Arden Electric

National Labor Relations Board - Board Decisions

Aug 12, 1982

263 N.L.R.B. 318 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arden Electric, et al. and Local 340, International
Brotherhood of Electrical Workers affiliated
with International Brotherhood of Electrical
Workers, Petitioner. Cases 20-RC-15401
through 20-RC- 15417
August 12, 1982
ORDER
On May 14, 1982, Sacramento Valley Chapter,
National Electrical Contractors Association, and
certain other Employers' filed with the Board a
motion for reconsideration of its decision directing
that the petitions filed in the instant case be rein-
stated and that the cases be remanded to the Re-
gional Director for a hearing.
After careful consideration, the Board has deter-
mined that the motion should be granted in part.2
Thus, the previous ruling is hereby amended to
direct a hearing limited to the issue of the continu-
ing existence or viability of the multiemployer unit
which the Regional Director has administratively
found to constitute a bar to the petitions. The
Board desires that at this time the parties be afford-
ed an opportunity to adduce evidence bearing
solely on the aforementioned issue.3 This evidence
shall include, but not necessarily be limited to:
1. The extent of the authority of Sacramento
Valley Chapter, National Electrical Contrac-
tors Association, as demonstrated by letters of
assent, by-laws, or any other evidence, to bar-
gain with unions other than Local 340, Inter-
national Brotherhood of Electrical Workers,
for electrical contracting work;
2. The degree to which specific named Em-
ployer-members of the Association did or did
not attempt to withdraw from the Sacramento
Valley Chapter, National Electrical Contrac-
tors Association and the number of Employers
and employees involved; and
3. The manner (e.g., how, when, etc.) in
which these Employers sought to or did with-
draw.
Contrary to our dissenting colleagues, we feel
that the action taken in this case is entirely appro-
priate and clearly warranted by the present state of
the record. Facts crucial to a determination on the
appropriateness of the individual petitions before us
are not clear, and must be resolved before any au-
thoritative assessment can be made. Unlike the dis-
sent, we find it unwise to assume that Employer-
members have consented to a multiemployer bar-
I AD-1345 (May 5, 1982).
· The Employer's request for en banc consideration is also granted. In
all other respects the motion is hereby denied.
a See, e.g., The President and Fellows of Harvrd College, 229 NLRB
586 (1977).
263 NLRB No. 37
gaining relationship with any union other than
IBEW, and that the present petitions are thus
barred. We find it even less wise to treat this ques-
tion as immaterial. As the Board and one of our
dissenting colleagues have recognized "[t]he Board
does not find a multiemployer unit appropriate
except where all parties clearly agree to such a unit
or whore there has been a history of bargaining on
a multiemployer basis and the employers and either
the incumbent or a rival union desire to continue
bargaining on such a basis. In the absence of either
of these two factors, the Board will not find appro-
priate a unit covering employees of more than one
employer, regardless of the desirability of such a
unit." The Evening News Association, 154 NLRB
1494, 1496 (1965) (emphasis supplied).
Thus, we take the most appropriate measure now
available to answer the question before us and
direct this preliminary hearing.
IT IS HEREBY ORDERED that this proceeding be
remanded for the purpose of taking evidence on
the sole issue set forth above, and that after the
taking of such evidence, the above-entitled matter
be transferred to and continued before the Board in
Washington, D.C.
IT IS HEREBY ORDERED that, upon service of the
order transferring this matter, the parties may file
briefs with the Executive Secretary, National
Labor Relations Board, Washington, D.C. 20570,
in accordance with Section 102.67(i) of the Nation-
al Labor Relations Board Rules and Regulations,
Series 8, as amended.
MEMBERS JENKINS and HUNTER, dissenting:
Thirty years ago, the Board recognized the im-
propriety of allowing an incumbent union, after
having bargained for many years on a multiem-
ployer basis, to disrupt the multiemployer unit by
petitioning for a unit of the employees of one of
the employers in the existing unit. The Stouffer
Corp., 101 NLRB 1331 (1952). Since then, the rule
barring such a petition has evolved into one regu-
lating the time and manner of attempts by unions
and employers alike to withdraw from multiem-
ployer units. The Evening News Association, 154
NLRB 1494, 1496 (1964), enfd. 372 F.2d 569 (6th
Cir. 1967). But it has remained the Board's position
that a union may not, by the device of disclaiming
an interest in representing certain employees, ac-
complish an untimely withdrawal from the mul-
tiemployer unit. William Moses, Rose Moses and
Eugene Moses, Individually and as Trustees for the
Estate of Bella Moses, 247 NLRB 144 (1980). In
Moses, the incumbent union attempted to withdraw
partially from the multiemployer unit by disclaim-
ing an interest in representing the employees of one
318
ARDEN ELECTRIC, ET AL.
employer. In the instant case, the Petitioner has at-
tempted to disrupt the existing multiemployer unit
by purporting to disclaim an interest in represent-
ing any employees in the unit, and then, almost im-
mediately, filing petitions for single-employer units
of employees of 17 of the employers in the unit.
The Board cannot, consistent with the line of cases
outlined above, permit the Petitioner to succeed in
this blatant attempt to whipsaw the unit. As the
Petitioner's attempted withdrawal was untimely for
the purposes of fragmenting the unit, we would
affirm the Regional Director's administrative dis-
missal of the petitions.
The majority would remand the case for a hear-
ing on the issue of the authority of the employer
association representing the unit employers to bar-
gain with unions other than the Petitioner and on
the attempts of employers to withdraw from the
unit. We find such a remand to be unnecessary.
The association's authority to bargain with another
union is irrelevant to the issue before us-the ap-
propriateness of the petitioned-for units. Although,
in response to the Petitioner's "disclaimer," the as-
sociation has purported to recognize another union,
it has taken no action inconsistent with the contin-
ued existence of the multiemployer unit. Whether
the Petitioner or the new union is the lawfully rec-
ognized representative of the employees in the mul-
tiemployer unit is a question for another day.' Suf-
ficient to say, there is a union willing to represent
them on a multiemployer basis. See The Evening
News Association, Incorporated, supra.
Nor has a material issue of fact been raised as to
the effective withdrawal of a sufficient number of
4 if, ultimately, the Petitioner should be found to have lost its repre-
sentative status, that will be a situation largely of its own making.
employers from the unit to fragment and thereby
destroy the integrity of the unit. The association,
which has the right to prevent untimely withdraw-
als by its employer-members even if the union con-
sents, has not consented to any such withdrawals.
Teamsters Union Local No. 378, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Capitol
Chevrolet Co.), 243 NLRB 1086, 1089, fn. 1 (1979).
Moreover, no evidence has been proffered to us
that a substantial number of employers in the mul-
tiemployer unit, including any who are named in
the instant petitions, took timely steps to withdraw.
As to any employers who may have attempted to
withdraw after the Petitioner's "disclaimer," the
question of whether the "disclaimer" was such an
unusual circumstance as would permit them to do
so when, as here, withdrawal would otherwise
have been untimely, is not before us. We do not
burden representation cases with unnecessary
unfair labor practice issues. Whether or not any
employers would have been justified in withdraw-
ing in response to the Petitioner's actions, simple
justice forbids that if the Petitioner succeeded
through impermissible means in fragmenting the
unit it should profit by its wrongdoing. Therefore,
we conclude that for purposes of acting on the in-
stant petitions the multiemployer unit should be
deemed to exist as it did before the Petitioner's
misleading "disclaimer," and that it is thus a viable
unit that precludes a finding that the separate units
sought are appropriate. If, given a ruling by the
Board that the multiemployer unit still exists as
before, any employers still wish to withdraw, the
propriety of their doing so may be determined in
an appropriate proceeding.
319