Marbro Co., Inc.

National Labor Relations Board - Board Decisions

Jul 24, 1987

284 N.L.R.B. 1303 (N.L.R.B. 1987)

MARBRO CO. 1303
Marbro Company, Inc. and Local 77, International
Union of Operating Engineers, AFL-CIO. Case
5-CA-12572
24 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 18 June 1982 Administrative Law Judge
Mary Ellen R. Benard issued the attached decision.
The General Counsel and the Respondent filed ex-
ceptions and supporting briefs. Thereafter, the Re-
spondent filed cross-exceptions and a brief in re-
sponse to the General Counsel's exceptions and in
support of its cross-exceptions. The General Coun-
sel filed a motion to strike the Respondent's cross-
exceptions; and the Respondent filed an opposition
to the General Counsel's motion to strike.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings, 2 and
conclusions3 and to adopt the recommended Order
as modified.
The judge found that the Respondent violated
Section 8(a)(5) by unilaterally discontinuing contri-
butions to the fringe-benefit trust funds after the
parties' collective-bargaining agreement expired on
30 June 1980 and the employees went on strike the
following day. We agree with the judge's finding,
but only to the extent that the Respondent discon-
tinued the contributions on behalf of those of its
employees who were returning strikers. In this
Since the Respondent filed exceptions to the judge's decision, it
could not thereafter properly file cross-exceptions. In this regard, Sec.
102.46(e) of the Board's Rules and Regulations restricts the filing of
cross-exceptions to parties who have not previously filed exceptions. Ac-
cordingly, we shall strike the Respondent's proffered cross-exceptions.
We have, however, considered the arguments raised in the Respondent's
accompanying brief insofar as it constitutes a reply brief to the General
Counsel's exceptions.
The Respondent has requested oral argument. The request is denied as
the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
The judge's citation to Seattle Auto Glass v. NLRB in sec.
1.11,A,5,(b),(4) of her decision should read 669 F.2d 1332 (9th Cir. 1982).
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
3 No exceptions were filed to the judge's conclusion that the Respond-
ent did not unlawfully withdraw recognition from the Union in violation
of Sec. 8(a)(5). In these circumstances, we find it unnecessary to pass on
the judge's discussion of an employer's obligation to notify a union of its
willingness to bargain separately after having properly withdrawn from a
multiemployer association.
regard, it is well settled that even in the absence of
impasse, an employer may lawfully change the
terms and conditions of employment for strike re-
placements after a collective-bargaining agreement
terminates. 4 Capitol-Husting Co., 252 NLRB 43, 45
(1980), enfd. 671 F.2d 237 (7th Cir. 1982); Imperial
Outdoor Advertising, 192 NLRB 1248, 1249 (1971),
enfd. 470 F.2d 484 (8th Cir. 1972). Accordingly,
we shall modify the judge's recommended remedy
for the unlawful unilateral changes by requiring the
Respondent to make the requisite contributions
solely on behalf of those of its employees who
were members of the bargaining unit at the com-
mencement of the strike and who thereafter
worked for the Respondent as returning strikers.
We shall further modify the judge's recommended
remedy to conform it to the violation found by re-
quiring the Respondent to make whole its employ-
ees who were returning strikers for any losses suf-
fered as a result of the unlawful unilateral changes.
David Ashen* Co., 279 NLRB No. 94 (Apr. 30,
1986).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Marbro Co., Inc., Beltsville, Maryland,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
"(a) Pay to the appropriate union benefit funds,
in the manner set forth in the remedy section of the
judge's decision, the contributions required as of
and subsequent to 30 June 1980 on behalf of em-
ployees who were in the bargaining unit on or
about 30 June 1980 and make whole such employ-
ees for any losses they may have suffered by
reason of the Respondent's unlawful unilateral
changes, and continue to make such contributions
until the Respondent negotiates in good faith with
the Union to an agreement or to a good-faith im-
passe or until the Union refuses to bargain."
2. Substitute the attached notice for that of the
administrative law judge.
4 Chairman Dotson would make no distinction between strike replace-
ments and returning strikers in this context and would therefore find no
violation in the Respondent's unilaterally discontinuing contributions to
fringe-benefit trust funds on behalf of returnmg strikers. In the Chair-
man's view the interests of returning economic strikers are more closely
aligned with those of the strike replacements than those of the strikers
and, accordingly, an employer has no greater duty to bargain during the
strike over their terms of employment than it does over those of the
strike replacements. See Chairman Dotson's position in Service Electric
Co., 281 NLRB 633 at fn. 1 (1986).
284 NLRB No. 129
1304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
lowing the hearing the General Counsel and Respondent
filed briefs, which have been considered
On the entire record in the case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS AND CONCLUSIONS
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT unilaterally cease making contri-
butions to employee benefit trust funds.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you in Section 7 of
the Act.
WE WILL pay to the appropriate union benefit
funds the contributions required as of and subse-
quent to 30 June 1980 on behalf of employees who
were in the bargaining unit about 30 June 1980,
and make whole such employees for any losses
they may have suffered by reason of our unlawful
unilateral changes, and continue to make such pay-
ments until we negotiate in good faith with the
Union to an agreement or to good-faith impasse or
until the Union refuses to bargain.
MARBRO COMPANY, INC.
Nelson A. Levin, Esq., for the General Counsel.
John William Mannix, Esq., and Patrick J. McArdle, Esq.,
of Washingtion, D.C., for the Respondent.
DECISION
STATEMENT OF THE CASE
MARY ELLEN R. BENARD, Administrative Law Judge.
The charge here was filed on September 5, 1980, 1 by
Local 77, International Union of Operating Engineers,
AFL-CIO, (the Union), against Marbro Company, Inc.
(Respondent). On October 22 the complaint was issued
alleging, in substance, that Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act by its
untimely withdrawal from a multiemployer association
during the association's negotiations with the Union and
its statements to the Union and to employees that it
would not be bound by any agreement negotiated by the
association and the Union, refusing to honor and abide
by the terms of the agreement negotiated by the associa-
tion and the Union, withdrawing recognition from the
Union as the exclusive collective-bargaining representa-
tive of Respondent's employees in an appropriate unit,
and unilaterally discontinuing payment of contributions
to fringe benefit trust funds. Respondent filed an answer
in which it denied the commission of any unfair labor
practices.
A hearing was held before me in Washington, D.C.,
on August 14 and September 14-16, and 24, 1981. Fol-
1 All dates are 1980 unless otherwise indicated.
I. THE BUSINESS OF RESPONDENT
Respondent is a Maryland corporation engaged in un-
derground construction from its Beltsville, Maryland lo-
cation. During the 12-month period preceding the issu-
ance of the complaint, a representative period, Respond-
ent, in the course and conduct of its business operations,
purchased and received, in interstate commerce, materi-
als and supplies valued in excess of $50,000 directly from
points located outside the State of Maryland. The answer
admits and I find that Respondent is an employer en-
gaged in commerce within the meaning of the Act, and I
find that it will effectuate the policies of the Act to
assert jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged 8(a)(5) and (I) Violations
I. Background
Respondent is an underground utility contractor and
performs sewer and water main construction work in the
District of Columbia, Maryland, Virginia, and Delaware.
From the time of Respondent's establishment about 1954,
its operating engineers have been represented by the
Union; until 1978 Respondent signed memorandums of
agreement with the Union, which were addenda to the
collective-bargaining agreements between the Union and
the Construction Contractors Council Inc., a group of
contractors engaged in heavy construction work. In 1977
or 1978 there was a strike, apparently for the first time in
at least 20 years, and as a result the underground utility
industry entered into separate negotiations with the
Union, and Respondent executed a separate memoran-
dum of understanding with the Union effective August 4,
1978. This memorandum provided that the underground
utility contractors and the Union would negotiate and
execute a collective-bargaining agreement separate from
that of the Construction Contractors Council and that
Respondent would be bound by that contract. On No-
vember 27, 1979, the Underground Utility Contractors
Association of Maryland, the District of Columbia, and
Virginia (the Association), of which Respondent was a
member, entered into an agreement (the 1979 contract),
with the Union effective until June 30.
On March 17 the Union's business manager, Jack R.
Clapsaddle, wrote to the four then members of the Asso-
MARBRO CO. 1305
ciations advising them of the Union's intentions to
reopen the contract for modification. On April 23 John
William Mannix, counsel for the Association, responded
and requested a list of all contractors that had signed
either the 1978 memorandum of understanding or the
1979 contract. On April 24 Clapsaddle sent Mannix a list
of 23 contractors who had been notified of the intention
to reopen the contract, including Respondent. Mannix
then wrote to the contractors listed in Clapsaddle's letter
and invited them to a meeting of the Association and to
become members.
A meeting was held on June 3 and attended by repre-
sentatives of Respondent, Foster Trenching, J. A. La-
Porte, Inc. (LaPorte), San-Dot, Inc., Corson and
Orman Company (Corson and Gruman), Stokely Con-
tracting, and A. J. Ellis Construction Company Inc. (A.
J. Ellis), 3 all of whom joined the Association. The con-
tractors discussed a set of proposed bylaws drafted by
Mannix4 and possible proposals to be made to the Union,
and authorized Mannix to act as the Association's sole
bargaining agent in the negotiations.
By letter dated June 3 Mannix advised Clapsaddle
which contractors were members of the Association and
suggested that Clapsaddle contact him to set a date to
begin negotiations. On receiving this letter Clapsaddle
telephoned Mannix and a meeting was scheduled for
June 12. At that meeting Mannix gave Clapsaddle a copy
of a written authorization, dated June 11, that he had re-
ceived from the members of the Association to negotiate
on their behalf and the parties exchanged their initial
proposals. The Association's initial proposal did not in-
clude any provision for changing the wage rate or the
fringe benefit contribution rate but did propose making
fringe benefit contributions on the basis of hours actually
worked rather than on the basis in the 1979 contract of
"compensable hours of wages paid." The parties met
again on June 18 at which time both sides 5 responded to
the proposals proffered at the June 12 meeting, but no
agreement was reached. There was another meeting on
June 24; toward the end of the session, according to
Clapsaddle, Mannix said that the Association members
could not afford the increases in wages and fringe bene-
fits proposed by the Union and Kaiser requested an audit
of the Association members' books. On June 25 Clapsad-
dle wrote to the members of the Association stating that
Matudx had said that the Association's offer was final
and that inasmuch as the Union could not accept that
offer "we are clearly at impasse." The letter further de-
manded the right to audit the books of the Association
2 Respondent, J. D. Stokely Contracting Company (Stokely Contract-
mg), D. A. Foster Trenching Company (Foster Trenching), and
Ventresea & Sons, Inc.
3 It is not clear from the record whether representatives of Ventresca
& Sons, Inc., also attended; in any event that company did not retain its
membership in the Association or take part in the Association's negotia-
tions with the Union.
4 Although It appears that the bylaws were not formally adopted they
were followed.
5 At the bargaining sessions the Union was represented by ClapsadcUe
and various business agents or representatives and, at some of the meet-
ings, by one of the Union's attorneys, Henry Kaiser. The Association was
represented by Mannix and sometimes an associate from his firm. No
principals of any of the members of the Association attended any of the
negotiation sessions.
members in light of the claimed inability to pay the
amounts proposed by the Union. In response to this
letter Mannix sent a telegram dated June 26 rejecting the
Union's demand for an audit "since no proper basis
whatsoever exists for such a request." Also on June 26
San-Dot, Inc. sent a letter to Clapsaddle stating that it
was withdrawing "from any further contact with Local
77 IUOE or its members effective 12 midnight June 30,
1980." San-Dot, Inc. did not participate further in the ne-
gotiations.6 No further negotiations were held prior to
the expiration of the contract on June 30• 7 However,
Mannix sent a telegram dated June 30 to Clapsaddle that
read, in pertinent part, as follows:
The contractors comprising the [Association] have
met this date and request herewith that [the Union]
make a proposal which would break the inpasse
[sic] which Local 77 declared in the negotiations
between the parties on Tuesday, June 24, 1980. If so
please inform the undersign [sic] of any such pro-
posal forthwith. Apparently, the Union did not
reply to this telegram. The strike began on July 1.
2. Negotiations during the strike; the Union's
dealing with individual contractors
The Union initially struck all 7 of the contractors who
had been Association members as of June 3 and also
many of the 16 other contractors who had been party to
the expired contract. s During the strike the Union signed
written interim agreements with six of the contractors
who had been bound by the 1979 contract, including A.
J. Ellis, a member of the Association. s All of these inter-
im agreements provided that the contractors would con-
tinue to pay the wage rates and abide by the other terms
and conditions of the expired contract and that the con-
tractors would pay whatever new rates were negotiated
retroactive from July 1, and also provided an increase in
fringe benefits of 23 cents per compensable hour to the
health and welfare fund and 13 cents per compensable
hour to the pension fund.
On July 7 Mannix sent a mailgram to Clapsaddle with
the following text:
The [Association] reiterates its bargaining position.
We are willing to exceed [sic] to a break in the im-
passe declared by the Union provided your Union is
Clapsaddle testified that the Union felt that San-Dot, Inc. was none-
theless bound by the Association agreement, although that contractor
subsequently went out of business. In any event, it does not appear from
this record that San-Dot, Inc. ever executed the agreement ultimately ne-
gotiated or that any unfair labor practice charges involving San-Dot, Inc.
were filed.
T Claps-while testified that a meeting with the Federal mediator was
scheduled for June 27 but that although he, another representative of the
Union, and one of the Union's attorneys went to the mediator's office at
the appointed time no one from the Association came.
8 Clapsaddle testified that seven contractors who had been parties to
the 1979 contract were not struck because they had no work in the geo-
graphical area under the Union's jurisdiction. Clapsaddle further testified
that two other contractors were not struck because they had verbally
agreed to pay retroactively whatever the eventual Association contract
provided
9 It appears that, after signing the interim agreement about July 7,
A. J. Ellis did not actively participate in the Association's negotiations.
1306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
willing to bargain in good faith and provided that a
cooling off period be commenced immediately
whereby all employees shall return to work at the
regular time on Tuesday, July 8, 1980, and bargain-
ing be commenced immediately until a collective-
bargaining accord is reached.
In consequence, the negotiators met that day and the
Union asked for a 60-cent increase in fringe benefit con-
tributions spread out over a 2-year period. The Associa-
tion offered a 50-cent increase over the same period.
Also during this week, apparently about July 9, Union
Business Agent Paul Peacock met with Neil MacDonald,
vice president of LaPorte, and requested him to sign an
interim agreement. It is undisputed that MacDonald told
Peacock that Maimix was the Association's negotiator
and the Union would have to go through him. Peacock
and another business agent for the Union also visited J.
D. Stokely, the president and owner of Stokely Con-
tracting, and asked him to sit in on the negotiating ses-
sions and to sign an interim agreement. Stokely declined
to do either.
On July 8 Mannix wrote to Clapsaddle reiterating the
offer of July 7 1 ° and stating that the contractors had
considered the Union's offer presented at the July 7
meeting and rejected it. The letter also stated, "Please in-
dicate by call or telegram if you will formally communi-
cate the above offer of the Contractors to the member-
ship of the bargaining unit, namely, those employees of
the six companies comprising the Contractors' Associa-
tion. Please indicate further the time and date of any
such meeting." Clapsaddle replied by mailgram dated
July 10, in which he rejected the contractors' offer, reit-
erated the demand for an audit of the Association mem-
bers' books, and further stated, "Finally, as to your re-
quest that we communicate your offer to our members,
how, when, and what we communicate to our members
is none of your concern."
The members of the Association had been meeting
with Matmix regularly during the negotiations." On
Friday, July 11, the contractors met with Mannix and,
apparently under the impression that the Union was
going to have a membership meeting that night, decided
to meet again on the next Monday.
3. The Association meetings of July 14 and 15;
Respondent and Corson and Gruman withdraw
from the Association
On July 14 representatives of the five remaining active
members of the Association (Corson and Gruman, La-
Porte, Stokely Contracting, Foster Trenching, and Re-
spondent) met with Mannix at Corson and Gruman's of-
fices. They discussed the fact that there had been no de-
'° This offer was for a 45-cent-per-hour wage increase and 10-cent-per-
hour increases m the health and welfare and pension contribution effec-
tive on settlement of the strike, and a 35-cent-per-hour wage increase and
15-cent-per-hour increases in the health and welfare and pension contri-
butions effective July 1, 1981, with no fringe payments for holidays and
all other terms and conditions of the 1979 contract to remain in effect.
' As MacDonald credibly testified when asked if the contractors met
"from time to tune": "It seems like we met interminably. It never ended.
'From time totime' would be an understatement."
velopments over the weekend and whether the Associa-
tion was willing to offer more than it had previously, but
did not discuss any specific proposals. D. A. Foster, the
principal of Foster Trenching, suggested that they wait
another 24 hours and meet again; the other contractors
acquiesced in the suggestion. Accordingly, another meet-
ing was scheduled for the morning of Tuesday, July 15.
The next morning William Gruman Cox, a vice presi-
dent of Corson and Gruman, Rosario Marinucci, the
president of Respondent, James Fitzpatrick, vice presi-
dent of Respondent, Neil MacDonald, the vice president
of LaPorte, and J. D. Stokely, the owner and president
of Stokely Contracting, met again with Mannix in
Corson and Gruman's offices. Someone asked where
Foster was since he had not arrived yet and it was at his
insistence that the meeting had been scheduled, and at
that point Stokely said that Foster had asked him to stop
by his offices on his way to the meeting and pick up a
letter because Foster would not be at the meeting. The
letter that Stokely handed around to the participants in
the meeting was addressed to Stokely and signed by
Foster and read, in substance, as follows:
It is my understanding that the union will agree
to wage increases as follows:
1.NOW .50 Wages
.10 Health & Welfare
.10 Pension
2. 1/15/81 .05 Health & Welfare
.05 Pension
3. 7/15/81 .50 Wages
.20 Health & Welfare
.10 Pension
The work week provision changes to 6 A.M. to 4
P.M. Monday thru Friday.
Clarify the 40 hour per week, guaranty with 32
hours for 3 months.
This is acceptable to D. A. Foster Trenching
Company and I hope you see it this way also, so
that everyone can go back to work.
Stokely told the other contractors that it was his under-
standing that Foster's employees had gone back to work
and that this letter represented an agreement that Foster
had reached with the Union.
There can be no question that Foster's letter caused
considerable consternation among the contractors." As
the consequences of Foster's agreement with the Union
were discussed among the remaining four active mem-
bers of the Association and Mannix, it became clear that
Stokely Contracting's and LaPorte's interests were at
variance from those of Corson and (human and Re-
spondent. LaPorte, Stokely Contracting, and Foster
Trenching were all headquartered in Virginia and were
primarily engaged in working on natural gas pipelines
12 As Cox credibly testified, the letter and Stokely's explanation of it
had a "devastating effect" because the contractors had been negotiating
as a unit up until this point and then, having scheduled a meeting at Fos-
ter's request, were faced with Foster's negotiation of a separate agree-
ment.
MARBRO CO. 1307
for Washington Gas Light Company." At the time of
the events at issue here, Washington Gas Light Compa-
ny had just lifted a long moratorium on gas construction
work and was pressuring contractors to get this work
performed. According to Stokely's credible testimony,
both Stokely Contracting and LaPorte were concerned
that their equipment was idle and their employees were
out on strike while competitors who had signed interim
agreements were performing this work. Respondent and
Corson and Gruman, however, were in a different posi-
tion. Those companies performed primarily sewer and
water main construction and this industry was depressed
in the Washington, D.C. area in the summer of 1980. Ap-
parently, Respondent and Corson and Gruman were not
direct competitors of Foster Trenching and thus the ad-
verse impact of Foster Trenching's employees returning
to work would not be as severe for Corson and Gruman
and Respondent as it would be for Stokely Contracting
and LaPorte. Consequently, as the meeting progressed it
became clear that the interests of Respondent and
Corson and Gruman diverged from those of Stokely
Contracting and LaPorte because the representatives of
the latter two firms took the position that they were
forced to meet the terms to which Foster and the Union
had agreed, while Maiinucci and Cox took the position
that they could not meet the financial terms of that
agreement. In consequence, Marinucci and Cox asked
the permission of the other contractors to withdraw from
the Association and the other members consented; these
actions with respect to Respondent were memorialized in
a document that read as follows:
TO THE UNDERGROUND UTILITY CON-
TRACTORS' ASSOCIATION OF MARYLAND,
THE DISTRICT OF COLUMBIA, AND VIR-
GINIA
Please be informed that, effective immediately,
Marbro Company, Inc. hereby withdraws from the
Underground Utility Contractors' Association and
shall no longer be represented by same. Henceforth,
Marbro Company, Inc. shall make no representa-
tions as a member of the Association nor shall it
speak on behalf of the Association or its individual
members.
Marbro Company, Inc.
10:00 a.m., July 15, 1980
By: A/ Daniel A. Fitzpatrick
Vice President
ACCEPTED:
THE UNDERGROUND UTILITY CONTRAC-
TORS` ASSOCIATION OF MARYLAND, THE
DISTRICT OF COLUMBIA, AND VIRGINIA
By: Is/ J. D. Stokely
J. D. Stokely, President,
J. D. Stokely Contracting Company
13 It appears that work with natural gas pipelines requires special train-
mg and certification by the utility company of employees who perform
that work. Thus, there is a tendency for contractors either to specialize in
gas work or not do it at all.
By: /s/ Neil MacDonald
Neil MacDonald, Vice President,
J. A. LaPorte, Inc.
A similar document was prepared indicating Corson and
Gruman's withdrawal from the Association. Following
the formal withdrawal of Respondent and Corson and
Gruman, Cox and Marinucci left the meeting. Stokely
and MacDonald remained at the meeting with Mannix
and eventually worked out a proposal with terms similar
to those in the agreement between Foster and the
Union. 14 This offer was communicated to the Union by
a letter from Mannix dated July 15 and apparently hand
delivered to the Union, in which Mannix also advised
the Union that Respondent and Corson and Gruman had
withdrawn from the Association "[in] recognition of the
existing impasse" and "are restaffmg." Clapsaddle replied
via a hand-delivered letter dated July 17 in which he ac-
cepted the offer and advised that he would instruct the
employees to return to work the next morning, and that
he would recommend ratification at a union meeting to
be held on July 22. Clapsaddle also wrote a letter dated
July 8 advising all the contractors who had been signato-
ry to the 1979 agreement that a new contract had been
negotiated and that it would be submitted to the Union's
members for ratification.
4. Respondent's conduct subsequent to its
withdrawal from the Association
Fitzpatrick credibly testified that on July 15, after Re-
spondent and Corson and Gruman had withdrawn from
the Association, Cox called him and said that he thought
they owed their employees an explanation of their with-
drawal from the Association; he read to Fitzpatrick a
letter that Corson and Gruman was directing to its em-
ployees. Fitzpatrick further credibly testified that he
agreed with Cox that an explanation to employees was
required and that he therefore asked Cox to send him a
copy of the letter; that he had the letter retyped on Re-
spondent's letterhead, made appropriate changes to refer
to Respondent, rather than Corson and Gruman, and
sent the following letter out over his signature to em-
ployees:
To All Prior Employees of Marbro Company, Inc.
Striking Under Local 77, I.U.O.E., Sewer, Water,
and Gas Agreement
Gentlemen:
Effective this date Marbro Company, Inc., and
Corson & Gruman Company have withdrawn from
the Underground Utility Contractors Association of
Maryland, D.C., and Virginia and will no longer be
a party to any agreements between the U.U.C.A.
and Local 77, I.U.O.E. This action is a result of the
impasse created when the Union rejected the Asso-
14 The Association's offer proposed a renewal of the 1979 contract
with no changes except for the increases in wages and fringe benefit con-
tributions to which Foster had agreed. It did not provide for the change
in workweek or the workweek guarantee to which Foster had also
agreed.
1308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
elation's offer of July 7, 1980 in their telegram of
July 10, 1980.
It is with great reluctance that we must terminate
our long standing relationship with Local 77,
I.U.O.E. in the Sewer, Water, and Gas Agreement.
However, the severe economic conditions that exist
in our industry today preclude the continuation of
further negotiations.
Effective immediately Marbro Company, Inc.,
will begin to restaff all open positions. Prior em-
ployees are welcome to apply for remaining posi-
tions but do so with the understanding that no fur-
ther relationship will be maintained with Local 77,
I.U.O.E. under the Sewer, Water and Gas Agree-
ment. As soon as possible, the company will insti-
tute hospitalization and retirement programs for
those employees not covered under an existing col-
lective-bargaining agreement. Details will be forth-
coming.
Finally, for those prior employees who choose to
seek employment elsewhere, I would like to express
management's sincere appreciation of the effort and
high level of commitment that you have brought to
your jobs and to Marbro Company, Inc. It has been
my personal pleasure to work with you throughout
these past years and your professionalism will be
sorely missed. I harbor no grudges in your collec-
tive decision to strike for better wages and only
regret that a mutually agreeable settlement could
not have been reached. Best wishes in your future
employment.
Very truly yours,
Marbro Company, Inc.
/s/ Daniel A. Fitzpatrick
Daniel A. Fitzpatrick
Vice President
On July 18, Clapsaddle sent two telegrams to Fitzpa-
trick. The first read:
On behalf of and as representative of all striking
employees, we hereby and unconditionally request
immediate reinstatement. Please advise the under-
signed of your response in writing as quickly as
possible.
The second telegram contained the following text:
Your reported withdrawal from the Underground
Contractors Association is illegal and ineffectual.
Since that unlawful act we have reached agreement
with the Association. Under applicable law you are
bound to the terms of the Association agreement.
Please advise the undersigned immediately and in
writing of your intention to comply with your legal
obligations or , we will take appropriate legal action.
This demand does not affect my earlier request for
reinstatement of all strikers [sic] that request was
unconditional.
By telegram dated July 22 Fitzpatrick advised Clap-
saddle that Respondent did not accept the position of the
Union as to Respondent's withdrawal from the Associa-
tion.
Clapsaddle credibly testified that on July 23 he tele-
phoned Marinucci and asked him to sign the Association
agreement and that Marinucci replied that he had made
his decision and was going to "rehire and restaff the
people he had working for him." Clapsaddle further cre-
dibly testified that in that conversation he did not offer
Marinucci anything other than the Association agree-
ment but that Marinucci said "something to the effect
that he would put [the strikers] back to work if we
would sit down and negotiate a separate agreement.""
The next day Clapsaddle wrote to Marinucci that the
agreement between the Union and the Association had
been ratified.
Sometime in August Clapsaddle had another conversa-
tion with Marinucci in which he asked Marinucci "if he
would sit down and discuss the contract, and if he was
willing to sign an agreement so we could put our people
back to work with him." Marinucci referred Clapsaddle
to Mannix who, when Clapsaddle contacted him, asked if
there were any new terms or conditions that Clapsaddle
could offer. Clapsaddle replied that the "agreement I
was speaking of was the one we had signed with the
[Association]" and Mannix said that there was no need
for them to discuss anything further. Other than a brief
contact on an unspecified date with Union Representa-
tive Marvin Ausler at Respondent's yard in which
Ausler asked Marinucci if they "could resolve things,"
but did not make any proposals other than the Associa-
tion agreement, Marinucci had no other discussions with
union representatives concerning terms and conditions of
employment of his employees. Respondent has not, as far
as this record shows, ever executed the contract em-
bodying the agreement negotiated between the Union
and the Association in July.
5. Analysis and conclusions
a. The appropriate bargaining unit
The complaint, as amended at the hearing, alleges that
the appropriate collective-bargaining unit consists of "en-
gineers, branch engineers, operators of all equipment
coming under the craft jurisdiction of the International
Union of Operating Engineers, mechanics, maintenance
men, apprentices, oilers and firemen employed by the
employers who are bound by the collective-bargaining
agreement negotiated by the Association."
The reference to the unit as comprised of employees
of "employers who are bound by the collective-bargain-
ing agreement negotiated by the Association" is some-
what vague, even without taking into consideration that
the question of whether Respondent was bound by the
1980 agreement is a central issue in this case. However,
the General Counsel clarified his position at the hearing
15 Marmucci testified that, apparently in this same conversation, Clap-
saddle said that he wanted to see if the Union and Respondent could re-
solve their differences and Maruiucci asked if he had anything to offer.
Clapsaddle replied that "We have to go on the basis of the Association
agreement." According to Marmucci, he then said, "I can't go along with
that and if this is all we have to talk about [there is] no sense m sittmg
down [to] talk." I find that these two versions of the conversation are not
materially inconsistent, but specifically credit Clapsaddle's testimony that
Marmucci asked to negotiate a separate agreement.
MARBRO Co. 1309
to contend that the appropriate unit is employees in the
classifications listed above who are employed by the
seven contractors who formed the Association as of June
3 (i.e., Respondent, A. J. Ellis, Foster Trenching, La-
Porte, Corson and Gruman, San-Dot, Inc., and Stokely
(Contracting). Respondent, on the other hand, contends
that the appropriate bargaining unit is comprised of all
employees (in the classifications listed in the amended
complaint) of all the 23 contractors who were bound by
the 1979 contract. The record establishes and it is essen-
tially undisputed that at all material times the Union rep-
resented a majority of employees in either unit.
The General Counsel cites Ruan Transport Corp., 234
NLRB 241 (1978), for the proposition that a multiple em-
ployer bargaining unit is consensual in nature; therefore,
an employer that adopts a multiemployer collective-bar-
gaining agreement but did not participate in its negotia-
tion does not become a member of the multiemployer
unit merely because the agreement provides that all em-
ployees under its coverage constitute one bargaining
unit. In the instant case, there is no evidence that any of
the contractors (other than those who explicitly joined
the Association in June) who were parties to the 1979
agreement, all of whom were invited by Mannix to join
the Association prior to the commencement of negotia-
tions in 1980, clearly expressed an intent to be part of a
multiemployer unit. As the Board said in Ruan Transport,
supra:
[Me find that something in addition to a mere im-
plied delegation of authority is needed in order to
constitute clear evidence of an unequivocal intent on
the part of an employer to be bound by group bar-
gaining."
The June 11 letter from the Association members
naming Mannix as the Association negotiator specified
that Mannix was authorized "to negotiate on behalf of
the Association and on behalf of each company listed
below on any and all negotiations on the renewal of the
Agreement between the [Association] and [the Union]";
there is no evidence that any of the other contractors
who had signed the 1979 contract gave similar authority
to Mannix to negotiate on their behalf. I therefore find
that this document establishes a multiemployer group
comprised of the seven contractors who as of June 11
comprised the Association.
Further, and significantly, Mannix's July 8 letter to
Clapsaddle in which he notified Clapsaddle that the As-
sociation had rejected the Union's offer of July 7 specifi-
cally referred to "the membership of the bargaining unit,
namely, those employees of the six companies comprising
the Contractors Association." Thus, although Respond-
ent contends that the bargaining unit consisted of all 23
contractors who had signed the 1979 agreement, Man-
nix's own words establish that as of july 8 the unit was
considered to be comprised of the employees of the
members of the Association as of that time (i.e., the
original seven contractors minus San-Dot, Inc.) 17 Ac-
16 234 NLRB at 242.
17 Thus, Mannix's letter also demonstrates that the Association had ac-
quiesced to the withdrawal of San-Dot, Inc. from the Association.
cordingly, I find that the appropriate unit was comprised
of employees in the classifications listed above who were
employed by members of the Association, and that as of
July 1 when the strike began there were six contractors
in the Association: Respondent, Foster Trenching, Stoke-
ly Contracting, Corson and Gruman, LaPorte, and A. J.
Ellis.
b. Respondent's withdrawal from the Association and
refusal to execute the collective-bargaining agreement
between the Association and the Union
The complaint alleges that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by withdrawing from the
Association and stating to the Union and to employees
that it would not be bound by any agreement negotiated
by the Association and the Union, and by refusing to
honor the terms of the agreement negotiated subsequent
to Respondent's withdrawal. As the General Counsel
contends, an employer's withdrawal from multiemployer
bargaining without the consent of the union that repre-
sents its employees is untimely once negotiations have
commenced, and may be justified only by "unusual cir-
cumstances." This standard has long been applied by the
Board and was recently approved by the Supreme Court
of the United States." The General Counsel contends
that no "unusual circumstances" within the meaning of
Board decisions existed in this case and that therefore
Respondent's withdrawal from the Association was not
privileged and Respondent was bound by the agreement
subsequently negotiated between the Association and the
Union. Respondent contends, on the other hand, that its
withdrawal was privileged because (1) an impasse existed
at the time of the withdrawal; (2) the Union has negotiat-
ed interim agreements with various contractors in the in-
dustry, including A. J. Ellis, a member of the Associa-
tion; (3) the Union had refused to recognize Mannix as
the designated representative of the contractors; and (4)
the Union had negotiated a separate final agreement with
Foster Trenching that caused the bargaining unit to be
fragmented.
(1) The impasse issue
hi Bonanno Linen Service, supra, the Supreme Court
upheld the Board's view that impasse alone does not jus-
tify an employer's unilateral withdrawal from the multi-
employer bargaining. In any event, as discussed above,
although the Union declared an impasse in its June 25
letter to members of the Association, the parties in fact
met again on July 7 and at that meeting both sides modi-
fied their proposals. The Union's telegram of July 10 re-
jected the Association's July 7 offer but specifically
stated that the Union "will prepare to meet any time and
any place in an effort to negotiate a contract. We contin-
ue to be willing to meet any time at any place with or
without a mediator from the FMCS." In these circum-
stances, and in view of the fact that there were only four
negotiation sessions prior to July 15, when Respondent
18 Charles D. Bonanno Linen Service v. NLRB, 454 U.S. 404 (1982).
The Court issued its decision about a month after briefs were filed in the
instant case
1310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
withdrew from the Association, I conclude that there
was no impasse at that time."
(2) The interim agreements
Respondent contends that the interim agreement nego-
tiated by the Union with contractors who are not mem-
bers of the Association and with A. J. Ellis caused the
Association to lose its viability as a bargaining entity and
that therefore the withdrawal of Respondent was privi-
leged. The Board has taken the position that the negotia-
tion of an interim agreement that binds an employer-
member of a multiemployer group to the contract ulti-
mately negotiated between the group and the union is
not inconsistent with group bargaining and thus does not
constitute an unusual circumstance justifying the with-
drawal from the group of other empIoyers.20
Having found that the unit was comprised of employ-
ees of the six contractors who continued as members of
the Association after the strike began, I fmd that the
Union's efforts to negotiate interim agreements with
those contractors who were not members of the Associa-
tion have no relevance in this proceeding. And, although
the Union also executed an interim agreement with A. J.
Ellis, in light of the principles stated above such an
agreement did not constitute unusual circumstances justi-
fying Respondent's withdrawal from the Association.
(3) The alleged refusal to recognize the contractors'
representative
Respondent contends that by negotiating interim
agreements with some contractors, negotiating a separate
final agreement with Foster, the action of union officials
in contacting MacDonald and Stokely to discuss the ne-
gotiations and asking Stokely to participate personally in
them, and by a meeting on July 10 of union trustees of
the fringe benefit trust funds with contractors who were
not members of the Association, the Union demonstrated
a refusal to recognize the Association as the bargaining
representative of and Mannix as the negotiator for the
contractors. In addition, Respondent points to Stokely's
testimony that during conversations with Peacock, when
Stokely referred to Mannix as the Association's negotia-
tor, Peacock said, "[There won't be any contract with
Local 77 until you get rid of that damn lawyer." I credit
Stokely's testimony that Peacock made this statement."
12 The General Counsel asserts in his brief that, with respect to the
question of whether the negotiations were at impasse as of July 15, an
adverse inference should be drawn from the failure of Mannix to testify.
However, the General Counsel, who apparently had previously had a
subpoena served on Mannix, did not call him as witness in this proceed-
ing. In these circumstances, I fmd that no adverse inference from Man-
nix's failure to testify is warranted. In any event, an adverse infefence is
not necessary in order to make the finding that at the time of Respond-
ent's withdrawal from the Association no impasse existed.
20 Teamsters Local 378 (Capitol Chevrolet Co.), 243 NLRB 1086 fn. 1
(1979). This position was cited with approval by the Supreme Court in
Bonnano Linen Service supra.
21 Peacock testified that he did not think that he had made this state-
ment to Stokely. Regardless of what Peacock thinks he said, I credit Sto-
kely, who was both a more disinterested witness and a more candid one
than Peacock, and I find that the statement was made.
There are cases in which the Board has found that a
union intentionally undermined the integrity of a multi-
employer bargaining unit and that in these circumstances
the withdrawal from the group of individual employers
was justified. 22 However, the union officials' discussions
with Stokely and MacDonald and Peacock's statement to
Stokely that there would be no contract as long as
Mannix remained the negotiator, and Peacock's request
that Stokely personally attend the negotiation sessions,
while not particularly admirable, do not constitute con-
duct that can fairly be said to undermine the integrity of
the Association. I further conclude that this conduct,
considered in conjunction with the negotiation of interim
agreements with various contractors, is still insufficient
to warrant a fmding that the Union intentionally under-
mined the integrity of the Association and/or refused to
recognize Mannix as the Association's negotiator."
(4) The Union's agreement with Foster Trenching
As described above, the record establishes that at the
July 15 meeting Foster's letter split the other four con-
tractors into two factions whose interests were diametri-
cally opposed: Stokely and MacDonald were anxious to
settle, even if it required meeting the terms to which
Foster had agreed, so that they could put their employ-
ees back to work and minimize the adverse consequences
of Foster's reaching an accommodation with the Union
before they did. Cox and Marinucci, on the other hand,
were not as concerned about the consequences of Foster
Trenching's employees going back to work because they
were not in direct competition with that company, but
were concerned because they could not afford to pay the
wages and fringe benefits to which Foster had agreed.
Consequently, when it became clear that Stokely and
MacDonald saw no alternative to offering the Union es-
sentially the same terms as those negotiated by Foster,
Respondent and Corson and Gruman withdrew from the
Association.24
22 See, e.g., Typographic Service Co., 238 NLRB 1565 (1978).
22 It is undisputed that about July 10 there was a meeting attended by
representatives of two contractors who had been parties to the 1979
agreement but were not members of the Association during the 1980 ne-
gotiations, the administrator of the trust funds, the union trustees of the
fringe benefit trust funds, and Peter J. Ellis, an employer trustee, and that
the subject of the meetuig was whether the contributions from the under-
ground utility contractors were adequate to sustain the level of benefits
paid to their employees. Ellis credibly testified that he viewed the meet-
mg as a negotiation session and objected to being called to attend it.
Respondent contends that the Union, by conducting negotiations in this
manner with contractors who were not members of the Association but
whose employees were included in the bargaining unit, refused to bargain
with the representative of the employers and thus bargained in bad faith.
Inasmuch as the July 10 meeting did not include Association members, it
did not serve to undermme the integrity of the Association. I am mindful,
in so finding, that Stokely and MacDonald were invited to that meeting;
however, they did not attend, nor did any other representative of any
member of the Association, and there is no evidence that the events of
that meeting had any impact whatsoever on the Association or the course
of bargaining. Accordingly, I find no merit to Respondent's contention.
24 It is undisputed that within the Association each contractor had one
vote. Thus, as there were four active members represented at the July 15
meeting, a vote would simply have deadlocked the group. The General
Counsel contends that it is fallacious to assume that there were only four
Association members at that time. However, San-Dot,, Inc. had with-
Continued
MARBROQ. 1311
The General Counsel contends that the separate and
final agreement negotiated by Foster 25 did not constitute
unusual circumstances sufficient to justify Respondent's
withdrawal from the Association because (1) Foster ac-
counted only for 18 of the 157 employees in the unit;26
(2) it is undisputed that Foster initiated the contract with
the Union by informing it on July 14 that it had with-
drawn from the Association; and (3) the only reason
proffered by Respondent for its withdrawal from the As-
sociation was the alleged impasse. In support of his posi-
tion the General Counsel cites as his principal authori-
ties, Distribix Inc., 245 NLRB 1393 (1979), enfd. on other
grounds 659 F.2d 841 (8th Cir. 1981); and Birkenwald
Distributing Co., 243 NLRB 1151 (1979), enf. denied sub
nom. Seattle Auto Glass v. NLRB, 639 F.2d 1332 (9th Cir.
1982). In Distribbc, the multiemployer group was com-
prised of 14 employers who together employed approxi-
mately 130 employees. A strike began about 2-1/2 weeks
after the union rejected the association's final offer; 2
days after the commencement of the strike one of the
employers withdrew from the association with the
union's consent and subsequently negotiated a separate
contract with the union covering that employer's 12 to
14 employees. Six weeks after the first withdrawal an-
other employer withdrew and executed an agreement
covering its approximately 40 employees. Two weeks
after that, respondent and two other employers with-
drew. The union subsequently accepted the offer that
had been made by the association prior to the strike. The
Board found that, even though the union had entered
into separate fmal agreements with two members of the
association prior to respondent's withdrawal, the with-
drawal was untimely and ineffective. In reaching this
conclusion the Board stated:
[I]t does not follow ipso facto that execution of indi-
vidual separate final contracts with former Associa-
tion members either proves an intention to destroy,
or necessarily causes the fragmentation of, a multi-
employer unit. Rather, the facts of each case must
be assessed in order to ascertain the impact of the
parties' conduct upon the continued viability of
multiemployer bargaining.27
drawn from the Association m June, and Mannix's July 8 letter makes it
clear that the Association considered that contractor to be no longer a
participant in the negotiations. Further, although A. J. Ellis had signed
only an interim agreement, it appears from the record that thereafter A.
J. Ellis did not further participate in the negotiations. It is therefore rea-
sonable that the four remaining active members of the Association as-
sumed that a decision as to what action the Association should take in
the wake of Foster's agreement was up to them.
25 There is no contention or evidence that this was merely an interim
agreement, and it appears from the face of Foster's letter to Stokely that
the agreement was a separate and final one.
28 According to the General Counsel, as of June 1980 LaPorte had 40
employees, Stokely had 29, Respondent had 24, Ellis had 13, and Corson
and Gramm had 27. The General Counsel also includes 6 employees of
San-Dot, Inc. to bring the total to 157. My review of the record indicates
that Stokely Contracting, A. J. Ellis, Foster Trenching, San-Dot, Inc.,
and Corson and Gruman each had a slightly different number of employ-
ees than that stated by the General Counsel; however, this discrepancy
between the General Coimsefs calculations and mine is immaterial.
27 245 NLRB at 1395.
The Board went on to note that the first employer's
withdrawal had no discernible impact on the association
and the union and that the Board viewed the continued
bargaining after the withdrawal "as a forceful rebuttal to
Respondent's charge that the Union's earlier conduct
manifested a rejection of multiemployer bargaining and
had a fatal impact upon it." 28 The Board further noted
that respondent's withdrawal from the association was
tied to an expression of doubt as to the union's majority
status rather than based on the bargaining situation.
In Birkenwald, supra, the multiemployer association
was comprised of 11 members who bargained on behalf
of their total of some 200 employees. The member with
the largest number of employees, about 60, arrived at a
separate agreement with the union. The following day
the other members met and, with the exception of re-
spondent, agreed to negotiate further with the union. Re-
spondent, however, withdrew. The administrative law
judge, relying on the fact that after the one separate
agreement was signed there was still 70 percent of the
original number of employees remaining in the bargain-
ing unit, found that there was not sufficient fragmenta-
tion of the multiemployer group to constitute an unusual
circumstance justifying respondent's withdrawal. The
Board agreed, also relying on its finding that there was
no impasse. However, it is noteworthy that the adminis-
trative law judge commented that "it appears to be a
matter [of] judgment as to what degree of fragmentation
is sufficient," 29 and that in adopting the administrative
law judge's conclusions the Board relied on the specific
circumstances of the case.
Both Distribix and Birkenwald stand for the proposition
that whether a multiemployer group has become so frag-
mented that an individual employer's withdrawal is privi-
leged must be determined from the facts of each case. In
the instant case, as the General Counsel emphasizes, Fos-
ter's employees comprised a comparatively small per-
centage of the bargaining unit and, thus, in terms of
sheer numbers, his separate agreement with the Union
had little impact. However, the analysis does not stop
there. The credible testimony of the representatives of
the four contractors who were present at July 15 meet-
ing established that Foster's separate agreement had a
"devastating effect," not because of the number of em-
ployees affected but because it split the four remaining
contractors into two equal and diametrically opposed
camps. In these circumstances, the conclusion is warrant-
ed that the ability of the Association to act as a unit was
destroyed.a°
28 245 NLRB at 1396.
29 243 NLRB at 1154.
39 I further note that in Bonanno, supra, which, as noted above, was
decided by the Supreme Court subsequent to the filing of the briefs in the
instant case, the Court noted with approval that "where the union, not
content with interim agreements that expire with the execution of a
unitvvide contract, executes separate agreements that will survive unit ne-
gotiations, the union has so "effectively fragmented and destroyed the in-
tegrity of the bargaining unit," id., as to create an "unusual circum-
stance" under Retail Associates [120 NLRB 388 (1958)] rules." (454 U.S.
at 410.) Although Bonanno did not involve a separate final agreement,
the Court's comments on such agreements may cast some doubt on the
continuing validity of the Board's holdings in Birkenwald and Distribix
supra.
1312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Inasmuch as I have found that the Association was in-
capable of acting as a unit after Foster Trenching negoti-
ated a separate fmal agreement with the Union, it is im-
material that the negotiations leading to that agreement
were initiated by Foster rather than by the Union, for
the issue is the impact of the agreement on the Associa-
tion, not how the agreement came about. Similarly, I
find no merit to the General Counsel's contention that,
since the only reason given for Respondent's withdrawal
from the Association was the alleged impasse,'" Re-
spondent should therefore be found to have withdrawn
for that reason and that, inasmuch as impasse does not
justify withdrawal from multiemployer bargaining and,
in any event, there was no impasse at the time of the
withdrawal, the withdrawal was not privileged. It is
clear from the record that Foster Trenching's separate
agreement with the Union caused the Association to
cease being a viable entity for bargaining purposes, and
that the inability of the Association to continue to repre-
sent all four of its active members was the real reason for
Respondent's withdrawal. In these circumstances, it is ir-
relevant whether Respondent properly identified the
cause of its withdrawal in its correspondence with the
Union.
Having found that as of July 15 the Association was so
fragmented that it could not operate effectively as a bar-
gaining representative, I find that Respondent's with-
drawal from the Association was privileged, and that,
therefore, Respondent did not violate Section 8(a)(5) and
(1) of the Act by either its withdrawal from the Associa-
tion, its statements to the Union and to employees that it
had withdrawn and would not be bound by the Associa-
tion agreement, ur its subsequent refusal to sign that
agreement. I shall therefore recommend that these alle-
gations of the complaint be dismissed.
c. The alleged withdrawal of recognition
The complaint alleges that following Respondent's
withdrawal from the Association it withdrew recognition
from the Union as collective-bargaining representative of
its employees and thereby violated Section 8(a)(5) and
(1) of the Act.
It is well established that an employer that lawfully
withdraws from a multiemployer group is nonetheless re-
quired to bargain with the union that represents its em-
ployees, if they constitute an appropriate unit in which
the union enjoys majority status, 32 and to notify the
union of its willingness to bargain separately from the
multiemployer group. 33 In the instant case, documentary
As discussed above, I have found that there was no impasse at the
time of Respondent's withdrawal from the Association. However, none
of the cases cited to me by the parties or uncovered in the course of my
own research states that impasse is a necessary condition for justification
of a withdrawal precipitated by fragmentation of the unit. Inasmuch as
the concept that fragmentation of the multiemployer unit may justify
withdrawal is based on the premise that a fragmented group is incapable
of acting as a viable bargaining entity, it would seem that the question of
whether there was also an impasse in negotiations at the time of the frag-
mentation is irrelevant.
32 Jim Kelley's Tahoe Nugget, 227 NLRB 357 (1976).
33 Superior Sprinkler, Inc., 227 NLRB 204, 208 (1976).
evidence establishes that a majority of Respondent's em-
ployees at the time the strike began were members of the
Union and Respondent does not contend that at any time
the Union lost its status as majority representative. Thus,
there is no real question that Respondent was obligate&
to continue to recognize and bargain with the Union; the
issue is whether recognition was withdrawn.
As quoted above, on July 15 Respondent told its em-
ployees that "we must terminate our long standing [sic]
relationship with Local 77 in the Sewer, Water and Gas
Agreement. However, the severe economic conditions
that exist in our industry today preclude the continuation
of further negotiations," and in the same letter also stated
that Respondent would restaff all open positions and that
"prior employees" were welcome to apply but with the
understanding that there would be no further relationship
with the Union under the "Sewer, Water and Gas
Agreement." Thereafter, on July 23 Marinucci offered to
negotiate a separate agreement covering Respondent's
employees, but Clapsaddle adhered to his position that
Respondent was obligated to sign the agreement negoti-
ated by the Association. There is no dispute that in sub-
sequent conversations with Marinucci and Mannix the
Union's representatives never acceded to Respondent's
offer to bargain for its own employees, and never deviat-
ed from their view that Respondent was bound by the
Association contract. Thus, although some of the lan-
guage in the letter to Respondent's employees implies
that Respondent had withdrawn not only from the Asso-
ciation but also from further negotiations with the Union,
such an implication is negated by Marinucci's explicit
offer in his conversation with Clapsaddle to negotiate
separately for Respondent's employees. Consequently, I
find that Respondent met its obligation to offer to bar-
gain for a separate agreement, and I shall therefore rec-
ommend that the allegation of the complaint that Re-
spondent withdrew recognition from the Union be dis-
missed.
d. Respondent's failure to make contributions to fringe
benefit trust funds
The 1979 contract required Respondent to make
monthly contributions to the Operating Engineers Trust
Fund of Washington, D.C., a joint management-union
fund that provides medical and disability benefits, to the
Operating Engineers Local No. 77 Pension Trust Fund,
a similar fund that provides pension benefits to employ-
ees covered by that collective-bargaining agreement, and
to the Joint Apprenticeship Training and Skill Improve-
ment Fund. It is undisputed that, after the 1979 contract
expired, Respondent ceased making such contributions
on behalf of its employees. Respondent contends that it
is not required to make such contributions because (1)
the collective-bargaining agreement under which contri-
butions were required has expired; and (2) Respondent
has established its own program of employee benefits
equal to those provided under the contract.
It is well established that in the absence of impasse an
employer may not normally make unilateral changes in
its employees' terms and conditions of employment with-
out notice to or consultation with the union that repre-
MARBRO CO, 1313
sents them. It is also well established that although Sec.
302(c)(5)(B) of the Act makes unlawful payments by an
employer to the representative of its employees, except,
inter alia, when paid to a trust fund meeting certain re-
quirements including that "(B) the detailed basis on
which such payments are to be made is specified in a
written agreement with the employer. . . "this require-
ment does not preclude an employer from making contri-
butions to a trust fund where the collective-bargaining
agreement has expired" unless the trust agreement con-
tains language that might limit the employer's obligation
to bargain regarding the cessation of payments into the
fund. In the instant case, there is no evidence that the
trust fund agreements specified that an employer's obli-
gations under them expired with the 1979 agreement; I
therefore find no merit to Respondent's contention that
the expiration of that contract terminated its obligations
to continue to make payments to the funds."
With respect to Respondent's contentions that it insti-
tuted a plan that provided benefits equal to those en-
joyed by the employees under the 1979 contract, al-
though Fitzpatrick testified that Respondent contacted
numerous insurance companies regarding a health and
welfare plan, he also testified that he did not know
whether a plan was put into effect, and there is no evi-
dence that a plan was in fact implemented. I therefore
°find no merit to Respondent's contention that it provided
equivalent benefits to those enjoyed by employees under
the 1979 contract."
I further find that Respondent's offer on July 23 to
bargain with the Union for a separate agreement cover-
ing Respondent's employees and the Union's insistence
that Respondent agree to the terms of the Association
contract did not justify Respondent's unilateral discon-
tinuance of fringe benefit trust fund contributions. For,
assuming, arguendo, that there was an impasse as of July
23, 37 the unilateral change in contributions was obvious-
ly far different from anything Respondent had offered to
the Union, and thus could not be justified on grounds
that there was an impasse in the bargaining." I therefore
fmd that by unilaterally ceasing its payments into the
fringe benefit trust funds Respondent violated Section
8(a)(5) and (1) of the Act."
34 SAC Construction Co., 235 NLRB 1211, 1219 (1978).
35 Cauthorne Trucking, 256 NLRB 721 (1981).
36 Peerless Roofing Co., 247 NLRB 500 (1980). Respondent cites NLRB
v. Porter County Farm Bureau Co-Operative Assn., 314 F.2d 133 (7th Cir.
1963), for the proposition that unilateral institution of insurance benefits
that are the same as those previously available to employees under the
union contract does not constitute an unlawful refusal to bargain. How-
ever, in that case, the court of appeals found that respondent's withdraw-
al of recognition was not unlawful; and, in any event, as found above,
there is no showing that the benefits provided by Respondent subsequent
to its withdrawal from the Association were equivalent to those previous-
ly enjoyed by the employees. Thus, that case is clearly inapposite.
37 It is clear that the Union's demand was that Respondent apply the
terms of the Association contract to its employees, not that Respondent
remain a member of the Association. Thus, if there was an impasse, it
was not caused by the Union's insistence on a nonmandatory subject of
bargaining.
38 United Contractors, 244 NLRB 72, 73 (1979)
39 The complaint alleges that the strike was prolonged by Respond-
ent's unfair labor practices. However, the only conduct I have found to
constitute an unfair labor practice was Respondent's unilateral discontinu-
ance of contributions to the fringe benefit trust funds, and it is not clear
D. The Alleged Misconduct by Board Agents
Respondent contends that lalny objective reading of
the record in this proceeding can only lead to the con-
clusion that Region 5 of the NLRB brought charges
which the General Counsel was completely unable to es-
tablish or substantiate," and that Board agents improper-
ly solicited the inclusion in the instant charge of the alle-
gation that Respondent withdrew recognition from the
Union. As fully discussed above, I have found that Re-
spondent committed an unfair labor practice as alleged in
the complaint and, although I have not found certain
other alleged unfair labor practices for reasons discussed
above, the General Counsel adduced evidence in support
of these allegations. I thus fmd no merit to Respondent's
first contention and, indeed, find it unworthy of further
consideration.
In support of its second contention, Respondent sub-
poenaed and called as witnesses the two Board agents
primarily responsible for the investigation of the charge,
field attorney Arlene Celotto Thorne and her then super-
visor, Thomas Lucas.4°
Respondent introduced into evidence, among other
documents relating to this issue, the charge in Case 5-
CA-l2445, which was filed by the Union against Re-
spondent on July 24 and which alleged, in substance, as
follows:
[Respondent] . . . has violated Section 8(a)(1), (3)
and (5) of the Act by:
1. Refusing to meet at reasonable times and
places;
2. Refusing to supply information relevant to col-
lective bargaining;
3. Engaging in take-it-or-leave-it bargaining;
from the record when Respondent ceased making the required payments
(particularly inasmuch as it is not clear whether there were any employ-
ees working during the strike for whom payments should have been
made) or when the Union became aware that Respondent had stopped
making payments. Accordingly, I find that the record does not establish
that the strike was converted from an economic to an unfair labor prac-
tice strike.
49 The subpoenas were initially revoked because Respondent had not
requested permission from the General Counsel of the Board for them to
testify as required by Sec. 102.118(a)(1) of the Board's Rules and Regula-
tions. Subsequently, Respondent sought permission from General Counsel
William A. Lubbers for Thorne and Lucas to testify and to produce cer-
tain documents. General Counsel Lubbers' reply stated, in pertinent part:
Permission is granted . . . to Thomas Lucas and Arlene Celotto
Thorne for the limited purpose of testifying with respect to the
Agency's involvement in the acceptance of the charge which result-
ed in the complaint in Marbro, and to produce any documentation
regarding their conversations with rept esentatives of the charged
and charging parties in this area . . . .
and quoted sec. 10064.5 of the National Labor Relations Board Casehan-
dling Manual (Part One) Unfair Labor Practice Proceedings, discussed
infra. Accordingly, Thorne and Lucas testified and certain documents
were produced. Pursuant to an in camera inspection, I ruled that various
documents were not required to be turned over to Respondent because
they either were not prepared during the time period specified in the sub-
poenas or contained nothing pertaining to the possible withdrawal of the
charge in Case 5-CA-12445, described below, or the acceptance of a
new charge. Respondent filed a special appeal to the Board from this
ruling; the Board denied the appeal "without prejudice to Respondent's
right to renew his contention through the filing of appropriate excep-
tions."
1314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4.Threatening employees with disciplinary action
and discharging employees for engaging in protect-
ed concerted activity;
5. Threatening employees with physical violence
for engaging in protected concerted activity;
6. Promising employees increased benefits if they
abandon the Union and return to work;
7. Refusing to agree to be bound by the collec-
tive bargaining agreement reached between the
Union and the multi-employer association which is
the lawful bargaining agent for the employer.
Thorne, with the aid of documents prepared by her
during her investigation of this charge, testified that on
August 26 she informed the Union's attorney, Jeffrey
Freund, who had been on vacation since July 31, that
there was insufficient evidence to substantiate certain al-
legations of the charge. Thorne did not recall whether in
that conversation she and Freund also discussed the pos-
sibility of amending the charge to delete certain allega-
tions. Thorne further testified that on August 28 she dis-
cussed with Freund the issues arising from Respondent's
withdrawal from the Association and that at some time
during the last week of August or the first week of Sep-
tember she talked to Lucas about her conversations with
Freund and "most likely" told Lucas that she had dis-
cussed with Freund that there was evidence of a possible
withdrawal of recognition. On September 2, according
to Thorne, she told Mannix that there was a possible
problem about withdrawal of recognition and Mannix
told her that he wanted to address the issue and would
set up appointments for her with his clients, and that ap-
pointments were in fact made on September 3 for the
following day. However, according to Thorne, at 3 p.m.
on September 3, Freund informed Thorne that he
wanted to withdraw the charge and file another, which
included a withdrawal-of-recognition allegation, and she
then called Mannix to tell him that the Union wished to
present evidence on the issue and that it made more
sense for her to have the Union's evidence before obtain-
ing Respondent's. On September 4, Thorne talked to
Mannix and canceled the appointment with his clients
and told him that the Union was going to file an amend-
ed charge." The Union filed the instant charge on Sep-
tember 5, which differed from the earlier , one only in
that it modified the allegations of threats of disciplinary
action and violence, did not include the allegation of
promise of benefits, and added an allegation that Re-
spondent withdrew recognition from the Union.
Section 10064.5 of the Casehandling Manual, supra,
provides, in pertinent part:
In cases where investigation uncovers unfair labor
practices not specified in a charge, regional person-
nel responsible for the handling of a given case
must determine whether the charge is broad enough
to support complaint allegations covering the appar-
ent unfair la.bor practices found. If the allegations of
41 Lucas testified to a conversation with Mannix in which they dis-
cussed the withdrawal-of-recognition issue, but did not remember the
date and otherwise had little recollection of his involvement in the inves-
tigation of the charges filed on July 24.
the charge are too narrow, the charging party (or
attorney of record) should, be apprised of the defi-
ciency in the existing charge and should be in-
formed that it can be remedied by amendment. . .
I found Thorne and Lucas to be credible witnesses
who testified to the best of their recollection. 42 Nothing
in their testimony suggested that their communications to
any of the parties or their attorneys went beyond the
boundaries of that deemed appropriate under section
10064.5; and Respondent has neither cited any decisions
for the proposition that Thorne and Lucas engaged in
any misconduct nor, indeed, has it referred to any specif-
ic actions by either of them that were allegedly improp-
er. I therefore find no merit to Respondent's contentions
that the instant charge was improperly solicited by
Board agents.
On the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Marbro Company, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Local 77, International Union of Operating Engi-
neers, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following unit is appropriate for purposes of
collective bargaining:
All engineers, branch engineers, operators of all
equipment coming under the craft jurisdiction of
the International Union of Operating Engineers, me-
chanics, maintenance men, apprentices, oilers and
firemen employed by Respondent.
4. By unilaterally discontinuing the payment of em-
ployer contributions to the Operating Engineers Trust
Fund of Washington, D.C., the Operating Engineers
Local No. 77 Pension Trust Fund, and the Operating
Engineers Joint Apprenticeship and Skill Improvement
Fund, Respondent has violated Section 8(a)(5) and (1) of
the Act.
5. A preponderance of the credible evidence does not
establish that Respondent has otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the purposes of the Act.
Having found that Respondent failed to make required
contributions to the Operating Engineers Trust Fund of
Washington, D.C., the Operating Engineers Local No.
42 Although Respondent impliedly argues that Lucas' failure to recall
events surrounding the investigation of these charges was incredible, I
find no merit to such a contention. Lucas was the supervisor, not the
principal investigator of the charges, and there is no apparent reason why
he should remember his conversations with the parties' representatives
and with regional office personnel during the investigation of the charges
more than a year after such conversations occurred.
MARBRO CO. 1315
77 Pension Trust Fund, and the Operating Engineers
Joint Apprenticeship and Skill Improvement Fund, I
shall recommend that it be required to make its employ-
ees whole by paying the required contributions for these
funds, as provided in the collective-bargaining agreement
that expired on June 30, 1980, which have not been paid
and which would have been paid absent Respondent's
unlawful unilateral discontinuance of such payments.43
On these findings of fact, and conclusions of law and
on the entire record, I issue the following recommend-
ed44
ORDER
The Respondent, Marbro Company, Inc., Beltsville,
Maryland, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Unilaterally ceasing payments to the Operating En-
gineers Trust Fund of Washington, D.C., the Operating
Engineers Local No. 77 Pension Trust Fund, and the
Operating Engineers Joint Apprenticeship and Skill Im-
provement Fund.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
45 Because the provisions of employee benefit fund agreements are
variable and complex, the Board does not provide at the adjudicatory
stage of a proceeding for the addition of mterest at a fixed rate on unlaw-
fully withheld fund payments. I therefore recommend that the question of
whether Respondent must pay any additional amounts into the benefit
funds in order to satisfy the "make whole" remedy be left to the compli-
ance stage of this proceeding. These additional amounts may be deter-
mined, depending on the circumstances of each case, by reference to pro-
visions in the documents governing the funds at issue and, where there
are no governing provisions, to evidence of any loss directly attributable
to the unlawful action, which might include the loss of return on invest-
ment of the portion of funds withheld, additional administrative cost, etc.,
but not collateral losses. Merryweather Optical Co., 240 NLRB 1213, 1216,
fn 7 (1979).
44 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(a) Make whole its employees, in the manner set forth
in the remedy section of this decision, for Respondent's
unlawful failure to transmit payments to employee bene-
fit trust funds by paying all contributions to the Operat-
ing Engineers Trust Fund of Washington, D.C., the Op-
erating Engineers Local No. 77 Pension Trust Fund, and
the Operating Engineers Joint Apprenticeship and Skill
Improvement Fund, as provided in the collective-bar-
gaining agreement between Respondent and the Union,
which expired on June 30, 1980, which have not been
paid, and which would have been paid absent Respond-
ent's unlawful unilateral discontinuance of such pay-
ments, and continue such payments until such times as
Respondent negotiates in good faith a new agreement or
to an impasse.
(b) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of trust fund
contributions due under the terms of this Order.
(c) Post at its Washington, D.C. facility copies of the
attached notice marked "Appendix."45 Copies of the
notice, on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that the notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 5, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint allegations
not specifically found be, and they hereby are, dismissed.
45 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 Nation-
al 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."