United Construction Contractors Association

National Labor Relations Board - Board Decisions

Apr 12, 1974

210 N.L.R.B. 61 (N.L.R.B. 1974)

UNITED CONSTRUCTION CONTRACTORS ASSN.
United Construction Contractors Association and
Local Union No. 3, International Brotherhood of
Electrical Workers, AFL-CIO, Petitioner. Case
2-RC-16244
April 12, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held at New York, New York, before
Hearing Officer Howard Shapiro. At the close of the
hearing and pursuant to Section 102.67 of the
Board's Rules and Regulations and Statements of
Procedure, Series 8, as amended, the Regional
Director for Region 2 transferred this case to the
Board for decision. Thereafter, the Employer and the
Petitioner filed briefs. Petitioner has requested oral
argument.'
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 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. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The Employer is an association which repre-
sents member-employers engaged in providing elec-
trical services for the purpose of collective bargaining
with labor organizations. The Association and the
Intervenor, Local 363, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, were parties to a collective-bargaining
i Petitioner 's request for oral argument is hereby denied In our opinion,
the briefs adequately present the issues and positions of the parties
2 Pursuant to a request made by Petitioner, the Board issued a subpoena
duces tecum directing Al Picoult, a member of the board of directors of the
Association , to produce certain books, records, and other documents which
would disclose the actual membership of the Association. None of the
requested material appears in the record of this case , although the Hearing
Officer has indicated that Picoult provided Petitioner with membership
applications.
3 The Association and Intervenor contend that the petition should be
61
agreement which terminated on November 14, 1973.
On August 17, 1973, Petitioner filed the petition in
this case in which it sought a unit consisting of "[a]ll
employers bound by the existing agreement between
Local #363, IBT and United Construction Contrac-
tors Association as per attached list." The list
appended to the petition contained the names and
addresses of 118 companies . At the hearing, the
Association introduced a list prepared by its attorney
who testified that the Association's list, rather than
Petitioner's, was an accurate enumeration of the
members. The Association's list indicated that, of the
118 names found on the Petitioner's list, only
approximately 48 were members of the Association.
The attorney for the Association further testified that
the Association's list was compiled from a collection
of membership applications in his possession.2
During the course of the hearing, the Association
made several amendments to this list in an effort to
correct what its attorney described as certain
"oversights." 3
The record compiled at the hearing sheds little light
on the nature of the Association and its bargaining
history. However, it has been established that the
Association, on behalf of its members, and the
Intervenor were parties to a collective-bargaining
agreement which ran from November 15, 1970, to
November 14, 1973. And Petitioner, the Association,
and the Intervenor appear to be in agreement that a
multiemployer unit is appropriate. Therefore, we find
that the following employees constitute a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All electricians, electrical maintenance mechan-
ics, helpers, and apprentices employed by the
employer-members of the United Construction
Contractors Association, excluding all office
clerical employees, professional employees,
guards, and supervisors as defined in the Act.
However, the record does not provide sufficient
information for us to determine with any accuracy
the identity of the members of the Association. Thus,
before directing an election herein, we shall remand
this case to the region for further proceedings to
determine the composition of the Association.
5. The parties are in disagreement as to whether
dismissed on the ground that Petitioner filed individual petitions in Region
29 as to approximately 30 members of the Association, and it refused to
indicate its position as to which of the petitions was proper . The Association
and Intervenor further joined in moving for dismissal on the ground that the
petition was defective in that it describes the Association as being
comprised of the names appearing on the "attached list," which it is not.
However , these grounds, and others urged by the Association and
Intervenor, do not justify dismissal of the petition , and the motions to
dismiss are accordingly denied.
210 NLRB No. 16
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tab Electric, Lac., hereinafter referred to as Tab, has
effectively withdrawn from the associationwide tmit.
By letter dated September 24, 1973, within the period
set by the Association contract for modification, Tab
advised the Association that it was withdrawing
therefrom as of that date and that it would negotiate
individually with the Intervenor in future contract
negotiations . Later, at the hearing on October 16,
1973, before the terminal date of the Association
contract, Tab's attorney affirmed that Tab continued
to be bound by the terms and conditions of the
collective-bargaining agreement until its termination
on November 14, 1973.
Withdrawal by an employer from a multiemployer
bargaining unit must be unequivocal and exercised at
the appropriate time .4 Tab's written notice of
withdrawal was both unequivocal and timely, as it
notified the Association of Tab's unconditional
desire to withdraw from multiemployer bargaining
and was gives prior to the date set by the contract for
modif cattion. u% Tab's withdrawal was effective.
ORDER
It is hereby ordered that the above-entitled matter
be, and it hereby is, remanded to the Regional
Director for Region 2 for further proceedings to
determine the composition of the associationwide
unit.
In the event that the Regional Director determines
that a further hearing is necessary to determine the
composition of the associationwide unit,
IT IS FURTHER ORDERED that the hearing be
reopened, before a hearing officer to be designated
by the Regional Director , for the purpose of taking
additional testimony to resolve the issue set forth
above.
IT IS FURTHER ORDERED that the above-entitled
matter be, and it hereby is, referred to the Regional
Director for Region 2 for such action as he deems
necessary and consistent with this Order.
4 ReroN .4 w I.v., i2O NLRB 388, 395.