El Cerrito Mill & Lumber Co.

National Labor Relations Board - Board Decisions

Mar 31, 1995

316 N.L.R.B. 1005 (N.L.R.B. 1995)

1005
316 NLRB No. 158
EL CERRITO MILL & LUMBER CO.
1 The pertinent part of the Regional Director’s decision is attached
as an appendix to this decision.
2 120 NLRB 388 (1958).
3 454 U.S. 404 (1982), approving 243 NLRB 1093 (1979).
4 The record indicates that, as of May 1990, LAMEA had 18 em-
ployer-members.
5 B-K Mill & Fixture Co. and Acme Fixture & Case Work did not
join LAMEA and become signatory to multiemployer collective-bar-
gaining agreements with the Union until 1984 and 1987, respec-
tively.
6 The parties mutually agreed to extend their last agreement until
a new contract was reached, but this arrangement ceased when the
Union declared a bargaining impasse in September 1992, as de-
scribed infra.
7 There were approximately eight bargaining sessions in 1990,
seven or eight sessions in 1991, and three sessions in 1992.
El Cerrito Mill & Lumber Co. and United Brother-
hood of Carpenters and Joiners of America,
Local 2236, Petitioner
B-K Mill & Fixture Company and United Brother-
hood of Carpenters and Joiners of America,
Local 2236, Petitioner
Russo Window Frames and United Brotherhood of
Carpenters and Joiners of America, Local
2236, Petitioner
Larsen Brothers Lumber Co. and United Brother-
hood of Carpenters and Joiners of America,
Local 2236, Petitioner
Acme Fixture & Case Work and United Brother-
hood of Carpenters and Joiners of America,
Local 2236, Petitioner
South City Lumber & Supply and United Brother-
hood of Carpenters and Joiners of America,
Local 2236, Petitioner
Van Arsdale-Harris Lumber and United Brother-
hood of Carpenters and Joiners of America,
Local 2236, Petitioner. Cases 32–RC–3661, 32–
RC–3662, 32–RC–3667, 32–RC–3668, 32–RC–
3669, 32–RC–3681 (formerly 20–RC–16889), and
32–RC–3682 (formerly 20–RC–16890)
March 31, 1995
DECISION ON REVIEW AND ORDER
DISMISSING PETITIONS
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
The National Labor Relations Board, by a three-
member panel, has considered the Employers’ and the
Intervenor’s joint request for review of the Regional
Director’s Order Consolidating Cases and Decision and
Direction of Elections issued on September 24, 1993.1
On November 9, 1993, the Board granted review, but
denied the Employers’ and Lumber and Mill Employ-
ers Association’s (the Intervenor’s) joint motion to stay
the elections. Thus, on November 5 and 12, 1993, the
elections were held, and the ballots were impounded.
The issue presented here is whether the Petitioner’s
untimely withdrawal from the historical multiemployer
bargaining unit, after negotiations for a successor con-
tract with the Intervenor had reached impasse, should
be honored so as to allow the Petitioner to proceed on
its separate representation election petitions seeking
certification as the collective-bargaining representative
of the Employers’ employees in separate single-em-
ployer units. The Regional Director found that the Pe-
titioner’s withdrawal was permissible under the guide-
lines of Retail Associates.2 In light of this finding, he
determined that each of the petitioned-for units was a
separate appropriate unit. The Employers and the Inter-
venor contend that the Regional Director’s decision is
contrary to the Supreme Court’s decision in Charles D.
Bonanno Linen Service v. NLRB.3 They argue that
each of the petitioned-for units is inappropriate given
the Petitioner’s untimely withdrawal from the historical
multiemployer unit almost 3 years after bargaining had
commenced. We find merit in this argument.
The Intervenor (LAMEA) is a multiemployer asso-
ciation composed of various employers in the woods-
products industry.4 LAMEA represents its employer-
members in negotiating and administering collective-
bargaining agreements with the Petitioner (the Union).
The Union is currently recognized as the collective-
bargaining representative within the meaning of Sec-
tion 9(a) of the Act of a unit of employees employed
by the employer-members of LAMEA, which includes
the Employers. Since 1981, the Employers have been
bound to collective-bargaining agreements between
LAMEA and the Union.5 The Union’s most recent
contract, by its terms, expired on June 16, 1990, but
was extended to September 1992 by the parties’ mu-
tual consent.6
Between June 1990 and the early part of September
1992, the parties engaged in negotiations for a succes-
sor contract.7 In September 1992, the Union declared
an impasse in bargaining. LAMEA then tried unsuc-
cessfully to draw the Union back into the negotiations
with a final contract offer in December 1992, but the
impasse could not be broken. In early 1993, LAMEA
and its employer-members, including the Employers,
implemented the terms of their December 1992 final
contract offer. Since then, there has been no bargain-
ing, strike activity, lockout, or any separate interim
agreements between individual employer-members and
the Union. In March 1993, the Union filed separate pe-
titions under Section 9(b) of the National Labor Rela-
tions Act to represent, in single-employer units, the
employees of the Employers. The Employers and
LAMEA opposed the Union’s withdrawal from the
multiemployer unit and sought dismissal of these peti-
tions.
We begin with the proposition that multiemployer
bargaining is a voluntary arrangement which con-
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In NLRB v. Teamsters Local 449 (Buffalo Linen), 353 U.S. 87,
95–96 (1957), the Supreme Court recognized that the preservation of
the integrity of multiemployer bargaining units is a policy of the
Act.
9 Situations found by the Board to constitute an ‘‘unusual cir-
cumstance’’ are summarized in Hi-Way Billboards, 206 NLRB 22,
23 (1973), enf. denied 500 F.2d 181 (5th Cir. 1974). For purposes
of clarification, we note that, although the Board’s decision in that
case was rejected, the Fifth Circuit later supported the same Board
rationale in granting enforcement in NLRB v. Marine Machine
Works, 635 F.2d 522 (1981). See Bonanno v. NLRB, supra, 454 U.S.
at 411 fn. 7.
10 Bonanno v. NLRB, supra, 454 U.S. at 422 fn. 3.
11 Bonanno v. NLRB, supra, 454 U.S. at 428.
stitutes a vital factor in the effectuation of national
labor policy promoting peace through collective bar-
gaining.8 Prior to 1958, the Board permitted both em-
ployers and the union to withdraw from the multiem-
ployer bargaining unit even in the midst of bargaining.
However, in 1958, the Board issued its decision in Re-
tail Associates, supra, in which it curtailed the parties’
ability to withdraw from multiemployer bargaining
units.
Under the Board’s guidelines set forth in Retail As-
sociates, an employer or a union is free to withdraw
from the multiemployer unit for any reason before the
date set for negotiations of a successor contract or the
date on which it is given. The Board also ruled that
once negotiations for a new contract have begun, a
party may withdraw from an established multiemployer
unit only if there is mutual consent or ‘‘unusual cir-
cumstances.’’
In cases after Retail Associates, the Board and the
courts grappled with the meaning of ‘‘unusual cir-
cumstances.’’9 Finally, in Charles D. Bonanno Linen
Service, supra, the Supreme Court examined whether a
bargaining impasse may justify an employer’s untimely
withdrawal from a multiemployer bargaining unit. In
that case, the Court held reasonable the Board’s rule
that a mere impasse in bargaining does not constitute
an ‘‘unusual circumstance.’’ In reaching this holding,
the Court observed that ‘‘assessing the significance of
impasse and the dynamics of collective bargaining is
precisely the kind of judgment that . . . should be left
to the Board.’’ According to the Court’s analysis, the
Board’s assessment of these factors in Bonanno was
not arbitrary or contrary to law, and it therefore upheld
the Board’s determination that the single employer
who had attempted an untimely withdrawal from the
multiemployer unit was bound to the multiemployer
bargaining.
Significantly, the Court’s majority opinion in
Bonanno did not place any limitation on the duration
of the impasse, while dicta appearing in the two sepa-
rate dissenting opinions by Chief Justice Burger10 and
Justice O’Connor11 suggested that an impasse of even
2 years in duration would not constitute an ‘‘unusual
circumstance’’ under the Board’s rule. Thus, we think
that Bonanno can be fairly read to mean that an im-
passe of any duration, standing alone, does not nec-
essarily constitute an ‘‘unusual circumstance’’ within
the meaning of the Board’s rules set forth in Retail As-
sociates.
The Regional Director erroneously considered
Bonanno to be factually distinguishable from the in-
stant cases. His analysis emphasizes the ‘‘2 years of
‘fruitless’ bargaining which is succeeded by an addi-
tional year [to the time of his decision] without any
bargaining at all.’’ However, the length of negotiations
was not an item of main concern for the Court in
Bonanno. The focus in Bonanno was on the impasse
itself. We find that the instant cases and Bonanno are
quite similar in that essential feature. Here, the period
between the impasse and the Union’s withdrawal in
March 1993 is the same (if the impasse was reached
in September 1992) or shorter (if the impasse was
reached in December 1992) than the 6-month period in
Bonanno.
The Regional Director noted that certain economic
weapons (a strike and lockout) were used in Bonanno,
and not here. But, we are not convinced that the pres-
ence of this kind of activity was critical to the Court’s
decision in Bonanno. We also recognize that here, un-
like the situation in Bonanno, a lockout was not con-
sidered necessary because the unit employees contin-
ued working after the Employers’ implementation of
the final contract offer in January 1993. Furthermore,
unlike the Regional Director, we do not believe that
the absence of a strike here necessarily means that the
bargaining relationship between the Employers and the
Union is over. Rather, a plausible explanation is that
the Union may have determined that a strike was sim-
ply too risky or would be ineffective in this particular
industry during these economic times.
In any event, as the Board emphasized in Bonanno
Linen, our ‘‘statutory mandate is to balance not eco-
nomic weapons, but ‘conflicting legitimate interest.’’’
243 NLRB at 1097, quoting NLRB v. Teamsters Local
449 (Buffalo Linen), supra. All parties to a multiem-
ployer bargaining relationship have an interest in the
stability of the multiemployer unit, and we think that
interest would be ill served by broadening the ‘‘un-
usual circumstances’’ exception to the Retail Associ-
ates rule in the manner proposed by the Union. Allow-
ing any of the negotiating parties to withdraw from the
unit after an impasse of the length of the one at issue
here would be to put the multiemployer bargaining
process in jeopardy whenever bargaining reached an
impasse phase and one of the participants was
unsatisfied with its prospects for getting all that it
wished in a multiemployer contract. Thus, while it is
conceivable that the ‘‘unusual circumstances’’ excep-
tion might be met in some future case presenting an
impasse of extremely long duration, accompanied by
1007EL CERRITO MILL & LUMBER CO.
indicia of instability or defunctness, this is not such a
case.
Under these circumstances, we reverse the Regional
Director and find that under Bonanno the parties’ bar-
gaining impasse does not constitute an ‘‘unusual cir-
cumstance’’ within the meaning of Retail Associates.
Accordingly, we shall dismiss these petitions.
ORDER
The Regional Director’s Order Consolidating Cases
and Decision and Direction of Elections is reversed
and the petitions are dismissed.
APPENDIX
Regional Director’s Order Consolidating Cases and
Decision and Direction of Elections
Each of the Employers is engaged in the wood-products
industry, either as a retail/wholesale lumber yard, a manufac-
turer of wood products, or a combination of both. As mem-
bers of LAMEA, they have been bound to various collective-
bargaining agreements between LAMEA and various admin-
istrative subdivisions of the Carpenters Union that date back
at least as far as 1981. The term of the most recent agree-
ment was from May 1, 1987 through June 16, 1990. There
is no evidence that any of the Employers has ever negotiated
or otherwise signed an agreement with Petitioner on a single-
employer basis.
Following the expiration of the 1987–1990 agreement, the
parties attempted, without success, to negotiate a new agree-
ment. These efforts began in June of 1990 and continued
until the early part of September 1992. At that time, an im-
passe was declared by Petitioner. Thereafter, LAMEA tried
unsuccessfully to draw Petitioner back into negotiations.
However, the impasse could not be broken and, in December
1992, LAMEA conceded that the parties were at impasse. In
early 1993, LAMEA implemented the terms of its final offer.
Despite some correspondence from LAMEA to Petitioner,
there is no evidence that any bargaining occurred from Sep-
tember 1992 until the April 27, 1993 hearing herein, either
on a multi-employer or any other basis. Nor do the briefs re-
flect any renewal of bargaining since the hearing. The record
does reflect that some of the Employers were approached by
the Petitioner about bargaining on an individual basis, but
there is no evidence that any such bargaining ever took
place.
It is well established that multi-employer bargaining is
consensual in nature and that both employers and unions can
elect to withdraw from such an arrangement by providing
clear and unequivocal notice to that effect. It is equally well
established that such notice must be given in a timely fashion
prior to the commencement of negotiations, absent the con-
sent of all parties or the existence of unusual circumstances.
See Retail Associates, 120 NLRB 388 (1958); The Evening
News Association, 154 NLRB 1494 (1965).
‘‘Unusual circumstances’’ permitting the otherwise un-
timely, unilateral withdrawal from multi-employer bargaining
have been found to exist where, for instance, an employer is
subject to extreme financial pressures or where the multi-em-
ployer bargaining unit has become substantially fragmented.
See, e.g., Connell Typesetting Co., 212 NLRB 918 (1974);
U.S. Lingerie Corp., 170 NLRB 750 (1968). While the Board
and courts repeatedly have found that a mere impasse in bar-
gaining does not constitute an unusual circumstance excusing
an otherwise untimely, unilateral withdrawal from multi-em-
ployer bargaining (Charles D. Bonanno Linen Service v.
NLRB, 454 U.S. 404 (1982), enfg. 243 NLRB 1093 (1979);
Hi-Way Billboards, 206 NLRB 22 (1973), enf. denied 500
F.2d 181 (5th Cir. 1974)), I am not aware of any case in
which the Board has had occasion to consider whether an
impasse, unaccompanied by a strike or lockout, which fol-
lows 2 years of fruitless bargaining and which is succeeded
by an additional year without any bargaining at all, despite
the employer having unilaterally implemented its final offer,
constitutes an ‘‘unusual circumstance’’ warranting an other-
wise untimely withdrawal. For the following reasons, I find
that it does.
In establishing and enforcing rules governing withdrawal
from multi-employer bargaining by individual employers or
unions, the Board has acted to preserve the integrity and sta-
bility of consensual multi-employer bargaining relationships.
In Bonnano Linen Service v. NLRB, 243 NLRB at 1093–
1094, in holding that a simple impasse does not constitute
an unusual circumstance, the Board explained, as follows:
An impasse is only a temporary ‘‘deadlock’’ or ‘‘hia-
tus’’ in negotiations which in almost all cases is even-
tually broken through either a change of mind or the
application of economic force. Indeed, an impasse may
be brought about intentionally by one or both parties as
a device to further, rather than destroy, the bargaining
process. Suspension of the process as a result of an im-
passe may provide time for reflection and a cooling of
tempers; it may be used to demonstrate the depth of a
party’s commitment to a position taken in the bargain-
ing; or it may increase economic pressure on one or
both sides, and thus increase the desire for agreement.
For example, impasse permits the employer to place
into effect those wage increases or benefits it has there-
tofore offered, an action (or the possibility of it) which
may substantially shift the bargaining positions of the
parties. In these and other possible uses of impasse as
a bargaining tactic, the emphasis is toward achieving
agreement rather than causing a permanent disruption
of the relation. And much the same may be true even
of impasses which arrive without being intended by ei-
ther side. Consequently, there is little warrant for re-
garding an impasse as a rupture of the bargaining rela-
tion which leaves the parties free to go their own ways.
In order for the above-described dynamics to operate suc-
cessfully in the multi-employer context, both sides must be
secure in the belief that the multi-employer arrangement will
remain intact throughout the bargaining process. Thus, pre-
venting unilateral withdrawal by either side during the bar-
gaining process insures the integrity and stability of the rela-
tionship and effective bargaining.
However, the rationale explained in Bonnano, supra, has
no application here, where the bargaining process has ceased
completely. In this case, the bargaining began in June of
1990. In September 1992, after over 2 years of fruitless ne-
gotiations, Petitioner declared an impasse and refused to
meet further with LAMEA. The declaration of impasse had
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
no inmmediate effect whatsoever. There was no strike or
lockout. It was not even until January 1993, that LAMEA
implemented the terms and conditions of its last offer. This
action by LAMEA elicited no response at all from Petitioner.
When the petitions here were filed in March 1993, there had
been no face-to-face bargaining since September 1992, and
there is no contention that the parties have met and bargained
or otherwise changed their positions since then.
In these circumstances, I cannot conclude that the impasse
between the Petitioner and LAMEA is merely a temporary
‘‘deadlock’’ or ‘‘hiatus’’ in negotiations which eventually
will be broken. Rather, it appears that neither party is par-
ticularly interested in reaching a collective-bargaining agree-
ment or, for that matter, expending any effort in that direc-
tion. The Board’s observation in Bonnano, 243 NLRB at
1094, that a multi-employer bargaining relationship cannot
suddenly be ruptured by a simple impasse, should not be
read to mean that a multi-employer bargaining relationship
may not die a slow death through 2 years of fruitless bar-
gaining and a third year of impasse with neither party taking
any initiative to break the impasse. It is hard to imagine how
the goals of preserving the integrity and stability of multi-
employer bargaining would be advanced by failing to permit
the Petitioner’s otherwise untimely, unilateral withdrawal
from the multi-employer bargaining relationship in the un-
usual circumstances of this case.
In reaching this result, I am not unaware of certain ref-
erences made in the dissenting opinions in the Supreme
Court’s decision in Bonnano v. NLRB, supra, to the position
taken by the Board during oral argument in that case. In their
respective dissenting opinions, Chief Justice Burger and Jus-
tice O’Connor observed that, during oral argument, the
Board conceded that it would not regard an impasse as an
unusual circumstance even if it continued for 2 years. Id. at
422 fn. 3 and 428 fn. 1. Such a representation by counsel,
with no reference to the context in which it was made, con-
stitutes an insufficient basis for dismissing the instant peti-
tions. In light of the Board’s analysis in Bonnano, supra, the
remarks made by Board counsel most likely were intended
to convey the idea that the mere length of the impasse is not
the controlling factor; rather, the critical factor is whether the
actions of the parties, both before and during the impasse,
offer some reason to believe that the impasse eventually will
be broken. For example, in Bonnano, supra, the parties had
bargained for only 4 months when impasse was declared and
the union selectively struck certain employer-members of the
multi-employer unit. Other members locked out their em-
ployees. Over the next 5 months, the parties remained at im-
passe but continued to meet sporadically. In addition, several
employer-members were attempting to obtain individual
agreements with the union. Thus, the multi-employer rela-
tionship during the 5-month impasse in Bonnano, supra, was
still in a dynamic state and, arguably, could have remained
so for as long as 2 years if the strikes and lockouts continued
and the parties continued to meet.
The dynamic relationship in Bonnano, supra, stands in
stark contrast with the moribund relationship between the Pe-
titioner and LAMEA. To reiterate, in this case impasse was
not declared until the parties had already bargained without
result for over 2 years. There were no strikes or lockouts, no
Employers sought individual deals, the parties have not met
since September 1992, LAMEA did not even implement its
final offer until January 1993, and that action did not
breath[e] any new life into the dying relationship. With the
filing of the instant petitions and statements by counsel dur-
ing the hearing and in its brief, Petitioner has clearly and un-
equivocally announced its intention to withdraw from its
multi-employer bargaining relationship with LAMEA. While
the withdrawal is untimely under Retail Associates, supra, I
find that the above facts constitute unusual circumstances
which permit withdrawal at this time and that it will effec-
tuate the purposes and policies of the Act to permit the Em-
ployers’ employees—who have been without a contract since
June 1990—to express their choice about whether they now
wish to be represented by Petitioner in separate bargaining
units.
Accordingly, I find that each of the bargaining units set
forth above is a separate appropriate unit and shall direct an
election in each unit.