Appendix — Shopmen's Local Union No. 455, International Ass'n of Bridge, Structural & Ornamental Iron Workers v. National Labor Relations Board
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Supreme Court, U.
FILED
* DEC 6 1978
Supreme Court of the Perit eve B d
October Term, 1978
No. .. 7 0 8 N. =902
SHOPMEN’sS LOCAL UNION No. 455, INTERNATIONAL As-
SOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL
IRON WoRKERS, AFL-CIO,
Petitioner,
—
NATIONAL LABOR RELATIONS BOARD,
\ Respondent,
and
INDEPENDENT ASSOCIATION OF STEFL FABRICATORS, INC.,
etc., et al.,
Respondents,
- and
LOCAL 810, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
AFL-CIO,
Respondent.
DSB
APPENDIX TO PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
— —!öã ] ͤ —. ê 8 .ůßö«⁵X—.ly —„k WVNö
RICHARD DORN
Attorney for Petitioner
880 Madison Avenue
New York, N.Y. 10017
(212) 867-2100
Of Counsel:
SIPSER, WEINSTOCK, HARPER, DoRN & LEIBOWITZ
880 Madison Avenue
New York, New York 10017
—
— —
—
TABLE OF CONTENTS
Judgment of United States Court of Appeals for
the Second Circuit, Filed September 6, 1978 1a
Opinion of Judge Gurfein, United States Court of
PAGE
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Judgment
(ORIGINAL)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 77-4198
OO ͤůꝛ5rvrR0;JK r
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
—and—
SHOPMEN’S LOCAL UNION No. 455, INTERNATIONAL Asso-
CIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON
WorKERs, AFL-CIO, Intervenor,
—
INDEPENDENT ASSOCIATION OF STEEL FABRICATORS, INC.;
ACHILLES CONSTRUCTION Co., INC.; GREENPOINT ORNA-
MENTAL AND STRUCTURAL IRON Works, INC.; HEUSER
IRON WorKS, INC.; IKENSON IRON Works, INC. : ; KUNO
STEEL PRODUCTS Corp. ; LONG ISLAND STEEL PRropucts
Co.; MASTER IRON CRAFT CorP.; MELTO METAL Prop-
UCTS Co., INC.; MOHAWK STEEL FABRICATORS, INC.;
THE PEELE CoMPANY: ROMAN IRON Works, INC.;
SPIGNER AND SONS STRUCTURAL STEEL Co., INC.; 8.
CERVENKA AND SONS, IN c.; PAXTON METALCRAFT Corp.,
DIVISION OF APEX INDUSTRIES, INC.; KOENIG IRON
Works, INC.; TROJAN STEEL CorP.; G. ZAFFINO AND
SONS, INC.; ROMA IRON WORKS, INC.; and SHOPMEN’S
LOCAL UNION No. 455, INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS,
AFL- clo, Respondents.
—and—
LOCAL 810, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
AFL-CIO, Intervenor.
——— i —
Before: FRIENDLY, GURFEIN and MESKILL, Circuit J udges.
2a
Judgment
THIs CAUSE came on to be heard upon the application
of the National Labor Relations Board for the enforce-
ment of a certain order issued by it against the Re-
spondents, Independent Association of Steel Fabricators,
Inc., New York, New York, and its Employer-Members
(listed in the caption hereof), their officers, agents, suc-
cessors, and assigns, and Respondent Shopmen’s Local
Union No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO, New
York, New York, its officers, agents, and representative
on August 11, 1977. The Court heard argument of
respective counsel on April 10, 1978, and has considered
the briefs and transcripts of record filed in this cause.
On June 30, 1978, the Court, being fully advised in the
premises handed down its opinon granting in part and
denying in part enforcement of the Board’s said order.
In conformity therewith, it is hereby
ORDERED AND ADJUDGED by the Court that:
A. Respondent-Association its officers, agents, suc-
cessors and assigns, shall:
1. Cease and desist from:
(a) In any manner assisting, instructing or other-
51 encouraging its employer-members to interfere with,
in or coerce their employees in the exereise of the
employees’ rights under the National Labor Relations
Act by supporting or assisting Local 810, or any other
labor organization, in derogation of an existing valid
bargaining relationship with another labor organization.
(b) In any other manner assisting or contributing
financial or other support to Local 810, or any other labor
organization. .
(c) In any like or related manner interfering with,
restraining or coercing employees in the exercise of their
rights guaranteed in Section of the Act.
— —
— 2 wç—— —
3a
Judgment
2. Respondents Greenpoint Ornamental and Struc-
tural Iron Works, Inc., Long Island Steel Products Co.,
Inc., Mohawk Steel Fabricators, Inc., Paxton Metalcraft,
Corp., Melto Metal Products, Co., and Roman Iron Works,
Inc., their officers, agents, successors and assigns shall
cease and desist from:
(a) Recognizing Local 810 as the bargaining rep-
resentative of any of their production and maintenance
employees, unless and until said labor organizations shall
have been certified by the National Labor Relations Board
as the exclusive representative of such employees.
(b) Giving effect to their collective-bargaining
agreements with Local 810, or to any modification ex-
tension supplemental renewal thereof, or to ‘any super-
seding contracts wtih Local 810, unless and until said
organization shall have been certified by the National
Labor Relations Board.
8. Respondent Long Island Steel Products Co., Inc.,
shall cease and desist from:
(a) Urging or soliciting its employees to join Local
810 or to abandon Local 455.
(b) Threatening to close its business unless its
employees abandon Local 455 or join Local 810.
(c) Informing its employees that it will never sign
a contract with Local 455.
(d) Threatening its employees with discharge and
other reprisals in order to induce them to support or join
Local 810 or to abandon Local 455.
(e) Threatening its employees with discharge and
other reprisals in order to induce them to support or join
Local 810 or to abandon Local 455.
(f) Urging or encouraging its employees to go to
the offices of Local 810, offering to transport them to said
4a
Judgment
offices, transporting them to Local 810 offices, or par-
ticipating or remaining present at Local 810’s offices as
their employees are asked to join or support Local 810
by an agent of Local 810.
4. Respondent Greenpoint Ornamental Iron Works,
Inc., shall cease and desist therefrom:
(a) Warning or directing its employees to refrain
from becoming or remaining members of Local 455 or to
refrain from giving any assistance or support to Local
455.
(b) Threatening its employees with discharge or
other reprisals if they become or remain members of
Local 455 or if they give any assistance or support to
Local 455.
(c) Warning or advising its employees or employ-
ees of other Employers engaged in commerce that it
would never sign a contract with Local 455 or that it
38 close its plant before signing a contract with Local
455.
(d) Urging or encouraging its employees to go to
Local 810's offices or offering to transport the said em-
ployees to Local 8108 offices.
(e) Urging or soliciting its employees to join Local
or or threatening them with discharge if they did not
0 80.
(f) Promising its employees improvements in their
working conditions to induce them to abandon Local 455
and to join and support Local 810.
5. Respondent Roma Iron Works, Inc., shall cease
and desist from:
(a) Threatening its employees with discharge and
plant closure if its employees continued to support or
assist Local 455.
5a
Judgment
(b) Informing its employees that it intended to
sign a contract with Local 810, and would never sign a
contract with Local 455. 8
N
(e) Informing its employees that it wanted an-
other union because of the strike called by Local 455 or
encouraging its employees to join Local 810.
(d) Requesting its employees to accompany it
the offices of Local 810, and accompanying them to
810’s offices or remaining present as its employees are
asked to support or join Local 810 by an agent of Local
810.
6. Respondent Paxton Metalcraft Corp., shall cease
and desist from:
(a) Urging or encouraging its employees to sup-
port Local 810 or to abandon Local 455.
(b) Informing its employees it signed a contract
with Local 810 or that it will not deal with, recognize,
bargain or sign a contract with Local 455.
7. Respondent Trojan Steel Corp., shall cease and
desist from:
(a) Threatening its employees with discharge un-
less they abandon Local 455.
(b) Informing its employees it would never sign a
contract with Local 455.
8. Respondent G. Zaffino and Sons, Inc., shall cease
and desist from:
(a) Offering to transport its employees to the
offices of Local 810, transporting employees to the office
of Local 810 or remaining present or participating when
its employees were asked to join or support Local 810 by
agents of Local 810.
6a
Judgment
(b) Threatening its employees with plant closure
and other reprisals unless they abandon Local 455 and
join or support Local 810.
(c) Urging or encouraging its employees to sup-
port or join Local 810 or to abandon Local 455.
B. The Respondent-Association and the named Re-
spondent-Employers shall take the following affirmative
action necessary to effectuate the policies of the Act:
1, Respondents Greenpoint Ornamental and Struc-
tural Iron Works, Inc., Long Island Steel Products Co.,
Inc., Mohawk Steel Fabricators, Inc., Paxton Metalcraft
Corp., Melto Metal Products Co., Inc. and Roman Iron
Works, Inc., shall reimburse all present and former em-
ployees for all moneys unlawfully extracted from the said
employees for initiation fees, dues, and assessments under
their respective contracts with Local 810, together with
interest thereon at the rate of 6 percent per annum.
2. The Respondent-Association, Greenpoint Orna-
mental and Structural Iron Works, Inc., Long Island
Steel Products Co., Inc., Mohawk Steel Fabricators, Inc.,
Paxton Metalcraft Corp., Melto Metal Products Co., Ro-
man Iron Works, Inc., Roma Iron Works, Ine., Trojan
Steel Corp., and G. Zaffino and Sons, Inc. shall post at
their places of business and plants located at various
places in New York City, and its environs, at places
where notices to members or employees, as the case may
be, are customarily posted, copies of the applicable notices
attached hereto. In addition to posting in its places of
business, the Respondent-Association shall mail a copy
of its notice to each employer who was a member of the
Association during October or November 1974, and to
each employee of such employers. Copies of said notices,
on forms provided by the Regional Director for Region
29, after being duly signed by the various Respondents’
Ta
Judgment
representatives, shall be posted, or mailed, by the respec-
tive Respondents immediately upon receipt thereof, and
those posted shall be retained by them for 60 consecutive
days thereafter in conspicuous places, including all places
where notices to employees or members are customarily
posted. Reasonable steps shall be taken by Respondents
to insure that said materials are not altered, defaced, or
covered by any other material.
8. Respondent-Association and each Respondent-Em-
ployer shall separately notify the Regional Director for
Region 29, in writing, within 20 days from the date of
this Order, what steps each Respondent has taken to
comply herewith.
It is further ordered that the complaint herein against
the Respondent-Association and the individual Respon-
dent-Employers shall be, and it hereby is, dismissed
insofar as it alleges violations of the Act not found.
/8/ MuRRAY I. GURFEIN
Judge, United States Court of
Appeals for the Second Circuit
/s/ THOMAS J. MESKILL
Judge, United States Court of
Appeals for the Second Circuit
FILED: September 6, 1978
8a
Opinion of Gurfein
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 850—September Term, 1977.
(Argued April 10, 1978 Decided June 30, 1978.)
Docket No. 77-4198
nn 2 —
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
and
SHOPMEN’S LOCAL UNION No. 455, INTERNATIONAL ASSO-
CIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL
IRON WoRKERS, AFL-CIO, Intervenor,
—against—
INDEPENDENT ASSOCIATION OF STEEL FABRICATORS, INC.;
ACHILLES CONSTRUCTION Co., IN.; GREENPOINT
ORNAMENTAL AND STRUCTURAL IRON Works, INC.;
HEUSER IRON Works, INC.; IKENSON WorRKS, IN.;
KUNO STEEL PRODUCTS CorP.; LONG ISLAND STEEL
PRODUCTS CorP.; LONG ISLAND STEEL Propucts Co.;
MASTER IRON CRAFT CoRP.; MELTO METAI. PRODUCTS
Co., INC.; MOHAWK STEEL FABRICATORS, INC.; THE
PEELE COMPANY; ROMAN IRON Works, INC.; SPIGNER
AND SONS STRUCTURAL STEEL Co., INC.; S. CERVENKA
AND Sons, {NC.; PAXTON METALCRAFT CorP.; DIVISION
OF APEX INDUSTRIES, INC.; KOENIG IRON Works, INC. ;
TROJAN STEEL CORP.; G. ZAFFINO AND Sons, INC.;
ROMA IRON WoRKS, INC., Respondents,
and
LOCAL 810, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMER-
ICA, AFL-CIO, Intervenor,
um —
FRIENDLY, GURFEIN and MESKILL,
Circuit Judges.
Before:
9a
Opinion of Gurfein
Application for enforcement of an order against a
multi-employer bargaining association and certain of its
members arising out of a strike by production and main-
tenance employees represented by Local 455, AFL-CIO.
The Court of Appeals held: (1) substantial evidence
supported the finding that the Association and certain
named respondents committed unfair labor practices by
attempting to assist Local 810, IBT, to supplant Local 455
as the bargaining representative of their employees; (2)
the Board’s finding that no impasse existed when a
majority of members unilaterally withdrew from the
Association was unsupported by the record; (3) certain
employers, by executing contracts with Local 810 before
giving notice of withdrawal from the Association, were
guilty of a refusal to bargain; (4) employers who law-
fully withdrew were nevertheless presumptively obligated
to negotiate with Local 455 but may rebut the presump-
tion by introducing evidence of a good-faith doubt as to
Local 455’s majority sta as; and (5) the Board was with-
out power to hold those employers constituting a majority
of the Association who had withdrawn bargaining author-
ization to be bound by an agreement negotiated by a
remaining minority.
Enforcement granted in part, denied in part.
A — —
STANDAU E. WEINBRECHT, National Labor Re-
lations Board, Washington, D.C. (John S.
Irving, General Counsel, John E. Higgins,
Jr., Deputy General Counsel, Carl L. Taylor,
Associate General Counsel, Elliott Moore,
Deputy Associate General Counsel, National
Labor Relations Board, Washington, D.C.,
of counsel), for Petitioner.
1 SSIS BN NORTON ren NDEI NEES | ES cc cr
10a
Opinion of Gurfein |
STANLEY ISRAEL, New York, N.Y. (Bluestone,
. Kliegman & Israel, New York, N. V., of
counsel), for Respondents except Heuser
Iron Works, Spigner & Sons, and Local 455.
BELLE Harper, New York, N.Y. (Sipser, Wein-
stock, Harper, Dorn & Leibowitz, New York,
N.Y., of counsel), for Intervenor Local 455.
RoBERT M. ZISKIN, Great Neck, N.Y. (Mirkin,
Barre, Saltzstein & Gordon, P.C., and
Robert M. Saltzstein, Great Neck, N.Y., of
counsel), for Intervenor Local 810.
GURFEIN, Circuit Judge:
The NLRB petitions for enforcement on an order
issued against a multi-employer bargaining group, the
Independent Association of Steel Fabricators, Inc. (‘‘Asso-
ciation”), and eighteen of its employer members who are
part of the steel fabricating and erecting industry in the
metropolitan New York area. The board found that the
Association and certain of the named members had com-
mitted unfair labor practices by unlawfully attempting to
assist the Sheet Metal, Alloys and Hardware Fabricators
and Warehousemen, Local 810, International Brotherhood
of Teamsters (“Local 810”) to supplant Shopmen’s Local
Union 455, International Association of Bridge, Struc-
tural and Ornamental Workers, AFL-CIO (“Local 455”)
as representative of the members’ production and main-
tenance employees. The Board found further that certain
of the named members of the Association had violated
the National Labor Relations Act by unilaterally with-
drawing bargaining authorization from the Association
during negotiations with Local 455 and by declining to
execute an agreement negotiated by five members remain-
lla
Opinion of Gurfein
ing in the Association. Certain respondents were also
held to have unlawfully executed contracts with Local 810
at a time when they were obligated to bargain with Local
455. .
THE HISTORY OF THE CONTROVERSY
Before 1975, some employers in the steel construction
and fabrication industry in metropolitan New York whose
employees were represented by Local 455 had bargained
with that union as members of a multi-employer associa-
tion, Allied Building Metal Industries, Inc. (Allied“).
Other employers, including all of respondents here in-
volved, had negotiated individual independent contracts
with Local 455. Although the wage and employee benefit
funds contribution provisions were essentially the same
for all industry employers, a number of differences be-
tween the independent standard contract and the Allied
contract had evolved over the course of successive negotia-
tions. When the existing contracts expired on July 1,
1975, there were some fifty-six differences between the
individual contracts and the Allied contract concerning
1 Local 455 also represented employees of various New York
manufacturers of metal and wire products who bargained through
the Wire Works Manufacturers Association. In a companion case
to this one, the NLRB petitions for enforcement of its order
against one member of that Association, Acme Wire Works, Inc.,
based on Acme’s refusal to execute a contract negotiated between
Local 455 and the Wire Works Manufacturers Association, N.L.R.B.
v. Acme Wire Works, Inc., Dkt. No. 77-4149 (2d Cir. June 30,
1978). In an opinion filed herewith, we grant enforcement.
In negotiating with the independents, the union had pre-
pared stipulations proposing changes in the previous standard
independent contract. Usually the stipulations submitted to the
independents had specified the wages and benefits for the first
year of the contract and had provided that wage and benefit pro-
visions for the second and third years would match those nego-
tiated with Allied. The Allied settlement had also governed the
amounts that the independent employers would contribute to jointly
administered health, welfare, pension and fringe benefit funds.
12a
Opinion of Gurfein
matters such as overtime pay and contract coverage of
plant clericals, almost all of which worked to the advan-
tage ( the Allied members who were in competition with
the independents.
In early 1975, before the individual contracts expired,
these fifty-odd disparities, coupled with the depressed
state of the construction industry, impelled twenty-five
employers having standard independent contracts with
Local 455 to form a trade association, the Independent
Association of Steel Fabricators. One of the Association’s
primary functions was to negotiate with Local 455 and
other unions, with the ultimate objective of achieving
parity with Allied members. On June 10, the Associa-
tion furnished Local 455 with bargaining authorization
from thirty-two employers and the union subsequently
recognized the new Association as bargaining agent for
all but four of those employers."
Bargaining between Local 455 and the Association
occurred in three phases: (1) four sessions between June
10 and July 1, the date the contracts expired and union
employees went on strike; (2) four or five sessions be-
tween late August and early October; and (3) a single
meeting on January 14, 1976. There was a hiatus in
negotiations between July 1 and late August and again
between October and mid-January.
In the four bargaining sessions in June, discussion
focused on the Association’s interest in eliminating the
Local 455 objected to the inclusion of Balfour and Company,
Esco Iron, Penner Company and Weatherguard Services on grounds
that it had already commenced negotiations with those companies
on an individual basis. Balfour, Esco and Penner subsequently
signed standard independent contracts with Local 455; Weather-
guard went out of business or was absorbed by another company
having a contract with Local 455.
18a
Opinion of Gurfein
fifty-six disparities between the individual contracts and
the Allied contract. The union failed to present any
specific wage or fund contribution proposals until the final
June 30 meeting. At that meeting, Local 455 President
Colavito advised the Association that the union was seek-
ing a 15% wage increase and 5% fund increase from
Allied but did not address the fifty-six disparities. The
Association countered with a draft contract based on the
previous Allied contract which eliminated the disparities
mentioned and included a wage increase. Colavito re-
jected the proposed draft as totally unacceptable.
On the next day, July 1, 1975, Local 455 struck all
employers who had not signed new contracts. At the same
time, it circulated a proposed stipulation reducing its
requested wage increase from 15 to 10% and modifying
certain other demands. On the basis of that proposal, the
union negotiatetd settlements with certain independent
non-affiliated employers and one Association member,
Dextra, during the summer of 1975. There were no
further meetings between the Association and the union
until late August.
During the hiatus in negotiations, the Association
learned that one of its members, Dextra, had consum-
mated a collective bargaining agreement with Local 455.
Upon the ground that the By-Laws of the Association
required six months advance notice of a member’s resigna-
tion, the Association petitioned the New York Supreme
Court for a temporary injunction to prevent Dextra’s
resignation, and its entry into an inividual collective
bargaining agreement with the union. In addition, the
Association filed an unfair labor practice charge with the
Board, alleging an intent on the part of Local 455 to
destroy the multi-employer bargaining unit in violation of
$§8(b)(3) and 8(b)(1)(B) of the Act, 29 U.S.C.
§§ 158(b) (3), 158 (b) (1) (B). The state court declined
to grant preliminary relief and the NLRB Region 2
14a
Opinion of Gur fein
Director issued a no-action letter dated November 21,
1975, in which he stated that, as of June 30, 1975, *
legitimate impasse Was reached” anv that therefore
Dextra was entitled to negotiate wi the union on an
individual basis.“ f
Local 455 and the Association met once in late August
and sporadically in September and October under the
auspices of the State Mediation Service. At the late
August negotiating session, Local 455 formally presented
the Association with its July proposal, which it had also
presented to Allied. Since the union had made no con-
cessions over the course of the negotiations from August
through October concerning the fifty-six disparities, the
parties made little progress. Several members of the
Association, Atwater, North Shore, and Charla Iron
Works, withdrew during this period with the consent of
Local 455.° —
In October, the Association’s labor relations adviser
Brickman indicated at an open meeting of the Association
that there might be other unions interested in represent-
ing its members’ employees. Under circumstances to be
discussed more fully below, Local 810 of the Teamsters
contacted certain respondents and their employ es and,
¢ Respondents’ Exhibit 8.
o The union expressly acquiesced in the withdrawals by Dextra
in August and Atwater in October or November but filed charges
protesting the withdrawals by Charla and North Shore Fabricators.
The Regional Director declined to issue a complaint in either case
on finding that the union had agreed to negotiate with Charla on
a separate basis after its withdrawal in August and to negotiate
with North Shore after its withdrawal in September. Local 455’s
determination to ‘file charges after having initially agreed to
bargain separately is perhaps explained by the fact that Local 819,
IBT, filed petitions requesting elections among Charla’s and North
Shore’s production and maintenance employees shortly after those
two companies had withdrawn from the Association.
15a
Opinion f Gurfein
between November of 1975 and February of 1976, nine
members of the Association signed collective bargaining
agreements with Local 810.“
Local 455 finally reached a settlement with Allied in
early January 1976. Thereafter, on January 14, Local 455
met with the Association’s negotiating committee and
offered it the same basic wage and fund settlement that
had been reached with Allied, but with the other provi-
sions of the former standard independent contract remain-
ing intact. Again there was no offer by Local 455 to
eliminate the disparities. The Association countered with
an offer to recommend to its membership the precise con-
tract negotiated with Allied. Colavito categorically refused
and the meeting ended.
Two days later, on January 16, the Association wrote
to the union that nineteen of its members had withdrawn
bargaining authorization from the Association.’ The union
o These employers were: Roman Iron Works (November 18) ;
Greenpoint Ornamental (November 20); Paxton Metalcraft (De-
cember 5); Melto Metal Products (December 22); Long Island
Steel (January 6); Mohawk Steel (January 9); Master Iron Craft
(January 28); Koenig Iron Works (January 30); Cervenka and
Sons (February 17). ox
The employers listed were Achilles Construction, Bay Iron,
Esco Iron, Greenpoint Ornamental, Heuser Iron, Ikenson Iron,
Koenig Iron, Kuno Steel, Long Island Steel, Master Iron Craft,
Melto Metal, Mohawk Steel, Paxton Metalcraft, Peele Company,
Roman Iron Works, Spigner and Sons, Trojan Steel, Weatherguard
Service, and Zaffino and Sons. Two of these employers, Esco Iron
and Weatherguard Service, were not made respondents in this pro-
ceeding because Local 455 had never considered them part of the
Association; see note 3 supra. Bay Iron was also not made a
party. In addition to the other sixteen withdrawing employers,
two members of the Association, who did not sign the January 16
letter are named as respondents herein, Cervenka and Sons which
signed a contract with Local 810 in February of 1976, and Roma
Iron Works which signed with neither Local 810 nor Local 455
but which allegedly rendered unlawful assistance to Local 810.
16a
Opinion of Gurfein
received the letter on January 19. By letter dated January
20, Colavito informed the Association that the union did
not consent to the withdrawals. He insisted further that
any agrement worked out between the union and the
Association would be binding on the withdrawing mem-
bers. By the time the union was notified of the with-
drawals through the January 16 letter, six member
employers had already signed agreements with Local 810.
Several days later, on January 23, the union met at
the State Mediation Board with three employers who had
not withdrawn. They made it clear to the union nego-
tiator that they were not authorized to speak on behalf
of the Association. Colavito responded that, as far as he
was concerned, the members present did represent the
Association. After all-day negotiations, the parties
reached agreement on a general stipulation but deferred
signature pending resolution of certain problems unique
to particular employers. At two meetings in late January,
five employers signed the January 23 stipulation. Al-
though they refused to sign on behalf of the Association,
they added to their signatures, at Colavito’s insistence,
that they were members of the Association.
During the next two months, while the strike continued
against non-signatories, Local 455 sent two sets of letters
to the employers who had withdrawn from the Associa-
tion, one requesting them to implement the agreement
represented by the January 23 stipulation and another
requesting reinstatement of the striking employees. Of
the nineteen employers who had withdrawn, two, Trojan
Steel and Heuser Iron, did execute agreements identical
to the January 23 stipulation and reinstated their em-
ployees. The seventeen other employers who had with-
drawn by letter received January 19 fall into three
classes: (1) those who had signed with Local 810 before
17a
Opinion of Gurfein
January 19; (2) those who signed with Local 810 only
after the January 19 notice; and (8) those who signed
with neither Local 455 nor Local 810.“
THE BOARD’s FINDINGS
The preceding facts give rise to four separate charges
of unfair labor practices by Local 455 against the respon-
dent Association and the named employers, as well as a
charge filed by Local 810 against Local 455 alleging
various acts of violence and unlawful coercion. The four
charges, consolidated into a single amended complaint,
were heard together with the Local 810 counter-charge
before an Administrative Law Judge. His principal find-
ings of fact and conclusions of law were adopted by the
Board in a decision dated August 11, 1977.° They were
essentially as follows:
(1) By soliciting their employees to abandon Local
455 and join Local 810, certain respondent em-
ployers and the respondent Association had en-
gaged in unfair labor practices within the meaning
of §§ 8(a) (1), (2), and (5) of the Act;
The employers falling into each category are listed in notes
27-29 infra.
The Board’s decision is reported at 231 N.L.R.B. No. 31. In
adopting the decision of the Administrative Law Judge, the Board
noted that it did not rely on the Administrative Law Judge’s
conclusion that withdrawal of authorization to bargain of itself
constituted a violation of § 8(a) (5) of the Act. Rather, the Board
took the position that untimely withdrawal followed by the em-
ployer’s refusal to acquiesce in the union’s demand that bargaining
continue in the multi-employer unit together formed the basis for
a §8(a)(5) refusal to bargain. The Board also disapproved the
Administrative Law Judge’s intimation that the unfair labor prac-
tices of the Association and its members contributed to the finding
of untimely withdrawal. The Board concluded that withdrawal
would have been untimely and ineffective even if there had been
no unfair labor practices.
10 These employers were: Greenpoint, Paxton, Long Island,
Master, Roma, Zaffino, and Trojan.
18a
Opinion of Gurfein
(2) By threatening to close their plants and/or
discharge their employees in order to induce them
to join Local 810, certain respondent employers
had violated § 8 (a) (1) of the Act;
(8) By withdrawing from multi-employer bargain-
ing and by refusing to acquiesce in the union’s
demand that they execute the January 23 agree-
ment, the Association and respondents (except for
Trojan and Heuser) violated and were violating
$§ 8(a) (5) and (1) of the Act;
(4) By discharging their employees for supporting
Local 455 and refusing to reinstate them upon
their unconditional offer to return to work, respond-
ent employers (except for Trojan and Heuser)
had violated and were violating §§ 8 (a) (3) and
(1) of the Act.
As to the counter-charge, the Administrative Law Judge
found:
By blocking ingress to respondent employer's plant,
threatening to inflict physical harm on respondent's
employees, and coercively photographing employees
as they crossed Local 455 picket lines, Local 455
had violated and was violating § 8 (b) (1) (A) of
the A
u These employers were: Greenpoint, Roma, Trojan, Long
Island, and Zaffino.
#2 Section 8(b) (1) (A), 29 U.S.C. 5 158 (b) provides that:
“(b) It shall be an unfair labor practice for a labor or-
ganization or its agents—
“(1) to restrain or coerce (A) employees in the exercise
of the rights guaranteed in section 157 of this title....”
The Board does not seek enforcement of that portion if its order
issued against Local 455 since the union has voluntarily complied
with its provisions.
19a
Opinion of Gurfein
THE ORDER OF THE BOARD
In ordering the employers to cease and desist from the
above unfair labor practices, the Board ordered inter alia
that: (1) all members (except Trojan and Heuser) must
implement the January 23 collective bargaining agreement
and reinstate all striking employees; (2) all employers
(except Roma Iron Works and Cervenka and Sons) must
cease withholding authorization from the Association to
bargain collectively and to execute an agreement on their
behalf with Local 455; (3) all employers who had nego-
tiated collective bargaining agreements with Local 810
must cease recognition of Local 810 as the bargaining
representative of their production and maintenance em-
ployees and must cease giving effect to the collective bar-
gaining agreement with Local 810 or any renewal thereof,
unless and until Local 810 has been certified by the Board
as the exclusive bargaining agent of their employees.
I
ASSISTANCE TO LOCAL 810
A. Individual Employer Assistance to Local 810 as a
Violation of Sections 8(a)(1) and (2)
Section 8 (a), 29 U.S.C. § 158 (a), of the NLRA pro-
vides :
“(a) It shall be an unfair labor practice for
an employer—
“(1) to interfere with, restrain, or coerce em-
ployees in the exercise of the rights guaranteed
in section 157 of this title;
“(2) to dominate or interfere with the forma-
tion or administration of any labor organization or
contribute financial or other support to it.
20a
Opinion of Gurfein
The Board found that seven respondent employers:“ (1)
Long Island, (2) Greenpoint, (3) Roma, (4) Paxton, (5)
Tropan, (6) Zaffino and (7) Master, had solicited their
employees to join Local 810 in violation of §§ 8(a) (1) and
(2) of the Act.“ Except as to Master, we believe that
the Board’s findings are supported by substantial evidence
on the record as a whole, and we accept them accordingly.
Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 491
(1951).
Indeed, these respondents (except for Master) do not
seriously challenge the finding that they rendered assis-
tance and support to Local 810 of the Teamsters. The
record establishes that the presidents of Paxton, Long
Island and Zaffino expressly requested their employees to
join Local 810. Greenpoint president Geuther promised
one employee a 10% wage increase if he would change
unions, and reassured two others that their pension rights
would travel with them if they joined Local 810. The em-
ployees of Roma and Zaffino were similarly advised that
they would not lose any benefits by joining the Teamsters.
Beyond that, the presidents of Roma and Zaffino personal-
ly drove some of their employees to Local 810 headquarters
18 Although in paragraph 7 of his conclusions of law the Ad-
ministrative Law Judge listed Cervenka and Sons as one of the
employers who had solicited his employees to join Local 810, he
made no findings of acts of solicitation or support by Cervenka.
Nor did he make Cervenka the subject of cease and desist” pro-
visions concerning support of Local 810 as he did with the other
named employers. Accordingly, we’ do not consider Cervenka and
Sons as having rendered assistance to Local 810 in violation of
§§ 8(a) (1) and (2).
„The Board also found that these respondents violated
§ 8(a) (5) of the Act. We reserve our discussion of those alleged
violations for Part III of the opinion.
21a —
Opinion of Gurfein
and the presidents of Greenpoint and Long Island offered
to do 80.“
These overt attempts to induce employees to abandon
Local 455 and join Local 810 plainly constitute interfer-
ence and support within the meaning of §§ 8 (a) (1) and
(2). See International Ass’n of Machinists v. N.L.R.B.,
311 U.S. 72, 78-79 (1940); N. L. R. B. v. Triumph Curing
Center, Dkt. No. 76-2884, slip op. at 13 (9th Cir. March
2, 1978); N. L. R. B. v. Park Edge Sheridan Meats, Inc.,
323 F. 2d 956, 958-59 (2d Cir. 1963).
It is also a violation of §§ 8 (a) (1) for an employer to
threaten economie reprisal in order to influence its em-
ployee’s choice of a bargaining representative. Although
an employer may indicate what it reasonably believes will
be the likely consequences of selecting a particular union
if the consequences predicted are beyond its control, it may
not threaten to take economic measures on his own voli-
tion in retaliation for its employees’ selection, N.L.R.B. v.
Gissell Packing Co., 395 U.S. 575, 618-19 (1969);
N. L. R. B. v. River Togs, Inc., 382 F.2d 198, 202 (2d Cir.
1967), or seek to divert employees from the recognized
union to another, Irving Air Chute Co. v. N. L. R. B., 350
F. 2d 176, 179-81 (2d Cir. 1965). Here there was ample
factual support for the Board's finding that certain em-
15 Respondent Zaffino argues that the Administrative Law Judge
erred in finding that it was president Zaffino rather than one of
his employees who suggested that the employees accompany him
to Local 810 headquarters. It is unnecessary to determine at whose
initiative the ride occurred since there was testimony that on
other occasions Zaffino had offered to take employees to Local 810
headquarters.
~~“ —— — — SD ee Se
22a
Opinion of Gurfein
ployers made coercive statements concerning events
within their control.“
With respect to Master, however, we do not find sub-
stantial evidence on the record as a whole to support the
Board’s finding of unfair labor practices. The only evi-
dence concerning Master’s alleged violations of §§ 8(a) (1)
and (2) was testimony by a single employee that in mid-
February of 1976, while on strike, he had asked for work
and was informed that Master had signed with Local 810.
There was no evidence suggesting that Master had en-
gaged in conduct designed to assist Local 810 before it
withdrew from multi-employer bargaining. For the rea-
sons discussed in Parts II and III infra, we cannot con-
clude on this record that it was an unfair labor practice
for Master to have signed with Local 810 after January
19 and to have related that fact to its employee.
B. Association Assistance to Local 810 as a
Violation of Sections 8(a)(1) and (2), and (5).
At an open meeting of the Association in October of
1975, the Association’s labor relations adviser, attorney
Herman Brickman, suggested that unions other than Local
455 might be interested in representing the members’ em-
ployees. Brickman was at that time the arbitrator in cer-
tain contracts between Local 810 and various industry
16 The presidents of Greenpoint and Trojan told employees that
they would not work so long as they remained members of Local
455 or refused to join Local 810. Employees of Trojan, Roma and
Long Island were informed that their employers would never sign
with Local 455. The presidents of Long Island, Roma and Zaffino
indicated that they might close their plants if their employees
remainded with Local 455.
23a
Opinion of Gurfein
employers. In response to Brickman’s suggestion, the
membership authorized him to contact other unions. At
subsequent open meetings, Brickman reported that Local
810 was in the process of contacting the members’ pro-
duction and maintenance employees.
In November, the Association invited Dennis Silver-
man, president of Local 810, to address an open meeting
of the membership and other industry employers. Silver-
man focused on the advantages Local 810 could offer both
the employers and employees with respect to pensions,
hospitalization and employment conditions. At about the
same time, two members of the Association’s negotiating
committee obtained from Local 810 headquarters a copy
of one of its labor contracts. After copies of the Local
810 contract somehow became available to the Association
members, one of the negotiators commented on the sub-
stance of certain Local 810 provisions to interested em-
ployers.
The Board found that such activity by the Association
constituted unlawful assistance to a non-incumbent union
in violation of §§ 8(a) (1), (2) and (5) of the Act.“ Re-
spondents’ only serious challenge to this finding is that
the Administrative Law Judge erred in admitting and
~elying on allegedly privileged statements by Brickman
to the Association. The Administrative Law Judge ruled
that Brickman’s statements were not protected by the
attorney-client privilege because they were made at a
17 Section 8 (a) (5), 29 U.S.C. § 158 (a) of the Act provides that
it shall be an unfair labor practice for an employer “to refuse to
bargain collectively with the representatives of his employees....”
24a
Opinion of Gurfein
meeting attended by non-members of the Association.”
Relying on United States v. Bigos, 459 F.2d 639 (Ist
Cir.), cert. denied sub nom. Raimondi v. United States,
409 U.S. 847 (1972), respondents contend that the pre-
sence of non-clients at. the Association meetings would
vitiate the privilege only if that presence were indicative
of an intent that the communication not be confidential.
Such an intent, they submit, is absent here. Although we
question whether statements made at an open meeting
attended by non-member employers could reasonably have
been intended as confidential, we conclude that there was
sufficient other evidence of unlawful assistance apart from
Brickman’s statements to sustain the § 8(a) (1) violation.
By inviting the president of a non-incumbent union to
address the Association and by commenting on that union’s
contract provisions, the Association’s agents plainly gave
support to a labor organization in violation of § 8(a) (2)
and in derogation of an existing bargaining relationship
protected by §§ 8(a) (1) and (5). See N.L.R.B. v. Getlan
Tron Works, Inc., 377 F.2d 894, 896 (2d Cir. 1967) ;
N. L. R. B. v. Fotochrome, Inc., 343 F.2d 631, 632-33 (2d
Cir.), cert. denied, 382 U.S. 833 (1965).
18 Alternatively, the Administrative Law Judge concluded that
since the statements referred to an ongoing illegality, the privilege
did not attach. In respondents’ view, Brickman’s statements fell
short of counseling illicit activities and hence did not fall within
the common-law exception to the attorney-client privilege. Since,
as we note in the text, there is sufficient other evidence of the
Association’s support of Local 810, we find it unnecessary to deter-
mine whether Brickman’s statements forfeited their privileged
status because they contemplated the commission of unfair labor
practices. Cf. Matter of Doe, 551 F.2d 899, 900-01 (2d Cir. 1977) ;
United States v. Bob, 106 F.2d 87 (2d Cir.), cert. denied, 308 U.S.
589 (1939).
25a
Opinion of Gurfein
II
WITHDRAWAL FROM THE ASSOCIATION—IMPASSE
The rule in this circuit is that once negotiations have
begun, a member’s attempt to withdraw from a multi-
employers bargaining unit is “untimely and therefore in-
effectual to relieve him from the obligations of any agree-
ment that is ultimately reached, absent special circum-
stances or consent by the union.” N.L.R.B. v. John J.
Corbett Press, 410 F.2d 673, 675 (2d Cir. 1968). Accord
N. L. R. B. v. Sheridan Creations, Inc., 357 F.2d 245 (2d
Cir. 1966), cert. denied, 385 U.S. 1005 (1967).
The questions we face nere are: (1) whether an im-
passe constitutes such a special eireumstance as to justify
unilateral withdrawal; (2) whether an impasse in negotia-
tions in fact occurred; and (3) whether notice to the
union of withdrawal is a prerequisite to its effectiveness.
In this circuit, we have never directly ruled on an
actual impasse situation as it affects the withdrawal rights
of a member of a multi-employer bargaining unit.“ The
policy considerations involved are easy to formulate but
difficult to reconcile. The rule against untimely withdrawal
is designed to preserve the stability of multi-employer
bargaining which would be impaired if an employer could
withdraw whenever it found the results of such bargain-
ing uncongenial or if it felt that it could use the threat of
withdrawal as bargaining leverage. See N.L.R.B. v.
Sheridan Creations, Inc., supra, 357 F.2d at 248. By the
1% By considering, although rejecting, an employer’s claim of
impasse in John J. Corbett Press, supra, 401 F.2d at 675, we did
at least inferentially suggest that a genuine impasse in negotia-
tions might justify an employer’s unilateral withdrawal.
— —-— Wa
— = os
oy
— en
3
26a
Opinion of Gurfein
same token, however, the objectives of collective bargain-
ing would be ill-served by compelling employers to remain
in the bargaining unit once it becomes clear that no pro-
gress is being made within that framework. Thus, all the
circuits which have addressed the issue have concluded
that a genuine impasse in negotiations will justify an
employer’s unilateral withdrawal from multi-employer
bargaining. N.L.R.B. v. Beck Engineering Co., 522 F.2d
475 (3d Cir. 1975); N. L. R. B. v. Hi-way Billboards, Inc.,
500 F.2d 181 (5th Cir. 1974); Fairmont Foods Co. v.
N. L. R. B., 471 F.2d 1170 (8th Cir. 1972). See N. L. R. B. v.
Associated Shower Door Co., 512 F.2d 230, 232 (9th Cir.),
cert. denied, 423 U.S. 893 (1975) (dictum).
As Mr. Justice Brénnan observed, speaking for the
Court in N.L.R.B. v. Truck Drivers Local Union No. 449
(Buffalo Linen Supply Co.), 353 U.S. 87, 96 (1957):
“Conflict may arise, for example, between the
right to strike and the interest of small employers
in preserving multi-employer bargaining as a
means of bargaining on an equal basis with a large
union and avoiding the competitive disadvantages
resulting from nonuniform contractual terms. The
ultimate problem is the balancing of the conflict-
ing legitimate interests.”
We strike that balance by now joining our sister circuits
in holding that an impasse will justify a party’s unilateral
withdrawal from multi-employer negotiations. And, while
the balance in national labor policy is entrusted primarily
to the NLRB, the courts of appeals are not entirely with-
out power of review when the “record amply supports the
conclusion that the parties were at loggerheads” at the
time when a member withdraws from multi-employer
bargaining despite a finding to the contrary by the Board.
N. L. R. B. v. Beck Engraving Co., supra, 522 F.2d at 484
27a
Opinion of Gurfein
(reversing the Board’s conclusion that there was no im-
passe), see N. L. R. B. v. Hi-Way Billboards, Inc., supra,
500 F.2d 181 (reversing Board’s finding that impasse is
akin to hiatus in negotiations.) In view of the history of
this labor dispute, the conclusion is inescapable that nego-
tiations had reached an impasse on January 19 when the
union received the withdrawal letter signed by nineteen
members of the Association.
The Association here was formed because the small in-
dependent employers felt that they were at a disadvantage
in bargaining individually with Local 455 as was evident
from their consistent failure to obtain as good a contract
as Allied. Multi-employer bargaining is recognized as a
means of achieving bargaining equality for the employers.
Buffalo Linen Supply Co., supra, 353 U.S. at 96. When
the union refused to budge on any of the fifty-odd differ-
ences between the independent contracts and the Allied
contract, it was akin to an affirmation that the Association
was useless as a bargaining device.
After the strike began on July 1, 1975, the parties did
not meet at all until late August. We agree with the
Region 2 Director’s finding, made in response to the Asso-
ciation’s complaint against Dextra, that as of June 30 a
“legitimate impasse was reached” and that Dextra with-
drew “subsequent to a collapse of negotiations.“
Between late August and January 14, the parties had
only four or five negotiating sessions. As the Administra-
tive Law Judge acknowledged, there was “little or no
progress during those meetings.” He noted as well that
the fifty some contract disparities was a cardinal issue in
the negotiations.
20 Letter from Region 2 Director to Independent Association
of Steel Fabricators (November 21, 1975), Respondents’ Exhibit 8.
28a
Opinion of Gurfein
That Local 455 agreed to negotiate separately with
four former members of the Association during the August
to January interval (Dextra, Atwater, North Shore, and
Charla) is also indicative of the inability of the union and
the Association to engage in fruitful discussion. More-
over, although the union did not selectively picket or other-
wise pressure any particular member, its willingness to
negotiate separately with several members had something
of a whipsaw effect on the remaining members who
watched certain of their withdrawing competitors resume
business while they themselves were still in the throes of
an economic strike. Cf. N.L.R.B. v. Association Shower
Door, supra, 512 F. 2d at 234; N. L. R. B. v. Beck Engraving,
supra, 522 F. 2d at 482-83; N. L. R. B. v. Hi-way Billboards,
supra, 500 F.2d at 183.”
Although acknowledging the possibility that an impasse
existed during July and early August, and again in the
fall of 1975, the Board concluded, nevertheless, that Local
455 had broken the impasse in August by circulating a re-
vised proposal to the Association and that any subsequent
impasse was broken when the parties met in January after
the union had reached a settlement with Allied. That
analysis overlooks one salient fact. At neither the August
nor January meeting did Local 455 make any concessions
concerning the single most important issue in dispute, the
elimination of disparities between the Association and
Allied contracts. It is true that Local 455 presented a
modified proposal at the August meeting and a more com-
* As the Ninth Circuit has noted, one of the reasons for accept-
ing impasse as a justification for an employer’s unilateral with-
drawal is that [were the rule otherwise, a union could reach an
agreement with one or more employers and then whipsaw the
remaining members of the significantly fragmented and weakened
multi-employer unit,” Associated Shower Door, supra, 512 F.2d
at 232.
29a
Opinion of Gurfein
plete proposal in January after the Allied contract was
consummated. But not every shift in position signifies
progress, especially if it is unresponsive to the principal
issue in contention. See Plumbers & Steamfitters Union
No. 323, 191 N.L.R.B. 592, 594 (1971). When, at the
January 14 meeting, the union categorically rejected the
Association’s offer to provide the same contractual terms
as Allied, Association members could well have concluded
that “there was no realistic prospect that continuation of
discussion at that time would have been fruitful,” which
is a working definition of impasse. American Federation
of Television and Radio Artists v. N.L.R.B., 395 F.2d 622,
628 (D.C. Cir. 1968). See N.L.R.B. v. Hi-way Bill-
boards, Inc., 473 F.2d 649 (5th Cir. 1973).
Moreover, contrary to the Board’s finding, there is no
substantial evidence that when the parties left the Janu-
ary 14 meeting they had agreed to meet again. Union
President Colavito testified only that the state mediator
closed the January 14 session with the observation that
“there is no sense in going any further today,” which
Colavito took to mean (wle would be called by the
mediator concerning the next meeting.” Apart from
that ambiguous statement by the mediator, there was no
evidence that the parties intended to resume discussion.
Indeed, two days later, on January 16, the Association
sent notice to the union that nineteen employers had
withdrawn bargaining authorization from the Associa-
While it may be true, as the Administrative Law Judge con-
cluded, that there was movement“ in the parties’ positions at
the January 14 meeting, a shift in position will not of itself
signify the end of an impasse unless it appears that further
discussion would be fruitful. Here, in view of the union’s intran-
sigence concerning the Allied contract disparities, its January 16
tender of a more complete proposal is without significance.
30a
Opinion of Gurfein
tion. The union received the notice on the 19th. At that
point, the strike had lasted for six and a half months
and the prospects for settlement were less encouraging
than in cases where employers’ claims of impasse have
been rejected.“ That the union and the five employers
remaining in the Association reached a settlement shortly
after the majority withdrawal does not militate against
a finding of impasse on January 19, since the withdrawal
might well have heightened willingness to reach an ac-
cord, see N.L.R.B. v. Beck Engraving Co., supra, 522
F.2d at 484-85.
Nor is the circumstance that five members remained
in the Association of major significance. Nineteen mem-
bers had withdrawn, eleven of whom had neither assisted
nor at that point signed contracts with Local 810. Real-
ism compels us to conclude, as did the Tenth Circuit in
N. L. R. B. v. Southwestern Colorado Contractors Associa-
tion, 447 F. 2d 968, 969 (1971) that:
“The reduction by nearly fifty percent of a
small multiemployer bargaining unit certainly ac-
knowledges to a considerable degree the practical
frustration of the original unit as a bargaining
entity.”
And see Connell Typesetting Co., 212 N.L.R.B. No. 140
(1974).
28 See, e. g., N. L. R. B. v. Central Plumbing Co., 492 F.2d 1252
(6th Cir. 1974) (parties negotiating under terms of agreement);
N.L.R.B. v. Corbett Press, supra, 401 F.2d at 675 (negotiations,
though “somewhat protracted, were continuing normally’).
Nor is it significant that respondents failed to attribute their
withdrawal to an impasse in their January 16 letter to the union.
In the context of this labor dispute, respondents’ invocation of the
impasse doctrine does not appear to be an “afterthought,” cf.
N. L. R. B. v. Tulsa Sheet Metal Workers, Inc., 367 F.2d 55, 58 (10th
Cir. 1966).
!.. ˙˙êͥ ee
31a
Opinion of Gurfein
Since we find that the Association members were en-
titled to withdraw in view of the impasse in negotiations,
it is unnecessary to consider respondents’ contentions that
there were other “unusual circumstances” warranting
their departure such as dire economic conditions and al-
leged surface bargaining on the part of Local 455.
A question, however, remains as to whether notice of
withdrawal is required before it can become effective.
Nineteen respondents signed the letter dated January 16,
received January 19, indicating that they had withdrawn
bargaining authorization from the Association. Six of
these respondents had already in effect withdrawn with-
out notice by executing contracts with Local 810.» The
stability of labor relations requires that such tacit with-
drawals without notice be viewed as ineffectual.
The Board has consistently taken the position that
withdrawal from multi-employer bargaining is effective
only when unequivocally communicated to the other party.
Goodsell & Vocke, Inc., 223 N.L.R.B. 60, 66 (1976), en-
forced, 559 F.2d 1141 (9th Cir. 1977); Pomona Building
Materials, Co., 174 N.L.R.B. 558, 560 (1969), enforced,
73 L.L.R.M. 2944 (9th Cir. 1970). At least one circuit
has taken the same view, N.L.R.B. v. Dover Tavern
Owners’ Association, 412 F.2d 725, 728 n.7 (3d Cir.
1969), and two others have indicated in dicta that com-
panies withdrawing from multi-employer bargaining in
the face of an impasse must give unequivocal notice to
the union. N.L.R.B. v. Association Shower Door, Inc.,
supra, 512 F.2d at 232; N.L.R.B. v. Central Plumbing,
supra, 492 F.2d at 1255. We decline to endorse a dif-
ferent rule here.
25 Roman (November 18); Greenpoint (November 20); Paxton
(December 15); Melto (December 22); Long Island (January 6) ;
Mohawk (January 9).
82a
Opinion of Gurfein
For an employer to withdraw bargaining authoriza-
ticn from a multi-employer association without notifying
the union is not simply a breach of etiquette. Such tacit
withdrawal not only withholds knowledge from the union
about the composition of the bargaining unit, but also de-
prives it of the opportunity either to initiate independent
negotiations with the withdrawing party or to file a com-
plaint promptly with the Board. To abrogate the notice
requirement when one party leaves multi-employer bar-
gaining in the face of an impasse would interject a fur-
ther element of uncertainty into a negotiating context
already destabilized by withdrawal.“
We conclude therefore that respondents’ withdrawal
from multi-employer bargaining was not effective until
communicated to the union. Accordingly, those employers
who signed union security contracts with Local 810 prior
to January 19 violated § 8 (a) (5) by disabling themselves
from bargaining with the union recognized by the Asso-
ciation.
III
THE REFUSAL TO BARGAIN
Two questions remain. First, were respondents bound,
in spite of their withdrawal, to the terms of the stipula-
tion of settlement negotiated by five members remaining
The notice requirement may also be necessary to prevent
disingenuous invocations of the impasse doctrine. As the facts in
Acme Wire Works, see note 1 supra, suggest, abrogation of the
notice requirement might encourage employers to claim retro-
spectively that they had withdrawn in the face of an-impasse and
to support their assertion by a letter dated but not dekvered during
a hiatus in negotiation.
33a
Opinion of Gurfein
in the Association? Second, were those respondents who
did not violate § 8 (a) (5) by signing an agreement with
Local 810 before Jamiary 19 under any obligation to bar-
gain individually with Local 455 after their withdrawal?
The Board found all respondents, except Trojan and
Heuser, guilty of § 8(a) (5) violations and ordered them
to execute the January 23 stipulation. We refuse to en-
force this part of the Board’s order since the signatories
of the stipulation made it clear that they were not sign-
ing on behalf of the Association. There was neither an
agency in fact nor an apparent agency relation between
the minority of the Association who signed and the
majority who withdrew; the union was on notice that
the signers had disavowed any agency relationship. The
effort of the president of Local 455 unilaterally to resur-
rect the corpse of the Association was in this context
unavailing. See N.L.R.B. v. Southwestern Colorado Con-
tractors Association, supra, 447 F.2d 968. Even those
employers who may be subject to a bargaining order for
§ 8(a) (5) violations cannot be forced to execute the Jan-
uary 23 stipulation. It is not within the power of the
Board, in these circumstances, to dictate substantive con-
tractual terms to which neither an employer nor its agent
has acceded. H.K. Porter Co. v. N.L.R.B., 397 U.S. 99,
108 (1970). See N. L. R. B. v. Burns International Secu-
rity Services, 406 U.S. 272, 281 (1972).
Though respondents cannot be held to the terms of
the stipulation as ordered by the Board, a question re-
mains as to the status of Local 455 as the bargaining
agent for their employees. In this case, respondents fall
into three main groupings; (1) those employers” who
27 Roman (November 18); Greenpoint (November 20); Paxton
(December 15); Melto (December 22); Long Island (January 6);
Mohawk (January 9).
eo eos
34a
Opinion of Gur fein
signed with Local 810 before giving notice of withdrawal;
(2) those employers“ who signed with Local 810 after
giving notice of withdrawal; (3) those employers * who
gave notice of withdrawal but did not sign an agreement
with either union.“
For the reasons discussed in the preceding section, we
hold that the first class of employers, by executing con-
tracts with Local 810 before communicating their with-
drawal to Local 455, are guilty of a refusal to bargain.
With respect to the second class, who properly withdrew
and served notice upon the union before signing with
Local 810, the critical question is whether they had any
obligation after withdrawal to bargain separately with
Local 455. The same issue, of course, arises as to the
third class of employers who gave timely notice and
signed with neither union.
28 Master (January 28) and Koenig (January 30).
20 Zaffino, Ikenson, Achilles, Kuno, Peele and Spigner. The Ad-
ministrative Law Judge found that, as of the time of hearing,
two of these employers, Spigner and Ikenson, were no longer in a
business requiring use of the kind of production and maintenance
workers belonging to Local 455. The Board’s order as modified
herein will be applicable to them only if they resume operations
requiring such employees.
80 Of the remaining respondents, two, Trojan and Heuser, ulti-
mately executed contracts with Local 455. Two others, Roma and
Cervenka, did not sign the January 16 letter notifying the union
of their withdrawal. Although as we noted in the preceding
section, notice is a prerequisite to a valid withdrawal from an
extant multi-employer association, we do not attach significance to
Cervenka and Roma’s failure to give notice that they were with-
drawing bargaining authorization from an Association which had
effectively collapsed after the majority’s withdrawal. Thus Roma,
who signed with neither union, may be considered part of class
three; Cervenka, who signed with Local 810 on February 17, may
be included in class two.
Opinion of Gurfein
There is no holding squarely in point." The Board
had not certified Local 455 as the bargaining agent for
respondents’ employees within the year of the withdrawal.
The union was not, therefore, entitled to a conclusive
presumption that it enjoyed majority status among the
employees. Cf. N. L. R. B. v. Burns International Security
Services, supra, 406 U.S. at 279 n.8; Brooks v. N. L. R. B.,
348 U.S. 96 (1954). It had, however, been recognized as
the bargaining agent for the production and maintenance
employees for many years. As the incumbent union, it
was, we believe, entitled to a rebuttable presumption of
continued majority status for a reasonable interval after
the individual contracts expired on June 30. See N.L.R.B.
v. Cayuga Crushed Stone, 474 F.2d 1380, 1383 (2d Cir.
1973); N. L. R. B. v. Newspapers, Inc., 515 F.2d 334, 341
n. 13 (5th Cir. 1975). Employers charged with a refusal
to bargain could rebut the presumption by introducing
evidence that the union did not in fact have majority sup-
port when their refusal occurred or that their refusal
was founded on a good faith doubt of the union’s majority
status. N. L. R. B. v. Windham Community Memorial Hos-
pital, Dkt. No. 77- 4187, slip op. at 3027 (2d Cir. May
%1In Beck, the Third Circuit implied that a withdrawing em-
ployer had an obligation to bargain individually with the union
recognized by the multi-employer association, but declined to
sustain the refusal to bargain charges because the particular em-
ployer involved had had a good faith doubt as to the union’s ma-
jority status at the time of withdrawal, 522 F.2d at 485. Thus,
the Beck court’s analysis suggests that a good faith doubt can
determine the nature of the obligation to bargain anew, which is
the approach we have adopted here.
36a
Opinion of Gurfein
12, 1978); Retired Persons Pharmacy v. N.L.R.B., 519
F.2d 486, 489 (2d Cir. 1975).“
The added difficulty here, however, is that the union
apparently never elected to request bargaining with the
individual employers. It chose, instead, to stand upon its
position that the withdrawing employers were bound by
the stipulation signed by the minority. Since the union
offered no alternative, we cannot conclude on this record
that the failure to arrive at individual agreements with
Local 455 by those respondents who withdrew with notice
was the result of the individual employer’s refusal to
bargain. Cf. N. L. R. B. v. Flomatic Corp., 147 N. L. R. B.
1304, 1305 (1964), enf. granted in part, denied in part,
347 F. 2d 74, 76 (2d Cir. 1965). Hence, the employers
in class three, who signed with neither union, did not
violate § 8 (a) (5).™
So far as respondents in the second class are con-
cerned, since they intended to sign with some union, we
A good faith doubt is, in effect, a doubt with a rational basis
in fact for believing that the union does not enjoy majority sup-
port. N.L.R.B. v. Rish Equipment Co., 407 F.2d 1098, 1100-01
(4th Cir. 1969). Once an employer advances some credible basis
for doubt, the General Counsel has the burden of establishing that
the refusal to bargain was in fact improperly motivated. N.L.R.B.
v. River Togs, supra, 382 F.2d at 206; N.L.R.B. v. Great Atlantic
& Pacific Tea Co., 346 F.2d 936, 939-40 (5th Cir. 1965).
0 Although two of these employers, Roma and Zaffino, assisted
Local 810 in violation of §§ 8 (a) (1) and (2), the commission of
such unfair labor practices does not of itself establish a refusal
to deal. See Gissel Packing Co., supra, 395 U.S. at 615. And
although § 8 (a) (1) and (2) violations may in some instances be
so substantial as to warrant a bargaining order, see Gissel, supra,
395 U.S. at 610-16; N.L.R.B. v. River Togs, supra, 382 F. ad at
208, the Board did not so find here, and we decline to impose a
bargaining order on that basis.
87a
Opinion of Gurfein
believe that they were under a duty to seek bargaining
with Local 455 on an individual basis before negotiating
with Local 810. Their execution of agreements with
Local 810 constituted a refusal to bargain which is ex-
eusable only if, at the time of execution, Local 455 had
lost its majority or the employers had a rational basis
for doubting its majority. In the absence of evidence as
to good faith doubt or actual loss of majority status, the
Board may find respondents in class two guilty of a re-
fusal to bargain. See N. L. R. B. v. Beck Engraving, supra,
522 F.2d at 485; N.L.R.B. v. Windham Community Mem-
orial Hospital, supra, slip op. at 3027; Retired Persons
Pharmacy, supra, 519 F.2d at 489.“
34 We think that the Board erred in its handling of the four
respondents who introduced evidence at the hearing with regard to
their good faith doubt of Local 455’s majority status when they
signed with Local 810. Two of these employers, Mohawk and
Paxton, executed contracts with Local 810 before giving notice of
withdrawal. The other two employers, Koenig and Master, signed
after notice. The Board considered all four to be barred from a
good faith defense on the ground that even if all thirty employees
of these four employers had changed allegiance, nevertheless, since
250 union workers were employed in the aggregate by members
of the Association, the question of majority status was to be
determined by whether Local 455 had a majority of the whole unit.
For the reasons advanced in Part II, we disagree with the
Board’s fundamental premise that the multi-employer unit re-
mained intact. We agree however that the two employers in class
one, Mohawk and Paxton, could not lawfully execute contracts with
Local 810 prior to communicating their withdrawal from an asso-
ciation which had recognized Local 455. These employers thus
violated § 8(a) (5) regardless of any shift in loyalties among their
own employees at the time of execution. The Board is, of course,
free to consider such evidence concerning employee allegiance in
determining whether an election rather than a bargaining order
would at this point be a more appropriate sanction. See p. 3782
infra. With respect to Koenig and Master, the Board erred in
refusing to consider evidence of their good faith doubt of Local
455 majority status.
Opinion of Gurfein
We find unavailing respondents’ contention that Local
455’s misconduct should bar entry of a bargaining order
in its behalf under the rule of Lawra Modes Co., 144
N.L.R.B. 1592 (1963). The Administrative Law Judge’s
rejection of the Lawra Modes defense rested in large part
on his reconciliation of disputed factual accounts and on
credibility determinations which we are reluctant to dis-
turb. See N.L.R.B. v. Columbia University, 541 F.2d
922, 928 (2d Cir. 1976); N.L.R.B. v. Dinion Coil Co.,
201 F.2d 484, 490 (2d Cir. 1952). Whether the union’s
conduct was, on the whole, of such a character as to
warrant the withholding of a bargaining order is a ques-
tion peculiarly within the Board’s expertise. Donovan v.
N.L.R.B., 520 F.2d 1316, 1321, 1323 (2d Cir. 1975),
cert, denied, 423 U.S. 1053 (1976). We defer to its
assessment here. However, in view of the fact that the
unfair labor practices did not taint election machinery,
and because of the lapse of time and our lack of infor-
mation concerning current labor relations in the industry,
we believe that the Board should have an opportunity to
consider whether an election rather than an order to
bargain with Local 455 might be a more appropriate
sanction for the § 8 (a) (5) violations here involved. Cf.
N.L.R.B. v. Gissel Packing Co., supra, 395 U.S. at 610-
18. Accordingly, we enforce those portions of the
Board’s order requiring respondents in class one to cease
recognition of, and to abrogate their contracts with, Local
810 unless and until it is certified. We leave to the Board’s
discretion whether to impose a bargainng order on re-
spondents in class one and on any respondents in class two
who are guilty of § 8(a) (5) violations.
39a
Opinion of Gurfein
IV
REINSTATEMENT AND DISCHARGES
A strike begun in support of economic objectives may
be converted to an unfair labor practice strike by an em-
ployer’s violation of the Act, and unfair labor practice
strikers are entitled to reinstatement upon their uncondi-
tional offer to return to work. Mastro Plastics Corp v.
N.L.R.B., 350 U.S. 270, 278 (1956); N. L. R. B. v. Fitz-
gerald Mills Corp., 318 F. 2d 260, 269 (2d Cir.), cert.
denied, 375 U.S. 884 (1968). The Board reasoned that
various employers’ threats of discharge and the signing of
collective bargaining agreements with Local 810, together
with the general refusal to bargain with Local 455 after
withdrawal from the Association, converted the strike
against all respondents into an unfair labor practice strike
by January 16 at the latest. The Board viewed Colavito’s
letters requesting reinstatement as satisfying the uncon-
ditional offer to return to work requirement, and con-
cluded, therefore, that each respondent’s refusal to rein-
state its striking employees uupuounu receipt of the letter
was violative of §§ 8(a) (3) and (1) of the Act.“ Given
our legitimation of certain respondents’ withdrawal from
multi-employer bargaining and our recognition of possible
good-faith defenses to the refusal to bargain charges, it
follows that not all respondents’ employees became unfair
labor practice strikers. We would, nevertheless, have en-
forced the Board’s reinstatement order against those em-
ployers guilty of §§8(a)(1), (2) and (5) violations,
N. L. R. B. v. Milco, Inc., 388 F.2d 133, 139 (2d Cir. 1968),
* Section 8 (a) (3), 29 U.S.C. 5 158 (a) (3), provides that it
shall be an unfair labor practice for an employer by discrimination
in regard to hire or tenure of employment or any term or condi-
tion of employment to encourage or discourage membership in any
labor organization
40a
Opinion of Gurfein
if the record had reflected an unconditional offer to return
to work. We are constrained to hold, however, that there
is inadequate support for a finding that the offer to return
to work was unconditional, —
During February and March of 1976, the union sent
a uniform letter to all respondents requesting that their
employees “unconditionally return to work,” but each
letter was accompanied by another letter demanding that
the employers implement the January 23 stipulation.
Testimony by the union’s business representative Matienzo
confirmed the obvious inference to be drawn from the pair-
ing of those letters, i.e., that union workers were prepared
to return to work only if their employers signed the Jan-
uary 23 “contract” with Local 455. Since the record es-
tablishes no offer to return to work which was in fact, as
well as form, unconditional, and since the Board made
no finding that such a request would have been futile under
the circumstances, V. L. R. B. v. Comfort, Inc., 865 F.2d
867, 877-78 (8th Cir 1966), respondents’ employees are
not entitled to reinstatement as unfair labor practice
strikers. H.&F. Birch Company Plant v. N.L.R.B., 456
F.2d 357, 363-64 (2d Cir. 1972); Moore Business
Forms, 224 N.L.R.B. 393, 409 (1976).
For similar reasons, we cannot enforce the Board’s re-
instatement order against Greenpoint and Long Island on
the theory that they discharged economic strikers prior
% We do not find persuasive respondents’ assertion that the
statements to Greenpoint and Long Island employees to the effect
that if they did not join Local 810 they might be replaced or they
should “look for another job” were predictions of discharge rather
than actual discharges. Under the circumstances, the employees
could properly infer that they had in fact been discharged.
N. LR. B. v. Comfort, Inc., supra, 365 F.2d at 875.
41a
Opinion of Gur fein
to finding replacements. Although such conduuct is plain-
ly violativé of §§ 8 (a) (1) and (3) of the Act, V. L. R. B. v.
International Van Lines, 409 U.S. 48 (1972), the Board’s
settled rule is that
„el mployees who are discharged while on strike
also must indicate abandonment of the strike and a
willingness to return to work, in order to establish
their right to their jobs and resumption of wages
unless there is a showing that such application
would be rejected, i.e., that it would have been
futile.”
Astro Electronics, Inc., 188 N.L.R.B. 572, 573 (1971)
[footnotes omitted]. See Penzel Construction Co., 185
N.L.R.B. 544 (1970), enforced, 449 F.2d 148 (8th Cir.
1971). Here there was no proof of an unconditional offer
to return to work and no showing of futility.
VII
REMEDIES
1. Substantial evidence supports the Board’s findings
that the Association violated §§ 8(a) (1), (2) and (5) of
the Act and that Roma, Greenpoint, Long Island, Paxton,
Zaffino and Trojan violated §§ 8(a) (1) and (2) by inter-
fering with their employees’ selection of a bargaining
representative and by rendering unlawful assistance to
Local 810. We accordingly grant enforcement of those
portions of the Board’s requiring them to cease and desist
from such unfair labor practices.
2. We refuse enforcement of the order against all re-
spondents (except Trojan and Heuser) directing them to
implement the terms of the January 23 stipulation nego-
tiated by five members of the Association.
42a
Opinion of Gurfein
8. Roman, Long Island, Melto, Mohawk, Greenpoint,
and Paxton, all of whom signed contracts with Local 810
before January 19 are guilty of a refusal to bargain with
Local 455. We grant enforcement of those provisions of
the Board’s order requiring them: (a) to cease recognizing
Local 810 as the bargaining representative of their pro-
duction and maintenance employees unless and until it
shall have been certified as the exclusive representative of
such employees; (b) to abrogate their collective bargain-
ing agreements with Local 810 and any extensions thereof
unless and until Local 810 is certified; and (c) to reim-
burse any of their present and former employees for dues
paid to Local 810 pursuant to the unlawful contracts.
Enforcement granted in part, denied in part, as set
forth in this opinion.”
„We would normally remand in this case for further develop-
ment of facts based on this opinion. Since so much time has now
elapsed, however, we must assume that there may presently be
continuing relationships of which we are unaware. We shall, ac-
cordingly, not formally remand but leave it to the parties to
petition the NLRB for such evidentiary hearings, if any, that
they desire under the principles outlined in this opinion.
43a
Decision and Order
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
I UU—
Case 29—-CA—4853
INDEPENDENT ASSOCIATION OF STEEL FABRICATORS, INC.;
ACHILLES CONSTRUCTION Co., INC.; GREENPOINT ORNA-
MENTAL AND STRUCTURAL IRON WORKS, INC.; HEUSER
IRON WORKS, INC.; IKENSON IRON WORKS, INC.; KUNO
STEEL PRODUCTS CORP.; LONG ISLAND STEEL PRODUCTS
Co.; MASTER IRON CRAFT CoRp.; MELTO METAL PROD-
ucts Co., INC.; MOHAWK STEEL FABRICATORS, INC. ;
THE PEELE COMPANY; ROMAN IRON WORKS, INC.;
SPIGNER AND SONS STRUCTURAL STEEL Co., INC.;
S. CERVENKA AND SONS, INC.
Case 29——-CA—4922
PAXTON METALCRAFT CORP., DIVISION OF APEX INDUS-
TRIES, INC.; KOENIG IRON Wokks, INC.; TROJAN STEEL
Cokp.; G. ZAFFINO AND SONS, INC.; ROMA IRON WoRKS,
INC,
Case 29—-CA—4772
GREENPOINT ORNAMENTAL AND STRUCTURAL
IRON WorRKS, INC.
Case 29—CA—4921
RoMA IRON Works, INC.
—and—
SHOPMEN’S LOCAL UNION No. 455, INTERNATIONAL As-
SOCATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL
IRON WorKERS, AFL-CIO
ec
44a
Decision and Order
———— — ů
—and—
STEEL, METALS, ALLOYS AND HARDWARE FABRICATORS
AND WAREHOUSEMEN, LOCAL 810, AFFILIATED WITH
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA
Party to the Contract
D—2762
SHOPMEN’s LOCAL UNION No. 455, INTERNATIONAL AS-
SOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL
IRON WorKERS, AFL-CIO
Case 29—CB—2461
—and—
STEEL, METALS, ALLOYS AND HARDWARE FABRICATORS
AND WAREHOUSEMEN, LOcAL 810, AFFILIATED WITH
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA
— — —8
On March 14, 1977, Administrative Law Judge Mor-
ton D. Friedman issued the attached Decision in these
consolidated proceedings. Thereafter, Respondents filed
exceptions with supporting briefs and the General Coun-
sel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its authority in this
proceeding to a three-member panel.
The Board has considered the record and the attached
Decision in light of the exceptions and briefs and has
45a
Decision and Order
decided to affirm the rulings, findings,’ and conclusions
of the Administrative Law Judge and to adopt his recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, .the National Labor Relations
Board adopts as its Order the recommended Order of the
1The Respondent has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board’s estab-
lished policy not to overrule an Administrative Law Judge’s resolu-
tions with respect to credibility unless the clear preponderance
of all of the relevant evidence convinces us that the resolutions
are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (C.A. 8, 1951). We have carefully
examined the record and find no basis for reversing his findings.
The Administrative Law Judge, in crediting Local 455 Pres-
ident Colavito over Association President Spigner with regard to
a private conversation in August, 1975, noted that a statement
made by Spigner concerning “The Teamsters” was “probably refer-
ring to Local 810,” whereas the record reflects that, at least in
this context, Spigner was referring to Teamster Local 819. We
nonetheless find that the Administrative Law Judge’s crediting
of Colavito is supported by other substantial evidence in the
record.
In adopting the Decision of the Administrative Law Judge,
we do not rely on his statement in sec. III, J, par. 8, that the
withdrawal of authorization to bargain by the 17 Employers
constituted a violation of Sec. 8(a)(5) of the Act. Although
the Administrative Law Judge correctly noted that the withdrawal
was untimely, this would not, in and of itself, be a violation of
Sec. 8 (a) (5). Rather, the untimely withdrawal followed by the
Union’s demand that bargaining continue in the multiemployer
unit and the Employers’ subsequent refusal combined to form
the basis for an 8(a)(5) refusal to bargain.
Furthermore, we do not rely on the intimation of the Admin-
istrative Law Judge in sec. III, J, par. 5, that the unfair labor
practices of the Association and its Employer-Members contributed
to a finding of an untimely or ineffective withdrawal from the
multiemployer unit, inasmuch as we would find the withdrawal to
be untimely and ineffective even absent any unfair labor practices.
n 4 ey 4 5 5
46a
Decision and Order
Administrative Law Judge and hereby orders that Re-
spondents Independent Association of Steel Fabricators,
Inc., New York, New York, and its Employer-Members
(listed in the caption hereof), their officers, agents, suc-
cessors, and assigns, and Respondent Shopmen’s Local
Union No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO,
New York, New York, its officers, agents, and represen-
tatives, shall take the action set forth in the said recom-
mended Order.
Dated, Washington, D.C., August 11, 1977
HOWARD JENKINS, JR., Member
JOHN A. PENELLO, Member
PETER D. WALTHER, Member
NATIONAL LABOR RELATIONS BOARD
(SEAL)
47a
Decision
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
nts
Case 29--CA—4853
INDEPENDENT ASSOCIATION OF STEEL FABRICATORS, INC.;
ACHILLES CONSTRUCTION Co., INC.; GREENPOINT ORNA-
MENTAL AND STRUCTURAL IRON Works, INc.; HEUSER
IRON Works, INC.; IKENSON IRON Works, INc.; Kuno
STEEL Propucts Corp.; LONG ISLAND STEEL PRopUCTs
Co.; MASTER IRON CRAFT CorP.; MELTO METAL PRop-
ucTs Co., INC.; MOHAWK STEEL FABRICATORS, INC. ;
THE PEELE COMPANY; ROMAN IRON Works, INC.;
SPIGNER AND SONS STRUCTURAL STEEL Co., INC.;
S. CERVENKA AND Sons, INC.
Case 29—-CA—4922
PAXTON METALCRAFT CorP., DIVISION oF APEX INDUS-
TRIES, INC.; KOENIG IRON Works, INC.; TROJAN STEEL
CorP.; G. ZAFFINO AND Sons, INc.; RoMA IRON WORKS,
3 Case 29—-CA—4772
GREENPOINT ORNAMENTAL AND STRUCTURAL
IRON Works, INC.
Case 29—CA—4921
ROMA IRON Works, INC.
—and—
SHOPMEN’s LOCAL UNION No. 455, INTERNATIONAL As-
SOCATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL
IRON WORKERS, AFL-CIO
— — . — —
Decision
OO a w—-v&——
—and—
STEEL, METALS, ALLOYS AND HARDWARE FABRICATORS
AND WAREHOUSEMEN, LOCAL 810, AFFILIATED WITH
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA
Party to the Contract
SHOPMEN’S LOCAL UNiON No. 455, INTERNATIONAL AS.
SOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL
IRON WoRKERS, AFL-CIO
Case 29—-CB—2461
—and—
STEEL, METALS, ALLOYS AND HARDWARE FABRICATORS
AND WAREHOUSEMEN, LocAL 810, AFFILIATED WITH
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA
———ů—ů—————— —
Alvin Blyer, Log., of Brooklyn, N. V., for the General
Counsel.
Stanley Israel, Esq. (Bluestone, Kliegman & Israel),
of New York, N.Y., for the Independent Asso-
ciation of Steel Fabricators, Inc., and most of
the Respondent-Employers.
Harold Spigner, Esq., of Lake Success, N.Y., for
Respondent Spigner and Sons Structural Steel
Co., Inc,
Mr. Seymour Ikenson, of Port Washington, N.Y., for
Ikenson Iron Works, Inc.
Belle Harper, Esq., and Vicki L. Erenstein, Esq.
(Sipser, Weinstock, Harper, Dorn & Liebowitz) ,
of New York, N.Y., for Local No. 455.
49a
Decision
Robert M. Ziskin, Esq., Robert Saltzstein, Esq., and
Jeffrey Kreisberg, Esq. (Mirkin, Barre, Saltz-
stein & Gordan, P.C.) of Great Neck, N.Y., for
Local 810.
Statement of the Case
MORTON D. FRIEDMAN, Administrative Law Judge:
This case was heard at Brooklyn, New York on various
days between June 7 and July 11, 1975, upon a consoli-
dated amended complaint based upon four separate
charges and amendments thereto filed by Shopmen’s Local
Union No. 455, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO,
here called Local 455, and upon a complaint against Local
455, based upon a charge filed by Local 810, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called Local 810.
The charge in Case No. 29-CA-4921 was filed as Case No.
2-CA-1404 on December 18, 1975 and the complaint in that was
issued January 28, 1976. The charge in Case No. 29-CA-4772
was filed December 18, 1975 and the complaint in that case was
issued February 9, 1976. The original charge in Case No. 29-
CA-4853 was filed February 6, 1976 and the first amended charge
in that case was filed March 1, 1976. The original charge in Case
No. 29-CA-4922 was filed as Case No. 2-CA-14106 on February 9,
1976 and the first amended charge in that case was filed March
1, 1976. On April 27, 1976, a consolidated amended complaint in
all of the foregoing numbered cases was issued, superseding all
complaints in any of the cases theretofore issued. On May 20,
1976, an amendment to the said consolidated complaint was issued.
The complaint in Case No. 29-CB-2461 was issued June 4,
1976 based upon a charge filed by Local 210 on April 14, 1976.
That case was ordered consolidated at the hearing by the Ad-
ministrative Law Judge because it concerned matter directly
connected with one of the defenses of the Respondents in the four
other cases, as hereinafter related.
sociation, alleges interference, restraint, and coercion in
violation of Section 8(a)(1) of the Act; unlawful as-
sistance to Local 810 in violation of Section 8(a) (2) of
the Act; discriminatory discharge and refusal to rein-
state striking employee members of Local 455 upon their
unconditional offer to return to work, in violation of
Section 8(a)(3) of the Act; and refusing to bargain
with Local 455 by untimely withdrawal from the Asso-
ciation and other actions in violation of Section 8(a) (5)
of the Act.
The complaint against Local 455, (Case No. 29-CB-
2461) alleges threats of violence and destruction of prop-
erty in violation of Section 8(b) (1) (A) of the Act.
The respective answers of all of the Respondents in
all of the cases denied the commission of unfair labor
practices, while admitting other matters such as juris-
diction of the Board over the Respondents and subject
matter.
Upon the entire record, and upon consideration of
the briefs and arguments of the parties, and upon my
observation of the demeanor of the witnesses, I make
the following:
* There being no opposition thereto, counsel for General Coun-
sel’s motion to correct the complaint is granted. The corrections
are annexed hereto as Appendix “a
5la
Decision
Findings of Fact
I. The Businesses of the Respondent-Employers
The Association, which at all times material herein
has maintained an office and place of business in Brook-
lyn, New York, performs, and has performed, among
other things, the function of negotiating and executing
collective-bargaining agreements with Local 455, on be-
half of its members who are the named individual Re-
spondent-Employers and other employers engaged in like
Each of the individually named Respondent-Employers,
all members of the Association, are corporations main-
taining offices and facilities in the city of New York and
52a
Decision
Accordingly, it is admitted, and I find and conclude,
that the Respondent Association, and the Respondent-
Employers herein, and each of them, are employers en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. The Labor Organizations Involved
It is admitted, and I find, that Local 455 and Local
810 are each labor organizations within the meaning of
Section 2(5) of the Act.
III. The Unfair Labor Practices
A. Background and Issues
As above noted, the Respondent-Employers are en-
gaged in the various branches of the iron and steel con-
struction and fabrication business. They are scattered
over various parts of the city of New York and virtually
all of its boroughs and also in the counties of Nassau
and Suffolk on Long Island and north of New York City
in Rockland and Westchester Counties. The Respondent-
Employers’ employees have been represented for various
lengths of time by Local 455, the relationship in some
instances going back over a quarter of a century. For
the most part, each of these Respondent-Employers have
dealt with Local 455 individually and have, with perhaps
some exceptions, been economically too weak to do more
than accept a more or less standardized contract evolved
by Local 455, with each contract varying to the extent
that the shops had individual problems which required
specialized clauses in their various contracts.
The employees in the shops of the Respondent-Em-
ployers, and other employers like situated, are basically
production and maintenance employees and in some in-
stances there are plant clericals. These general classifi-
58a
Decision
cations broadly describe the employees represented by
Local 455 in the various shops under contract.
At the same time, for a number of years past, another
group of employers, also engaged in the same industry
but whose end product or basis work, might have varied
somewhat from those of the Employers named herein as
Respondents, had formed an association named “Allied
Building Metals Industries, Inc.,” herein called “Allied,”
which has negotiated multiemployer collective-bargaining
agreements with Local 455 for a number of years last
past. It is evident from the record that some of the
Respondent-Employers had, at various times, been mem-
bers of Allied. However, before the formation of the
Association herein, all of the Respondent-Employers had
been dealing independently with Local 455.
As is well known, the years 1974 and 1975 were very
bad years, economically, for the building and construc-
tion trades industry with which all of the Respondent-
Employers herein are closely allied. In addition, the
contracts which Local 455 termed “the standard inde-
pendent contracts,” and to which the Respondent-Em-
ployers herein were signatories individually, evidently
did not have a number of provisions which the Respond-
ent-Employers herein desired to have and which would
have, evidently, benefited them economically. In view of
the recession in the construction industry, and in view
of the fact that Allied, as a multiemployer bargaining
association, had received what the Respondent-Employers
herein consider more advantageous contracts, early in
1975, the Respondent-Employers herein decided to form
the Association in order, among other things, to be able
to exercise and use the additional economic “clout” which
they presumed they would have if they bargained on an
association-wide basis, rather than as individuals, in
order to obtain a contract equally as beneficial as that
54a
Decision
enjoyed by the members of Allied. In early 1975 the
Association was formed as a trade association to deal not
only with Local 455 but also with other unions represent-
ing various employees of the Respondents, In fact, in
the most recent renewal year Respondent Spigner had
requested the same benefits, as an individual employer
that were received by the members of Allied, but had
not been able to obtain them.
After the formation of the Association, on April 24,
1975, its president, Irving D. Spigner, notified Local 455
(after Local 455 had notified the individual Employers
that their contracts were due to expire on June 30, 1975),
that the Association had been formed and that it was
authorized to bargain on behalf of the members of the
Association and listed the membership of the Associa-
tion. Thereafter, Local 455 and the Association began
bargaining, but at the expiration of the individual con-
tracts on June 30, 1975, inasmuch as no agreement had
been reached, the employees of the various Employers
who were inembers of Local 455 went out on strike.
Thereafter, some further bargaining took place but, by
reason of the inability to reach agreement, all but five
of the employer-members of the Association, named as
Respondents herein, notified Local 455 through the Asso-
ciation that the Association was no longer authorized to
bargain with Local 455 on their behalf,
Additionally, some of the members of the Association
during all this time and, assertedly, even before the
times during which bargaining began in the late spring
of 1975, began to encourage their employees to leave
Local 455. It is also gainsaid, that Local 810 is, and at
all times material hereto has been, actively attempting
The Respondent-Employers named herein and the As-
sociation defend on a number of basis. They contend
that their withdrawal from multiemployer bargaining
employer bargaining, the Respondents contend that other
factors, together with the impasse, created an unusual
situation which warranted withdrawal. Among the fac-
tors cited by the Respondents are (1) that Local 455
was never in favor of and, in fact, sought to break up
the Association because it did not desire to give to the
Association members the beneficial terms and conditions
enjoyed by the members of Allied; (2) that Local 455
never bargained in good faith with the Association and,
accordingly, association bargaining constituted a fruit-
less endeavor which would never have been brought to
fruition because of the alleged plan of Local 455 not to
the Board should withhold a bargaining order.’ Addi-
tionally, the Respondents contend that there was no dis-
criminatory refusal to reinstate any of the employees
because the offer made to return to work was not un-
With regard to the charges filed by Local 810 against
Local 455 alleging violations of Section 8(b) (1) (A) of
cive taking of photographs. These allegations, as noted
above, are denied by Local 455. The issues presented in
Laura Modes Company, 144 NLRB 1599.
OSES OE RETR TTT
57a
Decision
the case against Local 455 deal basically with credibility,
In fact, much of the contention of violence and threats
Thus, the issues presented by the pleadings and the
various contentions of the parties are:
1. Did the Respondent-Employers named in the com-
employees to join Local 810 and threatening reprisals if
they did not and commit other acts in Support thereof in
violation of Section 8 (a) (2) and (1) of the Act?
8. Did the employees of the Respondent-Employers
unconditionally offer to return to work and, if so, did
the said Respondents discriminatorily refuse to reinstate
4. Did some of the Employers discharge employees
for refusing to abandon Local 455 and join Local 210?
—— ̃ ͤ—„—„
58a
Decisi
i fficials constitute
id the conduct of the union 0
3 94 violence and such destruetion of 23 3
would constitute coercion of employees in vio
Section 8(b) (1) (A) of the Act?
idiary i lso presented
a number of subsidiary issues aiso
i pine with the above-cited principal * and
— will be dealt with in connection therewith.
B. The Negotiations and the Strike
On or about April 9, 1975, Local 455 8 2 1
lovers, excluding Spigner and Sons, letters ¢ 22
ries ture of William Colavito, Local 455 president,
— that Local 455 was terminating the 2 1 eo
88 of all of these independent Employers at . a :
of the current contract year 2 une sad 3 e
Local 455 desired to meet with repr .
of 4. said Employers to . ee a wai 2
il 21, 1975, the newly form Assoc b
ye es. the signature of its president, Irving D. 8
i formed Local 455 that the companies listed on
8 had authorized the Association to — ema —
i i inate the existin -
455’s letter of intention to —— *
Associati to meet with Local 455 at
seg beni + ae list of membership in-
loyers in
1 of the named Respondent-Emp
rong 1 There were 25 such Employers
listed.
ini ions took
ter, three or four bargaining sessions
1 7 re ‘the month of June following the receipt >
pa 455 from the Association of authorizations, — 1 :
ing, from each of the Employers who desired to have
59a
D 2
Association bargain on their behalf for a single associa-
tion-wide contract and a single association-wide unit of
all production and maintenance employees, including
plant clericals. However, there were four Employers
whose authorizations Local 455 received, whom Local 455
protested, inasmuch as Local 455 had already commenced
bargaining individually with these four Employers before
notification from the Association or, at least, before au-
thorizations were received for these four Employers.
These four Employers were Balfour Door Co., Weather-
guard Service, Inc., Esco Iron Works, and Herbert A.
Penner & Co., Inc. Accordingly, Local 455 never con-
ceded that these four Employers were part of the Asso-
ciation for purposes of bargaining with Local 455, and
eventually, Local 455 did enter into separate agreements
with these Employers.
As stated, during the month of June 1975, there were
four negotiating sessions. Despite the fact that at the
very first meeting, the date of which is not made clear in
the record, Local 455’s representatives protested the ap-
pearance on the Association’s negotiating committee of
Walter Balfour of Balfour Door Co. with whom Local 455
contended it did not have to deal as a member of the As-
sociation, after the initial protest, which lasted but for a
short time, Balfour attended all four sessions as a mem-
ber of the Association’s bargaining committee. During
these four June 1975 bargaining meetings, the discussion,
for the most part, concerned some 56 differences between
what the members of the Association had received as in-
dependent contracting parties in the expiring contracts
with Local 455 and what Allied member had received in
their association-wide contract which also was due to ex-
pire on June 30, 1975.‘ Likewise, during that period of
From credited portions of the testimony of Joseph Colavito.
60a
Decision
time, although the Union did submit a proposed stipulation
as its initial offer in negotiation, such stipulation did not
include any set figure for wages or any dollar figure for
fringe benefits. According to Local 455’s president Cola-
vito, whom I credit in this instance, the entire first session
was devoted to these 56 differences between the so-called
independent contractors and Allied agreements and the
desire of the Association to acquire for its members the
benefits contained in these 56 items which were part of the
association-wide contract with Allied. The other three
bargaining meetings in June also were concerned, in large
measure, with this problem. However, both parties
seemed to have been adamant in their positions with re-
gard thereto, the Association representatives desiring an
outright grant of all of these 56 points whereas the bar-
gaining representatives, principally President Colavito, of
Local 455 desired to discuss each one Separately and de-
finitively. In any event, no agreement of any substance
was reached either with regard to these 56 items or to the
Union’s contract submission. As a result, the employees
of the Employers who were members of the Association,
and of all other nonmember Employers whose contracts
expired on June 30 stopped work and went out on strike.
Thus, there was a general strike throughout the entire
industry against all employers, regardless of their affilia-
tion or nonaffiliation with multiemployer bargaining asso-
tiations, who had not signed contracts with Local 455 and
whose employees were represented by that labor organiza-
tion,
For reasons best known to the parties, but not ex-
plained in the record, there were no bargaining meetings
during the month of July 1975.
However, almost immediately after the beginning of
the strike, Local 455 circulated a modification of its orgi-
It should be noted further, that although Local 455’s
It serves no purpose at this juncture to recite these differ-
ences. It is sufficient to note that Local 455 did move from its
original position.
62a
Decision
In August, during the hiatus in bargaining between
the last meeting in June and the August meeting, a pri-
vate discussion was held at a hotel on Long Island be-
tween Association President Spigner and Local 455 Presi-
dent Colavito.
However, before this meeting occurred, and probably
during the month of July, Spigner had a conversation with
a union business agent, Bill Matienzo, wherein Spigner
told Matienzo that the whole matter could be settled very
easily by Colavito on behalf of Local 455 by offering to
the Associaton the same terms which had been offered to
Allied. Spigner told Matienzo that this would create a
climate of settlement throughout the entire industry.
Matienzo then indicated that Colavito had told him that
the Association would be the “hard nut” in the settlement
of the entire matter. Spigner told Matienzo that this
was not so; that in return for the Allied terms on the 50
or so differences heretofore alluded to, the Association
had, at the final meeting in June offered to Local 455 a
substantial increase in wages.
In any event, through the services of the New York
State Mediation Service, the August meeting took place.
However, evidently, the meeting between Colavito and
Spigner occurred before that meeting.“
During that person to person meeting, Spigner mentioned
that one of the Association members, Dextra Industries,
6 The record does not specifically state the exact order in which
these events occurred, except that Colavito indicated in his testi-
mony, upon a leading question by counsel for the General Counsel,
that the meeting between Colavito and Spigner took place on
August 25. This would place it about the same time as the As-
sociation and Local 455’s negotiating session.
63a
Decision
Inc., had signed a contract with the Union. The conver-
sation became quite heated at that point, Spigner telling
Colavito that unless Local 455 agreed to the Association’s
bargaining requests, probably referring to the 50 some
odd items, the Association would have the Teamsters re-
place Local 455 and that the Teamsters would, according
to Colavito, “crack heads.” Spigner added that three of
the members of the Association were ready to sign up
with the Teamsters, probably referring to Local 810, the
Charging Party in the complaint against Local 455 in the
instant proceeding." Although there might have been
some slight errors of recall with regard to exact language
used by Spigner, I conclude that, for the most part, the
conversation during the meeting was much as related
above.
Although the Association spokesmen had insisted, in
the June 1975 meetings, before all else was discussed or
J have credited Colavito’s version of this conversation, not
only by reason of my observation of both Colavito and Spigner,
but also because Spigner, in testifying, specifically admitted that
there war a discussion of the Teamsters and also because he fur-
ther stated in his testimony, while denying the statements set
forth above, that he did take umbrage with Colavito concerning
the fact that Local 455 had entered into direct negotiations with
Dextra. I also note, in not crediting Spigner, that the latter testi-
fied that Colavito, during the conversation, brought up the matter
of Local 810 or the Teamsters. Spigner further testified that he
did not know anything about Local 810 or the Teamsters as such,
or that the Teamsters had approached any of the members of the
Association. However, elsewhere in this Decision, I find that labor
counsel to the Association, not counsel representing the Associa-
tion in the instant proceeding, had spoken of the possibility of
going into another union and had, in fact, discussed Local 810
with the Association-members at meetings attended by Spigner.
For these reasons, I credit Colavito’s versions of the conversation
over Spigner’s version and Spigner’s denials that he made threats
to Colavito concerning Teamsters or Local 810.
64a
Decision
agreed that Local 455 give them the 50 odd differ-
ences — the Allied contract and what .
been called the independent“ contracts, during the fin
June meeting, they also demanded a reduction in ot
rates and reductions in contributions to the 3 un
and the reduetion of all benefits in addition to the 7
of the contract provisions which Local 455 re rn 5
jectionable. Under these circumstances, at that
ing, with the Union insisting upon certain wt eo
the parties were quite far apart. However, “er a
late August negotiating session, which probably fo a °
the private discussion, as related above, ee er-
and Irving Spigner, Local 455 set forth and soug
euss in detail the proposal that it had eireulated —
ately after the strike began to the independent Emp 2
who were not members of the Associaton, but of w
the record reflects, the Association members were —.—
However, the modification and reduction in Local :
wage demands, and its suggestions regarding other mat
ters, were not sufficient to satisfy what the 1 8
representatives considered necessary capitulation ve e
part of Local 455, and the meeting accomplished little hs
nothing. However, inasmuch as this suggestion on .
part of Local 455 a move downward from its origina
position taken at the elose of the last meeting in June,
I find and conclude that at that point, if, indeed, the June
meeting had ended in impasse, such impasse was then
broken and no longer existed.
r of fact, the record reveals no substantial
3 — that point on, ineluding the parties last
negotiating session sometime in January 1976 as hereafter
related. It is unclear from the record how many bargain-
ing sessions took place after the late August 1975 meeting
until that January 1976 meeting. Colavito testified, pur-
65a
Decision
suant to questioning by the General Counsel, that there
were about five and that these meetings were brought
about and attended by representatives of the New York
State Mediation Service. However, the record is not clear
as to what exchanges occurred at these meetings, nor does
the record show whether there was any movement from
the positions taken by the parties during the late August
1975 meeting.
In any event, by letter dated January 16, 1976, the
Association, over the signature of Association President
Irving D. Spigner, sent a letter addressed to John Zito,
secretary of Local 455, which read as follows: “The exe-
cutive officers of the companies named below, as provided
for in the bylaws of our Association, have withdrawn any
authorization previously given us, written, oral or implied,
which impowers the independent association to engage in
collective bargaining or conclude any agreement on their
behalf with Shopmen’s Local Union No. 455.” The letter
went on to list 19 individual Employers who were with-
drawing their authorization. These companies were, in
order, Achilles Construction Co., Inc., herein called
Achilles, Bay Iron Works, Inc., herein called Bay, Esco
Iron Works, Inc., herein called Esco, Greenpoint Ornamen-
tal and Structural Iron Works, Inc., herein called Green-
point, Heuser Iron Works, Inc., herein called Heuser, Iken-
son Iron Works, Ine., herein called Ikenson, Koenig Iron
Works, Inc., herein called Koenig, Kuno Steel Products
Corp., herein called Kuno, Long Island Steel Products Co.,
Inc., herein called Long Island Master Iron Craft Corp.,
herein called Master, Melto Metal Products Co., Inc., here-
in called Melto, Mohawk Steel Fabricators, Inc., herein
called Mohawk, Paxton Metalcraft Corp., herein called
Paxton The Peelle Company, herein called Peele, Roman
Iron Works, Inc., herein called Roman, Spigner and Sons
Structural Steel Co., Inc., herein called Spigner, Trojan
——— —
66a
Decision
i j therguard Service,
Corp., herein called Trojan Wea
— Tao called Weatherguard, and G. Zaffino and Sons,
Inc., herein called Zaffino.*
In the letter’s last paragraph, Spigner 98 are
Association no longer considers * named yin oo
* ' i
rt of the bargaining group. However, 8.
88 did not state that any employer whose ee N
not listed in that letter was no longer a member 8 2
bargaining group nor did the letter state wage g ——
iati as no longer bargaining, or could I
— “i behalf of its members who had not withdrawn.
the said letter, Colavito, on January 20,
19 97 — — the Association acknowledging e
the January 16 letter, and stated, in his letter, * =
455 entered into the agreement to bargain wi e —
sociation for the Employers the Association represented,
and that there was no understanding that the
ment was unilateral, which would permit the Associa io ;
members to withdraw from multiemplayer ar nie a
any time without the Union’s consent. Colavito wen on
to state that Local 455 must insist that any ee
between the Association and Local 455 would be binding
upon all of those Employers covered by the original wig
ment and that bargaining in good faith be carried 5 he
the Association and its members. Colavito also ~
that it was understood by Local 455 that a meeting *.
to be set up at the New Vork State Mediation Board on
Friday, January 23, 1976.
initi ll from
This meeting was initiated by a telephone ca 1
the Mediation Service stating that Dan Doyle, president
Esco, and Weather-
® With regard to these Employers, Bay, ;
guard are not mentioned as Respondents in this proceeding inas
much as they signed separate agreements, along with a as
hereinafter related, and were never considered by Local 4
part of the Association. This is also true, as noted above, o
Balfour Door Co.
67a
Decision
of Brakewell Steel Fabricators, Inc., herein called Brake-
well, desired the meeting. Brakewell had not withdrawn
its authorization. Doyle was also a member of the As-
sociation’s bargaining and negotiating committee from
the beginning.
The meeting took place, as scheduled, at the State
Mediation Service on January 23. Present beside the
union representatives were Doyle, Seymour Kaplan, presi-
dent of Carlin Manufacturing Co., Inc., also one of the
original members of the Association, two of the Naiztat
brothers of Naiztat Iron Works, Inc., herein called Naiztat,
also original members of the Association. For Local 455
were Colavito and Kenneth Mannsman, a member of
Local 455 Executive Board.
At the meeting, after a number of hours, an agree-
ment was ultimately arrived at with those present. Dur-
ing the following weekend Bay Iron Works, Inc., signed
the agreement as did Wortman Iron Works, Ine. Ace-
cordingly, five Employers signed the agreement. It should
be noticed that Uydess, of Bay Iron Works, Inc., had also
been on the negotiating committee of the Association. It
should be noted that all of these companies who signed
either on January 23, 1976 or within a few days there-
after, as hereinabove mentioned, signed their names as
“Members of the Association.”
It should also be noted that at the meeting of January
14, the last meeting held between the entire Association
bargaining committee and Local 455, the representatives
of the Association informed Colavito and other represen-
tatives of Local 455 that if the Association could be
granted the same contract which had been given to Allied
shortly before that time, and of which the Association was
apprised, the parties could probably reach an agreement.
68a
Decision
However, Colavito and the representatives of Local 455
rejected this demand. It was thereafter that the Associa-
tion members met and a large majority decided that the
withdrawal letter of January 16 should be addressed to
Local 455.
However, as noted, although Bay Iron Works, Inc.
withdrew and was included in the letter of withdrawal of
January 16, it joined in the negotiations held later in
January and was one of the five signers of the stipulation
or agreement on that date or soon thereafter. Addi-
tionally, Respondent Heuser and Respondent Trojan, al-
though among the Employer-members who had withdrawn
on January 16, also eventually signed stipulations or
agreements. Local 455 thereafter requested each of the
other members of the Association, who withdrew au-
thorization, to sign and honor the agreement reached with
the original five signers, but they had continued to refuse
to do so up to the date of the hearing herein, and have
continued to refuse to meet with and bargain with Local
455.° It is apparent, that with but, perhaps, a few minor
variations, the contracts which were signed were virtually
the same contracts which the five original signers ex-
ecuted. However, the capacity in which each Employer-
member, named above, signed, is discussed later in this
Decision.
Thus, the foregoing constitutes the situation with re-
gard to the bargaining as it is presented by the record
herein.
From testimony of Colavito and other union business agents.
However, it should be noted, that Respondent Heuser signed the
stipulation only after 2 months subsequent to the signing by the
others and after at least two visits to Heuser by union business
agent Meyer Tessler. Tessler's testimony with regard to that
signing is credited.
69a
Decisi
C. The Local 810 Relationship with
the Association
Reference has been made, above, to the fact that a
labor relations advisor, not counsel to Respondent-Em-
ployers of the Association in the instant proceeding, had
spoken to the members of the Association, and others
concerning the fact that Local 810 and, perhaps other
unions, might be interested in representing the employees
of the Association member.. This was brought about be-
cause of the apparent disaffection of the Employers in-
volved with Local 455. The relationship between these
individual Employers, Respondents herein, and Local 455
over a period of some years past had been deteriorating
by reason, at least to some extent, by the refusal by Local
455 to grant to these independent Employers economic
opportunities which they believed would be as advan-
tageous as those granted in Local 455’s negotiations over
over the period of years with the members of Allied. It
is well to note, although not as an excuse for what later
took place among the Respondent-Employers herein, that
the building and construction industry, during the period
of time with which the facts of this proceeding are con-
cerned, was in a depressed state, especially in the New
York City area, and that a number of firms had gone out
of business. In fact, some of the Respondent-Employers
herein had no working employees at the time of the strike
on June 30, 1975. For example, Respondent Ikenson
which formally had nine employees, had been forced to
lay off all of its employees before the negotiations involved
in the instant proceeding began and, moreover, up to the
date of the hearing herein had not recovered sufficiently
to rehire any employees, inasmuch as that firm was un-
70a
Decision
able to procure any business. The same was somewhat
true of Respondent Spigner and Sons.
i As-
by reasons of the foregoing pressures, the
oe i representative of its 8 3 Ma
labor relations expert, attorney Herman Br _ Ane
has been the arbitrator named in the labor con ni .
Employers in the industry whose employees were ‘ea —
represented by Local 810 and who had collective- rga 4
ing agreements with Local 810. At a . or, —
haps, more than one meeting, subsequent to the 2 ng
of the strike, which meeting or meetings were a on
by members of the Association as labor relations —
of Brickman, and which meetings were also — 1
other independent Employers who were not * 755 B
the Association, and not elients of Brickman, ‘Bri “4
stated that there were other unions interested in expa a
ing their membership among employees of . ase 1
the industry. This meeting, or meetings, took p a —
time in October 1975. At one such meeting, ame
verman, president of Local 810, was invited to a ur
those present at the meeting. Silverman explain
those present the terms that Local 810 could offer to ee
Employers, what it could do for the employees, oF oy ng
the advantages that Local 810 could give to the oa
ployers involved relative to pension plans, —
plans, and other terms and conditions of collective -y
gaining. This, of course, in point of time, was approxi-
mately 2 to 3 months before the letter of January 16 in
which the Association informed Local 455 that a ma-
jority of its members were withdrawing their authority
to have the Association bargain on their behalf. Addi-
tionally, at one of the so-called “open meetings, at which
others in addition to Brickman’s clients were present,
Brickman stated that with regard to Local 810, progress
71a
Decisi
was being made and that the men, presumably the em-
ployees, were being contacted by Local 810.0
Among other matters which Brickman informed the
Employer Association members was that other labor
% All of the foregoing with regard to the meetings with Brick-
man, and with Dennis Silverman, constitutes an amalgam of the
testimony of Seymour Kaplan, who was treasurer of the Associa-
tion at the time of the events related and was an officer of Carlin
Manufacturing Co., Inc., one of the original Employer-members of
the Association, not a Respondent herein, which company signed
an agreement with the Union after January 16, 1976,
At the hearing herein, counsel for Association and Local 810
objected on the basis of confidential communication to Kaplan’s
testimony with regard to what occurred at the meetings at which
the members of the Association were addressed by attorney Brick-
man. However, the testimony hereinabove related was permitted
because the meetings at which this information was set forth was
attended by other than the members of the Association and who
were not clients of Brickman. Thus, in those instances, any
claimed atorney-client privilege was waived by reason of the fact
that the meetings were attended by others than clients of Brick-
man. Additionally, as will hereinafter be related, at least some
of the information at those meetings related by the Association’s
attorney, Brickman, was advice tending to inform the Association
members that other unions were interested in organizing their em-
ployees at a time when such employees were members of Local 455.
Accordingly, the advice that was given was related to, or could
have been the sparking point, for activity which in other parts
of this Decision is found to have constituted violations of Section
8 (a) (2) of the Act. Inasmuch as the advice of the attorney would
seem to have tended to persuade the Employers to commit viola-
tions, it would seem that under the common law rule as adopted
in the new Federal rules of evidence, Section 501, effective July 1,
1975, Kaplan’s testimony was admissible. It is well established
that at common law, the attorney-client privilege could not be
claimed where the advice of the attorney was to break the law in
some manner, It should be noted in connection with all of the
foregoing, that counsel for the Association and the Respondent-
Employers in this proceeding is not Brickman and is not in any
way associated with him.
“ 2 — — — rsa —
; See 2 ie ive N r . 2 ice tae
a 2 i T0000 8 cig y= ͤ ͤ Kb n AR er
— a J ͤ ͤ⁰ ene PRIA Phe ‘ 2 igs E SFE ge, Bi Me res
„ C 2 : tages Bi Pee pe eet Ree, oes . eb Se 2
5 g 0 * r = >
72a
Decision
jecti izing the employees of
ions had no objection to organizing tr 5
3 ation members. After a meeting with Brick
man, Ed Peelle,
i went to the office of
5 810 's standard industry contract. Peelle
reviewed it with Dan Doyle,
gotiating committee a
i f the Association negotiating
ney ee Local 810 and obtained a
another member of the =
ting o
nd, together, at a later mee
Assoc i iation members
iation, they informed the Associa :
vagina the provisions of the sample 810 contract.”
D. The Unlawful Assistance and
Support of Local 810
i ted
i ident from the record, as hereinafter rela ed,
ae e of the members of the Association, et are.
the fact that the vast majority of their employees dy —
the Local 455 strike on July 1, 1975, and remain 45
to Local 455, made efforts to induce their ce N i
change their allegiance from Local 455 to 2 0 aie
fact, some of these employees not only threaten *
their plants in the event the employees did no ee
members of Local 810, but also executed collective-barga
ing agreement with Local 810 even before the J vague rid
16, 1976 withdrawal from multiemployer bargaining. The
activities of these Employers in support of and in giving
assstance to Local 810 are set forth below.
l : 1
. Greenpoint Ornamental and Structura
. : Iron Works, Inc.
i Greenpoint
roximately Labor Day of 1975, een
8 pecans Geuther, Jr., invited some of his ee
ing employees into the office of his plant and inform
11 From the uncontroverted testimony of Peelle.
78a
D * «
them that he would have nothing further to do with Local
455 and if the employees wanted to work for him they
would have to do so as members of Local 810. Geuther
further informed his employees that their pension contri-
butions would travel with them and they would lose noth-
ing by transferring their membership from 455 to 810.
In fact, Geuther repeated these statements to several of
his employees on a number of occasions between Labor
Day and January 16, 1976, while the said employees were
visiting the Greenpoint plant as pickets on behalf of Local
455.
With regard to individual employees, Geuther told em-
ployee Adam J. Gontorski that he had signed a contract
with Local 810. In December 1975, Geuther offered to
take Gontorski and other employees to Local 810’s office.
He also stated that if they would not sign up with Local
810 he would replace them with 810 members. Around
November 1, employee J oseph Matzell received a regis-
tered letter from Greenpoint in which he was told to come
back to work by November 10 or be discharged. In Jan-
uary, Matzell did go back and was told by George Geuther,
Jr. that he had no job. During this period of time,
Geuther also stated to Matzell that he would never sign a
contract with Local 455. Employee Salvatore Gulino had
a number of conver tions with George Geuther, Jr. in
September, October, November and December of 1975,
sometimes alone, and sometimes with other employees pres-
ent. Geuther always attempted to convince the employees
and Gulino to change unions. When Gulino refused say-
ing that he did not want to lose his pension, Geuther in-
formed him that the law provided that the pension would
go with him. Geuther also offered Gulino a 10 percent
increase in salary if the latter would join 810 and come
back to work. Upon Gulino’s repeated refusals, Geuther
told Gulino that the latter had better look for another job.
Se Sete) ae Pe eS eS
Ie ORT eer me eS
74
Decision
In additon to Greenpont employees, Frank Hernandez,
an executive board member of Local 455 visited Green-
point on November 10, 1975, along with a shop steward
named Sheeran from another Employer's shop. They en-
gaged George Geuther, Jr. in a conversation. Among the
statements made by Geuther to Hernandez and Sheeran
was that Geuther would never sign with Local 455 again
and that Greenpoint was not the only Employer thinking
the same way.
It is undisputed in the record that Greenpoint signed
a collective-bargaining agreement with Local 810 on
November 20, 1975 and, presumably, has been operating
its shop under that contract continuously since then.”
2. Long Island Steel Products Co., Inc.
At the time the strike began, Respondent Long Island
employed seven workers, all of whom were members of
Local 455 and all of whom joined the strike on July 1,
1975. Sometime after the meetings of the Association
with attorney Brickman and Local 810’s president Silver-
man, Long Island’s presideni, Irwin Davidson, in early
December 1975, telephoned his seven striking employees
and invited them to meet with him at the company office.
The employees responded and met with Davidson and Long
Island’s vice president, Nathan Steinfeld. Both Davidson
12 From the uncontroverted testimony of the above-named em-
ployees. I credit such testimony not only because it went uncon-
troverted on the record but also because George Geuther, Jr., in
testifying to other matters as hereinafter related, did not in any
manner deny any of the testimony of the employees above or of
Local 455 executive board member Hernandez.
75a
Decision
and Steinfeld, at the meeting, urged the employees to
abandon Local 455 and join Local 810 or, in the alterna-
tive, go nonunion, assuring them that if they did so they
would have steady employment, but if they did not, the
Company would close its doors. Davidson further told the
gathered striking employees that a transfer of member-
ship to Local 810 would insure them of their pensions and
they would receive the monies already paid into the Local
455 pension fund. Davidson also stated that Long Island
would never again sign with Local 455. When employee
Michael Frenna expressed his disapproval and stated his
refusal to joint Local 810, Davidson told Frenna, on two
separate occasions, that the latter had better look for
another job.
Approximately a month after the first meeting with
the employees, Davidson again called a meeting of the
striking employees and some of them attended. Again
the employees were urged to join Local 810 and the same
promises of continued pension and vacation fund benefits
was made in the event that they transferred their alleg-
iance to Local 810. Also, Davidson repeated the threats
to close the Company’s doors if the employees did not
conform with his desires.
Despite the fact that none of its striking employees
consented to abandon their membership in Local 455, and
even before the second meeting with the striking em-
ployees, as set forth above, Long Island entered into a
collective-bargaining agreement with Local 810 on Jan-
uary 6, 1976, which collective-bargaining agreement was
executed by President Irwin Davidson. Additionally,
Davidson accompanied at least two employees to the Local
810 office in Manhattan and remained present with them
and participated while they were told by two apparent
r —
N — Ir ‘
PEE OT ay ERG aE
~
76a
Decision
agents of Local 810 the benefits they would receive if
they became members of that union.”
3. Master Iron Craft Corp.
In the middle of February 1976, striking employee
Morris Waldman, went to the shop of Master Iron Craft
and spoke to Murray Scheiner, a partner in that firm,
and asked Scheiner for work. Scheiner refused, saying
he could not take Waldman back because Master Iron
Craft belonged to another union, Local 810. As a matter
of fact, Master did sign a contract with Local 810 on
From the credited uncontested testimony of Long Island
employees, Harry Bender, James Flemming, Michael Frenna and
Erdin Dill. Although Bender and other employees of other Re-
spondent-Employers, as hereinafter related, were unable to iden-
tify by name the individuals who spoke to them at various times
at Local 810’s office on 15th Street in Manhattan, from the context
in which these visits to the Local 810 office arose, and the timing
of the visits within a brief period after Local 810 President Sil-
verman spoke at the Association meeting, I infer that the
individuals who spoke to the various employees of a number of
the Respondent-Employers at Local 810’s office were agents of
that union authorized to do so. It is unreasonable to assume that
the Respondent-Employers’ officials, who brought their employees
to Local 810’s office, did so for the purpose of having the em-
ployees meet some unauthorized clerk without knowledge of the
Union’s operations, inasmuch as the individuals who addressed
the various employees explained in detail the operations and pro-
posed union benefits which would enure to the employees if they
became members of Local 810. Additionally, some of the em-
ployees who testified, although unable to state the names of the
Local 810 officials who spoke to them, described the Officials in
some detail. Accordingly, I find and conclude that these employees
were addressed at Local 810 office by union officials and that,
therefore, Local 810 did participate in seeking to induce the
employees to join that union.
a
Decision
January 28, which bargaining agreement was signed on
behalf of Master Iron Craft by Scheiner.
4. Paxton Metalcraft
Antonio Monturo and Arturo Palazzo, both employees
of Paxton who struck on July 1, 1975, made attempts in
January 1976 to return to work at Paxton. Thus, in
mid-January, Monturo received a telephone call from Leo
Mayer, president of Paxton to come down to the shop.
One day later, Monturo visited with Mayer at the shop.
Mayer asked Monturo to change unions and to come back
to work. Mayer told Monturo, when the latter demurred,
to think carefully, otherwise Monturo could be replaced
unless he changed his union affiliation to Local 810.
Palazzo, who needed work badly, on January 22, 1976,
knocked on Paxton’s door. The door was opened by Leo
Mayer who invited Palazzo inside. Mayer informed Pal-
azzo that Local 455 was no longer the company union and
that Local 810 was the company union. He further stated
that if Palazzo came back to work, after 1 month, Palazzo
would be obligated to join Local 810. Mayer told Palazzo
that he had already signed a collective-bargaining agree-
ment with Local 810. The record actually shows that on
December 15, 1975, Paxton signed a collective-bargaining
agreement with Local 810 which agreement was signed
by Irving Melnick, Paxton’s treasurer.
J credit Waldman’s uncontroverted testimony in full. Murray
Scheiner, in testifying to other matters, did not deny the above.
All of the foregoing from the credited testimony of Monturo
and Palazzo. Although Mayer and Melnick both testified to other
matters, neither of them disputed any of the foregoing related by
the two employees. Additionally, with regard to the signing of
the collective-bargaining agreement with Local 810, the parties
stipulated to that fact at the hearing.
78a
Decision
5. Roma Iron Works, Inc.
Roma’s president, Edward Romanelli, spoke to several
of his employees who were on strike, upon a number of
occasions regarding Local 810. Of the nine employees
who went out on strike, four testified. Thus, in November
1975, Romanelli called employee Lorenzo Ruggieri at the
latter’s home and asked him to come to the company
office. Ruggieri complied and when he arrived at the of-
fice he found present there, Romanelli and Frank Carpen-
tiere. Although Roma is a corporation, it is evident that
Romanelli and Frank Carpentiere are partners. Also
present, besides Romanelli and Carpentiere, was an un-
named bookkeeper. Romanelli and Carpentiere asked
Ruggieri to join Local 810, stating they could not afford
to stay with Local 455. They also informed Ruggieri that
they would close the shop rather than sign with Local 455
and would never sign with Local 455. In January 1976,
Romanelli called Ruggieri again and similar conversation
occurred, both on the telephone and in the office. Roman-
elli again urged Ruggieri to join Local 810 and further
stated that Roma would never sign with Local 455. At
that time, Romanelli also offered to have Ruggieri sign a
designation card for Local 810. When Ruggieri indicated
that he was not sure that he wanted to sign with Local
810, Romanelli offered to take him down to the Local 810
office. Ruggieri consented. At the Local 810 office, Rug-
gieri was introduced by Romanelli to a man he could not
describe. This man was not Union President Silverman.
In the discussion at the Local 810 office, with regard to
the benefits which Local 810 offered, Romanelli partici-
pated and informed Ruggieri that the latter would take
with him into Local 810 all of the benefits he had accrued
with Local 455.
Employee Alexander Farkas experienced a similar
type of inducement from Romanelli. During the summer
79a
Decisi
of 1975, while Farkas was on picket duty at Roma’
premises, Edward Romanelli engaged him in *
During that conversation, Farkas asked Romanelli to sign
Local 455’s proposed collective-bargaining agreement.
Romanelli answered that he wanted to “join” Local 810
and would not sign with Local 455. At that time he
showed Farkas a “stipulation” from Local 810, which
Michael Dynia, another employee, also had a similar
experience with Roma’s president, Romanelli. In No-
vember 1975, Romanelli called Dynia at his home on the
telephone and asked if Dynia would like to sign a card
“= ad
. ~~... — iF om Se N — *
AA Ase Le hs 2) 4 / l . —
B of Sa es es
2 * 1 . —
80a
Decision
One other employee, Mauel Ruiz, while on the picket
line in July 1975, was approached by Romanelli who told
him “If you guys keep striking with 455, I have to go out
of business.“
6. Trojan Steel Corp.
At the end of August 1975, Arnold Feinglass, presi-
dent of Trojan approached striking employee Mario Plaza
while the latter was on the picket line and invited Plaza
to come back to work. Plaza, in effect, answered in the
negative, stating that he would not return until Feinglass
signed a collective-bargaining agreement with Local 455.
Feinglass then told Plaza that as long as the latter was a
member of Local 455, he would never be permitted to
return to work for Trojan. Feinglass further told Plaza
that Trojan would never sign a collective-bargaining
agreement with Local 455.
However, despite the threats made by Feinglass, Tro-
jan signed with Local 455 as hereinafter related.
1% All of the above from uncontested testimony of employees,
Ruggieri, Farkas, Dynia, and Ruiz. No official from Roma testified
at the hearing. Accordingly, the testimony of the employees being
uncontroverted, it is credited.
*The testimony with regard to the threats and the refusal to
sign with Local 455 given by Plaza is credited in all respects.
Although Feinglass denied that he ever threatened any employee,
he did admit that he might have told his employees that he would
never sign with Local 455. I credit Plaza over Feinglass’ denial
not only by reason of my observation of these two witnesses, but
also by reason of the fact that Plaza has returned to work for
Trojan and, therefore, is more likely to have told the complete
truth with regard to the occurrences inasmuch as his employment
with Feinglass continues.
8la
Decision
7. G. Zaffino and Sons, Ine.
Zaffino was evidently having financia] difficulties even
before the strike Started. It had laid off a number of
Howell, “You better watch your ass, we are going to
watch ours.”
Shortly after that, probably within a few days, some
of the laid-off striking employees were gathered in front
of the home of employee Roger F. Williams in New
Rochelle, New Vork. With Williams were Robert Cata-
lano, Joey Zaffino, an employee although one of the Zaffino
82a
Decisi
family, and Joe Cassara. Bruno Zaffino drove by, stopped,
and invited the employees to go with him to the Local 810
headquarters. Having nothing to do and being curious,
the employees accepted and were driven down to the Local
810 office on 15th Street in Manhattan. The Zaffino facil-
ity was located in New Rochelle.
When they arrived at the Local 810 office, the em-
ployees were taken into a large room and introduced to
two men whose names the witnesses could not recall.
However, they did describe, to some extent at least, one
individual as being a short, stocky man chewing a cigar,
and with short red hair. Local 810 representatives showed
the employees pamphlets containing Local 810’s pension
plans, vacation plans and other fringe benefits. There
was further discussion of other matters with which Local
810 was interested with regard to Zaffino’s employees.
Finally, after this discussion which lasted for some time,
the men were driven home by Bruno Zaffino.
It should be noted, however, that none of these em-
ployees were told by Zaffino to join Local 810. He only
threatened that if the employees retained their member-
ship in Local 455, as noted above in his conversation with
employee Howell, that they would, inferentially, lose their
jobs.
At least one of the booklets which were shown to the
employees of Zaffino, while at the headquarters of Local
810, was a booklet entitled Welfare Plan No. 45 published
by Local 810 and showing its address at 10 East 15th
Street, New York, New York. It is unnecessary to detail
any of these welfare plans at this point inasmuch as it
would serve no purpose but they run the gamut from a
dental plan to life insurance, to medical and surgical bene-
fits,
Decisi
However, despite Zaffino’s warnings, Zaffino never did
N into any formal bargaining agreement with Local
mony was presented for the purpose of showing that, in
any event, Bruno Zaffino had no authority to speak on
that Bruno Zaffino did, indeed, invite and persuade the
individuals involved to go to Local 810’s office with him.
Accordingly, where Zaffino’s testimony is in conflict with the testi-
mony of the employees of Zaffino and Sons, I credit the employees’
testimony over that of Zaffino.
~ — —
84a
Decision
8. Other Employers who signed
with Local 810 ,
In addition to the foregoing, Respondent-Employer
Melto, on December 22, 1975 entered into a collective-bar-
gaining agreement which was signed by Bernard Liebman,
president of Melto. On January 9, 1976 Mohawk signed
a collective-bargaining agreement with Local 810 by War-
ren Reis, president. On January 30, 1976 Koenig signed
a collective-bargaining agreement wth Local 810 by Sol
Leistner, president. On February 17, 1976, Cervenka
signed a collective-bargaining agreement with Local 810
signed by George Cervenka, presumably the president.
Received in evidence, additionally, is a collective-bargain-
ing agreement between Roman (not to be confused with
Roma) which was executed on November 18, 1975 between
Roman and Local 810. It was stipulated at the hearing
herein that all of the collective-bargaining agreements
entered into between the Respondent-Employers who
signed with Local 810 are virtually identical and that the
grievance and arbitration provisions contained therein
name attorney Harry Brickman as the arbitrator with
regard to matters arising out of and pursuant to the said
collective-bargaining agreements,
It was further stipulated that in the case of Koenig,
there are six additional signatures affixed in addition to
the president of that company. These were probably all
employees of Koenig at the time the agreement was exe-
cuted and, further, were all employees of Koenig before
the strike began at which time they were members of
Local 455. Further, with respect to Respondent-Employer
Mohawk, the contract bears two additional signatures to
that of the president of Mohawk. There is nothing in the
record to show who these individuals were, but presumably
they were employees of Mohawk at the time of the signing.
85a
Decision
It should also be noted that all of the agreements in addi-
tion to being identical in other respects, have the same
expiration date, October 5, 1978,
9. Conclusions with regard to assistance
There can be no doubt, and I so find, that the at-
tempted inducement by Respondents Greenpoint, Long
Island, Master Iron Craft, Paxton, Roma, Trojan, and
Although the complaint herein alleges that Respondent-
Employers Trojan and Roma entered into collective-bargaining
2
eat:
86a
Decision
of the Act.” And this would be true even assuming,
involved law-
ndo, that the Respondent-Employers involved 15
fully withdrew from multiemployer collective bargaining.
iti the entering into collective-bargaining
Brice se Local 810 in the months of 1
and December 1975, and January and February 91 N ed
Respondent-Employers Roman, Greenpoint, Paxton, Me .
Long Island, Master Iron Craft, Mohawk, Koenig, ep
Cervenka, constitute further violations of Section =
(1), (2) and (5) of the Act. As set forth earlier in =
Decision, these nine Employers were among those —
joined the Association which was formed in J anuary 197
and who desired to bargain on an association-wide ~_
with Local 455. Inasmuch as all of these Employers aren
as independent companies, recognized and — wi 2
Local 455 for a number of years before the events 2
and because the collective-bargaining agreements WI =
they had executed over the years with Local 455 oe d
union security provisions, when these Employers ' —
members of the Association and authorized 3
wide bargaining, the unit appropriate for 1 ar-
gaining then became an association-wide unit \n sini
the period involved in this proceeding thi 823
wide unit was presumptively intact. Therefore, r
455 was entitled to a continuing presumption of majority
status in the association-wide unit. As ee *
lated, there is little or no reason to conclude tha 5
situation was otherwise at the time of the a. ber y
the above nine Respondent-Employers of the col rw ive-
bargaining agreements with Local 810. Thus, sit
tering into the agreements with Local 810 2 0
unlawful assistance to Local 810 in violation o 5 N 5
8(a) (1) and Section 8 (a) (2) and (1) of the Act, be-
21 Supra.
87a
Decision
cause Local 810, by reason of all of the foregoing, did
not represent an uncoerced majority of the employees of
Employers in the association-wide multiemployer bar-
gaining unit hereby found to be appropriate. Addition-
ally, the entering into the agreements with Local 810
constituted a further undermining of the collective bar-
gaining position of Local 455 and, accordingly, constituted
violations of Section 8 (a) (5) and (1) of the Act.”
Over and above all of the foregoing, a reading of the
Roman agreement with Local 810 reveals that the said
agreement provides for union security to the extent that
employees encompassed by that agreement, which is sim-
ilar to the eight other agreements, must become and re-
main members of Local 810. Because Local 810 at the
time of the entering into the agreement and at the time
of the hearing herein and by reason of findings and con-
clusions set forth later in this Decision, did not repre-
sent an uncoerced majority at the time of the entering
into the agreement covering some of the employees of the
overall multiemployer bargaining unit, the signing of
union security agreements constituted further unlawful
encouragement of membership in, and support of, Local
810. This constituted a violation of Section 8(a) (3),
(2) and (1) of the Act.“
An attempt to justify the entering into the collective-
bargaining agreement with Local 810 was made on the
22See Florida Automatic Sprinkling Contractors Association,
199 NLRB 1151, Automative Business Systems, 205 NLRB 532,
534-535, Vegas Vic, Inc., 213 NLRB 841-845; Beck Engraving Co.,
Inc., 213 NLRB 53, 54-55; Sheridan Creations, Inc., 148 NLRB
1503, enfd. 357 F.2d 245; International Ladies Garment Workers
Union, AFL-CIO v. N.L.R.B., 366 U.S. 731; Wicks Corporation,
197 NLRB 860, Clement Brothers Company, Inc., 165 NLRB 698,
699.
23Komatz Construction, Inc., 191 NLRB 846, 851; Interpace
Corp., 189 NLRB 132, 138-139.
a
8
2
8
:
3
88a
Decisi
record by representatives of Koenig, Mohawk, Paxton,
and Master Iron Craft. According to Barry Leistner,
vice president of Koenig, none of Koenig’s employees went
out on strike on July 1, 1975 although, admittedly, they
were then dues paying members of Local 455. Although
pickets appeared from time to time from July 1, 1975
until sometime in January 1976, all of Koenig’s six or
seven employees reported for work during that period.
However, in the latter part of January 1976 Koenig’s
employees went out on strike. When Koenig’s officials
made inquiry, they discovered that ihe men were on strike
against Koenig for the purpose of inducing recognition
by Koenig of Local 810. It was after this that Koenig’s
president Leistner, on January 30, signed a collective-
bargaining agreement on behalf of Koenig with Local 810.
Respondent Mohawk’s president and sole owner, War-
ren Reis, testified that at the time the strike began he
had approximately 10 employees. These employees who
were members of Local 455 at the time remained out on
strike until sometime in January 1976, approximately
January 10. At that time three employees asked to
return to work and Reis took back the three because his
shop had been inoperative from the date of the strike
until that time. The employees told Reis, when asking
for work in January, that they wanted to work with
Local 810. At that time they displayed to Reis union
designation cards for Local 810. Reis had made no
contact with Local 810 until that point in time. In fact,
Reis testified that he never heard Local 810 mentioned at
any of the association meetings which he attended and
certainly he had never met or heard of Silverman, presi-
dent of Local 810. However, after the three employees
displayed the Local 810 cards, Reis went to Local 810’s
office and spoke to Silverman. Silverman showed him the
collective-bargaining agreement that Local 810 wanted
89a
Decisi
Reis to sign. Accordingly, on that day Reis signed the
contract with Local 810 and the employees subsequently
returned to work. After that date, further employees
were hired but there is nothing in the record to show
whether they were Local 810 members or Local 455
members or nonunion employees.
With regard to Respondent Paxton, Irving Melnick,
secretary-treasurer, testified that in late November or
early December, after his employees who were members of
Local 455 had gone out on strike on July 1, 1975, he was
approached by three employees. The employees showed
him Local 810 union designation cards. The employees
informed Melnick and Mayers, president of Paxton, that
they had spoken to an organizer from Local 810 and they
were interested in becoming part of the Local 810 organi-
zation. Melnick then asked the individuals if that was
what they really wanted. They answered in the affirma-
tive and that they had all signed cards. Melnick then
inspected the cards. The following day he received a tele-
phone call from President Dennis Silverman of Local 810
and within a week thereafter, met with Silverman at
Local 810’s headquarters in Manhattan. Silverman de-
scribed Local 810’s activities, what they had to offer the
employees and, in fact, showed to Melnick copies of the
‘various plans and the prospective collective-bargaining
agreement. After studying the agreement, Melnick called
Mayers from the Local 810 office and they together con-
cluded that it would be a good arrangement for them to
sign the agreement. Accordingly, on that day, an agree-
ment was signed as heretofore related. According to
Melnick, he had never been in contact with, nor had
spoken to, any Local 810 representative prior to the tele-
phone call on the day after his three employees had re-
quested reemployment and membership in Local 810.
90a
Decision
Finally, Murray Scheiner, who identified himself only
as a partner of Master Iron Craft, but who signed a col-
lective-bargaining agreement with Local 810 on January
28 as president of that corporation, testified that as of
the day the strike started, Master Craft had five em-
ployees.“ The record does not show whether these five
employees all joined the strike but, in any event, by late
December and early January, three of these same em-
ployees were working at Master. In January 1976, John
Michelinos, a representative of Local 810, approached
Scheiner and informed the latter that a majority of
Master’s employees were represented by Local 810.
Michelinos then showed Scheiner the cards signed by the
three employees. An appointment was thereupon made
and as a result, Scheiner went to the office of Local 810
president Dennis Silverman. This meeting took place on
January 30 and at the end of the meeting with Silverman,
Scheiner signed an agreement with Local 810. However,
on cross-examination Scheiner admitted that he had five
employees working at the time cf the strike and an addi-
tional one in layoff status in addition to Waldman who
was on temporary leave of absence at the time the strike
began. None of these employees had quit or had been
discharged at the time of the signing of the agreement
with Local 810, so that, in fact, Local 810 represented
only three out of seven Master employees, all of whom
were Local 455 members when the strike began.
The record shows that all of the members of the
Association at the time the strike began, employed in-
dividuals totaling approximately 250. The total number
2 These five did not include Morris Waldman who had been
laid off some time before and had asked for a voluntary leave of
absence when he was recalled in June 1975. Accordingly, he was
not working when the strike commenced.
91a
Decision
of employees of Respondents Koenig, Mohawk, Paxton and
Master together, at about the time they signed the agree-
ments with Local 810, was no more than 30 individuals.
The Board has established, with court approval, that
where a multiemployer bargaining unit exists, and such
unit employees are represented by a lawfully designated
or recognized bargaining representative, before any em-
ployer can withdraw from the multiemployer association
whose employees constitute the said multiemployer bar-
gaining unit, and upon such withdrawal recognize an-
other union as the withdrawing employer’s employees’
bargaining representative, such withdrawing employer,
once multiemployer bargaining has commenced, must have
a good faith doubt as to the continued majority status of
the wnion bargaining with the multiemployer group.
Any doubts as to the withdrawing employer's own em-
ployees continued adherence to the first union is not
sufficient to justify recognition of the second union and
such recognition is, therefore, violative of Section S (a) (5)
and (1) of the Act. (Emphasis supplied.) For reasons
hereinafter explicated, I find that at the time of the sign-
ing of the agreements by the Respondent-Employers with
Local 810, the multiemployer bargaining unit was still
intact and, therefore, the change of allegiance of 30 out
of 250 employees was not sufficient to support a good
faith doubt as to the continued majority status of Local
455 as the bargaining representative of the employees of
the members of the Association in the association-wide
unit.“
20 See Beck Engraving Co., Inc., 218 NLRB 53, 54-55; Sheridan
Creations, Inc., 148 NLRB 1503, enfd. 357 F.2d 245 (C.A. 2-1966).
It should be noted that none of the other Respondents, aside
from Koenig, Mohawk, Paxton and Master, attempted to show
during the hearing, employee majority support for Local 810 at
the time they entered into bargaining agreements with that union.
Decision
E. Picket Line Activity and other Alleged
Unlawful Activity of Local 455
At various times, most of them subsequent to the
withdrawal from multiemployer bargaining by the 17
Respondent-Employers on January 16, 1976, there oc-
curred incidents at various Employers’ establishments
which went beyond activity which the Board has held
to be lawful or excusable picket line conduct. Some of
this activity was alleged by the counsel for the General
Counsel to have violated Section 8 (b) (1) (A) of the Act.
Other, similar conduct, although not alleged in the Gen-
eral Counsel’s complaint against Local 455, nevertheless
is alleged by Respondent-Association and its members
constituting unprotected picket line activity.
By way of background of some of this activity, al-
though Lot alleged in the complaint as violations of the
Act, in April or May of 1976, Ken Leistner, an employee
of Koenig Iron Works, and son of President Sol Leistner,
who signed a collective-bargaining agreement in January
with Local 810, was met on a street corner near the
entrance to the Koenig shop by Local 455 representative
John Bell. After they greeted each other, Bell told Ken-
neth Leistner that his father, Sol, was in trouble, and
Local 455 members who were working would not be let
back into Local 455 without paying heavy fines. Bell
stated that Local 455 was following Koenig trucks and
there were ways that these trucks could be stopped. He
then allegedly stated that there was a strong chance that
people could get hurt and trucks destroyed but that none
of this would happen if Koenig signed up with Local 455.
Bell told Kenneth Leistner that the taking of such action
was not up to him or, to Local 455’s president, Colavito,
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Decision
but he referred to some vague committee which would
decide upon whether to take such action.“
On May 17, 1976, at about 5:55 a.m., Ken Leistner
and employee Tom Rafferty were accosted by two men
who stood in front of the employees’ door of the Koenig
facility. The spokesman for the two men was described
by Leistner as tall, blonde and wearing a black beret. The
man wearing the beret asked where Leistner and Rafferty
were going. When Leistner answered “inside,” the man
in the beret said “You’re not going inside, it’s a 455 shop,
you're on strike.” Leistner answered that that must be
a mistake inasmuch as the shop was a Local 810 shop.
With that, the same man said that if Leistner and Raf.
ferty went inside they would get their “ass kicked.” The
two men then attempted to block the door, but Rafferty
and Leistner walked between them and éntered.
After Ken Leistner entered the shop, he went to the
garage area and rolled up the garage entrance door which
opened onto the street directly in front of the Koenig
shop near the other door that Leistner and Rafferty had
entered. By that time, five or six individuals had gathered
in front of the shop and among them were John Bell and
Kenneth Mannsman, heretofore identified as a member of
the Local 455 Executive Board. Although Leistner did
not identify, specifically, who made the remarks that
followed, merely referring to them as “they,” it was
stated by the individuals picketing with Bell and Manns-
man, and perhaps by one of those two also, that they
were not going to let any trucks out; that this was a
Local 455 shop and they would “kick the shit” out of any-
one trying to get into the shop. At that point several
* The foregoing is merely recited as background but becomes
somewhat important in consideration of part of the Respondent-
Association and its members’ defense in the refusal-to-bargain
aspect of this proceeding.
oN
94a
Decision
employees from various other shops in the area passed and
they were stopped and threatened by the piekets.
Approximately at 6:45 a.m. on that day, Sol Leistner
parked his car on the street near the shop entrance. As
he was getting out of the car to enter the shop, the man
in the black beret asked him where he thought he was
going. The senior Leistner asked, “Who the hell are
you?” To which the man in the black beret answered,
“You are not going into the shop, it’s a 455 shop, you are
on strike and you are going to get your ass kicked if
you try to enter.” The senior Leistner then addressed
Bell and asked the latter what was going on. Bell an-
swered to the effect that this was “strike time” and that
no trucks would go in and no trucks would go out.
Shortly thereafter another employee, Don Hammer,
came out of the subway, approached the entrance and
was given the same threats. When he attempted to enter
the shop, Bell and Mannsman blocked the doorway. How-
ever, the employee managed to slip behind them and
enter the shop at the beckoning of Ken Leistner. Other
employees entering that morning experienced similar
handling by Bell, Mannsman and the pickets. Among
these employees who sought to enter was one Christopher
Brown. He tried to enter the shop at approximately 7
a.m. when he saw a group of men out in front with picket
signs for Local 455. As he entered the shop, or attempted
to do so, Kenneth Mannsman came up to him, asked him
where he was going and continuously stepped in front of
Brown attempting to prevent Brown’s ingress to the shop.
All the time that this was occurring, Mannsman was
calling Brown a scab. When Brown asked why Manns-
man was doing this, the latter answered that he was
from Local 455 that they had been picketing for 10
months. Brown answered that this was a Local 810
shop; that Brown worked for Local 810, to which Manns-
man answered that Local 810 were a bunch of scabs.
95a
Decision
At that point, Mannsman made a gesture with his mouth
as though he were going to spit at Brown. At this point
Brown told Mannsman that he would knock out the
latter’s teeth if he spit at Brown. With this threat,
Mannsman backed off and stated that there were ways
of handling “punks like you, we'll get you later, some-
thing like that.” *
In another similar incident, shortly after Richard J.
Mason began employment with the Respondent-Employer
Greenpoint on February 23, 1976, he was called a scab
by John Bell who, at the same time spat in Mason’s
direction. Also, at about the same time while Mason
was working with another employee of Greenpoint named
Charlie, Bell called to Charlie and told the latter that he,
Charlie, was working for blood money. Additionally, ac-
cording to Mason, Bell said to Charlie or “Carl,” as the
latter was also known, “23 years in the Union, you know
better than that, get out of there Carl, that is blood
money.”
In addition, Mason testified that at one time while he
was at work, a picket, or at least an individual whom
Mason assumed was connected with the Union, took a
picture of Mason while the latter was at work. Later
in the day, the same individual, Timothy Garner, took
another picture of an employee named Dennis when they
went out for coffee. Mason testified that when Garner
took his picture, at approximately the same moment, Tony
28From credited testimony of both Kenneth Leistner and
Brown. In other parts of this Decision, I may credit Mannsman.
However, I do not credit the denials of Mannsman with regard to
this incident or his version of the same. Although it may well
be that there were some exaggerations in Kenneth Leistner’s
testimony, I found Brown to be a most reliable witness whose
testimony was not altered in any substantial manner on cross-
examination and conclude that his testimony lends cr
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