Application for enforcement of an order against a multi-employer bargaining association and certain of its members arising out of a strike by production and maintenance employees represented by Local 455, AFL-CIO. The Court of Appeals held: (1) substantial evidence supported the finding that the Association and certain named respondents committed unfair labor practices by attempting to assist Local 810, IBT, to supplant Local 455 as the bargaining representative of their employees; (2) the Board's finding that no impasse existed when a majority of members unilaterally withdrew from the Association was unsupported by the record; (3) certain employers, by executing contracts with Local 810 before giving notice of withdrawal from the Association, were guilty of a refusal to bargain; (4) employers who lawfully withdrew were nevertheless presumptively obligated to negotiate with Local 455 but may rebut the presumption by introducing evidence of a good-faith doubt as to Local 455's majority status; and (5) the Board was without power to hold those employers constituting a majority of the Association who had withdrawn bargaining authorization to be bound by an agreement negotiated by a remaining minority. Enforcement granted in part, denied in part.
Before Friendly, Gurfein and Meskill, Circuit Judges.
The NLRB petitions for enforcement of an order issued against a multi-employer bargaining group, the Independent Association of Steel Fabricators, Inc. ("Association"), and eighteen of its employer members who are part of the steel fabricating and erecting industry in the metropolitan New York area. The Board found that the Association and certain of the named members had committed unfair labor practices by unlawfully attempting to assist the Sheet Metal, Alloys and Hardware Fabricators and Warehousemen, Local 810, International Brotherhood of Teamsters ("Local 810") to supplant Shopmen's Local Union 455, International Association of Bridge, Structural and Ornamental Workers, AFL-CIO ("Local 455") as representative of the members' production and maintenance employees. The Board found further that certain of the named members of the Association had violated the National Labor Relations Act by unilaterally withdrawing bargaining authorization from the Association during negotiations with Local 455 and by declining to execute an agreement negotiated by five members remaining in the Association. Certain respondents were also held to have unlawfully executed contracts with Local 810 at a time when they were obligated to bargain with Local 455.
THE HISTORY OF THE CONTROVERSY
Before 1975, some employers in the steel construction and fabrication industry in metropolitan New York whose employees were represented by Local 455 had bargained with that union as members of a multi-employer association, Allied Building Metal Industries, Inc. ("Allied").*fn1 Other employers, including all of respondents here involved, had negotiated individual independent contracts with Local 455. Although the wage and employee benefit funds contribution provisions were essentially the same for all industry employers,*fn2 a number of differences between the independent standard contract and the Allied contract had evolved over the course of successive negotiations. When the existing contracts expired on July 1, 1975, there were some fifty-six differences between the individual contracts and the Allied contract concerning matters such as overtime pay and contract coverage of plant clericals, almost all of which worked to the advantage of the Allied members who were in competition with the independents.
In early 1975, before the individual contracts expired, these fifty-odd disparities, coupled with the depressed state of the construction industry, impelled twenty-five employers having standard independent contracts with Local 455 to form a trade association, the Independent Association of Steel Fabricators. One of the Association's primary functions was to negotiate with Local 455 and other unions, with the ultimate objective of achieving parity with Allied members. On June 10, the Association furnished Local 455 with bargaining authorization from thirty-two employers and the union subsequently recognized the new Association as bargaining agent for all but four of those employers.*fn3
Bargaining between Local 455 and the Association occurred in three phases: (1) four sessions between June 10 and July 1, the date the contracts expired and union employees went out on strike; (2) four or five sessions between late August and early October; and (3) a single meeting on January 14, 1976. There was a hiatus in negotiations between July 1 and late August and again between October and mid-January.
In the four bargaining sessions in June, discussion focused on the Association's interest in eliminating the fifty-six disparities between the individual contracts and the Allied contract. The union failed to present any specific wage or fund contribution proposals until the final June 30 meeting. At that meeting, Local 455 President Colavito advised the Association that the union was seeking a 15% Wage increase and 5% Fund increase from Allied but did not address the fifty-six disparities. The Association countered with a draft contract based on the previous Allied contract which eliminated the disparities mentioned and included a wage increase. Colavito rejected the proposed draft as totally unacceptable.
On the next day, July 1, 1975, Local 455 struck all employers who had not signed new contracts. At the same time, it circulated a proposed stipulation reducing its requested wage increase from 15 to 10% And modifying certain other demands. On the basis of that proposal, the union negotiated settlements with certain independent nonaffiliated employers and one Association member, Dextra, during the summer of 1975. There were no further meetings between the Association and the union until late August.
During the hiatus in negotiations, the Association learned that one of its members, Dextra, had consummated a collective bargaining agreement with Local 455. Upon the ground that the By-Laws of the Association required six months advance notice of a member's resignation, the Association petitioned the New York Supreme Court for a temporary injunction to prevent Dextra's resignation and its entry into an individual collective bargaining agreement with the union. In addition, the Association filed an unfair labor practice charge with the Board, alleging an intent on the part of Local 455 to destroy the multi-employer bargaining unit in violation of §§ 8(b)(3) and 8(b)(1)(B) of the Act, 29 U.S.C. §§ 158(b)(3), 158(b)(1)(B). The state court declined to grant preliminary relief and the NLRB Region 2 Director issued a no-action letter dated November 21, 1975, in which he stated that, as of June 30, 1975, "a legitimate impasse was reached" and that therefore Dextra was entitled to negotiate with the union on an individual basis.*fn4
Local 455 and the Association met once in late August and sporadically in September and October under the auspices of the State Mediation Service. At the late August negotiating session, Local 455 formally presented the Association with its July proposal, which it had also presented to Allied. Since the union had made no concessions over the course of the negotiations from August through October concerning the fifty-six disparities, the parties made little progress. Several members of the Association, Atwater, North Shore, and Charla Iron Works, withdrew during this period with the consent of Local 455.*fn5
In October, the Association's labor relations adviser Brickman indicated at an open meeting of the Association that there might be other unions interested in representing its members' employees. Under circumstances to be discussed more fully below, Local 810 of the Teamsters contacted certain respondents and their employees and, between November of 1975 and February of 1976, nine members of the Association signed collective bargaining agreements with Local 810.*fn6
Local 455 finally reached a settlement with Allied in early January 1976. Thereafter, on January 14, Local 455 met with the Association's negotiating committee and offered it the same basic wage and fund settlement that had been reached with Allied, but with the other provisions of the former standard independent contract remaining intact. Again there was no offer by Local 455 to eliminate the disparities. The Association countered with an offer to recommend to its membership the precise contract negotiated with Allied. Colavito categorically refused and the meeting ended.
Two days later, on January 16, the Association wrote to the union that nineteen of its members had withdrawn bargaining authorization from the Association.*fn7 The union received the letter on January 19. By letter dated January 20, Colavito informed the Association that the union did not consent to the withdrawals. He insisted further that any agreement worked out between the union and the Association would be binding on the withdrawing members. By the time the union was notified of the withdrawals through the January 16 letter, six member employers had already signed agreements with Local 810.
Several days later, on January 23, the union met at the State Mediation Board with three employers who had not withdrawn. They made it clear to the union negotiator that they were not authorized to speak on behalf of the Association. Colavito responded that, as far as he was concerned, the members present did represent the Association. After all-day negotiations, the parties reached agreement on a general stipulation but deferred signature pending resolution of certain problems unique to particular employers. At two meetings in late January, five employers signed the January 23 stipulation. Although they refused to sign On behalf of the Association, they added to their signatures, at Colavito's insistence, that they were members of the Association.
During the next two months, while the strike continued against non-signatories, Local 455 sent two sets of letters to the employers who had withdrawn from the Association, one requesting them to implement the agreement represented by the January 23 stipulation and another requesting reinstatement of the striking employees. Of the nineteen employers who had withdrawn, two, Trojan Steel and Heuser Iron, did execute agreements identical to the January 23 stipulation and reinstated their employees. The seventeen other employers who had withdrawn by letter received January 19 fall into three classes: (1) those who had signed with Local 810 before January 19; (2) those who signed with Local 810 only after the January 19 notice; and (3) those who signed with neither Local 455 nor Local 810.*fn8
The preceding facts gave rise to four separate charges of unfair labor practices by Local 455 against the respondent Association and the named employers, as well as a charge filed by Local 810 against Local 455 alleging various acts of violence and unlawful coercion. The four charges, consolidated into a single amended complaint, were heard together with the Local 810 counter-charge before an Administrative Law Judge. His principal findings of fact and conclusions of law were adopted by the Board in a decision dated August 11, 1977.*fn9 They were essentially as follows:
(1) By soliciting their employees to abandon Local 455 and join Local 810, certain respondent employers and the respondent Association had engaged in unfair labor practices within the meaning of §§ 8(a)(1), (2), and (5) of the Act;*fn10
(2) By threatening to close their plants and/or discharge their employees in order to induce them to join Local 810, certain respondent employers had violated § 8(a)(1) of the Act;*fn11
(3) By withdrawing from multi-employer bargaining and by refusing to acquiesce in the union's demand that they execute the January 23 agreement, the Association and respondents (except for Trojan and Heuser) violated and were violating §§ 8(a)(5) and (1) of the Act;
(4) By discharging their employees for supporting Local 455 and refusing to reinstate them upon their unconditional offer to return to work, respondent employers (except for Trojan and Heuser) had violated and were violating §§ 8(a)(3) and (1) of the Act.
As to the counter-charge, the Administrative Law Judge found:
By blocking ingress to respondent employer's plant, threatening to inflict physical harm on respondent's employees, and coercively photographing employees as they crossed Local 455 picket lines, Local 455 had violated and was violating § 8(b)(1)(A) of the Act.*fn12
In ordering the employers to cease and desist from the above unfair labor practices, the Board ordered Inter alia that: (1) all members (except Trojan and Heuser) must implement the January 23 collective bargaining agreement and reinstate all striking employees; (2) all employers (except Roma Iron Works and Cervenka and Sons) must cease withholding authorization from the Association to bargain collectively and to execute an agreement on their behalf with Local 455; (3) all employers who had negotiated collective bargaining agreements with Local 810 must cease recognition of Local 810 as the bargaining representative of their production and maintenance employees and must cease giving effect to the ...