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September 26, 1986



A motion has been made to this Court by plaintiffs, Cuyahoga Wrecking Corp. ("CWC") and Jordan & Foster Scrap Corp. ("Jordan & Foster") to enjoin any and all arbitration between themselves and the defendant union arising out of collective bargaining agreements covering the periods from June 1, 1981 through May 31, 1984 and June 1, 1984 through May 31, 1987.

Jurisdiction to enjoin arbitration pursuant to a collective bargaining agreement is conferred upon this Court by section 301 of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 185.

Defendant Laborers International Union of North America, Local Union No. 210 ("Local 210") is a "labor organization" as defined by 29 U.S.C. § 152(5). It represents members of Laborers International working in the western area of New York. Local 210 entered into a collective bargaining agreement with the Independent Contractors Association of Western New York, Inc. ("the ICA"), a multi-employer association incorporated to promote the interests of construction contractors. The agreement was effective June 1, 1981 through May 31, 1984 ("Agreement 1"). At the time Agreement 1 was entered into, CWC was not a member of the ICA. When CWC, an Illinois Corporation, contracted to perform a demolition job for the Buffalo Urban Renewal Agency late in 1981, it was required to employ union labor to work on that project. About November 1981 CWC executed a copy of Agreement 1 which had previously been negotiated between Local 210 and ICA. CWC worked on the Buffalo project until June 1982, during which time it complied with all applicable aspects of the agreement. From the time that project ended until after Agreement 1 had terminated, CWC did not directly engage in any demolition work within western New York. Its next project in that area was for Bethlehem Steel in Lackawanna in August 1984.

 In June 1983, after CWC had become signatory to Agreement 1, Jordan & Foster was incorporated under the laws of New York. Jordan & Foster's first job performing demolition work was as a subcontractor of CWC, at the site of the former Hanna Furnace Co., which property was then, and is still, owned by Jordan & Foster. In September of 1984 Jordan & Foster began a job working as subcontractors for CWC at the Bethlehem Steel site in Lackawanna.

 Local 210 now contends that the Hanna Furnace job done by Jordan & Foster's non union labor violated Agreement 1, signed by CWC, because Jordan & Foster and CWC were in fact a "single employer" and therefore each was bound by the terms and conditions of Agreement 1.

 Local 210 further contends that CWC, by signing Agreement 1 became a member of the ICA and was bound pursuant to ICA's bylaws, Article III, § 2, by any subsequent agreements negotiated between ICA and Local 210. Prior to the expiration date of Agreement 1 (May 31, 1984), a new contract was successfully negotiated between ICA and Local 210, which became effective June 1, 1984 through May 31, 1987 ("Agreement 2"). It is not disputed that both CWC and Jordan & Foster have engaged in demolition work in western New York while Agreement 2 was in effect; Local 210 therefore claims violation of this contract also.

 The agreements contain virtually identical Grievances and Arbitration clauses, pursuant to which the defendant demanded that the disputes be submitted to arbitration. The plaintiffs have moved in this Court for a preliminary injunction to stay such action. The parties, who have other and related labor disputes pending before this Court, subsequently agreed to move ahead to the question of a permanent injunction. An evidentiary hearing was held in December 1985, and that parties have submitted proposed findings and conclusions.

 Section 8(d)(1) of the NLRA, 29 U.S.C. § 158(d)(1), requires one seeking to terminate or modify a collective bargaining agreement to serve written notice upon the other party of his intention to terminate or modify, sixty days before the expiration of the agreement. CWC failed to give either the sixty-day notice of termination required by the NLRA, or the 120-day notice required by section 2 of Article III of the ICA bylaws. This fact is of no significance, however, unless and until it is determined that CWC had become and been a member of the ICA.

 There is sharply conflicting testimony regarding CWC's intent to become a member of the ICA when it executed a copy of Agreement 1. CWC supervisor Samuel Runfola stated that Agreement 1 was signed without any discussion, primarily because union labor was a mandatory condition of the Buffalo Project. Record at 2-123. Local 210's business manager, Ronald Fino, testified to the contrary -- to wit, that Runfola was familiar with multi-employer associations, that the contracts of several others besides ICA were described to him, and that he had been offered the option of signing an independent contract with Local 210. Record ("R") at 4-9 to 4-15.

 The test of whether an employer can be held to the terms of a contract negotiated by a multi employer organization is stringent; the employer must indicate from the outset a clear and unequivocal intention to be bound by group action. Ruan Transport Corp. 234 N.L.R.B. 241, 97 L.R.R.M. 1195 (1978). The unequivocal commitment to be bound language was subsequently approved in a concurring opinion in Charles D. Bonanno Linen Service v. NLRB, 454 U.S. 404, 420, 70 L. Ed. 2d 656, 102 S. Ct. 720 (1982) (Stevens, J., concurring). See also Crane Sheet Metal, Inc. v. N.L.R.B., 675 F.2d 256, 258 (10th Cir. 1982).

 The mere hiring of union members and paying them in compliance with a new collective bargaining agreement that the association had negotiated with the union does not necessitate a finding that a non-signatory employer had manifested its intent to be bound by the new agreement. O'Connor Company, Inc. v. Carpenters Local Union No. 1408, 702 F.2d 824, 825-826 (9th Cir. 1983). *fn1" An employer who merely adopts a collective bargaining agreement, in the negotiation of which he did not participate directly or by delegation of authority, does not, as a general rule become part of a multi employer bargaining group. Raun Transport Corp., supra. The employer in such case maintained that it could not be held to a second agreement signed by a union and a multi-employer bargaining organization, simply because it had signed a previous one. The Board agreed. Such act had not made it a member of the organization, and it had not participated in negotiating either the old or the new agreement, and it had not expressly authorized the organization to bargain for it. Even a provision in the executed agreement whereby the employers "acknowledge that they are part of a multi-employer collective bargaining unit" was found by the Board in that case to be at best a "bare covenant" which would not suffice to clearly and unequivocally show that an employer had delegated his authority to the organization. Raun Transport Corp., supra at 1197.

 In the instant case, the entire argument for finding that CWC became a member of the ICA lies in the fact that it signed an agreement between ICA and Local 210. And although multi-employer bargaining has been encouraged as "a vital factor in the effectuation of the national policy of promoting labor peace," Labor Board v. Truck Drivers Union, 353 U.S. 87, 95, 1 L. Ed. 2d 676, 77 S. Ct. 643 (1957), it is beyond dispute that a party can not be held to a contract to which it never agreed. CWC never requested or completed a membership application from the ICA, although "in order to become a member *** [one] must do so in writing on a form provided by Independent Contractors of Western New York, Inc." ICA bylaws, Article III, § 3. Mr. Eugene Principe, director of labor relations of the ICA, testified that the procedure as set out in the bylaws had never been followed. Prospective members' names are sent on a form directly from Local 210 to the ICA. The ICA then determined whether it would guarantee payment of contributions. ICA sent acknowledgement to Local 210 that it would guarantee such payments, then added CWC to its list of members. R at 2-270 to 2-278. Thus, no direct communication ever took place between CWC and ICA during the "application process."

 None of this evinces a clear and unequivocal intent by CWC to be bound by further agreements negotiated by the ICA. Local 210 does not contest that CWC neither attended ICA meetings nor contributed in any way in the negotiations which produced Agreement 1 or 2. CWC in fact refused to sign Agreement 2. Furthermore, outside of Agreement 1, it appears that CWC never executed any document whatsoever to which ICA was a party.

 Consequently, this Court finds that CWC never became a member of ICA; it can therefore be bound only by the terms of the contract which it actually signed, Agreement 1, which expired May 31, 1984. Neither the ICA bylaws ...

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