Gary Jasper Enterprises, Inc., Star Masonry

746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gary Jasper Enterprises, Inc., Star Masonry and Bricklayers Local Union No. 20 of California, International Union of Bricklayers and Allied Craftsmen Bricklayers Local Union No. 22 of California, Inter- national Union of Bricklayers and Allied Crafts- men and California Masonry, Inc. and Gary Jasper Enterprises, Inc. Bricklayers Local Union No. 20 of California, Inter- national Union of Bricklayers and Allied Crafts- men and California Masonry, Inc. Cases 21- CA-23539, 21-CA-23541, 21-CB-8884, 21- CB-8885, and 21-CB-9037 16 December 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 17 September 1985 Administrative Law Judge Earldean V. S. Robbins issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondent Employers filed cross-exceptions and a supporting and answer- ing brief. The Respondent Unions also filed an an- swering brief to the General Counsel's exceptions. 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 briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 only to the extent consistent with this Decision and Order and to adopt her recommend- ed Order. 1. We agree with the judge that Respondent Star Masonry did not violate Section 8(a)(5) by refusing to execute and agree to be bound by the 1984-1988 collective-bargaining agreement between the Exec- utive Council-a multiemployer bargaining group-and Local 20 covering employees perform- ing masonry work in San Bernardino and Riverside Counties, California, However, we shall dismiss the complaint about Respondent Star Masonry only for the following reasons. The judge found that at all relevant times Star Masonry was a member of a multiemployer unit represented for collective-bargaining purposes by the Executive Council. She found that Star Mason- ' We correct the following two inadvertent errors in the judge's deci- sion In the next to last paragraph of sec III,C, the opinion should state that the collective-bargaining agreement between Local 22 and the Orange County Chapter of CCMCA has a termination date of 30 April 1988 In the third paragraph of sec I of the conclusions section, the noti- fication referred to was sent to Local 22 2 We find it unnecessary to pass on the appropriateness of the judge's reliance on Acropolis Painting, 272 NLRB 150 (1984) ry had delegated its bargaining authority to the Ex- ecutive Council on 20 September 1973 when it signed a document appointing three different enti- ties of the California Conference of Mason Con- tractor Associations, Inc.-its Labor Relations Committee, its Executive Council, and the San Diego Chapter-as its "exclusive bargaining repre- sentative" with the "power to negotiate and enter into a collective-bargaining agreement or agree- ments with [any local of the Bricklayers Union] . . . covering our employees working in the State of California." Because negotiations between the Executive Council, the San Bernardino/Riverside Chapter, and Local 20 for a successor agreement to the 1982-1984 contract began on 26 January 1984 and Star Masonry did not revoke its delegation of authority to the Executive Council until 10 Febru- ary 1984, the judge found that Star Masonry's at- tempted withdrawal from multiemployer bargain- ing was untimely under the principles of Retail As- sociates, 120 NLRB 388 (1985). Unlike the judge, we find that, under the particu- lar facts here, the otherwise effective withdrawal from multiemployer bargaining was "timely" under Retail Associates, notwithstanding that it occurred after negotiations had commenced for the 1984- 1988 collective-bargaining agreement,3 and that the judge failed to take into account several critical factors that render inapt her application of the un- timeliness rule to Star Masonry's withdrawal. The timing of Star Masonry's 10 February 1984 written notice of withdrawal from multiemployer bargaining sent to both the Executive Council and Local 20 must be evaluated in the overall context of the parties' bargaining history. As found by the judge, prior to 1976 the Executive Council had been signatory to one multicounty collective-bar- gaining agreement covering masonry employees in San Bernardino, Riverside, Orange, and Los Ange- les Counties. In 1976 the San Bernardino Chapter of masonry employers withdrew from this multi- county bargaining. Between 1976 and 1984 Local 20 negotiated multiemployer agreements covering employees in San Bernardino and Riverside Coun- ties with two entities, each representing a different group of employers-the San Bernardino Chapter and the Labor Relations Committee of the Califor- nia Conference of Mason Contractor Associations. Thus, as of 1976 the Labor Relations Committee replaced the Executive Council for collective bar- gaining with Local 20, covering employees in San Bernardino and Riverside Counties. In particular, Star Masonry, as set forth in the 1982-1984 agree- s The 1984-1988 agreement became effective on I May 1984 to suc- ceed the 1982-1984 agreement that expired on 30 April 1984 287 NLRB No. 77 GARY JASPER ENTERPRISES 747 ment, was bound to that agreement by virtue of its 1973 delegation of bargaining authority to the Labor Relations Committee. As set forth by the judge, however, in September 1983 the parties agreed to amend the contract to exclude the Labor Relations Committee and, effective 1 October 1983, those employers represented by the Labor Rela- tions Committee, including Star Masonry, were re- leased from any further obligations under the con- tract. Thus, by 26 January 1984 approximately 8 years had passed since Star Masonry had last been bound to a collective-bargaining agreement based on au- thority delegated to the Executive Council in 1973. It also must be recognized that the negotiations, begun on 26 January 1984, were for a "successor" contract to a contract to which the Executive Council had not been a party at any time and from which Star Masonry had been released almost 4 months earlier . It is in the context of this lack of continuity in both Star Masonry's and the Execu- tive Council's participation in multiemployer bar- gaining with Local 20 that we have evaluated the absence of any notice to Star Masonry, prior to the start of bargaining, that the Executive Council in- tended to reactivate its long-dormant representative status and bargain on Star Masonry's behalf. In the particular circumstances here, we find that Star Masonry acted as expeditiously as possible in "withdrawing" from multiemployer bargaining 2 weeks after bargaining had commenced. In so find- ing we have considered the long hiatus in actual representation by the Executive Council, and the fact that Star Masonry had not remained a member of the original multiemployer unit for which a suc- cessor contract was being negotiated in January 1984. These circumstances, coupled with the lack of prior notice to Star Masonry,4 lead us to con- clude that its withdrawal was exercised at an ap- propriate time within the meaning of Retail Associ- ates. Thus, because Respondent Star Masonry had ef- fectively withdrawn from the multiemployer unit represented by the Executive Council, it was not obligated to abide by the terms of the collective- bargaining agreement subsequently negotiated with Local 20 for the 1984-1988 contract period. Ac- cordingly, we shall dismiss the 8(a)(5) allegations against Star Masonry.5 4 Notification of the date set for bargaining is a prerequisite to "timely" withdrawal See American Bank Note Co, 281 NLRB 617 (1986) In evaluating the circumstances here, we have considered also the ar- guable ambiguity that attaches to Star Masonry's having designated three different entities as its "exclusive" representative b Because we have found Star Masonry's withdrawal timely under the specific circumstances here, we need not consider the extent, if any, that 2. We also agree with the judge that the 8(b)(3) allegations against Local 20 and Local 22 should be dismissed. As the judge found, Charging Parties California Masonry and Jasper Enterprises were not represented by the Executive Council in any Orange County multiemployer unit and are not bound by the 1984-1988 collective-bargaining agreement between the Orange County Chapter of the California Conference of Mason Contractor As- sociations and Local 22. She further found that California Masonry is not bound by the 1984-1988 collective-bargaining agreement between the Exec- utive Council, the San Bernardino/Riverside Chap- ter, and Local 20. The parties stipulated that Local 22 refused to bargain separately with California Masonry and Jasper Enterprises for separate agree- ments covering employment in Orange County and that Local 20 likewise refused to bargain separately with California Masonry for a separate agreement covering employment in San Bernardino and Riv- erside Counties. The undisputed record evidence shows that Cali- fornia Masonry and Jasper Enterprises are "employer[s] engaged primarily in the building and construction industry" within the meaning of Sec- tion 8(f) of the Act. In John Deklewa & Sons, supra, the Board over- ruled R. J. Smith Construction Co., 191 NLRB 693 (1971), enf. denied sub nom. Operating Engineers Local 150 v. NLRB, 480 F.2d 1186 (D.C. Cir. 1973), abandoned the conversion doctrine, and modified unit scope rules in 8(f) cases. As set forth more fully in Deklewa, supra, 282 NLRB at 1377- 1378, the Board decided to apply the following principles in 8(f) cases: (1) a collective-bargaining agreement permit- ted by Section 8(f) shall be enforceable through the mechanisms of Section 8(a)(5) and Section 8(b)(3); (2) such agreements will not bar the processing of valid petitions filed pur- suant to Section 9(c) and Section 9(e); (3) in processing such petitions, the appropriate unit normally will be the single employer's covered by the agreement; and (4) upon the expiration of such agreements, the signatory union will enjoy no presumption of majority status, and either party may repudiate the 8(f) bargaining relationship. The Board also noted, at footnote 41 of Deklewa, that it will require the party asserting the existence of a 9(a) relationship to prove it. John Deklewa & Sons, 282 NLRB 1375 (1987), has modified the applica- tion of the Retail Associates doctrine in the construction industry 748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Under Deklewa, we find that the General Coun- sel, while asserting that the Respondent Unions are obligated under Section 9(a) to honor the respec- tive bargaining requests made of them, has failed to establish that the relationships between California Masonry, Jasper Enterprises, and Local 22 and be- tween California Masonry and Local 20 are any- thing other than relationships governed by Section 8(f). There is no dispute that the Respondents are construction industry employers; and, because the General Counsel has failed to meet her Deklewa burden of showing that 9(a) relationships were ever established, we find that the 8(b)(3) allegations are governed by Section 8(f) of the Act. Under the first Deklewa principle, the 1982-1984 agreements were enforceable under Section 8(b)(3) of the Act. Under the fourth principle, however, California Masonry and Jasper Enterprises are not entitled to rely on a presumption of majority status regarding either Local 20 or Local 22 following the 30 April 1984 expiration date of the relevant collective-bargaining agreements. The record shows that California Masonry's requests for sepa- rate bargaining with both Local 20 and Local 22 were intended to cover a period following 30 April 1984. Although the record does not specifically set forth the facts pertaining to Jasper Enterprises' re- quest of Local 22 for separate bargaining, it ap- pears that, like California Masonry, it sought to ne- gotiate a collective-bargaining agreement to become effective following the expiration of the 1982-1984 contract. At that point, however, the Respondent Unions were free to repudiate their re- spective 8(f) bargaining relationship with California Masonry and Jasper Enterprises. Because under Deklewa, Local 20 and Local 22 are not compelled to negotiate, successor agreements based solely on the existence of 8(f) relationships, we shall adopt the judge's recommendation and dismiss the 8(b)(3) allegations. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. Lana Hill Parke, Esq., for the General Counsel. James Winkler, Esq. (Atkinson, Andelson, Loya, Ruud & Romo), of Long Beach, California, for California Ma- sonry, Inc., Gary Jasper Enterprises, Inc., and Star Masonry. Ray Van Der Nat, Esq. (Van Der Nat, McNeil & Hay- wood), of Los Angeles, California, for Local 20 and Local 22. DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge. This case was tried before me in Los Angeles, California, on 12 June 1985 The charge in Case 21-CB-8884 was filed by California Masonry, Inc. (California Masonry) on 25 May 1984, and a copy thereof was served on Bricklayers Local Union No. 22 of California, Interna- tional Union of Bricklayers and Allied Craftsmen (Local 22) on 29 May 1984. The charge in Case 21-CB-8885 was filed by Gary Jasper Enterprises, Inc. (Jasper Enter- prises) on 25 May 1985, and copy thereof was served on Local 22 on 29 May 1984. The charge in Case 21-CB- 9037 was filed by California Masonry and served on Bricklayers and Allied Craftsmen (Local 20) on 25 Octo- ber 1984. The charge in Case 21-CA-23539 was filed by Local 20 on 29 October 1984, and a copy thereof was served on Jasper Enterprises on 30 October 1984. The charge in Case 21-CA-23541 was filed by Local 20 on 29 October 1984, and a copy thereof was served on Star Masonry (Star) on 30 October 1984 The amended con- solidated complaint which issued on 1 March 1985 al- leges that Local 20 and Local 22 (collectively Respond- ent Unions) violated Section 8(b)(3) of the National Labor Relations Act (the Act), and that Star and Jasper Enterprises' violated Section 8(a)(1) and (5) of the Act. The basic issues here are: 1. Whether California Masonry's withdrawal of bar- gaining authority from the Executive Council was suffi- cient to obligate Locals 20 and 22 to negotiate with it in separate single-employer bargaining units. 2. Whether the Orange Chapter's notice of intent to engage in separate negotiations with Local 22 and its subsequent negotiations was sufficient to revoke any bar- gaining authorization given to the Executive Council by Jasper Enterprises and California Masonry. 3. If California Masonry and Jasper Enterprises have timely withdrawn any bargaining authority granted to the Executive Council, whether the "except or reject" option attached to their delegation of bargaining author- ity to the Orange County Chapter was sufficient to obli- gate Local 22 to bargain separately on request with Gary Jasper Enterprises, Inc. and California Masonry. 4. Whether Respondent Star is bound by the 1984 ne- gotiations of the San Bernardino Chapter and the Execu- tive Council with Local 22. On the entire record,2 including my observations of the witnesses, and after due consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT I JURISDICTION California Masonry, a corporation, is engaged in per- forming masonry work in the construction industry in 1 During the course of the hearing here, the General Counsel's motion was granted to withdraw the allegations of the complaint that alleged that Gary Jasper Enterprises, Inc has engaged in unfair labor practices in violation of Sec 8(a)(1) and (5) of the Act 2 Certain errors in the transcript have been noted and corrected GARY JASPER ENTERPRISES southern California with its main office located in Tustin, California In the course and conduct of its business op- erations, California Masonry, during the 12-month period preceding the issuance of the amended consolidated com- plaint here performed services valued in excess of $50,000 for customers located outside the State of Cali- fornia. The complaint alleged, the Respondents admitted, and I find that California Masonry is, and has been at all times material, an employer engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act The Orange County Chapter of the California Confer- ence of Mason Contractor Associations, Inc. (the Orange County Chapter) is, and has been at all times material, an association composed of various employers including Star Masonry, Gary Jasper Enterprises, Inc., and Califor- nia Masonry, engaged in business in southern California in the performance of masonry work Certain of the em- ployer-members of the Orange County Chapter have del- egated to the Orange County Chapter the authority to represent them for collective-bargaining purposes. The employer-members of the Orange County Chapter who have delegated to the Orange County Chapter the authority to represent them for collective-bargaining pur- poses, including Star Masonry, California Masonry, Inc., and Gary Jasper Enterprises, Inc., in the aggregate, an- nually perform services valued in excess of $50,000 for customers located outside the State of California, or, in the alternative, annually perform services valued in excess of $5000 for customers located within the State of California, each of whom annually purchases and re- ceives goods, materials, or supplies valued in excess of $50,000 directly from suppliers located outside the State of California or annually sells and ships goods, materials, and supplies valued in excess of $50,000 directly to cus- tomers located outside the State of California. The Orange County Chapter is, and has been at all times material, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. Gary Jasper Enterprises, Inc. and Star Masonry each has been at times material an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATIONS The complaint alleged, Respondents admit, and I find that Respondent Locals 20 and 22 each is a labor organi- zation within the meaning of Section 2(5) of the Act III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background It is undisputed that certain local countywide multiem- ployer organizations in the masonry construction indus- try in the State of California are multiemployer associa- tions all or some of whose members have delegated to each of them authority to represent them for collective- bargaining purposes. The local associations involved here are located in Orange County and San Bernardino-River- side Counties. However, the collective-bargaining au- 749 thority of the statewide and/or multiarea employer groups with whom the local associations are affiliated is in dispute. The multiarea employer groups involved here are the California Conference of Mason Contractors Association, Inc. (CCMCA), its negotiating arm, the Labor Relations Committee (LRC-CCMA); and the Executive Council of the Mason Contractors Exchange of Southern California, Inc., d/b/a Executive Council of the California Confer- ence of Mason Contractors Association, Inc. (the Execu- tive Council), which is the administrative and negotiating arm of the Mason Contractors Exchange of Southern California (MCESCI).3 CCMCA is a statewide organiza- tion, and the MCESCI is a southern California organiza- tion Both CCMCA and the MCESCI have as members local associations, called chapters, each of which has in- dividual masonry contractors as members. The local chapters involved here are the Orange County Chapter of CCMCA (the Orange County Chapter), the San Ber- nardino Chapter of CCMCA (the San Bernardino Chap- ter), and the San Bernardino-Riverside Chapter of MCESCI (the San Bernardino-Riverside Chapter). There is no formal relationship between the MCESCI or the Executive Council and CCMCA. However, since certain of the MCESCI chapters were instrumental in the formation of CCMCA, and since one of the principal purposes of both the MCESCI and CCMCA is to pro- mote areawide collective bargaining, there existed for a number of years what appears to have been a high degree of cooperation between the MCESCI, the Execu- tive Council, and CCMCA. Thus, until 1 October 1983 all member chapters of the Executive Council were also member chapters of CCMCA.4 On 22 August 1983, essentially because of economic considerations, the Executive Council determined that it would cease remitting dues to CCMCA for its member chapters. By letter dated 24 August, Arthur N. Burke, chairman of the Executive Council, notified CCMCA that it had voted to withdraw from CCMCA as of Octo- ber 1983. By memo dated 26 August 1983, Ryan M. O'Brien, ex- ecutive vice president of CCMCA, notified all members of its chapters that it would cease remitting dues to CCMCA for its member chapters. By letter dated 24 August, Arthur N. Burke, chairman of the Executive 9 When the Executive Council was first formed in 1963, it was known as the Executive Council of the Mason Contractors Exchange of South- ern California, Inc In 1964, the Executive Council began using the name Executive Council of the California Conference of Mason Contractors Association, Inc However, there was no change in the organization or its affiliation other than the name change The Executive Council re- mained the administrative and negotiating arm of the MCESCI As of 1 October 1983 the Executive Council changed its name to the Executive Council of the Mason Contractors Exchange of Southern California, Inc , d/b/a Executive Council of the California Conference of Mason Contrac- tors Association, Inc Again, there was no change in the organization or its affiliation, only a name change In reaching these conclusions regard- ing the name changes , I have considered, and reject, Respondents' argu- ment that the change was more fundamental The record does not sup- port this contention 4 Although not absolutely clear, it appears from the record that what is referred to as chapters of the Executive Council are the chapters affili- ated with the MCESCI 750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Council, notified CCMCA that it had voted to withdraw from CCMCA as of 1 October 1983. By memo dated 26 August 1983, Ryan M. O'Brien, ex- ecutive vice president of CCMCA, notified all members of its chapters that held 'concurrent membership in the MCESCI: The CCMCA has been informed by the Execu- tive Council of the CCMCA [Executive Council] that effective October 1, 1983, the Executive Coun- cil will no longer pay dues to the CCMCA on your behalf for your membership in the CCMCA. In the event you wish to continue your member- ship in the CCMCA . . . you may do so by paying the $20.00 per month dues required for membership in the CCMCA. It is my understanding that the decision by the Executive Council to terminate the payment of dues on behalf of the nine Local Chapters of the CCMCA was based on economic reasons only and not on any' dispute or dissatisfaction with the CCMCA. By letter dated 1 September 1983, Robert E. Long, manager of the Executive Council notified all members: The Executive Council provides services to the members of the Long Beach, Los Angeles, Marble & Granite, Orange County, San Bernardino-River- side, San Fernando, San Gabriel, Ventura chapters, the one member in Kern County and two members in Santa Barbara. The most important part of the Executive Council activities is the Labor Relations portion. Not only is the working agreement negoti- ated through the Council, but the every day prob- lems that occur are mediated through the Coun- cil. . . . For the past year, the Association, like most every- one else, operated at a loss. Now it has become nec- essary to find ways to maintain our local services. The Council has considered the situation. The dele- gates feel that our local Association can provide all services to our members that the state organization has been providing. This was not an easy decision. Many of the delegates have personally devoted a great deal of their time to helping the CCMCA grow, and the change will create more- need for their efforts, for a short period. As you know from the letter sent out by Ryan O'Brien, the Council has voted to withdraw from the CCMCA, effective Oc- tober 1, 1983. This will cause adjustments to be made, depending upon your individual situation. As set forth in footnote 3 above, as of 1 October 1983, the Executive Council changed its name to reflect its af- filiation with the MCESCI. As of 30 September 1983, CCMCA had 19 local chapters with a total of 316 indi- vidual contractor members in these chapters. Eight of the chapters-including the Orange County and San Ber- nardino Chapters-were also members of the Executive Council with a total of 141 individual contractor mem- bers in these 8 chapters.5 On the withdrawal of the Executive Council from CCMCA, some of the chapters of the Executive Council also withdraw from CCMCA. In other locales, the chap- ters split resulting in a chapter affiliated with the Execu- tive Council and another chapter affiliated with CCMCA. Currently there is an Orange County Chapter of CCMCA and an Orange County Chapter of MCESCI. The San Bernardino Chapter also split so that there is now a San Bernardino Chapter of CCMCA and a San Bernardino-Riverside Chapter of MCESCI. It is undisputed that Local 20 represents masonry employees in San Bernardino and Riverside Counties in a multiem- ployer unit, the description of which is in dispute. The same is true as to Local 22 in Orange County. It is also undisputed that Star Masonry, Gary Jasper, and Califor- nia Masonry are or have been members of one or more of the employer organizations and at some point has au- thorized one or more of the organizations to be its col- lective-bargaining representative. At issue here is wheth- er any such authorization, and which ones, existed at the critical times here. The agreement and rules governing the Executive Council provides, inter alia. ARTICLE I Name and Purpose Section -2. The purpose of the Executive Council shall be to lawfully do any and all of the following: a. join together individual employer collective bargaining groups from various collective areas for the purpose of establishing uniform collective bargaining agreements b maintaining close cooperation between vari- ous employer collective bargaining groups in an effort to establish area-wide collective bargaining ARTICLE II Membership in Executive Council Section 1. The Executive Council shall consist of two (2) representatives from each member chap- ter. . . ARTICLE III Collective Bargaining Section 1. All member organizations shall retain full authority to negotiate and sign collective bar- gaining agreements with labor units on behalf of their members in their local areas. 5 As of the time of the hearing, here CCMCA had 15 member chapters with a total of 297 individual contractor members and the Executive Council had 9 member chapters with a total of 81 individual contractor members GARY JASPER ENTERPRISES 751 Section 5. All collective bargaining agreements negotiated and signed by a Local Chapter or Chap- ters shall bind, in addition to the regular members of the Local Chapter of Chapters, all regular mem- bers of all Local Chapters of the Executive Council. All collective bargaining agreements shall bear the name of the Local Chapter or Chapters and desig- nate the Local Chapter or Chapters as a member of the Executive Council Section 6. No member organizations or regular member of a member organization of the Executive Council shall enter into a separate working agree- ment with any Local Union, where an Executive Council Bargaining Unit exists, and shall be bound by all rules and regulations established by the local organization(s). Section 11. In the event an agreement cannot be reached between the Negotiating Committee of the Executive Council and the Local Union or Unions, then in that event the representatives of the particu- lar area or areas shall have authority to negotiate independent of the Executive Council under any rules adopted by the Local Chapter. The Constitution and bylaws of the Orange County Chapter provides, inter alia. ARTICLE I Section 2. The object of this Chapter shall be to lawfully do any and all of the following: 1. To assume authority from all Regular and Class B Members to negotiate and sign collective bargaining agreements with labor organizations to cover the employees of members. This Chap- ter shall retain full authority in all matters con- cerning labor negotiations unless delegated by action of the Board of Directors. ARTICLE VII DUTIES OF COMMITTEES ESTABLISHED BY LOCAL CHAPTERS OR EXECUTIVE COUNCIL Section 2. Each Chapter shall be represented in labor relations by a Negotiating Committee consist- ing of three of its regular members . The Negotiat- ing Committee of the Executive Council shall be governed by the provisions of ARTICLE III, of the Executive Council By-Laws. On 29 October 1970 Star signed an agreement that provides, inter alia: 1. Contractor agrees to be bound by all terms and conditions of all collective bargaining agreements negotiated and signed by and between the Execu- tive Council of the CCMCA., Inc., [Executive Council] and a Local Union or Unions. On 20 September 1973 Star signed a document which states, inter aha: APPOINTMENT AND AUTHORIZATION of BARGAINING REPRESENTATIVE I hereby appoint the LABOR RELATIONS COMMITTEE of the California Conference of Mason Contractor Associations, Inc., the EXECU TIVE COUNCIL of the California Conference of Mason Contractor Associations, Inc, [Executive Council] and the SAN DIEGO CHAPTER of the California Conference of Mason Contractor Asso- ciations, Inc. to act as my exclusive bargaining rep- resentative for the purpose of and with the power to negotiate and enter into a collective bargaining agreement or agreements with any Local Union of the Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, or any Local Union of the Laborers International Union of North America, AFL-CIO, covering our employees work- ing in the State of California, and to execute such collective bargaining agreements with the same force and effect as if the said agreements had been agreed to and executed directly by the undersigned. This authorization shall supersede and revoke any power of attorney or authorization dealing with the same subject matter that may heretofore have been given by the undersigned to any other person or as- sociation prior to this date. On 1 January 1976 California Masonry signed an appli- cation for membership in CCMCA that designated the Orange County Chapter as the local chapter for which application was being made. The application states, just above the signature line: It is understood that this automatically binds the above firm to all labor agreements negotiated by the Executive Council of the California Conference of Mason Contractor Associations , Inc. [Executive Council] On 9 May 1977 California Masonry signed an appoint- ment and authorization of bargaining representative which reads, in pertinent part: I hereby appoint the CALIFORNIA CONFER- ENCE OF MASON CONTRACTOR ASSOCIA- TIONS, INC. to act as my exclusive bargaining representative for the purpose of and with the power to negotiate and enter into collective bar- gaining agreement or agreements with any Local Union of the Bricklayers & Allied Craftsmen Inter- national Union of America, AFL-CIO, or any Local Union of the Laborers International Union of North America, AFL-CIO, covering my employees working in California and to execute such collective 752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining agreement or agreements with the same force and effect as if said agreement or agreements had been agreed to and executed directly by the un- dersigned. This authorization shall supersede and revoke any power of attorney or authorization dealing with the same subject matter that may heretofore have been given by the undersigned to any other person or as- sociation prior to this date. On.7 March 1978 Jasper Enterprises signed an ap- pointment and authorization of bargaining representative, identical to the one signed by California Masonry on 7 May 1977, appointing the MCESCI as its exclusive bar- gaining representative . At some point in .1978, Jasper En- terprises began to expand into industrial 'development. Around the same time, Jasper Enterprises' principal formed a partnership with two other persons that contin- ued in the masonry construction business as Gary Jasper & Associates Masonry (Jasper Associates). On 25 Octo- ber 1978 Jasper Associates signed an 'application for membership in CCMCA that designated the Orange County Chapter as the local chapter for which applica- tion was being made. Just above the signature line, the application states: It is understood that this, automatically binds the above firm to all labor agreements negotiated by the Executive Council of the California Conference of Mason Contractor Associations, Inc. [Executive Council] By letter dated 15 January 1978, Jasper Enterprises no- tified the Executive Council that it would be engaging in the developing of industrial property and that Jasper As- sociates had joined CCMCA and would be doing all ma- sonry operations. The letter further states, "As of now I withdraw all of your rights to act as my bargaining rep- resentative for Gary Jasper Enterprises, Inc. with any and all union organizations at this time." , In the latter part of 1979 and the early part of 1982, Jasper Enter- prises' principal bought out the other two partners of Jasper Associates and continued to operate Jasper Asso- ciates until mid-1982 when its contracts were completed. Thereafter in the first part of 1984, Jasper Enterprises re- sumed doing masonry construction work. B. Facts Involving the San Bernardino-Riverside Area Local 20 represents masonry construction employees in the San Bernardino-Riverside area. Prior to 1976 the Executive Council had negotiated one multicounty col- lective-bargaining agreement covering masonry construc- tion employees in San Bernardino Counties, Orange County, and Los Angeles County. In 1976 the San Ber- nardino Chapter withdrew from this multicounty bar- gaining and thereafter a separate multiemployer agree- ment was negotiated covering San Bernardino and Riv- erside Counties. Between 1976 and 1984 such agreements were negotiated between Local 20 and the San Bernar- dino Chapter and CCMCA-LRC, of which each employ- er group represented a different group of employers: The 1982-1984 agreement, effective by its terms from 1 May 1982 through 30 April 1984, provides, inter alia: AGREEMENT THIS AGREEMENT is entered into this 1st day of May, ',1982, by, and between the San Bernardino Chapter, the Labor Relations Committee of the California Conference of Mason Contractor Asso- ciations, Inc. and Bricklayers and Allied Craftsmen, Local Union No. 20 of California, AFL-CIO. ALL, EMPLOYEES who have not signed a "Dele- gation of Their Bargaining Right" to the San Ber- nardino Chapter or the Labor Relations Committee of the CCMCA, Inc. or who have not signed one of the prior collective bargaining agreements between the parties to this agreement, must full [sic] out and sign the two (2) pull out signature pages of the agreement prior to employing workmen covered by this agreement. . . DEFINITIONS: "Employers or Employer" means all employers who have signed the signature page of this agree- ment or are bound to this agreement through their signed delegation of the bargaining right to either the San Bernardino Chapter of the CCMCA, Inc., the Labor Relations Committee of the CCMCA, Inc. or the CCMCA, Inc. "Independent Employer" means any employer who is bound to this agreement solely by signing the signature page of this agreement. "Individual Employer means any employer who is bound to this agreement through delegation of his bargaining right to SBC, LRC, or CCMCA but is not a Member of the CCMCA as defined in this agreement. "Member of the CCMCA " means any employer who is bound to this agreement through delegation of his bargaining right to the' SBC, LRC, or CCMCA or has signed this agreement and in addi- tion holds membership in any of the Local Chapters of the CCMCA, Inc. ARTICLE XVI-TERM OF THIS AGREEMENT (c) The Union agrees to recognize the SBC and LRC as the exclusive representative for all employers that are Members of the CCMCA who have delegated their bargaining right to the SBC or LRC and all Individual Employers who have delegated their bargaining right to the SBC or LRC and all independent Employers who have delegated their bargaining right to the SBC and LRC through their signing of this or prior agreements who shall be listed and from time to time, as appropriate, be submitted on a written list and transmitted to the Union. It is agreed that such listed employers have empowered the SBC GARY JASPER ENTERPRISES and LRC to bind such employers to this or subse- quent collective bargaining agreements. Section 2. It is agreed that due to the terms and conditions as hereinabove provided under Section 1 of this agreement, this agreement continues in full force and effect on and after May 1, 1984, and/or expiration date of any subsequent agreements and conditions on a day to day basis until an agreement is reached to cover the terms and conditions relat- ing to the negotiations for a new agreement and shall not terminate until an impasse in negotiations arises and both parties agree that a termination of this agreement occurs at midnight of the 15th day after delivery from the Union or SBC/LRC or written notice of final termination of the Master Labor Agreement. However, this agreement cannot expire prior to May I of 1984 or May 1 of any sub- sequent year. ARTICLE XVII-AMENDMENTS TO THIS AGREEMENT Section 1. It is mutually agreed that any amend- ments to this agreement executed by and between the SBC, LRC and the Union shall be binding on the SBC, LRC, the Union and all parties signatory to or bound by this agreement and by all workmen covered by this agreement. The contract lists California Masonry, Jasper Enter- prises, and Star as employers signatory to the agreement by virtue of having "signed a `Delegation of Their Bar- gaining Right' to the Labor Relations Committee of the CCMCA, Inc." California Masonry is also listed as an employer to the agreement by virtue of having signed the page of the agreement. In September 1983 Local 20 and the San Bernardino Chapter agreed to amend the 1982-1984 agreement to exclude LRC from the agreement and to change the name of the San Bernardino Chapter effective as of 1 October 1983 from the San Bernardino Chapter of the CCMCA to the San Bernardino Chapter of the MCESCI (San Bernardino-Riverside Chapter). LRC took the posi- tion that it would agree to the amendment only if Local 20 agreed to terminate the agreement concerning the em- ployers represented by LRC and to release the LRC from certain contractual financial liabilities. Thereafter, by letter dated 28 September 1983, Local 20 notified LRC that it canceled the agreement effective 1 October 1983 concerning those employers that had signed a dele- gation of bargaining rights to LRC but "reserving those contractors that are bound by delegation of bargaining rights to SBC and/or INDEPENDENT EMPLOY- ERS"; and that it was granting a complete release to LRC from financial liabilities as demanded by LRC On 26 January 1984 negotiations commenced between Local 20 and the San Bernardino-Riverside Chapter for a successor agreement to the 1982-1984 agreement. A rep- resentative from the Executive Council was present at that and all subsequent negotiation sessions. By letter dated 10 February, Star notified CCMCA: 753 Please be advised that Star Masonry is terminating the Agreement as of April 30, 1984, and will not be signatory to any Agreement between the California Conference of Mason Contractor Associations, Inc. and any Local Unions of the Bricklayers and Allied Craftsmen International Union of America AFL- CIO. On that same date, by letter , Star also notified the Exec- utive Council. Please be advised that Star Masonry is terminating this Agreement as of April 30, 1984, and will not be signatory to any Agreement between the Executive Council of the Mason Contractors ' Exchange of Southern California, Inc. and any Local Unions of the Bricklayers and Allied Craftsmen International Union of America AFL-CIO. Copies of this letter were sent to Locals 20 and 22. On 22 February California Masonry sent separate let- ters to the Executive Council, Locals 20 and 22, stating that it was withdrawing bargaining authority from the Executive Council, Orange County Chapter, and the San Bernardino Chapter. 6 By letter dated 16 February 1984, the Executive Coun- cil notified Local 20 that the San Bernardino-Riverside Chapter represented certain named employers, including California Masonry and Jasper Associates, for collective bargaining with Local 20. In April, Local 20, the Executive Council, and the San Bernardino-Riverside Chapter reached agreement on a collective-bargaining agreement effective by its terms from 1 May 1984 through 30 April 1988 (the 1984-1988 San Bernardino agreement). This agreement provides, inter alia: This agreement is entered into this 1st day of May, 1984, by and between the San Bernardino- Riverside Chapter of the Mason Contractors Ex- change of Southern California, Inc. and Bricklayers and Allied Craftsmen, Local No. 20 of California, AFL-CIO. ARTICLE I-Area Covered Section 1. This agreement shall be binding on all employers performing work covered by this agree- ment within the jurisdiction of the union, San Ber- nardino and Riverside Counties of California with the same force and effect whether signed individual- ly or bound through delegation of bargaining right ARTICLE III-Union and MCESCI Recognition Section 1. The Mason Contractors Exchange of Southern California, Inc. and the individual employ- ees bound to this agreement hereby recognize I.U.B.A.C. Local #20 as the sole and exclusive col- 6 The name of the San Bernardino Chapter had previously been changed to the San Bernardino-Riverside Chapter 754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lective bargaining representative of all employees and persons employed to perform work covered by this agreement. Section 2. The I.U.B.A.C., Local #20 recognizes the San Bernardino-Riverside Chapter of the Mason Contractors Exchange of Southern California, Inc. as the sole and exclusive bargaining representative for their respective eligible members, present and future, and individual employers who are or who become bound by this agreement and agree that during the term of this agreement they will not ne- gotiate or enter into any agreement with such indi- vidual members of the MCESCI relative to part or all of the subject matter covered by this agreement. Section 3. This agreement shall be binding upon each and every eligible member of the Mason Con- tractors Exchange of Southern California, Inc. with the same force and effect as if this agreement were entered into by each eligible member individually. All eligible members of the MCESCI shall remain jointly and severally liable under this agreement for the term of the agreement irrespective of whether any eligible member shall resign or be suspended from the association prior to the expiration date of this agreement and such liability shall survive the termination or suspension from membership and remain in force during the term of this agreement. The parties stipulate that Respondent Star has refused to be bound by the 1984-1988 San Bernardino agreement and that Respondent Local 20 has refused to bargain sep- arately with California Masonry. C. Facts Involving the Orange County Area By letter dated 4 January 1984, the Orange County Chapter notified, Local 22:7 This letter is to serve notice that the employers represented by the Orange County Chapter of the California Conference of Mason Contractor Asso- ciations, Inc. are no longer a member of the em- ployer bargaining unit represented by the Executive Council of the Mason Contractors Exchange of Southern California, Inc. (which was formerly called the Executive Council of the California Con- ference of Mason Contractor Associations, Inc.). The Orange County Chapter of the CCMCA, Inc. does hereby serve notice of its desire to negoti- ate with your Union the terms and conditions for a new ,agreement covering employees represented by your Union. We request negotiations for either a collective bargaining agreement covering all em- ployers represented by our organization or an indi. , vidual all- employers represented by our organiza- tion or an individual agreement for each employer, whichever is the desire of your Union. This letter is to serve notice that none of the em- ployers represented by our organization will be bound to any agreement not executed by the Nego- Copies of this letter were sent to the Executive Council and members' of the Orange County Chapter tiating Committee representing the' Orange County Chapter of the CCMCA, Inc. Within thirty (30) days, the Orange County Chapter of the CCMCA, Inc. will furnish your Union with a list of the employers represented by our organization and we request the first meeting following that date to begin negotiations to cover the terms and conditions of employment for em- ployees represented by your Union effective May 1, 1984. On that same date the Orange County Chapter sent a letter to the Executive Council, the body of which reads: Enclosed is a copy of letter dated January 4, 1984, from our organization to Bricklayers Local Union #22. This letter is self-explanatory and serves notice on your-organization that the Orange County Chap- ter of the CCMCA, Inc. will negotiate direct with Bricklayers Local Union #22 for and on behalf of the employers represented by our organization. You are advised that many of the employers for- merly represented by your organization will be rep- resented by the Orange County Chapter of the CCMCA, Inc. and are not to be included in the list of employers to be represented by your organiza- tion. Between 4 January 1984 and 7 February 1984, accord- ing to the undenied testimony of John Lynch, chairman of the Orange County negotiation committee, he request- ed that Local 22 bargain separately with the Orange County Chapter. David Harrington, Local 22 business agent, refused, stating that bargaining rights had been delegated to the Executive Council. Lynch told Harring- ton they were having difficulty obtaining the delegations of bargaining rights and would be late providing the Union with a list. Harrington said to get it to him as soon as possible. On 10 January 1984 the LRC sent a memo to all mason contractors operating in the jurisdiction of Local 22, Orange County. The memo states: Enclosed is a copy of two letters signed by Jack Lynch, Chairman of the Negotiating Committee representing the Orange County Chapter of the CCMCA, Inc. It is the desire of several of the mason contractors operating in Orange County that they be represented by the Orange County Chapter of the CCMCA in the coming negotiations with ,Local #22 over terms and conditions for a new agreement effective May 1, 1984, the anniversary date of the current agreement. The present agreement is between the Executive Council of the Mason Contractors Exchange of Southern California, Inc. and Bricklayers' Local Union #22 and all employers who are presently bound by this agreement will continue to be repre- sented by the Mason Contractors Exchange unless they declare otherwise GARY JASPER ENTERPRISES Each employer has an opportunity to prior to February 1, 1984, to select the organization to rep- resent his firm in the coming negotiations. The Ne- gotiating Committee representing the Orange County Chapter will submit a list of the employers they represent to Local Union #22 on February 1, 1984.8 On or after February 1, 1984, no employer can select a different organization to represent him in negotiations without the concurrence of Local Union #22 Enclosed is an "APPOINTMENT and AU- THORIZATION of BARGAINING REPRE- SENTATIVE" for you to fill out and return in the enclosed envelope in the event you wish to be rep- resented by the Orange County Chapter of the Cali- fornia Conference of Mason Contractor Associa- tions, Inc. in the coming negotiations with Bricklay- ers' Local Union #22, Orange County. In the event you are a member of the Orange County Chapter of the CCMCA, you are not auto- matically represented by the Orange County Chap- ter unless you designate the Chapter as your repre- sentative on the enclosed "Appointment." If you wish to have the Executive Council of the Mason Contractors Exchange of Southern California, Inc. to continue as your representative in the coming ne- gotiations with Bricklayers' Local Union #22, DO NOT SIGN AND RETURN THE ENCLOSED "APPOINTMENT." On 19 January 1984 Jasper Enterprises signed the fol- lowing appointment and authorization of bargaining rep- resentative: I hereby appoint the ORANGE COUNTY CHAPTER of the California Conference of Mason Contractors Association, Inc to act as my exclusive bargaining representative for the purpose of and with the power to negotiate and enter into collec- tive bargaining agreement or agreements or individ- ual agreement on my behalf with any Local Union of the Bricklayers & Allied Craftsmen International Union of America, AFL-CIO, or any Local Union of the Laborers International Union of North America, AFL-CIO, covering my employees work- ing in California and to execute such agreements with the same force and effect as if said agreement or agreements had been agreed to and executed di- rectly by the undersigned. This authorization shall supersede and revoke any power of attorney of authorization dealing with the same subject matter that may heretofore have been given by the undersigned to any other person or as- sociation prior to this date. On 26 January 1984 CCMCA sent a memo to all em- ployers operating in Local 22's jurisdiction that states: 8 Ryan O'Brien, executive vice president of CCMCA, testified that the 1 February deadline was used to ensure that responses were received prior to 26 February when he intended to notify Local 22 as to the dele- gations 755 Jack Lynch, Chairman of the Orange County Chapter Negotiating Committee, has requested that you be sent a second "Delegation of Bargaining Right" to sign and return. This amended "Authorization" provides you with the option to either accept or reject any agreement reached between the Orange County Chapter and Local Union #22 after such agreement is reached By checking and initialing the "OPTION" you re- serve the right to review the final settlement and may either accept or reject this settlement. In the event you reject the final settlement, the Orange County Chapter will schedule individual ne- gotiations between your firm and Local Union #22 and in the event no agreement is reached between you and Local Union #22 and an impasse results, your agreement with Local Union #22 will termi- nate. Many employers have the impression that collec- tive bargaining agreements terminate on their anni- versary date. THIS IS NOT THE CASE, YOU ARE REQUIRED BY FEDERAL LAW TO BARGAIN UNTIL AN IMPASSE OR YOU WILL CONTINUE TO BE BOUND BY THE AGREEMENT AFTER THE ANNIVERSARY DATE. The Orange County Chapter can provide you with the means and opportunity to bargain inde- pendently with Local Union #22 if you so desire and has already sent the notices to the Union, the Federal and State Mediation Service and the Execu- tive Council of the Mason Contractors Exchange of Southern California, Inc. to order that this right can be exercised. The Orange County Chapter will provide Brick- layers Local Union #22 with a list of the employers represented by the Chapter and will indicate to the Union the employers who will be bound by the agreement reached by the Orange County Negotiat- ing Committee and a list of the employers who re- serve the right to accept or reject the final agree- ment. On 1 February California Masonry signed the follow- ing appointment and authorization of bargaining repre- sentative: I hereby appoint the ORANGE COUNTY CHAPTER of the California Conference of Mason Contractor Associates, Inc. to act as my exclusive bargaining representative for the purpose of and with the power to negotiate and enter into collec- tive bargaining agreement or agreements or individ- ual agreement on my behalf with any Local Union of the Bricklayers & Allied Craftsmen International Union of America , AFL-CIO, or any Local Union of the Laborers International Union of North America, AFL-CIO, covering my employees work- ing in California and to execute such agreements with the same force and effect as if said agreement or agreements had been agreed to and executed di- rectly by the undersigned 756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD This authorization shall supersede and revoke any power of attorney or authorization dealing with the same subject matter that may heretofore have been given by the undersigned td any other person or as- sociation prior to this date. OPTION. The undersigned , by checking and ini- tialing this "option," reserves the right to accept or reject any agreement or agreements negotiated and signed by and between the Orange County Chapter of the CCMCA, Inc. and any Local Union. The option was checked and initialed . By letter dated 22 February, California Masonry withdrew any and all bar- gaining authorization from the Executive Council, the Orange County, and the San Bernardino County Chap- ters of CCMCA and on that same date notified Locals 20 and 22 of such withdrawal. On 6 February 1984 Jasper Enterprises signed the same appointment and authorization of bargaining repre- sentative that was signed by California Masonry on 1 February. The option was checked and initialed. About 11 February, Lynch hand-delivered a letter dated 7 February 1984 to Local 22 that set forth the names of contractors who would be bound to any agree- ment negotiated by 'the Orange County Chapter- CCMCA. Jasper Associates was listed as an employer who would be bound. California Masonry was listed as an employer who had reserved the right to accept or refuse any agreement . On 8 or 9 March, a letter dated 27 February 1984 was hand-delivered to Local 22. This letter listed both California Masonry and -Jasper Enter- prises as having reserved the right to accept or reject any agreement negotiated by the Orange County Chap- ter Local 22 never protested the addition of Jasper En- terprises to the "accept or reject" list. On 27 January Local 22 received from the Executive Council a membership roster as of 1 January 1984. Cali- fornia Masonry was listed as a member of the Orange County Chapter. The Executive Council held two nego- tiation sessions with Local 22. The first was on 16 Feb- ruary 1984, the second on 15 March 1984 Gary Jasper, Paul Roper, and Jack Lynch, who were members of the Orange County Chapter negotiating committee, were present at the 16 February meeting. Roper and Lynch were also delegates to the Executive Council from the Orange County Chapter. Lynch was present at the 15 March meeting No agreement was reached. Thereafter, Harrington and Lynch had several discus- sions during which they attempted to reach some areas of understanding that could resolve the differences that arose during the two negotiating'sessions. On 28 March 1984 they agreed to a memorandum of understanding that Lynch was to present to the Executive Council in an effort to secure its approval He had no authority to bind the Executive Council. Harrington and Lynch agreed that if the Executive Council refused to agree to the memorandum, then Lynch would sign it on behalf of the Orange County Chapter. On 28 March 1984 Lynch presented the memorandum of understanding to the Executive Council, which took it under advisement. On 11 April 1984 after hearing noth- ing from the Executive Council, the Orange County Chapter and Local 22 signed an "Agreement For Four Year Contract May 1, 1984 Through April 30, 1984 Be- tween Bricklayers Allied Craftsmen Local Union #22 and Orange County Chapter CCMCA " Local 22 voiced no objection to the "accept or reject" status of certain employers listed in the 27 February 1984 letter from the Orange County Chapter to Local 22 Sometime later, this agreement was set forth in final form as a complete collective-bargaining agreement captioned as an agree- ment by and between the Orange County Chapter- CCMCA and Bricklayers and Allied Craftsmen No. 22 Thereafter, the Orange County Chapter took the position that all members had to be signatory to this agreement. Whereupon California Masonry resigned from the Chap- ter on 27 April 1984 and Jasper Enterprises on 26 April. The parties stipulated that Respondent Local 22 had refused to bargain separately with California Masonry and Jasper Enterprises. Conclusions There is no dispute that at some point prior to the 1984 negotiations all the employers involved here had consented to be bound by multiemployer bargaining. However, multiassociation bargaining is also involved ,and in some instances there was a switch, or attempted switch, of bargaining authority from one employer group to another Thus, critical considerations include a deter- mination as to which employer group was the bargaining representative of an employer at times material and whether the employer timely withdrew from that multi- employer bargaining unit. The law is clear. Once a multiemployer unit is estab- lished, the employer-members and the Union are bound by multiemployer bargaining, absent compliance with the rules governing withdrawal from such bargaining set forth by the Board in Retail Associates, Inc., 120 NLRB 388, 393-395 (1958). In that case, the Board stated, "While mutual consent of the union and employers in- volved is a basic ingredient supporting the appropriate- ness,of a multi-employer bargaining unit, the stability re- quirement of the Act dictates that reasonable controls limit the parties as to the time and manner that with- drawal will be permitted from an established multi-em- ployer bargaining unit" Accordingly, the Board held that prior to the date set by the contract for modifica- tion, or to the agreed-on date to commence negotiations, withdrawal can be effected only by an unequivocal writ- ten notice expressing a sincere intent to abandon, with relative permanency, the multiemployer unit, and to em- brace a different course of bargaining on an individual employer basis Once actual bargaining negotiations based on the existing multiemployer bargaining unit have begun, withdrawal can be effected only on the basis of "mutual consent" or when "unusual circumstances" are present. The Employers here contend that the Executive Coun- cil is not a multiemployer association but is an umbrella organization composed of separate multiemployer bar- gaining groups In support thereof, the Employers argue that at no time have individual employers been members of the Executive Council but rather have been members GARY JASPER ENTERPRISES of the local chapters, which have the ultimate collective- bargaining authority on behalf of their members. Fur- ther, the Employers argue, this position is supported by the Agreement and Rules governing the Executive Council that (1) state the purpose of the Executive Council in terms of the joining together of, and maintain- ing close cooperation between, various employer collec- tive-bargaining groups in an effort to establish areawide collective bargaining and uniform collective-bargaining agreements , and (2) provides at article III, section 1, that each member chapter shall retain full authority to negoti- ate and sign collective-bargaining agreements with the unions on behalf of their members in their local area. Since the Employers stipulated that the Executive Coun- cil is an association of employers, I shall treat this con- tention as relating to the existence of a multiemployer unit represented by the Executive Council for the pur- poses of bargaining. I find this argument unpersuasive Article III also pro- vides at section 6 that no chapter or regular member of a chapter shall enter into a separate working agreement with any local union, where an Executive Council bar- gaining unit exists I also reject the further argument that this position is supported by the constitution and bylaws of the Orange County Chapter-in which the employers here held membership at all material times-which states in article I, section 2(1) that one of its objects is to assume authority from members to negotiate and sign collective-bargaining agreements with unions to cover employees of members, and that the Chapter shall retain full authority in all matters concerning labor negotiations unless delegated by action of the board of directors. The establishment of a multiemployer unit requires an un- equivocal intention to be bound in bargaining by group rather than individual action. Ruan Transport Corp., 234 NLRB 241 (1978), Van Eerden Co., 154 NLRB 496 (1965) Here, contrary to the Employers' urging, I find that such intent is documented by the appointment and authorizations signed by certain employers, including Star in 1973, and the statement in the Orange County Chapter membership application that "it is understood that this automatically binds the above firm to a labor agreement negotiated by the [Executive Council]."9 Such clear and unambiguous statement of intent cannot be negated by some allegedly inconsistent or ambiguous purpose or object set forth in the governing documents of the employer organizations particularly where, as here, there is no evidence that the employers ever saw these governing documents. Buttressing the conclusion as to intent is the fact that the Executive Council has entered into a number of con- tracts on behalf of groups of employers The 1982-1984 Orange County contract was between Local 22 and the Executive Council. Also, the Executive Council is a party to the 1984-1988 San Bernardino contract Fur- ther, the requisite intent can be inferred from the fact that employers have participated for a meaningful period of time in joint bargaining negotiations and have adopted 9 I have considered and reject the Employers' argument that this state- ment is ambiguous as a statement of intent to be bound by multiemployer bargaining 757 substantially uniform contracts resulting therefrom Van Eerden Co., supra In these circumstances I find that the authority of the Executive Council to represent employ- ers in multiemployer bargaining derives from the specific delegation of bargaining rights and not from membership in any chapter. Acropolis Painting, 272 NLRB 150 (1984). 1. California Masonry is not part of the San Bernardino-Riverside multiemployer unit represented by the Executive Council On 1 January 1976 California Masonry delegated its bargaining rights to the Executive Council by signing the Orange County Chapter membership application that contains a statement of delegation At that time the Ex- ecutive Council has negotiated a single contract covering employees in San Bernardino, Riverside, Los Angeles, and Orange Counties. In 1976, after the Executive Coun- cil and the Unions had reached a deadlock in negotiating a multicounty agreement, the San Bernardino Chapter withdrew from this multiarea bargaining and requested the assistance of LRC in reaching an agreement covering employees in San Bernardino and Riverside Counties. Thereafter, until 1984, collective-bargaining contracts covering these employees were negotiated and entered into by Local 20, the San Bernardino Chapter, and LRC. In 1977 California Masonry signed an appointment and authorization of bargaining representative that appointed CCMCA as its exclusive bargaining representative and revoked all prior bargaining authorization. Respondent Local 20 contends that the revocation is not effective be- cause notice of such was not given to either the Execu- tive Council or Local 20. I find no merit in this argu- ment. The 1982-1984 contract lists California Masonry as an employer covered by the contract by virtue of having signed a delegation of its bargaining rights to LRC. It is reasonable to assume that Local 20 was familiar with the wording of such delegations In any event for 6 years Local 20 had accepted the fruits of LRC having negoti- ated agreements binding California Masonry that cov- ered employees in San Bernardino and Riverside Coun- ties. There is no evidence that the Executive Council was ever specifically notified of the 1977 delegation and rev- ocation. However, as the negotiating arm of the MCESCI, it must be inferred that the Executive Council was aware that Local 20, LRC, and the San Bernardino Chapter had reached an agreement in 1983 whereby the 1982 contract was amended to reflect the Chapter's affili- ation with the MCESCI and to release LRC, and the employers it represented, from the agreement. Thus, it must have known that California Masonry had delegated its bargaining rights to LRC. Further, by letter dated 4 January 1984, the Orange County Chapter, of which California Masonry was a member, notified Local 20, with a copy to the Executive Council, that employers represented by the Orange County Chapter are no longer members of the employer bargaining unit repre- sented by the Executive Council. By letter dated 4 Janu- ary 1984, it also notified the Executive Council that many of the employers represented by the Executive Council will be represented by the Orange County 758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Chapter, and they are not to be included in the list of employers to be represented by the Executive Council. At the very least, this put the Executive Council and Local 20 on notice that they could not rely on member- ship in the Orange County Chapter as according bargain- ing authorization to the Executive Council In these circumstances, I find that California Masonry is not bound by its 1976 delegation of bargaining rights to the Executive Council. Accordingly, I find that Cali- fornia Masonry is not a party to the San Bernardino-Riv- erside multiemployer unit represented by the Executive Council. 10 2. Star Masonry is a part of the San Bernardino- Riverside multiemployer unit represented by the Executive Council Although the 1984-1988 agreement, negotiated and ex- ecuted by the San Bernardino-Riverside Chapter, the Ex- ecutive Council, and Local 20, here called the 1984-1988 San Bernardino agreement, recites that it is between the San Bernardino-Riverside Chapter and Local 20, it is signed by both the San Bernardino-Riverside Chapter and the Executive Council, and contains a provision whereby MCESCI recognizes Local 20 as the exclusive bargaining representative of the masonry construction employees working in San Bernardino, and Riverside Counties. Star Masonry is listed as an employer signatory to the contract by virtue of having signed a delegation of its bargaining rights to the Executive Council-MCESCI. By this delegation signed in 1973, Star Masonry appoint- ed LRC, the Executive Council, and the San Diego Chapter as its exclusive bargaining representative for the purpose of, and with the power to, negotiate and enter into collective-bargaining agreements with any Bricklay- ers Local Union covering its employees working in the State of California. This delegation was not revoked by Star Masonry until 10 February 1984, after the 26 Janu- ary commencement of negotiations for a new contract. The Employers here argue, however, that the 4 Janu- ary letter from the Orange County Chapter to the Exec- utive Council constitutes a revocation of bargaining au- thority. I find no merit, in this argument That letter states, "You are advised that many of the employers for- merly represented by your organization will be repre- sented by the Orange County Chapter of the CCMCA, Inc and are not to be included in the list of employers to be represented by your organization." The specific em- ployers are not identified. I find that this is not an un- equivocal expression of Star Masonry's intent, to no longer be represented by the Executive Council in col- lective bargaining." Accordingly, I find that because ne- 10 Because the Executive Council, in fact, had no authority to bind California Masonry, and the evidence does not establish that California Masonry clothed the Executive Council with apparent authority to do so, it is immaterial that California Masonry appeared on the list sent to Local 20 of employers purportedly represented by the Executive Council See Acropolis Painting, supra 11 It should be noted that the issue discussed above as to the effect of this letter on the representative status of the Executive Council with regard to California Masonry dealt with the question of notice, not revo- cation California Masonry has specifically revoked any bargaining au- thority it had granted to the Executive Council Star Masonry never timely revoked such authority gotiations had already commenced when Star Masonry attempted to withdraw, from multiemployer bargaining, the attempted withdrawal was untimely. Retail Associates, supra. I therefore find that Respondent Star Masonry is a part of the San Bernardino-Riverside multiemployer unit represented for purposes of bargaining by the Executive Council and is therefore covered by- the- 1984-1988 San Bernardino-Riverside agreement. 3. California Masonry and Jasper Enterprises are not members of any Orange County multiemployer unit represented by the Executive Council Local 22 contends that California Masonry's and Jasper Enterprises' delegation of bargaining rights to the Executive Council was never effectively revoked since neither was timely, it never received notice of the revo- cation, and further Jasper Enterprises' presence at the first Executive Council-Local 22 negotiation session on 16 February and payment of dues' 2 was inconsistent with the revocation. However, even assuming that the revocations did not effect timely and/or adequate with- drawals, the evidence establishes that Local 22 acqui- esced in their designation of the Orange County Chapter as their bargaining representative. Thus, after negotiations between the Executive Coun- cil and Local 22 broke down on 15 March 1984, Local 22 negotiated a collective-bargaining agreement with the Orange County Chapter Prior thereto, by letter dated 7 February, the Orange County Chapter notified Local 22 that California Masonry had delegated its bargaining rights to the Orange County Chapter, but had reserved the right to accept or refuse any agreement reached with Local 22. On 8 or 9 March 1984, the same notification was given to Local 22 with regard to Jasper Enterprises. At no time did Local 22 protest or reject the "accept or refuse"'status of these employers. In these circumstances, I find that both California Masonry and Gary Jasper En- terprises evinced an intent not to be bound by multiem- ployer bargaining and that Local 22 acquiesced there. Accordingly, I find that California Masonry and Jasper Enterprises are not part of any multiemployer unit repre- sented for purposes of bargaining by the Executive Council. Walt's Broiler, 270 NLRB 556 (1984). 4. The alleged violations of Section 8(a)(5) The amended consolidated complaint alleged that Star violated Section 8(a)(5) of the Act by refusing to exe- cute, and agree to be bound by, the collective-bargaining agreement negotiated by the Executive Council and Local 20 covering employees performing masonry work in San Bernardino and Riverside Counties. Although the parties stipulated that Star has refused to be bound by the agreement, Star contends that no violation, can be found because the General Counsel has failed to establish that Local 20 is the majority representative of its em- 12 Because individual employers were not members of the Executive Council, the meaning of the ledger sheets reflecting dues payments is un- clear In some instances the payments are referred to as "local dues" which may indicate the collection of dues for the local chapters Howev- er, in view of my conclusions below, it is unnecessary to resolve this question GARY JASPER ENTERPRISES 759 ployees Normally, this contention would have no merit because it is well settled that the existence of a collec- tive-bargaining agreement raises an irrebuttable presump- tion that the Union was the majority representative at the time the agreement was executed and that its majori- ty continues throughout the term of the contract. How- ever, the 1984-1988 San Bernardino agreement covers employees in the construction industry and, because Sec- tion 8(f) of the Act13 permits an employer and a union to entet into a collective-bargaining agreement at a time when the union does not represent a majority of the em- ployer's employees, no presumption of majority status flows from the contract. NLRB v. Iron Workers Local 103, 434 U.S. 335, 345 (1978); R.• J. Smith Construction Co., 191 NLRB 693 (1971). An employer's duty to honor such a contract is contin- gent on the union attaining majority status among em- ployees in a permanent, stable work force employed to work on a multisite basis or, if no stable work force is employed, among employees employed at a particular jobsite Iron Workers Local 103, supra; Dee Cee Floor Covering, 232 NLRB 421 (1977); Precision Striping, Inc., 245 NLRB 169 (1979), Acme Marble & Granite Co., 271 NLRB 908 (1984). The burden is on the General Counsel to establish that the union enjoyed majority status at the time the contract was executed or that it later achieved such status. Stine Scovil Construction Co., 269 NLRB 465 (1984) The General Counsel has not met this burden.14 Accordingly, I find that the General Counsel has not es- tablished by a preponderance of the evidence that Star violated Section 8(a)(5) and (1) of the Act as alleged in the complaint. 5. The 8(b)(3) allegations The amended consolidated complaint alleged that Local 20, by refusing to bargain separately with Califor- nia Masonry, and Local 22, by refusing to bargain sepa- rately with California Masonry and Jasper Enterprises, has violated Section 8(b)(3) of the Act. The parties stipu- late that Locals 20 and 22 did refuse to bargain separate- ly with these employers as alleged in the complaint. However, again the General Counsel has failed to 13 Sec 8(t) provides It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members (not estab- lished, maintained, or assisted by any action defined in section (a) of this Act [subsection (a) of this section] as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of section 9 of this Act [section 159 of this title] prior to the making of such agreement 14 No evidence was adduced concerning the majority status of either Locals 20 or 22 in any of the appropriate units here adduce evidence to establish the requisite majority status. I therefore find that the General Counsel has not estab- lished that either Locals 20 or 22 has violated Section 8(b)(3) of the Act. CONCLUSIONS OF LAW 1. California Masonry, Jasper Enterprises, Star Mason- ry, the Executive Council, and the Orange County Chap- ter, each is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Locals 20 and 22 each is a labor organization within the meaning of Section 2(5) of the Act. 3. California Masonry is not bound to the 1984-1988 San Bernardino agreement. - 4. Respondent Star Masonry is part of the San Bernar- dino-Riverside multiemployer unit represented for pur- poses of bargaining by the Executive Council and is therefore bound by the 1984-1988 San Bernardino agree- ment contingent on Local 20's demonstration of its ma- jority status among Star's employees in a stable work force; or, if Star does not maintain a stable work force in San Bernardino and Riverside Counties, at each of Star's jobsites in the counties at which Local 20 achieves ma- jority status. 5 California Masonry and Jasper Enterprises are not part of any Orange County multiemployer unit repre- sented for purposes of bargaining by the Executive Council. 6. In the absence of a showing that Local 20 represent- ed a majority of California Masonry's employees and of Star's employees in San Bernardino and Riverside Coun- ties, the General Counsel has failed to establish that Re- spondent Local 20 and Respondent Star have engaged in unfair labor practices as alleged in the amended consoli- dated complaint. 7. In the absence of a showing that Local 22 represent- ed a majority of the employees of California Masonry and of Jasper Enterprises in Orange County, the General Counsel has failed to establish that Respondent Local 22 has engaged in unfair labor practices as alleged in the amended consolidated complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edls ORDER It is ordered that the amended consolidated complaint is dismissed in its entirety. 15 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