Wm. T. Kirley Lumber Co.

National Labor Relations Board - Board Decisions

Mar 22, 1971

189 N.L.R.B. 130 (N.L.R.B. 1971)

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wm. T. Kirley Lumber Company and Robert F.
MacLeod , Petitioner , and Local 379, International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America , Case 1-RD-617
March 22, 1971
DECISION ON REVIEW AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On September 21, 1970, the Regional Director for
Region 1 issued a Decision and Direction of Election
in the above-entitled proceeding, in which he found
appropriate a single-employer unit of the Employer's
employees. Thereafter, the Union, in accordance with
Section 102.67 of the National Labor Relations Board
Rules and Regulations and Statements of Procedures,
Series 8, as amended, filed a request for review in
which it contended, inter alia, that only a multiem-
ployer unit is appropriate.
On October 20,1970, the Board by telegraphic order
granted the request for review and postponed the
election pending Decision on Review.' Thereafter, the
Employer filed a brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has considered the entire record in this
case with respect to the issues under review, and for
the reasons set forth below finds, contrary to the
Regional Director, that the petitioned-for unit is
inappropriate.
The Petitioner seeks to decertify the Union in a
single-employer unit consisting of all the Employer's
drivers and yardmen at its place of business in
Dorchester, Massachusetts. The Employer, in agree-
ment with the Petitioner, asserts that this single-
employer unit is appropriate. The Union, however,
contends the petition should be dismissed because of
a controlling history of collective bargaining on a
multiemployer basis. We agree with the Union.
The record shows that since the early 1950's the
Employer has been a member of the Greater Boston
Lumber Dealers Association, whose membership is
composed of area lumber dealers (12 or 13 as of the
time of the 1970 negotiations). The Association exists
I On November 2, 1970, the Board denied the Employer's motion to
vacate the grant of review
2 In the 1970 negotiations , the Association represented the same
members who had participated in the 1967-70 agreement This group was
somewhat smaller than the number of members as of 1966
3 So far as the record shows , the only variation among these agreements
was contained in the agreement signed by C H Spring Company, Inc,
division of member-dealer L Grossman and Sons, Inc That contract, as a
result of supplemental negotiations between the Union and that employer,
for the purpose of collective bargaining and has
negotiated a series of collective-bargaining agree-
ments with the Union for its members.
As the termination date for any given agreements
approaches, members of the Association elect a
committee to bargain collectively with the Union. In
the ensuing negotiations, the bargaining committee
speaks for all the member-dealers on issues which are
common to, or affect, the overall dealer group. After
these issues are resolved by negotiation, they com-
prise, in the language of the Employer's brief, the
"basic items" of agreement . They have included such
matters as pay, hours of work, union security,
apprenticeship, holidays, overtime, union pension
fund contributions, vacations, grievances, and arbi-
tration.
The most recently expired contract negotiated by
the Union and the Association covered a period from
May 1, 1967, to April 30, 1970.2 While each employer-
member, including Kirley, had signed a separate
agreement with the Union for the 1967-70 period, the
separate agreements were substantially identical3 and
covered the items listed above.
On March 19, 1970, representatives of these associa-
tion members, including Walter T. Kirley, Jr., of the
Employer, elected a bargaining committee, designat-
ed Herbert Bearak as chairman, and discussed the
impending negotiations together with any articular
problems or ideas the various dealers may have had.
Kirley authorized Bearak to negotiate for the Em-
ployer not only with respect to the common items
such as those contained in the 1967-70 contract, but
also with regard to some problems caused by the
institution of a second shift. Bearak replied that this
latter item "would not be part of the bargaining as
such by the committee" because it did not affect the
overall dealer group, but that he would notify the
Union that Kirley had certain individual problems it
wished to discuss with the Union.4 At the first
negotiating session with the Union, Bearak did so
notify the Union.
On March 23, 1970, the association bargaining
committee and the Union held their first meeting to
negotiate the overall terms and conditions of the new
contract. The parties met from time to time between
this date and May 1, 1970. On may 1, the Union struck;
but the parties continued to meet until May 26, 1970,
when they reached a settlement . The terms of the
permitted Grossman to have a certain number of sales trainees work
alongside union personnel under certain conditions, and allowed Grossman
to employ one tallyman to work certain nights at straight time rather than
time and a half
4 Bearak pointed out to Kirley that , after the overall negotiations for the
preceding contract had been completed , Grossman separately negotiated
its own addendum (described above) with the Union, thus Kirley would be
following an established procedure for the negotiating of an individual
employer issue
189 NLRB No. 9
WM. T. KIRLEY LUMBER COMPANY 131
settlement included nine specific changes in the
provisions of the most recently expired contract,
although the same basic areas were covered---pay,
hours of work, union security, apprenticeship, holi-
days, overtime, union pension fund contributions,
vacations, grievances, and arbitration. The settlement
also reiterated the stipulation that specific addenda to
the Kirley contract (and the Grossman contract)
"must continue to be negotiated." On July 17,1970, the
instant petition was filed.
As stated above, the Petitioner and the Employer
assert that a single-employer unit is appropriate and
that a multiemployer unit never existed.5 In this
regard, the Employer relies on the individual con-
tracts signed by each employer for 1967-70, and the
claim that the recognition clause of the Employer's
expired 1967-70 contract is limited in scope to a unit of
its own employees; on the contention that the single-
employer unit is the only one for which the Employer
has historically bargained; on the asserted lack of
intent by association members and the Union to
merge all the employees of all the employers into a
single unit; on the Association's lack of bylaws or
formal organization, and the changes in its member-
ship; on the variances in some contract terms and
conditions of work; and on the direct negotiations for
such variances. We find these contentions without
merit.
"What is essential" to establish a multiemployer
unit "is that the employer member has indicated from
the outset an intention to be bound in collective
bargaining by group rather than by individual
action."6 We think that intention is clearly estab-
lished in this case by the facts outlined above. Thus,
the Employer has maintained membership in the
Association for many years; the Association has been
authorized by its members to represent them as a
group in collective bargaining and has done so,
dealing with wages, hours, and other basic terms and
conditions of employment of the employees of all of
them; Kirley has been party to the contracts negotiat-
ed by the association bargaining representative; the
individual contracts of each employer-member have
been identical to those of other association members,
5 There is no contention that, assuming a multiemployer unit existed,
the Employer withdrew therefrom
6 The Kroger Co, 148 NLRB 569, 573.
T Wards Cove Packing Company, Inc, 160 NLRB 232, 235, Korner Kafe,
Inc, 156 NLRB 1157, 1161, Johnson Sheet Metal, Inc, 179 NLRB No 104,
TXD secs II A and F (1) Indeed, where as here employers consider
themselves bound by the results of joint negotiations, the Board has held,
in an analogous situation , that it is immaterial that a master agreement
specifies it is executed severally and not jointly , for such language "only
except for matters which were relevant only to specific
employer-members; and Kerley authorized the Asso-
ciation to negotiate for it during the 1970 negotiations.
While the 1967-70 agreement entered into by Kirley
states it was "by and between" the Employer and the
Union, was signed by these parties, and appears to
grant the Union recognition as representative of this
Employer's employees, these details are merely
incidental byproducts of an established multiemploy-
er bargaining relationship. And, in circumstances
such as those here present, the Board does not give
controlling weight to the technicality of separate,
signed agreements for purposes of determining the
existence or nonexistence of multiemployer units.?
We also disagree with the Employer's claim that the
Union has historically bargained for the single-
employer unit now petitioned for. The only evidence
of single-employer bargaining for Kirley is the 1970
variation dealing with the matter of its second shift.
That evidence, in the context of the overall bargaining
history, is hardly sufficient to support the Employer's
claim. For, as the Board has held, the exercise of a
mutually recognized privilege to bargain individually
on limited matters, as in the present case, is not
inconsistent with the concept of collective bargaining
in a multiemploye unit.8
Finally, where as here employers have evidenced an
intention to be bound in collective bargaining by
group action, that intent is not defeated by the
Association's lack of bylaws or formal organization,9
or by changes in its membership.10
In view of the history of bargaining on a multiem-
ployer basis, the failure of the Union and the
Employer to withdraw from such bargaining and the
fact that the instant decertification petition was filed
upon the virtual conclusion of multiemployer negotia-
tions, we find that the only appropriate unit at this
time is multiemployer in scope.ii We shall therefore
dismiss the petition herein.
ORDER
It is hereby ordered that the petition herein be, and
it hereby is, dismissed.
indicates the individual responsibility of each employer resulting from the
multiemployer bargaining " Wards Cove Packing, supra, 235, In 10
8 The Kroger Co, 148 NLRB 569, 573
9 Id at 571
iU Wards Cove Packing Co, 160 NLRB 232, 236
ii Thomas H Marrow Trucking Co, 155 NLRB 271, The Kroger Co, 148
NLRB 569; Quality Limestone Products , Inc, 143 NLRB 589 Because of
our disposition of the unit issue herein , we find it unnecessary to, and do
not, reach the contentions of the parties on the contract -bar question