Halquist Lannon Stone Co., et al.

694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Halquist Lannon Stone Co., et al., and Drivers, Salesmen, Ware- housemen, Milk Processors, Cannery, Dairy Employees and Helpers, Local 695, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,' Petitioner Consumers Company, Division of Vulcan Materials Company,2 Petitioner and Drivers, Salesmen, Warehousemen, Milk Proc- essors, Cannery, Dairy Employees and Helpers, Local 695, International Brotherhoods of Teamsters , Chauffeurs, Ware- housemen and Helpers of America. Cases Nos. 30-RC-268 and 30-RM-28. January 7,1966 DECISION, ORDER, AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a consolidated hearing was held before Hearing Officer Russ R. Mueller at Milwaukee, Wisconsin. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by Con- sumers, Local 695, and jointly by the Journeymen Stonecutters Association of North America, AFL-CIO,' and its Lannon Local.4 Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. Upon the entire record in this case, the Board finds : 1. The Employers 5 are engaged in commerce within the meaning of the Act," and it will effectuate the purposes of the Act to assert juris- diction herein. 2. The labor organizations involved claim to represent certain employees of the Employers. 1 Hereinafter referred to as Local 695. 2 Hereinafter referred to as Consumers. 8 Hereinafter referred to as the Association. * The Lannon Local of the Journeymen Stonecutters Association of North America, AFL-CIO, and the Association were permitted to intervene at the hearing 6In addition to Consumers, the Employers named in the petition in Case No. 30-RC- 268 are Halquist Lannon Stone Co., Milwaukee Lannon Stone Co , Wislanco Lannon Stone Co, O. Monacelli Lannon Stone Co, and Midwest Lannon Stone Co (At the hearing the petition was amended to exclude Weather Rock Stone Company ) 6 The Board has administratively determined that the business of Midwest Lannon Stone Company is insufficient to warrant the assertion of jurisdiction under the Board's applicable standards. In view of the finding infra that the multiemployer bargaining unit sought by Local 695 is no longer in existence , the petition in Case No . 30'-RC-268 is dismissed as to Midwest The jurisdictional finding pertaining to Midwest is based on administrative advice not a part of the record herein , any party desiring to show the contrary may do so by promptly filing a sufficient offer of proof. grist Uradis, et al, 121 NLRB 601, 603, footnote 9 156 NLRB No. 68. HALQUIST LANNON STONE CO., ET AL. 695 3. Questions affecting commerce exist concerning the representa- tion of certain employees of the Employers within the meaning of Section 9(c) (1) and Section 2(6) and (7) of theAct.7 4. The Employers operate stone quarries in the Lannon, Wisconsin, area and employ stone and veneer cutters and sawed veneer trimmers. Local 695, the Petitioner in Case No. 30-RC-268, seeks an election among the cutters and trimmers in an all-inclusive multiemployer unit,8 or alternatively in either a. multiemployer unit of all the Employ- ers except Consumers with a single-employer unit as to Consumers, or all single-employer units but with Halquist Lannon and Milwaukee Lannon Stone Companies treated as a single employer. The Lannon Local, the Association, and the Employers contend that the multi- employer unit no longer exists and that only single-employer units are appropriate. The Lannon Local and the Association also claim that there are currently effective contracts with some of the Employers which bar elections among these Employers' employees. The Employers have recognized the Lannon Local as the representa- tive of the employees here involved since at least 1955. In 1955 the Employers, or their predecessors, formed the Wisconsin Dimension Stone Industry, Inc., to negotiate their labor agreements. Sometime prior to 1959 the formal structure of the employer association was disbanded and the 1959 and 1962 negotiations were conducted by a committee of two or three of the owners. The resulting contracts were signed jointly by the Employers. The agreement negotiated in 1962 had a terminal date of May 31, 1965. In April 1964, Consumers purchased the Quality Lime Stone Com- pany, one of the parties to the 1962-65 contract, and continued opera- tions with substantially the same employees. In early April 1964, Consumers' Manager Eckstein met with representatives of the Lannon Local and Hensen, president of the Association, and told them that Consumers did not want to participate in multiemployer bargaining. The union officials agreed to bargain individually with Consumers and subsequently a contract was executed between Consumers and the Lannon Local.9 Upon the foregoing facts, we reject Local 695's contention that Consumers is a member of a multiemployer unit. We find that Con- 7 The contract which Wislanco Lannon Stone Company and the Lannon Local signed prior to the filing of the petition , discussed infra, constitutes a bar to an election. Con- sequently, there is no question concerning representation as to this Employer. 8 Local 695 also represents a unit of laborers employed by the same Employers O The contract was between the Lannon Local and Consumers alone, whereas the 1962-65 multiemployer contract was an agreement between the Lannon Local and Em- ployers collectively . Consumers' contract also permitted it to institute its own welfare plan, while the multiemployer contract provided for a union -administered plan 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sumers' stone and veneer cutters and sawed veneer trimmers constitute a separate appropriate unit.'° We further find that none of the Employers belong to a multiem- ployer group; that, in other words, the multiemployer unlit no longer exists. In March 1965, the Lannon Local notified each contract sig- natory of its intention to negotiate a new contract without suggesting whether negotiations be on a group or an individual basis. In early April, the Lannon Local's president and Al Mueller, business agent for Local 695 who had been hired by the Lannon Local to conduct its negotiations, met with Alvin Halquist (involved in the operations of both Halquist Lannon and Milwaukee Lannon) and presented their local's demands. Halquist informed the union representatives that he planned to negotiate with them on an individual employer basis. At this point factional strife within the Lannon Local came to a head with an effort by some members on April 26 to disaffiliate from the Association and affiliate with Local 695. On April 29, Mueller, now speaking as the Local 695 representative, wrote to each Employer claiming that Local 695 now had the bargaining rights formerly held by Lannon Local 11 and requesting that bargaining start for a new contract. As neither of the Lannon Local's pre-April 26 negotiators was now available to conduct negotiations for the local, Mueller because he had reverted to his role as an agent of Local 695 and the Lannon Local president because he favored affiliation with Local 695, Association President Hensen began negotiations on behalf of the Lannon Local on April 27 2 Hensen began negotiations with Consumers on April 27 and reached an agreement with it the next day. He then began negotiations with members of the Halquist family for Halquist Lannon and Milwaukee Lannon and the next day, April 29, reached agreement with them. Hensen then negotiated an agreement with the Wislanco Stone Com- pany. After the Consumers' agreement had been negotiated, that 10 Local 695 argues that such cases as John Wiley & Sons, Inc v. David Livingston, etc., 376 U S 543 , and The Wackenhut Corporation v international Union, United Plant Guard Workers of America, and its Local 151, 332 F 2d 954 (C.A. 9), require a finding that Consumers, as a successor to Quality, also succeeded to Its position in the multlemployer unit We find no merit to this argument because, even if Consumers did succeed to Quality's position , the evidence demonstrates that Consumers withdrew from group bar- gaining with the consent of the Lannon Local . Retail Associates, Inc., 120 NLRB 388, 395. 11 Local 695 does not now contend that the purported transfer of bargaining rights on April 26 was effective , but does make a related argument that there can be no con- tract bars to an election in this case because the Lannon Local became defunct as a result of the meeting of April 26 We find that the Lannon Local did not become defunct but remained willing and able to represent the employees. The local was badly split and its president defected , but the other officers continued the local 's functions , the assets remained in their control , and the Employers continued to check off dues See Ilcrshey Chocolate Corporation, 121 NLRB 901, 911 12 As Indicated , Hensen bargained for the Lannon Local during the 1964 negotiations with Consumers . In addition , he conducted the Lannon Local's 1962 negotiations with the committee of Employers. HALQUIST LANNON STONE CO., ET AL. 697 agreement was used as the basis for subsequent negotiations with other Employers, but both the Halquists' and Wislanco's negotiator sug- gested variations from the Consumers' contract during their negotia- tions. After Hensen reached agreement with each of the Employers, he visited the employees of that Employer and explained the agree- ment to them. A majority of each Employer's employees approved the contracts. The negotiations described above were plainly conducted on an individual employer basis pursuant to an understanding of the parties involved that there was no longer a multiemployer bargaining unit in existence.13 Local 695's contention that the multiemployer unit continued in existence is based upon the fact that written notices of withdrawal were not submitted by the Employers. This contention is grounded upon an incorrect view of the rule requesting written notices of withdrawal set forth in Retail Associates, Inc.14 As indi- cated in Retail Associates,lo the requirement of written notice to effect a withdrawal from group bargaining presupposes the absence of con- sent to the withdrawal by other parties involved and is inapplicable to actions, as in this case, which are taken by mutual consent. Local 695 contends that the stone and veneer cutters and sawed veneer trimmers of Halquist Lannon and Milwaukee Lannon Stone Companies constitute a single unit. Halquist Lannon Stone Company is a partnership owned by the Halquist family. Milwaukee Lannon Stone Company is a corporation which is operated by the Halquist family. Bud Halquist, Jr., testified that he was responsible for form- ulating and carrying out the labor policy of both companies and that the labor policy of both companies has been the same since 1961. More- over, the negotiations with Hensen in 1965 were for both companies. Accordingly, we find that the stone and veneer cutters and sawed veneer trimmers of Halquist Lannon Stone Company and Milwaukee Lannon Stone Company constitute a single unit and that single- employer units of the remaining Employers' stone and veneer cutters and sawed veneer trimmers are appropriate."- 11 The written contract mailed to each Employer in early May stated that it was a joint agreement Hensen explained that this was the result of an administrative error occasioned by the use of the old contract as a form for typing the new one Separate contracts were mailed to each Employer, however, and the last paragraph of these con- tracts provided room for the signature of only one Employer . In 1962 all the Employers signed a single contract 14120 NLRB 388, 395. 15Ibid - 110. Monacelli Stone Company and Midwest Lannon Stone Company neither took part in the hearing nor submitted briefs . Further , none of the parties that did participate in the hearing took the position that these Employers should be treated differently from the other Employers The record does disclose, however, that neither Hensen, Held, nor Mueller negotiated with them and that their total employee complement comprises less than 10 percent of the membership of the Lannon Local. Thus, in view of the fact that the multiemployer unit has dissolved and because no issue has been raised as to these 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We reject the contention by the Lannon Local and the Association that an oral agreement with Consumers and a memorandum of agree- ment signed by the Halquists bar elections among those Employers' employees, but find merit in the related claim that a signed contract with Wislanco bars an election. The record shows that after Hensen negotiated the agreements described above, but before final contracts could be prepared and signed, the Employers each received a copy of Mueller's April 29 letter asserting Local 695's claim. Hensen then obtained from Bud Halquist and Wislanco (but not from Consumers) a signed memorandum stating that they had reached final agreement with the Lannon Local. The memorandum did not set forth the terms of the agreement. Then, prior to the filing of Local 695's petition on June 1, Hensen mailed each of these Employers a typed copy of the agreement and requested that they sign and return it. Only Wislanco signed and returned the contract. Under the Board's contract-bar rules, it is clear that in order to bar an election a contract must be signed prior to the filing of the petition and substantially set forth the terms and conditions of employ- ment.17 The Wislanco contract meets these standards, but the signed memorandum with the Halquists and the oral agreement with Con- sumers do not. We therefore shall order that the petition in Case No. 30-RC-268 be dismissed as to Wislanco Lannon Stone Company. Accordingly, we find appropriate, for purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act, separate units composed of the stone and veneer cutters and sawed veneer trimmers employed at stone quarries of each of the following Employers : (a) Halquist Lannon and Milwaukee Lannon Stone Companies; (b) Consumer Company; and (c) O. Monacelli Lannon Stone Company.'8 [The Board dismissed the petition in Case No. 30-RC-268 insofar as it relates to Midwest Lannon Stone Company and Wislanco Lannon Stone Company.] [Text of Direction of Elections omitted from publication.] two relatively small Employers, we find that a separate unit of Monacelli 's cutters and trimmers is also appropriate , and dismiss the petition as to Midwest for the reason stated in footnote 6, supra. Member Zagoria concurs in the conclusion that single -employer units are appropriate in this case, but solely on the grounds that the preexisting multiemployer unit has been voluntarily dissolved by the parties thereto, and Local 695 has indicated a willingness to accept single-employer units as an alternative position. 17 See, a g., Appalachian Shale Products Co., 121 NLRB 1160, 1164. 18 The Board has administratively determined that , contrary to the record estimate, 0. Monacelll Lannon Stone Company employs four employees in the unit herein found appropriate. Consequently, an election will be directed among this Employer 's stone and veneer cutters and sawed veneer trimmers . As this finding is based on administrative advice not a part of the record herein, any party desiring to show the contrary may do so by promptly filing a sufficient offer of proof . Krist Gradis, et al., 121 NLRB 601, 603, footnote 9.