Houdaille Industries, Inc.

678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Houdaille-Duval-Wright Company, a Division of Houdaille Industries, Inc. and Local No. 673, In- ternational Union of Operating Engineers, AFL-CIO, Petitioner. Case 12-RC-3443 June 19, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND BROWN Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer William E. Franke. Following the hearing, this case was trans- ferred to the National Labor Relations Board pur- suant to Section 102.67(h) of the National Labor Relations Board Rules and Regulations and State- ments of Procedure, Series 8 , as amended. Sub- sequently, the Petitioner and Local No. 301, Inter- national Hod Carriers and Common Laborers Union of America,' filed briefs with the Board which have been duly considered. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. No question affecting commerce exists con- cerning the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act for the follow- ing reasons: The Petitioner seeks an election in a bargaining unit composed of all heavy equipment operators and heavy equipment oilers employed by the Em- ployer in the Florida counties of Gadsden, Liberty, Franklin, Leon, Wakulla, Jefferson, Madison, Taylor, Hamilton , Suwanne, Lafayette, Columbia, Baker, Union, Bradford, Alachua, Nassau, Duval, Clay, St. Johns, Putnam, Flager, Volusia, Seminole, Orange, and Brevard, including employees in such classifications who are employed at the Employer's asphalt plants.' The collective-bargaining history for these employees shows that pursuant to a stipu- lation, the Board conducted an election among all of the Employer's construction and maintenance employees within a defined and limited geographic area,3 with Local No. 512, Teamsters, and Local No. 673, Operating Engineers, the Petitioner herein , on the ballot. As a result, on September 19, 1966, Local No. 512, Teamsters, was certified as the collective-bargaining representative of the em- ployees in that unit. Thereafter, the Employer and Local No. 512, Teamsters, entered into a collec- tive-bargaining agreement which, inter alia, designated Local No. 673, Operating Engineers, and Local No. 301, Laborers, as agents of the cer- tified union for purposes of administration of the contract with respect to certain classifications of employees. The contract established wage rates for employees listed by classifications designated as Ex- hibits A, B, and C of the contract, and the contract provisions-have been administered for those on Ex- hibit A by the Local No. 512, Teamsters, while Local No. 673, Operating Engineers, and Local No. 301, Laborers, respectively, have assisted in ad- ministration of the contract as to those on Exhibits B and C. The Petitioner contends that, following certifica- tion of Local No. 512, Teamsters, the Employer, with the consent and participation of the certified union, granted recognition to and engaged in col- lective bargaining with Local No. 301, Laborers, and the Petitioner, thereby fragmenting the cer- tified unit and according each labor organization representative status in separate identifiable units. Petitioner further maintains that since that time it has represented the employees sought herein under wage schedule B of the contract for approximately 3 years. The Intervenors, on the other hand, take the position that the bargaining history is con- trolling as no such fragmentation occurred and that the unit sought by the Petitioner is inappropriate because of the integration and interdependence of the employees who receive common benefits, nor- mally work together on a common jobsite, and have common supervision. The Employer takes no posi- tion with regard to the appropriateness of any unit. ' Without objection , Local No. 301, International Hod Carriers and Common Laborers Union of America, and Local No 512, Truck Drivers, Warehousemen & Helpers, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America , were per- mitted to intervene in this proceeding on the basis of their current contract with the Employer ' In view of our disposition herein , we find it unnecessary to consider the Intervenors' alternate contention that the petition should be dismissed because of the Petitioner's failure to state its unit position at the hearing Case 12-RC-2552, not printed in NLRB volumes This was a petition filed by Local No 673, Operating Engineers , for the overall unit Local No 512, Teamsters , had filed a separate petition for a unit limited to drivers, but no such unit was established 183 NLRB No. 85 HOUDAILLE-DUVAL-WRIGHT CO. 679 Based upon our consideration of the entire record, we find no merit in the contentions of the Petitoner. Local No. 512, Teamsters, was designated in the contract as the exclusive representative for the employees listed in Exhibits A, B, and C and Petitioner was rejected by them. The contractual designation of the Local No. 673, Operating Engineers, and Local No. 301, Laborers, as agents of the certified union does not support a conclusion that an agreement was reached among the Employer and the three unions that the cer- tified unit was to be divided into three separate units. Rather, the conduct of the designated agents was consistent with their status as agents and, stated differently, there was nothing shown in this record which establishes that their functioning was inconsistent therewith.' There was and continued to be a single contract applicable to all employees in all respects except for the wage rates. Thus, all em- ployees enjoyed the same benefits, they worked the same hours, and were paid for overtime at the same rate, and there was a uniform grievance-arbitration procedure for all employees with the first three steps handled by a representative of the particular agent. There can be no such legal status as a representative of employees "under a Wage Schedule" of a contract as Petitioner contends, par- ticularly under the circumstances here. Nor is there any other sufficient evidence from which we can conclude that separation of the units or separate formal recognition was ever granted by the Employer to the Petitioner or Laborers or ac- ceded to by the certified union.' The testimony of the Employer's industrial relations manager as to the agreement among the three unions, i.e., as to the precise demarcations between employee clas- sifications in Exhibits A, B, and C, is not evidence that such an agreement as constituted separate recognition was reached, particularly since two of the three unions involved deny that this was the ef- fect of their discussions . In any event such an agreement would not be determinative unless the Employer agreed, and we see no basis for so find- ing.6 Since there is no basis for concluding that the written contract meant something other than what it provided, and the parties did not engage in con- duct which was clearly and necessarily inconsistent with the certification and the contract provisions, the election sought by the Petitioner would be per- missible only if the employees constitute a group appropriate for severance from the existing overall unit. However, the record indicates some in- terchange of function among employees in the vari- ous classifications, and the Employer has attempted to train employees for promotion from classisfica- tions in Exhibit C to classifications in Exhibit B. Under these circumstances, and in view of the com- munity of interests of these employees and the bar- gaining history, we find that the unit sought by the Petitioner is inappropriate. Accordingly, we shall dismiss the petition.' ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. MEMBER FANNING, dissenting: Unlike my colleagues I would direct an election among the Employer's heavy equipment operators who have been represented by Petitioner Operating Engineers for the last 3 years. During these years the Employer has been operating under a multiunion contract with three unions. The representation of heavy equipment operators by the Operating Engineers occurred pur- suant to that contract. In fact, however, this con- tract, now expired, disregards the Board's unit blueprint. In 1966, in a proceeding filed originally ' The fact that the Petitioner was requested to and did supply employees through its hiring hall is not in conflict with an agency status ' Clohec'i Collision, Inc , 176 NLRB No 83, relied on by our dissenting colleague, is clearly distinguishable There, as here, an overall unit was established That is the only similarity , however There , only one union was on the ballot , whereas here there were two by agreement of the parties and a stipulated election held In that case the employees were located in separate plants 5 miles apart and were employed by separate enterprises, Clohecy Collision being a body shop and Clohecy Pontiac being an au- tomobile dealership and repair garage, in contrast here , all are employees of a single employer at a single location Collision and Pontiac were not necessarily interrelated , and they did business at arm 's length , with only 20 percent of Collision's business being performed for Pontiac The opera- tions and administration of the two firms were completely separate, and there was no employee interchange or communications In negotiations fol- lowing the certification, the companies and the certified union agreed that separate negotiations should be undertaken , following which a 3-year con- tract was negotiated and entered into with Pontiac, and then a I-year con- tract was negotiated and entered into with Collision Under these circum- stances, the intent of the parties in Clohecy to establish two separate units is obvious, and there can be no question that their conduct effectively demonstrated and accomplished this There can be little similarity to the instant situation where a single contract was entered into and maintained, an agency relationship was set forth therein , and the parties' conduct does not unequivocally indicate a separation of units The other cases cited in the dissenting opinion are equally inapposite 6 Our dissenting colleague states that the three unions "got together 'on their own' and set up 'three units ' So testified the Employer's Industrial Relations Manager, the only witness at the hearing Thus the Employer agreed to 'cutting up the unit ' as the unions wished " This seems to be a conclusion either that by the agreement of the unions or that by the testimony of Mr Pomar, the Employer 's representative at the hearing as to the alleged agreement of the unions, the Employer agreed to the establish- ment of three separate units We fail to see how this can be so The unions could not bind the Employer , and an agreement by virtue of this testimony comes too late We read Mr Pomar's testimony taken as a whole to in- dicate agreement to the classifications worked out by the three unions, but not to a fragmentation of the certified bargaining unit ' Cf United Metal Trades Association , 172 NLRB No 52, American Pipe and Construction Co , 169 NLRB 1024 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Operating Engineers, Local No. 512, Team- sters, was certified by the Board for a construction and maintenance type unit. Thereafter these two unions and the Laborers Union, as the three that customarily represent employees in the Jackson- ville, Florida, area doing bridge construction and roadwork, got together "on their own" and set up "three units." So testified the Employer's industrial relations manager, the only witness at the hearing. Thus the Employer agreed to "cutting up the unit" as the unions wished. The groupings of employee classifications agreed upon by the unions were listed in Exhibits A, B, and C, and attached to the contract. Recognition was granted in terms of these three schedules, and the two uncertified unions were made agents of the certified union for their respective schedules.' Jointly negotiated by the three unions, the contract was separately executed by each. The Employer's representative, asked about the classification content of schedule B in which the Operating Engineers now seeks an elec- tion,9 stated that this grouping was acceptable to him because these classifications "had normally been Operating Engineer classifications." Now, at the expiration of the first contract, the Employer takes no position on unit, while the cer- tified union-which delegated a great part of its responsibility-and the Laborers-the recipient of the delegation so far as it applied to administering the unit of employees under schedule C-urge that only an overall unit is appropriate. The record establishes that all three unions have participated in the "day to day administration" of the contract, each with respect to the employees in its schedule; that checkoff has been directly to the particular union involved; that each union has its own stewards on the various jobs; that interchange of employees among schedules A, B, and C is vir- tually nonexistent; and that each union is called to supply the type of employee on its schedule before outsiders are hired. With this background of bargaining for three separate units through three recognized representa- tives, I regard it as serious myopia for my col- leagues to insist that the overall unit has not been effectually divided with the Employer's consent and ° For schedule A, employees working in the Orlando area , the certified union named another Teamsters local as its agent ° Schedule B classifications are oiler , bulldozer operator, crane, clam, backhoe, gradall, and dragline operator; pan operator (tractor pulled), front-end loader operator, motor grader operator (finish); motor grader operator (rough), roller finisher operator , roller operator (self-propelled rubber tired), roller operator (rough), scraper operator (self-propelled), tractor backhoe operator, self-propelled mixer operator , and asphalt pav- ing machine operator 10 Clohecy is considered distinguishable by my colleagues partly because of the separate contracts , one for each plant, executed by the parties to cover a certified two-plant unit Delving into the reasons why the Board in to refuse to accord the employees in one of the three units the opportunity to have its own recog- nized representative certified by the Board, if that is their wish. This position is quite inconsistent with the position my colleagues have taken in decertifi- cation cases when parties have ignored the Board- certified unit and proceeded to bargain on their own unit basis. The Board's rule is that a decertifi- cation election must be coextensive with either the unit previously certified or with the unit recognized. I participated in the recent case of Clohecy Colli- sion, Inc., 176 NLRB No. 83, where the Board had certified a multiplant unit and from the outset-as here-the parties had ignored the certification and bargained for single plants. A decertification elec- tion in just one plant was directed by the Board. 10 This position is also inconsistent with the Board's position in Buddy L Corporation, 167 NLRB 808, where the incumbent representative of an overall unit allowed toolroom employees to fend for them- selves, the separate identity of the toolroom was thereby retained, and the result was that the Board granted them an election for the purpose of select- ing their own separate representative. There is also an analogy, as I see it, between the voluntary multiunion bargaining which occurred here by acquiescence of the Employer, and mul- tiemployer bargaining which is acquiesced in by a union. Both exist by consent and may be discouraged if participation is viewed as irrevoca- ble. The Board has long allowed employers to withdraw from multiemployer units at appropriate times with respect to the contract term; more recently it has extended this right to the union in- volved in representing the rhultiemployer unit." Why then, in voluntary multiunion bargaining should the Board not permit one of the unions to withdraw at an appropriate time with respect to the contract term? Finally, approaching the problem from the im- portant perspective of employee rights, to dismiss this petition is to deny these employees an impor- tant option: (1) to vote out the Operating En- gineers as their current representative, a union not selected by them in the previous election, or (2) to Clohecy might also have found single-plant units in the first place hardly ex- plains why the unit change by contract should be readily acceptable for what it accomplished in that case while this change-bringing into the bar- gaining picture two unions in addition to the Board -certified union-should not Perhaps my colleagues ' view the certified union here as free to sub- stitute different union agents at the end of each contract term , regardless of the union-employee relationships that have been developed with employer acquiescence " The Evening News Association, 154 NLRB 1494 Extending the analo- gy to the type of notice required for effective withdrawal is another matter The petition here filed seems a significant formal step though not tan- tamount to unconditional withdrawal HOUDAILLE-DUVAL-WRIGHT CO. sanction the pattern of representation they have had for 3 years and to have this sanction evidenced by separate Board certification. To deny employee rights here may, as the Board said in Buddy L. Cor- poration (167 NLRB 808) carry the seeds of insta- bility and deny employees the freedom of choice 11 My colleagues never reach the problem of employee rights In the final analysis they resort to an asserted lack of severance qualifications as a basis for their dismissal This comes as no surprise , though this is the construc- tion industry where traditional skills and the opportunity to exercise them tend to be conceded The interchange they describe as "some" seems 681 Congress considered essential in proper circum- stances.12 As indicated, I would direct an election in the unit of heavy equipment operators as separately recognized for the last 3 years but for which the employees have had no opportunity to vote. totally unworthy of note by Board standards , while the "attempts" to train laborers for operating engineer classifications prove only that the latter group, here sought, indeed possess trained skills that entitle them to self- determination.