Arden Electric, Et Al.

654. . DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arden Electric, et al. and Local 340, International Brotherhood of Electrical Workers, affiliated with International Brotherhood of Electrical Workers,- AFL-CIO, Petitioner. Cases 20-RC- 15401 through 20-RC-15417 4 June 1985 -.DECISION ON REVIEW AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 29 December 1981 the Acting Regional Di- rector for Region 20 administratively dismissed the instant petitions, finding they did not raise a ques- tion concerning representation in an appropriate unit because the appropriate unit was multiemploy- er-wide. Petitioner, and Employer Collins Electric Co. each filed timely requests for review, arguing that the Sacramento Valley Chapter of the Nation- al Electrical- Contractors Association (S/NECA) was authorized to bargain only with Petitioner, the multiemployer unit dissolved once S/NECA ac- cepted Petitioner's disclaimer, and therefore the pe- titions were valid. S/NECA and certain Employ- ers' filed responses to the requests for review, as- serting that S/NECA had been granted broad au- thority to bargain on its constituents' behalf and the multiemployer unit survived Petitioner's dis- claimer of interest. . • - . On 5 May 1982• the Board, through its Executive Secretary, issued a Ruling on Administrative Action which granted the -requests for review, rein- stated the petitions, and directed a hearing to re- solve the issues raised. S/NECA and certain Em- ployers filed a motion for .reconsideration. On 12 August 1982 the Board granted the motion in part, amending its previous ruling by directing a hearing on the continued existence of the multiemployer unit and ordering that, after the hearing, the case be transferred to the Board for further consider- ation. Arden Electric, 263 NLRB 318 (1982). ' ' The case was consolidated for hearing with a re' lated unfair labor practice case,2 and -Administra- tive Law Judge Jay R. Pollock conducted the hearing. On 28 February 1983 the judge issued an ordei severing the cases and transferring the instant case to the Board. - z ' S/NECA and Employers Arden Electric, Beard Construction, Branstner Electric, Carlyle Electric, Neuffer Electric, Perri Electric, Peters Electric, and Stage I Electric filed a consolidated brief. Em- ployer s,Luppen & Hawley, Foss Co., M&M Elec- tric, Gatejen Electric, Stein Electric, and G.J. Yamas Co . also filed a consolidated brief. Employ- er Collins Electric, Petitioner, and International Brotherhood of Electrical Workers, AFL-CIO (IBEW), which had been permitted to intervene, each filed separate briefs. Having considered the entire record and the par- ties' arguments concerning the issues under review, the Board makes the following findings. 1. FACTS For at least 20 years before 1981, S/NECA and Petitioner engaged in collective bargaining in a multiemployer unit, negotiating three, basic types of agreements covering various electrical contracting work.3 Before 1975 employers granted S/NECA bargaining authority by becoming members"in the association or signing a Letter of Assent A. Ac- cording to. the bylaws then in effect, a member's authority to negotiate labor agreements was "ex- pressly and exclusively" granted to S/NECA. Assent A was, however, more narrow, authorizing S/NECA as the "collective bargaining representa- tive for all matters contained in or pertaining to the current approved . . . labor agreement between, [S/NECA] and Local Union [340], IBEW" until timely notice of termination. S/NECA and its national office, National Elec- trical Contractors Association (NECA), perceived certain problems with the agreement. First, they feared that Assent A's grant of bargaining author- ity expired with the pertinent IBEW labor agree- ment and thus freed the .signers to bargain individ- ually during a strike.4 Second, they were con- cerned that the bylaws' delegation of bargaining authority required S/NECA to negotiate contracts with unions representing other trades * if a member wished' or, conversely, prevented employers from entering into such contracts without the benefit of S/NECA representation. At a 6 November 1975 meeting S/NECA's board of directors considered a revised letter of assent proposed by NECA and decided to adopt it, except for, certain. damage clauses. The new assent, entitled "Letter of Assent Multi-Employer Agree- ment," in pertinent part provided as follows: 1. The undersigned hereby. designates the Sacramento Valley- Chapter, NECA, as its bar- gaining agent, and further agrees to be bound ,by all . collective bargaining and/or other s These contiacts' were the Inside Wiieman's Agreement, the Material i Beard Construction Co, Carlyle Electric Co ,'and Stage I Electric Handler's Agreement, and the Line Agreement Co 4 At its 1974 convention, IBEW adopted a resolution that in effect per- ' 2 Grason Electric Co, 20-CA-16872 'This case is now pending before mitted its local unions to'stnke rather than submit disputes to the Council the Board . on Industrial Relations- 275 NLRB No. 95 ARDEN ELECTRIC agreements in effect as of this date and all future collective bargaining and/or other agreements executed by the Sacramento Valley Chapter on its behalf, with the Interna- tional Brotherhood of Electrical Workers and its local unions and other unions as determined necessary and authorized by the Chapter Board of Directors covering work that is asso- ciated with "electrical contracting." 2. The Chapter shall constitute a multi-em- ployer bargaining unit and no unit member shall negotiate or execute a collective bargain- ing agreement covering unit work, (i.e., work that is associated with electrical contracting) other than through the Chapter or as author- ized by the Chapter.5 In a letter dated 16 December 1975, S/NECA's executive manager, Ken Carlson, informed the membership of the decision to employ the m ultiem- ployer assent. This letter, which was the only doc- ument ever sent to employers to explain the new assent, provided as follows: Our- present By-Laws, -which you are a signa-. tory to, state that the authority to negotiate agreements with labor organizations encom- passing wages, hours, working and other con- ditions affecting employees is expressly and ex- clusively delegated to the Chapter: Also, that no member shall independently enter into any such agreement with a labor organization. It is the feeling of the Board of Directors that the above type language is too broad and covers more than just IBEW. Many "of our members have more than one craft to deal with and it was-never the intent that the Chap- ter negotiate with the laborers, carpenters, op- erating engineers, etc. - For this reason, the Chapter has had prepared a "Multi Employer Bargaining Agreement" to be signed by each member that -would limit the Chapter's authority to bargain, to the ' IBEW and other unions as determined necessary by the Board of Directors. ' After our' members have signed 'the enclosed letter it is the -Board's -intent to delete all refer- ence of bargaining rights from the By-Laws.6 There is some conflict about whether par 2 of the' multiemployer assent included the parenthetical definition of unit work recited above In light of all the record evidence bearing on the meaning of the document, we find it unnecessary to resolve the conflict . 6 It is not clear why Carlson did not inform the members of the fact that the multiemployer assent was also designed to avoid the possibility of an employer's lawfully abandoning the unit dung a strike 655 True to the plan outlined in the letter, S/NECA's board of directors met on 4 May 1978 and adopted the following resolution: WHEREAS: The Board of Directors of this Chapter having reviewed the New Proposed Restated By laws'[sic] and specifically Article [16], which formally established an I.B.E.W. Employers Section that has been in Quasi Ex- istence for the past several years and, WHEREAS: Article [4], Section 11 of the Re- stated By-Laws states that Employers who elect to hire I.B.E.W. Electrical Workers shall delegate the authority to negotiate agreements to - the Chapter - through a separate Employer Bargaining Assent approved for that purpose by the -Board of Directors, now therefore be it, RESOLVED: That upon approval ,by the Membership. of the Restated By-Laws that this Board of Directors approve the _ revised Multi; Employer Bargaining Assent Agreement to be signed by all NECA Members who are, or elect to be I.B.E.W. Employers, and be it fur-. ther, - RESOLVED: That-this same Multi-Employer Bargaining Assent Agreement be available to all I.B.E.W. Employers who are not members of this Association and who desire the Asso- ciation to bargain in their behalf.. These bylaws were in effect in 1978.7 Article 4, section 11 of the revised bylaws re- quired members "who elect to-hire I.B.E.W. Elec- trical Workers" to delegate bargaining `authority "expressly and exclusively" to S/NECA through the multiemployer assent. Article 16 established an "I.B.E.W. -Employers" section made, up of multi- employer assent signers and stated that' the sec- tion's purpose was, among among other things, to negoti- ate labor agreements.8 That article also provided that employers would be bound-to the terms of the relevant agreement. by,signing an Assent A. It ap- pears that each petitioned-for employer signed one or both of the assents S'/NECA used.9 -,The bylaws were modified in 1979, but not materially S/NECA's bylaws use Roman numerals io designate the article and Arabic numerals to designate the section For clarity, we will use Arabic numerals to des- ignate both :, -, ' Art 8; sec ,1, provided- that "[w]hen the President [of S/NECA] is ah I B E W employei he shall also be chairman of the I B E W employ- ers section " Art 16 directed the chairman to "sign labor agreements for the I B E W employers section" on instructions from S/NECA's board. e The record is ambiguous on this point concerning Slater Electric Co In,Lght of our ultimate disposition , we find it unnecessary to resolve this ambiguity 656 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bargaining for the new contracts in 1981 was un- successful, and in-June 1981 the employees went on strike. As the parties' relationship deteriorated, S/NECA heard rumors that Petitioner planned to disclaim or decertify the unit. Through its attorney, S/NECA contacted at least three unions about the possibility of entering into an agreement if Petition- er and S/NECA terminated their relationship.10 On 14 September 1981 Petitioner's membership voted to disclaim interest in the multiemployer unit, and on the-following day Petitioner's presi- dent, Lee Frith, delivered a letter to S/NECA stat- ing that Petitioner disclaimed 'interest in represent- ing the employees in the multiemployer bargaining unit. Ken Carlson received the disclaimer 15 Septem- ber 1981 and the next morning called Mark Hughes, NECA's director of labor relations, to ask whether IBEW permitted such disclaimers. Hughes contacted an IBEW official and immediately called Carlson to inform him that Petitioner did not have authority to disclaim. Sam Myers, a member of the board of directors, testified that the board met later that day to consider the appropriate course of action. Steven Moore, also a board member, testi- fied that the board, although aware it could refuse the disclaimer, decided to accept it. Carlson, under directions from the S/NECA board, sent Petitioner a telegram dated 16 September, 1981 thanking it for the disclaimer, stating that S/NECA had begun ne- gotiations with another union, and requesting Peti- tioner not to contact any employers in the unit for individual negotiations., 1 1 Soon thereafter, S/NECA began discussions with the Steelworkers and the National Association of Independent Unions (NAIU) about negotiating a contract. S/NECA also `had several meetings with representatives of Petitioner and IBEW in _ an un- successful effort to resolve the differences. On 25 September 1981, during the midst of these discus- sions, Petitioner filed the instant petitions: S/NECA's attorney learned about the petitions 26 September 1981. On 1 October- 1981, however, S/NECA signed a contract with NAIU purporting to bind all employers which had signed either an Assent A or a multiemployer assent . S/NECA first notified employers of the contract 2 October 1981 at a general membership meeting. II. ANALYSIS AND CONCLUSIONS The- question before us is whether the petitions should be dismissed because they seek single em- ployer units which are inappropriate because of the [o S/NECA apparently contemplated entering into an agreement gov- erned by Sec' 8(f) of the Act I I S/NECA had not in fact begun such negotiations employer's participation in a multiemployer unit. For'the reasons stated below, we find that the em- ployers were not part of the multiemployer unit when-the petitions were filed, and therefore the pe- titions should be processed. It is axiomatic -that the basis for multiemployer bargaining units is the parties' consent to be bound by group bargaining. Thus, "[t]he Board does not find a multiemployer unit appropriate except where all parties clearly agree to such a unit or where there has been a history of bargaining on a multi- employer basis and the employers and either the in- cumbent or a rival union desire to continue bar- gaining on such a basis. In the absence. of either of these two factors, the Board will not find appropri- ate a unit covering employees -of more than one employer, regardless of the desirability of such a unit." Evening News Assn., 154 NLRB 1494, 1496 (1965) (footnotes omitted). The documents S/NECA relies on do not establish that the asso- ciation employers consented to bargaining with a substitute for Petitioner.12 Assent A cannot be construed as a' grant of au- thority to S/NECA to bargain with' any union other than an IBEW local. It contains no reference to bargaining with any other unions and states that S/NECA is authorized as the "collective bargain- ing representative for all matters contained in or pertaining to - the current approved . . . labor agreement between [S/NECA]- and Local Union [340], IBEW." In fact, S/NECA's executive man- ager, Ken Carlson, testified that employers who signed only an Assent A would not have author- ized bargaining with any union other than an IBEW 'local. Similarly, the multiemployer assent does not au- thorize bargaining with a substitute for IBEW for electrical contracting work. This is evidenced by the 16 December 1975 letter explaining the multi- employer assent, S/NECA's 4 May .1978, resolution adopting that assent, and S/NECA's bylaws. S/NECA's 16 December 1975 letter. reveals that S/NECA itself did not perceive the assent to be a liberal bargaining license. As the letter explained, S/NECA's then current bylaws were "too broad and cover[ed] more than just -IBEW" (emphasis added). Although "it was never the intent that [S/NECA] negotiate with the laborers, carpenters, operating engineers, etc.," the bylaws' overbreadth 12 5/NECA's membership discussed the possibility of bargaining with NAIU or another union at a general membership meeting on 24 Septem- ber 1981' At the end of the meeting, many employers in attendance ap- parently applauded the S/NECA board's decision to find a substitute for Petitioner There is no evidence establishing the identities of the "ap- plauding" employers Such informal action cannot supply the consent necessary to establish a new multiemployer unit ARDEN ELECTRIC inadvertently required S/NECA to deal with the members' other nonelectrical craft unions.. It was "[f]or this reason," the letter declared, that S/NECA decided to adopt the multlemployer assent to "limit [S/NECA's] authority`to bargain to the IBEW and other unions as determined neces- sary by the Board of Directors." Reading this ex- planation with the multiemployer assent, which tracks the language in the letter, we find that the assent authorized S/NECA to bargain with IBEW locals _ such as Petitioner concerning electrical work, and granted S/NECA the discretion to engage in unitwide bargaining with unions repre- senting other trades if the board determined such bargaining appropriate. - S/NECA's 4 May 1978 resolution adopting the multiemployer assent lends further support to our determination. The resolution refers to the "I.B.E.W. Employers Section" which had been ,in Quasi Existence 'for the past several years" and identifies the. employer-parties to the bargaining re- lationship" as "I.B.E.W Employers," employers "who elect to hire I.B.E.W. Electrical -Workers," or employers "who are or elect to be I.B.E.W. Employers." More importantly, the resolution ex- pressly defines the bargaining relationship by refer- ence to bargaining with- IBEW. Thus, it states, "Employers who elect to hire I.B.E.W. Electrical Workers shall delegate the authority to negotiate agreements to [S/NECA] through a separate Em- ployer Bargaining " Assent '[the multiemployer assent] approved for that purpose by the Board of Directors . . . Finally, S/NECA's bylaws also repeatedly define the bargaining relationship by reference to IBEW and thus reaffirm our interpretation. Article 4, sec- tion 11 requires members "who elect to hire I.B.E.W Electrical' Workers" to delegate their bar- gaining authority by signing the multiemployer assent. Article 16, which creates S/NECA's negoti- ating committee, is entitled "I.B.E.W Employers" and, more significantly, states that employers will be bound to the terms of the relevant, agreement by 657, signing an -.Assent A, the assent discussed above that only authorizes - bargaining with an IBEW local. In sum, we find that employer unit members and S/NECA intended to limit S/NECA's authority to bargain only with an IBEW local such as Petition- er concerning electrical contracting work and -with unions representing other trades. Therefore, having accepted Petitioner's - disclaimer, S/NECA essen- tially agreed to the dissolution of the multiemploy- er-IBEW unit and could not bind employers to a non-IBEW unit without new bargaining autlioriza- tions.13 Having determined that the employers had not consented to a bargaining relationship with a substitute for IBEW, we find that the former unit was dissolved by the parties' consent to the dis- claimer and the ' petitions for, employees of single employers are therefore not barred. We shall remand these cases to the Regional Director for further appropriate action. ORDER The petitions in Cases 20-RC- 15401 through 20- RC-15417 are remanded to . the Regional Director for further appropriate action. MEMBER HUNTER, dissenting. For the reasons given in my dissent from. the Order directing a hearing herein,' I would not process the instant petitions. I therefore 'dissent from the majority's decision to remand the peti- tions to the Regional Director. 13 At this point in the ' proceedings, we cannot ' consider, as S/NECA would have us do, whether Petitioner's disclaimer constituted unlawful whipsawing Any whipsaw effect results from the structure of the parties' relationship and from S/NECA's• decision to substitute a new union for IBEW before the unit's individual constitutents authorized such a change If we were to rely on the alleged whipsawing to dismiss the petitions, without returning the parties to the status quo ante, we would in effect rendei moot any inquiry into the employers ' consent to bargaining with a substitute for IBEW and obligate the employers to bargaining they, had never authorized Neither precedent nor policy warrants such a result - Arden Electric, 263 NLRB 318 (1982) - - 1,'