Hoisting & Portable Engineers Local 701, Etc.

National Labor Relations Board - Board Decisions

Mar 13, 1963

141 N.L.R.B. 469 (N.L.R.B. 1963)

HOISTING & PORTABLE ENGINEERS LOCAL 701, ETC. 469
motivation whatever the suspicions aroused by the manner of, and the asserted basis
for, the Respondent's action.
In the circumstances, the conclusion is that the preponderance of the evidence
does not support the allegations that Castillo, Deas, and Zaballa were discharged
because of their support of or affiliation with the Union.
On the basis of the finding above and the whole record, I hereby set forth my
following:
CONCLUSIONS OF LAW
1. Respondent is engaged in interstate commerce within the meaning of the Act.
2. Respondent did not engage in any of the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
On the basis of the findings and conclusions above and the whole record, it is
hereby recommended that the complaint be dismissed.
Hoisting & Portable Engineers Local Union #701 International
Union of Operating Engineers , AFL-CIO and Cascade Em-
ployers Association , Inc. and Corvallis Sand & Gravel Co.,
Eugene Sand & Gravel Co., and Wildish Sand & Gravel Co.,
Parties to the Contracts. Cases Nos. 36-CB-235 and 36-CB-
235-2. March 13, 1963
SUPPLEMENTAL DECISION AND ORDER
On September 8, 1960, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent i had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief and the Charging Party filed
a brief in support of the Intermediate Report. On July 31, 1961, the
Board issued its Decision and Order,' dismissing the complaint in this
matter. The dismissal was predicated upon a conclusion that Cascade
was representing the employers in an inappropriate multiemployer
unit, one not historically established or consented to by the Engineers,
and accordingly the Engineers were not bound to bargain with it.
Following the issuance of this Decision and Order, the General Coun-
sel and the Charging Party filed separate motions requesting the
Board to reconsider the matter. On January 31, 1962, the Board by
appropriate order granted the motions for reconsideration and re-
manded the proceeding to the Regional Director for further hearing
before Trial Examiner Spencer to receive evidence on the unit issue,
including whether or not Cascade was attempting to bargain for a
historically established multiemployer bargaining unit. Such hear-
'Hoisting & Portable Engineers Local Union #701, International Union of Operating
Engineers , AFL-CIO, herein called the Engineers or the Respondent.
2132 NLRB 648.
141 NLRB No. 28.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing was held on March 28, 29, and 30, 1962. On June 28, 1962, the-
Trial Examiner issued his Supplemental Intermediate Report, in
which he made certain findings and recommended that the Board dis-
miss the complaint herein. The Charging Party filed exceptions to
the Supplemental Intermediate Report and a brief in support thereof.
The Respondent filed a brief in support of the Supplemental Inter-
mediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has reviewed the rulings of the Trial Examiner made at
the hearings and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire rec-
ord in this case, including the Intermediate Report (132 NLRB 648
at 650), the attached Supplemental Intermediate Report and the ex-
ceptions and briefs, and hereby vacates its previous Decision and
Order in this case and adopts the findings, conclusions, and recom-
mendations of the Trial Examiner in the Intermediate Report and in
the Supplemental Intermediate Report only insofar as they are con-
sistent herewith.
1. The issue of successorship and the historically established unit
In agreement with the Trial Examiner we find that Cascade Em-
ployers Association, Inc., herein called Cascade or the Association,
was, and is, in every material respect the successor to Concrete Prod-
ucts Manufacturing, Inc., herein called Concrete, and that Cascade
was bargaining for a historically established multiemployer unit with
the Engineers during the negotiations involved in the instant pro-
ceeding. In so finding, we note the differentiation between the scope
of the Association and of the bargaining unit as developed at the
second hearing, a differentiation which the original hearing failed to
make clear.
With respect to Cascade's attempt to bargain for certain asphalt
operations, we agree with the Trial Examiner that the evidence sup-
ports a finding that the asphalt operation of the employers who have
been historic members of the bargaining unit with respect to their
sand and gravel operations, constitute an integral part of the unit.'
The factors upon which we rely in so finding are : both operations
(sand and gravel and asphalt) are established at the fixed location
a However, with respect to the addition of new firms to the bargaining unit, whether en-
gaged in sand and gravel operations or asphalt , the consent of both principals , Cascade
and the Engineers , is necessary. See Molenelli, Santoni & Freytes , 118 NLRB 1010, 1014
Accordingly, since the Engineers did not consent to the addition of American Asphalt,
L H. Cobb, and Rock Products Co. to the bargaining unit , these firms are excluded from
the unit.
.
HOISTING & PORTABLE ENGINEERS LOCAL 701, ETC. 471
of the particular employer; both produce a similar product, a form
of concrete; and the products of both are sold commercially to con-
tractors and these operations are not included in the other unit covered
by the Respondent's "heavy construction" contract entered into with
other employers.'
Finally, we note that although there were a number of withdrawals
of employers from the unit, these withdrawals occurred with the con-
sent of the Engineers and, in agreement with the Trial Examiner, we
find that such withdrawals "neither decimated the employer unit nor
changed its essential character as a unit."
2. The issue of Cascade's power to bind the individual employers
The Trial Examiner found that Cascade lacked the power to bind
the individual members of the bargaining unit, and, that each member
retained the power to approve or reject, individually, any contract
negotiated on behalf of the members of the unit. The Charging
Party excepts to this conclusion, and we find merit in such exception.
In reaching his conclusion, the Trial Examiner relied principally
on his interpretation of the bylaws of the Association as reserving to
the members of the bargaining unit the right to accept or reject,
individually, the contract negotiated by the Association. He placed
particular stress on the last clause of the bylaw in question, which, in
its entirety, is as follows :
This Association shall have authority upon the request of any
individual member or group of members to enter into negotiations
or undertakings on behalf of such members, with employees of
such members, or Union, or other Associations representing such
employees, in regard to wages, hours and working conditions;
provided, that any such undertakings shall only be binding upon
those members of the Association who wish to become signatories
thereto.
Concededly, the last, or proviso, clause of the bylaws is susceptible of
the interpretation placed upon it by the Trial Examiner. However,
keeping in mind the fact that the bargaining unit is comprised of con-
siderably less than all the members of the Association, and the fact
4 we are not persuaded by Respondent 's contention that asphalt operations belong under
its "heavy construction " contract because of the utilization of asphalt in the making of
the concrete. Examination of Respondent 's "heavy construction" contract shows that it
covers certain types of sand and gravel operations as well as certain types of asphalt
operations . Therefore , the utilization of asphalt in the manufacture of concrete is not,
in and of itself, the determinative factor. Rather the determinative factor appears to be
whether the product , either sand and gravel or asphalt , is sold commercially , that is, pre-
pared at one site and then sold and delivered to purchasers at a construction site.
Respondent bargains for such commercial operations with Cascade . Its bargains for
heavy construction operations , i.e., operations where a contractor manufactures its own
concrete, with or without asphalt, at the construction site in another unit and with
another association.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the obvious purpose of the bylaw was to authorize groups of
employer-members to agree to act together in designating the Associa-
tion as their bargaining representative, even though other members de-
cline to join with them, we view the last clause as an assurance to non-
members of the bargaining unit that their rights and interests would
remain unaffected by the action of the group. Stated otherwise, only
those members of the Association who agreed to enter into group bar-
gaining would be affected by the action of the group and its appointed
bargaining representative, the Association.'
This interpretation is supported by the uncontradicted testimony of
Blair, the executive secretary of the Association, to the effect that
prior to negotiations the employers would meet and indicate, orally,
whether or not each wanted to be represented by the Association in
the forthcoming negotiations. Those who so agreed at that time were
bound by the negotiations. Blair testified that such an oral commit-
ment was entered into in December 1958, prior to the commencement of
the negotiations involved herein.6 The Trial Examiner was ap-
parently unwilling to rely on such testimony, because he viewed as an
"astute equivocation" Blair's answer to a question he, himself, pro-
pounded, in which he attempted to ascertain which employers, if any,
were bound by the negotiations of the Association. The Trial Ex-
aminer's question was: "Well you mean by that, that if the majority
of those present voted to approve your action, that would be binding
on every member of the Association?" [Emphasis supplied.] Blair's
answer was: "It would be binding on every member of the Association
that would be normally bound by this contract." This answer was, in
our view, an obvious attempt by Blair to differentiate between mem-
bership in the Association and membership in the multiemployer unit,
made up of some, but not all, of the members of the Association; a
differentiation the Trial Examiner had failed to make in his question.
Thus, Blair's reference to those members who "would be normally
bound" is an obvious reference to those members of the Association,
who, in accordance with the bylaws, had delegated binding authority to
the Association to bargain on their behalf prior to the commencement
5 Although the Trial Examiner placed some reliance upon a memorandum accompanying
the 1954 agreement, which stated , "the following plants will be considered as being
covered under this agreement unless we shall receive immediate notice to the contrary,"
we find that such reliance is misplaced . Blair testified , and was corroborated in such testi-
mony, that in the negotiations prior to the 1954 negotiations , the Lane Co was incorrectly
listed as a member of the unit and its name was placed on the contract The 1954
memorandum herein mentioned was sent in order to prevent the occurrence of such a
mistake again . The memorandum therefore supports our interpretation of the bylaws
e Although there is contradictory testimony whether Blair , at a meeting in July 1959,
answered "that's right" to a question concerning whether the employers would ratify as
they chose on an individual basis, and the Trial Examiner did not specifically resolve this
conflict, we find that Blair ' s version of the conversation is consistent with the rest of his
testimony . Moreover , we note that at the earlier hearing the Trial Examiner, in other
instances where there was a conflict in testimony , discredited Respondent ' s witnesses who
gave the version of the conversation contrary to Blair's version Accordingly , we credit
Blair's version of the conversation
HOISTING & PORTABLE ENGINEERS LOCAL 701, ETC. 473
of negotiations , and who comprised the multiemployer unit in which
such bargaining historically had taken place.'
Accordingly , we find that the Association was vested with the power
to bind those members of the Association who had designated it as
their bargaining representative , subject to group ratification of the
contract thus negotiated . Such a power is fully consonant with multi-
employer bargaining . As there is a substantial history of bargaining
on such basis , we find that the following employees :
All operators of heavy equipment , including shovels, drag lines,
crane trucks , front-end loaders, plant operators, oilers, and heavy
duty mechanics , excluding office clerical employees and super-
visors as defined in the Act, employed by those members of the
Association who have designated the Association as their bargain-
ing representative, and have authorized the Association to
negotiate a contract binding on such members,
,constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 ( b) of the Act.'
3. The substance of the alleged violations
In his original Intermediate Report the Trial Examiner found that
the Engineers violated Section 8 (b) (1) (B) and (3 ) by restraining and
'Concrete , for 12 years prior to the change of name to Cascade , operated in the area
of multiemployer bargaining , no evidence was introduced at either hearing to indicate
that the Respondent ever questioned the authority of the Association under either name
and at any set of negotiations , including the one involved in the instant proceedings, to
bind the employer membeis of the unit Indeed, in the past, it does not appear that the
Engineers ever questioned the authority of Pat Blair to sign the contract , for the
Association , on behalf of the members of the bargaining unit.
'Those members of the Association who are included in the appropriate unit are,
Salem Sand & Gravel 'Co., M & P Materials , River Bend Sand & Gravel , Walling Sand &
Gravel Co, Valley Concrete Co., Eugene Sand & Gravel Co., Wildish Sand & Gravel Co ,
Zumbalt & Williams , Corvallis Sand & Gravel Co., Newport Ready Mix Co., Jones-Scott
Co, and Ready Mix Sand & Gravel Co. We also include Central Paving Co ; although
the Respondent protested its inclusion , we find that it was a signatory to the 19563, con-
tract and accordingly is a historic member of the bargaining unit.
As indicated above, we are excluding American Asphalt, Rock Products , and L. H Cobb
since the Respondent did not consent to their inclusion and they had not participated in
group bargaining. We also exclude those employers who withdrew voluntarily from the
1959 bargaining negotiations with the consent of Respondent , unless they indicate a de-
sire to rejoin the unit and the Respondent agrees thereto These employers include Rogers
& Kuni Concrete Co., M. C. Lininger & Sons, Graham Brothers , and Medford Concrete
Construction Co Although there was some suggestion that M. C. Lininger & Sons and
Medford Concrete )Construction Co. may have been "coerced " Into leaving the Association,
the only "evidence" of such coercion was the testimony of Blair that he had been so in-
formed . We find that such evidence is not sufficient or probative of the matter and
accordingly conclude that their withdrawal was voluntary . We also exclude Umatilla
Ready Mix Co, which appears to have been listed as a member inadvertently , and Umpqua
River Navigation Co. and its subsidiary Reedsport , both of which were either never in the
unit in the first place , or, at the least , withdrew voluntarily with the consent of the
Respondent.
The record indicates that Willamette Sand & Gravel Co. withdrew from the unit in
May 1959 and filed an RD petition which was dismissed in July 1959. As the record
indicates , through the testimony of Blair, that the Association did not thereafter view
itself as Willamette 's bargaining representative , and as there is no showing that Respond-
ent objected to Willamette 's withdrawal , we exclude that company from the unit.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercing five employers, namely Corvallis, Eugene, Wildish, Ready-
Mix, and Jones-Scott, in their selection of Cascade as their representa-
tive for the purpose of collective bargaining and by refusing to bar-
gain collectively with Cascade by, in effect, attempting to break these
employers off from the multiemployer unit represented by Cascade.
We hereby adopt these findings.
Accordingly, we find that the Respondent violated Section
8(b) (1) (B) and (3) of the Act, as alleged.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Hoisting &
Portable Engineers Local Union #701 International Union of Oper-
ating Engineers, AFL-CIO, its officers, agents, representatives, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) In any manner restraining or coercing any employer who is
represented by the Cascade Employers Association, Inc., in the se-
lection of the said Association, as its representative for the purposes
of collective bargaining.
(b) Refusing to bargain collectively with the said Association with
respect to employees in the appropriate bargaining unit. The bar-
gaining unit is :
All operators of heavy equipment, including shovels, drag lines,
crane trucks, front-end loaders, plant operators, oilers, and heavy
duty mechanics, excluding office clerical employees and supervisors
as defined in the Act, employed by those members of the Association
who have designated the Association as their bargaining representa-
tive, and have authorized the Association to negotiate a contract bind-
ing on such members.
(c) Giving effect to the individual contracts which it executed
with Corvallis, Eugene, and Wildish under the circumstances de-
scribed in the original Intermediate Report, or any modification,
continuation, extension, or renewal thereof.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-named As-
sociation, with respect to the wages, hours, and other terms and condi-
tions of employment of employees in the unit found above to be ap-
propriate for bargaining purposes, and, if agreement is reached,
embody the terms in a signed contract.
HOISTING & PORTABLE ENGINEERS LOCAL 701, ETC. 475
(b) Post at its business offices and customary membership meeting
places, copies of the attached notice marked "Appendix." I Copies
of said notice, to be furnished by the Regional Director for the Nine-
teenth Region, shall, after being dully signed by the Union's repre-
sentative, be posted by the said Union immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to its mem-
bers are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Furnish to the said Regional Director for the Nineteenth
Region of the Board signed copies of the said attached notice marked
"Appendix" for posting by the employer-members of the appropriate
unit, if such employers are willing, in places where notices to their
employees are customarily posted.
(d) Notify the Regional Director for the Nineteenth Region of
the Board, in writing, within 10 days of this Supplemental Decision
and Order, what steps it has taken to comply herewith.
9In the event that the Board 's Order be enforced by a decree of a United States Court
of Appeals , the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and
Order."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF EMPLOYERS
WHO ARE MEMBERS OF THE APPROPRIATE UNIT REPRESENTED BY THE
CASCADE EMPLOYERS ASSOCIATION, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that:
WE WILL bargain collectively, upon request, with Cascade Em-
ployers Association, Inc., with respect to the wages, hours, and
other terms and conditions of employment of employees of those
members of the above-named Association, who have designated
the Association as their bargaining representative and have au-
thorized the Association to negotiate,a contract binding on such
members in the unit described herein, and, if agreement is reached,
embody the terms in a signed contract. The bargaining unit is :
All operators of heavy equipment, including shovels, drag
lines, crane trucks, front-end loaders, plant operators, oilers,
and heavy duty mechanics, excluding office clerical employees
and supervisors as defined in the Act.
WE WILL NOT in any manner restrain or coerce any employer
who is represented by Cascade Employers Association, Inc., in
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the selection of the said Cascade Employers Association, Inc., as
its representative for the purposes of collective bargaining.
WE WILL NOT give effect to or enforce or attempt to enforce
our individual contracts with Corvallis Sand & Gravel Co., Eu-
gene Sand & Gravel Co., and Wildish Sand & Gravel Co., exe-
cuted at a time when the aforesaid companies were members of
the Association and components of the bargaining unit described
above.
HOISTING & PORTABLE ENGINEERS LOCAL UNION #701
INTERNATIONAL UNION OF OPERATING ENGINEERS,
AFL-CIO,
Labor Organization.
Dated---------------- By------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Subregional
Office, 612 Lincoln Building, 208 SW. Fifth Avenue, Portland 4,
Oregon, Telephone No. Capitol 2-1607, if they have any questions
concerning this notice or compliance with its provisions.
SUPPLEMENTAL INTERMEDIATE REPORT AND
RECOMMENDED ORDER
Pursuant to the Board 's order dated January 31 , 1962, remanding this matter for
further hearing before Trial Examiner William E. Spencer , the Trial Examiner orig-
inally assigned to the case , a supplementary hearing was held in Portland , Oregon,
on March 28 , 29, and 30, 1962 , for the purpose of taking additional evidence on
the "unit issue, including whether or not Cascade [ Cascade Employers Association,
Inc.] was attempting to bargain for the historically established multi-employer bar-
gaining unit ." All parties were represented at the supplementary hearing; par-
ticipated in the presentation of evidence material to the issue ; and on or before
May 15, filed briefs with me. The findings below are based on my observation of
the witnesses and the entire evidence in the case
1. The issue of successorship
On the evidence taken at the supplementary hearing there can be no question that
Cascade was , and is, in every material respect, a successor to Concrete Products
Manufacturers , Inc, herein called Concrete . It should be observed that Cascade
represents , and Concrete represented , many employer -members for purposes other
than collective bargaining ; that only such of its members as specifically authorize
it to bargain on their behalf are included in the respective bargaining units; that while
it represents certain of its employer-members in negotiations with Engineers, the
Respondent herein , it also represents certain employer -members in negotiations with
other labor organizations . The description of Cascade 's jurisdiction appearing in
the original Intermediate Report was its overall jurisdiction and not, as was errone-
ously assumed , a description of its jurisdiction with respect to its negotiations with
Engineers , or any other labor organizations . The employer unit with which we are
here concerned paralleled, geographically , Engineer 's own territorial jurisdiction, and
this has been the case from the beginning of negotiations between Concrete and
Engineers The only change of substance which Cascade attempted to make in the
bargaining unit established under Concrete was to bring certain producers of asphalt,
as distinguished from concrete products , into the unit . Inasmuch as asphalt as well
as concrete has sand and gravel as its basic ingredients, this would not, in my opinion
HOISTING & PORTABLE ENGINEERS LOCAL 701, ETC. 477
represent a fatal variance from the unit alleged to be appropriate in the General
Counsel's complaint . The real dispute on the addition of certain of these asphalt
producing companies to the unit appears to have been based on whether "commer-
cial" or "heavy construction" rates should be applied to their employees . The "com-
mercial" agreement referred to at times as the "sand and gravel" agreement , provides
lower rates , generally, than "heavy construction " contracts , and, as I understand the
evidence , only employers to whom commercial agreements were applicable were in-
cluded in the unit alleged to be appropriate in these proceedings . In the negotiations
between Cascade and Engineers beginning in November 1958, there was obviously
disagreement between the parties on Cascade's proposed inclusion of certain of these
asphalt producing companies , but I cannot say , on the evidence before me , that Cas-
cade insisted on bargaining in a unit materially different from that established under
negotiations between Engineers and Concrete . The addition of asphalt producing
companies would represent at most an accretion to the existing unit, an accretion
which would have to be agreed upon by both the bargaining principals before it be-
came an effective part of the bargaining unit. In short , I find that in all material
respects Cascade attempted to bargain for the historically established unit.
2. The issue of the multiemployer unit
Concrete, organized in 1946, on October 5, 1950, executed a bargaining agreement
with Engineers "to apply to and cover the following employers and those who wish
to become signatories to this agreement in the State of Washington." There followed
successive agreements covering the period up to December 31, 1958, when the most
recently executed agreement expired. During this entire period, while employers
represented by Concrete, or its successor, Cascade, were added to the unit and others
were deleted, there does not appear to have been any material change, other than
geographical coverage, in the unit qua appropriate unit. Employers added to the
unit were added by mutual consent of the contracting parties, and employers who
withdrew from the unit did so because of a cessation or change in business operations
which rendered them ineligible for inclusion in the unit. A table showing the fluctua-
tion in the listings of employers represented by Concrete, or Cascade as the case may
be, during this period has very little, if any, evidentiary bearing on the issues here.
It is undisputed that Blair, secretary-manager of both Concrete and Cascade, executed
agreements reached with Engineers on behalf of all the employers in the unit, and
there is no evidence that any employer in the unit refused to be bound by an agree-
ment thus executed.
According to Blair, the following procedure was followed by Concrete and, later,
Cascade, in negotiations with Engineers. Prior to the start of negotiations, all
employer-members eligible for inclusion in the bargaining unit were notified and
they then signified whether or not they wished to be included. Engineers was furnished
with a list of those included. A bargaining committee, composed of one employer-
member from each of the principal geographical areas covered, was designated to
participate with Blair in negotiations. Any agreement reached was subject to rati-
fication of all employer-members in the bargaining unit.
Coming now to negotiations between Cascade and Engineers in a contract to suc-
ceed the last contract executed by Engineers and Concrete which expired on Decem-
ber 31, 1958, these negotiations, as previously reported, continued, off and on, for
a period from November 1958 through July 1959, without agreement, and during this
period a substantial number of Cascade employers withdrew from the bargaining
unit, not because of any change in their business operations which would render them
ineligible for inclusion in the unit, but for the purpose of bargaining, executing con-
tracts individually, with Engineers, or to designate some other bargaining representa-
tive. Findings have been made that four of these withdrawals were attributable to
coercive pressures brought to bear by Engineers. But there were others, and it is
no more reasonable, without further evidence, to attribute the withdrawal of those
others to fear of economic pressures and reprisals by Engineers than it would be to
attribute such withdrawals to disapproval with Cascade for filing, in the midst of
negotiations, meretricious charges with the Board against Engineers However, the
withdrawals, outside of those coerced into withdrawing by Engineers, neither deci-
mated the employer unit nor changed its essential character as a unit.
The issue, and the only remaining issue in the case, is whether Cascade was so
constituted and the pattern of bargaining between Engineers and Concrete was such,
that not only was it permissible for employer-members of the bargaining unit to
withdraw during the course of the negotiations, without the mutual consent of the
parties, but any agreement negotiated on their behalf was subject to their approval
or rejection, individually. Cascade-Concrete bylaws provide:
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This Association shall have authority upon the request of any individual
member or group of members to enter into negotiations or undertakings on
behalf of such members, with employees of such members, or Union, or other
Associations representing such employees, in regard to wages, hours and work-
ing conditions; provided, that any such undertakings shall only be binding upon
those members of the Association who wish to become signatories thereto.
[Emphasis supplied.]
There can be little doubt that these bylaws specifically provide for ratification of
any agreement reached on an individual rather than a group basis, and I am not
impressed with Cascade's argument that under the law of agency Cascade could not be
vested with irrevocable authority to represent its employer-members in collective
bargaining, but to the contrary its representative capacity was necessarily revocable
at the will of employer members. With certain qualifications this is a well known
and generally recognized rule of agency law. Obviously, once having designated
Cascade their bargaining agent its employer-members were not thereafter bound, in
perpetuity, to continue this agency. They were not, however, restrained by this rule
of law or any other from committing themselves, in advance, to be bound by whatever
agreement was negotiated on their behalf by their bargaining principal, and such a
commitment, express or implied, is an absolute sine qua non for multiemployer bar-
gaining. The Board's rule established in Retail Associates, Inc., 120 NLRB 388;
Anderson Lithograph Company, Inc., et al., 124 NLRB 920, enfd. sub nom.
N.L.R.B. v. Jeffries Banknote Company, 281 F. 2d 893 (C.A. 9), and other cases,
was never intended to provide a substitute for such a commitment, and indeed could
not, for until such a commitment has been made there is no true multiemployer
bargaining. The Board would not impress upon the parties an obligation they
never assumed. Indiana Limestone Company, Inc., 136 NLRB 697. The whole
theory of multiemployer bargaining is based on the premise that the employers
who jointly have designated a single bargaining representative, are to be regarded
as one employer for applying the rules governing bona fide bargaining. Obviously
they cannot be regarded as one employer if they reserve to themselves the right to
accept or reject, individually, whatever agreement is reached by the bargaining
representative.' Where the employer unit is established on an informal basis, with-
out written or oral bylaws defining the character and scope of the bargaining au-
thority, and bargaining has proceeded on the basis of group rather than individual
representation, such a commitment may be inferred and the rule of Retail As-
sociates, Inc., may apply, but where, as here, the organization is formal, and there
are bylaws which define the character and scope of the bargaining authority, such
an inference may not be lightly drawn but must rest on evidence that the participating
employers did in fact commit themselves, in advance of negotiations, to be bound
by any agreement reached and ratified by a majority of the participants.2
Except for conflicting language in Cascade's bylaws, such an inference might be
drawn from the bargaining history of Concrete and Engineers, for, as previously
stated, Blair, as Concrete's secretary-manager, executed all agreements reached by his
organization and Engineers on behalf of the employers in the unit, and all employer-
members in the unit at the time the agreement was negotiated did in fact recognize
it as binding on them. Such action is consistent with multiemployer bargainings.
On the other hand it is not necessarily inconsistent with the bylaws which permit ac-
ceptance or rejection on an individual rather than on a group basis, for we have no
way of knowing whether these earlier negotiations afforded any real test of the right
reserved to the individual employers to accept or reject any agreement negotiated by
the bargaining principles. Such a test did arise in the long drawn-out negotiations
between Cascade and Engineers, and certain employer-members of Cascade other
than those shown to have been coerced by Engineers, did withdraw from the bargain-
ing unit during the period of negotiations and make individual contracts with
1 The importance of such a commitment is emphasized by the Board's advisory opinion
in Oregon Labor-Management Relations Board, 136 NLRB 1207. In refusing to assert
jurisdiction over the employer in question, a member of Cascade, by taking into account
the business operations of Cascade as well as those of the individual employer, the
Board states, inter aha, concerning said employer, "He has never been a party to a multi-
employer contract and has never agreed to be bound in advance by a contract negotiated"
by Cascade.
2 Such a ratification is not inconsistent with the theory of multiemployer bargaining
Labor organizations not infrequently submit agreements they have negotiated to their
membership for ratification.
HOISTING & PORTABLE ENGINEERS LOCAL 701, ETC. 479
Engineers or transfer their bargaining authorization elsewhere. These withdrawals
from the bargaining unit during negotiations are consistent with the wording of the
Concrete-Cascade bylaws which explicitly provide an escape hatch for any employer
member not satisfied with the course of negotiations, or their culmination in an
agreement.
Cascade's argument that withdrawal from the unit was permissible only upon
severance of membership in Cascade, does not appear to me to in any way alter
the basic situation with respect to the binding effect of Cascade's negotiations on its
employer-members who have elected to come into the bargaining unit. I have
searched the record of this proceeding in vain for that commitment made by Cascade's
employer-members on entering the appropriate unit, to be bound as a group by any
agreement negotiated by Cascade and Engineers, a commitment which might have
been made orally or in writing. That there was no such commitment in writing is
evident, for had there been it most certainly would have been produced and offered
in evidence. If such a commitment had been made orally, I think that too would
have come into evidence through witnesses competent to testify in the matter. Blair's
statement that all employers were bound who "normally" would be bound, is an astute
equivocation. On the evidence I must assume that there was no commitment other
than what may be infererred from the fact that the several contracts made by
Concrete and Engineers were ratified by and executed on behalf of all employer-
members in the unit.3 As previously stated, in an informal organization of em-
ployers for the purpose of multiemployer bargaining, this would probably be enough;
where the organization is formal, and the organization's bylaws specifically provide
for individual rather than group ratification, I think it is not enough. The additional
factor of the actual withdrawals from the employer unit during the final period of
negotiations, adds to and confirms my conviction that the General Counsel has not
sustained his burden of proof in showing that Cascade's bargaining with Engineers
was of such multiemployer character that the latter could not lawfully bargain with
and make contracts with its employer-members individually. If Cascade's employer-
members in the bargaining unit were not bound by Cascade's negotiations on their
behalf-and I think they were not-neither was Engineers bound to bargain with
Cascade on a multiemployer basis.
CONCLUSIONS OF LAW
1. The Respondent, Hoisting & Portable Engineers Local Union #701 Inter-
national Union of Operating Engineers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
2. Cascade Employers Association, Inc., is a successor to Concrete Products
Manufacturers, Inc.
3. Cascade and its employer-members are engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
4. The Respondent has not restrained and coerced employer-members of Cascade
Employers Association, Inc., in their designation of Cascade as their representative
for the purposes of collective bargaining, within the meaning of Section 8(b)(1)(B)
of the Act 4
5. The Respondent has not refused to bargain collectively with Cascade in
violation of Section 8(b) (3) of the Act.
RECOMMENDED ORDER
It is recommended that the Board reaffirm its earlier dismissal of the case in its
entirety.
8 Concrete ' s memo to its employer-members in the unit when its 195 14 negotiations
had resulted In an agreement , that "the following plants will be considered as being
covered under this agreement unless we shall receive Immediate notice to the contrary,"
Is entirely consistent with its bylaws providing for individual acceptance or rejection of
the agreement , and I do not see that the actual acceptance of the agreement by its
employer-members can be made to relate to their intention to be bound , as a group, from
the start of the negotiations If such had been the understanding , and the intention of
the participating employees, they would have had no option but to accept the negotiated
agreement and the memo would have constituted a superfluity
'Inasmuch as it has been found that employer members of Cascade never committed
themselves to be bound by agreements negotiated by Cascade and Engineers , it cannot be
said that they designated Cascade their bargaining representative within the meaning of
Section 8 ( b) (1) (B) of the Act.