Bennett Stone Co.

National Labor Relations Board - Board Decisions

Nov 29, 1962

139 N.L.R.B. 1422 (N.L.R.B. 1962)

1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Francis L . Bennett and Harold J . Bennett, partners, d/b/a
Bennett Stone Company and International Hod Carriers;
Building and Common Laborers ' Union of America, AFL-
CIO, and Dimensional Stone Quarry Workers, Local 909, a/w
International Hod Carriers ; Building and Common Laborers'
Union of America , AFL-CIO
McNeeley Stone Company, Inc. and/or McNeeley Quarries, Inc.
and International Hod Carriers ; Building and Common La-
borers ' Union of America , AFL-CIO, and Dimensional Stone
Quarry Workers , Locals 909 and 926 , a/w International Hod
Carriers ; Building and Common Laborers ' Union of America,
AFL-CIO
Mid-West Quarries Co., Inc. and International Hod Carriers;
Building and Common Laborers ' Union of America, AFL-
CIO, and Dimensional Stone Quarry Workers , Locals 909 and
926, a/w International Hod Carriers ; Building and Common
Laborers' Union of America , AFL-CIO. Cases Nos. 05-RC-
92152, 925-RC-2155, and 25-RC-92156. November 29, 1962
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of the National
Labor Relations Act, separate and consolidated hearings were held
before John W. Hines, hearing officer. The hearing officer's rulings
made at the hearings are free from prejudicial error and are hereby
affirmed. As these cases are related, involving the same unions and
issues, the cases are hereby consolidated for the purpose of decision.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
1. The Employers are engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employers.'
1 Local 599 , International Association of Machinists , AFL-CIO, herein called the
Machinists , and Local 1059, International Brotherhood of Boilermakers , Iron Ship
Builders , Blacksmiths , Forgers, and Helpers, AFL-CIO, herein called the Blacksmiths,
intervened in the consolidated cases (25-RC-2155 and 25-RC-2156) for the limited pur-
pose of protecting contracts covering employees they represent They do not wish to
appear on any ballot, involving only quarry employees Also, International Association of
Marble, Slate and Stone Polishers Rubbers and Sawyers, Tile and Marble Setters' Helpers
and Marble Mosaic and Terrazzo Workers' Helpers, AFL-CIO, intervened in all cases
and requested to be placed on the ballot in any election directed However, subsequent to
the hearing , it requested permission to withdraw for all purposes from the present cases.
Its request is hereby granted. By motions filed October 1, 1962, the United Stone and
Allied Products Workers of America, AFL-CIO, moved to intervene in the cases involved
in this proceeding . However , it failed to submit timely showings of interest . Its motions
are, therefore , denied.
139 NLRB No. 123.
BENNETT STONE COMPANY 1423
3. The Petitioner filed the instant petitions on January 16, 1962,
seeking to represent separate units of quarry employees at each Em-
ployer's operations. The Employers urge as a bar the separate con-
tracts entered into in July 1960 with Federal Labor Union No. 21469
for a 3-year term, expiring in July 1963, and covering the requested
employees. The Petitioner maintains, however, that Union No. 21469
is defunct, that it is the successor to such union, and in effect that under
these circumstances an election should be directed in order to assure
the requested employees an opportunity to continue being represented
by a labor organization.
We find, for reasons urged by the Petitioner, that the separate con-
tracts are no bar. The record shows that in June 1961 the members
of Federal Labor Union No. 21469 voted to retire the charter of No.
21469, to terminate the Union's direct affiliation with the AFL-CIO,
and to affiliate with the Petitioner. Pursuant to this vote, the charter
of Union No. 21469 was returned to the AFL-CIO and canceled. The
officers of Union No. 21469 became officers, holding the same offices
of the Petitioner, and substantially all members of Union No. 21469
became members of the Petitioner. On June 8, 1961, all books and
other property of Union No. 21469 were transferred to the custody
and control of the Petitioner, and on July 3, 1961, the Petitioner filed
an application for charter membership in International Hod Carriers'
Building and Common Laborers' Union of America, which charter
was issued on July 12, 1961. It also appears that at the time of the
hearing no one was authorized to administer on behalf of Union No.
21469 the June 1960 contracts raised here as a bar to this proceeding
and, although that Union was served with official notice of the hearing,
no one appeared in its behalf.
In these circumstances we find that Union No. 21469 has become
defunct. Accordingly, we further find that its separate contracts
with the Employers involved herein do not constitute bars to this
proceeding a
4. The Petitioner would represent in separate, single employer units
all quarry employees of the several Employers, excluding from each
unit employees presently represented by other labor organizations,
office clerical employees, professional employees, guards, foremen, and
supervisors as defined in the Act. The Employers contend that the
proposed units are inappropriate in both scope and composition.
First, the Employers argue that they are a part of a multiemployer
unit represented by the Indiana Limestone Industry Industrial Rela-
tions Committee (herein called Committee) and that only a unit
2 Gulf Oil Corporation , 137 NLRB 544; Pepsti Cola Bottling Company of Chattanooga,
Inc., 132 NLRB 1441; W. H Nicholson and Company , 119 NLRB 1412 . We need not
-consider the successorship argument raised by the Petitioner for whether or not it is a
successor of union No . 21469 the contracts are clearly no bar to an election . See, The
Zia Company, 108 NLRB 1134, footnote 1.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coextensive with the multiemployer group is appropriate. They point
out that for a number of years they, together with some 20 other
companies, have designated the Committee as their agent for bargain-
ing with the Federated Council, a union group including Union No.
21471 and the intervening unions; and further that they have executed
the agreements negotiated by the Committee and Counsel. However,
that the Employers may have engaged with other companies in joint
bargaining through a. common agent does not necessarily establish
a multiemployer unit. Under established Board rules, such unit is
held to exist only where the evidence establishes that the several em-
ployers expressly conferred upon their joint bargaining agent the
power to bind them by its negotiations or that the employers have by
an established course of conduct unequivocally manifested a desire
to be bound in future collective bargaining by group rather than
individual action.3
In a recent unfair labor practice proceeding,4 the Board had occa-
sion to pass upon the character of the bargaining in effect between
the Committee and the Council. In its decision the Board observed
that throughout the long history of bargaining between the Committee
and the Council neither had, except on two occasions,5 the authority to
bind members to a collective agreement. Rather the pattern has been
for the two organizations to agree on terms, after which their members
are polled to secure approval, followed by the signing of individual
contracts between the separate companies and unions approving the
terms. And in 1960, though consideration was given to creating a
more binding arrangement between the Committee and Council
nothing was done in this regard, each merely having the authority to
represent but not commit its members. Further, the Board pointed
out in its decision that although the individual unions and companies
usually signed the jointly negotiated agreements there had been a
number of instances in which one or the other had refused to do so
and, especially since 1954, many instances in which both unions and
companies had withdrawn during the course of negotiations. In con-
3 Compare, for example, Chicago Metropolitan Home Builders Association, 119 NLRB
1184, where the Board stated: "An essential basis for any finding that a multiemployer
unit is appropriate is that the individual employers unequivocally manifest a desire to
be bound in future collective bargaining by group rather than individual action " See
also, Northern Nevada Chapter, National Electrical Contractors Association and Repre-
sented Employers, 131 NLRB 550; American Publishing Corp , at at, 121 NLRB 115;
Charles H. Harper and Frank Harper, Agents; The Baltimore Towage it Lighterage Com-
pany, et at., 117 NLRB 1031 ; York Transfer it Storage Co., 107 NLRB 139; and Pacific
Metals Company, Ltd, et at, 91 NLRB 696. Compare also Anderson Lithographic Com-
pany Inc, at at, 124 NLRB 920, where the Board stated that ". to permit an in-
dividual member-employer to qualify or reject an agreement made by the multiemployer
group . . . would render the general and widely recognized practice of multiemployer
bargaining virtually useless."
* Indiana Limestone Company, Inc, 136 NLRB 697.
In 1955 and 1957, the Committee was given the power to bind its members by its
negotiations
BENNETT STONE COMPANY 1425
elusion the Board found on the record before it that the Respondent
Employer was not required to sign the agreement negotiated in 1960
because, in its view the Committee and Council `'had negotiated with
the understanding that each company . . . had retained the right
to withdraw from group bargaining at any time and to approve or
reject any agreement reached." 6 The evidence in the record now
before us concerning the 1960 bargaining situation is fully consistent
with the foregoing finding made in the Indiana Limestone decision,
and we regard that finding as to the nature of such bargaining con-
trolling here. Consequently, though most of the companies including
the present Employers did sign the jointly negotiated 1960 agreement,
we find that they did not thereby constitute a multiemployer unit con-
sisting of such signatories. In the light of the past bargaining prac-
tices affecting these employers and the 1960 bargaining situation, as
fully described in the cited case and present record, we are satisfied
that such group bargaining as took place was for the convenience of
the employers and unions involved and was not undertaken with the
intention of establishing a multiemployer unit. Accordingly, we
find that the proposed units are not inappropriate because they are
limited to employees at each Employer's operations.
Second, the Employers contend that the requested units being lim-
ited to quarry employees are not proper and that only units includ-
ing all mill as well as quarry workers are appropriate. However,
the Employers have for more than 10 years recognized Union No.
21469 as the representative of units of quarry workers such as Peti-
tioner now seeks, while the intervening unions have been recognized
as representatives of various other units of their employees.' Further,
the 1960-63 contracts between the Employers and these unions all
reflect a continuation of these units which have been extant for some
20 years in the Indiana limestone industry here involved.' The
Employers do not argue that the existing units fail to comprise readily
identifiable groups of employees.' They contend, instead, that the
"i nilticraft" bargaining of the several unions through their Council
shows, and is, in fact, an admission on their part, that separate units
do not best serve their members' interest and are, therefore, inap-
propiate. We find no merit in the argument. The fact that several
unions may choose to cooperate in bargaining for convenience, as we
have heretofore found, is not evidence that established separate units
are inappropriate.
'Indiana Limestone, supra
7 Bennett Stone Company, unlike the other Employers , signed contracts in 1960 with
only the Blacksmiths and the 111illworkers in addition to its contract with Union No 21469
8 See, Monon. Stone Company , 10 NLRB 64.
9 The Employers do contend that certain similarity in work and some interchange of
employees between the quarries and mills render the requested units inappropriate. We
disagree - for it is evident from the record that the mills and quarries are separate opera-
tions and that the interchange of employees is not substantial.
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consequently, as the record shows that the requested quarry workers
are engaged in work, basically dissimilar, and at locations separate,
from the mill employees and in view of the existence over a long
period of separate units limited to quarry workers, we find that the
requested units are appropriate.io
In view of the foregoing, we find that the following employees of
Bennett Stone Company, Bloomington, Indiana, McNeeley Quarries,
Inc., Ellettsville, Indiana, and Mid-West Quarries Co., Inc., Bloom-
ington, Indiana, constitute separate appropriate units for purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act : All employees of each employer engaged in and about its quarry,
excluding office clerical employees, foremen, professional employees,
all employees represented by other labor organizations, guards, and
supervisors as defined in the Act."
[Text of Direction of Elections omitted from publication.]
io See, Monon Stone Company, supra.
n In Case No. 25-RC-2152 the Petitioner requests that employees "who have been," as
well as those who are, represented by other unions be excluded from its proposed unit.
We have not included such language in the unit description because past representation
of employees in some other unit does not warrant their exclusion at this time from the
requested unit if they otherwise come within its coverage. Also in Case No. 25-RC-2152,
the supervisory status of the quarry foreman and head hooker was questioned. As for
the quarry foreman , the record shows he is responsible for the quarry operations and
for the work of the employees there employed . Accordingly , we find he its a supervisor.
However, there is no evidence showing that the head hooker has authority to hire, dis-
charge, discipline , or responsibly direct the work of, employees or to make effective recom-
mendations affecting the status of employees. Accordingly , we find the head hooker is not
a supervisor.
Local Union 825, International Union of Operating Engineers,
AFL-CIO and Schwerman Co. of Pa., Inc. Case No. f292-CD-54.
November 29, 1962
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10 (k) of the Act following
a charge filed by Schwerman Co. of Pa., Inc., herein called Schwer-
man, alleging a violation of Section 8(b) (4) (D) by Local Union 825,
International Union of Operating Engineers, AFL-CIO, herein
called Respondent or Operating Engineers. Pursuant to notice a
regularly scheduled hearing was held on July 24, 25, 26, 28, 31, and
on August 1, 2, 7, and 8, 1961, before Alvin Lieberman hearing officer.
All parties appeared at the hearing and were afforded full opportu-
nity to be heard, to examine and cross-examine witnesses, and to adduce
evidence bearing on the issues. The rulings of the hearing officer made
at the hearing are free from prejudicial error and are hereby affirmed.
Thereafter, briefs were filed by Schwerman, Operating Engineers,
139 NLRB No. 124.