arbitrate all issues concern- ing its alleged contract violations, including the issue of the arbitrability of the merits of the dis- pute. When Respondent rejected this offer as "too little and too late," PECA made Respondent's at- tempted termination the subject of a formal griev- (c) The Committee shall have authority to amend this Agreement in any respect, at any time, provided that before adopting any amendments, the Committee shall submit such amendments to the membership of the Union and the PECA, respectively, for discus- sions. When the Committee considers such amendments, it shall be enlarged by the addition of the Executive Secretary of the Employer and the Business Manager of the Union. All signatories of the Agree- ment shall be promptly notified of all amendments adopted by the Committee. a A narrow exception to this balance is provided in sec. 2.21 of the agreements, permitting a work stoppage in the case of wage delinquen- cies of 2 weeks or more Another exception, apparently inapplicable here, permits cancellation of the contract as to an individual employer who has violated the contract, upon a finding by the International president of the Union ance. Respondent ignored this grievqntce, continu- ing to take the position that the agreements under which arbitration was sought no longer existed. While PECA's initial rejection of arbitration may have given Respondent cause to seek other meth- ods for resolving the dispute in its favor, and un- doubtedly contributed to its seizing on the "En- forcement" section, PECA's prompt reversal of its position and its own submission of the propriety of Respondent's termination to the grievance/- arbitration process put matters back essentially as they would have been had PECA's initial response been positive. Respondent then could have submit- ted all relevant issues, including arbitrability, to an arbitrator before whom it could have argued that PECA's conduct gave it the right to terminate the contract. Instead, without showing that it was pre- judiced in any significant way by PECA's initial rejection of arbitration, it persisted in declaring uni- laterally that the contract was at an end. 6 But the "Enforcement" section on which Respondent relies does not privilege it to substitute its judgment that it had a right to terminate the agreement for that of an arbitrator. And, since PECA sought to submit the question of Respondent's right to terminate to the grievance/arbitration process, Respondent was contractually obligated to maintain the status quo pending resolution of that question pursuant to that process. We therefore find no merit in Respond- ent's contractual defense to the allegations of the complaint. AMENDED CONCLUSIONS OF LAW The Administrative Law Judge's Conclusion of Law 5 is modified by deleting part (2) thereof and the words "and striking" from part (3). AMENDED REMEDY The Administrative Law Judge provided, as part of his recommended remedy, that Respondent cease giving effect to any agreements it entered into covering employees of individual employers affiliated with PECA from the time Respondent began its unlawful conduct. Although this provi- sion was designed in part to remedy the violation of bypassing PECA and bargaining individually with those employers, the finding of which viola- tion we do not adopt, we adopt this remedial pro- vision because it is necessarily part of the restora- tion of the status quo ante with respect to the viola- tions connected with the unlawful termination of ' Respondent's contention that the contracts had terminated does not. by itself, make the dispute nonarbitrable. Nolde Brothers, Inc. v. Local No. 358. Bakery & Confectionary Workers Union, AFL-CIO, 430 U.S. 243 (1977) Especially is this so where the merits of the dispute involve the question of the validity of the asserted termination. 713 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the PECA agreements. As another part of the rec- ommended remedy for those violations, the Admin- istrative Law Judge provided for reimbursement of PECA and any individual employers who were co- erced into new agreements for any losses caused by such violations. We find no merit in Respondent's contention that such a make-whole provision is in- appropriate. On the other hand, we find merit in the General Counsel's exception to the Administra- tive Law Judge's failure to provide a similar remedy for any employees who may have incurred losses as a result of Respondent's attempted termi- nation of the PECA agreements, and we shall modify the recommended Order accordingly. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, International Brotherhood of Electrical Workers, Local Union No. 1186, AFL-CIO, Honolulu, Hawaii, its officers, agents, and representatives, shall take the action set forth in the said recom- mended Order, as so modified: 1. Delete paragraph l(d) and reletter the suc- ceeding paragraphs accordingly. 2. Delete from paragraph l(e) the words "or striking." 3. Insert in paragraph 2(c), before the words "with interest," the following: "and make employ- ees covered by such agreements whole for any losses they incurred as a result of the unlawful at- tempt to terminate those agreements,". 4. Delete the words "Officer-in-Charge for Su- bregion 37" wherever it appears and substitute therefor the words "Regional Director for Region 20." 5. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail or refuse to supply PECA with information enabling PECA to carry out its collective-bargaining functions, including furnishing PECA with copies of all agreements we have negotiated since Novem- ber 24, 1980, with electrical contractors not af- filiated with PECA. WE WILL recognize and bargain solely with PECA concerning the rates of pay, wages, hours, and working conditions of all produc- tion, maintenance, and office clerical employ- ees of all electrical contractors currently affili- ated with PECA and all electrical contractors who were affiliated with PECA on November 24, 1980. WE WILL give full force and effect to the 1980-83 PECA-Local 1186 agreements with respect to employees of electrical contractors currently affiliated with PECA and electrical contractors who were affiliated with PECA on November 24, 1980. WE WILL reimburse PECA and any electri- cal contractors affiliated with PECA on No- vember 24, 1980, who subsequently negotiated and executed or became subject, either individ- ually or through HECA, to individual or HECA agreements containing terms differing from those of the 1980-83 PECA-Local 1186 agreements, for any financial losses PECA suf- fered and higher wages or benefit contribu- tions those contractors paid due to differences between the 1980-83 PECA-Local 1186 agree- ments and those individual or HECA agree- ments, and make employees covered by such agreements whole for any losses they incurred as a result of our attempt to terminate those agreements, with interest on the sums due. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION No. 1186, AFL-CIO DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge: On June 23, 24, and 25, 1981, I held a hearing at Honolu- lu, Hawaii, on issues raised by complaints issued on Janu- ary 21, 1981, in Cases 37-CB-437 and 37-CB-438 and May 4, 1981, in Case 37-CB-442, based on charges filed by the Pacific Electrical Contractors Association, the Honolulu Chapter of the National Electrical Contractors Association (PECA and NECA, respectively), against International Brotherhood of Electrical Workers Local Union No. 1186, AFL-CIO (Local 1186), on November 26, 1980,1 in Cases 37-CB-437 and 37-CB-438 and Feb- ruary 26, 1981, in Case 37-CB-442. 2 On May 1, 1981, the three cases were consolidated for purposes of hearing and resolution. The complaints allege Local 1186 violated Sections 8(b)(1)(B), 8(b)(3), and 8(d) of the National Labor Rela- ' Read 1980 after all further date references omitting the year. 2 On the basis of the affidavit of service and the signed post office return receipts, I find Local 1186 received a copy of that charge. 714 IBEW LOCAL NO. 1186 tions Act, as amended (Act), by: (1) unilaterally termi- nating three collective-bargaining agreements between PECA and Local 1186 prior to their expiration without complying with the notice provisions of Section 8(d) of the Act; (2) threatening to strike an employer affiliated with PECA if it did not resign from PECA, repudiate the PECA-Local 1186 agreements, join a rival electrical contractors association, and execute new agreements; (3) refusing to process PECA's grievance over the validity of Local 1186's attempted unilateral termination of the three agreements; (4) refusing to provide information sought by PECA to aid its administration of those agree- ments; and (5) denying PECA reasonable access to its records so PECA could check Local 1186's compliance with the hiring hall provisions of the agreements. While in its answers to the complaints Local 1186 denied receipt of a copy of the charge in Case 37-CB- 442, denied in Case 37-CB-442 that American Electric, Ltd. (American), J. N. Electric, Inc., and Veterans Elec- tric Co. (Veterans) were PECA affiliates at times perti- nent; denied at times pertinent American was a Hawaii corporation doing business in Hawaii as an electrical contractor; denied American purchased and received at its Hawaii facilities products, goods, and materials of suf- ficient value to meet the Board's jurisdictional standards; and denied American was an employer engaged in com- merce in a business affecting commerce within the mean- ing of the Act; Local 186 did not make an issue of these matters in its argument. Subsequent to the close of the hearing, Local 1186 also withdrew its motion to defer further proceedings concerning the legality of its termi- nation of the three agreements pending arbitration. Local 1186 contends it did not violate the Act be- cause: (1) it was lawfully entitled to terminate the three agreements without service of the requisite notices be- cause of a prior, material breach thereof by PECA; (2) Local 1186 did not utter the threat attributed to it and, assuming arguendo Local 1186 did threaten to strike an employer who was a member of PECA to secure new agreements, it was legally entitled to do so since the PECA-Local 1186 agreements were lawfully terminated; (3) PECA did not "seriously" pursue its grievance over the contract terminations; (4) and (5) since the agree- ments were terminated, the request for information and the requested access, which purportedly related to ef- forts to police the agreements, had no validity and, as- suming arguendo the agreements were in effect at the times the requests were made, PECA failed to show the requested information was necessary for grievance proc- essing or intelligent bargaining and failed to demonstrate the offered access to its records was inadequate. The issues are: (1) whether Local 1186's attempted ter- mination of the three agreements was violative of the Act; (2) whether Local 1186 threatened to strike an em- ployer affiliate of PECA if he did not resign from PECA, repudiate the PECA-Local 1186 agreements and either join a rival electrical contractors association and accept its agreements or execute individual agreements with Local 1186; and, if it is determined Local 1186 so threatened, whether that threat violated the Act; (3) whether PECA sought to process a grievance over the terminations; whether Local 1186 refused to process it; and whether such refusal, if found, violated the Act; (4) whether PECA sought information from Local 1186 for valid collective-bargaining purposes, and whether Local 1186 violated the Act by failing or refusing to comply with the request; (5) whether Local 1186's offer of access to its records at PECA's request was adequate; if not, whether Local 1186 thereby violated the Act. The parties appeared by counsel at the hearing and were afforded full opportunity to adduce evidence, ex- amine and cross-examine witnesses, argue, and file briefs. Briefs were filed by the General Counsel, PECA, and Local 1186. Based on my review of the entire record, observation of the witnesses, perusal of the briefs, analysis, and re- search, I enter the following: FINDINGS OF FACT I. JURISDICTION At all pertinent times PECA was an association of electrical contractors in the building and construction in- dustry in Hawaii. Its major function was the negotiation and administration of collective-bargaining agreements with Local 1186 covering the employees of its affiliates represented by that Local. At all pertinent times American was an employer-affil- iate of PECA, as were approximately 75 other electrical contractors. During the calendar year 1980, American received gross revenues of approximately $5 million; pur- chased and received at its Hawaii facilities goods and materials valued at approximately $25,000 from a whole- saler in California, which were shipped to Hawaii on Matson Lines, and purchased and received at its Hawaii facilities goods and materials valued at approximately $2 million from wholesalers located in Hawaii, who in turn purchased a substantial portion of those goods and mate- rials from manufacturers located on the mainland. At pertinent times Veterans was an employer affiliate of PECA; received gross revenues during 1980 of ap- proximately $3 million; and purchased and received at its Hawaii facilities goods and materials valued at approxi- mately $50,000 from wholesalers in California, which were shipped from California by those wholesalers and delivered to Veteran's Hawaii facilities. At pertinent times Halfhill Electric Co. was an em- ployer affiliate of PECA; received gross revenues during 1980 of approximately $8.5 million; and purchased and received at its Hawaii facilities goods and materials valued at approximately $50,000 from wholesalers in California, which were shipped from California by those wholesalers and delivered to Halfhill's Hawaii facilities.3 Based on the foregoing, I find and conclude at pertinent times PECA, American, Veterans, and Halfhill were em- ployers engaged in commerce in a business affecting commerce within the meaning of Section 2 of the Act. 3 These findings are based on the undisputed testimony of Nicholas W. Teves, PECA's president, H. E. Steinseifer, president of American, Robert Kuniyuki, president of Veterans, and Stanley Halfhill, general manager of Halfhill. 715 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. LABOR ORGANIZATION The complaints allege, the answers admit, and I find at all pertinent times that Local 1186 was a labor organiza- tion within the meaning of Section 2 of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts For a number of years PECA and Local 1186 negoti- ated and executed a series of collective-bargaining agree- ments setting out the rates of pay, wages, hours, and working conditions of employees of PECA employer af- filiates represented by Local 1186. The most recent agreements were three agreements covering the production, maintenance, and office-clerical employees of PECA's affiliates designated the inside, outside, and office clerical agreements. Those agreements were executed on July 14, 1980, for terms extending from January 1, 1980, through August 14, 1983, amend- ing 5-year agreements executed on January 17, 1980, for terms extending from January 1, 1980, through August 14, 1985. On the basis of the foregoing, I find and conclude since January 1, 1980 (and for a substantial period prior thereto), Local 1186 has been the exclusive representa- tive of a unit appropriate for collective-bargaining pur- poses under the Act, consisting of all production, mainte- nance, and office clerical employees employed by PECA's affiliates in Hawaii, excluding professional em- ployees, guards, watchmen, and supervisors as defined in the Act. In the negotiations preceding the execution of the Jan- uary 17, 1980, 5-year agreements, PECA was insistent on long-term agreements enabling its affiliates to anticipate, over a substantial period, what their labor costs were going to be (so they could incorporate those cost projec- tions in their bids). Local 1186 was reluctant to enter into such long-term agreements. The parties compro- mised on agreements for a 5-year term, subject to amend- ment during that term by the vote of a majority of a committee consisting of three members appointed by PECA, three members appointed by Local 1186, PECA's executive secretary, and Local 1186's business manager (hereafter called the Joint Conference Commit- tee or JCC). It was provided one of the three members appointed by PECA and one of the members appointed by Local 1186 would serve for a 6-year term, a second member for an 8-year term, and a third member for a 10- year term, with all succeeding appointments for 10-year terms. The agreement was silent concerning the method of appointment, removal, or replacement of committee members. The agreement further provided prior to the adoption of any amendments to the agreements, the pro- posed amendments would be submitted to PECA and Local 1186 for discussion. The agreements contained no- strike/no-lockout and grievance/arbitration provisions. Wage increases effective February 15, 1979; August 15, 1980; August 15, 1981; August 15, 1982; August 15, 1983, and August 15, 1984, were provided, plus increases on the same dates in employer contributions to various trust funds. PECA designated Edward Kitaoka, Stanley Yaman- aka, and Shigeo Wasa as its committeemen; Kitaoka for a 6-year term, Yamanaka for an 8-year term, and Wasa for a 10-year term; Local 1186 designated Lewis Woodward for a 6-year term, Lary Kiyabu for an 8-year term, and George Hall for a 10-year term. In April and May the JCC met for the purpose of con- sidering PECA and Local 1186 proposals for amend- ments to the agreement. 4 After committee discussion of the proposals and discussions with the respective princi- pals, the JCC agreed upon, and PECA and Local 1186 executed (on July 14), agreements incorporating the fol- lowing modifications of the January 17 agreements: 1. Shortening the agreements from 5-year to 3-year terms, with deletion of adjustments to occur after August 14, 1983. 2. Making the JCC rather than the PECA-IBEW Ad Committee the administrator of the Ad Fund. 3. Changing zone boundaries established for the pur- pose of calculating travel pay. 4. Increasing employee reimbursement for travel in personal vehicles to jobsites from 12 cents per mile to 21 cents per mile. 5. Deleting credit for trainee time towards credit in the various steps of the apprenticeship program. 6. Establishing the amount of the employer contribu- tion to the Workmen's Compensation Fund at 84 cents per hour for employees covered by the inside and out- side agreements and 5 cents per hour for employees cov- ered by the office clerical agreement. 7. Deleting provisions concerning employer contribu- tions to and administration of the public safety program. 8. Establishing a group auto insurance program. In the summer of 1980, Local 1186 adopted a resolu- tion establishing a fund to "defend the Local Union, its officers and staff members against any and all attacks from our enemies, including but not limited to expendi- tures for attorney fees" and to finance the fund (known as the Defense Fund) by an assessment of I percent of the gross pay of each member commencing December 1, 1980, and 2 percent commencing August 15, 1981. On August 6, at a JCC meeting held at the call of Local 1186 and attended by Wasa, Kitaoka, and Oda for PECA and Hall, Woodward, and Fujikawa for Local 1186, Fujikawa proposed three amendments to the agree- ments-a 2-percent general wage increase effective De- cember 1, 1980, and 2 percent, effective August 15, 1981, 5 and a requirement that PECA's, affiliates make contributions to all the funds established under the agree- ments for any nonbargaining unit employees participating in one or more of those funds; 6 Oda proposed two 4With Walter Oda, executive secretary of PECA, and Akito Fu- jikawa, Local 1186's business manager and financial secretary, participat- ing, as provided in the agreements whenever contract amendments were to be considered or adopted. , In addition to the increases effective August 15, 1979, February 15 and August 15, 1980, August 15, 1981, and August 15, 1982. 6 By agreement and practice, employees of PECA affiliates not cov- ered by the agreements were permitted to, and were covered by, certain of the funds (health and welfare, pension, vacation, and holiday) through remission to the fund administrators by their employees of the requisite contributions. 716 IBEW LOCAL NO. 1186 amendments-deletion of a provision providing for the refunding to a contributing employer of its contributions to the Workmen's Compensation fund in the event the IRS ruled the fund was not tax-exempt and insertion of a provision in the event the IRS so rules, the contributions in question would be utilized to administer the Work- men's Compensation program for the industry, plus dele- tion of a provision requiring the Ad Office Security Fund to make payments on behalf of a delinquent em- ployer beyond a maximum figure when the employer in question did not reimburse the fund therefor. Fujikawa, Hall, and Woodward assented to the PECA proposals; Wasa and Kitaoka, pleading surprise and the high cost of Local 1186's proposal, 7 reserved their posi- tion concerning Local 1186's proposals until they dis- cussed those proposals with their principal." Oda subsequently prepared minutes of the August 6 meeting reflecting the foregoing; after consultation with Fujikawa and at the latter's urging, Oda amended his original draft to read the PECA members of the JCC "agreed in principle" to Local 1186's proposals. Wasa and Kitaoka did not see either the original or revised version of the minutes until over a month later (after Oda left PECA's employ). On being apprised of the substance of the amendments proposed on August 6, Teves scheduled an August 20 meeting of PECA's board of directors to discuss them. Wasa, Kitaoka, and Oda attended the August 20 meeting. After the proposals were outlined and discussed, the board adopted a resolution expressing its approval of the proposals advanced by PECA at the August 6 meeting; its disapproval of the proposals advanced by Local 1186 at the meeting; a direction that PECA's representatives vote in accordance with the board's views at any future JCC meeting; and that those attending the board meeting not disclose the actions of the board to any outsiders, since the board had been informed in the past Oda dis- closed actions of the board to Fujikawa and named the board members who voted for and against propositions which came before it, resulting in retaliation against those board members who voted against a measure sought by Local 1186. On August 26, Oda informed Teves he was planning to resign, in view of the board's lack of confidence in him. He failed to report for work on August 27 and 28, and on August 29 tendered his resignation. Yamanaka neither attended the August 6 JCC meeting nor the August 20 board of directors meeting. When he learned of those actions, he contacted Teves, told Teves that Fujikawa was aware of the board's August 20 reso- lution,9 and threatened to hold "stop work" meetings of Local 1186's members employed by Yamanaka's firm if I Estimated to exceed SI million per annum. 8 While Oda prior to the meeting knew what Local 1186 intended to propose, he did not advise Wasa and Kitaoka of the substance of Local 1186's proposals prior to the meeting. Subsequent to the meeting, Oda in- formed Nick Teves, PECA's president, that Local 1186's wage increase proposals were intended to reimburse its members for the cost of their contribution to Local 1186's defense fund. 9 On November 24 Fujikawa informed Teves that Yamanaka advised him of the board's August 20 action. Yamanaka did not support Local 1186's proposals. ° Ya- manaka requested a written statement from PECA di- recting him how to vote on Local 1186's proposals at any future JCC meeting, what legal action was available to PECA if he did not follow that directive, and what assistance PECA would give in the event Local 1186 struck his firm. He told Teves his firm might sue PECA if it suffered any financial losses as a result of following its instructions concerning his voting as a JCC member. Teves advised Yamanaka he would take up his requests with PECA's board of directors. On August 27, Teves asked Yamanaka to attend a meeting of PECA's board of directors scheduled for August 29. At that meeting, Yamanaka was advised he could be sued and removed by PECA if he did not follow the board's directives; that his firm would be pro- vided legal representation in the event Local 1186 took strike action against it over his following the board's dir- ectives; and that he would be provided a written direc- tion to vote against Local 1186's August 6 proposals. Ya- manaka replied he would vote as directed on receipt of the written directive and that his firm might sue PECA if it was damaged by his compliance therewith. On the same date Teves, on behalf of PECA, sent a written di- rective to Wasa, Kitaoka, and Yamanaka instructing them to vote against Local 1186's August 6 proposals at any future JCC meeting. On August 30, Fujikawa sent a letter to all of PECA's affiliates stating the PECA August 20 resolution and August 27 directive constituted a unilateral attempt to amend or modify those agreements, that those actions were null and void and of no effect, that Local 1186 was going to take whatever action was necessary to secure PECA compliance with the agreements, and that "The Union will be holding stopwork meetings with the em- ployees to discuss our current negotiations." At or about the time PECA's affiliates received Fu- jikawa's August 30 letter (in early September). PECA sought and secured affiliation with NECA and the serv- ices of two of NECA's employees (Richard Morena and Richard Watson) to carry out Oda's functions as its ex- ecutive secretary pending hiring of a permanent replace- ment. t While Morena and Watson were introduced to Fujikawa by Teves shortly after their appointment and Fujikawa was advised they would act as Oda's replace- ment, Fujikawa stated he neither would recognize nor deal with them as PECA's representatives. On September 4, Yamanaka telephoned Teves and asked if he could furnish Fujikawa with a copy of Teves' August 27 directive to the PECA representatives on the JCC concerning Local 1186's August 6 proposals. Teves replied the document was intended solely for Yamanaka, it was an internal PECA matter, and it should not be fur- nished to Local 1186. Yamanaka stated Fujikawa wanted the document and was putting a lot of pressure on him; '0 The agreements provided Local 1186 could call meetings of em- ployees covered by the agreements during working hours "for the pur- pose of explaining the status of negotiations" as an exception to the no- strike provision. t' Two were provided by NECA with the understanding they would alternate in providing their services to PECA, since they also had NECA assignments on the mainland. 717 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if something did not relieve that pressure soon, he was going to be ill. On September 10 PECA's board of directors met and adopted a resolution to withdraw PECA's August 6 pro- posed amendments to the agreements and to direct PECA's representatives on the JCC to carry out its action. On September 11, Fujikawa requested Wasa, Kitaoka, and Yamanaka attend a meeting of the JCC the follow- ing day "to continue negotiations for amendments to the agreements." Wasa notified Teves of the request. Teves informed Wasa since PECA's executive secretary was designated in the agreements as the fourth member of the PECA delegation entitled to participate on PECA's behalf at any JCC meetings held for the purpose of considering or acting on proposed amendments to the agreements and Fujikawa was refusing to recognize or meet with PECA's currently designated executive secretary, not to attend the meeting. Kitaoka and Yamanaka were also so advised. Wasa transmitted Teves' position to Fujikawa and advised him neither he nor Kitaoka would attend the proposed September 12 meeting. On the latter date, Teves sent a letter to Fujikawa repeating PECA's posi- tion. Despite his instructions, Yamanaka attended the Sep- tember 12 JCC meeting called by Fujikawa. While no business could be transacted, Yamanaka informed Fu- jikawa PECA's board of directors had directed its repre- sentatives on the JCC to withdraw PECA's August 6 proposals, to vote against Local 1186's proposals to amend the agreements, and he had been advised he would be subject to legal action and removal if he defied those instructions. On September 15, Fujikawa contacted Wasa, requested a JCC meeting for September 16, stated he wanted to conduct a secret-ballot vote by the JCC on the August 6 proposals for amendments to the agreements at that meeting, and informed Wasa that Yamanaka attended the September 12 meeting. Wasa informed Teves of Fu- jikawa's request and his information concerning Yaman- aka. Teves told Wasa not to attend the meeting, since Fujikawa still refused to recognize and accept PECA's executive secretary as its representative. Teves tele- phoned Yamanaka, repeated his position concerning any attendance at the September 16 meeting sought by Fu- jikawa, and stated he had been informed Yamanaka at- tended the September 12 meeting. Yamanaka denied at- tending the meeting, stating he just dropped by the meet- ing place to say hello while he was in the union building on other business. Wasa contacted Fujikawa and advised him the PECA representatives on the JCC would not attend the pro- posed September 16 meeting until and unless Fujikawa accepted PECA's executive secretary as its representa- tive on the JCC and notified Fujikawa PECA was with- drawing its August 6 proposals for amendments to the agreements. 'a The agreements provided a minimum of two representatives for each party had to be present to constitute a quorum for the purpose of transacting business. On September 16, Local 1186 began conducting meet- ings during working hours of its members employed by several of PECA's affiliates "to discuss negotiations." On September 19, PECA's board of directors met, dis- cussed Yamanaka's actions, and adopted a resolution that Yamanaka be requested to resign from the JCC or, in the event he refused to resign, that he be removed from the JCC. The Board passed a second resolution designating Paul Adachi as Yamanaka's successor on the JCC for the balance of Yamanaka's term. 3 On September 22, Teves and Wasa met with Yaman- aka and Teves requested that Yamanaka resign from the JCC. Yamanaka stated he was reluctant to resign for fear his resignation would anger Fujikawa. Teves presented Yamanaka with two letters, one consisting of an un- signed resignation, the other a notice of termination signed by Teves, and offered Yamanaka the option of signing and returning the former or accepting the latter. Yamanaka accepted the termination letter, stating he was relieved. Fujikawa was advised the same date by letter that PECA had removed Yamanaka from the JCC as its representative and was substituting Adachi. On October 24, Local 1186 addressed a letter to PECA requesting PECA agree to submit to binding arbi- tration the issues of whether PECA violated the agree- ments: (1) by directing PECA's representatives on the JCC to follow the dictates of PECA's board of directors concerning proposed amendments to the agreements, and (2) by directing PECA's representatives on the JCC to vote against Local 1186's August 6 proposals for amend- ments to the agreements; whether PECA also violated the agreements; (3) by directing its representatives on the JCC not to attend the proposed September 12 meeting; (4) by threatening to sue its representatives on the JCC if they did not vote in accordance with board of director's dictates; and (5) by removing and replacing Yamanaka as one of its representatives on the JCC because he refused to follow the board's dictates. On November 6, PECA replied the questions raised by Local 1186 were not arbitrable, since they concerned its choice of representatives and internal operations. On November 24, at a special meeting of Local 1186's members, Fujikawa reported the PECA representatives on the JCC "agreed in principle" to Local 1186's pro- posed August 6 amendments to the agreements; that, sub- sequently, PECA's representatives on JCC repudiated that agreement at the direction of PECA's board of di- rectors; that PECA's actions constituted a breach of the agreements; and recommended the members vote to re- scind the agreements in view of that breach. The recom- mendation was adopted. On the same date, Fujikawa advised Teves that Local 1186 was terminating the three agreements because of PECA's alleged breach thereof and requested the parties commence meeting on December 5 to negotiate new agreements. Local 1186 did not serve any other or previ- ous termination notices on PECA or any mediation agency. '3 Acting pursuant to powers contained in PECA's bylaws. 718 IBEW LOCAL NO. 1186 During the same month, Rodney Kim was hired as a permanent replacement for Oda. On November 26, Kim responded to Fujikawa's No- vember 24 termination notice by denying PECA violated the agreement; stating neither Local 1186 nor PECA uni- laterally could terminate the agreements during their term; disputed the accuracy of the alleged facts set out in Fujikawa's November 26 letter; stated PECA was will- ing to process through the grievance/arbitration machin- ery of the agreements any issues concerning agreement violations, including the issue of their arbitrability; and finally offered to meet with Local 1186 at any time to discuss questions affecting the agreements, including the question of their termination by mutual agreement. On December 2, Local 1186 responded with a rejec- tion of PECA's offer to grieve/arbitrate (stating it was untimely) and repeated its request the parties commence meeting on December 5 to negotiate new agreements. On December 3, PECA submitted a grievance alleging Local 1186's attempted termination of the agreements violated the duration provisions of three agreements. On December 10, Local 1186 submitted proposed agreements to all of PECA's affiliates, expressing in a cover letter the hope Local 1186 and the various affili- ates could negotiate new agreements without a strike. On December 17, PECA again advised Local 1186 its attempted termination of the agreements was invalid and renewed its grievance/arbitration offer. On December 22, Local 1186 repeated its rejection of the grievance/arbitration offer as too little and too late and sent letters to all of PECA's affiliates requesting they bargain individually for new agreements. On December 30, PECA addressed a letter to Local 1186 repeating its December 17 position and offer, and its November 24 offer to meet. During the month of December, Oda formed a new electrical contractors association called the Hawaiian Electrical Contractors Association (HECA) with offices in the same building which housed Local 1186 and began to solicit PECA's affiliates to disaffiliate from PECA, join HECA, and become subject to three agreements (inside, outside, and office clerical) between HECA and Local 1186 covering their inside, outside, and office clerical employees covered by the PECA-Local 1186 agreements. By December, a number of PECA's affiliates either joined HECA and placed their employees under the coverage of the HECA-Local 1186 agreements or ex- ecuted separate agreements with Local 1186. During the same period, Fujikawa was actively pursu- ing the execution of individual agreements between PECA's affiliates and Local 1186 or a switch of those af- filiated to HECA and coverage by HECA-Local 1186 agreements. For example, on December 29 he solicited H. E. Steinseifer, American's president, to repudiate the PECA-Local 1186 agreements and execute separate agreements between American and Local 1186 covering American's inside, outside, and office clerical employees. When Steinseifer demurred, Fujikawa commented he could be facing a strike. In January, PECA, citing the most favored nation pro- vision of the PECA-Local 1186 agreements,t 4 requested copies of agreements Local 1186 had negotiated with electrical contractors not affiliated with PECA to ascer- tain whether such agreements contained provisions more favorable to the employers covered thereby than the terms of the PECA-Local 1186 agreements. ' Local 1186 responded on February 27 (after a renewed PECA request for the agreements) with a rejection of the re- quest on the ground there were no agreements in effect between PECA and Local 1186, so the most favored nation provisions thereof were inapplicable. Local 1186 went on to state it would offer to PECA's affiliates any benefits contained in any agreements it had negotiated when and if PECA met and negotiated new agreements with Local 1186. During the same month (January) PECA, citing a pro- vision of the PECA-Local 1186 agreements granting PECA access to Local 1186's hiring hall/dispatch facili- ties and records for the purpose of insuring their compli- ance with the agreements and applicable law, requested access to Local 1186's records concerning its dispatch of its members to jobs. On January 20, Local 1186 respond- ed with the statement while the agreements were no longer in effect, inasmuch as it was still the duly desig- nated representative of employees of PECA's affiliates for collective-bargaining purposes, it would permit access by an authorized representative of PECA to its records for I hour per day on normal workdays after January 21, between the hours of 1:30 and 4 p.m., for the purpose of inspecting its records. 6 B. Analysis and Conclusions 1. The contract termination, threats, and bargaining demands In January, PECA agreed to substantial wage and benefit adjustments (spread over a 5-year period) and the establishment of a mechanism (the JCC) for considera- tion and adoption of amendments during those 5 years, in return for Local 1186's agreement to refrain from strik- ing over the 5-year period. PECA and Local 1186 also agreed during the term of the agreements to seek resolu- 14 The provisions in question required modification of the PECA- Local 1186 agreements to match any provisions of agreements between Local 1186 and any electrical contractor not affiliated with PECA which were more favorable to the latter contractors than those contained in the PECA-Local 1186 agreements. '' In a February 6, 1981, letter sent by Fujikawa to Local 1186's mem- bers employed by PECA's affiliates, Fujikawa stated the HECA-Local 1186 agreements provided for a 2-percent general wage increase effective March 1. 1980 (in addition to the same rates and step increases provided in the PECA-Local 1186 agreements), but this would not cost those PECA affiliates who switched to HECA anything, since the HECA- Local 1186 agreements did not require HECA's affiliates to pay the in- creases in contributions for each hour worked to the Pacific Electrical Industry Fund that PECA's affiliates were required to pay. effective August 15, 1981, and August 15, 1982, under the terms of the PECA- I ocal 1186 agreements. 16 The above findings are based on documents submitted by the parties and the testimony of Teves. Wasa, and Steinseifer, who impressed me with the direct and forthright nature of their testimony (which is credited overall. and particularly where contradicted). plus partial corroboration b, Fujikawa. Oda, and Yamanaka 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of claims by either party the other breached any portion of the agreements through the grievance/- arbitration procedure established by those agreements. The employers' primary reason for accepting the amend- ing mechanism (to secure a contract fixing their affiliates' wage cost for 5 years) was quickly compromised when, in July 1980 (at the insistence of Local 1186, due to instructions from the International union with which it was affiliated), the duration of the contracts was reduced to 3 years. That incentive completely disappeared in August, when Local 1186 sought to utilize the amending mechanism to secure substantial and costly wage adjust- ments, over and above the step increases in wage rates and benefits already provided over the 2-1/2 years re- maining of the term of the agreements. Thwarted in its efforts to secure its proposed August wage increases by PECA's instructions to its representa- tives on the JCC and PECA's removal of what were perceived to be its weakest JCC representatives, Local 1186 attempted to secure its proposed increases by a pur- ported termination or rescission of the agreements, demand that PECA's affiliates withdraw from PECA, re- pudiate the coverage of their employees by the three PECA-Local 1186 contracts, and negotiate and execute (either individually or through HECA) new contracts providing the proposed August wage increases, support- ed by threats of strikes (in the August letters requesting execution of new contracts, and conferences (Steinseifer) and scattered strikes (the "stop work" meetings). The Board repeatedly has ruled union pressure on em- ployers affiliated with and represented by an association and covered by a contract negotiated by that association covering employees of the association's affiliates repre- sented by the union, to withdraw from the association, repudiate the association-union contract covering their employees, and negotiate and execute new contracts with the union either directly or through another association, is violative of Section 8(b)(3) of the Act.17 The Board, with court approval, also has consistently held a union desiring to modify or terminate a contract must comply with the requirements of Section 8(d) of the Act; namely, it must: (1) serve written notice on the employer party to the contract of its desire to modify or terminate the contract at least 60 days prior to the expiration date the contract or the time the proposed modifications or termination are to be effective; (2) notify the Federal Mediation and Conciliation Service and any State media- tion agency of the existence of a dispute over its pro- posed modification or termination of the contract within " Local Union No. 420 United Association of Journeymen and Appren- tices of the Plumbing and Pipefitting Industry of the United States and Canada (Paragon Mechanical, Inc.), 254 NLRB 445 (1981); Local 1205. In- ternational Brotherhood of Teamsters Chauffeurs Warehousemen and Help- ers of America (New York Labor Trade Association), 191 NLRB 917 (1971); United Slate, Tile & Composition Roofers. Damp d Waterproof Workers As- sociation, Local No. 220 (Jones & Jones, Inc), 177 NLRB 639 (1969); United Slate, Tile & Composition Roofers Damp It Waterproof Workers As- sociation. Local No. 36 (Roofing Contractors Association of South Califor- nia), 172 NLRB 2248 (1968); Enterprise Association of Steam, Hot Water, Hydraulic, Sprinkler. Pneumatic Tube, etc., Local Union Nao 638 of the United Association of Journeymen and Apprentices, etc. (HV & AC Contrac- tors' Association), 170 NLRB 385 (1968); International Union of Operating Engineers. Local 825 (Building Contractors Association of New Jersey), 145 NLRB 952 (1964). 30 days after the service of its 60-day termination or modification notice; and (3) continue in full force and effect all the terms and conditions of the contract for 60 days after the service of its notice or the expiration date of the contract, whichever is later. 18 The Board and the courts have reasoned through en- actment of Section 8(d) of the Act, Congress intended to secure stability in labor-management relations and indus- trial peace by requiring employer and union parties to collective-bargaining agreements to comply with their terms over the term of those agreements (or for 60 days, in the case of open agreements), and particularly to ob- serve their terms during the 60 days subsequent to serv- ice of notices by either of a desire to modify or termi- nate, while the parties (with the assistance of appropriate mediatory agencies) sought to reach agreement on con- tracts for a future term.19 While the Board and the courts have excused a con- tracting party's noncompliance with Section 8(d) under special circumstances, 20 those circumstances are not present here. To the contrary, in this case the contracting union sought to terminate the agreements long prior to their agreed-upon termination date, without complying with Section 8(d) of the Act, in order to force the contracting employers to grant wage concessions over and above those provided over the life of the agreements; the union i8 N.L.R.B. v. Lion Oil Company, 352 U.S. 282 (1957); NLR.B. v. Local 742, International Union of Electrical, Radio and Machine Workers [Randall Bearings, Inc.], 519 F.2d 815 (6th Cir. 1975); Plumbers Local 420 (Paragon Mechanical. Inc.), supra, United Mine Workers of America, Local 1854 (Amax Coal Company, a Division of Amax. Inc.), 238 NLRB 1583 (1978); Brewery Delivery Employees Local Union 46. International Brother- hood of Teamsters, Chauffeurs, Warehouseman and Helpers of America (Guinness-Harp Corporation, Metrobeer Division), 236 NLRB 1160 (1978); United Marine Division Local 333 (General Marine Transportation Corp.), 228 NLRB 1107 (1977); Chauffeurs, Salesmen and Helpers Local 572, In- ternational Brotherhood of Teamsters, Chauffeurs. Warehousemen and Help- ers of America (Dar San Commissary), 223 NLRB 1003 (1976); Communi- cations Workers of America. AFL-CIO (Western Electric Company, Incor- porated), 204 NLRB 782 (1973); Telephone Workers of New Jersey, Local 827 (New Jersey Bell Telephone Company), 189 NLRB 726 (1971); United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada. AFL-CIO, Local Union No 280 (Aero Plumbing Co.), 184 NLRB 398 (1970); Carpenters District Council of Denver and Vicinity, AFL-CIO (Rocky Mountain Prestress, Inc.), 172 NLRB 797 (1968); Milk. Ice Cream Drivers and Dairy Employees, Local No. 783 of International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (Cream Top Creamery, Inc.), 147 NLRB 264 (1964). 19 See United Steelworkers of America, AFL-CIO-CLC v. N.L.R.B., 530 F.2d 266 (3d Cir. 1976), and the cases cited in fn. 17. 20 When the noncomplying party was responding to serious unfair labor practices committed by the other party and not in an effort to secure modification of the underlying agreement (Mastro Plastics Corp. v. N.LR.B., 350 U.S. 270 (1956); Kellsione Inc. v. N.L.R.B., 493 F.2d 1352 (6th Cir. 1974); N.L.R.B. v. Northeast Oklahoma City Manufacturing Company, 631 F.2d 669) (10th Cir. 1980)); when the noncomplying party exhausted contract and other procedures in seeking relief concerning ac- tions of the other, without securing satisfactory resolution of the dispute, and was not seeking contract modifications (Dow Chemical Co. v. N.LR.B., 636 F.2d 1352 (3d Cir. 1981); N.LR.B. v. San Juan Lumber Company, 367 F.2d 397 (9th Cir. 1966)); and when the noncomplying party was responding to unlawful actions by the other party, in support of demands for contract modifications (United Electrical Radio and Ma- chine Workers Local 1113 [Marathon Electric Mfg Corp.] v. N.LR.B., 223 F.2d 338 (D.C. Cir. 1955); Leveld Wholesale. Inc, 218 NLRB 1344 (1975)). 720 IBEW LOCAL NO. 1186 justification for failing to comply with Section 8(d)-al- leged employer violations of the agreements-do not appear to be unfair labor practices, its claims of employ- er contract violations appear of doubtful validity;2 1 the union did not exhaust means other than premature termi- nation and threatened and actual strike action to secure redress for its alleged grievances; 2 2 and, as noted, the union sought to terminate the agreements prior to the agreed-upon termination date and threatened and took strike action to secure contract modifications, which in- dicates its attempted contract rescission or termination was simply a ruse or subterfuge designed to free it from the restrictions of the agreements' no-strike provisions and permit its use of economic coercion to secure its de- mands for additional wage concessions. On the basis of the foregoing, I find and conclude Local 1186 violated Section 8(b)(1)(B) and (3) and 8(d)23 by attempting to terminate its agreements with PECA more than 2 years prior to their termination date in vio- lation of the terms of Section 8(d) of the Act and by threatening to strike and striking employer affiliates of PECA in support of demands they disaffiliate from PECA and sign new agreements. 2 4 2. The grievance processing issue On November 24, Local 1186 formally advised PECA it was terminating the three PECA-Local 1186 agree- ments over the measures PECA took to thwart Local 1186's demand for additional wage increases during the terms of those agreements (removing and replacing Ya- manaka (and Oda) with stronger representatives on the JCC and instructing those representatives to oppose the wage increase demands); on November 26, PECA pro- tested that Local 1186 could not terminate the agree- ments unilaterally over PECA's actions and offered to arbitrate Local 1186's claim that PECA's measures vio- lated the agreements to arbitration; on December 2, Local 1186 rejected the arbitration offer and renewed its demand for the negotiation of new agreements; and on December 3 PECA filed a grievance alleging by its at- tempted unilateral termination of the agreements, Local 1186 violated the duration provisions thereof, and re- quested that Local 1186 meet and process that grievance in accordance with the procedures established by the grievance/arbitration provision of the agreements. Local 1186 ignored the grievance, instead (on Decem- ber 10) submitting proposed new agreements to PECA's affiliates containing a provision for payment of the wage 21 Since the agreements are silent concerning the method, timing, and right of the parties to appoint, remove, and replace its JCC representa- tives, it is reasonable to conclude each could utilize their respective powers in accordance with their prevailing constitutions, charters, and bylaws; and since the JCC was the creature of the two parties, it is fur- ther reasonable to conclude each could direct their appointees in the ex- ercise of a vote on matters as vital and important as a costly wage in- crease over and above the scheduled increases through the life of the agreements. *2 An unfair labor practice charge; processing its grievance through arbitration (though initially declining to arbitrate, the employer recanted and offered to arbitrate the union's grievances over its alleged violations); a legal action seeking rescission of the agreements or for damages. 23 A failure to comply with Sec 8(d) violates Sec. 8(bX3)-Telephone Workers Local 827 (New Jersy Bell Co.), supra. 24 See cases cited in fns. 17 and 18. increases it sought in August, requesting execution of those agreements, and implying strike action would follow if they were not executed, and conducting scat- tered strikes under the guise of membership meetings. Local 1186 followed this action with efforts to secure ex- ecutive by PECA's affiliates either of new individual agreements with Local 1186 containing a provision for payment of the increases in question or through affili- ation with HECA and thereby automatic coverage by HECA-Local 1186 agreements containing a provision for payment of the increases, and a refusal in January 1981 to provide information PECA sought under provisions of the PECA-Local 1186 agreements on the ground those agreements were no longer in effect. I find by ignoring and failing to respond to PECA's grievance and request for its processing, Local 1186 vio- lated Section 8(b)(3) of the Act. Failure or refusal by an employer or a union representing that employer's em- ployees to meet with and respond to a request for meet- ing and consideration of a grievance concerning wages, rates of pay, hours, or working conditions may be equat- ed to a refusal to bargain in good faith concerning those subjects; 2 5 Local 1186's failure to meet with PECA to consider PECA's grievance falls in that category. 3. The refusal to furnish information issue Each of the PECA-Local 1186 agreements contain a most favored nation (MFN) provision stating: "If the Union grants to any Employer in the electrical contract- ing industry any terms or conditions better than those of this Agreement, such better terms or conditions shall be made available to the Employers under this Agreement and the Union shall immediately notify the Employers of such concessions." On January 16, 1981, PECA notified Local 1186 it was its understanding Local 1186 had executed agreements with employers in the electrical industry in Hawaii which contained provisions differing from those set out in the PECA-Local 1186 agreements and requested, in view of the above-quoted section of the PECA-Local 1186 agreements, that Local 1186 furnish PECA with copies of those agreements so PECA could determine whether any of the terms of those agreements were more favorable to those employers than to its affiliates. PECA renewed its request otn February 25, 1981. On February 27, Local 1186 replied since it had terminated the 1980- 83 PECA-Local 1186 agreements, the MFN provisions thereof were no longer in effect and therefore it had no obligation to supply the requested information; Local 1186 went on to state it would only supply that informa- tion when and if PECA entered into negotiations for new agreements supplanting the 1980-83 agreements. Findings have been entered that Local 1186's attempt- ed terminations of the 1980-83 agreements were ineffec- tive, so the reason expressed in its reply for its refusal to :2 Chicago Magnesium Castings Co. v. N.LR.B., 612 F.2d 1028 (7th Cir. 1980); Northwestern Dodge, Inc., 258 NLRB 877 (1981); Times Herald Printing Company, 221 NLRB 225 (1975); United States Gypsum Company, 200 NLRB 305 (1972); Local Union No 29, affiliated with International Chemical Workers Union (Morton-Norwich Products, Inc.), 228 NLRB 1101 (1977). 721 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supply the requested information is not a valid defense. The only remaining question is whether the requested in- formation was necessary to enable PECA to carry out its functions as the collective-bargaining representative of its affiliates, and relevant and material to the rates of pay, wages, hours, and working conditions of those affiliates' employees. In circumstances similar to those involved here, the Board has held such documents were necessary, material, and relevant, and therefore a union's failure to comply with an employer request for their production violates Section 8(b)(3) of the Act, 26 as it has (with court ap- proval) in other cases, where one of the parties to a col- lective-bargaining relationship requested information from the other concerning a matter relating to the rates of pay, wages, hours, or working conditions of affected employees. a 2 7 On the basis of the foregoing, I find and conclude Local 1186 violated Section 8(b)(3) of the Act by refus- ing to comply with PECA's January 16 and February 25 requests for copies of contracts between Local 1186 and Hawaii electrical contractors covering the rates of pay, wages, hours, and working conditions of enployees of Hawaii electrical contractors other than those affiliated with PECA. 4. The access to records issue The PECA-Local 1186 contracts require PECA's af- filiates to secure employees in all the classifications cov- ered by the contracts exclusively through referrals from a hiring hall operated by Local 1186, require Local 1186 to register applicants for employment and refer them to employers without regard to race, color, religion, sex, national origin, or union membership status, grant Local 1186 the right to classify applicants for placements on various registers for referral in preferred categories, and grant a representative designated by PECA the right at any time to review Local 1186's referral procedures, method of classification, and referral records to deter- mine their compliance with the contracts. On January 16, PECA requested that its designated representative be given access to Local 1186's hiring hall for the purpose of examining its referral procedures and records at and after 1 p.m. on January 16, citing the ap- 12 Hotel, Motel, Restaurant, Hi-Rise Employees d Bartenders Union Local 355. AFL-CIO (Doral Beach Hotel), 245 NLRB 774 (1979). '7 N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967); Gordon L. Rayner d/b/a Bay Area Sealers v. N.L.R.B., 665 F.2d 970 (9th Cir. 1982); N.LR.B. v. Jaggars-Chiles-Stovall, 639 F.2d 1344 (9th Cir. 1981); N.L.R.B. v. Associated General Contractors of California, 633 F.2d 766 (9th Cir. 1980); Local 13, Detroit Newspaper Printing and Graphic Commu- nications Union [Oakland Press Company] v. N.LR.B., 598 F.2d 267 (D.C. Cir. 1977); N.LR.B. v. Ramona's Mexican Food Products, 531 F.2d 390 (9th Cir. 1975); P. R. Mallory & Company v. N.L.R.B., 411 F.2d 948 (7th Cir. 1969); Standard Oil of California v. N.LR.B., 399 F.2d 639 (9th Cir. 1968); International Union. United Automobile Workers [Udylite Corp.] v. N.L.R.B., 455 F.2d 1357 (D.C. Cir. 1971); Taylor Forge & Pipeworks v. N.L.R.B., 234 F.2d 227 (7th Cir. 1956); Hudson Chemical Company, 258 NLRB 152 (1981); Lamar Advertising Associates of Dayton d/b/a Lamar Outdoor Advertising, 257 NLRB 90 (1981); Pease Company, 251 NLRB 540 (1980); International Association of Heat & Frost Insulators & Asbestos Workers Local Union No. 80, AFL-CIO (West Virginia Master Insulators), 248 NLRB 143 (1980). plicable provisions of the PECA-1186 agreements as basis therefor. On January 20, 1981, Local 1186 responded while the PECA-Local 1186 agreements had been terminated and therefore any rights PECA might have to such access had no contractual basis, since Local 1186 represented the employees of PECA's affiliates within the bargaining unit covered by those agreements, PECA's representa- tive could examine Local 1186's referral procedures and records for 1 hour per day between the hours of 1:30 and 4 p.m., commencing January 21, 1981. PECA did not avail itself of the offer. While the General Counsel and PECA argue the prof- fered access for I hour per day was inadequate, in view of the fact PECA made no effort to conduct its request- ed examination during the time afforded and developed no evidence that the offered access was inadequate, I find the evidence insufficient to support a finding the access offer constituted a failure to bargain in good faith. I therefore recommend the portions of the complaint so alleging be dismissed. CONCLUSIONS OF LAW 1. At pertinent times PECA was an employer engaged in commerce in a business affecting commerce and Local 1186 was a labor organization within the meaning of Sec- tion 2 of the Act. 2. At pertinent times the production, maintenance, and office clerical employees of PECA's affiliates, excluding professional employees, guards, watchmen and supervi- sors as defined in the Act, constituted a unit appropriate for collective-bargaining purposes under Section 9 of the Act. 3. At pertinent times Local 1186 was the duly desig- nated collective-bargaining representative of a majority of the employees within the above-specified unit and PECA was the duly designated collective-bargaining representative of its affiliates. 4. PECA and Local 1186 were parties to three collec- tive-bargaining agreements covering the rates of pay, wages, hours, and working conditions of the unit em- ployees for a term extending from January 1, 1980, through August 14, 1983. 5. Local 1186 violated Sections 8(b)(1)(B), 8(b)(3), and 8(d) of the Act by: (1) Attempting to terminate the aforesaid agreements prior to their expiration dates and not complying with Section 8(d) of the Act; (2) attempt- ing to bargain and bargaining directly with PECA's af- filiates concerning the rates of pay, wages, hours, and working conditions of those affiliates, bypassing PECA, those affiliates' duly designated representative for collec- tive-bargaining purposes; and (3) threatening to strike and striking PECA's affiliates in support of demands they disaffiliate from PECA, negotiate individually or through HECA and sign new agreements containing modifications of the terms of the PECA-Local 1186 agreements. 6. Local 1186 violated Section 8(b)(3) of the Act by ignoring and failing to respond to PECA's grievance over Local 1186's attempted unilateral termination of the three PECA-Local 1186 agreements. 722 IBEW LOCAL NO. 1186 7. Local 1186 violated Section 8(b)(3) of the Act by refusing to supply PECA with copies of its agreements with Hawaii electrical contractors other than PECA af- filiates to enable PECA to ascertain whether Local 1186 was complying with the most favored nation provision of the PECA-Local 1186 agreements. 8. The General Counsel and PECA failed to establish Local 1186 violated Section 8(b)(3) of the Act by its offer of limited access by a PECA representative to Local 1186's referral procedures and records. 9. The aforesaid unfair labor practices affected and affect commerce as defined in the Act. THE REMEDY Having found Local 1186 engaged in unfair labor practices in violation of Sections 8(b)(l)(B), 8(b)(3), and 8(d) of the Act, I recommend Local 1186 be directed to cease and desist therefrom and take affirmative action de- signed to effectuate the purposes of the Act. Having found Local 1186 violated the Act by attempting to ter- minate its agreements with PECA, by bargaining directly with PECA's affiliates, in derogation of its duty to bar- gain with PECA concerning the rates of pay, etc., of the employees of those affiliates, and by coercing a number of PECA's affiliates into executing individual agreements or affiliating with HECA and complying with the terms of HECA-Local 1186 agreements, I recommemd Local 1186 be directed to recognize and bargain with PECA as the sole collective-bargaining representatave of PECA's current affiliates and those electrical contractors who were affiliated with PECA at the time Local 1186 com- menced its unlawful actions;2S to apply and comply with all the terms of the PECA-Local 1186 agreements with respect to all electrical contractors currently affiliated with PECA and those electrical contractors who were affiliated with PECA al the time Local 1186 began its unlawful campaign; 2 9 to cease giving effect to or seeking to enforce all and any agreements between Local 1186 and any electrical contractor affiliated with PECA at the time Local 1186 began its unlawful campaign, plus any agreements between Local 1186 and HECA purporting to cover the employees of any electrical contractor affili- ated with PECA at the time l ocal 1186 began its unlaw- ful campaign,;3 to reimburse PECA, and those electrical contractors affiliated with PECA who were coerced into executing individual agreements with Local 1186 or join- ing HECA and placing their employees under the cover- age of agreements between HIECA and Local 1186, for any losses or costs they suffered by virtue of Local 1186's unfair labor practices, with interest on the sums '" November 24, 1980. when Local 1186 atllenpted to unilaterally ter- minate the PECA-I.U: II 1186 agreements 19 A:.R.IB. v. South California Pipe lrades District Council .o. 16, 449 F.2d 608 (6th Cir 1971) 30 V.L. R B. v. Local 964. Unirted Brotherhood of Carpenlcr5 and Joiners of America [Contraclors and Supphlers Aion. f/ Rockland Courntr. A. }I. 447 F.2d 043 (2d Cir. 1971). Local Union .\: 420 Inited .4mis ,laiion of Jour- neymen and Apprentices of the Plumbing and PipefItting Induslry (Paragon Mechanical. Inc.). 254 NLRB 445 (1981,; l.ocal 1205. International Broth- erhood of leamster. (hauffeur.s. Warehousemen and tlclperN of 4merica (New York Labuhr Trade Association,, 191 Nl.RH 917 (1971): Internationual Union of Operating Engineers, Lo, al 825 (Building Contractors .ssociation of New Jersey), 145 NI.KRB 152 (1964). due;31 and to provide PECA, at its request, with infor- mation enabling PECA to carry out its collective-bar- gaining functions, including furnishing PECA with copies of collective-bargaining agreements between Local 1186 and Hawaiian electrical contractors not affili- ated with PECA.3 2 I find the above measures necessary to restore the parties to status quo ante the unfair labor practices and avoid Local 1186's retention of the fruits of its unlawful conduct. On the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Sec- tion 10(c) of the Act, I recommend the issuance of the following: ORDER 33 The Respondent, International Brotherhood of Electri- cal Workers, Local Union No. 1186, AFL-CIO, Honolu- lu, Hawaii, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Failing or refusing to recognize and bargain with PECA as the sole and exclusive collective-bargaining representative of all electrical contractors currently affili- ated with it, plus all electrical contractors who were af- filiated with PECA on November 24, 1980, but subse- quently disaffiliated from PECA and became party to agreements with Local 1186 other than the PECA-Local 1186 1980-83 agreements, concerning the rates of pay, wages, hours, and working conditions of ail production, maintenance, and office clerical employees of those con- tractors. (b) Failing or refusing to apply and comply with the terms of the three agreements executed by PECA and Local 1186 on July 14, 1980, for a term extending through August 16, 1983, with respect to employees of contractors specified above. (c) Giving effect or seeking to enforce any agreements between Local 1186 and any electrical contractor affili- ated with PECA on November 24, 1980. which wvere ex- ecuted by such contractor and Local 1186 subsequent to November 24, 1980, and any agreements between HECA and Local 1186 executed subsequent to November 24, 1980, which purport to cover the rates of pay, wages, hours, and working conditions of any electrical contrac- tor affiliated with PECA on November 24, 1980. (d) Dealing directly with any electrical contractor within the group specified above concerning the rates of :" X:L.R.B v. Graphic Arts International Union Local 280. 596 F.2d 904 (9th Cir. 1979); .VL.R.B. v. Carpenters Local 964. ibid; .NL.R.B. v. gWarehousemen's Union Local 17. Longshoremen, 451 F2d 1240 (9th Cir 1971); Plumbers Local 420. ibid..' International Union of Operating Engi- neers. Local 12 /.aa. & Feduska, Inc.), 248 NLRB 1335 (1980): United Slate. Tile & Composition Roofers. Damp A Waterproof Workers Associ- ations. Local 220 (United Slate. Tile & Composition Roofers, Damp & Wa- terproof W~orker .4ssociation. Local 2201 (Roofing Contractors As.uociation of South California). 177 NL RB 632 (1969); United Slate. Tile & Composition Roo;feri. Damp & Waterproof Workers .4.ssociaon. Local 36 (Roofing .4so- ciatim of South ('alijornia), 172 NLRB 2248 (1968). '2 See cases cited in fns 24, 25. :1 In the event no exceptions are filed as provided by Sec. 102.46 of Ihc Itules and Regulations of the National Labor Relations Board, the tindings, conclusions. and recommended Order herein shall, as provided in Sec 10248 of the Rules and Regulations, he adopted by the Board and become its findings, cnclusions. and Order, and all objections thereto shall be deemed waived for all purposes 723 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay, wages, hours, and working conditions of such con- tractor's employees, rather than through PECA. (e) Threatening to strike, or striking any electrical con- tractor within the group specified above for the purpose of coercing such contractor into negotiating, either di- rectly or through HECA, with Local 1186, and execut- ing either individual contracts with Local 1186 or agree- ments to join HECA and be bound by contracts between HECA and Local 1186 covering the rates of pay, wages, hours, and working conditions of the employees of such contractor. (f) Failing or refusing to supply PECA with informa- tion enabling PECA to carry out its collective-bargain- ing functions, including furnishing PECA with copies of all collective-bargaining agreements between Local 1186 and Hawaiian electrical contractors not affiliated with PECA. 2. Take the following affirmative action designed to ef- fectuate the purposes of the Act: (a) Recognize and bargain solely with PECA concern- ing the rates of pay, wages, hours, and working condi- tions of all production, maintenance, and office clerical employees employed by electrical contractors within the group specified above. (b) Give full force and effect to the 1980-83 PECA- Local 1186 agreements with respect to the employees of the electrical contractors within the group specified above. (c) Make PECA whole for any financial losses PECA suffered as a result of Local 1186's unfair labor practices (loss of fees and contributions attributable to Local 1186- induced withdrawal of electrical contractors from affili- ation with PECA and coverage by the PECA-Local 1186 1980-83 agreements, subsequent to November 24, 1980) and reimburse those electrical contractors who so withdrew for any increased wage rates and benefit con- tributions they paid since their withdrawal over and above the wage rates and contributions specified in the PECA-Local 1186 1980-83 agreements, with interest on the sums due computed in accordance with the formula set out in Florida Steel Corporation, 231 NLRB 651 (1977), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (d) Provide PECA with copies of all collective-bar- gaining agreements Local 1186 has negotiated and ex- ecuted since November 24, 1980, with Hawaii electrical contractors not affiliated with PECA. (e) Post at its offices, meeting halls, and all places where notices to its members are customarily posted, copies of the attached notice marked "Appendix." 3 4 Copies of that notice, on forms provided by the Officer- in-Charge of Subregion 37, shall be signed by an author- ized representative of Local 1186 immediately upon their receipt and conspicuously displayed for 60 consecutive days thereafter, and reasonable steps shall be taken to ensure the notices are not altered, defaced, or covered by other material. (f) Furnish the Officer-in-Charge of Subregion 37, at his request, with sufficient signed copies of the notice for distribution to PECA, its current affiliates, and those electrical contractors who were affiliated with PECA on November 24, 1980, and subsequently executed individu- al agreements with Local 1186 or affiliated with HECA and became subject to agreements between HECA and Local 1186, for posting, at their option, on their employ- ee bulletin boards. (g) Notify the Officer-in-Charge of Subregion 37 and the Regional Director of Region 20, in writing, within 20 days from the date of this Order, what steps Local 1186 has taken to comply with the Order. 34 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. 724