Casale Industries

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 951 (N.L.R.B. 1993)

951
311 NLRB No. 92
CASALE INDUSTRIES
1 The Sheet Metal Contractors’ Association and Sheet Metal Work-
ers’ Local 22 of New Jersey were permitted to intervene in this pro-
ceeding.
2 Those 17 employers are: Buist, Inc.; Casale Industries, Inc.; Erec-
tion Service Co.; E & R Industries, Inc.; Finan Sheet Metal, Inc.;
Industrial Climate Control Systems; International Sheet Metal &
Plate Manufacturing, Inc.; Metropolitan Panel Systems, Inc.; Paul
Miller Sheet Metal Works, Inc.; Morristown Sheet Metal Co., Inc.;
William Raugh & Son, Inc.; Raritan Mechanical, Inc.; Saxon Sheet
Metal, Inc.; Scotia Sheet Metal, Inc.; Valairco, Inc.; Westfield Sheet
Metal Works, Inc.; and Will-Rich Air Control Co., Inc.
3 Chairman Stephens and Members Cracraft and Devaney.
4 305 NLRB 287 (1991).
5 296 NLRB 1213 (1989).
6 308 NLRB 1323 (1992).
Casale Industries, Inc. and Sheet Metal Workers’
International Association, Local Union No. 28,
AFL–CIO, Petitioner.
Paul Miller Sheet Metal Works, Inc. and Sheet
Metal Workers’ International Association,
Local Union No. 28, AFL–CIO, Petitioner.
Cases 22–RC–9967 and 22–RC–9970
May 28, 1993
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On December 6, 1989, the Regional Director for Re-
gion 22 issued a Decision and Direction of Election,
in which he directed an election in a unit composed of
all sheet metal workers employed by the 17 members
of the Sheet Metal Contractors’ Association of Union,
Morris, Somerset, and Sussex Counties (the Associa-
tion),1 which had delegated to the Association the au-
thority to negotiate on their behalf.2 Thereafter, in ac-
cordance with Section 102.67(b) of the Rules and Reg-
ulations of the National Labor Relations Board, the Pe-
titioner and the Intervenor, Sheet Metal Workers Local
22 of New Jersey (Local 22), filed timely requests for
review of the Regional Director’s decision. By order
dated February 7, 1990, the Board3 granted both re-
quests for review.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
This case presents the following issues: (1) whether
the collective-bargaining agreement between the Asso-
ciation and Local 22 covering a multiemployer bar-
gaining unit was entered into pursuant to Sections 9(a)
or 8(f) of the Act; (2) whether the instant petitions,
seeking single-employer units, were filed within a rea-
sonable time after recognition was extended to Local
22 by the Association; (3) if the petitions were not
filed within a reasonable time, whether the Regional
Director properly gave Petitioner additional time to
submit a sufficient showing of interest in the multiem-
ployer bargaining unit; and (4) whether the Regional
Director properly applied the Board’s special construc-
tion industry eligibility formula.
The Board has carefully considered the entire record
in this matter, including the parties’ briefs on review,
and, for the reasons set forth below, finds that: (1) the
collective-bargaining agreement between the Associa-
tion and Local 22 was entered into pursuant to Section
9(a) of the Act; (2) the petitions seeking single-em-
ployer units were not, under Comtel Systems Tech-
nology,4 filed within a reasonable time after the Asso-
ciation extended 9(a) recognition to Local 22 and,
therefore, the petitioned-for units are not appropriate
because they are not coextensive with the recognized
multiemployer bargaining unit; (3) under Brown Trans-
port Corp.,5 the Regional Director properly afforded
the Petitioner additional time to submit the required
showing of interest in the multiemployer bargaining
unit; and (4) the Regional Director should now apply
the Board’s special construction industry eligibility
rules set forth in Steiny & Co.6
The relevant facts are undisputed. Casale Industries
is a construction industry employer engaged in the
manufacture of metal products. Paul Miller Sheet
Metal Works is a construction industry employer en-
gaged in sheet metal work. Casale and Paul Miller
have been members of the Association since its incep-
tion in 1968. Neither Employer has revoked its author-
ization designating the Association as its bargaining
agent.
The Association has been party to a series of collec-
tive-bargaining agreements with Local 22. Prior to
1982, Local 22 had been an affiliate of the Sheet
Metal Workers’ International Union (the International).
During November 1981, Local 22 disaffiliated from
the International and, thereafter, filed a petition in Case
22–RC–8690, seeking certification as the exclusive
bargaining agent for all employees employed by Asso-
ciation members. Locals 19, 27, and 28, affiliated with
the International, intervened in that proceeding. The
Board directed an election in a unit of employees em-
ployed by 13 employers in the Association. The parties
previously had agreed, however, that if the Board di-
rected an election, Local 22 would withdraw its peti-
tion and an election would be conducted by the Amer-
ican Arbitration Association. On August 19, 1982, the
parties modified their agreement to provide that the
Honest Ballot Association (HBA) would conduct an
election in a unit of employees employed by the 26
employers who were then members of the Association.
The agreement, as modified, provided that the ballot
would reflect two choices: Local 22 of New Jersey, or
Locals 19, 27, and 28 of the International (collec-
tively), and that the winner of the election would be
recognized by the employers as the collective-bargain-
ing agent ‘‘as if the election had been conducted by
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The evidence does not establish exactly how many employees
were eligible to vote, although Local 22 claims, without contradic-
tion, that virtually all eligible employees voted.
8 282 NLRB 1375 (1987).
9 The Petitioner asserts that the petitioned-for employees cannot be
bound to the multiemployer bargaining unit unless the employees at
each respective shop vote separately to select the union as their bar-
gaining representative, because an employer cannot bind its employ-
ees to representation in a multiemployer unit without the employees’
express or implied consent, citing former Member Dennis’ concur-
rence in C.I.M. Mechanical Co., 275 NLRB 685 (1985).
10 The Petitioner also argued that the ‘‘election’’ conducted by the
Honest Ballot Association was insufficient to establish a 9(a) rela-
tionship between Local 22 and the Association because: the Honest
Ballot Association election lacked Board safeguards; there was no
‘‘no union’’ choice on the ballot; and the certification was devoid
of any delineation of the appropriate unit or the participants.
11 John Deklewa & Sons, supra at 1387 fn. 41.
the NLRB itself and an appropriate certification(s)
issued.’’
The HBA sent notices of election to members and
former members of Local 22. An election was con-
ducted by the HBA on September 10, 1982, during
which the individuals were given a choice of voting
for Local 22 (unaffiliated), or Locals 19, 27, and 28
affiliated with the International. Local 22 received 315
of the 468 valid votes cast.7 The results of the election
were tabulated Association-wide; ballots were not seg-
regated by employer and there was no indication of the
tally among each member-employer’s employees. None
of the parties objected to the conduct of the election,
and the HBA certified Local 22 as the bargaining rep-
resentative for the employees employed by the Asso-
ciation members.
On September 29, 1982, Local 22 and the Associa-
tion entered into a written recognition agreement based
on the results of the election. Since then, the Associa-
tion and Local 22 have been parties to four successive
collective-bargaining agreements, the third of which
expired in August 1988. On June 3 and 6, 1988, dur-
ing the open period of the third collective-bargaining
agreement, Local 28 filed petitions seeking to represent
separate units of employees employed by Casale and
by Paul Miller. On September 1, 1988, the Association
and Local 22 executed their fourth collective-bar-
gaining agreement.
The Regional Director found that under John
Deklewa & Sons,8 Local 22 had met its burden of
demonstrating that the voluntary recognition extended
to it by the Association was based on a showing of
majority support, as evidenced by the election con-
ducted in 1982 and, therefore, the contract between the
Association and Local 22 was entered into pursuant to
Section 9(a) of the Act. The Regional Director further
found that in view of the multiemployer bargaining
history on a 9(a) basis, the appropriate unit for pur-
poses of collective bargaining was a multiemployer
unit, rather than the single-employer units sought by
the Petitioner. The Regional Director thereupon di-
rected an election in a unit consisting of the employees
of the 17 employers that had participated in negotia-
tions for the last contract.
The Petitioner contends that employees of a single
employer cannot be prevented from expressing their
representational desires simply because their employer
joined a multiemployer association. The Petitioner ar-
gues that even if the multiemployer bargaining unit
could constitute an appropriate unit, the majority show-
ing must be demonstrated on a single-employer basis
to satisfy the requirements for 9(a) status under
Deklewa.9 Because there was no showing that a major-
ity of the employees of either Paul Miller or Casale
voted to be represented by Local 22, the Petitioner ar-
gues that the contract cannot be Section 9(a) with re-
spect to either Employer.10
The Appropriate Unit
The Petitioner seeks to represent separate units of
employees of Paul Miller and Casale. These two em-
ployers are engaged in the construction industry. They
are also part of a multiemployer association. If the
multiemployer relationship with the Union is governed
by Section 9, rather than Section 8(f), and if Miller
and Casale are validly a part of that Section 9 relation-
ship, the petitions for single-employer units must be
dismissed. Thus, the issue is whether these relation-
ships are governed by Section 9, rather than Section
8(f).
Under Deklewa, the Board presumes that parties in
the construction industry intend their relationship to be
an 8(f) relationship.11 Thus, the burden is on the party
who seeks to show the contrary, i.e., that the parties
intend a Section 9 relationship.
In the instant case, it is clear that the parties in-
tended a Section 9 relationship. The parties agreed to
hold an election and further agreed that the winner
would be recognized by the employers ‘‘as if the elec-
tion had been conducted by the NLRB itself and an
appropriate certification(s) issued.’’ As no showing of
majority status is necessary to establish an 8(f) rela-
tionship, the very fact that the parties agreed to hold
an election indicates that they intended to establish a
9(a) relationship by proof of majority support. The par-
ties’ analogy to Board certification (which is extended
only to 9(a) representatives) is further evidence that
they meant to create a 9(a) relationship. Plainly, if the
parties had intended only an 8(f) relationship, it would
have been entirely unnecessary for them to have en-
tered into these agreements and to have used these pro-
cedures.
Of course, even where parties intend a 9(a) relation-
ship, that intention will be thwarted if the union does
not enjoy majority status at the time of recognition.
Clearly, if majority status is challenged within a rea-
953CASALE INDUSTRIES
12 See Comtel, 305 NLRB 287 (1991).
13 Ibid.
14 Id. at 289.
15 Bryan Mfg. Co., 362 U.S. 411 (1960).
16 Id. at 429.
17 John Deklewa & Sons, supra at fn. 53.
18 Brannan Sand & Gravel Co., 289 NLRB 977 (1988), does not
require a contrary result. There was no showing in that case that the
parties intended a 9(a) relationship. Rather, the General Counsel ar-
gued, unsuccessfully, that the Board should presume that pre-1959
relationships were 9(a) relationships. By contrast, in the instant case,
there is a showing that the the parties intended a 9(a) relationship.
Similarly, in J&R Tile, 291 NLRB 1034 (1988), and in American
Thoro-Clean, 283 NLRB 1107 (1987), there was no showing that the
parties intended to have a 9(a) relationship.
19 The Petitioner indicated at the hearing that if the broader unit
was the only unit found appropriate, it was willing to proceed to an
election in the broader unit. The Regional Director found however,
and it is undisputed, that the Petitioner’s initial showing of interest
was insufficient to support an election in the multiemployer unit.
20 296 NLRB 1213 (1989).
21 Chairman Stephens, for institutional reasons, joins Member
Raudabaugh in affirming the Regional Director’s decision to permit
Petitioner additional time to submit the requisite showing of interest
in the multiemployer bargaining unit, in recognition that Brown
Transport Corp., supra, in which he dissented, is dispositive in the
absence of a majority to overrule it.
sonable time, and majority status is not shown, the re-
lationship will not be a valid 9(a) relationship.12
In the instant case, there is at least a substantial
question as to whether majority status has been shown.
In this regard, we note that the employees were not
presented with a ‘‘no-union’’ choice. Further, quite
apart from this problem, there was no separate tally of
the votes of the employees of Casale and Miller.13
However, the challenge to majority status came 6 years
after Section 9 recognition was extended and accepted.
The parties reached agreement on three successive con-
tracts during that period. The issue before us is wheth-
er to permit a challenge to majority status after 6 years
of stability in a multiemployer relationship.
We will not permit the challenge. Our conclusion
that the petitions should not be processed in single-em-
ployer units is based on the proposition that a chal-
lenge to majority status must be made within a reason-
able period of time after Section 9 recognition is grant-
ed. In Comtel, the Board’s statement of the governing
principles included a requirement that the challenge to
majority status be made within a reasonable period of
time.14 In the instant case, the Section 9 recognition
was extended 6 years before the challenge to majority
status. For the reasons that follow, we believe that this
6-year period was more than a reasonable period of
time.
In nonconstruction industries, if an employer grants
Section 9 recognition to a union and more than 6
months elapse, the Board will not entertain a claim
that majority status was lacking at the time of recogni-
tion.15 A contrary rule would mean that longstanding
relationships would be vulnerable to attack, and sta-
bility in labor relations would be undermined.16
These same principles would be applicable in the
construction industry. In Deklewa,17 the Board said
that unions in the construction industry should not be
treated less favorably than those in nonconstruction in-
dustries. As shown above, parties in noncontruction in-
dustries, who have established and maintained a stable
Section 9 relationship, are entitled to protection against
a tardy attempt to disrupt their relationship. Parties in
the construction industry are entitled to no less protec-
tion. Accordingly, if a construction industry employer
extends 9(a) recognition to a union, and 6 months
elapse without a charge or petition, the Board should
not entertain a claim that majority status was lacking
at the time of recognition.18
Because the challenge to majority status in this case
was made substantially more than 6 months after the
grant of Section 9 recognition, we would not permit
the challenge. Accordingly, we would not process
these petitions in single-employer units.
Because we have found that the appropriate unit for
an election in this case is the recognized multiem-
ployer bargaining unit, the petitions seeking single-em-
ployer units cannot be processed unless the Petitioner
is able to supply an additional showing of interest in
the multiemployer unit.19 The petitions are not barred
by the new contract executed by Local 22 and the As-
sociation after the petitions were filed and, under
Brown Transport Corp.,20 the Regional Director appro-
priately gave the Petitioner the customary 10 days to
demonstrate that it had the necessary showing of inter-
est to support an election in the broader unit.21
The Appropriate Eligibility Formula
Pursuant to the Board’s decision in Steiny & Co.,
308 NLRB 1323 (1992), the Regional Director shall
apply the eligibility formula set forth therein.
ORDER
The Regional Director’s Decision and Direction of
Election is affirmed, and the case is remanded to the
Regional Director for further appropriate action, in-
cluding permitting the Petitioner additional time to
submit a showing of interest in the multiemployer bar-
gaining unit found appropriate. On remand, the Re-
gional Director is directed to determine employees’ eli-
gibility to vote by use of the formula set forth in
Steiny & Co., supra.
MEMBER OVIATT, dissenting in part.
I do not agree that Local 22 was properly elected as
the 9(a) majority representative in the Association-
wide unit. Accordingly, I would reverse the Regional
Director, find that the single-employer units are appro-
priate, and process Local 28’s election petitions in the
separate units of employees at Paul Miller and Casale.
954 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I need not and do not reach the question whether, if the bar-
gaining relationship between the Association and Local 22 became
a 9(a) relationship in 1982, a reasonable time in which to challenge
Local 22’s majority status in the Casale and Paul Miller units has
elapsed such that the petitions for the separate units at Paul Miller
and Casale would now be barred.
The facts surrounding the September 1982 Honest
Ballot Association election are critical to my disagree-
ment with my colleagues. Prior to that time, the Asso-
ciation, of which Casale and Miller were a part, had
bargained with the Sheet Metal Workers’ International
Union for a series of 8(f) agreements. The September
1982 Honest Ballot Association election purportedly
resolved a dispute between Local 22, which had bro-
ken away from the International, and Locals 19, 27,
and 28 of the International, as to the representation of
employees employed by the 26 Association members.
The election, which was conducted on an Association-
wide basis, where the ballots of all the employers’ em-
ployees were aggregated, resulted in a victory for
Local 22.
Of critical significance, the Honest Ballot Associa-
tion’s ballot contained just two choices: Local 22 or
Locals 19, 27, and 28 together. The employees did not
have the opportunity to vote ‘‘no union.’’ Thus, the
1982 election did not establish whether a majority of
the employees wanted a union at all.
Undisputedly, a collective-bargaining relationship in
the construction industry is presumed to be governed
by Section 8(f) rather than by Section 9(a) until proved
otherwise. John Deklewa & Sons, 282 NLRB 1375,
1385 fns. 41 and 42 (1987), enfd. sub nom. Iron Work-
ers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988).
That presumption is a strong one, and the showing
necessary to overcome it and to establish 9(a) status
thus must be persuasive. See, e.g., Stack Electric, 290
NLRB 575 (1988) (8(f) and single-employer unit pre-
sumptions continue, notwithstanding long-term author-
izations to multiemployer associations to act as collec-
tive-bargaining representative); Brannan Sand & Grav-
el Co., 289 NLRB 977 (1988) (series of collective-bar-
gaining agreements over a 30-year period does not
change 8(f) presumption).
Because the Honest Ballot Association’s ballot did
not contain a ‘‘no union’’ choice, I would find that
Local 22 has not overcome the Deklewa presumption
of Local 22’s continuing 8(f) status and persuasively
established that it was in fact the 9(a) representative in
the multiemployer unit. With good reason, all Board
elections where a union initially seeks to establish its
majority status include on the ballot a ‘‘no union’’
choice. The philosophy embodied in the fundamental
Section 7 right to refrain from self-organization de-
mands no less. See generally Pattern Makers League
v. NLRB, 473 U.S. 95 (1985). By not having the ‘‘no
union’’ choice, the Honest Ballot Association ballot
was in derogation of that essential right. It was a
choice of who the representative would be. It was not
a choice of whether to be represented by a labor orga-
nization. We will never know whether Local 22 would
have received a majority in September 1982 had the
employees had the choice of voting ‘‘no.’’ Con-
sequently, I would not give the September 1982 vote
any weight in establishing Local 22’s 9(a) status.
Because Local 22 has offered no other proof of its
majority status, I would find that to this day it is an
8(f) representative. Under Deklewa, this 8(f) bargaining
history in the multiemployer unit cannot bar the peti-
tions for the separate units at Paul Miller and Casale.
Accordingly, I dissent from the refusal to allow these
employees to decide whether to be represented by a
labor organization.1