G.L. Miliken Plastering

National Labor Relations Board - Board Decisions

Nov 28, 2003

340 N.L.R.B. 1169 (N.L.R.B. 2003)

G.L. MILLIKEN PLASTERING 1169
G.L. Milliken Plastering and Local 9, International
Union of Bricklayers and Allied Craftworkers,
AFL–CIO and Local 67, Operative Plasterers’
and Cement Mason’s International Association
of the United States and Canada, AFL–CIO, In-
tervenor Local 67 and Local 16, Operative Plas-
terers’ and Cement Mason’s International Asso-
ciation of the United States and Canada, AFL–
CIO, Intervenor Local 16. Case 7–RC–22439
November 28, 2003
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER AND WALSH
On May 9, 2003, the Acting Regional Director for Re-
gion 7 issued a Decision and Order in which he dis-
missed the instant petition, finding it barred by a collec-
tive-bargaining agreement between the Employer and
Local 16, Operative Plasterers and Cement Masons In-
ternational Association of the United States and Canada,
AFL–CIO (Local 16). Pursuant to Section 102.67 of the
National Labor Relations Board’s Rules and Regulations,
the Petitioner filed a timely request for review of the Act-
ing Regional Director’s Decision and Order. On June
11, 2003, the Board granted the Petitioner’s request for
review.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
After careful consideration of the entire record, includ-
ing Intervenor Local 16’s brief on review, the Peti-
tioner’s motion to strike the inclusion of a hearing tran-
script of a related case from Local 16’s brief, and Local
16’s response, we find, contrary to the Acting Regional
Director, that an election should have been ordered in a
proper residual unit of the Employer’s unrepresented
plasterers. We therefore remand this case to the Re-
gional Director to determine the proper residual unit for
an election.
Facts
This case represents yet another entry in a long-
running dispute between the Bricklayers and the Opera-
tive Plasterers unions. In 1998, the Operative Plasterers
unilaterally revoked its agreement with the Bricklayers
regarding limitations on their respective geographical
jurisdictions. This move was upheld by the AFL–CIO in
July 2000 and was the catalyst for a number of petitions
from both the Plasterers and the Bricklayers seeking to
expand their relationships to include units in geographi-
cal areas not given to them under their pre-1998 agree-
ment.
Here, Petitioner seeks to represent a unit of plasterers
employed at the Employer’s Chelsea, Michigan facility.
The Employer is a member of the Washtenaw Contrac-
tors Association (WCA), and since 1997, through the
WCA, has been a party to a Section 8(f) prehire agree-
ment with the Petitioner. The WCA 8(f) agreement cov-
ers work performed in certain limited areas in Michigan,
including all of Washtenaw County (where the Em-
ployer’s Chelsea facility is located) and eight townships
in Livingston County.
The Employer and Local 16 entered into a Section 9(a)
collective-bargaining agreement effective by its terms
from June 2, 2000, through May 31, 2004, covering plas-
tering work in the Lansing/Jackson area (Lans-
ing/Jackson Agreement).1 The geographic coverage of
the Lansing/Jackson Agreement does not embrace the
Employer’s Chelsea location. At the hearing, Local 16
introduced the executed signature page but failed to in-
troduce the entire Lansing/Jackson Agreement. The in-
troduced signature page included article XV stating, in
relevant part, that the parties agree to abide by the 2002–
2004 collective-bargaining agreement between Local 16
and the Lansing/Jackson Area Plasterers Contractors.
This page was apparently identical, except for the signa-
tures, to the last page of the full contract entered into
evidence earlier that day in a related case.2
The Acting Regional Director found that Local 16 had
a 9(a) agreement with the Employer covering work in the
Lansing/Jackson areas and in the Flint area by operation
of the Lansing/Jackson contract’s traveler clause.3 Based
on this 9(a) finding, the Acting Regional Director found
the instant petition barred and denied the Petitioner’s
request to run an election in a residual unit, seeing “no
reason to perpetuate a geographic division of plasterers
into separate units by ordering an election in those coun-
ties which are not covered by the contract.” On review,
the Petitioner contends that (1) the Acting Regional Di-
rector erred in finding a contract bar because Local 16
failed to introduce the full agreement at the hearing, (2)
the contract cannot serve as a bar because its geographi-
cally-limited unit is inappropriate, and (3) even if there is
a contract bar, it should only extend to the areas covered
by the agreement and an election should be run in a re-
sidual unit. As explained below, we conclude that the

1 The Lansing/Jackson contract contains a “traveler clause” which
Intervenor Local 16 asserts binds the Employer to the terms and condi-
tions of a purported 9(a) agreement between the Flint Area Contractors
and Local 16 for the Employer’s employees working in the Flint area
(Flint Agreement). We note that the Flint Agreement does not cover
Washtenaw County.
2 Spray On Fire Proofing, Inc., 7–RC–22435.
3 No party disputes this 9(a) finding. Accordingly, the issue of
whether the contracts’ recognition clauses are enough, standing alone,
to create a valid 9(a) relationship is not before us.
340 NLRB No. 138
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1170
instant case should be remanded to the Regional Direc-
tor.
ANALYSIS
Where a portion of a work force is already organized,
the Board evaluates subsequent petitions to represent
remaining employees first to determine whether the peti-
tioned-for employees share a community of interest apart
from the represented unit employees. See Carl Buddig &
Co., 328 NLRB 929 (1999). If the community of interest
is not separate and distinct such that they are not an ap-
propriate separate unit, the Board looks to whether they
are an appropriate residual unit. Id. A residual unit is
appropriate “if it includes all unrepresented employees of
the type covered by the petition.” Id. (quoting Fleming
Foods, 313 NLRB 948, 949 (1994)).
Here, the Petitioner does not allege that the petitioned-
for plasterers share a sufficient community of interest
separate and apart from those represented by Intervenor
Local 16 such that they constitute a separate appropriate
unit. Rather, it requests a residual unit of all unrepre-
sented plasterers. However, on the present record, we
cannot ascertain if the petitioned-for unit includes all of
the Employer’s unrepresented employees.
In finding that the Lansing/Jackson Agreement barred
the petition outside of its coverage area, the Acting Re-
gional Director relied on the Board’s decision in Pontiac
Ceiling & Partition Co., 337 NLRB 987 (2001), where
the Board affirmed the dismissal of a Bricklayers petition
based on a Plasterers 9(a) contract. However, in that
case the barring contract covered the area in which the
Bricklayers sought an election. As such, the petition was
clearly barred. Here, at the hearing the Petitioner re-
quested a residual unit, expressly omitting the area cov-
ered by the Lansing/Jackson Agreement.
However, that omission does not resolve all of the is-
sues in this case. As noted, the Lansing/Jackson Agree-
ment contains a “traveler clause.” That clause requires
(1) that if the Employer performs work in an area cov-
ered by a Local 16 or another Operative Plasterers con-
tract that it be bound to that contract notwithstanding the
fact that the Employer is not a signatory to such agree-
ment and (2) that if the Employer performs work in an
area not covered by an Operative Plasterers agreement
that the terms and conditions of the Lansing/Jackson
Agreement apply. Thus, despite that fact that the Lans-
ing/Jackson Agreement’s coverage is limited to a spe-
cific area, it is possible that, by application of the traveler
clause, it applies to a wider area. It is this potential
broader application which raises questions regarding
contract bar and the scope of a residual unit.4 That is, if
the claimed residual unit includes employees who, by
virtue of the traveler clause are covered by the Lans-
ing/Jackson Agreement, the petition may be contract-
barred. Conversely, if there are travelers who are not
covered by the traveler clause, and the petition nonethe-
less excludes these travelers, the unit may be for an in-
complete residual unit. We leave these questions for the
Regional Director’s initial determination on remand.
Accordingly, we remand this case to the Regional Di-
rector to reopen the record to establish whether the appli-
cation of the traveler clause bars the petition and the
proper scope of the residual unit, if any.5

4 Despite the Petitioner’s arguments to the contrary, we agree that
the Lansing/Jackson Agreement’s limited coverage area does not affect
its bar quality with respect to the geographic area in which it applies.
Petitioner relies on Alley Drywall, Inc., 333 NLRB 1005, 1007 (2001),
for the proposition that the Board rejected such geographically limited
units. However, in that case the Board rejected the use of 8(f) bargain-
ing history to limit a petitioned-for unit. Here, no one challenges the
fact that the Employer and Local 16 have enjoyed a 9(a) relationship
since June 2002. We see no reason why this bargaining history, albeit
short, is insufficient to find that Local 16’s existing unit embodied in its
undisputed 9(a) agreement is appropriate for contract bar purposes.
5 Because we are directing the Regional Director to reopen the re-
cord, we find it unnecessary to pass on the Petitioner’s arguments that
the introduction of the Lansing/Jackson Agreement’s executed signa-
ture page was inappropriate under our recent decision in Waste Man-
agement of Maryland, Inc., 338 NLRB 1002 (2003), and that Local 16
improperly included the record in Spray on Fire Proofing, Inc. in its
brief on review. In determining the proper residual unit, the Regional
Director must analyze the Lansing/Jackson Agreement, the traveler
clause, and the Flint Agreement. Accordingly, we direct the parties to
introduce the full contracts alleged to bar the petition.