Intl. Union of Elevator Constructors

National Labor Relations Board - Board Decisions

Sep 28, 1970

185 N.L.R.B. 769 (N.L.R.B. 1970)

INTL. UNION OF ELEVATOR CONSTRUCTORS
International Union of Elevator Constructors, Local
No. 8, AFL-CIO and National Elevator Industry,
Inc., Area No . 14. Case 20-CB-2086
September 28, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN AND
JENKINS
On June 3, 1970, Trial Examiner Henry S. Sahm
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in a certain
unfair labor practice and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision accompanied by
a brief in support thereof. The General Counsel and
the Charging Party 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 made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts
the findings,' conclusions,' and recommendations of
the Trial Examiner.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
' We hereby correct the following inadvertent error in the Trial Examin-
er's Decision which in no way affects our adoption thereof In the
last sentence of the last paragraph concerning Joseph Flynn 's testimony
in Sec IIIB, of the Decision , the date that Flynn made his remark,"We
brought out a bottle and had a drink It was a culmination of a year-"
should be changed from July 9 to July 10
' As a further basis for our conclusions herein, we note that according
to the credited and uncontradicted testimony of Joseph Flynn, the Charging
Party's chief negotiator , on July 10, 1968 , at the beginning of the negotia-
tions, the Respondent's business agent, Henry Rueda, specifically said
that he had full authority from his membership to negotiate and that
he did not have to take any agreement back to them
' We reach our conclusion herein without reliance upon the matter
in Trial Examiner 's footnote 10, which for purposes of this case, we
consider irrelevant In addition, we hereby delete the Trial Examiner's
seventh and eighth conclusions of law which are merely repetitious
769
below, and orders that the Respondent, International
Union of Elevator Constructors, Local No. 8, AFL-
CIO, San Francisco, California, its officers, agents,
and representatives, shall take the action set forth
in the Trial Examiner's Recommended Order, as so
modified:
1. Substitute the following for paragraph 1(a):
"Cease and desist from refusing to bargain collec-
tively with the Employer, as to wages, hours and
other terms and conditions of employment covering
employees in the appropriate unit, by failing and
refusing to sign the collective-bargaining agreement
upon which the parties agreed on July 9, 1969."
2. Substitute the following for paragraph 2(a):
"As the exclusive bargaining representative of the
employees in the above described appropriate unit,
bargain collectively with the Employer by signing
the collective-bargaining agreement upon which the
parties agreed on July 9, 1969."
3. Delete paragraph 2(b) and renumber the follow-
ing two paragraphs accordingly.
4. Substitute for the second indented paragraph
in the notice the following:
WE WILL sign the collective-bargaining agree-
ment on which we reached agreement with the
Employer on July 9, 1969.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY S. SAHM , Trial Examiner - Upon a charge filed
on September 15, 1969, by the Trade Association of the
Elevator Manufacturers , herein called both the Association
and NEII , the General Counsel of the National Labor
Relations Board issued his complaint dated December 4,
1969, against the International Union of Elevator Construc-
tors, Local No. 8, AFL-CIO, referred to hereinafter as
the Union . The complaint alleges that Respondent Union
violated Section 8(b)(3) of the National Labor Relations
Act in that it refused to sign a document containing a
collective-bargaining agreement whose terms had been
agreed upon previously . The Respondent Union filed its
answer admitting certain allegations of the complaint but
denied generally the commission of any unfair labor prac-
tices . At the hearing, Respondent contended that a binding
agreement was never reached nor was the contract ratified
by the membership of the Union.
Pursuant to notice, a hearing was held at San Francisco,
California, on February 11, 1970, before me.
The General Counsel 's representative and Respondent
filed briefs on March 9, 1970, which have been fully consid-
ered.
Upon the entire record in the case, from observation
of the demeanor of the witnesses , upon consideration of
the arguments of counsel and citations' of cases alleged
to be dispositive of the issues in this proceeding, there
are hereby made the following:
185 NLRB No. 112
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
National Elevator Industry , Inc., herein referred to as
both NEII and the Association , is a voluntary association
of employers engaged in manufacturing , installing , repairing,
and servicing elevators . It exists for the purpose, inter
aha, of representing and assisting employer-members
through the procedures of multiemployer collective bargain-
ing in negotiating and entering into labor contracts with
the collective-bargaining representative of their employees,
one of whom is the International Union of Elevator Con-
structors , Local No. 8, AFL-CIO, herein called interchange-
ably the Union, the International and the Respondent
NEII has various local employer groups including National
Elevator Industry , Inc., Area No 14, herein called NEII
Area 14, which is located in San Francisco , California.
Annually the employer -members of NEII collectively pur-
chase products valued in excess of $50,000 which are shipped
to them in one State directly from another State . Annually
the employer-members of NEII collectively sell and ship
products valued in excess of $50,000 directly from one
State to customers in other States.
No jurisdictional issue is involved as Respondent does
not deny the allegations in the complaint averring that
said members are engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. It is found, accordingly,
that said members are engaged in commerce within the
meaning of the Act
II THE RESPONDENT UNION
International Union of Elevator Constructors, Local No.
8, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act
iii. THE ALLEGED UNFAIR LABOR PRACTICES
A Background
There has been a long history of bargaining between
the parties for many years past. The then-current multiem-
ployer agreement under which various employers and the
Union were operating was due to be reopened for negotia-
tions with respect to the establishment of zones within
the jurisdiction of the 11 western states, known as Area
14, as well as travel time and travel expenses for each
zone. The standard agreement provides that Local unions
and local manufacturers may establish zones and travel
times and allowances for each zone. ' In anticipation of
renegotiating these items, the Employers' group and the
Union met for the first time on July 10, 1968. Periodic
meetings were held thereafter until an impasse was reached
on May 16, 1969. In order to obviate this impasse, recourse
was had by the Employers' group to the International
Union which resulted in a meeting being scheduled for
41
July 9 Z The following individuals who had not participated
in the negotiations before July 9, joined the heretofore
constituted union and employer members comprising the
respective bargaining committees. Don Offerman, a member
of the National Labor Committee of the National Elevator
Industry, Jersey City, New Jersey, and for the Local Union,
Thomas Fitzgerald, secretary-treasurer of the International
Union, located in Philadelphia, Pennsylvania, and John
E. Dowd, regional representative of the International Union.
In addition to Fitzgerald and Dowd, Hector E. Rueda,
who succeeded Fitzgerald as business representative of Local
8 within the past year and who was attending these negotiat-
ing sessions for the first time, and the president of the
Local, Thomas Grosch who had been a member of the
union negotiating committee in 1964 and 1966 , also were
present. The Employers of Area 14 were represented by
Joseph Flynn, Kenneth Snow, and Delbert Wallace.
The first negotiating meeting after the May 16 impasse
which was attended by the additional employer and union
representatives named above, resumed on July 9, 1969,
after a hiatus of approximately two months. The General
Counsel alleges agreement was reached on July 9, with
respect to the substantive terms of a travel expense agree-
ment The Union denies this, contending the "tentative"
agreement reached by the parties could not be executed
until its membership ratified it. It is undisputed that in
the past agreements negotiated over the years had never
before required ratification by the union membership
No negotiating meetings were held after July 10, and
as a consequence of the parties' failure to execute a written
collective-bargaining contract, the multiemployer group filed
a charge against the Union and this proceeding ensued
The fundamental issue is whether a binding agreement
was reached between the parties with respect to the establish-
ment of zones and travel time and travel expense allowances
for each zone.
B. The Testimony
Joseph Flynn is employed by the Otis Elevator Company
as regional construction manager and has held that position
for 6 years He is regional zone chairman for the multiem-
ployer association for Area No. 14, for its subcommittee
on labor for the National Elevator Industry, Inc. Geograph-
ical or territorial jurisdiction of Area 14 encompasses the
11 far western States not including Texas but including
Alaska and Hawaii Flynn was also the multiemployers'
labor chairman for 6 years for Area 14 when agreements
were negotiated in 1964 and 1966 for travel and expenses
with Respondent Local 8. He testified that in all those
meetings the union representatives never declared that there
was any limit on their authority to negotiate travel expense
,agreements nor was there any statement made in these
prior meetings by said union negotiators that any agreements
arrived at by them were subject to ratification by the
local union membership.
Flynn testified that the final agreement that was reached
on July 9, with respect to traveling items and expenses
See art XIII, par 2 of the current agreement Resp Exh 2, p See Resp Exh 1, a letter dated May 16, 1969, from the Employers
to the International Union.
INTL. UNION OF ELEVATOR CONSTRUCTORS 771
was the proposal offered by the union negotiators. It was
their formula, he testified, that was embodied in the final
agreement. Flynn's testimony was that this agreement was
not signed on July 9, because. "There were some minor
words which [were] ambiguous, or slight semantics that we
were going to meet the following day and make the changes
the following day and sign the contract " Flynn stated that
at none of the meetings prior to July 9 or on July 9, did
Rueda, the union business representative, or any other
member of the union negotiating committee state that any
agreements arrived at would be subject to ratification by the
membership.
The negotiators met the following day, July 10, 1969.
The only changes made at this meeting had to do with
respect to "Minor changes to wording" These minor
changes were not of a substantive nature but merely reaf-
firmed the terms of the agreement which had been reached
the previous day. Flynn's testimony continues as follows:
Mr. Rueda [for the first time on July 10] said that
he couldn't sign this, it had to be put on the statement
and needed to be ratified by the membership.
He did say first of all it's got to be ratified, and
when we got pretty upset, he said relax, it's a mere
formality, there's no problem to it, we'll get the agree-
ment approved.
i f i t
I was personally upset, and the international representa-
tives were also upset, making a statement that they
had to come all the way from Philadelphia . . . and
not to know they didn't have the authority to sign
Under date of August 18, 1969, Rueda, business represent-
ative of Local No. 8, sent a letter to Flynn which reads,
as follows:
Please be advised that the tentative agreement, signed
by us on Wednesday, July 9, 1969, was rejected by
the members of Local 8, I.U E.C, by secret ballot
vote
Our present Traveling Time and Expense Agreement
is still in effect and shall be in effect beyond the
date of September 15, 1969
Flynn by letter dated September 4, 1969, to Rueda,
stated:
As you know, N.E I I. Labor Committee, Area #14
and I.U.E C. Local #8 reached a new traveling
expense agreement at the meeting held on July 9 It
was not until the night of July 10, when we met to
execute a contract containing the agreed terms, that
you first informed us that you proposed to submit the
contract to the members of Local #8.
Accordingly, it is clear that your duty to bargain
in good faith obligates you to execute a contract contain-
ing the terms of our agreement. We have executed
two copies of that contract, which are enclosed
herewith. We request that you execute both copies and
return one copy to us no later than September 15,
the effective date of our agreement. If you have not
returned the contract by that date, we will have no
choice but to pursue our legal remedies.
It appears that the traveling expense agreement which
was to become effective on September 15, 1969, was signed
by all members of the NEII Labor Committee for Area
14, and that Fitzgerald, the International's representative,
and Grosch, the Local's president, both signed this agree-
ment as did Rueda but underneath Rueda's signature
appears the following "Subject to ratification by the IUEC
Local #8 membership "3
On cross-examination, Flynn stated: "we felt that the
committee that was appointed by the union had the authority
to sign, and had the authority beginning at that time.
... [on] July 10, or thereabouts, in 1968." Flynn continued
that negotiations did not start "afresh" on July 9, and
that it was not until July 10 that Rueda for the first
time notified the Association's negotiating committee that
is was necessary for the membership to ratify the agreement
before a contract could be executed. It was at this point,
testified Flynn, that he objected to Rueda pleading lack
of requisite authority to execute the agreement arrived
at the previous day.
On further cross-examination, it was elicited that negotia-
tions began on July 10, 1968, and when an impasse was
reached on May 16, 1969, negotiations were suspended
and not resumed until July 9, 1969. However, on May
16, Flynn, as chairman of NEIl's Area 14 negotiating
committee, wrote a letter to the International Union request-
ing the International to appoint a new committee which
would not include Rueda and to start negotiations "afresh."
See Respondent Exhibit No. 1. However, Flynn denied
that "fresh negotiations started again on July 9," testifying
as follows-
When we sat down on July 9, if we had thrown
out all of the previous j rk that we had done, and
the agreements, or areas that agreements that had
been reached, I would say yes, we were starting afresh.
But on July 9, when we sat down with the representa-
tives of the International, and with a representative
of our national committee, we took from previous
areas of agreement, and stated we would start afresh.
We will have to eliminate those items which the Interna-
tional felt were not negotiable items, so basically when
we sat down on July the 9th, we embodied in our
agreement those portions that we had within our
authority to negotiate, and eliminated from these previ-
ous agreements those items which the International,
and the National Labor Committee did not feel was
in the authority of either the union, or management
to negotiate. If that's starting afresh, we took the
previous areas of agreements, and reached a conclusion.
Q All right. Now, sir, it is true, however, that
in that May letter, which is Respondent's No. 1 for
identification, you rescinded all prior offers?
A. I offered to
Q. Let me read it to you again: all offers originally
made in past negotiations are herewith rescinded. Did
you say that?
THE WITNESS: It's written.
Q. (By Mr. Van Bourg) It's written, and you signed
it, right?
A. Yes.
I See G C Exh 5 and 6
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. And you dictated that letter, right?
A. Yes, sir.
Q And you read it before you signed it and sent
it, didn't you?
Q. I would assume so, yes.
A. And you're asking them in this letter to appoint
a committee with power to act, right?
A. I said that.
Q. Yes. So, it would seem to me that it was in
your mind that the committee should have full power
to act, right?
A It could be a figure of speech that it would
be like the other power to act on the other committee
Q So, you overlooked asking them at the commence-
ment of the meeting on July 9 as to whether they
had full authority to act?
A. The International was present when-we had the
International there on July 9th-
Q. Yes.
A. We were actually following the procedures estab-
lished by the standard agreement.
Q. Mr. Flynn, I would like you to answer the ques-
tion, you know you didn't file charges against the
International, you didn't file charges against this local,
I'd like you just to pay attention to that, and answer
the question as I asked it. Did you ask this local
committee at the commencement of the negotiations
on July 9-
A. No, I did not
Q. -as to whether they had all power to act?
A. No, I did not.
Q. So the most you could do is assume that they
didn't have to take it back to their membership?
A. As far as present, yes.
Q. Will you let me ask you another question. Aren't
you aware of the fact that between this letter of May
19-May 16 rather-1969, and your first meeting in
July that the local union membership held a meeting,
and they specifically passed a motion prohibiting the
union committee from entering into an agreement with-
out bunging it back for ratification?
A. I was not aware of that.
Q. You didn't even know that by hearsay?
A. No, wasn't aware of it until when Mr. Rueda
made the statement on July 10th, not the 9th, the
10th, when he made the statement in front of our
committee, everyone was astounded, everyone.
On redirect examination, Flynn testified that Fitzgerald,
vice president of the International, who had previously
been business representative for the Local and who had
represented the Local as its negotiator in 1964 and 1966,
stated when Rueda announced that the agreement was
subject to membership ratification: "You mean to
say . [I] had to come all the way from Philadelphia and
[Rueda] couldn't settle the issue once and for all." When
Flynn was asked by the General Counsel's representative
what his opinion was with respect to whether or not they
had arrived at a binding contract on July 9, he answered:
"We brought out a bottle and had a drink. It was a
culmination of a year-"
Kenneth Snow, Pacific coast regional manager of Westing-
house Elevator, a member of NEII's Area 14 negotiating
committee since October 1968, corroborated Flynn's testi-
mony, stating that he attended all of the negotiating sessions
and neither Rueda nor Grosch nor any other union repre-
sentative ever announced that any agreement reached had
to be submitted to the union membership for ratification
until he heard Rueda so state for the first time on July
10
Delbert G Wallace, construction superintendent for the
San Francisco District, Haughton Elevator Company, who
attended the negotiating sessions on July 9 and 10, was
called as a witness by Respondent. Wallace, a member
of the NEII Area 14 multiemployer group, denied that
Rueda notified the Employers' neogtiating committee mem-
bers on July 9, that union membership ratification was
necessary for any agreement reached Wallace also denied
that due to the impasse new negotiations started "all over
again" on July 9.
Thomas Grosch, president of Respondent Local 8, testi-
fied that as soon as the resumed meetings commenced
on July 9, 1969, Rueda "made the first statement, and
he said that we had had a floor motion from our local
that we had to have ratification votes of the membership
on any agreements made here. . . . Mr. Flynn was quite
upset. . . . He didn't like it, but he thought he could
live with it." Grosch also testified that the only thing
Fitzgerald, secretary-treasurer of the International Union,
said when Rueda stated ratification was necessary was:
"At that time I don't think he said anything except, I
think, if that's the way the membership wants it, that's
the way it will have to be."
C. Contentions
The General Counsel alleges that Respondent has violated
Section 8(b)(3) of the Act by refusing to sign the agreed-
upon contract. It is the contention of the Union that
whatever "tentative" agreements were reached were subject
to the ratification of the members, and the Union at no
time during the negotiations in question had the authority
to settle without the ratification of the members. The union
negotiating committee, claims the Union, submitted the
tentative agreement for a ratification vote with the knowl-
edge and approval of the employers at the time the tentative
agreement was reached and that such a ratification vote
was required before the agreement could be finalized The
members refused to ratify the agreement and therefore
the Local Union has refused to sign the agreement. Under
these circumstances, argues Respondent Union, it is clear
that the complaint against the Respondent Union should
be dismissed.
D. Credibility
Respondent's unexplained failure to have Rueda, the
prime actor in the events which eventuated in this proceed-
ing, take the witness stand and testify as to crucial matters
which were peculiarly and solely within his own knowledge,
INTL UNION OF ELEVATOR CONSTRUCTORS 773
"weighs heavily in favor of the General Counsel 's case."'
The failure to have Rueda testify warrants drawing an
inference that if he had, his testimony would not have
been favorable to Respondent 's case .' Indeed , a proximate
consequence of this ommission renders Grosch's testimony
hard to believe that Rueda announced at the outset of
the July 9 meeting that membership ratification was required
which is contrary to all the witnesses ' testimony that it
was July 10. Moreover , the Union 's assertion that the
membership passed a resolution requiring ratification was
not substantiated by introducing corroborative legal proof
of such fact . Under such circumstances , this missing link
may be as probative a basis for inference as words or
deeds 6 This failure to produce the resolution or the minutes
of the union meeting "not only strengthens the probative
force" of its absence "but of itself is clothed with a certain
probative force," ' and leads one to postulate whether it
was advanced ex post facto. Accordingly, it is found that
the membership ratification announcement was not made
by Rueda until the July 10 negotiating session.
E. Discussion
In Sheet Metal Workers Union, Local No. 65 (Inland
Steel Products Company), 120 NLRB 1678, it was held
that the union unlawfully refused to bargain in violation
of Section 8(b)(3) when the union 's agents refused to sign
a contract which had been agreed to by the parties It
was the union 's contention that its executive board and
the membership of the local both had to ratify negotiated
agreements . The Board held, however, that this defense
did not justify the union negotiators' refusal to sign the
contract because the union negotiators acted as if they
had full authority to reach and execute a binding contract
Moreover, held the Board , they exercised their apparent
authority during these negotiations in a manner displayed
during previous contract negotiations in prior years and
when the current contract was being negotiated they did
not notify the employer that their right to bind the union
had been diminished.
In Operating Engineers Local Union No. 3 (California
Association of Employers), 123 NLRB 922, the Board held
that the union unlawfully refused to bargain with an employ-
ers' association by refusing to execute an agreement negotiat-
ed jointly by the respondent union's representative and
the representatives of three other unions The Board stated
that the bargaining history established the respondent
union 's agents had authority to conclude a contract and
that these agents had in fact reached an agreement with
the employers' association which the union was obligated
to execute Moreover, concluded the Board , the union was
obligated to sign the wage agreement negotiated by two
4 J. C Penney Co, Inc., 172 NLRB No 134
Interstate Circuit v U S .306 U S 208, 225, 226, Homedale Tractor
Co, 211 F 2d 309, 315 (C A 9), Gibbs Die Casting Aluminum Corp. 174
NLRBNo 15(TXD)
Crane Co. v. James McHugh Sons, Inc., 108 F 2d 55, 59 (C A.
10) Cf. Electrical Workers (UE), Local 1113 v N.L.R B., 223 F 2d
338,343 (C A D C)
Paudler v Paudler, 185 F 2d 901, 903 (C A 5 ), cert denied 341
U S. 920.
of its business agents, notwithstanding the union 's contention
that the business agents were authorized only to negotiate
and to administer contracts , inasmuch as the business agents
had previously concluded and executed contracts on the
union 's behalf, thereby clearly establishing their apparent
authority to do so in the current negotiations.
In Painters Union, Local No. 1385 (Associated Building
Contractors of Evansville, Inc.), 143 NLRB 678, enfd.
N.L.R.B. v. Painters Union, 334 F.2d 729 (C.A. 7), the
court held that the Board was warranted in finding that
the union violated Section 8(b)(3) of the Act by refusing
to sign a written collective-bargaining contract containing
terms upon which the union and the employers ' association
had agreed . The union contended that it could not sign
the contract because, inter alia, the union membership
had not ratified the contract as required by the constitution
of the union . The Board in its decision stated at 680
that despite the provision in the respondent union 's constitu-
tion requiring membership ratification of collective -bargain-
ing agreements , the facts clearly show that an agreement
was reached between the parties. This was based upon
the Board 's finding that the union negotiators failed to
state any reservations of authority at any of the negotiating
meetings and furthermore , it was uncontradicted that during
30 years of negotiations between the respondent union
and employers ' association , that whatever was agreed upon
orally was reduced to writing and signed by the parties
without reference to membership approval . The Board con-
cluded that the respondent union by refusing to sign the
written agreement , the terms of which had been agreed
upon previously , failed to bargain in good faith and thereby
violated Section 8(b)(3) of the Act.
In Glass Workers Union Local No. 1220 (Industrial Con-
ference Board), 162 NLRB 168 , the Board held that the
union violated Section 8(b)(3) of the Act by refusing to
sign a fully agreed -upon contract notwithstanding a failure
to meet the union 's constitutional requirement of ratification
by the local 's membership!
F. Conclusions
In the instant case , the facts constitute an a fortiori
situation in that there was no constitutional requirement
that ratification by the Local Union 's membership was
necessary or required. Moreover, the Respondent Union's
negotiators in past negotiations over many years had never
indicated implicitly or explicitly that such ratification was
a prerequisite to the execution of a collective-bargaining
agreement . In applying the teachings of the above-cited
cases that past bargaining practices between a union and
an employer are a significant indicium in determining wheth-
er or not the union is bound by an agreement reached
in negotiations by its representatives , it is found, based
upon the circumstances in the case at bar , that the union
negotiators had apparent authority 'to bind the Respondent
Local 'Union . This holding is particularly clear when it
is considered that the Board and courts have held that
' See also Los Angeles Mailers' Union No. 9 (Dow Jones & Co),
155 NLRB 684 ; Local 17, ILWU, 171 NLRB No 166 , United Cement,
Lime and Gypsum Workers (Nevada Cement Co), 173 NLRB No 214
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
even though the constitution of a union may require ratifica-
tion by the membership, an employer may rely upon the
apparent authority of the union representatives to conclude
an agreement where there is a basis for such reliance,
as in this case, where for a number of years the practice
had been for a union representative to execute the contract
without membership ratification. Moreover, under the pecul-
iar circumstances here present, it would seem not too
unreasonable to hold that the union representatives should
have been clothed with sufficient authority to execute a
contract in view of the cogent fact that in the past its
representatives had authority to not only negotiate but
to execute any contract without the necessity of subsequent
membership ratification. Respondent's assertion that Rueda
had no authority to execute the written agreement might
be considered questionable after-the-fact rationalization
insufficient to explain his conduct and, therefore, may prop-
erly be regarded with some suspicion.'
Furthermore, where the NEII had no notice of a change
in this procedure until after agreement was reached, it
would not only be inequitable but contrary to Board preced-
ent to hold the Union not to be bound. Therefore, under
these circumstances, the multiemployer bargaining associa-
tion was justified in relying on the Respondent Union's
representatives apparent authority to conclude and execute
a contract embodying the agreement reached on July 9,
1969. It is found, accordingly, that refusal on the part
of the union representatives to sign an agreement based
on a claim that they had no authority and that the agreement
must be ratified by the membership, when the above consid-
erations obtain, is a violation of Section 8(b)(3) of the
Act 10
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent as set forth in section I, above, have a close,
intimate and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices prohibited by Section 8(b)(3) of the Act,
it shall be recommended that it be ordered to cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
' Cumberland Shoe Corporation, 351 F 2d 917 (CA 6), enfg 144
NLRB 1268 Cf N.LRB. v Lorillard Co., 117 F 2d 921, 924 (CA.
6), N.LR.B v. Mexia Textile Mills, Inc, 339 U S 563, 565
10 George Meany, president of the AFL-CIO, is quoted in an article,
"Labor Leaders," in the Catholic Standard, Washington , D C., of March
5, 1970, by Msgr George G. Higgins that Mr Meany "urges that
unions empower their negotiating committees to conclude binding agree-
ments without the need for subsequent ratification "
CONCLUSIONS OF LAW
1. National Elevator Industry, Inc., is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. International Union of Elevator Constructors, Local
No 8, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3 All elevator constructor mechanics and elevator con-
structor helpers in the employ of NEII engaged in the
installation, repair, maintenance and servicing of all equip-
ment referred to in article IV, paragraph 2 of the said
agreement, constitute an appropriate bargaining unit within
the meaning of Section 9(b) of the Act.
4. On July 10, 1969, and at all times material thereafter,
the Union was and now is the exclusive representative
of the above-designated Employers' employees in the said
appropriate units for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
5 By failing and refusing to execute the written agreement
of the parties, as agreed upon on July 9, 1969, the Respond-
ent has engaged and is engaging in unfair labor practices
within the meaning of Section 8(b)(3) of the Act.
6 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. By failing and refusing to execute the written agreement
of the parties, as agreed upon July 9, 1969, Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(3) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this
proceeding, it is recommended that International Union
of Elevator Constructors, Local No. 8, AFL-CIO, its offi-
cers, agents, and representatives, shall:
1. Cease and desist from refusing to bargain collectively
in good faith with the National Elevator Industry, Inc.,
Area No. 14, as to wages, hours and other terms and
conditions of employment covering employees in the unit
herein found to be appropriate, by refusing to sign the
collective-bargaining agreement upon which the parties have
agreed, or from engaging in any like or related conduct
in derogation of the statutory duty to bargain.
2. Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act:
(a) Upon request, bargain collectively with National Ele-
vator Industry, Inc., Area No. 14, as the exclusive represent-
ative of the employees in the units heretofore found
appropriate and embody any understanding which may
be reached in a signed agreement.
(b) If requested by National Elevator Industry, Inc.,
Area No. 14, execute the contract on which agreement
was reached with the said Employers on July 9, 1969.
INTL UNION OF ELEVATOR CONSTRUCTORS 775
(c) Post at its business offices and meeting halls, copies
of the attached notice marked "Appendix."" Copies of
said notice, on forms provided by the Regional Director
for Region 20, after being duly signed by a representative
of Respondent, shall be posted by Respondent immediately
upon receipt thereof, and maintained by it for 60 consecutive
days thereafter, in conspicuous places, including such places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material
(d) Notify the Regional Director for Region 20, in writing,
within 20 days from the date of this Decision, what steps
Respondent has taken to comply herewith.12
" In the event no exceptions are filed as provided by Sec 102 46
of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions , recommendations , and Recommended Order
herein shall, as provided in Sec 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order , and all objections thereto shall be deemed waived for all purposes
In the event that the Board's Order is enforced by a Judgment of
the United States Court of Appeals , the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board."
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 20, in writing , within 10 days from the date of
this Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify you that-
WE WILL NOT refuse to bargain collectively in good
faith with National Elevator Industry, Inc., Area No
14, as the exclusive representative of the said Employ-
ers' employees in the appropriate unit described below
by refusing to sign the written collective-bargaining
agreement to which we agreed, on July 9, 1969, and
we will not engage in any like or related conduct
in derogation of our statutory duty to bargain, provided
we remain the representative of the employees in the
appropriate unit , as prescribed in Section 9 of the
Act.
WE WILL, if requested by National Elevator Industry,
Inc, Area No. 14, execute the contract on which
we reached agreement with the said Employers on
July 9, 1969. The appropriate unit is
All elevator constructor mechanics and elevator
constructor helpers in the employ of NEII, Area
14, engaged in the installation , repair, maintenance
and servicing of all equipment.
Dated By
INTERNATIONAL UNION OF
ELEVATOR
CONSTRUCTORS , LOCAL No
8, AFL-CIO
(Labor Organization)
(Representative)
(Title)
This is an official notice and must not be defaced by
anyone.
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
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 13050
Federal Building, 450 Golden Gate Avenue, Box 36047,
San Francisco, California 94102, Telephone 415-556-3197.