Bloom & Meyer Construction Co.

National Labor Relations Board - Board Decisions

Jun 22, 1977

230 N.L.R.B. 370 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bloom & Meyer Construction Company and George
Lewis, Petitioner and Local 876, International
Brotherhood of Electrical Workers, AFL-CIO.
Case 7-RD-1367
June 22, 1977
DECISION ON REVIEW AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On November 18, 1976, the Regional Director for
Region 7 issued his Decision and Direction of
Election in the above-entitled proceeding, in which
he found that the petitioned-for unit was appropriate,
notwithstanding the current multiemployer collec-
tive-bargaining agreement between the Union and
the American Line Builders Chapter, National
Electrical Contractors Association (hereinafter re-
ferred to as the Association), of which the Employer
was a member, because the Union acquiesced in the
Employer's untimely withdrawal from that collec-
tive-bargaining agreement. Thereafter, in accordance
with Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Union filed a timely request for review of the
Regional Director's decision on the grounds, inter
alia, that, in finding that the Union had acquiesced
in the Employer's untimely withdrawal from the
Association contract, he departed from officially
reported precedent.
By telegraphic order dated December 20, 1976, the
Board granted the Union's request for review and the
election was stayed pending decision on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and
makes the following findings:
The Employer is engaged in underground construc-
tion work and maintenance of public utilities. The
Petitioner seeks an election among the Employer's
construction employees. The Union argues that this
unit is inappropriate because the Employer's employ-
ees are part of a larger unit covered by the Union's
I The Employer did not file a request for review herein. Therefore, the
issue of the timeliness of the Employer's withdrawal is not before us, and we
consider it unwise to raise the issue sua sponte as urged by our colleague. The
failure of the Employer to request review on this issue deprived the Union of
notice that the issue might be considered by the Board and of an
opportunity to offer its arguments on this issue; while the issue of timeliness
and that of acquiescence in untimely withdrawal are somewhat related, as
they both relate to contract bar, they are separate issues as to which quite
different principles apply. Further, if the Board were to make a practice of
reviewing issues as to which review has not been requested, we might
unwittingly find ourselves creating an inference that the Board agrees with
230 NLRB No. 44
contract with the Association. The Employer con-
tended at the hearing that it timely withdrew from
the Association contract or, in the alternative, that
even if its withdrawal were untimely, the Union
acquiesced in its withdrawal.'
The Employer has been represented by the Associ-
ation in collective bargaining with the Union since
1971. In 1971 and 1972, the Employer signed
"Letters of Assent" which authorized the Association
to bargain for it and bound it to the Association
contract then in effect, with a requirement that notice
of intent to withdraw be given 30 days prior to the
notification date in the contract. In 1973, the
Employer signed a letter of assent which authorized
the Association to bargain for it, bound it to the
Association contract, and required notice of intent to
withdraw 150 days before the "anniversary date" of
the then current Association agreement. In 1974,
1975, and 1976, the Employer did not sign letters of
assent, but its president participated in bargaining
and the Employer adhered to the terms of the
Association contracts negotiated during those years,
including the last contract which ran from May 31,
1976, to November 28, 1976.
On August 9, 1976,2 the Union notified the
Association of its desire to reopen the current
collective-bargaining agreement and included a list
of 10 desired changes.
On August 24, the Employer notified the Associa-
tion and the Union of its desire to withdraw from the
Association and to engage in individual bargaining
with the Union. On August 27, the Association
replied in two separate letters: one acknowledging
the Employer's resignation from the Association; the
other informing the Employer that its notice to
cancel its letter of assent was untimely because the
letter of assent required 150 days' notice. In response,
the Employer's attorney notified the Association and
Union by letter that the Employer did not consider
itself bound to the "next" agreement and contended
that the letter of assent applied only to the 1973
Association contract.
At the Union's request, in mid-September3 the
Union's business manager and the Employer's
principal owners met for several hours at the
Employer's offices. The Employer indicated that it
wished to engage in individual bargaining, and that
all findings at the regional level unless such findings are reversed, even
though the Board may have considered only the issues as to which review
was requested in later cases. The rule cited by our colleague has never been
interpreted to require that the Board review every issue decided by the
Regional Director, whether contested by the parties or not.
2 Except as otherwise indicated, all dates are in 1976.
3 Although the Association mailed its counterproposals to the Union on
August 31, it appears from the record that face-to-face negotiations had not
yet commenced, but were held on October 5, when new contract terms were
agreed on.
370
BLOOM & MEYER CONSTRUCTION CO.
the source of its dissatisfaction with multiemployer
bargaining was the job referral system. The Union's
business manager responded that a separate contract
was possible but would not be of any advantage to
the Employer because the Union could not give the
Employer terms which did not also apply to the
Association; he also indicated that the Union would
work with the Employer as it had in the past.4 The
Employer's president asked that the Union negotiate
with the Employer first, then give the Employer any
additional terms which were negotiated with the
Association. There were no counterproposals by the
Union; the parties did not settle on contract terms,
agree to negotiate, or agree to meet again. On
September 23, the instant petition was filed.
While, as noted previously, we accept the Regional
Director's finding that the Employer's attempted
withdrawal from the Association contract was
untimely, we do not find that the Union's actions
here demonstrate acquiescence in the Employer's
attempted withdrawal from multiemployer bargain-
ing. Rather, we conclude that the Union's actions are
not inconsistent with an attempt to retain the
Employer in the multiemployer group rather than
engage in individual bargaining. Supporting that
conclusion we note that, although the Union's
business manager admitted that a separate contract
with the Employer was "possible," at no time did he
in fact offer proposals which would differ in any way
from the terms of a multiemployer contract which he
anticipated negotiating with the Association. More-
over, the Union's statement that it would work with
the Employer regarding the desired change in the job
referral system does not indicate individual bargain-
ing.
Since the Employer's individual concerns had
previously been dealt with in the multiemployer
bargaining context, the Union's actions in trying to
achieve a peaceful reconciliation by reminding the
Employer that its concerns had been represented by
4 The record shows that the most recent contract was amended by a
letter of understanding which altered the job referral system. The Union's
business manager testified that this change was the result of the Employer's
difficulties with the system and that he was referring to this accommodation
when he stated that the Union "had worked with" and "would continue" to
work with the Employer.
5 I. C. Refrigeration Service, Inc., etc., 200 NLRB 687, 689 (1972).
6 My colleagues contend that it is unwise for this Board to examine any
findings not specifically challenged in the request for review. The
significance of this position with respect to future processing of representa-
tion cases can hardly be overestimated. Not only have my colleagues denied
what has long been Board practice, but in addition they have effectively
deleted significant portions of Sec. 102.67 of the Board's Rules and
Regulations.
The case was transferred to the Board pursuant to Sec. 102.67(c) of our
Rules. Subsec. (j) of 102.67 indicates on what basis the Board may proceed
once review has been granted. Sec. 102.6
7
(j) provides:
Upon transfer of the case to [the] Board, the Board shall proceed,
either forthwith upon the record, or after oral argument or the
the Association do not evidence that "course of
affirmative action 'clearly antithetical' to the union's
claim that the employer has not withdrawn from
multiemployer bargaining" 5 which the Board has
required in order to imply that a union has consented
to an untimely withdrawal. We therefore conclude
that, in the circumstances here, the Union did not
acquiesce in the Employer's untimely withdrawal
from multiemployer bargaining.
Accordingly, we find that the petitioned-for unit is
inappropriate as it does not conform to the existing
multiemployer bargaining unit.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
MEMBER WALTHER, dissenting:
I would reach the issue of the timeliness of the
Employer's attempted withdrawal from the Associa-
tion and find that the Employer's letters of August
24, 1976, timely notified the Union and the Associa-
tion of the Employer's desire to withdraw from
multiemployer bargaining. 6 I view Carvel, 7 relied on
by the Regional Director and cited with approval by
my colleagues, as readily distinguishable from the
instant case. In Carvel, the authorized representatives
of all parties agreed in an exchange of letters, which
occurred prior to the attempted withdrawal of the
employer therein, that the letters themselves consti-
tuted the beginning of actual negotiations. The
Board was therefore warranted in applying the
consequences of that agreement to the parties to the
contract and finding the attempted withdrawal
untimely.
In the instant case, however, the only communica-
tion between the Union and the Association prior to
the Employer's attempted withdrawal was a letter
sent by the Union on August 9, 1976. The letter
served as notice of the Union's desire to reopen the
submission of briefs, or further hearing, as it may determine, to decide
the issues referred to it or to review the decision of the regional director,
and shall direct a secret ballot of the employees, dismiss the petition,
affirm or reverse the regional director's order in whole or in part, or
make such other disposition of the matter as it deems appropriate
[Emphasis supplied.]
The majority has effectively deleted the underlined portions of this rule.
With respect to the instant case, I do not consider myself bound to review
only one aspect of the contract-bar issue-that of union acquiescence in an
untimely withdrawal-when in order to reach that issue a clearly erroneous
finding that the Employer's attempted withdrawal was untimely must be
affirmed. Our Rules and Regulations specifically permit the sua sponte
reconsideration of errors which come to our attention in the process of
considering other alleged errors. While I am not-as my colleagues imply-
contending that the Board mut review every issue decided by a Regional
Director, whether contested by the parties or not, I will not join in their
effective abrogation of a discretionary practice long exercised by this Board.
The Carvel Company and C and D Plumbing and Heating Company, 226
NLRB II I (1976).
371
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract and included a list of 10 desired changes.
The letter was sent approximately 3 weeks prior to
the deadline established in the contract for request-
ing a reopening.8 Unlike Carvel, there is no evidence
that the Association agreed that notice to reopen
would be tantamount to the commencement of
actual negotiations nor had the Association respond-
ed to the Union's demands prior to the date the
Employer gave written notice of its intent to
withdraw from the Association.
8 In my opinion, the terms of the 1973 letter of assent signed by the
Employer do not govern the timeliness of the Employer's attempted
Absent unusual circumstances such as those in
Carvel, I would not permit a union to cut off the
legitimate rights of an employer to timely withdraw
from multiemployer bargaining by merely including
a list of bargaining demands in a premature notice of
intent to reopen.
In view of the above, I would dismiss the petition
herein. i
withdrawal from multiemployer bargaining, as that letter clearly refers to
the contract then in effect.