Dickmont Plastics Corp.

National Labor Relations Board - Board Decisions

Jan 14, 1974

208 N.L.R.B. 382 (N.L.R.B. 1974)

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dickmont Plastics Corporation , Employer-Petitioner
and Plastic , Moulders and Novelty Workers Union,
Local 132, ILGWU, AFL-CIO. Case 2-RM-1686
January 14, 1974
DECISION AND DIRECTION OF
ELECTION
By MEMBERS FANNING, KENNEDY, AND
PENELLO
On July 9, 1973, Employer Dickmont filed an RM
petition with the Regional Director for Region 2
which was subsequently dismissed on administrative
grounds on July 17, 1973. Dickmont then filed with
the NLRB a request for review of this determination
by the Regional Director , and on September 17,
1973, the Board issued a ruling on administrative
appeal reinstating the petition and remanding the
case to the Regional Director for a hearing . Pursuant
to that order , a hearing was held on October 3, 1973,
beofre Hearing Officer Elbert F . Tellem . Following
the hearing , the Regional Director deemed it appro-
priate to transfer the case to the Board for its
consideration.
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 record in its entirety
and has decided to grant Dickmont ' s RM petition,
and consequently to order that an election be held to
determine the representation status of Dickmont's
employees.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error . The rulings 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
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. Questions affecting commerce exist concerning
the representation of certain employees within the
meaning of Section 9 (c)(1) and Section 2(6) and (7)
of the Act.
4. In accord with the stipulation of the parties in
the event the Regional Director found the single-
1 The Regional Director dismissed the petition on the basis that the unit
was a multiemployer unit and the petition did not conform to that unit as it
was limited to the employees of Dickmont Further, he found that the
employer unit appropriate, the Board finds the
composition of said unit shall be as follows:
All full-time and regular part-time production,
maintenance, shipping and receiving employees
employed by Dickmont Plastics Corporation at
293 Selleck Street, Stamford, Connecticut, exclud-
ing all office clerical employees, salesmen, guards,
watchmen and supervisors as defined in the Act.
Dickmont is a Stamford, Connecticut, corporation
engaged in the manufacture of plastic products. On
July 24, 1972, it entered into a contract of member-
ship with the Plastic and Metal Products Manufac-
turers Association, Inc. (hereinafter referred to as the
Association), and signed a "Certificate of Authoriza-
tion and Assumption" pursuant to which it notified
and accepted the collective-bargaining agreement
entered into between the Association and the Union
dated July 1, 1970.
On April 9, 1973, a decertification petition limited
to Dickmont was filed with the National Labor
Relations Board by Hector Jose Nunez, an employee
of Dickmont, and was dismissed by the Regional
Director on May 17, 1973.1 On April 16, 1973, a
petition was filed by Local 810, International
Brotherhood of Teamsters, Warehousemen, Chauf-
feurs and Helpers of America, claiming to represent
all the employees in a multiemployer unit embracing
members of the Association. This petition was
withdrawn on May 14, 1973.
Collective-bargaining negotiations between the
Association and the Union commenced on March
21, 1973, were suspended during the pendency of the
Teamsters petition, and were renewed on May 14,
1973. On April 24, 1973, Dickmont, by letter,
confirmed its prior notification to the Association of
its withdrawal from the Association, effective upon
the termination of the collective-bargaining agree-
ment on June 30, 1973. The Association informed the
Union by telephone of Dickmont's withdrawal from
the Association. The Union, by letter to Dickmont
dated May 30, 1973, confirmed this notification, and
asked Dickmont to call the Union to arrange for
negotiations on an individual basis. Thereafter, on
June 19, 1973, Dickmont informed the Union by
letter that in light of the decertification petition filed
on April 9, 1973, it felt that recognition of the Union
as the bargaining representative for the employees
would be "inappropriate and, indeed, illegal," and
suggested that the Union file a petition for election
with the Board, adding that, absent such action,
Dickmont itself would file such a petition on July 1,
Dickmont's attempted withdrawal was untimely It should be noted that this
determination was made pnor to the Union's May 30 letter to Dickmont
seeking individual negotiations
208 NLRB NO. 63
DICKMONT PLASTICS CORPORATION
1973. On June 28, 1973, approximately I month after
their offer to bargain on an individual basis, the
Union notified Dickmont that it realized that it was:
. .. in error in assuming, based on the advise
[sic] of the Association, that you had timely
withdrawn therefrom. In fact you have not timely
withdrawn from the Association. For that reason
we withdraw our request to negotiate with you on
an individual basis; rather we will hold you
bound to the terms of whatever renewal agree-
ment we may negotiate with the Association.
Dickmont herein petitions the Board that an
election be held among its employees, since the
Union has made the claim of being their collective-
bargaining representative, and Dickmont has reason
to doubt the validity of that claim in view of the
decertification petition. The Union seeks that the
petition be dismissed since it contends that Dick-
mont's withdrawal from the Association was untime-
ly and that it therefore is bound by the collective-
bargaining agreement between the Association and
the Union.
Decisions of the Board are uniform that, once
contract negotiations have commenced, withdrawal
from an established multiemployer unit is untimely
and therefore ineffective, unless it is by mutual
consent of the parties, or justified by unusual
circumstances.2 If it be assumed in this case that
Dickmont's withdrawal approximately I month after
negotiations began was untimely, under the facts of
the instant case, we are persuaded that the Union
consented to Dickmont's withdrawal.3
The Board has stated that "a prime indicator of a
union's consent or acquiescence ... is a union's
willingness to engage in individual bargaining with
the employer seeking to abandon multiemployer
bargaining."4 The Union, by its May 30 letter to
2 Hi-Way Billboards, Inc, 206 NLRB No I, I C Refrigeration Service,
Inc, 200 NLRB No 107, Publicity Engravers, Incorporated, 161 NLRB 221,
The Kroger Co, 148 NLRB 569, Ice Cream, Frozen Custard Industry
Employees, Drivers, Venders and Allied Workers Union Local 717 (Ice Cream
Council, Inc), 145 NLRB 865, C & M Construction Company, 147 NLRB
843, Sheridan Creations, Inc, 148 NLRB 1503, enfd 357 F 2d 245 (C A 2,
1966), Retail Associates, Inc, 120 NLRB 388.
3 Publicity Engravers, Incorporates supra at 227 See In 5, infra
383
Dickmont, clearly demonstrated its awareness of
Dickmont's failure to renew its membership contract
in the Association, and the Union's willingness to
engage in individual bargaining:
We have been informed by the Plastic and Metal
Products Manufacturers Association, Inc., that as
of this date they have not received Membership
Agreement and Certificates of Authorization [sic]
for the renewal of the present agreement.
Please call our office to arrange an appointment
for negotiations with your firm on an individual
basis.
Local 132, I.L.G.W.U.
[signed ]
Samuel Eisenberg
Manager-Secretary
The Union attempted to revoke its consent to
Dickmont's withdrawal by their previously quoted
letter of June 28. As in Publicity Engravers, this
revision of their position has "all the earmarks of an
afterthought," seized upon by the Union to extricate
itself from its prior consent. The Union presented no
evidence of any deception or lack of good faith
contributing to their acquiescence in Dickmont's
withdrawal, and the Board has no reason to view
their consent as other than voluntarily given.5
Accordingly, we find that the Union did acquiesce
in Dickmont's withdrawal from the Association.
Further, in our opinion Dickmont has presented
sufficient evidence to warrant our ordering an
election be held to determine the representative
status of said employees.
[Direc`tion of Election and Excelsior footnote
omitted from publication.]
a I C Refrigeration Service, Inc, supra at fn 9
Accordingly, we need not reach Dickmont 's alternative position that,
unlike the usual case involving multiemployer bargaining , there was no
consensual arrangement that the employer-members of the association
would be bound by the terms of the collective-bargaining agreement
without further action on the part of individual employers See- Atlas
Electrical Service Co, 176 NLRB 827