McAnary & Welter, Inc.

National Labor Relations Board - Board Decisions

Apr 13, 1956

115 N.L.R.B. 1029 (N.L.R.B. 1956)

McANARY 4. WELTER., INC. 1029
letterpress employees, and that the unit sought by the Petitioner is
therefore in fact coextensive in scope with the existing unit.
In view of the foregoing, and as the Petitioner is a union which
traditionally represents lithographic employees, we find that the litho-
graphic employees whom the Petitioner seeks to represent may, if
they so desire, constitute a separate appropriate unit. We shall not,
however, make any final unit determination at this time but shall
first ascertain the desires of these employees as expressed in the elec-
tion hereinafter directed. Accordingly, we shall direct that an elec-
tion be held among the employees in the following voting group : All
lithographic production employees of the Employer employed at the
plant of Desaulniers and Company, Moline, Illinois, excluding all
other employees, guards, and supervisors as defined in the Act.ia
5. If a majority vote for the Petitioner they will be taken to have
indicated their desire to constitute a separate appropriate unit, and
the Regional Director conducting the election directed herein is in-
structed to issue a certification of representatives to the Petitioner
for the unit described in paragraph 4, which the Board, under such
circumstances, finds to be appropriate for the purposes of collective
bargaining. In the event a majority do not vote for the Petitioner,
these employees shall remain a part of the existing unit and the Re-
gional Director will issue a certification of results of election to such
effect.
[Text of Direction of Election omitted from publication.]
'2 Paodito Coast Association of Pulp and, Paper Manufacturers , 94 NLRB 477, 482.
McAnary & Welter, Inc., Petitioner and International Brother-
hood of Teamsters , Chauffeurs, Warehousemen & Helpers of
America, AFL-CIO, Local 142
Rober t A. Lucas, Petitioner and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America,
AFL-CIO, Local' 142.. Cases Nos. 13-RM-257 and 13-RD-f70.
April 13,1956
DECISION AND ORDER
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before Edward T.
Maslanka, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in these cases, the Board finds:
1. The Employer is engaged in commerce within the meaning of the
Act.
115 NLRB No. 165.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organization involved claims to represent vetain
employees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act for the following
reasons:
The Petitioners seek an election limited to employees of the Em-
ployer. The Union, Local 142, moved to dismiss the petitions on the
ground that only a multiemployer unit is appropriate.
Since the Employer's organization in February 1954, it has been
operating a Ford agency previously operated at the same location by
another employer. In July 1954, the Employer and 12 other em-
ployers entered into a 1-year collective-bargaining agreement with
Local 242 of the Union's international.' Timely notice forestalling
automatic renewal, as required by the contract, was served upon the
13 employers by Local 242 prior to the July 1, 1955, expiration date.
Local 242 merged with Local 142, the Union herein, in August 1955.
Following delays resulting from the merger, the Union invited all 13
employers, including the Employer herein, to meet with it on October
12 for purposes of negotiating a new agreement. Ray Thomas, an
attorney, notified Mike Sawochka, secretary-treasurer of the Union,
that he represented the Employer and three other employers. Thomas
informed the Union that, for personal reasons, he could not attend
the October 12, 1955, meeting, but assured Sawochka that the -four
employers he represented ". . . would go along with the same agree-
ment that was negotiated by the employer's committee, the same as
they had in the past...."
At the meeting of October 12, the employers attending selected
from among themselves a 6-man bargaining committee composed of
the same employer representatives who had negotiated the 1954-55
agreement. On November 28, the Employer negotiating committee
and the Union completed negotiations on a new 1-year agreement to
be effective December 1, 1955. The Union's members, including em-
ployees of the Employer, approved this agreement on December 7 at
a union meeting. A separate draft of the agreement was sent to each
of the 13 employers for signature.
Sawochka telephoned McAnary, the Employer's secretary-treasurer,
on December 21 and asked what was delaying return of the signed
document. Sawochka testified that McAnary stated that some of his
employees were dissatisfied with the insurance plan in the agreement,
but that he would certainly sign the contract if it was satisfactory to the
1 All 13 employers signed a single document which provides as follows in the acknowl-
edgment clause :
THIS AGREEMENT, made and entered into by and between the undersigned , herein-
after referred to as Employer or Party of the First Part, and .. LOCAL NO.
242. . . .
i
McANARY & WELTER , INC. 1031
employees. Sawochka replied that the employees had approved the
agreement at the union meeting of December T. The same day, Welter,
the-Employer's president, came in person to Sawochka's office to dis-
cuss the matter. As a result of their discussion, Welter, himself, ar-
ranged a meeting of his employees with Sawochka that day. Sawochka
testified that the employees unanimously approved the insurance plan
by standing vote at that meeting.
After the meeting which was not attended by McAnary or Welter,
Sawochka reported the results to McAnary and Welter at their office
and again demanded that McAnary sign the contract. McAnary
actually signed the agreement at this moment, but Welter objected
and there ensued an argument between Welter and Sawochka over the
wage rates, which did not suit Welter. Welter also testified at the
hearing that it had been reported to him about 10 days before the sign-
ing incident that the employees had conducted a secret ballot among
themselves and had voted 17 to 4 against continued representation by
the Union, and for this reason, among others, he objected to execution
of the agreement. In any event, the signed document was never de-
livered to Sawochka, but was destroyed later that day by McAnary.
The next day, December 22, Attorney Thomas, Welter, and others, to-
gether representing four employers met with Sawochka and demanded
substantial changes in the agreement. Sawochka protested that it was
too late to renegotiate and apparently no concessions were made. The
demands of, these employers were sent to the Union over Attorney
Thomas' signature in a letter dated December 28. Demands included
6 substantive changes in the contract including either elimination of
the company welfare contributions or reduction of wage rates, and
extension of the contract term from 1 to 5 years.
The Employer filed its petition herein on January 3, 1956, and on
January 13, a group of employees filed the decertification petition
which was consolidated with the Employer's petition.
In these circumstances, it is clear that there had been a substantial
period of multiemployer bargaining which would ordinarily be deter-
minative of the scope of the appropriate unit. However, the Board
has long held that, despite a multiemployer bargaining history, a unit
limited to employees of the employer becomes appropriate if the em-
ployer unequivocally manifests its intention to withdraw from multi-
employer bargaining and to pursue an individual course of action after
proper notice at an appropriate time.'
The record in this case establishes that Attorney Thomas was clothed
with authority to participate in behalf of the Employer and other
employers in the multiemployer bargaining. Through Thomas, the
Employer gave its approval in advance to the designation of a bargain-
2 The Milk and Ice Cream Dealers of the Greater Cincinnati, Ohco, Area, et al., 94 NIMB
23, 25.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing committee to carry out negotiations in behalf of the informal, ad
hoc, Employer group of which it was a part. The Employer thus en-
dorsed the joint negotiations. Moreover, it gave specific assurances
that it too would go along with the results thereof. The Employer
thereby clearly evinced its intention to remain with the existing multi-
employer bargaining unit for the purpose of negotiating a new con-
tract.' It made no attempt to withdraw until after the agreement was
negotiated and after actual signing by one"of its corporate officers. We
regard the attempted withdrawal at this late stage as having been
made at an inappropriate time and as ineffective.' Therefore, we find
that the multiemployer unit is the only appropriate bargaining unit at
this time .5 Accordingly, we shall dismiss both petitions because they
seek elections in an inappropriate unit.
[The Board dismissed the petitions.]
CHAIRMAN LEEDOM and MEMBER BEAN, dissenting :
We disagree with the majority's decision because we do not believe
that the Board has the statutory power to force an employer to bar-
gain on a multiemployer basis under the circumstances of this case.
The Union here does not contend-and the majority does not find-
that the Employer's signing of the contract without delivering it
created a binding agreement. In the absence of a valid collective-
bargaining agreement by which an employer may be deemed to have
voluntarily bound himself to a multiemployer unit for the period of
the contract; it must be held that the Board cannot prevent an em-
ployer from withdrawing from a multiemployer unit.
Express statutory authority to find a multiemployer unit appropri-
ate is absent from both the Wagner Act and the Taft-Hartley Act.
Thus, both Acts provide in Section 9 (b) that, "The Board shall de-
cide in each case whether . . . the unit appropriate for the purposes
of collective bargaining shall be the employer unit, craft unit, plant
unit, or subdivision thereof." However, as early as 1938, the Board
began finding multiemployer units appropriate on the ground that
the Wagner Act included within the term employer "any person act-
ing in the interest of an employer, directly or indirectly " and the term
person "includes one or more ... associations...." s It was clear
throughout the Wagner Act period that the Board did not create multi-
employer units, but merely recognized them as appropriate once they
had come into being through the voluntary action of the parties.
The Board never attempted to require employers to delegate bargain-
3 Cf., Pacific Metals Company , Ltd., 91 NLRB 696, 700.
4 Cf., Hollingsworth & Whitney Division of Scott Paper Co., 115 NLRB 15; Interna-
tional Paper Co., 115 NLRB 17.
5 Insofar as this case is inconsistent with Bagley Produce Company, 108 NLRB 1267,
that case is hereby overruled.
6Ship Owners' Association of the Pacific Coast, 7 NLRB 1102, 1125.
McANARY & WELTER, INC. 1033
ing to an association or quasi-association nor did it prevent employers
from withdrawing a delegation of power.'
The legislative history of the Taft-Hartley Act shows that the
Congress was aware of the Board's multiemployer unit doctrine and
approved so long as the Board protected the employer's freedom to
withdraw. The original Senate bill, as reported out of committee,
qualified the definition of employer as follows :
Provided, That for purposes of Section 9 (b) hereof, the term
"employer" shall not include a group of employers except where
such employers have voluntarily associated themselves together
for the purposes of collective bargaining.'
The Senate report on the bill justified the proviso in these terms:
(2) "Employer :" The meaning of this term has been amended
by the insertion of language which makes it clear that the Board
may deem an employer association to be an employer, provided
the individual employers in such association have voluntarily
delegated their authority to bargain collectively with their em-
ployees to such an association. Under current decisions of the
National Labor Relations Board the Board itself has reached
such a construction relying on the phrase in the existing statute
"acting in the interest of an employer." Although this inter-
pretation has been challenged (see Matter of Ship Owners' Asso-
ciation of the Pacific Coast, 7 NLRB 1002, 103 F. 2d 993; 308
U. S. 401) the Supreme Court has never passed squarely on the
question. Consequently, this amendment merely approves of those
Board interpretations. By the inclusion of the word "volun-
tarily," however, the bill makes it clear that the Board cannot
treat an employer association as an employer insofar as any indi-
vidual employer has failed to delegate the association to act as his
bargaining representative or has withdrawn authority from it
to act in that capacity.'
Although "troubled" by "the use of the word `voluntarily,"' signers
of the minority report on this bill stated :
We, of course, are of the opinion that the establishment of a
multi-employer unit should be conditioned upon employer consent.
The minority report then expresses objection to the word "voluntarily"
because it might lead' the Board to use of, a "subjective standard"
in finding whether or not a multiemployer unit is appropriate rather
than determination on the "basis of whether a past course of conduct
a Bercut-Richards Packing Company, 68 NLRB 605; Advance Tanning Company, 60
NLRB 923 ; Rayonier Incorporated, 52 NLRB 1269, 1275.
8 Section 2 (2), S. 1126, as'reported, 80th Cong., 1st Sess. (1947).
9 Sen . Rep. No. 105, 80th Cong, 1st Sess. (1947), 18.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demonstrates the employer's desire to be bound by group rather than
individual action." 10 And, in discussing the same bill on the floor of
the Senate, Senator Taft commented :
... The original Wagner Act said nothing about any unit larger
than an employer unit, but the Board has held that if the em-
ployers voluntarily associate themselves together, then the Board
may certify one bargaining agent for the men to deal with an
employers' association. However, any employer can break it
up today, and he can break it up after the adoption of this
amendment. That situation has not changed. In the committee
bill we specifically recognize the rule of the Board that if there
is a voluntary association of employers they may certify one man
to act for all the employees of those employers. ...11
However, this proviso in the Senate bill was eliminated in the con-
ference bill. The omission was explained in this manner in the con-
ference report:
... The treatment in the Senate amendment of the term "em-
ployer" for the purposes of Section 9 (b) is omitted from the
conference agreement, since it merely restates the existing practice
of the Board in the fixing of bargaining units containing em-
ployees of more than one employer, and it is not thought that the
Board will or ought to change its practice in this respect. [Em-
phasis added.] 12
It appears clear to us, as the Second Circuit has suggested recently,
that ". . . Congress, in enacting the Taft-Hartley Act, did not intend
to interfere with the then established practice of multiemployer bar-
gaining built up by the Board under the Wagner Act." 13 However,
it is equally clear to us that Congress did not intend that the multi-
employer doctrine should be extended so that an employer is forced
to remain involuntarily part of a multiemployer unit.
In the present case, the Employer unequivocally indicated an intent
to withdraw from the multiemployer unit before it became a party
to a binding collective-bargaining agreement. This was a timely
withdrawal under the scheme of the Act and Board precedent 14 and
therefore the Board is without power to compel the Employer to
adhere to the broader bargaining unit which the majority now finds
to be appropriate. Accordingly, we would not dijniss the petitions,
but instead would direct an election in a unit limited to employees of
the Employer.
10 Footnote 9, supra, part 2, p. 35.
11 Congressional Record, Senate , May 6 , 1947, 80th Cong., 1st Sess, 4705.
13 House Conference Rep. No. 510 , 80th Cong ., 1st Sess. , 31 and 32.
18 Truck Drivers Local Union No. 449 v. N. L . R. B. (Buffalo Linen Supply Co.), 231 F.
2d 110 (C. A. 2).
14 Bagley Produce Company, 108 NLRB 1267.