United Steel Erectors, Inc.

314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Steel Erectors, Inc. and International Union of Operating Engineers Locals 627A and 627B, AFL-CIO. Case 16-CA-12440 24 March 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 11 August 1986 Administrative Law Judge Richard J. Linton issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light 'of `the exceptions and brief and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order, 3 as modified. ORDER The--National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, United Steel Erectors, Inc., Tulsa, Okla- homa, its officers, agents, successors, and assigns, 1 In adopting the judge's decision, we make the following correction: the second par. of sec III,A,4, of the decision should refer to the term of the negotiated collective-bargaining agreement as "1985-1987 " 2 In its exceptions, the Respondent contests the Union's status as the exclusive collective-bargaining representative of its employees. In the supporting brief, the Respondent notes that the Union was certified by the Board on 11 July 1986, then solely asserts, with respect to the Union's representative status, that "nothing alleged or argued in this case is intended to waive its right to contest the certification in Case No 16- RC-8814." In agreeing with the judge's conclusion that the Union is the exclusive representative of the Respondent's employees in an appropriate unit, we note that the Respondent has raised no issue or argument in its exceptions or brief that would cause the Board to reexamine the decision made in the representation proceeding. We agree with the judge's finding that the Respondent clothed the Oklahoma Commercial and Industrial Steel Erectors Association (the As- sociation) with the apparent authority to act on its behalf and, in so doing, conclude that this case is distinguished from Crane Sheet Metal, 248 NLRB 75 (1980), enf dewed 675 F 2d 256 (10th Cir. 1982). We note that here the Respondent signed a form stating that it assigned to the As- sociation "all of his or its rights to bargain collectively in the negotiations for a new labor agreement with the International Union of Operating En- gineers Local 627," knowing that regardless of whatever private under- standing it had, the Association would or might furnish the form to the Union We find this to be overt conduct on the part of the Respondent showing an apparent intent to clothe the Association with the authority to negotiate on its behalf a binding collective-bargaining agreement Such an overt course of conduct was not present in Crane Sheet Metal. S The Respondent's request for oral argument is denied as the record, exceptions, and brief adequately present the issues and the positions of the parties. The judge granted the General Counsel's request that the order include a visitatonal clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals en- forcing the Order We have concluded that under the circumstances of this case such a clause is not warranted We shall modify the recom- mended Order accordingly shall take the action set forth in the Order as modi- fied. Substitute the following for paragraph 2(c). "(c) Notify the Regional' Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." Ruth Small, Esq., for the General Counsel. David E. Stretcher and Katie J. Colopy, Esq.s (Conner & Winters), of Tulsa, Oklahoma, for the Respondent. Gerald Ellis, Business Manager, Operating Engineers Local 627, of Tulsa, Oklahoma. DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. In this refusal-to-bargain case I find that the members of a contractors association privately agreed their assignments of bargaining rights to the Association would be non- binding. However, because I find Respondent clothed the Association with apparent authority to act on its behalf, I find that Respondent unlawfully refused to sign the 1985-1987 contract reached 9 May 1985 between the Union and the Association. I order Respondent to sign the contract and to give effect to its terms retroactive to 1 June 1985. This case was tried before me in Tulsa, Oklahoma, on 31 March and 1 April 1986 pursuant to the 12 February 1986 complaint issued by the General Counsel of the Na- tional Labor Relations Board through the Regional Di- rector for Region 16 of the Board. The complaint is based on a charge filed 31 December 1985 by Interna- tional Union of Operating Engineers Locals 627A and 627B, AFL-CIO (Union, Local-627, or Charging Party) against United -Steel Erectors, Inc. (Respondent or USE).1 In the complaint the General Counsel alleges that Re- spondent violated Section 8(a)(5) of the Act by refusing to execute a contract reached between it and the Oklaho- ma Commercial and Industrial Builders and Steel Erec- tors Association (Association or OCIBSEA) on 9 May. By its answer Respondent admits certain factual mat- ters but denies violating the Act. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel2 and the Re- spondent, I make the following ' FINDINGS OF FACT 1. JURISDICTION An Oklahoma corporation with an office in Tulsa, Oklahoma, USE is engaged in the business of crane rental, rigging, and structural steel. During the past 12 months, USE purchased and received at its Tulsa (Okla- homa) facility goods and materials valued in excess of 1 All dates are 1985 unless otherwise indicated 2 The General Counsel included a proposed notice to employees and order with her brief. 283 NLRB No. 47 UNITED STEEL ERECTORS 315 $50,000 directly from sources located outside Oklahoma. Respondent USE admits, and I find, that it is an employ- er within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent ' admits, and I find, that International Union of Operating Engineers Locals 627A and 627B, AFL-CIO are labor organizations within the meaning of Section 2(5) of the Act. IIL THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence 1. Background Merle D. Martindale is president of USE . In October 1979 Martindale signed a one-paragraph document by which USE agreed to be bound by the then current col- lective-bargaining agreement (CBA) between the Union and the Oklahoma Chapter-Builders Division, the Asso- ciated General Contractors of America , Inc. (AGC), plus any renewal contracts (1:24-25; 2:253;3 G.C. Exh. 2). Martindale never signed any document canceling his 1979 agreement with the AGC. On the other hand, Mar- tindale never signed any subsequent similar agreement (2:253) even though the Union's practice was to send them to all the steel contractors whenever a new con- tract was reached every 2 years (2:198). USE was never a member of the AGC (2:253). Since 1979 Respondent has paid the wage rates and the benefit fund contributions specified in the AGC con- tracts (1:31),4 and this includes up to the time of the hearing (1 :51-52; 2:254). The latest AGC contract ex- pired on 31 May 1985 (1:104). William H. Noble is president of Builders Steel Com- pany, Inc. (1:102). In early 1985, Noble testified, the AGC announced that it would not negotiate renewal contracts with the unions in Oklahoma (1:102). The AGC's then current contract with Local 627 was set to expire about 1 June 1985 (1:27, 104). Martindale testified that the AGC's notice of dissolu- tion included a suggestion that the employer members send a notice to the unions canceling their assignments of bargaining rights (1:27). By letter dated 25 February Martindale, on behalf of USE, notified Local 627 of the AGC's dissolution , that USE terminated its CBA effec- tive 1 June, offered to meet and negotiate a new CBA, and advised the Union that Martindale was the only person authorized to bargain on behalf of USE (G.C. Exh. 3). 2. Formation of OCIBSEA Thinking it wise to form a new association to deal with the Operating Engineers and the Iron Workers, Noble wrote letters inviting various contractors to attend a meeting on 13 February to discuss becoming a part of a References to the two-volume transcript of testimony are by volume and page. 4 In fact, as Martindale testified , USE has made these payments for the 19 years USE has been in business ( 1 52, 2.252) the, new association .,( 1:103). Noble's letter to USE, to Martindale's attention, is dated 28 January (G.C. Exh. 5). Martindale received the letter and, along with some nine other contractors (including Noble), attended the first meeting (13 February) of what became the Association (1:32-34; 2:255-257; R. Exh. 1). Noble testified that the purpose of the meeting was for the contractors to get together to see if they had a mutual interest in negotiating with the Union (1:119), and Martindale testified that such was his understanding also (2:260-261, 281). At this initial meeting the attendees dis- cussed a wide range of topics on what it would take to be competitive, including rates for wages, health cover- age, and pension benefits (1:35). Although formation of a new association was briefly discussed, including, having a committee to negotiate, no-express decision was made to form one, and Martindale was not asked to join one (2:258-259, 281-282). Noble concedes that at the first meeting he did not ask anyone to assign bargaining rights, and he did not say anything about the attendees being bound to any agree- ment the group might negotiate (1:141-142). Either at the meeting or in a telephone conversation, as Martindale testified, Noble requested the contractors to put in writing what they thought it would take to make them competitive in the market (1:119; 2:262). By letter dated 20' February, Martindale sent Noble a list with seven numbered suggestions or ideas (2:262, 283; G.C. Exh. 12). Martindale did not intend his 20 February letter to constitute an assignment of bargaining rights (2:263). Five days after this letter Martindale, as we have seen, wrote the Union and offered, on behalf or USE, to meet and bargain for a new contract to begin when the current one expired 1 June (G.C. Exh. 3). Before the second meeting, Noble sent those he thought would be attending, including Martindale, the following note of 8 March (1:142-143; R. Exh. 2): This note is a reminder for the meeting next Wednesday at Builders Steel at 1 :30 p.m. to review the Operating Engineers contract and bring every- one up-to-date on the Iron Worker and Operating Engineer negotiations for this spring as several things have transpired since our meeting last month. I've received letters from two of the individuals in our meeting however everyone was going to put their thoughts in written form concerning' where they thought the salaries and fringe benefits should be, so try to have something written by the time the meeting starts as we are very interested in every- one's input concerning the 1985 Union Contracts. See you Wednesday afternoon. On Wednesday, 13 March, Noble and seven other con- tractors attended the second meeting (1:120, 144). Mar- tindale was not present, and, neither were a couple of others who had attended the first meeting. One compa- ny5 was represented at the second meeting which had 5 National Steel Erectors, represented by R Jack Holland 316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not been represented at the first meeting (1:144-146; R. Exhs. 1, 3). At the second - meeting the attendees dis- cussed the union contract in detail, including the changes the group thought would be needed . Nothing was said about any binding effect of whatever was negotiated (1:146-147).6 Although, Noble testified it was at the first meeting he was elected president of the new Association (1:129), he concedes there are no formal documents prepared for the Association (1:165-166): He also testified that a negotiat- ing committee was elected, consisting of Jim Ulmer, of Jim's Crane Service, Jack Holland, of National Steel Erectors, and Noble, of Builders Steel, but that he did not recall at which meeting they were elected (1:106, 151, 172). I note that Holland was not an attendee at the first meeting (R. Exh. 1), but he did attend the second meeting (R. Exh. 3). I find that it was at this second meeting, not the first one, when the Association was formed, Noble was elected president, and a three- member negotiating committee was elected. By letter dated 15 March Noble wrote members of the group to bring everyone up to date (1:147). The copy to Martindale reads (R. Exh. 4): Dear Merle, This letter is to review what our plans are at the present time concerning negotiations with the iron- workers and operating engineers . A general consen- sus was obtained during the last two meetings, Feb- ruary 13 and March 13, 1985 of our group which informally will be called the Oklahoma Steel Erec- tors Association as follows: It is our intent to join in with the AGC Contract- ing members that desire to negotiate with the two above mentioned unions. We do not feel that we will benefit the position of the employer by negoti- ating alone and feel that by adding to the AGC Contractors we can provide them with more num- bers and make the negotiating job simpler for the union and management negotiating teams. We have discussed the areas in which we feel there is some concern and possible changes that would be advan- tageous to 'the employer and the employee. At the same time we have discussed in general where we feel wages should be in order for us to be competi- tive in today's market place and also be able to con- tinue- as employers with union " labor. Al the next meeting, which will be held on Wednesday, April 10, 1985 at Builders Steel's office in Tulsa, we will discuss the operating engineers contract in detail. Please bring with you at that time or mail to me ahead of time your comments and expectations inso- far as any changes you feel might be included in the negotiations this spring. I will try to get out a letter on April 5 concerning our April 10 meeting. I ap- preciate the attention and time that each of you have spent on this project and hope that you feel that it is beneficial towards the operation of your business. 6 Noble concedes that nothing was said about any binding effect until the meeting of 7 May (1:152, 160) Sincerely, /s/ Bill W. H. "Bill" Noble President? Noble broke a leg in early April, and he is uncertain whether a meeting was held on 10 April 'as scheduled in his letter, and he has no attendance roster for any meet- ing on that date (1:120, 149). Martindale attended no meeting that date. On 9 April Noble wrote to Business Manager Gerald Ellis of the Union that nine named firms desired to meet and bargain for a new CBA (1:104, 117-118, 173). Clay- ton Walker, a business representative of Local 627 for over 25 years, testified that the Union received the letter and that USE was one- of the companies listed (2:181). The 9 April letter, which does not mention the Associa- tion, reads (G.C. Exh. 6): Dear Gerald: This letter is to serve official notice that the fol- lowing companies wish to negotiate with you to place in effect 'a contract that will continue after the present contract expires on June 1, 1985. We wish to negotiate for every Classification that we pres- ently have in our work forces. We anticipate that negotiations should start somewhere around April 25, 1985. Any subsequent meetings that would need to transpire would then be set at the conclusion of each succeeding meeting. The following companies are presently interested in negotiating with the Operating Engineers: Jim's Crane,Service, Oklahoma City, Chowning Logan, Logan and' Company, Coffeyville, Kansas, Bennett Steel Erectors, Sapulpa, Okie Steel Inc., Bartles- ville, National Steel Erectors, Muskogee, Copeland Steel, Tuloma, Inc., United -Steel Erectors, and Builders Steel Co., Inc., of Tulsa. Please contact me as soon as possible in order that we will be able to start negotiating for a new contract. Sincerely, /s/ W. H. Noble W. H. "Bill" Noble Some 9 days later, by date of 18 April, Noble sent let- ters on plain stationery to the contractors informing them of meeting dates scheduled with the unions. At- tached to the 18 April letter was a copy of the 9 April letter which Noble had sent to Local 627 (1:105, 126). The copy of Noble's 18 April letter to USE reads (G.C. Exh. 7): Dear Merle: This letter is to keep you informed concerning the negotiations with the Operating Engineers and 7 As the letter is on the stationery of Builders Steel (the Association had no stationery, 1 165), the "President" reasonably refers to Noble's po- sition at his company rather than with the Association His previous let- ters were written in the same fashion , including his letter of 28 January- which well predates formation of the Association. UNITED STEEL ERECTORS 317 Iron Workers. As of this date the first meeting with the Iron Workers will be Tuesday, April 23, at 1:30 p.m. at the apprentice hall which is located about one mile East of the Iron Workers hall on 46th Street. We also have a meeting with the Operating Engineers for April 25, Thursday, at 1:30 p.m. at their Union hall on East Skelly bypass, just East of the 11th Street exit. If you have any questions concerning this please do not hesitate to give me a call. Everyone is invited to these negotiations, howev- er I would like to know if you're going to attend as I can then let the Unions know how many people we will have in attendance and tell you where and when we need to meet before each meeting. From time to time they request that we have no more at the negotiating table than they do. Look forward to seeing you Tuesday and Thurs- day- Sincerely, /s/ W. H. Noble W. H. "Bill" Noble President Martindale testified that even though he did not au- thorize Noble to,list USE in the 9 April letter, he voiced no objections about Noble's 9 April letter to the Union because he knew he had not signed anything that would obligate USE. Martindale was unconcerned because Noble several times had said the contractors needed to present a show of force, and Martindale considered the 9 April letter as part' of that show of force (2;266-267, 283). The Association and the Union held three bargaining sessions before reaching a contract (1:106). The first meeting was held 25 April, the second on 2 May, and the last on 9 May (1:107, 121, 134; 2:231). Martindale apparently did not attend any of the three bargaining sessions (1':106, Noble): At the first session Business Manager Ellis asked the members of the Asso- ciation's bargaining committee whether they had author- ity to bargain for everyone named in the letter of 9 April, and the members answered that they did (2:219- 220). Apparently not satisfied, Ellis raised the subject again at the second meeting of 2 May. It, appears that he told Noble he needed something more specific on whom the Association represented, and he asked about assignments of bargaining rights. Noble said he was inexperienced at bargaining, that Okie was not bound and any contract with Okie would have to be negotiated individually, that Tuloma was in bankruptcy , and that Copeland had no operating engineers (2:234-235). Apparently 'after the 2 May bargaining session Noble checked with Representative Don Zippert of the AGC who informed Noble that written assignments of bargain- ing rights were necessary (1:108, 138-139).8 8 Although Noble dates that conversation in late April (1 108, 138- 139), 1 find it far more likely that it occurred following the bargaining session of 2 May. This brings us to the crucial meeting of the contractors at a Furr's Cafeteria in Tulsa on 7 May.9 3. The 7 May 1985 meeting; the "Gentlemen's" agreement; and the assignment of bargaining rights On 7 May 1985 the Association held a last meeting before agreement was reached with the Union for a new CBA. From six to nine firms were represented (1:49, 111, 122, 2:269). Martindale was there representing USE. Leon Potts, a witness in this proceeding , attended on behalf of Tuloma, Inc. 1 The meeting was at Furr's Cafeteria in Tulsa. The group began their discussion there after lunch. When the meeting ended most or all of those present, including Martindale, went to a bargaining session with the Iron Workers (1:169). The cafeteria meeting was devoted chiefly, but not completely, to the bargaining session which was to follow the cafeteria meeting. At the Furr's Cafeteria meeting Noble distributed forms for the contractors to sign by which they would assign their bargaining rights to the _ Association."" The copy in evidence is that signed by Martindale (1:46; 2:268). The document provides (G.C. Exh. 9): ASSIGNMENT OF BARGAINING RIGHTS The undersigned employer hereby assigns to the Collective Bargaining Committee, Oklahoma Com- mercial and Industrial Steel Erectors Association, all of his or its rights to bargain collectively in the negotiations for a new labor agreement with the International Union of Operating Engineers Local 627. This assignment and the authority herein granted is limited solely to the undersigned employer and is not intended to be a general grant of assignment af- fecting the bargaining rights of any subsidiary or af- filiated firm, partnership or corporation. It is understood and agreed that the undersigned employer will remain a party to the collective bar- gaining unit until an agreement is signed or until re- leased from this assignment, in writing, by the Okla- homa Commercial and IndustrialSteel' Erectors As- sociation. The undersigned employer further agrees not to enter into any separate negotiations or agree- ments with the above designated union and agrees to accept the terms and conditions of the agreement negotiated by the Collective' Bargaining Committee 9 The contractors, or the Association, also held a meeting on 2 May, the same day a bargaining session was held (1.107). An attendance roster shows a signature for Martindale (G C. Exh, 8) Although Martindale thought he had attended only two of these meetings of the contractors, he nevertheless identified the signature as his (1.43-44; 2.269)'. The record contains no description of the discussion at the 2 May meeting of the As- sociation io There is no dispute that at all relevant times Turoma was involved in its bankruptcy proceedings A senior vice president of Tuloma, Potts, Joined Respondent's staff on 1 July (2.288, 304). 11 Noble testified that preceding the 7 May meeting he mailed a letter to the contractors in which he enclosed copies of the assignment forms and requested the contractors to sign ( 1 107, 109, 153) No copy of that letter is in evidence 318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the, Oklahoma Commercial and Industrial Steel Erectors Association. THUS DONE AND SIGNED on this day of , 1985. EMPLOYER: United Steel Erectors, Inc. [Hand- written.] BY: /s/ Merle D. Martindale There is no question that at the 7 May cafeteria meet- ing Potts said that Tuloma could not sign anything be- cause of its bankruptcy proceeding. The critical point in dispute is whether, on Martindale's request, either Noble or the group joined in a "gentlemen's" agreement that the assignments, or at least Martindale's, would not be binding, but would be used only for a show of strength. Of the six to nine contractors in attendance at the meet- ing, only three (Noble, Martindale, and Potts) testified. According to Martindale, before signing the form he asked Noble whether it was binding, for if it was he would not sign. Noble said Martindale would need to ask an attorney.12 Martindale responded by offering to sign if there was a "gentlemen's" agreement that the docu- ment would not be binding. Noble turned to the others and asked if they wanted to consent to the form not binding USE and the others voiced their consent (1:48- 49; 2:270-273, 284). The testimony of Leon Potts is essentially the same as that of Martindale, although there are a couple, of differ- ences. Thus, Potts recalls the "gentlemen's" agreement applying to everyone (2:298). On a second point, Potts testified that Noble said the form pertained to negotia- tions with the Operating Engineers (2:296).13 Noble testified that after Martindale signed the assign- ment he asked, "Am I bound by this?" Noble replied he was not a lawyer and could not give legal advice, but if he signed it he would feel bound by it (1:111, 123, 161, 164). Noble at first testified he did not recall saying any- thing about a showing of solidarity, and that he believed he would recall if he said it (1:118), but he later testified he could have said it (1:168). He concedes that at some point in the meeting someone mentioned the phrase "gentlemen's" agreement, but he does not recall who said it or in what context (1:122-123, 166). To his knowl- edge there was no discussion, in conjunction with the phrase, that a signed assignment would not be binding (1:123-124). Noble denies turning to the rest of the group 12 When called as the General Counsel's first witness , Martindale testi- fied that he recalled no statement that he should check with his attorney to see, whether the assignment would be binding (1 50) After hearing Noble testify that he answered Martindale by saying he was not an attor- ney but would feel bound if he signed (1.111, 123, 164), Martindale (when called later as Respondent's witness) testified that Noble said something about Martindale's needing to ask a lawyer (2 270). 13 Noble testified he distributed assignment forms for both the Operat- ing Engineers and also the Iron Workers for those who had not brought their forms and that Martindale signed the former but not the latter (1:110, 163) According to Martindale, he received only the one form (for the Operating Engineers) at the cafeteria meeting, he did not read it, and he thought it pertained to the: Iron Workers because they had been talk- ing about the bargaining session to be held that afternoon with the Iron Workers (1 147,,2.272, 274, 283). Although Respondent has employed iron workers in the past, at no relevant time here has it done so (1.47; 2:286). 1 credit Noble on this, and I find that Martindale knew that the form pertained to the Operating Engineers and asking them if they wanted to agree that the assign- ment would be a nonbinding gentlemen's- agreement (1:124, 163, 172). As previously noted, none of the other members of the group, who might be considered neu- trals,14 testified. Noble's admission that the phrase "gentlemen's agree- ment" was used, in a context he cannot recall, tilts the evidence in favor of the Martindale-Potts' version of the critical discussion at the cafeteria meeting on 7 May. Therefore, I find the Association agreed that the assign- ment form would be nonbinding and used only for the bargaining tactic of presenting a united front to Local 627.15 4. New contract reached; USE never signs At the third and final bargaining session on 9 May, the Association and the Union agreed on a CBA effective by its terms from 1 June 1985 to 1 June 1987 (1:112; 2:231; G.C. Exh. 11 at 1, 11). Either before the session, or at that 9 May session, Noble furnished the Union copies of the executed assignments of bargaining rights (2:182, 230-231). Attached to the 1984-1987 CBA is a "Designation of Agent" paragraph in which the Labor Relations Com- mittee of the Association warrants that "the contractors listed below have assigned their bargaining rights" to OCIBSEA and that the contractors agreed -to be bound by the negotiated agreement.16 Six contractors are named, including USE and the three companies (Builders Steel, Jim's Crane Service, and National -Steel Erectors Corp.) whose representatives (Noble, Ulmer, and Hol- land) were on the Labor Relations Negotiating Commit- tee of the Association. After the new CBA was typed, reviewed by the Union and the Association's committee, and signed, copies were mailed around i June (the execution date) to the contrac- tors, including USE (1:122-113). Martindale left-for a 3- week trip to Alaska about mid-May (2:274-275). Martin- dale testified that about 7 June, the day after he had re- turned and examined the new CBA, he telephoned Noble and notified him, that he could not live with the condi- tions set forth in the CBA. Noble made no claim that USE was bound, but told Martindale "You do what you have to do." (2:275-276) Despite the CBA's inclusion of USE's name as one of the contractors bound to the contract, it appears that Martindale did not call or write the Union and disavow the CBA and inform the Union that the Association never had any authority to bargain on his behalf. Indeed, 14 Leon Potts works for Martindale It is clear that Martindale, even though he pays the wages and benefits called for by the new CBA, does not want to be bound by that contract Although Martindale testified that Noble's Builders Steel is a competitor of USE -(2:255), Noble explained that there is not much competition because USE does mainly renting of cranes whereas Builders Steel works mainly in steel fabrication and erec- tion (1:128). - ls As previously noted, Business Manager Ellis testified that Noble ex- plained at one of the first bargaining sessions that he was inexperienced in collective-bargaining matters (2.233) 16 The new CBA names the Association as the "Oklahoma Commer- cial and Industrial Builders and Steel Erectors Association" (emphasis added). The assignment of bargaining rights form, in evidence as G.C Exh. 9, names it without the word "Builders " UNITED STEEL ERECTORS Martindale concedes that USE adopt the pay scale yet forth in the new CBA, and USE has continued to pay into all contractual benefit funds (1:31, 51-52; 2:254, 275- 277, 280; G.C. Exh. 10). USE does so, Martindale testi- fied, in order to keep its operators, and to avoid prob- lems with the Union, and not because it feels legally bound to do so (2:254, 276-277). Noble testified that about early July, while he and Martindale were in a telephone discussion on another matter„ he asked Martindale whether he had signed the CBA. Martindale said, "No." Noble did not pursue the matter then. In a similar conversation with Martindale in August Noble asked if he was going to sign and Martin- dale replied that he would, take care of that with Clayton Walker, a business representative of the Union (1:114- 115). Following this conversation, Noble informed Walker of Martindale's statements, and at that point Noble ceased pursuing the matter with USE (1:115). I credit Noble concerning the timing and general sub- stance of his conversations with Martindale after 1 June. I find it unlikely that Martindale, who supposedly did not consider himself bound, initiated a call to Noble as his first order of business after returning from Alaska. In any event, USE never signed the new contract. There is a substantial amount of evidence concerning additional events. Clayton Walker testified to having about four conversations with Leon Potts beginning after Noble called him in midsummer and informed him that USE had not signed the contract (2:183, 213). Walker initially dated his first call to Potts as occurring in May. In this he was in error, for Potts did not join USE until 1 July. I find Walker's description of events, including not only the timing but also the contents, of his conversation with Potts,' 7, to be rather unreliable. However, to a lim- ited extent I credit Walker. Although Martindale testified that no one ever asked him to sign the new CBA (2:277), I credit Walker that, when his conversations began with Potts about August, he asked for USE to sign the new CBA but Potts kept putting him off by saying he (Potts) would have to talk with Martindale on the matter and get back with Walker. When Potts called Walker back that day or the next he would say "We Will get with you and take care of it." (2:184, 199-201.) This continued into October when Walker finally lost patience and reported the situation to Business Manager Ellis (2:185, 199- 200).18 Ellis testified that, USE was the only contractor who had not signed the new CBA (2:221). 17 According to Walker, in May and later Potts said USE was part of the Association Walker concluded from Potts' statements then and later that USE would be bound by the new CBA (2 183, 193-195, 201-202) Is I do not credit Potts that Walker called only once, in July or August, and that was to request that USE meet to negotiate a CBA. Nor do I credit Potts, after checking with Martindale when he returned to the office, that Martindale said to arrange a meeting on neutral grounds, and that Potts conveyed that information to Walker. Finally, I do not credit Potts' denial that Walker ever requested that USE sign the CBA the As- sociation had negotiated (2:299-300). To the extent that Potts' testimony about meeting to negotiate a contract is consistent with Walker's version of events in October-November then I credit Potts Indeed, Martindale dates the request to Potts as mid-October, shortly before Martindale was to leave again for Alaska (2:278) 319 "5. The election and Case 16-RC-8814 Business Manager Ellis decided that in these; circum- stances, and because of perceived problems arising under Section 8(f) of the Act, it would be wise to obtain certifi- cation (2:227-228, 241). He and Walker discussed the matter (apparently by telephone because Ellis was out of the State, 2:242), and they decided that certification of the Union might encourage Martindale to go ahead and sign the CBA (2:185). Ellis instructed Walker to obtain the assistance of a Board agent at the Tulsa Resident Office and to file an election-petition (2:227, 242). Walker did so on 22 October with the assistance of Board Agent Paul Blackwell; it was the first. petition Walker had ever filed (2:185-186, 202-203). In the ensuing election which was conducted on 12 December, the vote was 4 to 3 in favor of the Union.'9 USE filed objections, a hearing was held,20 and the matter is pending before the Board on USE's request for review (1:84). The parties dispute the significance of certain state- ments either made,, or assertedly made, by the Union's representatives during the preelection and postelection period. Respondent contends that they, particularly Ellis, told employees that if the Union won the election it would negotiate a contract with Respondent. In the Union's response (served 12 February 1986) to 1JSE's ex- ceptions to the hearing officer's report on objection, the Union wrote at 13 (R. Exh. 7): It would appear in the present case that the com- pany seeks only to delay the time when it must begin negotiations with the union. During this time, it is using the process of administrative delay to dis- credit the union that was lawfully elected to repre- sent the employees. Through this process, the com- pany must anticipate that it will gain additional le- verage to avoid any good faith collective bargain- ing. At no point in the foregoing response does the Union assert that USE was bound to the 1985-1987 CBA. Re- spondent argues that the Union's statements during the preelection and postelection period and, indeed, the peti- tion which it filed,21 demonstrate a belief on the Union's part that Respondent was -never bound by the CBA (Br. 29-32). Respondent never makes clear why that asserted fact is significant. It possibly could bear on the credibility of Walker's testimony concerning his conversations with Potts. (I already, have found much of Walker's testimony 19 On 31 December the Union filed the instant refusal-to-bargain charge 20 Respondent asserts that the hearing was held on 6 January 1986 (Br 14). 2' For some reason, the Union's petition has no answer in the spaces provided' for the questions on the petition asking whether there is a rec- ognized bargaining agent or a collective-bargaining agreement (G.C. Exh 13). Respondent emphasizes (Br. 30) that it recognizes a union's right to seek certification even when it ^ is a party to a CBA. Duke Power Co., 173 NLRB 240 (1968); General Dynamics Corp., 148 NLRB 338 (1964). But Respondent points to the blank spaces on the petition as ad- missions by the Union that it never thought Respondent was bound to the CBA 320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD concerning those conversations to be unreliable.) How- ever, the implied thrust of Respondent's argument seems to suggest that if the Union believed USE was never bound, that belief somehow nullifies the General Coun- sel's refusal-to-bargain allegation. There is no evidence that the Union was ever told the assignment forms, copies of which were furnished to the Union on or before 9 May, were signed under a "gentle- men's" agreement that they would be nonbinding. The executed CBA carries USE's name as one of the contrac- tors bound to the CBA, and Martindale never telephoned or wrote the Union disavowing the listing of his name on the CBA. Indeed, USE implemented the terms of the new CBA. Accordingly, I find no legal significance here in any statements by the Union several months after the fact in Case 16-RC-8814. There is yet another reason I see no need to resolve the disputed statements made by or attributed to the Union in Case 16-RC-8814. The Union filed the refusal- to-bargain charge in the instant case on 31 December. It there charges a refusal to bargain by Respondent's "re- fusing to sign a collective bargaining agreement negotiat- ed by a multi-employer association to which the Em- ployer had assigned its collective-bargaining rights." Thus, regardless of whatever Ellis told the employees during the election campaign, and whatever he wrote in Case 16-RC-8814, it is clear that in the midst of it all he filed the refusal-to-bargain charge. Accordingly, I find the evidence concerning events surrounding Case 16- RC-8814 to be irrelevant. B. Analysis and Conclusions 1. Applicable law A multiemployer bargaining relationship is established when employers manifest an unequivocal intention to be bound by group bargaining and the union assents and enters into negotiations with the group as a unit. Hills- dale Inn v. NLRB, 764 F.2d 739, 743 (10th Cir. 1985); NLRB v. Beckham, Inc., 564 F.2d 190, 192 (5th Cir. 1977); Acropolis Painting, 272 NLRB 150, 154 (1984). An employer indicates the unequivocal intention to be bound by the results of group bargaining if he gives a multiem- ployer association either actual or apparent authority to negotiate and execute on his behalf with the union as part of the multiemployer unit. Hillsdale Inn, supra at 743; Beckham, supra at 194; Acropolis Painting, id. Quoting from one of its earlier cases, the court in Hillsdale Inn states: To establish that an agent had apparent authority to bind its principal it must be shown that the principal knowingly permitted the agent to exercise the au- thority in question, or in some manner manifested its consent that such authority be exercised. [Emphasis added.] Where the agent is clothed with apparent authority, the agent may bind the principal even though the agent misrepresents to third parties crucial facts pertinent to the basis or extent of his authority. Crane Sheet Metal, 248 NLRB 75, 76 (1980), enf. denied on other grounds 675 F.2d 256 (10th Cir. 1982). 2. Discussion As I have found, the Association misrepresented to the Union the important fact that the assignment form USE had signed was not what it purported to be, for at a meeting on 7 May the contractors had agreed that the form would be nonbinding. Notwithstanding that misrepresentation, I find that USE is bound to the new CBA because the course of all events reflect that USE clothed the Association with ap- parent authority to act on its behalf. USE's conduct in this regard is shown particularly by its failure to voice any objection when Noble named USE in Noble's letter of 9 April to the Union. By his silence, Martindale al- lowed the Union to rely on the assertion in ` that letter that USE was one of the companies interested in negoti- ating with the Operating Engineers. It is true Noble does not mention the Association in the letter. Even so, Mar- tindale said nothing and permitted Noble to continue his correspondence and contacts with the Union. Against this background (not even to count the addi- tional background of his earlier assignment to the AGC and his implementation of the terms of all AGC con- tracts over several years) Martindale allowed Noble to take his signed assignment knowing that Noble would, or might, furnish it to the Union. It will not do for USE to rely on a private agreement that the form was nonbind- ing when Martindale knew, or should have known, that all other facts indicated that the Association's negotiating committee had USE's express authorization to bind USE. Respondent, I fmd, clothed the Association with appar- ent authority to act in its behalf. To paraphrase Lord Byron's verse about Julia, although Martindale insists that he never consented, his actions reflect not only that he did consent, but also that he allowed the Union to be- lieve he had consented.22 All the contractors named in the CBA's attachment signed the CBA except one-USE. Then when Martin- dale received the executed CBA he did nothing23 (except implement the terms of the new CBA), and he continued to let the Union, as well as the Association, believe that USE was bound. Finally, as I have found, beginning in early August Leon Potts repeatedly assured the Union that USE would "take care of" signing the contract. It never did. By its failure and refusal to sign the CBA reached on its behalf, USE violated Section 8(a)(5) of the Act. CONCLUSIONS OF LAW 1. USE is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 22 Byron, Don Juan, canto I, stanza 117 (1818), quoted in The Poetical Works ofByron (Cambridge ed., 1975) at 761 , A little still she strove, and much repented, And whispering `I will ne'er consent'- consented' z2 Even under his own version (which I have discredited), Martindale called only Noble-not the Union UNITED STEEL ERECTORS 2. Operating Engineers Locals 627A and 627B are labor organizations within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees of USE who operate such equipment as cranes, winch trucks, forklifts, oilers, mainte- nance mechanics and apprentices, excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act. 4. At all times material the Union has represented a majority of the employees in the unit described above. 5. By virtue of the 1985-1987 collective-bargaining agreement between the Association and the Union, at all times since 1 June 1985 the Union has been the exclusive collective-bargaining representative of the employees in the trait described above within the meaning of Section 9(a) of the Act. 6. By refusing since early August 1985 to sign the 1985-1987 CBA negotiated by the Association and the Union, USE has violated Section 8(a)(5) and (1) of the Act. 7. The unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has committed the unfair labor practice as alleged ,24 I shall order it to cease and to take affirmative action designed to effectuate the policies of the Act. In the suggested notice to employees and order which she has submitted, the General Counsel proposes that Respondent not only be ordered to sign the 1985-1987 CBA„ but also be ordered to "abide by and adhere to" the terms of the CBA. Although the record indicates that Respondent apparently has implemented all terms of the CBA relating to wages and benefit payments, I shall leave to the compliance stage the determination of whether there are any provisions of the CBA Respond- ent has not implemented, and I shall order Respondent to give effect to the CBA retroactive to 1 June 1985. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended 2 s ORDER The Respondent, United Steel Erectors, Inc., Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to sign the collective-bargain- ing agreement, effective by its terms from 1 June 1985 to 1 June 1987, between the Oklahoma Commercial and In- 24 The sole violation alleged is Respondent's refusal "to execute a written contract embodying the agreement." Complaint par. 16 25 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 321 dustrial Builders and Steel Erectors Association and Op- erating Engineers Locals 627, 627A, and 627B. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Sign the 1985-1987 CBA and give effect to its terms retroactive to 1 June 1985. (b) Post at its Tulsa, Oklahoma plant copies of the at- tached notice marked "Appendix. 11211 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained fir 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply, For the purpose of determining or securing compliance with this Order, the Board, or any of its duly authorized representatives, may obtain discov- ery from the Respondent, its officers, agents, successors, or assigns, or any other person having knowledge con- cerning any compliance matter, in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United States court of appeals enforcing this Order and may be had upon any matter reasonably related to compliance with this Order, as enforced by the court. 26 If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT fail and refuse to sign the collective- bargaining agreement (CBA), effective by its terms from 1 June 1985 to 1 June 1987, between the Oklahoma Commercial and Industrial Builders and Steel Erectors Association and Operating Engineers Locals 627, 627A, and 627B. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request of the Union, sign the 1985-1987 CBA, and WE WILL give effect to its terms, retroactive 322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to 1 June 1985, covering our employees in the following nance mechanics and apprentices, excluding all appropriate bargaining unit: other employees, office clerical employees, guards, All employees of USE who operate such equipment and supervisors as defined in the Act. as cranes, winch trucks, forklifts, oilers, mainte- UNITED STEEL ERECTORS, INC.