Iron Workers (J. W. Reinforcing)

National Labor Relations Board - Board Decisions

Jun 8, 1995

317 N.L.R.B. 817 (N.L.R.B. 1995)

817
317 NLRB No. 113
IRON WORKERS (J. W. REINFORCING)
1 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
1 The Respondents denied filing and service of the charge and the
amended charge. The formal papers contain verified returns which
indicate that the charge and the amended charge were filed and
served as alleged in the complaint. Sec. 102.113 of the Board’s
Rules and Regulations provides that the verified return shall be proof
of service. No evidence was presented by the Respondents indicating
that the charge and the amended charge were not filed and served
as alleged. Accordingly, I find that the charge and the amended
charge were filed and served as set forth in the complaint.
2 James Coker was a thoroughly credible witness. I am convinced
that at all times he testified to the best of his recollection and with-
out embellishment regarding events that occurred in 1992, 1993, and
1994. Coker adequately explained all omissions or minor inconsist-
encies with his affidavit. Coker’s demeanor throughout an entire day
on the witness stand was forthright and appropriate. His testimony
in general was logical and consistent.
3 The Respondents’ motion to dismiss contests the General Coun-
sel’s proof that the Employer purchased goods in excess of $50,000
indirectly from sources outside the State of California. I find that
Coker’s unrebutted testimony establishes that the Employer pur-
chased approximately $1 million of steel bar from JLD during fiscal
1994, the bulk of which was manufactured in the States of Oregon
and Washington, thus outside the State of California. Coker credibly
testified that during fiscal year 1994 he personally inspected the mill
Continued
District Council of Iron Workers of the State of
California and Vicinity and Iron Workers
Local Union No. 155 of the International Union
of Bridge, Structural and Ornamental Iron
Workers, AFL–CIO and J. W. Reinforcing
Steel, Inc. Case 32–CB–4365
June 8, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On March 31, 1995, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
Respondents filed exceptions and a supporting brief,
and the Charging Party filed an answering brief.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, District Council of Iron
Workers of the State of California and Vicinity and
Iron Workers Local Union No. 155 of the International
Union of Bridge, Structural and Ornamental Iron
Workers, AFL–CIO, Hercules and Fresno, California,
their officers, agents, and representatives, shall take the
action set forth in the Order.
Barbara D. Davison, Esq., for the General Counsel.
Victor J. Van Bourg, Esq., of San Francisco, California, for
the Respondent.
Theodore R. Scott, Esq., of San Francisco, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge.
This case was tried in Oakland, California, on February 9,
1995. The charge and amended charge were filed October 11
and 20, 1994, respectively, and the complaint was issued Oc-
tober 27, 1994. The Respondents are District Council of Iron
Workers of the State of California and Vicinity (Respondent
District Council) and Iron Workers Local Union No. 155 of
the International Union of Bridge, Structural and Ornamental
Iron Workers, AFL–CIO (Respondent Local 155). The Re-
spondents filed a timely answer and an amended answer to
the complaint denying most of the allegations in the com-
plaint1 and asserting certain affirmative defenses.
The issues in this case involve an independent contract in-
corporating a master agreement. The General Counsel con-
tends the Respondents violated Section 8(b)(3) and (d) of the
Act by attempting to compel J. W. Reinforcing Steel, Inc.,
the Employer, to agree to a midterm modification of this
contract, by refusing to dispatch employees pursuant to the
terms of that agreement unless the Employer agreed to the
proposed midterm modification and by repudiating the terms
of the contract. The Respondents defend their actions by at-
tacking the validity and legal sufficiency of the contract.
On the entire record, including my observation of the de-
meanor of the witness, and after considering the briefs filed
by the General Counsel, the Respondents, and the Employer,
I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondents deny that the Employer is engaged in
commerce within the meaning of the Act. The evidence indi-
cates that the Employer is a California corporation with its
headquarters in El Cajon, California. Although the Respond-
ents moved to dismiss the complaint based, inter alia, on fail-
ure of proof of jurisdiction and on the assertion that only the
articles of incorporation could prove that the Employer is a
California corporation, I find that the unrebutted testimony of
the Employer’s president, James Coker (Coker),2 establishes
that the Employer is a California corporation, that the Em-
ployer is engaged in the construction industry as a steel rein-
forcing subcontractor, that during fiscal year 1994, the Em-
ployer purchased steel bar valued in excess of $50,000 from
J. L. Davidson Co., Inc. (JLD) also located within the State
of California, and that JLD purchased this steel bar directly
from sources located outside the State of California.3 Ac-
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
certificates of all purchases of steel bar from JLD. Most of this steel
bar came from Cascades Steel Rolling Mills, McKinville, Oregon, or
Barbary Coast Steel, Seattle, Washington. These sources are located
outside the State of California. Coker testified that he inspected the
mill certifications because he, in turn, had to submit the mill certifi-
cations (showing the size, grade, and type of steel) to the general
contractor to ensure that the correct grade of steel was used for each
project. Coker’s testimony was corroborated by a letter of October
11, 1994, from JLD to the NLRB that confirmed that it sold over
$50,000 of reinforcing bar materials to the Employer during fiscal
year 1994 and that material was obtained by it directly from sources
located outside the State of California. The parties submitted this let-
ter by stipulation.
4 The Respondents also admit that Iron Workers Local Unions
Nos. 118, 229, 377, 378, 416, and 433 are labor organizations within
the meaning of Sec. 2(5) of the Act.
5 The standard form language states that the agreement is between
‘‘the undersigned individual employer and the [Respondent] District
Council . . . for and on behalf of its affiliated California Field Iron
Worker Local Unions.’’ The standard form language further pro-
vides, ‘‘By executing this [agreement], the undersigned individual
employer . . . agrees . . . this Iron Workers Independent Agreement
shall remain in full force and effect indefinitely unless notice is
given strictly in accordance with the limitations [set forth below].’’
At the bottom of the standard form, Respondent District Council’s
name is set forth. Under Respondent District Council’s title, a line
appears, ‘‘Local Union No. lll’’ and under that ‘‘By lll’’
appears. On the first blank, the number 416 is handwritten and on
the second blank, the signature ‘‘Donald E. Holmes’’ appears. The
Blythe Independent Agreement is dated May 18, 1992, and the ef-
fective date is also May 18, 1992.
6 Although the Respondents argue that the words ‘‘1 JOB AGREE-
MENT BLYTH [sic] PRISON’’ were inserted by Coker after the
fact, the Respondents presented no witnesses or documents to prove
this point. In the absence of such evidence, I conclude that no such
evidence exists. Moreover, I credit Coker’s testimony that this lan-
guage was inserted when the documents were executed. I also credit
Coker’s testimony that Holmes made no explicit representations re-
garding the extent of his authority to bind the Respondents.
cordingly, I find that the Employer satisfies the standards for
indirect inflow set forth in Siemons Mailing Service, 122
NLRB 81, 85 (1958), and thus is engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act. The
Respondents admit that they are labor organizations within
the meaning of Section 2(5) of the Act.4
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Incorporated in 1987, the Employer initially operated as a
nonunion subcontractor in Southern California installing rein-
forcing steel on various concrete construction sites. In May
1992, the Employer successfully bid on a subcontract for a
State of California prison to be built in Blythe, California.
This construction project was governed by the Davis-Bacon
Act, 40 U.S.C. § 276a-276a-7, which required that prevailing
Iron Workers’ wages be paid on all Iron Workers’ jobs.
None of the Employer’s prior work had been covered by a
prevailing wage requirement.
1. The Blythe independent agreement
Shortly before work began on the Blythe prison project,
Employer President Coker received a telephone call from
Donald E. Holmes (Holmes), who identified himself as a
union representative for Iron Workers Local Union No. 416
(Local 416). The two discussed the possibility of signing a
one-job agreement for the Blythe prison project. Coker said
he would consider such an agreement. On May 18, 1992,
Coker and Holmes signed two copies of the Iron Workers
Independent Agreement (the Blythe Independent Agreement).
At the time of execution, Coker wrote on both original docu-
ments, ‘‘1 JOB AGREEMENT BLYTH [sic] PRISON.’’ The
Blythe Independent Agreement is on a standard form and in-
corporates by reference the terms of the ‘‘Iron Worker Em-
ployers State of California and a Portion of Nevada . . . and
District Council of Iron Workers of the State of California
and Vicinity Master Agreement ’’ (the Master Agreement)
‘‘in effect at the execution date hereunder.’’5 By letter of
June 3, 1992, Richard Zampa (Zampa), who was identified
in the letterhead and on the signature line of the letter as
president of Respondent District Council, wrote to the Em-
ployer enclosing a copy of the executed Blythe Independent
Agreement that was date stamped May 21, 1992, by Re-
spondent District Council and thanking the Employer for
signing the Blythe Independent Agreement.6
The Employer completed the Blythe Prison project about
1 year after it was started. Throughout that time, Local 416
referred ironworker employees to the Employer. Union Rep-
resentative Holmes visited the project about once a week
during this time period. For all employees covered by the
Blythe Independent Agreement, the Employer made contribu-
tions to the trusts funds designated in the Master Agreement.
2. The Coalinga independent agreement
In early 1993, the Employer successfully bid on a sub-
contract to install reinforcing steel for the Coalinga, Califor-
nia prison. This project was also covered by the Davis-Bacon
Act prevailing wage requirement. Following several tele-
phone calls with Joe Roth (Roth), who identified himself as
a union representative for Respondent Local 155, Coker met
Roth in Fresno, California, on January 7, 1993, and executed
an Iron Workers Independent Agreement (the Coalinga Inde-
pendent Agreement) with the notation, ‘‘ONE JOB ONLY’’
and the further notation, ‘‘This agreement will be in effect
for the Coalinga Prison job located in Coalinga, California.’’
These notations were typed onto the Coalinga Independent
Agreement by Roth’s secretary prior to execution. The stand-
ard form that had been utilized for the Blythe Independent
Agreement was also used for the Coalinga Independent
Agreement.
The Employer received a letter dated February 8, 1993,
from Zampa stating his thanks for execution of the independ-
ent agreement and enclosing an executed copy. Roth is iden-
tified on the letterhead as secretary of Respondent District
Council. Respondent Local 155 referred ironworker employ-
ees during the term of this project. The Employer made con-
tributions to the trust funds designated in the Master Agree-
ment for its employees covered by the Coalinga Independent
Agreement. Coker and Roth had a conversation during the
term of this project in which Roth indicated that Coker
would not be allowed another one-job agreement.
819IRON WORKERS (J. W. REINFORCING)
7 All further dates are in 1994 unless otherwise indicated.
8 In addition to his identification in Respondent District Council’s
letterhead stationary as president, Zampa is also identified in the
Master Agreement as president of Respondent District Council and
union chairman of the board of directors of the Ironworker Employ-
ees’ Benefit Corporation and the Pension Trust Board of Trustees.
9 The Employer’s work at the Blythe, Coalinga, and Susanville
projects was performed pursuant to a direct contract with the general
contractor in charge of those projects. This was referred to as a
‘‘first-tier subcontractor.’’ The Employer’s work at the Soledad pris-
on project was awarded as a contractor of a subcontractor to the gen-
eral contractor. This was referred to at the hearing as a ‘‘second-
tier contractor.’’
3. The Susanville independent agreement
In February 1994,7 the Employer was awarded work on
the Susanville, California prison. Sven Sorensen (Sorensen),
who identified himself as a representative of Iron Workers
Local Union No. 118 (Local 118), contacted the Employer
and a meeting was arranged in Sacramento. In the presence
of a man introduced as Business Agent Jim Murphy,
Sorensen asked Coker if Coker would sign a statewide agree-
ment and Coker explained that it would be economically im-
possible to do so. Sorensen asked if Coker would consider
a one-job agreement. Coker was surprised at the prospect of
a one-job agreement given Roth’s admonition that no more
one-job agreements would be awarded. Coker had already
made plans to perform the job nonunion and he told
Sorensen this. Sorensen and Murphy left the office for about
10 minutes. When they returned, Sorensen asked if Coker
would consider a statewide agreement that excluded Southern
California (anything below the Los Angeles county line).
Coker agreed. Sorensen and Murphy left and returned again,
this time with an agreement containing notations. The parties
then signed two copies of the standard form independent
agreement (the Susanville Independent Agreement), which
had the following typewritten notations:
This agreement is for the Susanville Prison project
and/or any work bid north of the L. A. county line.
*The employer shall be allowed to bring in 4 key
employees.
The fringe benefits for this project shall be joint
checked with McCarthy.
The copy of the Susanville Independent Agreement in evi-
dence is not dated in the ‘‘date’’ blank below the signature
lines and no effective date appears at the bottom of the
agreement where a blank is provided for such a date. Both
the Blythe and Coalinga Independent Agreements had execu-
tion and effective dates set forth in the appropriate blanks on
the standard form. Contrary to its experience with the Blythe
and Coalinga Independent Agreements, the Employer did not
receive a letter from Respondent District Council enclosing
a file stamped copy of the Susanville Independent Agree-
ment. The Employer, however, did receive the typical bene-
fits payment packet and has made all benefit payments as re-
quired.
In March, Coker received a telephone call from Zampa8
regarding a court judgment of delinquency of the Employer’s
fringe benefit payments on the Coalinga job. Coker under-
stood that the District Council had waived delinquency fees
for some contractors when the contractor tendered the arrear-
age. During the course of this conversation, Zampa stated
that he was aware of the Employer’s contract with Local 118
(the Susanville Independent Agreement) and he was not
happy with it. Coker asked Zampa if Zampa would accept
the past due amounts on the Coalinga job and waive the de-
linquent fees. Zampa replied that he could waive the trust
fund delinquent fees but he would not do so unless Coker
signed a full statewide agreement and did away with the one
Coker had with Local 118 (meaning the Susanville Independ-
ent Agreement). Coker told Zampa he would not agree to
this and the Employer paid the arrearages with delinquent
fees on the Coalinga job.
In February 1995 (at the time of hearing), the Employer
continued to perform work on the Susanville prison project.
The project continued to be staffed by union ironworkers re-
ferred from Local 118 and their fringe benefits were paid ac-
cording to the Susanville Independent Agreement.
B. The Soledad Prison Project
In August 1994, subcontractor JLD awarded the Employer
second-tier subcontractor work on the Soledad prison
project.9 Soledad, California, is located north of the Los An-
geles County line. Coker called Roth to advise him that the
Employer would be coming down to the Soledad project.
Roth replied, he did not think so. Coker responded that he
would have to talk to his lawyer to see what the Employer’s
legal rights were but Coker thought he had an agreement.
Roth said he ‘‘had’’ Coker this time because the Employer
was not the original subcontractor with the general contractor
on the jobsite (referring to the Employer’s second-tier status).
In fact, JLD, the original subcontractor, could subcontract
work only to Respondent Local 155 or Respondent District
Council signatories because JLD was a party to the Master
Agreement.
Coker saw Sorensen each week at the Susanville jobsite.
On one of these weekly visits, Coker related to Sorensen that
Roth was not going to furnish ironworkers to the Employer
at Soledad. Sorensen said he could not understand that be-
cause the Employer had an agreement. Sorensen further stat-
ed that Respondent District Council was aware of the nota-
tions typed into the Susanville Independent Agreement be-
fore it was signed and that there should be no problems at
this late date. Sorensen added that there was nothing he
could do for Coker.
By letter of October 6, Coker’s attorney contacted Re-
spondents’ attorney regarding the Soledad project. A copy of
the Susanville Independent Agreement was faxed to the Re-
spondents’ attorney on the same date. By letter of October
14, Respondents’ attorney questioned the authorship of the
Susanville Independent Agreement typewritten language and
stated that the Employer had not shown it was signatory to
an agreement with Respondent District Council. By letter of
October 14, counsel for Respondents notified JLD that the
Employer had never executed a collective-bargaining agree-
ment with Respondent Local 155 and that the existence of
a collective-bargaining agreement with Respondent District
Council had not been demonstrated.
Two telephone conversations between Roth and Coker en-
sued. In the first of these, Coker told Roth on October 19
that he was moving onto the Soledad jobsite, he expected
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The jurisdictional boundaries and geographical descriptions of
each of the Local unions is set forth beginning at p. 61 of the Master
Agreement.
men to be dispatched, and wanted to meet the jobsite stew-
ard. Roth responded that Coker should speak to Roth’s law-
yer. A confirming letter setting forth this same information
and dated October 21 was also sent by the Employer to Re-
spondent Local 155.
When Coker actually arrived at the Soledad jobsite, he
called Roth just before the job was to start and asked Roth
if he was going to dispatch ironworkers. Roth again re-
sponded, ‘‘Speak to my lawyer.’’ Coker asked Roth if Roth
would sign a one-job agreement for the Soledad project.
Roth responded that Coker would have to sign a statewide
agreement ‘‘or else.’’
By letter of October 20, JLD informed the Employer that
it was unable to subcontract the labor on the Soledad project
to the Employer because this would violate the terms of its
‘‘Master Agreement with the Iron Workers.’’ Respondent
Local 155 never furnished any ironworker employees to the
Employer for the Soledad project. The Employer was termi-
nated from its second-tier contract status with JLD for the
Soledad prison project but Coker was hired by JLD to super-
vise that work and ironworkers were dispatched to JLD.
Coker supervised the JLD ironworker employees on the
Soledad project.
III. ANALYSIS AND CONCLUSIONS
Section 8(b)(3) of the Act provides: ‘‘It shall be an unfair
labor practice for a labor organization or its agents—(3) to
refuse to bargain collectively with an employer, provided it
is the representative of its employees subject to the provi-
sions of Section 9(a).’’ The proviso to Section 8(d) of the
Act requires that the parties to a collective-bargaining agree-
ment continue the agreement ‘‘in full force and effect, with-
out resorting to strike or lockout’’ until the expiration date
of the agreement unless notice of a proposed termination or
modification are provided in accord with the Act. These te-
nets also apply to the parties to construction industry prehire
agreements sanctioned in Section 8(f) of the Act. John
Deklewa & Sons, 282 NLRB 1375, 1377 (1987), enfd. sub
nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir.
1988), cert. denied 488 U.S. 889 (1988). Voluntary prehire
agreements cannot be unilaterally repudiated by either party
during the term of the agreement. Id. at 1387.
A. Respondents’ Obligations Pursuant to the Susanville
Independent Agreement
1. Existence of a collective-bargaining agreement
The Respondents argue that because there is no effective
date entered on the independent agreement form utilized for
the Susanville Independent Agreement and because the par-
ties did not date their signatures, the agreement, ‘‘even if le-
gitimate, simply does not ever go into effect, and therefore,
it does not exist.’’ (R. Br. at p. 5.) The absence of a date
on a written and signed collective-bargaining agreement does
not invalidate the contract for purposes of contract bar when
the contract is clearly for a definite term. Western Roto En-
gravers, 168 NLRB 986 (1967). Accordingly, the failure of
the parties to date their signatures and place an effective date
on the blank provided on the independent agreement standard
form does not render the contract void.
I note, in addition, that the Susanville Independent Agree-
ment incorporates the terms of the Master Agreement. The
Master Agreement recites that it was entered into by the
‘‘IRON WORKER EMPLOYERS State of California and a
Portion of Nevada . . . and DISTRICT COUNCIL OF IRON
WORKERS OF THE STATE OF CALIFORNIA AND VI-
CINITY.’’ The Master Agreement states that it is made,
between the California Ironworker Employers Council,
Inc. [as defined] and the District Council of Iron Work-
ers of the State of California and Vicinity and Local
Unions 118, Sacramento; 155, Fresno; 229, San Diego;
377, San Francisco; 378, Oakland; 416, Los Angeles
and 433, Los Angeles . . . who are affiliated with said
District Council, which District Council and Local
Unions are signatory hereto and are recognized as the
collective bargaining representatives of the employees.
(Master Agreement at p. 1.)10 As the Respondents note, the
independent agreement standard form language incorporates
the Master Agreement and this standard form is approved by
Respondent District Council. (R. Br. at p. 3.) I find, based
upon the Master Agreement, that Respondent District Coun-
cil and Respondent Local 155, together with Iron Workers
Local Unions Nos. 118, 229, 377, 378, 416, and 433 are the
joint representative of unit employees covered by the Master
Agreement for the period from July 1, 1992, through June
30, 1995. In addition, I find that the joint representative is
a labor organization within the meaning of Section 2(5) of
the Act; I find that Iron Workers Local Nos. 118, 229, 377,
378, 416, 433, and Respondent Local 155 have been mem-
bers of Respondent District Council and that the entities
comprising the joint representative are engaged in a joint
venture existing at least in part for the purpose of negotiat-
ing, administering, and enforcing collective-bargaining agree-
ments on a joint basis with employers in the building and
construction industry including the collective-bargaining
agreements with the Employer (the Blythe, Coalinga, and
Susanville Independent Agreements).
At the time of execution of the Susanville Independent
Agreement (established by the testimony of Coker to be in
February 1994), the Master Agreement was effective July 1,
1992, through June 30, 1995. Accordingly, a specific term is
set forth in the Master Agreement. In addition, work on the
Susanville prison agreement continued from February 1994
until at least February 1995 pursuant to the terms of the
Susanville Independent Agreement. Because I credit the testi-
mony of Coker that the typewritten notations were present on
this agreement at the time of execution, I find that the
Susanville Independent Agreement applies by its terms to the
Soledad prison project and was effective from the date Local
118 began referring ironworkers and continues at least until
June 30, 1995 (or another agreed date).
2. Agency
Section 2(13) provides:
In determining whether any person is acting as an
‘‘agent’’ of another person so as to make such person
responsible for his act, the question of whether the spe-
821IRON WORKERS (J. W. REINFORCING)
11 This language is quoted on p. 4, supra. The language not only
creates a joint representative status among Respondent District
Council and its affiliated locals, its also allows an inference that the
affiliated locals and Respondent District Council may act in each
other’s interest in matters of collective bargaining under the Master
Agreement.
12 See fn. 5, supra.
13 Accordingly, I conclude that the collective-bargaining unit en-
compassed by the Susanville Independent Agreement is as follows:
All full time and regular part-time employees of the employer
performing work as set forth in ‘‘Section 3: Craft Jurisdiction’’
of the Master Agreement, north of the Los Angeles, California
County Line; excluding all other employees, guards, and super-
visors as defined in the Act.
I further conclude that the joint representative is the designated
limited exclusive collective-bargaining representative of the unit em-
ployees for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other terms and con-
ditions of employment.
cific acts performed were actually authorized or subse-
quently ratified shall not be controlling.
Whether someone acts as an agent under the NLRA must be
determined by common law principles of agency which, of
course, incorporate principles of implied and apparent author-
ity. NLRB v. Laborers Local 341 (Bannister-Joyce-Leonard),
564 F.2d 834, 839 (9th Cir. 1977). The Taft-Hartley amend-
ments of 1947 expressly incorporated common law agency
principles by adding Section 2(13) to the Act in order to
avoid a narrower interpretation of agency authority that
would require actual instigation, participation, or ratification.
Longshoremen ILA (Coastal Stevedoring Co.), 313 NLRB
412, 415 (1993) (citing 93 Cong.Rec. 6858–6859 (remarks of
Senator Taft)). Moreover, in the labor relations context,
agency principles must be broadly construed in order to re-
flect the legislative policies of the Act, looking to the par-
ticular circumstances of industrial labor relations. Id.
Apparent authority is created through a manifestation
by the principal to a third party that supplies a reason-
able basis for the latter to believe that the principal has
authorized the alleged agent to do the act in question.
NLRB v. Donkin’s Inn, 532 F.2d 138, 141 (9th Cir.
1976); Alliance Rubber Co., 286 NLRB 645, 646 fn. 4
(1987). Thus, either the principal must intend to cause
the third person to believe that the agent is authorized
to act for him, or the principal should realize that this
conduct is likely to create such a belief. Restatement
2d, Agency § 27 (1958, Comment). Two conditions,
therefore, must be satisfied before apparent authority is
deemed created: (1) there must be some manifestation
by the principal to a third party, and (2) the third party
must believe that the extent of the authority granted to
the agent encompasses the contemplated activity. Id. at
§ 8.
Dentech Corp., 294 NLRB 924, 925–926 (1989), quoting
from Service Employees Local 87 (West Bay Maintenance),
291 NLRB 82 (1988). On the other hand, implied authority
originates from the express terms of the agency authoriza-
tion. Certain powers are implied or inferred from the words
used, the parties’ customs, and the relations of the parties.
Restatement 2d, Agency § 7.
The plain language of the Master Agreement11 designates
Iron Workers Local Nos. 118, 229, 377, 378, 416, and 433
and Respondent Local 155 as agents of Respondent District
Council authorized to bind Respondent District Council to
collective-bargaining agreements. In addition, the language
incorporated in the standard form independent agreement12
indicates that the affiliated locals may act as agents of Re-
spondent District Council in obtaining independent agree-
ments. Thus, the standard form independent agreement states
that the agreement is made between the individual employer
and Respondent District Council for and on behalf of its af-
filiated locals. The signature blocks are further evidence of
agency status. Respondent District Council’s name is typed
immediately above the signature block for the local union
with a blank left on the form so that the local union can
enter its number.
In the particular circumstances of this case, the Respond-
ents were parties to a Master Agreement and various local
unions affiliated with Respondent District Council presented
‘‘me too’’ or standard form independent agreements to non-
signatory employers who appeared at various construction
sites. In this particular case, the representatives of the union
had offices in the relevant union halls and made inspection
trips to the jobsites involved. The Respondents argue, how-
ever, that no evidence shows that Sorensen of Local 118 had
any authority to bind another local union or, specifically to
bind Respondent Local 155. This contention is unsupported
and, in fact, is belied by the language of the Master Agree-
ment that creates an agency relationship between Respondent
District Council and its affiliated local entities.
The Respondents presented no evidence to rebut Coker’s
testimony regarding the actions and statements of the alleged
agents. Such evidence, however, was exclusively within the
control of the Respondents. Due to the failure of these wit-
nesses to appear and testify, I infer that their testimony
would have been consistent with that of Coker and unfavor-
able to the Respondents. Iron Workers Local 118 (California
Erectors), 309 NLRB 808, 811 (1992) (failure to call
Sorensen as a witness to rebut testimony of the General
Counsel raises an adverse inference that his testimony would
not have been favorable); Hotel & Restaurant Employees
Local 50 (Dick’s Restaurant), 287 NLRB 1180, 1185 (1988)
(failure to call alleged agent Horton as a witness warranted
an adverse inference). Specifically, I find that Sorensen,
Zampa, Roth, and other alleged agents, if called, would have
testified that Sorensen had authority to bind Respondent Dis-
trict Council and Respondent Local 155 to the Susanville
Independent Agreement. In addition, just as in California
Erectors, supra at 811, I find that Sorensen was an agent of
Local 118.
Moreover, the particular circumstances of industrial labor
relations involved herein warrant a finding that Sorensen was
an agent of Local 118 and was cloaked with at least apparent
authority, if not actual authority, to make a binding agree-
ment with the Employer: the Susanville Independent Agree-
ment with all its notations and incorporating the Master
Agreement.13 The Respondents manifested to various con-
struction industry employers including the Employer herein
that the local unions were its affiliates and were a joint col-
lective-bargaining representative with it under the Master
Agreement. In both the Blythe and Coalinga projects,
Zampa’s thank you letter to the Employer warranted a con-
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 I also find that Donald R. Holmes, business representative, Iron
Workers Local Union No. 416; Joe Roth, business representative,
Respondent Local 155; Jim Murphy, business representative, Iron
Workers Local Union No. 118; and Richard Zampa, president, Re-
spondent District Council are agents of Respondent District Council
within the meaning of Sec. 2(13) and that Joe Roth is an agent of
Respondent Local 155.
15 The letters for Blythe and Coalinga are virtually identical and
state, ‘‘Thank you for signing the Iron Workers Independent Agree-
ment. Enclosed is an executed copy for your records. With best
wishes, I remain . . . .’’ (Blythe) and, ‘‘Thank you for signing the
Iron Workers Independent Agreement. Enclosed you will find an ex-
ecuted copy for your records. With best wishes, I remain . . . .’’
(Coalinga.)
16 The Blythe Independent Agreement was dated May 18, 1992,
and was followed by a letter from Zampa dated June 3, 1992. The
Employer’s work on the Blythe prison began in May 1992. The
Coalinga Independent Agreement was dated January 7, 1993, effec-
tive January 18, 1993, and followed by a letter from Zampa dated
February 8, 1993. In both instances, work began on the projects be-
fore Zampa’s letter was written.
clusion that the particular local involved was empowered to
enter in independent agreements with notations that modified
the standard form language. Because the Respondents are a
joint collective-bargaining representative of the employees
pursuant to the terms of the Master Agreement, Sorensen’s
agency authority extends to binding the joint collective-bar-
gaining representative to honoring the terms of the Susanville
Independent Agreement. Moreover, I note that policies of in-
dustrial peace favor such a finding. An opposite finding
would create a great deal of uncertainty among employers
who sign independent agreements at a union hall with a per-
son who identifies himself or herself as an officer of the
local union and who subsequently visits the jobsite to admin-
ister the contract. For the same reasons, I find that Respond-
ent Local 155 and Iron Workers Local Union No. 118 have
functioned as agents of Respondent District Council and the
joint representative within the meaning of Section 2(13) of
the Act in negotiating and administering collective-bargain-
ing contracts on behalf of Respondent District Council, the
joint representative, and their respective members.14
3. Ratification of the Susanville Independent Agreement
In order for ratification by a higher governing body of the
union to be a condition precedent to implementation of a col-
lective-bargaining contract, there must be agreement between
the parties that such ratification is necessary. Teamsters
Local 471 (Superior Coffee), 308 NLRB 1, 2 (1992). Not
only do the facts fail to establish that ratification was a con-
dition precedent for approval of the Susanville Independent
Agreement, in addition, it was never explicitly discussed by
the parties and cannot be inferred as a condition precedent.
The Respondents argue that a course of conduct was estab-
lished between Respondent District Council and the Em-
ployer that indicates that ratification of Respondent District
Council was necessary before the Susanville Independent
Agreement could bind it or Respondent Local 155. The
course of conduct regarding both the Blythe and Coalinga
Independent Agreements indicates that the Employer and a
local union representative executed the agreement with typed
or handwritten changes. At a later time, the Employer re-
ceived a file stamped copy from Zampa of Respondent Dis-
trict Council thanking the Employer for entering into the
agreement and enclosing appropriate fringe benefit payment
packets.15 From this course of conduct, the Respondents ask
me to deduce that insertion of the language ‘‘1 JOB
AGREEMENT BLYTH [sic] PRISON’’ (Blythe Independent
Agreement) and ‘‘ONE JOB ONLY’’ (as well as the other
additional language on the Coalinga Independent Agree-
ment), was conditional on ratification of Respondent District
Council.
When the Employer signed the Susanville Independent
Agreement, it did not receive a file stamped copy of the
agreement from Zampa nor a letter thanking the Employer
for entering into the agreement. Rather, with regard to the
Susanville Independent Agreement, the Employer received
only a fringe benefit payment packet. Based upon this course
of conduct, the Respondents argue that it is clear that when
any modification or amendment to the standard form lan-
guage of the independent agreement is not approved in ad-
vance by Respondent District Council, it must be submitted
to Respondent District Council for ratification and approval.
(R. Br. at p. 3.)
It is not logical to infer from Zampa’s letters ‘‘thanking’’
the Employer for entering the Blythe and Coalinga Independ-
ent Agreements that those agreements, and specifically the
typed or handwritten notations on those agreements, were
subject to ratification by Respondent District Council. Noth-
ing in Zampa’s letters hint that the agreements were not valid
until ‘‘ratified’’ by Respondent District Council. Copies of
the agreements were merely forwarded ‘‘for your records.’’
Moreover, work began on both projects before Zampa’s let-
ters were prepared.16 Neither Holmes (union representative at
the Blythe prison) nor Roth (union representative at the
Coalinga prison) told the Employer that the Blythe and
Coalinga Independent Agreements were subject to ratifica-
tion. Nothing in the independent agreement language sug-
gests a need for ratification. Moreover, the Susanville Inde-
pendent Agreement was never the subject of a ‘‘thank you’’
letter. The project, however, was governed by the terms and
conditions set forth in the agreement without objection from
Zampa. Zampa knew of the Susanville Independent Agree-
ment and was unhappy with it but did not attempt to reject
the agreement in any way until the Employer asked for iron-
worker employees at the Soledad prison project. These facts
further support a failure to prove that ratification by Re-
spondent District Council was necessary.
Based on the evidence before me, I conclude that there
was no agreement between the parties regarding ratification
by Respondent District Council. Moreover, the Act imposes
no obligation on a union to obtain approval of its chief exec-
utive officer in order to form a binding contract. See North
Country Motors, 146 NLRB 671 (1964); see also Electrical
Workers IBEW Local 22 (Electronic Sound), 268 NLRB 760,
763 (1984), enfd. 748 F.2d 348, 350 (8th Cir. 1984).
B. Deferral to Arbitration
The Respondents argue that the Employer has not ex-
hausted its remedies herein. Specifically, the Respondents
claim that the Employer must attempt to file a grievance and
force the Respondents to process the grievance through Fed-
eral court litigation before this unfair labor practice proceed-
ing is warranted.
823IRON WORKERS (J. W. REINFORCING)
17 In National Radio Co., 198 NLRB 527 (1972), the policy was
extended to 8(a)(1) and (3) cases. Then in General American Trans-
portation Corp., 228 NLRB 808 (1977), the Board restricted deferral
pursuant to Collyer to only 8(a)(5) and 8(b)(3) cases. Finally, in
United Technologies Corp., 268 NLRB 557 (1984), the Board re-
turned to the National Radio policies, overruling General American.
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
19 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
National 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.’’
Although the NLRB has never required strict exhaustion
of remedies in order to prosecute an unfair labor practice
charge, the Board held in Collyer Insulated Wire, 192 NLRB
837 (1971), that prearbitral deferral was warranted when a
dispute arose regarding the meaning of the parties’ contract
within the confines of the collective-bargaining relationship
and the employer was willing to process the grievance to ar-
bitration. Although prearbitral deferral policies have ex-
panded and contracted,17 a constant precept underlying the
policy is that deferral is inappropriate when the issue in-
volved is whether a contract exists. This is a question of stat-
utory obligation rather than a question of contractual inter-
pretation. Longshoremen ILA Local 3033 (Smith Stevedor-
ing), 286 NLRB 798, 807 (1987). Based upon these prin-
ciples, I deny the Respondents’ request that this matter be
deferred to the contract grievance procedures.
CONCLUSION OF LAW
By advising the Employer that it had no contractual obli-
gation with the Employer; that Respondent Local 155 would
not dispatch any employees to the Employer’s Soledad, Cali-
fornia prison jobsite; and that it would not dispatch employ-
ees unless the Employer agreed to execute a statewide con-
tract, and by advising JLD that the Employer was not signa-
tory to any collective-bargaining agreement with the Re-
spondents, the Respondents have repudiated the Susanville
Independent Agreement and attempted to compel the Em-
ployer to agree to a midterm modification of the Susanville
Independent Agreement and have engaged in unfair labor
practices affecting commerce within the meaning of Section
8(b)(3) and (d) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have engaged in cer-
tain unfair labor practices, I find that they must be ordered
to cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. The Employer
has requested that the Respondents be ordered to make it
whole for all losses suffered including any losses attributable
to the Soledad prison project. The Employer has cited no au-
thority which would authorize an award of such consequen-
tial damages and I know of no such authority. I have not in-
cluded such a remedy in the recommended Order.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended18
ORDER
The Respondents, District Council of Iron Workers of the
State of California and Vicinity and Iron Workers Local
Union No. 155 of the International Union of Bridge, Struc-
tural and Ornamental Iron Workers, AFL–CIO, Hercules and
Fresno, California, their officers, agents, and representatives,
shall
1. Cease and desist from failing or refusing to bargain col-
lectively and in good faith with J. W. Reinforcing Steel, Inc.
by advising the Employer that the Respondents have no con-
tractual obligation with the Employer; by advising the Em-
ployer that Respondent Local 155 would not dispatch any
employees to the Employer’s Soledad, California prison job-
site; by advising that the Respondents would not dispatch
employees unless the Employer agreed to execute a statewide
contract; and by advising JLD that the Employer was not sig-
natory to any collective-bargaining agreement with the Re-
spondents.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, honor the terms and conditions of the
Susanville Independent Agreement at the Soledad prison site
and any other site within the geographic designation ‘‘north
of the L.A. county line.’’
(b) Post at its offices in Fresno and Hercules, California,
copies of the attached notice marked ‘‘Appendix.’’19 Copies
of the notice, on forms provided by the Regional Director for
Region 32, after being signed by the Respondents’ authorized
representative, shall be posted by the Respondents imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all place where notices to
members are customarily posted. Reasonable steps shall be
taken by the Respondents to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Furnish to the Regional Director for Region 32 signed
copies of the attached notice for posting by J. W. Reinforc-
ing Steel, Inc., if willing, at its office or places where notices
to employees are customarily posted. Copies of the notice, to
be furnished by the Regional Director for Region 32, shall,
after being duly signed by the Respondents as indicated be
forthwith returned to the Regional Director for disposition.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondents have
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail or refuse to bargain collectively and in
good faith with J. W. Reinforcing Steel, Inc. by advising
J. W. Reinforcing Steel, Inc. that we have no contractual ob-
ligation with it; by advising J. W. Reinforcing Steel, Inc.
that Local 155 will not dispatch any employees to the Em-
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployer’s Soledad, California prison jobsite; by advising that
we will not dispatch employees unless J. W. Reinforcing
Steel, Inc. agrees to execute a statewide contract; and by ad-
vising J. L. Davidson, Inc. that J. W. Reinforcing Steel, Inc.
is not signatory to any collective-bargaining agreement with
us.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request, honor the terms and conditions of
the Susanville Independent Agreement at the Soledad prison
site and any other site within the geographic designation
‘‘north of the L.A. county line.’’
DISTRICT COUNCIL OF IRON WORKERS OF THE
STATE OF CALIFORNIA AND VICINITY
IRON WORKERS LOCAL UNION NO. 155 OF
THE INTERNATIONAL UNION OF BRIDGE,
STRUCTURAL AND ORNAMENTAL IRON WORK-
ERS, AFL–CIO