U.S. Pillow Corp.

584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U.S. Pillow Corporation and Bedding, Curtain and Drapery Workers Union Local 140, United Furniture Workers of America, AFL-CIO, Petitioner. Case No. 2-RC-11543. June 121 1962 DECISION ON REVIEW On October 12, 1961, the Regional Director for the Second Region issued a Decision and Direction of Election in the above-entitled pro- ceeding. Thereafter, the Employer and the Textile Trades Associa- tion, hereinafter referred to as the Association, of which the Employer is a member, jointly filed with the Board, in accordance with Section 102.67 of the Board's Rules and Regulations, as amended, a timely re- quest for review of such Decision and Direction of Election, on the ground that the Regional Director erroneously found a unit limited to the employees of the Employer to be appropriate. The Board by telegraphic order, dated November 14, 1961, granted the request for review and stayed the election pending its considera- tion of the merits of the unit issue. Thereafter, the Employer and the Association jointly filed a brief in support of the request for review and the Petitioner filed a brief in support of the Regional Director's unit determination. The Board has considered the record as it bears on the unit issue,' and the briefs of the parties, and makes the following findings : The Intervenor has represented the employees of the Employer sought herein since 1955. The Intervenor has also been the bargain- ing representative of employees of members of the Association since at least June 1960 when its current associationwide contract was executed.2 In October 1960 the Employer, which then had a separate contract with the Intervenor executed in January 1960, applied for and was accepted into membership in the Association and agreed with the Intervenor to be bound by the existing Association contract. The Petitioner filed its petition herein on August 21, 1961. The Employer has not withdrawn from the Association and has indicated that it de- sires to continue its course of multiemployer bargaining. The Regional Director found that neither the existing multiem- ployer contract between the Association and the Intervenor, New York City Council Textile Workers Union, Local 77, nor the antecedent contract between the Employer and the Intervenor, was operative to bar the petition filed herein. He further found that the bargaining history on a multiemployer basis, especially in the light of the 'The request for oral argument is hereby denied as the record and briefs, in our opinion, adequately present the issues and positions of the parties. 2 The Employer and the Association note in their brief on review that the association- wide bargaining history with the Intervenor commenced in 1957 or 1958 and request that such fact be received in evidence . In view of our disposition herein, we find it un- necessary to pass upon this request. 137 NLRB No. 72. U.S. PILLOW CORPORATION 585 antecedent single-employer bargaining history, was too brief to pre- clude finding appropriate a unit confined to employees of the Em- ployer. That conclusion was supported by Board precedent.' The Employer and Intervenor in their request for review contended that the only appropriate unit is multiemployer in scope, and that decisions holding to the contrary are inapposite or incorrect. In support of their position they relied in substantial part upon alleged inconsis- tencies in, and an asserted need for clarification of, Board precedents dealing with this type of situation. No review was requested of the finding that neither contract was a bar. Our examination of the relevant Board cases cited by the Employer and the Intervenor reveals that the ultimate conclusion in each has been stated in terms of the length of membership in a multiemployer as- sociation. At first blush those cases seem to be conflicting in that some found multiemployer bargaining of less than a year to be controlling whereas others found the same period of group bargaining not con- trolling. However, the cases are reconcilable and the different results reached are explainable on the basis of clear factual distinctions. Thus, in every case in which the bargaining history as part of a multiem- ployer group was held to be controlling either (1) there was no rival union involved, the employers had unequivocally indicated their in- tent to be bound by group action, and the petitioner sought their in- elusion,4 or (2) there was a rival claim filed but before the filing of the petition a new multiemployer contract had been executed in which the employer had joined and by which he was bound, even though the multiemployer contract was not asserted as a bar. This second group of cases divides into two subsidiary groups, (a) those in which there had been no prior bargaining on a separate employer basis,,' and (b) those in which there had been such a prior bargaining history,° but the employer had taken definitive action as part of the group. In $ The Regional Director cited and relied upon Miron Building Products Co , Inc, Miron Rapid Mis• Concrete Corp., 116 NLRB 1406, which states that "The Board has con- sistently held that multiemployer bargaining history of [less than 1 year] and not predicated upon a Board certification does not warrant the finding that only a multi- employer unit is appropriate." * Denver Heating, Piping and Air Conditioning Contractors Association and its Members and Denver Master Plumbers Association and its Members, 99 NLRB 251; Northern Nevada Chapter. National Electrical Contractors Association and Represented Employers, 131 NLRB 550 Each of these cases involved employers who were new members of the association and had joined less than a year before the petition was filed And see Anderson Lithograph Company, Inc and Jeffries Banknote Company, 124 NLRB 920, enfd. sub nom N.L R B. v Jeffries Banknote Company, 281 F. 2d 893 (C.A. 9). 5 Acryvin Corporation of America, 107 NLRB 917; Associated Banning Company, et al, 110 NLRB 1644; W. S. Ponton of N.J. Inc., 93 NLRB 924. In each of these cases the- employer had been a member of the multiemployer group less than 12 months when the- petition was filed. d Motor Cargo, Inc., 108 NLRB 716; Taylor and Boggis Foundry, Division of The Consolidated Iron-Steel Manufacturing Company, 98 NLRB 481. In each of these cases. the employer bad been a member of the multiemployer group for more than 12 months but, in addition, had actively participated in negotiations for a new contract and had signed such contract. There was no finding that the association contract was a bar. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -contrast, in the cases in which bargaining on a multiemployer' basis has been held of too short duration to be controlling, either (1) special factors were present,? or (2) the rival petition was filed before defini- tive action was taken by the employer to participate in group bargain- ing or to sign a new multiemployer contract." On the basis of this analysis, we find that there is a factual harmony in the cases and that their pattern may be broadly analogized to the Board's contract-bar rules. Therefore, we shall continue to adhere to -our prior cases but shall restate the holdings thereof in light of our analysis herein. Without attempting at this time to restate rules ap- -plicable to all possible factual situations, we hold that where as here there has been a prior bargaining history on an individual basis, a rival petition for a single employer unit will prevail if timely filed before the insulated period of the last individual contract, even if the employer has adopted or joined in a multiemployer contract and whether or not that multiemployer contract would otherwise be a bar to a petition.9 In our opinion, this rule is sound and will serve to clarify this area ,of the Board's holdings, aid interested parties in understanding their rights and obligations, and serve as guidance to Regional Directors in ?Henry Goldberg and Harry C Marcus, Partners, d/b/a Central Optical Company, et at, 88 NLRB 416, in which the employer filed a petition for a multiemployer unit and the incumbent filed separate petitions for separate employer units There was no rival claim The employers had bargained separately with the union for various periods of between 7 and 16 years. In 1948 all five employers bargained jointly and signed separate but identical contracts based on a jointly signed memorandum of agreement In 1949, negotiations were begun on a group basis but were broken off because the employers were prepared only to bargain individually The petitions were filed thereafter, over a year after the 1948 joint bargaining had begun In Moron Building Products Co, Inc, Moron Rapid Mix Concrete Corp, supra, the case relied on by the Regional Director, two em- ployers had signed a joint contract less than a year before the rival petition was filed but other factors were present. Thus, Miron had bargained with United Aline workers for some time prior to October 1, 1954, while Island Dock Lumber, Inc, had bargained 'with the intervenor, a local of the Carpenters Union On that date Moron and Island Dock signed a joint 2-year contract with the Carpenters Local The rival petition was filed in August 1955, less than a year later, and was held timely because the contract contained a maintenance-of-membership provision entered at a time when the contracting union was not in compliance with the then effective Section 9(f), (g), and (h) of the Act while not relied on or especially commented upon in the decision, it is noted that the facts reveal that Miron changed its recognition from the United Mine workers to the 'Carpenters Local without a showing of a change of affiliation by its employees. 8 The Van Iderstine Company, 95 NLRB 966, in which there had been bargaining on a single employer basis by various employers for about 10 years The employer's last sepa- irate contract was for a 2-year term, and near the end of the first year group negotiations were held on wage reopening Near the end of the second year and after the petition was filed, a group contract was signed which was a premature extension of the individual employer's separate contract. The petition was timely filed with respect to the original expiration date of that separate contract. Jerry Fairbanks, Inc, 98 NLRB 898, was not cited by the intervenor or employer in connection with this aspect of the review but is frequently cited by the Board as authority for holding a multiemployer bargaining his- tory too short to be controlling. In that case there was, in fact, no multiemployer con- tract ever entered The various association members had bargained separately and signed separate contracts for several years. Thereafter they engaged in joint bargaining for "about 1 year" but the Board noted that there was no evidence that they had ever succeeded in negotiating any terms with the incumbent intervenor. 9 See The Van Iderstine Company, supra U.S. PILLOW CORPORATION 587 disposing of cases before them. In the present case, the last individual contract of the Employer was for a 3-year period. During the first year thereof the Employer joined the association and adopted the association-intervenor contract which had a later termination date than did his individual contract. Approximately 11 months after the Employer joined the association and adopted the group contract, but timely with respect to the insulated period at the end of the first 2 years of the individual contract, the instant petition was filed for the single-employer unit. Therefore, we find the petition timely and the group bargaining not controlling." Accordingly, we find that a question affecting commerce exists con- cerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, and hereby affirm the Regional Director's finding that the single-employer unit is appropriate. The case is therefore hereby remanded to the Regional Director for the Second Region for the purpose of holding an election pursuant to his Decision and Direction of Election, except that the payroll period for determining eligibility shall be that im- mediately preceding the date below." MEMBER LEEDOM , concurring : Under well-established Board precedent, a multiemployer bargain- ing history of brief duration cannot foreclose a petition seeking a unit confined to a single employer whose employees had an antecedent history of bargaining on a separate basis.12 The Employer here had bargained with the Intervenor initially on a single-employer basis for approximately 5 years. Although the Employer bargained thereafter on a multiemployer basis, it had done so for less than 11 months at the time the petition vas filed. Such a multiemployer bargaining i" In I. Mailer & Bro., Inc, 135 NLRB 924, on facts similar to those in the instant case, the petition was dismissed solely because it was filed 16 months after the employer joined the association. We now disagree with that conclusion and overrule it. n Subsequent to the Board's Order herein granting review, Local 819, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, filed a motion requesting that it be substituted for the Intervenor herein on the ground that the membership of the Intervenor had voted to merge that labor organization with the movant. The Petitioner opposed the motion and requested a hearing thereon The Employer notified the Board that it now recognizes the movant as representative of the contractual unit and does not oppose the motion. In the circumstances, absent any alle- gations of contrary fact which would require a hearing, we hereby grant the motion and direct that the movant's name be substituted for that of the Intervenor on the ballot for the election to be conducted herein. 12 See Miron Building Products Co., Inc, Heron Rapid Mix Concrete Corp, 116 NLRB 1406; Bull Insular Line, Inc, et al, 107 NLRB 674, 679 at footnote 24; The Van Iderstane Company, 95 NLRB 966; Jerry Fairbanks, Inc., 93 NLRB 898; Henry Goldberg and Harry C. Marcus, Partners, d/b/a Central Optical Company, et al, 88 NLRB 416, 419; Norcal Packing Company, et al, 76 NLRB 254. In all of the cited cases the Board's determination of what constituted a "brief" dura- tion for the multiemployer relationship was predicated upon a comparison of such history with an antecedent bargaining history on a single-employer basis for the employees being sought. In some of these cases, the Board held that " less than 1 year" was brief ; In others, it found "about a year" to be brief. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD history was too brief, as opposed to the earlier history of separate bar- gaining, to bar a petition seeking the single-employer unit. Accord- ingly, I concur in the decision to affirm the Regional Director's unit finding and direct an immediate election. CHAIRMAN McCuLLOCH and Mr rBER RoDOERS took no part in the consideration of the above Decision on Review. International Marine Terminals, Inc. and John H. Jemiolo Local 928, International Longshoremen's Association, AFL-CIO and International Longshoremen's Association, AFL-CIO and John H. Jemiolo International Marine Terminals, Inc. and Edward L. Jemiolo Local 928, International Longshoremen's Association, AFL-CIO and International Longshoremen's Association, AFL-CIO and Edward L. Jemiolo International Marine Terminals, Inc. and John Murphy Local 928, International Longshoremen's Association, AFL-CIO and International Longshoremen's Association, AFL-CIO and John Murphy International Marine Terminals, Inc. and Thomas Murphy Local 928, International Longshoremen 's Association, AFL-CIO and International Longshoremen's Association, AFL-CIO and Thomas Murphy. Cases Nos. 3-CA-1520-1, 3-CB-486-1, 3-CA- 1520-2, 3-CB-486-2, 3-CA-1520-3, 3-CB-486-3, 3-CA-1520-4, and 3-CB-486-4. June 13, 1962 DECISION AND ORDER On November 30, 1961, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in certain unfair labor prac- tices and recommending that the complaint be dismissed, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, to the extent consistent with our opinion hereinafter. 137 NLRB No. 70.