Fullview Industries, Inc.

FULLVIEW INDUSTRIES, INC. 427 Fullview Industries, Inc. and Richard J. Matthews, Petitioner and Sheet Metal Workers' International Association, Local Union No. 170, AFL-CIO; Glaziers & Glassworkers, Local Union No. 636, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO; Miscellaneous Ware- housemen, Drivers and Helpers, Local 986, International Brotherhood of Teamsters , Chauffeurs, Warehousemen, and Helpers of America Fullview Industries, Inc. and Miscellaneous Warehousemen, Drivers and Helpers, Local 986, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Petitioner. Cases Nos. 21-RD-725 and 21-RC-9075. October 30, 1964 DECISION AND DIRECTION OF ELECTION Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held in these consolidated cases before Hearing Officer Max Steinfeld. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman McCulloch and Members Leedom and Brown]. Upon the entire record in these cases, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer.' 3. A question affecting commerce exists concerning the representa- tion of employees within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. Fullview Industries, Inc., the Employer herein, is engaged in the manufacture of glass doors and other aluminum products in Glen- dale, California, On September 1, 1961, a collective-bargaining agreement covering the Employer's production and maintenance em- ployees was entered into by the Employer and the Joint Intervenors. ' Sheet Metal International Worker' s Association , Local Union No. 170, AFL-CIO, and Glaziers & Glassworkers, Local Union No 636, Brotherhood of Painters , Decorators, and Paperhangers of America, AFL-CIO, the Joint Intervenors herein, were permitted to inter- vene in Case No. 21-RC-9075 on the basis of their contractual interest in the employees involved. 149 NLRB No. 41. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This contract was effective for a 3-year period, ending on Septem- ber 1, 1964. On May 25, 1962, pursuant to a supplemental agree- ment between the parties to the original contract and Miscellaneous Warehousemen, Drivers and Helpers, Local 986, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, the Union-Petitioner herein, that Petitioner became a party to the original contract. The supplemental agreement provided, inter alia, that the Union-Petitioner was to represent employees iii the classification of forklift operator, truckdriver, and a warehouse- man, and further provided : Said Local 986 will not claim to represent employees other than employees in the classifications above set forth during the term of said collective-bargaining agreement. In late May or early June 1964, the Joint Intervenors and Union- Petitioner, sometimes referred to herein as the Unions, met with the Employer to discuss a grievance which had arisen under the terms of the contract. At that meeting the Union-Petitioner stated its in- tention to participate in joint negotiations with the Joint Intervenors for a new contract. On June 7 representatives of the Unions met with employees covered by the agreement to discuss forthcoming contract negotiations. A representative of the Union-Petitioner was present at the meeting and he indicated Union-Petitioner intended to continue to participate in joint bargaining with the other unions. On the following day, June 8, a decertification petition (Case No. 21- RD-725) was filed by an individual seeking to decertify the Sheet Metal Workers as representative of certain classifications of em- ployees, and on June 18 the petition was amended to seek to de- certify the Unions as representatives of all production and mainte- nance employees of the Employer. On June 22 the Union-Petitioner notified the Employer and the Joint Intervenors that it would no longer participate in joint negotiations with them. On June 23 the Employer advised the Unions of its desire to commence negotiations on a new contract. On June 29 the Union-Petitioner filed a petition (Case No. 21-RC-9075) seeking to represent the Employer's produc- tion and maintenance employees. The parties agree that the petition in Case No. 21-RD-725 raises a question concerning representation. However, the Employer and Joint Intervenors contend that the petition in Case No. 21-RC-9075 should be dismissed on the grounds that : (1) The Union-Petitioner is precluded from seeking to represent employees other than forklift operators, truckdrivers, and warehousemen during the term of the supplemental agreement by which the Union-Petitioner agreed not to represent such other employees for the duration of that agree- ment; and (2) As joint bargaining between the Unions and the Ein- FULLVIEW INDUSTRIES, INC. 429 p]oyer for a new contract had commenced, the Union-Petitioner should be estopped from its attempt to withdraw from such joint bargaining. We find no merit in either contention. As to (1), the Employer and Joint Intervenors rely on the rule in Briggs Indiana Corporation.2 We believe that the present case is distinguishable from Briggs Indiana, and that the principle therein established is inapplicable here. There, the Board held that where a union agrees by contract not to represent certain categories of em- ployees during the term of a collective-bargaining agreement, it may not, during that period, seek their representation. The Board stated that it would not expend its energies and public funds to confirm a result which the union agreed it would refrain, temporarily, from seeking to achieve. In the present case, however, although the pe- tition was filed during the term of the agreement,3 Union-Petitioner explicitly stated at the hearing that it did not wish to represent em- ployees until the expiration of the 1961 contract. Indeed, the 1961 contract between the Employer and the Unions has already expired, and there is therefore no possibility the Union-Petitioner during the term of that agreement will represent employees it has agreed not to represent. Hence, in processing the instant RC petition, the Board is not expending its efforts to assist Union-Petitioner in breaching its agreement. We find accordingly that the Briggs Indiana rule, which the Board has recognized is a limitation upon the right of employees to select representatives of their own choosing,4 was not intended to cover a situation such as is involved in the present case. As to (2), the Employer and Joint Intervenors contend that as bargaining on a joint-representative basis had commenced at the time Union-Petitioner initially notified the parties of its intent to withdraw from joint bargaining, Union-Petitioner should be estopped from seeking to represent separately the Employer's production and maintenance employees. However, even assuming that there is some limitation on the right of a union to withdraw from a joint-bargain- ing relationship with other unions once negotiations for a new con- tract have begun, we fail to find any evidence in the record to sub- stantiate the contention that any bargaining on a joint basis between the parties regarding a new contract had in fact occurred before Union-Petitioner withdrew from the joint bargaining. In this con- nection the Employer and Joint Intervenors rely on statements made by representatives of Union-Petitioner at two meetings, one in late May or early June 1964 and another on June 7. However, although the record indicates that at the conclusion of the earlier meeting z 63 NLRB 1270. 3 The petition was timely filed with respect to the Board's contract -bar rules, within the 90 to 60 day period before the expiration of the original agreement. See The Cessna Aircraft Company, 123 NLRB 855. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union-Petitioner's representative did indicate that it would continue to negotiate jointly with the other Unions, it is undenied that the meeting was convened solely for the purpose of discussing a griev- ance which had arisen under the existing agreement, and that no joint bargaining for the new contract took place at the meeting. Further, the June 7 meeting was between the Unions and the em- ployees in the unit in order to ascertain the wishes of employees re- specting the new contract. In this meeting, too, there were no ne- gotiations between the Employer and the Unions. In view of these facts, we find that no joint bargaining had taken place and therefore, apart from any other consideration, that Union-Petitioner was not estopped from filing the instant petition.' 4. The parties otherwise agree, and we find, that the following employees of the Employer constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. All production and maintenance employees of the Employer at its plant in Glendale, California, including shipping and receiving em- ployees and truckdrivers, but excluding office clerical employees, pro- fessional employees, guards, and supervisors, as defined by the Act.6 [Text of Direction of Election omitted from publication.] 5 For this same reason we find Hollingsworth & Whitney Division of Scott Paper Com- pany, 115 NLRB 15 , inapposite. 6 Since Union-Petitioner has indicated that it no longer desires to represent employees jointly with Joint Intervenors , we shall not place Union -Petitioner on the -ballot together with the Joint Intervenors . We shall rather give employees an opportunity to decide whether they wish to be represented by Joint Intervenors , by Union-Petitioner, or by no union. Local 349, International Brotherhood of Electrical Workers, APL-C10 and Dade Sound and Controls. Case No. 12-CC-258. November 4, 1964 DECISION AND ORDER On August 21, 1963, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Interme- diate Report. Thereafter, Respondent filed exceptions to the Inter- mediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. 149 NLRB No. 46.