American Consolidating Co., Inc.

National Labor Relations Board - Board Decisions

Nov 11, 1976

226 N.L.R.B. 923 (N.L.R.B. 1976)

AMERICAN CONSOLIDATING CO 923
American Consolidating Co., Inc. and Julius Berman,
Petitioner and International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of
America, Local Union No . 25.' Case 1-RD-823
November 11, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Joel F. Gar-
diner . Following the hearing and pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations and Statements of Procedure , Series
8, as amended , this case was transferred to the Na-
tional Labor Relations Board for decision . A brief
has been filed by the Union.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three -member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error . They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The labor organization involved claims to rep-
resent certain employees of the Employer.
3. No question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act, for the following reasons:
The Petitioner seeks an election to decertify the
Union as the collective-bargaining representative of
the Employer 's employees . The Union moves to dis-
miss the petition on the grounds that only a multiem-
ployer unit is appropriate and that the petition is
barred by an existing contract .' The Employer' s posi-
tion is that the appropriate unit consists of its em-
ployees, and that it is not a member of a multiem-
ployer bargaining unit.
The Employer' s president , Goldstein, admitted
that he signed the National Master Freight Agree-
ment-New England Supplemental Freight Agree-
ment , hereinafter referred to as NMFNES , binding
1 As amended at the hearing
the Employer to a multiemployer unit for the period
from March 13, 1972, through June 30, 1973. That
contract states in relevant parts:
The employees, unions, employers and associa-
tions covered under this Master Agreement and
the various Supplements thereto shall constitute
one bargaining unit... ,'
The parties agree to become a part of the multi-
employer, multi-union bargaining unit estab-
lished by this National Master Agreement, and
to be bound by the interpretations and enforce-
ment of this National Master Agreement and
Supplements thereto.
The parties further agree to participate in joint
negotiations of any modification or renewal of
this National Master Agreement and Supple-
ments thereto and to remain a part of the multi-
employer, multi-union bargaining unit set forth
in such renewed Agreement and Supplements.'
The Union introduced into evidence a NMFNES
for the period between 1973-76 which was signed on
behalf of the Employer by George Lucey, as assistant
to the president. Goldstein contended that he never
authorized Lucey to sign the agreement. The record
reveals that Lucey was assistant to the president of
Hartman Transportation Company, a trucking con-
cern which, during the relevant period, worked close-
ly with the Employer, operated out of the same
building, and had common officers. Indeed, Gold-
stein was formerly part owner and general manager
of Hartman and testified that he still may be vice
president of that company.
It is undisputed that the Teamsters negotiating
committee had concluded negotiations on a new
NMFNES to be effective April 1, 1976, through
March 30, 1979, and that the new agreement has
been ratified by a vote of employees in the multiem-
ployer unit.
It is undisputed that the Employer intended to be
bound by multiemployer bargaining at least during
the contract term ending in 1973. Furthermore, irres-
pective of whether Lucey possessed the actual au-
thority to sign the 1973-76 NMFNES, Goldstein ad-
mitted that the Employer paid the wage scale set
forth in the agreement and also paid health and wel-
fare benefits. Goldstein also admitted that he han-
dled grievances under the agreement and consulted
with Lucey with respect to grievances. Finally, it is
uncontroverted that the Employer never notified the
Union that it no longer wished to be bound to the
master agreement.
In view of the above, it is evident that the Em-
2 In view of our disposition herein, we do not reach the question of wheth- 3 Art 2, sec 4
er there is a contract bar to an election 4 Art 31
226 NLRB No. 131
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer has shown an intention to continue to be
bound by the master agreement. Accordingly, we
conclude that the Employer has committed itself to
multiemployer bargaining and, as it has not with-
drawn therefrom in timely and unequivocal fashion,
we conclude that its employees were part of the mul-
tiemployer unit.'
Therefore, in view of the foregoing, and on the
record as a whole, we find that the multiemployer
5 The John J Corbett Press Corporation, 172 NLRB 1124 (1968)
bargaining unit is the only appropriate bargaining
unit and we shall dismiss the petition as seeking an
inappropriate unit .6
ORDER
It is hereby ordered that the petition filed in Case
1-RD-823 be, and it hereby is, dismissed.
6 Although the petition described the unit "as per contract," it is clear that
the Petitioner sought to decertify the Union in a unit of the Employer's
employees