This article was published in the December 2001/January 2002 Issue of the Indiana Constructor.

Independent Union Signatories:
Endangered Species?

In 1999, Local 282 and the GCA negotiated a new agreement and, as was customary, Local 282 then sent the agreement to independent signatories such as Clemente for signature. Clemente did not sign the agreement, but told the Union it wanted to negotiate some modifications to it.

A bargaining session was held at which Clemente presented its two proposed modifications. Local 282's representative at the meeting stated that he did not have authority on behalf of Local 282 to agree to the proposed modifications, or indeed any modifications, to the GCA agreement. Among the reasons given by the Local 282 representative was that the GCA agreement contained a so-called "most favored nations" clause that Local 282 believed would obligate the Union to extend such different terms to all signatories to the GCA agreement. The Union representative stated that Clemente's goal of achieving more favorable terms "would never happen."

The parties agreed to meet a second time, but before the second meeting was held, Local 282 called for a strike against Clemente and commenced picketing at all Clemente job sites. After three days of the picketing, Clemente signed the GCA agreement and the picketing stopped. Clemente later filed an unfair labor practice charge against Local 282.

Board Decision
Following an investigation, the General Counsel of the Board issued a complaint against Local 282 alleging that the Union had violated the National Labor Relations Act ("Act") in two respects - bargaining in bad faith by striking while the parties were in the midst of negotiations, violating Section 8(b)(3), and coercing Clemente to, in effect, designate the GCA as Clemente's agent for bargaining, violating Section 8(b)(1)(B). The Administrative Law Judge ("ALJ") agreed with the General Counsel and found that Local 282 had violated the Act in both respects. Upon review, however, the Board disagreed. The Board's decision was unanimous.

The Board found that it was not bad faith bargaining for the Union to strike and picket Clemente after the single bargaining session despite the Union's apparently inflexible position akin to "take it or leave it." The Board found that the Union did not unlawfully coerce Clemente to select the GCA as its bargaining representative by insisting that Clemente sign the GCA agreement.

Bad Faith Bargaining
The first substantive question addressed by the Board in its decision was whether Local 282 had bargained in bad faith by engaging in a strike against Clemente in the midst of bargaining. The only issue this particular question presented, according to the Board, was whether a strike engaged in to compel Clemente to agree to the Union's proposal amounted to bargaining in bad faith.

Clemente argued that the Union's strike was an unfair labor practice because the Union had made up its mind before negotiations ever began that it would accept nothing less than Clemente's acceptance of the same agreement already negotiated with the GCA. The Board did not rule on the question of whether the Union's apparently inflexible "take it or leave it" position amounted to bargaining in bad faith. The Board held that that issue was not raised by the complaint. Curiously, the General Counsel had not even alleged that specific theory of violation. The General Counsel limited the allegations of bargaining in bad faith to the fact that the Union had struck and picketed while negotiations were still underway.

The Board found that the only issue presented was whether a strike during negotiations was an unfair labor practice. On that narrow basis, the Board found that Local 282 had not bargained in bad faith.

Coercion to Select GCA as Bargaining Representative
The General Counsel and Clemente argued Local 282's insistence that Clemente sign an agreement identical to the GCA agreement was the same as insisting that Clemente accept the GCA as its bargaining representative because insisting that Clemente sign that agreement required Clemente to accept the agreement that the GCA had negotiated. In other words, by forcing Clemente to accept and sign an Agreement negotiated by the Association, did Local 282, in effect, force Clemente to be represented by the Association? The ALJ said "yes" and cited prior Board decisions to support the conclusion.

The Board disagreed and overruled the prior conflicting decisions. The Board drew a distinction between bargaining for, and striking to support, a proposal that an employer sign an existing agreement, and bargaining and to try to force the employer to select the GCA for future collective bargaining negotiations. The Board held that as long as Local 282 did not insist that Clemente sign an agreement that would require Clemente to select the GCA as its representative for future negotiations, the Union had not committed an unfair labor practice. The Board held that merely insisting that Clemente sign an existing agreement that had been negotiated by the GCA was not a violation of the Act.

Discussion

• 8(f) or (9a)?
  A curious omission from both the Board's and ALJ's decision was whether Clemente's relationship with Local 282 was an 8(f) or a 9(a) relationship. If it was an 8(f) relationship, the "bargaining in bad faith" question should not have come up since Local 282 and Clemente would not have owed to each other a mutual duty to bargain in good faith over the terms of a new agreement. From the analysis, it appears that the Board assumed, without stating, that the relationship was based on Section 9(a) recognition of the Union by Clemente.
  
  
• Room to Bargain?
  Additionally, even though the Board stated that the issue of the Union's insistence upon Clemente signing the same terms negotiated by the GCA was not presented as a theory of "bargaining in bad faith," the Board still cited, and quoted, the United States Supreme Court's decision in the case of Mineworkers v. Pennington, 381 U.S. 657 (1945) for the proposition:

  … that a union may make wage agreements with a multi-employer bargaining unit and may in pursuance of its own union interests seek to obtain the same terms from other employers. [381 U.S. at 665]

As discussed, in Local 282, the Board did not decide officially that it is lawful for a union to approach negotiations with a "closed mind," intending to force an independent union signatory to agree to the terms of an existing agreement with the multi-employer association without deviating one iota from it. However, the Board's citation to Pennington certainly creates some confusion on that point.

Generally speaking, both employers and unions who are in Section 9(a) relationships have a duty to approach negotiations with an open mind and to meet and confer in good faith in an attempt to reach agreement on the terms of a collective bargaining agreement. Employers have been found guilty of not bargaining in good faith by approaching negotiations with a predetermined "take it or leave it" position-even one held in good faith. Such an approach on the part of employers has been given a name, Boulwarism, after the name of the General Electric executive who was found to have practiced the tactic. There is no logical reason why unions who approach negotiations with a similar predetermined "take it or leave it" approach should not be guilty of bargaining in bad faith as well.

Conclusion
The result in Local 282 may be nothing more than a consequence of the way the complaint was drafted by the General Counsel's office. Nonetheless, unions and union attorneys will no doubt cite the Local 282 case for the proposition that it is lawful for a union to seek to compel an independent union signatory to sign an association-negotiated agreement in toto. Independent union signatories must, therefore, be vigilant. If independent union signatories wish to negotiate for some different provisions, they need to approach the negotiations carefully, planning somehow to force the union to disclose its objectives. They must also be prepared to file an unfair labor practice charge against a union that demonstrates that its objective is to require the company to enter into an agreement identical to one previously negotiated without any intention of even considering any alternatives or variations.

Independent union signatories that are not aware of the Local 282 case and the narrow basis of the decision may fail to protect their independence. It remains a complex world - be advised.