Electrical Workers IBEW Local 22 (Electronic Sound)

National Labor Relations Board - Board Decisions

Feb 17, 1984

268 N.L.R.B. 760 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
Local Union No. 22 and Electronic Sound, Inc.
Case 17-CB-2645
17 Februrary 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 16 February 1983 Administrative Law Judge
Clifford H. Anderson issued the attached decision.
The Respondent filed exceptions and supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, ' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, International
Brotherhood of Electrical Workers, Local Union
No. 22, Omaha, Nebraska, its officers, agents, and
representatives, shall take the action set forth in the
Order.
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
We note a factual error contained in the decision which does not affect
the outcome of the case. In discussing the parties' past and present prac-
tice of implementing agreements prior to the receipt of approval by the
International, the judge erroneously stated that the Respondent did not
object to Electronic Sound's implementation on I July 1982 of the cur-
rent disputed agreement. The judge correctly stated elsewhere in his de-
cision that the Respondent's bargaining representative wrote to Electron-
ic Sound's representative on 30 June and called several days later seeking
further negotiations.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge:
This case was tried before me on December 7 and 8,
1982, in Omaha, Nebraska, pursuant to a complaint and
notice of hearing issued by the Regional Director for
Region 17 of the National Labor Relations Board on
September 22, 1982, based on a charge filed on July 28,
1982, and amended on September 16, 1982, by Electronic
Sound, Inc. (the Charging Party or the Employer),
against International Brotherhood of Electrical Workers,
Local Union No. 22 (the Respondent or the Union).
The complaint alleges that the Respondent and the
Charging Party reached complete agreement on terms
and conditions of a new collective-bargaining agreement
covering employees in an appropriate unit represented
by the Union about June 24, 1982, but that at all times
since July 19, 1982, the Union has failed and refused to
execute a written agreement embodying the terms agreed
to, thereby violating Section 8(b)(3) of the National
Labor Relations Act. The Respondent filed an answer
denying that it has violated the Act.
FINDINGS OF FACT
All parties were given full opportunity to participate
at the hearing, to introduce relevant evidence, to exam-
ine and cross-examine witnesses, to argue orally, and to
file post-hearing briefs. Upon the entire record herein, in-
cluding briefs from the Union and the General Counsel, I
make the following findings of fact.'
I. JURISDICTION
The Employer is a State of Nebraska corporation en-
gaged in the installation of communication systems in-
cluding public address and intercommunication systems
from a facility in Omaha, Nebraska. The Employer annu-
ally enjoys a gross dollar volume of business in excess of
$500,000 and annually purchases goods and services in
excess of $50,000 from sources located outside the State.
II. LABOR ORGANIZATION
The Union is and at all times material has been a labor
organization within the meaning of Section 2(5) of the
Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For over 15 years, the Union has represented the Em-
ployer's employees in the following appropriate unit:
All employees performing work which is necessary
to maintain, install, and repair intercommunication
sound and public address equipment and apparatus
and intercommunication sound and public address
systems, excluding all other employees, guards and
supervisors as defined in the Act.
Over the period the parties have entered into a series of
collective-bargaining agreements including the two most
recent contracts, the first effective from July 1, 1976, to
June 30, 1979 (the 1976 contract), and the second effec-
tive from July 1, 1979, to June 30, 1982 (the 1979 con-
tract).
Consistent with the constitution of the Union's govern-
ing International2 both the 1976 and the 1979 contracts
I The answer admits the bulk of the allegations of the complaint and a
significant portion of the evidence at trial was undisputed. Where not
otherwise indicated, the following findings are based on uncontested
pleadings, stipulations of fact by counsel at the trial, or unchallenged
credible testimonial or documentary evidence.
2 The International Brotherhood of Electrical Workers constitution for
the relevant period, at art. XVII, sec. 7, requires that local unions, such
Continued
268 NLRB No. 111
760
ELECTRICAL WORKERS IBEW LOCAL 22 (ELECTRONIC SOUND)
specifically provided: (1) for approval by the Internation-
al office of the Union of any amendment to the agree-
ment, and (2) for approval of the agreement itself. The
following entry appears below the signature lines of both
contracts:
Subject to the approval of the International Presi-
dent of the International Brotherhood of Electrical
Workers.
While all contracts have been separately negotiated
with the Employer, the 1976 and 1979 contracts between
the Union and the Employer were identical to contracts
negotiated by the Union and other area employers in the
sound and public address industry. Those other employ-
ers have negotiated and signed 1982 agreements with the
Union. All industry contracts, after being signed by the
parties, were submitted by the Union to the International
and all were approved by the International president.3
The 1976 and 1979 contracts were applied as of their ef-
fective dates, i.e., July 1, even though, at least as to the
1979 contract, a 3-month delay occurred before the con-
tract was approved by the International. While negotiat-
ed contracts have also been regularly submitted for ap-
proval by members, there is no constitutional require-
ment that the Union have contracts ratified by members,
nor is there any evidence that the Union has ever obli-
gated itself during negotiations or otherwise to submit
contracts to a ratification vote.
Earl S. Oliver, business representative of the Union,
has for many years represented the Union in bargaining
with the Employer. Daniel E. Van Roy, the Employer's
owner and a long-time union member, has for many
years represented the Employer in bargaining with the
Union.
B. Bargaining in 19824
Following timely requests for bargaining, Oliver and
Van Roy met and bargained on May 25 and June 16
concerning terms of a contract to replace the expiring
1979 contract. In these initial bargaining sessions Van
Roy sought significant reductions in the new contract as
compared to the then current contract. The Union did
not accept these proposed reductions but rather pro-
posed increases in wages and benefits. No agreement was
reached. On June 21, Van Roy and Oliver met in the
presence of several of the Employer's employees. Again
the Employer pressed for reductions and the Union re-
fused to agree.
About June 24, Oliver held a meeting with the Em-
ployer's employees at the union hall to discuss the state
of the negotiations. A new union proposal was decided
on. It was determined to notify Van Roy of the new pro-
as the Union, submit all agreements or amendments to agreements to the
International office for approval. Art. XVII further states that agree-
ments shall not go into effect without International approval and are null
and void without such approval,
3 The 1979 contract was approved by the International president on
October 3, 1979. The approval date of the 1976 contract is not apparent.
4 All dates hereinafter refer to 1982 unless otherwise indicated.
posal immediately. 5 Oliver telephoned Van Roy at his
home from the union hall and gave him the new union
proposal. Van Roy told Oliver he wished to study the
union proposal but they would speak again as soon as he
had done so. Oliver and the employees gathered in Oli-
ver's office awaiting Van Roy's telephonic response.
Soon thereafter Oliver and Van Roy were again in
contact by phone. Van Roy told Oliver he agreed to the
Union's proposal with certain modifications. After some
quick give and take, a final offer was made by Van Roy.
The employees in the office considered the final proposal
while Van Roy waited on the line and could hear what
was happening at the union hall. The employees voted
unanimously to accept the Van Roy offer.
What occurred immediately thereafter is disputed.
Oliver testified that he told Van Roy that the employees
had agreed to Van Roy's proposal. Oliver specifically
denied telling Van Roy either that the parties had
reached an agreement or that it looked like that they had
a contract. Van Roy testified that at this point in the
phone conversation Oliver told him it "looks like we
have a contract. But first I want to go over everything."
Thereafter the proposed items were reviewed and the
employees polled a second time. Then Oliver told him,
in Van Roy's recollection, "It looks like we have a con-
tract. No, we do have a contract." Employees Loren
Reining, Dale Rennerfeldt, and Harry Wilson were
present in the union office with Oliver when he spoke to
Van Roy. Each recalled that at this point in their con-
versation Oliver told Van Roy that it looked like or he
thought that they had a contract. There is no dispute
that thereafter the telephone call soon ended. The assem-
bled employees and Oliver reviewed the specific propos-
als discussed on the phone and the employees' agreement
with them. Thereafter the union hall meeting ended with
Oliver inviting the employees out for a beer.
On June 30, Oliver held another meeting with the Em-
ployer's employees. He told them he would not sign a
contract with the June 24 terms as they were in his view
insufficient. Oliver also sent a letter on that same day to
Van Roy seeking further negotiations to resolve "differ-
ences that have come up during our negotiating proc-
ess." Van Roy returned from his vacation in early July
and spoke to Oliver by telephone. Oliver sought further
bargaining. Van Roy contended a contract had already
been reached and declined to enter into new negotia-
tions. The parties thereafter consulted their counsel. On
July 9 counsel for the Employer mailed a letter and an
attached contract to Oliver. The contract assertedly em-
bodied the agreed-upon terms of the June 24 agreement.
Thereafter Oliver requested an additional meeting be-
tween the parties. On July 26 the parties and their coun-
sel met. The Union again sought to negotiate. The Em-
ployer sought the Union's adoption of the earlier ten-
dered contract. No agreement was reached.
As of the time of the hearing, the Union continued to
refuse to acknowledge that any agreement had been
reached on June 24 and refused to execute such an
Van Roy was planning to leave on a week's vacation the following
day. It was therefore considered desirable to conclude negotiations, if
possible, before he left and before the old contract expired.
761
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement. The Employer continues to refuse to resume
negotiations asserting that an agreement has been
reached and its terms implemented."
C. Analysis and Conclusions
1. The positions of the parties
The General Counsel contends that full and complete
agreement was reached between the Employer and the
Union regarding a new contract on June 24. The Union
disputes this assertion and makes several additional argu-
ments. First, the Union argues that the employee vote
did not bind the Union both because its governing con-
stitution does not require ratification by members and be-
cause the ratification process was tainted by the Employ-
er's misconduct. Second, the Union argues that Oliver
did not agree to or express agreement with the Employ-
er's June 24 proposals at any time. Third, the Union
avers that the parties engaged in further bargaining after
the alleged agreement was reached. Fourth, the Union
claims that any agreement reached is invalid unless and
until it has been approved by the International. It ap-
pears useful to treat the various issues as follows:
2. The effect of the employees' ratification vote and
the allegations of taint
The Union argues that the employees were not agents
of the Union for purposes of binding the Union to an
agreement with the Employer and, therefore, that the
employee vote taken on June 24 could not and did not
bind the Union. I agree. Indeed, it is not even clear the
General Counsel makes a contrary assertion. Only Oliver
possessed actual or apparent authority to initially bind
the Union, setting aside for the moment the issue of
International approval. It follows then that it is the ac-
tions of Oliver, not the actions of the employees, which
determine the result herein.7
s The Employer's final proposal to Oliver on June 24 was implemented
by the Employer effective July 1, 1982, and remains in effect. Part of the
final proposal discussed on June 24 was an agreement by the Employer
to cease deducting from employees' wages a sum that had previously
been remitted to a particular trust fund and thereafter to pay the money
directly to the employees, i.e.,,by ending the deduction. Van Roy testi-
fied that, while these payments continued to be remitted to the trust for a
brief period after July, the employees also received the sum due them,
i.e., no deduction was made from their wages. Thus for that time, the
Employer made double payments, i.e., to the employees and to the trust.
I A consequence of my agreement with the Union that the employees
are not agents of the Union and my agreement that the ratification vote
was of no independent legal significance is that statements by the Em-
ployer's agents to employees outside of Oliver's presence regarding their
future wages and benefits are not relevant if the Union were not bound.
This is so because the employees could not act to bind the Union to the
agreement. Thus I reaffirm my ruling at trial sustaining the General
Counsel's objection to the receipt of such evidence. Employee Reining's
supervisory and unit status is for the same reason irrelevant and I make
no findings on the issue. Lastly, the Union's argument that the Employ-
er's agent, Van Roy, by threatening adverse consequences to employees
if a favorable contract were not obtained, rendered any agreement with
Oliver invalid, is also rejected. While such a theory has been discussed in
the cases, see, e.g., Dixie Sand Co., 231 NLRB 6 (1977), the Board re-
quires a quantum level greater misconduct by an employer than was sug-
gested in the instant case, even resolving the record evidence in a manner
most favorable to the Union, to sustain such an argument.
3. Did Oliver express agreement on June 24 to the
term of a new contract?8
It is clear that the Union and the Employer had nar-
rowed their differences by exchanging proposals and
counterproposals in the negotiation sessions. By the time
of the second phone call on June 24 there was little sepa-
rating their two positions. At the end of that call, after
the final differences were bridged and the employees had
expressed approval of the Employer's last offer, Oliver
reported to Van Roy. The disputed versions of his last
remarks have been noted, supra. I believe that under any
version of Oliver's statements to Van Roy, Oliver ex-
pressed sufficient assent to bind the Union to acceptance
of the final proposal of Van Roy.9 First, Oliver never
disassociated himself or the Union from the proposals he
made in response to Van Roy's proposals. It was this ex-
change which narrowed the outstanding differences be-
tween the parties until the Employer's last offer was ac-
cepted. Second, Oliver willingly put the Employer's last
proposal to the employees and admittedly reported to
Van Roy the employees' assent and agreement with it,
again without expressing caveat or reservation regarding
the Union's agreement. Given this context, no more was
required from Oliver for his conduct to constitute a fair
and reasonably construed assent to the Employer's final
proposal. Thus I find that Oliver agreed with the last
proposal of Van Roy and thus full and complete agree-
ment was reached on all the terms of a new contract.' 0
Had Oliver wished to withhold the Union's agreement,
he was obligated to in some fashion put Van Roy on rea-
sonable notice of that fact. He did not do so and he and
the Union are bound by that omission.
4. Did the Employer waive its right to insist on the
June 24 agreement by engaging in further
bargaining on July 26?
On July 26 the parties met. The Employer sought ap-
proval of the July 9 draft it had sent the Union which it
believed reflected the terms of the June 24 agreement.
The Union argued that the proposed draft was not con-
sistent with the final June 24 proposal. The Employer of-
fered to change the draft as to the disputed matter if the
Union would then sign it. The Union declined to do so.
The meeting then ended.
It is clear and I find that, while the Union sought to
reopen negotiations at the July 26 meeting, the Employer
sought only to reduce the June 24 agreement to writing
and to obtain the Union's signature thereon. The Em-
ployer's agents did not acquiesce in the Union's request
for further negotiations when they offered to modify a
s The objective evidence of Oliver's conduct, not his undemonstrated,
subjective intention, must be the basis for determining if agreement was
reached.
i Reviewing authority may differ with this determination. Accordingly
I make the following alternative finding to avoid a remand in such an
instance. Based on the relative demeanor of the witnesses, I credit the
testimony of Van Roy, as corroborated by the three employees present,
over that of Oliver. Thus I find that Oliver told Van Roy that "they"
had a contract and I further find Oliver did not merely tell Van Roy that
the employees, as opposed to the Union, had agreed to the last offer.
10 The negotiations concerned changes to be made in the contract with
unchanged portions of the old contract to be retained in the new.
762
ELECTRICAL WORKERS IBEW LOCAL 22 (ELECTRONIC SOUND)
part of the draft contract. They were seeking to reduce
the June 24 agreement to specific contract language.
Such conduct does not constitute new negotiations. The
Board has noted the difference between a meeting at
which an oral agreement is reached, which agreement is
binding on the parties, and the occurrence of a separate
later meeting to "draft legalistic language reducing the
parties' previously arrived at oral agreement to writing."
Teamsters Local 85 (Tyler Bros Drayage Co.), 206 NLRB
500, 506 (1973). It is the June 24 oral exchange which
constitutes the agreement and not the July 9 draft. The
dispute over the wording of the July 9 letter at the July
26 meeting is of no consequence to the June 24 agree-
ment. Thus, I find that the June 24 agreement was unaf-
fected by subsequent events. Accordingly I find there
was no waiver by the Employer of its right to insist that
the Union abide by the June 24 agreement and sign a
document reflecting the terms agreed upon.
5. The issue and consequences of the International's
approval rights
The Respondent argues that no contract agreed upon
or even signed by a local union, including the Union, of
the International Brotherhood of Electrical Workers, has
validity or binding effect unless and until the contract
has been approved by the International. The Respondent
notes: (1) previous contracts between the Employer and
Union bore expresss approval language, (2) the Interna-
tional's constitution is equally explicit on the issue, and
(3) all previous contracts have been submitted to the
International and were approved by it. The General
Counsel asserts that: (1) previous contracts have been im-
plemented immediately by the Employer with the
Union's knowledge and acquiesence before they were
submitted to much less approved by, the International,
(2) the International has never disapproved any contract
between the parties, (3) the Employer's agents had never
been informed of a contract's approval by the Interna-
tional, and (4) the 1982 agreement was never submitted
to the International by the Union.
The sole relevant factual dispute in this portion of the
case occurs in the differing recollections of Oliver and
Van Roy as to whether or not Oliver had ever informed
Van Roy that previous contracts between the Union and
the Employer had been approved by the International. I
find this dispute unnecessary to resolve." This is so be-
cause each contract, including the Employer's July 9
draft of the disputed 1982 contract, bears the explicit lan-
guage quoted, supra, reserving to the International the
right to approve the contract. This power was regularly
utilized. Approval from the International was in fact se-
cured for each contract signed by the parties. Nothing
the Union did or did not do in its dealings with the Em-
"' Again to avoid the necessity of remand should reviewing authority
differ, I shall make the following alternative finding. Were it necessary to
resolve this dispute, I would find that, in fact, Oliver had told Van Roy
sometime after October 1979 that the 1979 contract had been approved
by the International. There was no reason Oliver would be rectinent to
do so nor was there reason either Oliver or Van Roy would view the
matter as of particular significance. Under all the circumstances, includ-
ing consideration of the demeanor of each witness on the question, I
credit Oliver's recollection that he did so inform Van Roy over Van
Roy's testimony that he had no recollection of such a conversation.
ployer could have been reasonably taken by the Employ-
er to cancel the approval language on the face of the
contract or to suggest the language was inapplicable or
otherwise not in effect. Absent some disclaiming conduct
or statement by the Union, and where the procedure has
in fact been regularly followed, the clear statement on
each contract that it was "subsequent to approval" may
not be disregarded or held to have been waived. This is
true even if the Employer's agents were never informed
of the Union's previous submission of the contracts to
the International or the fact of approval by the Interna-
tional of the contracts.
There are important differences between the language
of and the parties' knowledge of and practice regarding
the approval limitation statements in the constitution and
on the face of the contract. First, the approval reserva-
tion language which appears on the face of each contract
is less far-reaching than the limitation language in the
International union's constitution. The constitution states
that any agreement is of no force or effect unless and
until approved by the International. The contract limita-
tion language does not require International approval
before the contract is effective. Thus the contract lan-
guage makes approval a condition subsequent, the consti-
tution a condition precedent to the contracts becoming
effective.
Second, different circumstances applied to the notice
the Employer had of the constitution's language. The
International union's constitution was apparently never
disclosed to or explained to the Employer's agents by
union personnel and was otherwise unknown to Van
Roy.12 Thus, unlike the clear limitation requiring ap-
proval on the face of each contract, the preapproval re-
quirement in the constitution was not known by the Em-
ployer to be a limitation in the union agent's ability to
bind the Union. While it is not improper to reserve to an
International the right to approve a contract before it be-
comes effective, no party objecting, such a right cannot
be achieved without the Employer's knowledge.
Third, the practice of the parties was inconsistent with
the language of the constitution. The Union by agreeing
that the 1976 and 1979 contracts take effect immediately,
before they were submitted to the International for ap-
proval, clearly manifested its unconditional intent to be
bound by the contracts immediately and at least until re-
jection by the International. The Union knew on June 24
that the Employer was going to implement the agree-
ment on July 1. It did not object. This history of preap-
proval implementation is clear evidence of past practice
inconsistent with the constitution which renders the
"prior approval" limitation of the constitution ineffec-
tive. Paperworkers Local 795 (International Paper Co.),
254 NLRB 1332 (1981).
12 Van Roy was a longtime member of the Union. The Respondent
argues he should therefore be held to at least constructive knowledge of
the International constitution and its terms. Given Van Roy's specific
denial that he had ever read or even seen such a document, I find that
the fact that he joined the Union many years ago and retained his union
membership while a principal of the Employer is insufficient to support a
finding of actual or constructive knowledge of the constitutional lan-
guage at issue.
763
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Given all of the above, I conclude that the parties
reached agreement on June 24 and that the agreement,
consistent with the past practice of the parties, was effec-
tive July 1, 1982. This is so irrespective of the Union's
International's constitutional requirement of International
approval before a contract takes effect.' 3 I further con-
clude however that the provision for approval by the
International which appears on the face of each contract
was a known requirement which was not rendered inef-
fective by contrary statements by union agents or incon-
sistent past practice. It is therefore a valid and effective
condition subsequent which could terminate the contract
before its expiration. Since such approval is not a condi-
tion precedent to the contract's effectiveness, the agree-
ment must be signed by the Union and binds the Union
unless and until the International disapproves it.
In conclusion, I have found, in agreement with the
Union, that the approval limitation on the face of the
1976 and 1979 contracts was valid and effective. There is
no dispute and I find that the same language was part of
the June 24 agreement. I have also found, in agreement
with the General Counsel, that the Union's constitution's
approval limitation was not known to the Employer and
has been waived by the consistent and contrary past
practice of the parties. Thus the constitutional limitations
do not apply to the June 24 agreement.
The contract was agreed upon and became effective
on July 1, 1982, and will remain in effect until its expira-
tion unless and until disapproved by the International.
The Union may not assert the lack of approval by the
International as a defense to its refusal to execute a con-
tract containing the terms agreed upon on June 24. Ac-
cordingly, the Union was obligated to sign the agree-
ment and its refusal to do so violates Section 8(b)(3) of
the Act. The fact that the contract is susceptible to being
terminated, although not ab initio, if disapproved by the
International, is not a defense to the Union's obligation
to sign and abide by the agreement unless and until it is
disapproved by the International.
6. Summary
In agreement with the Union, I have found that the
employees of the Employer were not agents of the
Union and that the ratification vote by employees there-
fore did not, in and of itself, commit the Union to the
terms of the June 24 agreement. The only union agent
involved herein was Oliver. Looking to Oliver's acts and
conduct, I found that Oliver, by proposing and counter-
proposing contract terms with Van Roy the Employer's
agent until no difference existed in final proposals, and
by announcing to Van Roy that the employees had ac-
cepted the last contract terms discussed, without propos-
ing other terms or indicating any personal or union dis-
approval of the terms, under all the circumstances,
Is In a recent case, Hinley Printing Co., 262 NLRB 157 (1982), the
Board dismissed an allegation that a union was bound to sign a contract
modification because of a lack of evidence that the International union
president had approved the contract modification. The Board found on
the facts of that case that such apporval was an explicit, known, and nec-
essary predicate to obligating the Union to sign the agreement. There-
fore, were I to have found the Union's constitutional limitation to have
applied to the instant case, the Union would not have been obligated to
sign the unapproved contract.
agreed to the terms offered. I have further found that the
requirement for approval of the contract by the Interna-
tional, in the circumstances discussed, supra, does not
provide a defense to the Union's refusal to execute an
agreement containing the terms agreed to on June 24,
1982. I have therefore found the Union's continuing re-
fusal to sign an agreement reflecting these terms violates
Section 8(b)(3) of the Act.
IV. REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act, including
the posting of a remedial notice to employees and union
members. Specifically, and as requested by the counsel
for General Counsel in her opening statement, I shall
order that the Respondent execute and give retroactive
effect to the collective-bargaining agreement the Union
reached with the Employer about June 24, 1982, cover-
ing the Employer's employees in the unit described,
supra, until its expiration or until the International has
disapproved its terms. Papermakers Local 795 (Interna-
tional Paper Co.), 254 NLRB 1332.
The General Counsel on brief sought an "appropriate
remedy" for the 8(b)(3) violation without further elabo-
ration. I have considered and decided against including
in my recommended Order herein a provision that the
Respondent submit the June 24 agreement to the Interna-
tional for its approval or rejection. First, an appropriate
remedial order should restore the parties to the position
they would have been in and had the unfair labor prac-
tices not occurred. Insofar as the record reflects, had the
Union signed the contract tendered to it on July 9, there
would have been no compulsion on it to submit that con-
tract to the International for approval. Second, I have
found that the June 24 agreement will bind the Union
until the contract's expiration or until the International
disapproves it. Therefore there seems little incentive for
the Union, which is the party apparently dissatisfied with
the terms agreed upon, to delay submitting the contract
to the International.14
Upon the foregoing findings of fact and the record as
a whole, I make the following
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
" The Union argued that, if it was bound to sign the contract, there
will be adverse effects on other contracts it has negotiated in the industry
which contain "most favored nation" clauses. First, this is not necessarily
so because the International may reject the June 24 agreement and there-
fore avoid any adverse effects under those clauses in other contracts.
Second, and more importantly, irrespective of the wisdom of the Union's
actions in agreeing to the Employer's terms on June 24, it is bound by its
agent's conduct and cannot now advance reasons why it should not have
taken the action it did.
764
ELECTRICAL WORKERS IBEW LOCAL 22 (ELECTRONIC SOUND)
3. The following unit: All employees of Electronic
Sound, Inc. performing work which is necessary to
maintain, install and repair intercommunication sound
and public address equipment and apparatus and inter-
communication sound and public address systems, ex-
cluding all other employees, guards and supervisors as
defined in the Act, is an appropriate bargaining unit
within the meaning of Section 9(b) of the Act.
4. At all times material herein the Respondent has
been the exclusive representative of the employees in the
above-described unit within the meaning of Section 9(b)
of the Act.
5. The Union has violated Section 8(bX3) of the Act at
all times since July 9, 1982, by failing and refusing to
execute a contract embodying the terms and conditions
agreed upon about June 24, 1982.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) of the Act.
Based on the foregoing findings of fact and conclu-
sions of law and on the record as a whole, I issue the
following recommended
ORDER'
The Respondent, International Brotherhood of Electri-
cal Workers, Local Union No. 22, Omaha, Nebraska, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Employ-
er, Electronic Sound, Inc., by failing and refusing to sign
a contract embodying the terms and conditions of em-
ployment for the Employer's employees agreed to about
June 24, 1982.
(b) In any like or related manner engaging in conduct
in derogation of their statutory duty to bargain with the
Employer.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act.
(a) On request of the Employer, sign a contract em-
bodying the terms and conditions of employment for the
Employer's employees agreed to about June 24, 1982.
(b) Give retroactive effect to and honor the aforesaid
contract until its expiration or until the contract is disap-
proved by the International Brotherhood of Electrical
Workers.
' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(c) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix."' 6 Copies of
the notice, on forms provided by the Regional Director
for Region 17, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(d) Furnish the Regional Director with signed copies
of the notice for posting by Electronic Sound, Inc., if
willing, at all places where notices to their employees are
customarily posted.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
"I If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Electronic Sound, Inc., by failing and refusing to sign a
contract embodying the terms and conditions of employ-
ment for the Employer's employees which we agreed to
about June 24, 1982.
WE WILL NOT in any like or related manner engage in
conduct in derogation of our statutory duty to bargain
with Electronic Sound, Inc.
WE WILL, on request of Electronic Sound, Inc., sign
the aforementioned collective-bargaining agreement and
WE WILL give it retroactive effect and honor its terms
until its expiration, or its disapproval by the International
Brotherhood of Electrical Workers, AFL-CIO
INTERNATIONAL BROTHERHOOD OF ELEC-
TRICAL WORKERS, LOCAL UNION No. 22
765