# Appendix — Shopmen's Local Union No. 455, International Ass'n of Bridge, Structural & Ornamental Iron Workers v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2157%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1979 - **Citation:** 439 U.S. 1130 ## Text 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 Appeals, Decided June 30, 1978 ........... 8a Decision and Order of the National Labor Re- r TERS Py ie eee enneee 43a %%ͥ U T— „ 156 , ² ͤ ˙U—T——2I— . ˙ 159 , ˙ ĩÄ—— 162a , ̃˙ ˙ .. ˙ 165a , 60 ibe odes bvaeo scoox eed 168a D Sikes Uoulvs vine eR eaeb cb mined arlcds 17la / ͤ˙Äõͤ . 174 , ˙UII.... 177a // ĩ ˙%// /// 180a , ̃ Tr 183a / /// ˙¾²Ä0¾ik.tWw!XXł!; Gece 186a , ̃ TTT 190a r ˙ . 194a s ˙ Sia ae er eee kee: 198a r ͤ . 202a , ͤ drat in rer rre leks chk 206a / ͤ ee sash sad cbdcwbedon ect 210a Rs 5 Fash ae ͤͤͥ—T—TT A ss . 215a / Caen <0 hc cnweae ek: 220a la 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2157%3A2. Public record. Not legal advice.