Atlas Electrical Service Co.

National Labor Relations Board - Board Decisions

Jun 19, 1969

176 N.L.R.B. 827 (N.L.R.B. 1969)

ATLAS ELECTRICAL SERVICE CO.
Atlas Electrical Service Co. and Local 199,
Industrial Workers of Allied Trades, affiliated with
The National Federation of Independent Unions
and Local 3, International Brotherhood of
Electrical Workers , AFL-CIO, Party to the
Contract
Local 3, International Brotherhood of Electrical
Workers, AFL-CIO and Local 199, Industrial
Workers of Allied Trades, affiliated with the
National Federation of Independent Unions and
Atlas Electrical Service Co., Party to the
Contract . Cases 29-CA-1200 and 29-CB-441
June 19, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On October 9, 1968 Trial Examiner Arthur M.
Goldberg issued his Decision in the above-entitled
proceeding , finding that Respondents had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed , as set forth in the attached Trial
Examiner ' s Decision . Thereafter the General
Counsel and the Charging Party filed exceptions to
the Trial Examiner' s Decision and supporting briefs.
Respondents filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the'Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed . The Board has considered the Trial
Examiner ' s Decision , the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Order recommended by the Trial Examiner, and
orders that the complaint herein be , and it hereby is,
dismissed in its entirety.
'Chairman McCulloch in adopting the Trial Examiner's recommendation
that the complaint be dismissed does not rely on that part of the Trial
Examiner's Decision which rests on application of U.S. Lingerie
Corporation, 170 NLRB No. 77, and SpunJee Corporation, 171 NLRB
No. 64.
TRIAL EXAMINER'S DECISION
827
ARTHUR M. GOLDBERG, Trial Examiner: Pursuant to
an order of the Regional Director for Region 29, a
hearing was held in Brooklyn , New York, on May 13 and
14, 1968 , on the consolidated complaint issued on March
29, 1968, alleging that Atlas Electrical Service Co . (herein
called Atlas or the Respondent Employer), violated
Section 8(a)(l), (2), and (5) of the National Labor
Relations Act, as amended (herein called the Act), and
that Local 3, International - Brotherhood of Electrical
Workers, AFL-CIO (herein called Local 3 or the IBEW),
violated Section 8(b)(1)(A) of the Act . Based upon the
charge filed by Local 199 , Industrial Workers of Allied
Trades, affiliated with the National Federation of
Independent Unions (herein called Local 199 or the
Charging Party), on January 9, 1968, in Case
29-CA-1200, the complaint alleged that Atlas had entered
into a collective-bargaining agreement with Local 3
notwithstanding the fact that Atlas was obligated to
recognize and bargain with Local 199 and that thereafter
Atlas refused to recognize and bargain with Local 199 or
to honor the contract between Local 199 and the United
Construction Contractors Association , Inc. (herein called
the Association). Based upon the charge filed by Local
199 on January 9, 1968, in Case 29-CB-441, the complaint
alleged that by its participation with Atlas in the
foregoing acts Local 3 had restrained and coerced
employees in violation of Section 8(b)(1)(A) of the Act.
The separate answers filed by Atlas and Local 3 denied all
of the material allegations of the complaint.
All parties were represented at and participated in the
hearing in Brooklyn , New York, and were afforded full
opportunity to be heard , to introduce evidence, to examine
and cross-examine witnesses, to present oral argument,
and to file briefs. General Counsel argued orally at the
close of the hearing . Briefs were filed by the General
Counsel, Atlas, and Local 3.
Upon the entire record in the case, from my reading of
the briefs, and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
Atlas Electrical Service Co . has been since 1961 the
sole proprietorship of Michael Kremer who maintains his
principal place of business in New York City, New York.
In 1967, Atlas' total volume of business was between
$160,000 and $180,000, 80 percent of which, or over
$100,000 , was derived from wiring automation machinery,
printing plants, and the like. At the time of the events
herein Atlas was working on a $65,000 contract for Air
France, an international common carrier by air, installing
part of a communications system between Air France's
New York and Paris offices. Although some of the
materials and supplies used by Atlas undoubtedly
originated outside the State of New York, the record
contains no probative evidence regarding the value of such
purchases by Atlas. Accordingly, I am unable to find that
Atlas' operations standing alone are sufficient to meet the
Board's standards for the assertion of its jurisdiction.
However, at times material herein , Atlas was a member of
the United Construction Contractors Association, Inc., an
employer organization composed of about 75 contractors
which bargains collectively with Local 199 and executes
collective -bargaining agreements covering the wages,
176 NLRB No. 110
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours, and other terms and conditions of employment of
the employees of those members of the Association who
thereafter execute an acceptance of such contract terms.
In 1965 Atlas bound itself to the terms of such an
Association -Local 199 contract and the status of the 1967
collective- bargaining agreement between the Association
and Local 199 is the principal issue in the instant
proceeding . "In these circumstances the relevant criteria
in determining the Board ' s jurisdiction is the effect on
commerce of the combined operations of all the
Employers in the Association."'
The record discloses that Jack Picoult , another member
of the Association whose principal office and place of
business is located in the State of New Jersey, is engaged
in the business of general and electrical contracting and
that during the 12 months preceding the instant hearing
Jack Picoult performed electrical services on a Federal
office building in New York City, New York, valued at
$200,000 and also performed work on a United States
Post Office and courthouse in Newark , New Jersey, on a
contract with a value of more than $2,600 ,000. In
connection with its work on the New York Federal office
building Jack Picoult purchased materials from points in
New Jersey and Kentucky. Alexander Picoult, president of
the Association and partner in the Jack Picoult firm,
testified without contradiction that members of the
Association collectively purchased materials in interstate
commerce valued in excess of $50 ,000 and performed
services outside of the State of New York in excess of
$50,000 . The Board has previously asserted jurisdiction
over the operations of Picoult alone ' and has asserted
jurisdiction on the basis of the Association ' s meeting the
jurisdictional standards.'
I find that the Association is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and
that on the basis of Atlas ' membership in the Association
it would effectuate the policies of the Act for the Board to
assert its jurisdiction in this proceeding over Atlas'
operations.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 3, International Brotherhood of Electrical
Workers, AFL-CIO, and Local 199, Industrial Workers
of Allied Trades, affiliated with the National Federation
of Independent Unions, are, and have been at all times
material herein , labor organizations within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Michael Kremer has been the sole proprietor of Atlas
since 1961 . All of Atlas' six employees were hired as
unskilled helpers and trained by Kremer to perform the
highly sophisticated electrical work involved in the
installation of automation controls and printing presses
which constitutes 80 percent of Atlas' operations.'
'Loe 3 , International Brotherhood of Electrical Workers , AFL-CIO
(Darby Electric Corporation). 153 NLRB 717, enfd . 362 F .2d 232 (C.A.
2k Belleville Employing Printers. 122 NLRB 350, 352 ; Westside Market
Owners Association 126 NLRB 167, 169-170; Siemons Mailing Service,
122 NLRB 81.
'Local 3, IBEW, AFL-CIO (Jack Picoult and Al Picoult d/b/a Jack
Picoult). 137 NLRB 1401.
'Local 3, IBEW, AFL-CIO (Darby Electric Corporation ), 153 NLRB
717, enfd. 362 F . 2d 232 (C.A. 2).
In 1963, to facilitate securing work, Kremer having
determined that a union contract was necessary sought out
Michael Gordon, president of Local 199, and arranged for
Gordon to take Kremer's employees into Local 199 and
for Atlas to sign a contract with that organization.
Thereafter Kremer sent his employees to see Gordon.
Although they were unaware of the prior arrangement
which their employer had made with Local 199, the
employees joined that organization and Kremer executed
an individual collective-bargaining agreement with Local
199. On January 5, 1965, Atlas joined the Association and
adopted the collective -bargaining agreement then in effect
between the Association and Local 199.1
The Association, which deals with no union other than
Local 199, has approximately 75 members. Under the
terms of the constitution and bylaws of the Association
"any person, firm or corporation, owning and operating
an establishment engaged in construction, is eligible to
become a member of this Association."' Under the
procedures followed by the Association at the end of each
contract term and following the negotiation of a new
collective-bargaining agreement , each member of the
Association is required to execute a new application for
membership in the form signed by Kremer when he joined
the Association in 1965. As explained by Alexander
Picoult, president of the Association, in the event a
current member of the Association fails to sign or delays
in signing such a new application, "He is not a member of
the Association at that point and until he signs the
application, he is not considered a member." Picoult
further testified that as to the new collective-bargaining
agreement , until the member signs the new application for
membership in the Association . . he has no
relationship to the new contract. He does not bind himself
to the new contract until he signs that application form."
B. The Events of 1967
Under the terms of the collective-bargaining agreement
entered into in 1964 between Local 199 and the
Association the contract term ran until November 15,
1967, with a provision for automatic renewal from year to
year unless either party served written notice of desire to
terminate. In August 1967 Local 199 reopened the
contract for renegotiation thereby setting in motion the
termination date of November 15. Bargaining on the
terms of the new contract took place from September
until November 1967 and after the parties failed to resolve
their differences by negotiation the impasse was submitted
for decision to an arbitrator designated by the New York
State Board of Mediation. The arbitrator issued his award
setting the terms for the new contract about the end of
'As stated in General Counsel 's brief, "Mr . Kremer spent a long time
training his electrician employees to do their specialized work , and neither
Local 199 nor Local 3 could supply him with experienced men in this
specialty."
'The application for membership in the Association which Kremer
signed constituted as well an acceptance of the Association -Local 199
contract. That membership application reads as follows.
I (We) hereby apply for membership in the United Construction
Contractors Association , Inc. I (We) understand that as a condition
membership and continued membership , I (We) shall abide by the
By-Laws of the Association . I (We) agree to be bound by, and to
comply with the terms of any agreement now existing, or which may
hereafter be entered into by the Association and the Industrial Workers
of Allied Trades, Local 199, with the same force and effect as though I
(We) had executed same as a party
'Art. III , sec. 1.
ATLAS ELECTRICAL SERVICE CO. 829
October 1967 and these terms were announced to the
members of Local 199 at a meeting of that organization
shortly after issuance of the award.
For some unspecified period of time the IBEW had
been conducting a continuing campaign to organize Local
199 members into IBEW ranks. During September 1967
Atlas employees met with Victor Steinfeld, a member of
Local 3 who served as a voluntary part-time organizer for
IBEW. Following the meeting with Steinfeld, the Atlas
employees during September and October spoke to
Kremer on a number of occasions about switching from
Local 199 to the IBEW. During these conversations
Kremer told his employees that he could not afford to pay
the benefits called for in'the IBEW contract. On October
30, 1967, following announcement of the terms of the new
Association-Local 199 contract, all of Atlas' employees
signed authorization cards for Local 3, IBEW. The Atlas
employees then notified Kremer that they had joined
IBEW and asked him to sign a contract with that
organization.
Approximately 2 weeks after his employees had advised
him of their adherence to the IBEW, Kremer, on
November 14, 1967, attended an Association membership
meeting at which time he signed a new application for
membership in the Association and accepted the terms of
the new Association-Local 199 contract.' The
collective -bargaining agreement between the Association
and Local 199 provides in pertinent part at paragraph 3:
The Association agrees that each member of the
Association, as a condition for membership (or
continued membership) in the Association, shall execute
a membership application which shall contain the
following provision:
We agree to be bound by, and to comply with the
terms of any agreement now existing or which may
hereafter be entered into between the Association and
Industrial Workers of Allied Trades, Local 199, with
the same force and effect as though we had by these
present executed the same as a party.
A duplicate original of the membership application
shall be sent to the Union by the Association within
five (5) days after its execution by a member.
On November 14, when he signed his new application
for membership in the Association, Kremer was required
to give notes to the Association covering his dues in that
organization for the following 3 years and was told that if
he failed to pay his dues in advance for that period he
would not be permitted to retain his membership in the
Association nor would he be covered by the new
Association-Local 199 contract.
Four or five days after Kremer rejoined the
Association, on November 18 or 19, the employees
advised him that if Atlas did not sign a
collective- bargaining agreement with the IBEW they
would leave his employ and take jobs with IBEW
contractors on referral from Local 3. At that time Atlas
was engaged in two jobs with specified completion dates
and Kremer testified without contradiction that failure to
complete those jobs "would have ruined me." On or about
November 26 or 27 Kremer asked Gordon, president of
Local 199, for help. Gordon advised Kremer to let his
men go and thereafter Local 199 referred one employee to
Kremer who found the man sent by Gordon to be
unqualified as an electrician and unable to perform Atlas'
work.
'See fn . 5, supra.
Early in December 1967 Kremer turned to the
Association for help. At that time Kremer spoke to the
Association attorney, George Turchin, and asked what the
Association could do for Atlas in face of the employees'
ultimatum. Following this conversation Kremer was
invited to a meeting of the Association's board of
directors where, after Kremer explained the situation, he
was advised to let the men go and not to worry. Some
Association members suggested that they get together and
finish Atlas' jobs. Kremer replied that this was not
possible because his work depended on other people doing
their jobs and further explained that the employees of the
other Association members were not qualified to do the
work involved on Atlas' jobs. Kremer told the Association
board that for him to let his men go was the same thing
as closing and going out of business.
Early in December Kremer called Local 3 and spoke to
one Chaloupka, an IBEW official. Following that
conversation Atlas' employees engaged in a half-day work
stoppage. Kremer then spoke to employee Woods who
suggested that they visit the IBEW office to discuss
solution of Atlas' problem. The two men went to Local
3's office where Kremer was shown the IBEW
authorization cards his employees had signed on October
30. A few days later Kremer signed a contract with the
IBEW when in Kremer's words "The job stopped and I
could not get any action, and at that time neither the
Association or Gordon had done anything for me." On
December 13, 1967, Kremer sent a letter of resignation to
the Association and on January 3, 1968, advised Local
199 that his employees had been organized by Local 3 and
that he had signed the contract with the IBEW. On
March 21, 1968, his bank advised Kremer that a check for
$75 from the Association, the amount of annual dues in
that organization, had been credited to his account. On
various dates in April 1968 Local 199 received letters of
resignation from Atlas' employees.'
C. Findings and Conclusions
In the usual case of multiemployer bargaining there
exists a consensual arrangement that the individual
employer-members of the multiemployer unit will be
bound without further action on their part to the terms of
the new collective-bargaining agreement resulting from the
negotiations between the multiemployer unit and the union
involved. It is to preserve the integrity of such a
consensual relationship and to maintain stability in
bargaining relationships that the Board has enunciated
and enforced its rules pertaining to withdrawal from
multiemployer bargaining arrangements by tither
individual employers or the union.' However, based upon
the facts of the instant case I do not find that there was a
'The foregoing recitation of the facts in this case is based upon a
synthesis of the testimony of all witnesses , those of the Respondent and
General Counsel, who were in substantial agreement on the material facts.
A dispute arose on the issue of membership of the Atlas employees in
Local 199. Gordon , president of Local 199, testified that the employees
had paid their dues through December 31 , 1967, and that this was the fact
although the individual employee ledger cards maintained by Local 199
indicated they had paid only $63, the equivalent of three quarters ' dues at
the rate of $21 a quarter, in the year 1967. Two Atlas employees testified
that during 1967 they had paid dues for only three quarters , through
September 30, 1967 , and had paid no dues to Local 199 following that
date . Based upon their demeanor while testifying , as well as the
inconsistency between Local 199's records and Gordon 's testimony, I credit
the employees' testimony that they had paid no dues to that organization
after September 30, 1967.
'Retail Associates. Inc.. 120 NLRB 388; Sheridan Creations, Inc., 148
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consensual arrangement that the employer -members of the
Association would be bound , by the terms of a new
contract negotiated between the Association and Local
199, without any further action on the part of the
individual employers . To the contrary, I find that at the
conclusion of negotiations between the Association and
Local 199 each employer-member was free to either
reapply for membership in the Association and adhere to
the terms of the newly negotiated contract or refrain from
so applying to the Association and be free of the new
contract provisions . Thus, Association President Picoult
testified that until the individual employer signed a new
application for membership in the Association ". . he
has no relationship to the new contract . He does not bind
himself to the new contract until he signs that application
form ." That this was the policy followed is buttressed by
Kremer' s uncontradicted testimony that when he attended
the Association meeting on November 14, 1967, with the
purpose of signing a new application for membership in
the Association and thus accepting the terms of the
contract with Local 199, he was informed that unless he
paid his dues for 3 years in advance he would not be
permitted to retain his membership in the Association and
would not be covered by the new Association-Local 199
contract . I further find that Local 199 acquiesced in this
relationship of the individual employer-member of the
Association to the obligations of the new
collective-bargaining agreement . The contract, itself,
expressly requires that each member of the Association
reapply for membership and at the same time agree to be
bound by and comply with its terms . Further, Local 199
as the Charging Party in these proceedings was
represented by counsel who was present when Picoult
testified that the individual employers were not parties to
the agreement until execution of their new application
form and acceptance of the contract terms . Yet, no
testimony was offered to counter this denial of a prior
acceptance by the individual employers of the outcome of
the negotiations . It follows therefore that until each
employer-member of the Association executes a new
application for membership and an acceptance of the
terms of the new contract he stands in the position of an
individual employer dealing with the Union on an
individual basis and the Board ' s rules pertaining to
untimely withdrawal from the Association multiemployer
unit do not apply."
It is in this context of Atlas' obligations vis-a-vis the
1967 Association-Local 199 contract that the actions of
Atlas' employees and Kremer 's subsequent dealings with
the Association , Local 199, and the IBEW, must be
examined . When on October 30, 1967, Atlas ' entire
working force voluntarily signed authorization cards
designating Local 3 to be their bargaining representative
and shortly thereafter advised Kremer of their action,
Atlas was not free to accept the terms of the
Association-Local 199 contract . Under this state of facts
Atlas was precluded from further bargaining with Local
199 until the question concerning representation raised by
this rival claim on behalf of the IBEW had been resolved
by the orderly processes provided by the Act. Shea
Chemical Corporation, 121 NLRB 1027, 1029. It follows
that Atlas' acceptance on November 14 of the
Association -Local 199 contract was in derrogation of its
obligations under Shea Chemical. The Board therefore
should accord no weight to this contract entered into after
all of Atlas' employees had advised Kremer of their
defection to the IBEW.
In any event were I to find that the facts of the instant
proceeding give rise to the usual obligations of the
individual employer flowing from participation in
Associationwide bargaining , I would further find that in
the circumstances of this case unusual conditions existed
permitting an untimely withdrawal by Atlas from the
Associationwide bargaining . I am persuaded to this result
by the following circumstances : Atlas' operations are
totally different from those of the other members of the
Association who are "engaged in construction."" The
record supports the finding that the operations of Atlas,
which consist primarily of supplying electrical services for
the installation of automation controls and printing
equipment , remove Atlas from the construction industry.
Carpet, Linoleum and Soft Tile Local No. 1247 (Indio
Paint & Rug Center), 156 NLRB 951." To perform the
highly sophisticated electrical work of automation
installation Kremer had himself trained his entire working
force and replacements for these men were not obtainable
in the labor market.
Thus, when the employees advised Kremer that they
would leave his employ if he failed to sign a contract with
the IBEW he was faced with the immediate prospect of
being unable to complete his jobs in the process of being
forced out of business . In the face of this threat Atlas
unsucessfully sought help from Local 199 and the
Association in its efforts to remain in business. It was
only after his appeals for help to Local 199 and the
Association proved unsuccessful and after the employees
had demonstrated their determination to be represented by
Local 3 by participating in a work stoppage that Atlas
signed a contract with the IBEW, resigned from the
Association , and renounced the Local 199 contract.
All things considered , including the privilege that
individual employer-members of the Association had
concerning their acceptance or rejection of the results of
Associationwide bargaining ; the evident prospect that
Atlas would be forced out 'of business if it continued to
maintain Association membership and a bargaining
relationship with Local 199; and, the failure of either the
Association or Local 199 to assist Atlas to remain in
business , by furnishing replacements for its disaffected
employees I find that Atlas effectively withdrew from the
Association and for the reasons stated above was not
bound by the Association-Local 199 collective-bargaining
agreement . Spun-Joe Corp., 171 NLRB No. 64; U.S.
Lingerie Corporation 170 NLRB No. 77. It follows
therefore that Local 3 cannot be held to have violated the
Act by its participation with Atlas in the execution of
their collective - bargaining agreement . Accordingly , I shall
recommend dismissal of the complaint in its entirety.
NLRB 1503, enfd . 357 F.2d 245 (C.A. 2).
"In these circumstances the test of union majority based on the
multiemployer unit as a whole would not apply to those employers who
had not rejoined the Association at the conclusion of Association-Local
199 bargaining . Cf. Sheridan Creations . Inc.. 148 NLRB 1503, enfd. 357
F.2d 245 (C.A. 2). Accordingly , prior to its reapplication for membership
in the Association , Atlas' employees alone would constitute an appropriate
unit for bargaining . Cf. Mor Parkes:. 171 NLRB No. 20.
" Association constitution and bylaws, art. III , sec. 1.
"The inclusion in the Association -Local 199 contract of a union-security
clause requiring membership in Local 199 after 7 days of employment as
authorized by Sec. 8(f) of the Act for contracts covering employees in the
construction industry, would not of itself excuse Atlas' acts herein but
would go only to the remedy had the facts herein led to a finding of the
violation urged by General Counsel . Tulsa Sheet Metal Works. Inc, 149
NLRB 1487, enfd . 367 F.2d 55 (C.A. 10).
ATLAS ELECTRICAL SERVICE CO. 831
CONCLUSIONS OF LAW
1. United Construction Contractors Association , Inc., is
engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 3, International Brotherhood of Electrical
Workers, AFL-CIO, and Local 199 , Industrial Workers
of Allied Trades, affiliated with the National Federation
of Independent Unions, are labor organizations within the
meaning of Section 2(5) of the Act.
3. The Respondents have not engaged in unfair labor
practices as alleged in the complaint.
RECOMMENDED ORDER
It is recommended that the complaint herein be
dismissed.