Dittler Bros., Inc.

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Company has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1), (2 ), ( 3), and (5) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Dittler Bros., -Inc., Ruralist Press, Inc., Foote & Davies, Inc., and Frank Carter and Julia Akins, Partners, d/b/a Superior Printing Company 1 and Truck Drivers and Helpers Local Union No. 728, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case No. 10-RC-4736. July 25, 1961 DECISION AND DIRECTION CF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Donald D. Greer, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed .2 Upon the entire record, the Board finds : 1. The Employers are engaged in commerce within the meaning of the Act. 2. The labor organizations named below claim to represent certain employees of the Employers. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employers, within Section 9(c) (1) and Section 2 (6) and (7) of the Act.' 4. The Petitioner seeks a multiemployer unit comprised of the em- ployees of the above-named Employers. Employer Foote & Davies, Inc., hereafter called Foote & Davies, and the Intervenor are the only parties objecting to the unit sought. Both urge the exclusion of Foote & Davies from the requested multiemployer unit. Foote & Davies argues that it has never participated in "true" multiemployer i The names of the Employers appear as corrected at the hearing. 2 We find no merit in the contention of the Intervenor , Atlanta Printing Specialties and Paper Products Union , Local 527, Subordinate to International Printing Pressmen and Assistants' Union of North America, APL-CIO, that the Regional Office ( Tenth Region) gave improper assistance to the Petitioner prior to the filing of the instant multiemployer petition. For the Regional Director's staff was merely carrying out its duties when, in connection with having Petitioner withdraw single-employer petitions , it told Petitioner of the existence of the multiemployer bargaining history involving the above-named Employers. See Statement of Procedure of the National Labor Relations Board, Section 101.18. Accordingly, we deny Intervenor's motion to dismiss based on such grounds. Intervenor's further contention that the form of the petition was not in conformity with Section 102 .60 of the Board 's Rules and Regulations is without merit. 3Intervener attacks Petitioner's showing of interest . The sufficiency of a Petitioner's showing of interest is an administrative matter not subject to litigation 0 D. Jennings & Company, 68 NLRB 516 . We are administratively satisfied that the Petitioner's show- ing of interest is adequate to support the instant multiemployer petition. 132 NLRB No. 29. DITTLER BROS ., INC., ETC. - 445' bargaining for the employee classifications involved herein, but that, even if it had, it has effectively withdrawn from the multiemployer - group. Intervenor argues that Foote & Davies has effectively with- drawn from what it admits is an established multiemployer bargain- ing group. Petitioner contrarily contends that the attempted with- drawal is ineffective because it took place after the filing of the petition. All the Employers are members of the Printing Industry of Atlanta, an employer association, and have bargained as a group with Inter- venor for the employee classifications involved herein since at least 1955. At the conclusion of such negotiations, each Employer has ex- ecuted a separate but identical agreement with Intervenor pursuant to a mutual understanding that they will be bound by the results of the negotiations. The most recent agreements between the Employers and the Inter- venor expired May 14, 1960. Thereafter, on May 17, the four Em- ployers, in the same manner as above, met with a representative of the Intervenor to attempt to negotiate new agreements. The instant' pe- tition was filed on June 24, 1960. On June 27 the Employers met' again with a representative of the Intervenor. On June 28, 1960, Foote & Davies notified the Association and the Intervenor of its intention of withdrawing from group bargaining, and thereafter, with the Intervenor's consent, bargained with the Intervenor on a single-employer basis.4 In view of the bargaining history, it is clear, and we find, that on, June 24, 1960, when Petitioner filed the instant multiemployer peti- tion, the employees of the four Employers constituted an appropri- ate multiemployer unit of which the employees of Foote & Davies were a part.' It is also clear that the attempted withdrawal of Foote & Davies took place after the instant petition was duly filed. *Following the close of the hearing , Foote & Davies advised the Board that it and Intervenor had executed an agreement on July 9, 1960 , shortly before the hearing opened. This agreement is not urged as a bar to the inclusion of Foote & Davies in the multi- employer unit. Indeed, the agreement provides that it shall become void if the Board determines that a unit other than a single-employer unit is appropriate , and Foote & Davies in addition has advised the Board that the contract has not been put into effect pending the determination ofthis proceeding 5 See, e.g., Local 19, International Brotherhood of Longshoremen, AFL-CIO ( Chicago Stevedoring Co, Inc ), 125 NLRB 61 , at 63-65; Alton Association of Petroleum Retailers, Inc., 124 NLRB 1213, at 1214-1215. Indeed, as noted above, Foote & Davies in Its June 28 letters of withdrawal admitted the existence of the bargaining group. We find no merit in Intervenor's contention that two firms not named in the petition are properly includible in the unit. As to one firm , the evidence indicates that, at most, it signed agreements with the Intervenor similar to those signed by the Employers. Such mere adoption of contracts affords insufficient basis for inclusion of this firm in- the multi- employer unit. See Shreveport-Bossier Cleaners & Laundries, Inc, 124 NLRB 534, at 536-537. As to the other firm, the record indicates that, if it ever did engage in joint bargaining, it withdrew therefrom at least 1 year before the instant proceeding com- menced. Accordingly, we deny Intervenor's motions in this connection And, as we have found that such firms are not includible in the unit , we also find, contrary to Intervenor, that they were not entitled to notice of this proceeding. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Foote & Davies and the Intervenor nevertheless content that the -withdrawal action precludes inclusion of the employees of this Em- ployer in the unit. We find no merit in their position. Thus, as found .above, the only appropriate unit on June 24, when the petition was duly filed, was the multiemployer unit including the employees of Foote & Davies. For the Board to recognize the withdrawal attempted -herein, it would in effect be permitting Foote & Davies and the Inter- venor to fragmentize the unit which was appropriate at the time the petition was filed. We do not believe that the purposes and policies of the Act would thus be served. In the circumstances of this case, therefore, we find that the attempted withdrawal herein was untimely and ineffective because it took place after the filing of the petition. We cannot agree with our dissenting colleague that in finding the with- drawal by Foote & Davies to be untimely, we are violating "the basic right . . . of employers to withdraw from multiemployer bargaining at appropriate times." Our colleague apparently misunderstands our opinion. We are not denying such right to Foote & Davies. What we are doing, rather, is fulfilling our statutory duty of determining what is an appropriate time for such withdrawal. And we have concluded, for the reasons stated, that the Foote & Davies withdrawal took place at an inappropriate time. The dissent, instead, would find that all withdrawals, for whatever motives, are timely, and must therefore be honored, so long as the old contract has expired and no new contract has been signed. Thus, it would permit unilateral employer with- drawals taking place after a petition is filed, the situation here pre- sented, or presumably after a hearing is held or, indeed, even after an election is directed. And it apparently would also permit the com- plete dissolution of multiemployer groups by their members at such times. The uncertainty as to what would be the appropriate unit or units at any given time resulting from such abandonment to individual employers of the Board's statutory control of unit determinations is obvious. But the dissent does not stop there. Thus, though asserting the prin- ciple of a unilateral right in employers to withdraw, it also grounds its finding, "in addition" to this right, on the failure of either the Employer group or the Intervenor-incumbent to object to the Foote & Davies withdrawal action. Would our dissenting colleague, as his logic compels, therefore refuse to recognize a withdrawal in another case if either of these parties objected? And if so, is he not thereby emasculating an employer's "basic right . . . to withdraw . . . at appropriate times," since the nonwithdrawing employers and/or the incumbent union could effectively thwart such "right" by objecting? The dissent purports to grant the Foote & Davies employees the opportunity of expressing their desires for representation. In fact, it does not grant them an adequate opportunity. Thus, it would not DITTLER BROS., INC., ETC. 447 afford them a self-determination election in which they could indicate their desire either for representation on a separate unit basis or for continued representation on the historic' overall multiemployer basis. Rather, it would establish two separate units, one of the Foote & Davies employees alone, and another of the other Employers' em- ployees. Thus, even if the Foote & Davies employees chose the same labor organization as the other employees, at least an apparent expres- sion of their desire for continued overall representation, it is not cer- tain that this desire would be fulfilled. For since the dissent would establish two separate units, two separate certifications would have to issue. And, therefore, either Foote & Davies or the remaining Em- ployers could refuse to bargain for a unit larger than the separately certified unit covering their employees alone. Thus, they could thereby effectively frustrate the desires of the Foote & Davies employees de- spite the purported protection of such desires by the dissent. Accordingly, for the foregoing reasons, we find that the multi- employer unit including Foote & Davies, as requested by the Peti- tioner, is appropriate and we shall direct an election therein. We therefore find that the following employees of Dittler Bros., Inc., Ruralist Press, Inc., Foote & Davies, Inc., and Frank Carter and Julia Akins, Partners, d/b/a Superior Printing Company constitute a unit appropriate for the purposes of collective bargaining within Section 9 (b) of the Act : All truckdrivers, packers, washup men, combination packers and utility men, jacklift men and helpers, and porters, at the Employers' Atlanta, Georgia, operations, excluding technical employees, sales employees, office clerical employees, professional, employees, guards, and supervisors as defined in the Act, and all other employees.6 [Text of Direction of Election omitted from publication.] MEMBER FANNING, dissenting : I dissent from the decision of my colleagues to include the em- ployees of Foote & Davies in the multiemployer unit in which they direct an election. Instead I would direct two elections : one in the multiemployer unit minus the employees of Foote & Davies, and an- other in a separate unit limited to the employees of Foote & Davies. My reason for so doing is the basic right-as I see it-of employers to withdraw from multiemployer bargaining at appropriate times. This is a right the Board has frequently recognized but does not here honor.' In this case the contract between the Employers and the Intervenor had expired. Negotiations were under way but no new 6 The composition of the unit was stipulated to by all the parties and is in conformity with the bargaining history 7 See International Brotherhood of Electrical Workers, AFL-CIO, and Local 59, etc. ( Texlite, Inc ), 119 NLRB 1792, 1793, and cases there cited. 448 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD contract had been agreed upon when the petition was filed. This was an appropriate time for the petition of a new bargaining representa- tive, but also an appropriate time for withdrawal by an Employer member of the group who, for any reason, preferred to bargain in the future on a single-employer basis. In addition, the Employer group, as such, acquiesced in the withdrawal, as did the incumbent Union, hence there was no objection to the withdrawal by any party 'to the existing bargaining relationship. When, as here, such withdrawal takes place after a petition by an- other union has been filed for the overall unit, I would, however, direct that an election be held to determine the desires of the employees whose Employer has withdrawn.8 As the incumbent Union is still seeking to represent these employees evidenced by the post-petition contract entered into between it and Foote & Davies, the withdrawing Employer-I would of course put that Union on the ballot. My colleagues characterize my position as an "abandonment to in- dividual employers of the Board's statutory control of unit determina- tions." I would describe it, instead, as a realistic interpretation of the Board's statutory authority., They overlook the fact that the statute makes no provision for multiemployer units. Specifically Sec- tion 9(b) provides: The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof : That multiemployer units receive Board recognition at all stems from the fact that the employers involved have themselves agreed to be treated as "an" employer. The Board does not undertake to set up a multiemployer unit in the first instance absent specific assent by the employers or a pattern of bargaining-by them indicating assent. All multiemployer bargaining units which 'result from Board proceedings are peculiarly.the result' of employer consent and Board' discretion. When one' of such a ' group seeks, to withdraw from such bargaining, the Board-as my colleagues agree-will, if a petition is, before 'it, decide whether the time is appropriate for such withdrawal. This determination involves, among other basic ' considerations, fair play to the parties to the existing relationship. With regard to this case I consider the time appropriate inasmuch as bargaining was then 8I would require no showing of interest by Petitioner in the single-plant unit inasmuch as Petitioner's showing is adequate in the multiemployer unit as it existed when the peti- tion was filed, and inasmuch as I would also direct an election in the remnant of that unit Compare Andes Fruit Company, et al, 124 NLRB 781, footnote 23, in which I did not participate ; Koehring Southern Company, 108 NLRB 1131, footnote 12. In both no election was directed in the larger unit petitioned for. HALLENBERGER, INC. 449 going on and all parties to the, existing relationship acquiesced in the withdrawal. Obviously my views are limited to the facts here in- volved and I do not express an opinion as to appropriate times for withdrawals generally. I believe that it is equally obvious that grant- ing the employees of Foote & Davies a self-determination election as to whether they wish to return to a multiemployer unit from which their employer has withdrawn would,run contrary to the concept that their employer can effect' a withdrawal and has done so. CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the consideration of the above Decision and Direction of Election. Hallenberger, Inc. and Chauffeurs, Teamsters and Helpers Local Union 215, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America .' Case No. 25-Rill-118. , July 25, 1961 DECISION AND DIRECTION OF ELECTION . ` Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Jolln W. Hines, hearing offi- cer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 2 ' 1 11 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Leedom]. Upon the entire record in this case, the Board finds : 1. The Employer, an Indiana corporation having a place of busi- ness in Evansville, Indiana, is engaged in selling and- servicing trailer and tractor equipment at wholesale and retail. During the year end- ing April 1,• 1961, its sales were valued at more than $500,000, of which in excess of $250,000 represented sales to customers located out- side the State of Indiana. During the same period, its purchases from sources outside the State were valued at more than $300,000. We find, contrary to the Union's contention, that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to' assert jurisdiction herein.' 1 The name of the Union appears as amended at the hearing. 2 At the hearing the Union moved to strike from the record the testimony of the Employer's president because of its allegedly incredible nature and the witness' allegedly evasive attitude. The hearing officer denied the motion See Sec 102 66(d) (3), rational Labor Relations Board Rules and Regulations , Series 8 ( 1959 ). The Union has renewed the motion before the Board . We find no error in the hearing officer's ruling . Accord- ingly, it is hereby affirmed. ` 9 The Union has moved to dismiss the petition because of the alleged lack of valid evidence to prove jurisdiction The above findings as to jurisdiction are based on the 132 NLRB No. 35.