NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,575, JAMES LUTERBACH CONSTRUCTION CO., INC. and INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 139, AFL-CIO., (Dec. 16, 1994), National Labor Relations Board, (Dec 16, 1994)

JAMES LUTERBACH CONSTRUCTION CO., INC. and INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 139, AFL-CIO.

315 NLRB No. 147.Case No. 30-CA-10989. December 16, 1994 Leonard M. Wagman, Administrative Law Judge..

Before Gould, Stephens, Devaney, Browning and Cohen.

Lucinda L. Flynn, for General Counsel. Thomas W. Scrivner and Jonathan O. Levine (Michael, Best and Friedrick), Milwaukee, Wisconsin, for Respondent. Warren Kaston, Pewaukee, Wisconsin, for Charging Party.

Multiemployer Units--Employer Withdrawal--Construction Industry.--A construction industry employer breached its bargaining duty by refusing to adhere to a collective bargaining agreement executed between a union and a multiemployer bargaining association. In this instance, the employer had historically been a member of the multiemployer unit and had been bound by the previous agreements reached through multiemployer bargaining. Further, the employer’s president served as chairman of the employer group’s bargaining committee for the first three negotiating sessions. Even had the employer been acting in its sole capacity, that fact had not been told to the union. Rather, the employer’s overt affirmative actions reasonably conveyed a commitment by the employer to continue to participate in, and be bound by, group negotiations. Section 8(a)(5).

Back reference: ¶2610.67.

From Text of Board’s Decision

On October 24, 1991, Administrative Law Judge Leonard M. Wagman issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel and the Charging Party each filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order as modified.

The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing to adhere to a collective-bargaining agreement executed about June 28, 1990, by the International Union of Operating Engineers, Local 39, AFL-CIO (Local 139 or the Union), the Allied Construction Employers’ Association (ACEA), and the Associated General Contractors of Greater Milwaukee (AGC). The judge concluded that the Respondent’s refusal violated Section 8(a)(5) and (1) of the Act. The Respondent filed exceptions to the judge’s decision. We find in agreement with the judge and for the reasons set forth below that the Respondent’s refusal to adhere to the agreement violated Section 8(a)(5) and (1) of the Act.

I. Background

The facts of this case may be summarized as follows. The Respondent has been a general contractor in the building and construction industry for about 33 years. It employs laborers, cement masons, carpenters, bricklayers, and operating engineers. the Respondent has usually employed about 45 to 50 employees from those trades, including 4 or 5 operating engineers. It has had a collective-bargaining relationship with the unions representing each of these trades for at least 20 years.

Pursuant to Section 8(f) of the Act, the Respondent has recognized Operating Engineers Local 139 as the exclusive bargaining representative of its operating engineers for more than 20 years. The Union and the Respondent were parties to a series of multiemployer agreements, the most recent of which, the Area I Master Building Agreement (Area I or Area I Agreement), was effective from June 1, 1987, to May 31, 1990.

Before the 1987 agreement, the ACEA negotiated contracts with the Union for the Respondent and other members of the AGC. The Respondent has been a member of the AGC for about 20 years. William P. Luterbach, president of the Respondent since 1983, has held various offices in the AGC, culminating in the presidency in 1987. Until 1987, AGC was a member of ACEA. Luterbach, as AGC president, represented it on ACEA’s board of directors.

Early in January 1987, the AGC decided to withdraw from the ACEA bargaining unit. In letters to Local 139 and other craft unions having collective-bargaining relationships with its members, AGC announced its withdrawal and stated that it was willing to begin negotiating a new agreement to be effective on or after June 1, 1987. Attached to each letter was a list of AGC contractors, including the Respondent, who had authorized the AGC to bargain for a new agreement.

In February 1987, AGC and ACEA agreed that from then on they would negotiate agreements as separate entities and that each one would bargain for its own members. They also agreed to bargain “alongside of, contiguous with, and adjacent to and in conjunction” with each other. In preparation for the 1987 negotiations, AGC and ACEA set up a joint committee. The two associations signed the 1987 area I Agreement with Local 139 as separate entities.

During the negotiations for the 1987 Area I Agreement among ACEA, AGC, and Local 139, Luterbach became a member of the joint bargaining committee. He participated in the committee caucus on June 18, 1987, and sat with the committee during July 2, 1987 negotiations with Local 139.

In August 1989, the AGC sent letters to its members announcing preparations for the 1990 negotiations. It attached collective-bargaining authorization forms and a list of the AGC bargaining committees. Luterbach was listed as the chairman of the 1990 AGC collective-bargaining committee regarding operating engineers. The authorization form had spaces for an employer to check “yes” or “no” next to the names of the five unions, to show which union, if any, the employer authorized AGC to bargain with on its behalf. On August 15, not having received a reply from Luterbach, the AGC sent the Respondent a followup letter requesting the return of the authorization.

On August 30, 1989, the Respondent returned its form to the AGC, authorizing the association to represent it regarding bricklayers, carpenters, cement masons, and laborers. Concerning operating engineers, the Respondent marked neither “yes” nor “no.” The AGC, which did not ask the Respondent to make a specific election, concluded that it was not authorized to bargain with the Union on the Respondent’s behalf.

In February 1990, Local 139 sent letters to ACEA and AGC requesting negotiations for a new agreement. At the first bargaining session, [1] on April 19, Local 139 asked for a list of employers for whom the associations had bargaining authority. The committee gave Local 139 the list, which included the Respondent as an employer for whom AGC had such authority. At the April 19 session, Luterbach chaired the joint bargaining committee and was its main spokesman.

On April 20 Local 139 filed an election petition with the Board seeking certification as the representative of the Respondent’s operating engineers. On the same day the Regional Director notified the Respondent of the petition. The Union later withdrew the petition. On May 21 the Union filed a second petition similar to the first one in all material respects. On the same day the Regional Director notified the Respondent of the new election petition.

On May 10, at the next negotiating session, Luterbach again chaired the committee and spoke for the employer. He also served as chairman at the third meeting, on May 22, when the parties negotiated through a federal mediator.

On May 29 Luterbach learned from Richard Snow, executive vice president of AGC, that the Respondent, Luterbach Construction of which he was president, had erroneously been placed on the list of employers that had authorized AGC to represent them with the operating engineers. Luterbach was absent from the next negotiating session, May 30. At that session, Henry Hunt, AGC’s executive director, announced that Bill Emory, an official of another company included on the list of AGC members, was chairman of the committee. Emory continued to function in that capacity until negotiations concluded. Luterbach did not attend the remaining sessions.

In a May 31 letter to Donald Shaw, Operating Engineers Local 139 president and business manager, Luterbach announced to the Union his withdrawal as chairman of the committee and the Respondent’s intent to conduct its relations with the Union as an individual employer. He stated that any further role he might play in the negotiations would be as an advisor to the employers whose bargaining authority the associations held, and that the Respondent was not among them. He also wrote:

I am writing in response to recent developments between your union and the James Luterbach Construction Company. You know by now that those developments placed me in a position where I had no choice but to resign as chairman of the negotiating committee in the AGC/ACEA collective bargaining negotiations.

I am referring, in particular, to the recent filing by your union of two election petitions. In evaluating the election issue it became clear to me that the company should exercise its rights under the law, as set forth in the Deklewa case. It also became clear to me that your union does not represent an uncoerced majority of our employees in a bargaining unit that is appropriate under the law. Accordingly, we plan to proceed on the basis of an individual relationship with your union, if and when one is required by law.

On May 31, the Respondent filed an RM petition for an election in a unit of its operating engineers, truck-drivers, and mechanics, naming the Union as the labor organization claiming representative status for the unit. On June 26 the committee and the Union reached an agreement, which they executed on June 28. The agreement is effective from June 1, 1990, until May 31, 1993. On July 2 and again on July 3, Luterbach rejected the Union’s requests that the Respondent adhere to the agreement. The Respondent has persisted in that refusal.

II. Discussion

At issue in this case is whether the Respondent violated Section 8(a)(5) and (1) of the Act by failing to adhere to the agreement executed June 28. [2] This case involves the obligations of an 8(f) employer in the context of multiemployer bargaining. To resolve this issue, we shall examine Deklewa and post-Deklewa cases for guidance.

In Deklewa, the Board summarized the framework it was providing for interpretation and application of Section 8(f) as follows:

When parties enter into an 8(f) agreement, they will be required, by virtue of section 8(a)(5) and Section 8(b)(3), to comply with that agreement unless the employees vote, in a Board-conducted election, to reject (decertify) or change their bargaining representative. Neither employers nor unions who are party to 8(f) agreements will be free unilaterally to repudiate such agreements. During its term, an 8(f) contract will not act as a bar to petitions pursuant to Section 9(c) or (e). In determining the appropriate unit for election purposes the Board will no longer distinguish between “permanent and stable” and “project by project” work forces, and single employer units will normally be appropriate,

In the event of an election, a vote in favor of the signatory union, or a rival union, will result in that union’s certification and the full panoply of Section 9 rights and oblgations. A vote to reject the signatory union will void the 8(f) agreement and will terminate the 8(f) relationship. In that event, the Board will prohibit the parties from reestablishing the 8(f) relationship covering unit employees for a 1-year period. The purpose of the general prohibition is to preclude an employer and a union both from ignoring the electorally expressed preference of a majority of unit employees and from maintaining an 8(f) relationshp during a period when the Act precludes holding another election, the availability of which is the sine qua non safeguard to permitting and enforcing an 8(f) contract. Failure to terminate an 8(f) relationship or its premature reestablishment after an election will subject the parties to 8(a)(2) and 8(b)(1)(A) liability.

Even absent an election, upon the contract’s expiration, the signatory union will enjoy no majority presumption and either party may repudiate the 8(f) relationship. The signatory employer will be free, at all times, from any coercive union efforts, including strikes and picketing, to compel the negotiation and/or adoption of a successor agreement. [Footnote omitted. 282 NLRB at 1385-1386.]

The Deklewa Board, at 282 NLRB at 1385 fn. 42, in discussing its rejection of the merger doctrine, [3] noted as follows regarding multiemployer bargaining in the construction industry:

Accordingly, these reules reject the so-called merger doctrine’s application to 8(f) cases. Assuming that the merger doctrine fosters a certain amount of stability in labor relations, we believe that in the construction industry the cost of achieving that stability in terms of employee free choice is too high. As we have explained in this industry the merger doctrine can operate to bind a single employer and its employees to full 9(a) status without providing the employees any opportunity to express their representational preferences because Sec. 8(f) eliminates status as a prerequisite for signing a contract. On balance, therefore, we find that the overall objectives of the Act will be better served by abandonment of the merger doctrine in these circimstances. In so doing, we do not imply that multiemployer associations and multiemployer bargaining are no longer appropriate in the construction industry. Rather, we hold that employees of a single employer cannot be precluded from expressing their representational desires simply because the employer has joined a multiemployer association. [Emphasis added.]

Generally, under this framework, an employer, on expiration of an 8(f) agreement, is free to withdraw recognition of the union and avoid any obligation to bargain for a successor contract. [4] Such an employer may, however, obligate itself to abide by a successor agreement and the Board--in varying contexts-- has so found.

In Kephart Plumbing, [1987-88 CCH NLRB ¶18,981] 285 NLRB 612 (1987), the employer has authorized an association to negotiate on its behalf with the union. The employer did not withdraw its authorization until after a new agreement had been negotiated, executed, and ratified. Applying Deklewa, the Board found that the new agreement was binding and not subject to unilateral repudiation. The Board also noted, however, that the union enjoyed no presumption of majority status after the new agreement’s expiration and that the employer would be free to repudiate the 8(f) relationship at that time.

In Reliable Electric Co., [1987-88 CCH NLRB ¶19,015] 286 NLRB 834, 836 (1987), the Board held that an 8(f) employer who had not withdrawn bargaining authority previously given to an association was bound to the association contract:

[T]he Respondent’s authorization to NECA did not terminate at the end of the then current commerical agreement, but bound it to succeeding agreements as well. Authorization continued unless the Respondent subsequently took some action effectively withdrawing the multiemployer group’s authority to bargain on the Respondent’s behalf. As found by the judge, no such notice had been given at the time the 1983-1986 successor commercial agreement was executed or the following winter when the Respondent repudiated that agreement. Under the Deklewa principles, the successor commercial agreement was “binding, enforceable, and not subject to unilateral repudiation by the respondent.” Thus, the Respondent’s unilateral repudiation of the contract violated Section 8(a)(5). [Footnotes omitted.] [5]

The Board similarly has held that an employer, which had agreed to a settlement binding it to a July 1, 1981, to June 30, 1984, union association contract and also, “clearly,” to the successor contract, violated Section 8(a)(5) in February 1984 by withdrawing recognition and repudiating the existing contract. The Board also found that the employer’s March 30, 1984, withdrawal of bargaining authority from the association did not relieve the employer of its obligation to comply with its existing contractual obligations. Carthage Sheet Metal Co., [1987-88 CCH NLRB ¶19,229] 286 NLRB 1249 (1987).

An 8(f) employer that signs an agreement to adhere to an association contract is also bound to that contract for its term under Deklewa. In Twin City, [6] the employer notified the union during the term of the association contract, that it was repudiating “any agreement” it had with the union. The Board held that the employer was bound to its Section 8(f) relationship with the union until the contract expired.

In each of these cases, the 8(f) employer i.e., the employer who has an 8(f) relationship with the union) was free to refuse to bargain for a new contract. However, in each case, the 8(f) employer clearly and unmistakably bound itself to a successor contract.

The issue posed here is whether an 8(f) employer, in a multiemployer unit, is bound, by inaction, to the successor multiemployer contract. In a Section 9 context, the inaction of the employer, during the multiemployer negotiations, would bind it to the successor multiemployer contract. In Retail Associates, supra, 120 NLRB at 395, the Board set forth certain guidelines governing the withdrawal from multiemployer units:

We would accordingly refuse to permit the withdrawal of an employer or a union from a duly established multiemployer bargaining unit, except upon adequate written notice given prior to the date set by the contract for modification, or to the agreed-upon date to begin the multiemployer negotiations. Where actual negotiations based on the existing multiemployer unit have begun, we would not permit, except on mutual consent, an abandonment of the unit upon which each side has committed itself to the other, absent unusual circumstances.

The Retail Associates’ rule has developed, and has been applied, to multiemployer union collective-bargaining relationships governed by Section 9 of the Act. That is, each of the employers has a Section 9 bargaining relationship with the union, and the multiemployer group (consisting of those employers) has a Section 9 bargaining relationship with the union. Accordingly, at the expiration of the multiemployer contract, the employers have a statutory obligation to bargain for a successor contract. The only issue is whether they must bargain on a multiemployer basis or on a single employer basis. The Retail Associates’ rule addresses that issue. The rule requires that if an employer wishes to abandon multiemployer bargaining and wants to bargain on a single employer basis, that employer must withdraw from the multiemployer unit in advance of multiemployer negotiations.

By contrast, employers who have an 8(f) relationship with a union do not have an obligation to bargain for a successor contract. [7] Accordingly, if a multiemployer group consists wholly of such employers, neither the multiemployer group nor any of its employer\members would have an obligation to bargain for a successor contract. Hence, the underlying premise for the Retail Associates’ rule--an obligation to bargain in some unit--does not exist in the context of an 8(f) relationship. Since the underlying premise for Retail Associates does not exist with respect to 8(f) relationships, we decline to apply the Retail Associates’ rule to such a relationship.

Nonetheless, as previously discussed, an 8(f) employer may obligate itself to be bound by a successor agreement. Indeed, Deklewa recognized that the policy of labor relations stability generally favors requiring parties to abide by their agreements. Thus, the question becomes under what circumstances will we find that an 8(f) employer--in a context of multiemployer bargaining--has agreed to be bound by the results of that bargaining?

In the 8(f) context, we conclude that in order for an employer to obligate itself to be bound by multiemployer bargaining, there must be more than inaction, i.e., the absence of a timely withdrawal. Thus, unlike in Retail Associates, supra, mere inaction during the multiemployer negotiations will not bind an 8(f) employer to a successor contract reached through those multiemployer negotiations. [8] Rather, the following two part test will be used to decide whether an 8(f) employer has obligated itself to be bound by the results of the multiemployer bargaining. First, we will examine whether the employer was part of the multiemployer unit prior to the dispute giving rise to the case. If this first inquiry is answered affirmatively, then we will examine whether that employer has, by a distinct affirmative action, recommitted to the union that it will be bound by the upcoming or current multiemployer negotiations.

The first part of the test is similar to the sort of inquiry pursued in Retail Associates. That is, a union would typically rely--absent notice to the contrary--on an employer’s prior membership or participation in multiemployer bargaining, or both, as demonstrating that the employer would be bound by the results of the upcoming multiemployer bargaining.

The second part of the test recognizes the differences between bargaining in the 9(a) context and bargaining in the 8(f) context. As noted, an employer, under Deklewa, supra, on expiration of an 8(f) agreement, is not generally obligated to negotiate a successor agreement and is free to withdraw recognition from the union. In these circumstances, mere inaction by an employer during the multiemployer negotiations is not sufficient to show that the 8(f) employer has reaffirmed its intention to be bound by the results of multiemployer bargaining. If, however, that 8(f) employer affirmatively agrees to be bound by the results of group bargaining, consistent with Deklewa, hold that employer to its obligations. Thus, an 8(f) employer that engages in a distinct affirmative act that would reasonably lead the union to believe that the employer intended to be bound be the upcoming or current negotiations will be deemed to have agreed to be bound by the results of that bargaining. Ultimately, that employer--meeting both parts of our test--will be deemed to have clearly and unmistakably waived both its right to withdraw recognition on contract expiration from the union and its right to bargain as an individual. [9]

We differ substantially with the views of Members Devaney and Browning. Their full application of Retail Associates to 8(f) employers and signatory unions suggests, contrary to Deklewa, that 8(f) signatory unions are in fact vested with all the rights and privileges of a 9(a) union. As discussed, the Board in Deklewa struck a delicate balance in applying the principles of Sections 8(a)(5), 8(b)(3), 8(d), and 9(a) to 8(f) relationships. Applying Retail Associates to 8(f) relationships would upset that delicate balance by imposing new postcontract obligations on 8(f) employers. That is, the application of Retail Associates would impose on such employers the duty to bargain in a multiemployer unit as well as the duty to honor any contract resulting therefrom, unless the employer takes steps to avoid that result. Under Deklewa, an employer’s inaction does not bind it to bargain at all, much less to bargain in a multiemployer unit. Members Devaney and Browning would stretch Sections 8(a)(5) and (f) to achieve this result. Further, by binding an individual 8(f) employer to a multiemployer contract simply because of a failure to timely withdraw from multiemployer bargaining, Members Devaney and Browning would impose on that employer an obligation whose source is not that employer’s agreement to an 8(f) contract but rather the individual 8(f) employer’s prior relationship with an association.

Members Devaney and Browning speak of the virtues of mutiemployer bargaining and of the need for stability in connection with such bargaining. We do not necessarily disagree. However, we believe that our colleagues have failed to take cognizance of two important limitations on such bargaining. Since both of these limitations are statutory, they cannot be ignored.

The first limitation is that an employer has a right to bargain for itself. [10] Thus, in our view, absent a clear and unmistakable consent to be bound to multiemployer bargaining, an employer has a right to eschew such bargaining.

Secondly, an employer who has only an 8(f) contract with a union has a right to refuse to bargain for a successor contract. Thus, in our view, absent a clear manifestation of consent, the 8(f) employer can eschew such bargaining.

These principles assume importance in connection with the issues concerning an employer’s effort to withdraw from multiemployer bargaining. If an employer has a Section 9 relationship with a union, the obligation to bargain is a continuing one. Thus, if that employer is part of a multiemployer unit, it is therefore appropriate to hold that the employer’s obligation to bargain in that unit will likewise continue, unless the employer timely chooses to bargain on a single employer basis. See Retail Associates, supra, 120 NLRB 395.

However, if the employer has only an 8(f) relationship with the union, there is no obligation to bargain for a successor contract. Thus, at the end of each contract, the employer has an opportunity to decide anew whether to bargain for a successor contract. And, if the employer chooses to bargain, it will also decide whether to bargain in a multiemployer unit. The fact that an employer choose to bargain a past contract on a multiemployer basis does not establish that the employer has agreed to bargain a successor contract, much less that the employer has consented to bargain a successor contract on a multiemployer basis. Some affirmative act is necessary to establish that consent. [11]

Applying our two part test to the facts of this case, we find that the Respondent was obligated to abide by the contract that resulted from the 1990 negotiations. First, the Respondent had historically been a member of the AGC and had been bound by the previous agreements reached through multiemployer bargaining. Indeed, in 1987 William Luterbach served as president of the AGC. Also, during the 1987 bargaining, Luterbach played a role in the negotiations with the Union that led to the 1987-1990 contract--a contract that the Respondent honored. Without doubt, the Respondent meets the first part of our test.

Second, as noted previously, William Luterbach, the Respondent’s president, served as chairman of the AGC’s bargaining committee for the first three 1990 negotiating sessions. [12] Concededly, William Luterbach could have been wearing only an “AGC hat” and not a “Luterbach Construction hat.” However, even were this so, it was not told to the Union. Luterbach’s overt affirmative actions reasonably conveyed a commitment by the Respondent to continue, as it had in the past, to participate in, and be bound by, group negotiations. [13]

Based on the foregoing, we find that the Respondent obligated itself to abide by the results of the 1990 negotiations between the AGC and the Union. Accordingly, the Respondent’s refusal to abide by the honor the collective-bargaining agreement reached during those negotiations violated Section 8(a)(5) and (1) of the Act. [14]

[Concurrence]

Chairman Gould, concurring: I write separately because although I agree with much of the opinion authored by Members Stephens and Cohen, I am unable to endorse the test articulated by them. Like them, I find the Retail Associates’ [15] rule inapplicable to multiemployer bargaining in the construction industry, and I agree that in an 8(f) context an affirmative showing is required to bind an individual employer to a multiemployer successor contract.

I part company with them, however, in delineating what this affirmative requirement entails. They require that the 8(f) employer, “by a distinct affirmative action, recommitt[] to the union that it will be bound by the upcoming or current multiemployer negotiations.” I find this requirement too restrictive.

The facts presented in a prior Board case illustrate this point. In Kephart Plumbing, [16] Kephart, an 8(f) employer, in 1977 and again in 1979 signed an authorization for a multiemployer association to negotiate on its behalf with the union. The 1979 authorization contained no time limitation. Before negotiations began in 1980 for a successor contract, the association notified Kephart of a general membership meeting to discuss the upcoming negotiations. Kephart did not respond. As the first negotiating session the association gave to the union copies of the authorization forms of the employers on whose behalf it was negotiating, including that of Kephart. The association continued to keep Kephart informed of the status of the negotiations, and when a new 3-year contract was finalized, it mailed a copy of it to Kephart. The next month Kephart informed the union for the first time that it was not a member of the association, and it repudiated the contract.

The Board found that Kephart’s authorization in the multiemployer association continued until it took some action effectively withdrawing the association’s authority to bargain on its behalf and that since Kephart did not take any action until after the contract was negotiated, executed, and ratified, the contract under Deklewa [17] principles was binding and enforceable on Kephart.

Members Stephens and Cohen would effectively overrule the principles underlying Kephart, supra, and allow the employer to repudiate the contract after retification since it never recommitted to the union that it would be bound by the 1980 multiemployer negotiations. such a result would, in my opinion, substantially undermine the stability of multiemployer bargaining in the construction industry because any employer, although historically a member of an association, could, by remaining silent throughout the association negotiations, choose at any point during or after the negotiations simply to walk away if the deal being struck was not to its liking. surely such a scheme was not contemplated by the Board in Deklewa, supra, when it stressed that multiemployer associations and multiemployer bargaining remained appropriate in the construction industry.

To strike a proper balance between an individual employer’s Deklewa rights and the promotion of stability of multiemployer bargaining in the construction industry, I would require an affirmative expression from the association to the union at the beginning of negotiations specifying the individual employers on whose behalf it was negotiating. From that point forward, I would find that the union is entitled to rely on the association’s representation, and the individual employer is bound by the results of the multiemployer negotiations.

This scheme comports with the expectations of the parties. Absent notification to the contrary, the association can reasonably expect that it continues to represent its members in future negotiations. And once notified by the association that it represents specified employers, the union, which has also not been notified to the contrary, can reasonably assume the accuracy of the association’s representation. Nor does this scheme create an undue burden for an individual member of the association wishing to escape liability under a successor contract since it remains free to notify the association and the union prior to the beginning of negotiations that it has withdrawn from the association.

Here, at the first negotiation session on Arpil 19, 1990, the AGC submitted to the Union a list of employers for whom it had bargaining authority, and the Respondent was specifically included. Thus, I find the Respondent thereafter bound by the AGC negotiations, and I agree with my colleagues that the Respondent’s subsequent refusal to abide and honor the multiemployer contract violated section 8(a)(5) and (1) of the Act.

[Concurrence]

Member Devaney and Browning, concurring: We join our colleagues in affirming the judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to adhere to the collective-bargaining agreement executed on June 28, 1990, by the International Union of Operating Engineers, Local 139, AFL-CIO (Local 139), the Allied Construction Employers’ Association (ACEA), and the Associated General Contractors of Greater Milwaukee (AGC). Although we join our colleagues in the result they reach, we do not agree with their conclusion that the rules set forth in Retail Associates, 120 NLRB 388 (1958), for withdrawal from multiemployer bargaining do not apply to 8(f) relationships, and thus we do not rely on their rationales for finding the violation. Instead, we find the violation for the reasons that follow.

I

The facts in this case, set forth in the plurality opinion of Members Stephens and Cohen, are not in dispute. In concluding that the Respondent violated the Act, the judge found that under retail Associates [18] the Respondent failed to timely withdraw from the multiemployer bargaining unit and was therefore bound to the contract reached in multiemployer bargaining. The judge rejected the Respondent’s contention that the Board’s decision in John deklewa & Sons [19] precluded application of Retail Associates to the parties’ 8(f) bargaining relationship.

We agree with the judge that the Retail Associates’ principles limiting withdrawal from multiemployer bargaining units apply to 8(f) bargaining relationships and that the Respondent’s withdrawal from the multiemployer unit was untimely under those principles. Retail Associates established that, absent mutual consent or unusual circumstances, a party may not withdraw from a multiemployer bargaining unit after the date set by a contract for notice of contract modification, after the agreed-upon date to begin multiemployer negotiations, or after negotiations have begun. The Retail Associates’ principles were designed to promote stability in multiemployer bargaining units, as multiemployer bargaining furthers the Act’s purpose of minimizing industrial strife.

The Retail Associates’ rule maintain the stability of multiemployer bargaining by recognizing one simple principle: that both parties are entitled to know who is being represented at the other side of the bargaining table prior to the commencement of negotiations. They insure that this is the case by recognizing the effect of each employer association. Once this authority has been designatee, the association becomes the authority to the employer association. Once this authority has been designated, the association becomes the authority’s agent, with the authority to bind the employer by its actions in bargaining with the union. Thus, only the association, and not the individual employers, can take action regarding the bargaining relationship as long as the association still has the agency authority which was delegated to it by the individual employers. The union is entitled to rely on that designation of authority unless and until the employer takes an affirmative action to withdraw it, by notifying both the association and the union that it is doing so. Retail Associates, supra, holds that this withdrawal of agency authority is timely only if the employer notifies the union prior to the agreed-upon date to begin negotiations, or, at the very latest, prior to the start of the multiemployer negotiations.

The value of multiemployer bargaining has long been recognized. In approving the Taft-Hartley amendments, Congress rejected proposals that would have prohibited or restricted multiemployer bargaining. The minority report of the House Education and Labor Committee, expressing the view that ultimately prevailed, stated of proposals to limit multiemployer bargaining that “provision[s] more inconsistent with the policy ... to minimize industrial strife and to encourage peaceful settlement of labor disputes, could scarcely be imagined.” [20] “[I]mpairment of industry-wide bargaining... would upset existing collective-bargaining practices which have proved succcessful in many industries and made important contributions to industries and made important contributions to industrial peace,” according to the report, because “industry-wide bargaining has made a valuable contribution to the promotion and maintenance of fair standards in wages, hours, and working conditions, to the benefit not only of ... the wage earners of this country but also the prosperity of the employers in the industry.” [21] The report further declared: “The weakening of industry-wide bargaining would also harm rather than serve the cause of industrial peace because ... [p]arties to such negotiations would [then] naturally await the results between other employers and employees before coming to terms on such important matters as wages, hours, and working conditions.” [22] Similar sentiments were expressed by the Senate Committee on Labor and Public Welfare minority report, which likewise reflected the prevailing position. Significantly, that report noted that multiemployer bargaining had particular advantages in “such industries as longshoring and building construction--where workers change employers from day to day or week to week.” [23]

Congress’s endorsement of multiemployer bargaining has been recognized by the Supreme Court. In NLRB v. Truck Drivers Local 449 (Buffalo Linen), [24] the Court observed:

Multi-employer bargaining long antedated the Wagner Act, both in industries like the garment industry, characterized by numerous employers of small work forces, and in industries like longshoring and building construction, where workers change employers from day to day or week to week.

. . .

At the time of the debates on the Taft-Hartley amendments, proposals were made to limit or outlaw multi-employer bargaining. These proposals failed of enactment.... They were met with a storm of protest that their adoption would tend to weaken and not strengthen the process of collective bargaining and would conflict with the national labor policy of promoting industrial peace through effective collective bargaining.

. . .

The debates over the proposals demonstrate that Congress refused to interfere with such bargaining because there was cogent evidence that in many industries the multi-employer bargaining basis was a vital factor in the effectuation of the national policy of promoting labor peace through strengthened collective bargaining. [25]

Returning to this theme in Charles D. Bonanno Linen Service v. NLRB, [26] the Court enumerated the benefits of multiemployer bargaining:

As the Court of Appeals explained in this case: “Multiemployer bargaining offers advantages to both management and labor. It enables smaller employers to bargain ‘on an equal basis with a large union’ and avoid ‘the competitive disadvantages resulting from nonuniform contractual terms.’ ... At the same time, it facilitates the development of industry-wide, worker benefit programs that employers otherwise might be unable to provide. More generally, multiemployer bargaining encourages both sides to adopt a flexible attitude during negotiations; as the Board explains, employers can make concessions ‘without fear that other employers will refuse to make similar concessions to achieve a competitive advantage,’ and a union can act similarly ‘without fear that the employees will be dissatisfied at not receiving the same benefits which the union might win from other employers.’ ... Finally, by permitting the union and employers to concentrate their bargaining resources on the negotiation of a single contract, multiemployer bargaining enhances the efficiency and effectiveness of the collective bargaining process and thereby reduces industrial strife.” [27]

Recognizing these advantages of multiemployer bargaining, the Court in Bonanno Linen Service, supra, upheld the Board’s Retail Associates’ rules, which, as the Court noted, emphasized maintaining stability of multiemployer units. In particular, the Court, like the Board, rejected an impasse in bargaining as an unusual circumstance warranting an exception to the rules’ general prohibition on withdrawal from multiemployer bargaining once negotiations have begun. The Court accepted the Board’s view that permitting withdrawal at impasse would undermine the utility of multiemployer bargaining; the Court found that if withdrawal were permitted at impasse, the parties would bargain under the threat of withdrawl by any party not completely satisfied with the results. Such a threat, of course, would undercut the parties’ ability, gained through multiemployer bargaining, to grant concessions without being put at a competitive disadvantage--an ability that greatly facilitated the reaching of agreements.

In the present case, the same reasons that the Court found in Bonanno Linen Service, supra, to militate against allowing withdrawal from multiemployer bargaining after impasse is reached weigh all the more against allowing totally unrestricted withdrawal from multiemployer bargaining in much of the construction industry. This, however, will be the natural result of finding Retail Associates inapplicable to 8(f) bargaining relationships, as our colleagues do today.

Such a finding is not required by the Board’s decision in Deklewa, supra, 120 NLRB 388. Deklewa does not make Retail Associates’ limitations on withdrawal from multiemployer bargaining units inapplicable to 8(f) relationships, and the two cases, indeed, concern totally different concepts. Retail Associates deals with multiemployer bargaining units. To maintain the stability of such units, Retail Associates restricts the times at which a party to a multiemployer bargining unit may withdraw from the unit and bargain on an individual basis. Deklewa, on the other hand, addresses the bargaining obligations of an employer and a union in an 8(f) relationship. [28] Deklewa holds that, on expiration of an 8(f) agreement, an employer is not obligated to negotiate a successor agreement but, rather, may withdraw recognition from the union as the representative of the employer’s employees.

In applying Deklewa to multiemployeer bargaining, it must be recognized that in multiemployer bargaining the employer association assumes the role of the employer in the relationship with the union. It is beyond dispute that

[o]nce the unit is formed, the multi-employer group becomes the employer for purposes of bargaining.... The bargaining obligations of the “multi-employer” are substantially the same as for any employer. [29]

Moreover, in multiemployer bargaining, the actions of the employer association are binding on the represented employers. [30] Therefore, although an employer has a right under Deklewa to withdraw recognition from a union on expiration of an 8(f) agreement, it does not follow that an employer in a multiemployer bargaining relationship may exercise that right individually. Rather, in an 8(f) context, the employer association may exercise the right granted employers under Deklewa to withdraw recognition from the union on expiration of the agreement. It is not the province of the represented employers to do so individually.

Any employer that has timely withdrawn from multiemployer bargaining may, of course, individually elect to withdraw recognition from the union on expiration of the 8(f) agreement. See, e.g., Garman Construction Co. [31] Such individual action, however, is predicated on the employer’s timely prior withdrawl from multiemployer bargaining. As long as the employer remains in the multiemployer unit, it is bound by the actions of its representatives.

The absence of a Section 9 bargaining relationship compels no different result. Although the employer, or, in the multiemployer context, the employer association, is not required to continue recognition of the union beyond contract expiration, it is certainly not barred from doing so. As long as the parties continue their relationship, the Retail Associates’ rules limiting withdrawal from multiemployer bargaining should apply, because they seek to effectuate the statutory objectives of maintaining bargaining stability and avoiding industrial strife. Indeed, the rules do more to provide bargaining stability in the 8(f) context, where not only withdrawal from multiemployer bargaining units but also total withdrawal of union recognition is possible. Thus, the Retail Associates’ rules permit employers represented by the employer association to negotiate successor 8(f) agreements without fear that some of the members will seek to gain competitive advantage by withdrawing recognition from the union. [32]

II

Members Stephens and Cohen state that in cases where an employer was part of a multiemployer unit, they are unwilling to bind the employer to multiemployer bargaining for a successor contract in the 8(f) setting based on what they term “mere inaction.” We disagree with their premise that an employer’s delegation of the bargaining rights to a multiemployer association constitutes “mere inaction.” Absent some time limitation in the authorization signed by the employer, the designation of the multiemployer association as the employer’s bargaining agent continues until the employer acts to withdraw the agency authority. To recognize this principle is to do more than respect a “fundamental polic[y]” of the Act, “freedom on contract.” See H. K. Porter Co. v. NLRB, [62 LC ¶10,696] 397 U.S. 99, 108 (1970).

Members Stephens and Cohen refer to an 8(f) employer’s “right” to withdraw recognition from the union or contract expiration. They assert that the employer must engage in a “distinct affirmative act” in order to clearly and unmistakably waive that “right.” They are thus analogizing the “right” of an 8(f) employer to withdraw recognition to rights which are exlicitly protected by the statute, which cannot be waived without some “clear and unmistakable” manifestation. Cf. Metropolitan Edison Co. v. NLRB, [96 LC ¶14,142] 460 U.S. 693 (1983). We do not necessarily agree that this is a sound analogy, but assuming arguendo that it is, its application in this context is flawed because it fails to recognize the import of the employer’s designation of bargaining authority to the multiemployer association. Once that authority has been delegated, the association becomes the employer’s agent and the employer is bound by the association’s actions. It is therefore the association, not the employer, which is the repository of this “right” to withdraw recognition from the union, unless and until the employer timely withdraws its agency authority. Because Retail Associates prescribes the rules for timely withdrawal of that authority, unless the employer has withdrawn within the time frame set forth in Retail Associates, only the association, and not the employer, can lawfully withdraw from the bargaining relationship after contract expiration.

The position of Members Stephens and Cohen also intrudes deeply into the internal affairs of the multiemployer associations. They would rewrite and, in effect, extinguish the contractual agency relationship between the multiemployer association and its member employers at the end of each contract with the union. The association would have to reform at the end of each collective-bargaining agreement, notwithstanding the contrary arrangement contracted for by the association and its members.

Absent “a distinct affirmative action,” Members Stephens and Cohen would allow employers part of a multiemployer unit to withdraw at any time prior to the multiemployer association’s reaching a new agreement with the union. Their rule would have a serious destabilizing effect on multiemployer bargaining in the 8(f) setting contrary to the congressional intent discussed above.

Chairman Gould also requires an affirmative showing of commitment to bargaining for a successor contract, and therefore his concurrence suffers from the same flaws as the plurality opinion. In addition, his concurrence appears to have a serious internal inconsistency of its own. On the one hand, he claims that the Retail Associates’ rule is “inapplicable to multiemployer bargaining in the construction industry.” (Emphasis added.). On the other hand, he would release an individual employer from the multiemployer unit if it “notif[ies] the association and the union prior to the beginning of negotiations that it has withdrawn from the association,” which is precisely what an employer must do if the Retail Associates’ rule is applicable “to multiemployer bargaining in the construction industry.”

The practical effect of today’s decision, by combining Chairman Gould’s concurrence with ours, is that any employer named on the list given by the multiemployer association to the union at the commencement of negotiations for a successor agreement is bound to any ensuring contract. [33] Chairman Gould’s concurrence does not address the situations where the multiemployer association mistakenly lists the name of an employer that submitted its resignation to the association, or mistakenly omits the name of an employer that has not withdrawn its bargaining rights from the association. Our position would include in the unit any employer that has not notified the union, prior to the communcement of negotiations, of its withdrawal from the multiemployer association. [34]

III.

Turning to the facts of this case, it is undisputed that the Respondent, for many years prior to the 1990 negotiations, had designated the AGC as its agent for the purpose of negotiating collective bargaining agreements with Local 139. At no time prior to the negotiations, which commenced on April 19, 1990, did the Respondent, or any other party, notify Local 139 that the Respondent had withdrawn that authority from the AGC to bargain on its behalf. Indeed, both the AGC and the Respondent acted, at all relevant times, as though the Respondent remained a participant in the multiemployer unit. Under the principles of Retail Associates, therefore, we conclude, in agreement with the judge, that the Respondent’s attempt to withdraw from the multiemployer unit and to repudiate its 8(f) bargaining relationship with Local 139 after negotiations communced was untimely. As we have set forth above, we believe that although, pursuant to Deklewa, an employer is entitled to withdraw from a bargaining relationship after the expiration of an 8(f) contract, the Respondent, having delegated its bargaining authority to the AGC, no longer was entitled to withdraw individually from the bargaining relationship absent timely withdrawal from the multiemployer unit. Local 139 was entitled to rely on the Respondent’s prior designation of the AGC as its bargaining agent, because it had received no timely notice of the withdrawal of that agency authority. Because, under the principles of Retail Associates, the Respondent had not effected such a timely withdrawal from the multiemployer unit, we find the Respondent’s failure to abide by and honor the collective-bargaining agreement reached during the 1990 multimemployer negogiations violated Section 8(a)(5) and (1) of the Act.