Dickmont Plastics Corp.

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dickmont Plastics Corporation, Employer-Petitioner and Plastic, Moulders and Novelty Workers Union, Local 132, ILGWU, AFL-CIO. Case 2-RM-1686 January 14, 1974 DECISION AND DIRECTION OF ELECTION By MEMBERS FANNING, KENNEDY, AND PENELLO On July 9, 1973, Employer Dickmont filed an RM petition with the Regional Director for Region 2 which was subsequently dismissed on administrative grounds on July 17, 1973. Dickmont then filed with the NLRB a request for review of this determination by the Regional Director , and on September 17, 1973, the Board issued a ruling on administrative appeal reinstating the petition and remanding the case to the Regional Director for a hearing . Pursuant to that order, a hearing was held on October 3, 1973, beofre Hearing Officer Elbert F . Tellem . Following the hearing, the Regional Director deemed it appro- priate to transfer the case to the Board for its consideration. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record in its entirety and has decided to grant Dickmont's RM petition, and consequently to order that an election be held to determine the representation status of Dickmont's employees. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error . The rulings are hereby affirmed. 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 organization involved claims to represent certain employees of the Employer. 3. Questions affecting commerce exist concerning the representation of certain employees within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. In accord with the stipulation of the parties in the event the Regional Director found the single- 1 The Regional Director dismissed the petition on the basis that the unit was a multiemployer unit and the petition did not conform to that unit as it was limited to the employees of Dickmont Further, he found that the employer unit appropriate, the Board finds the composition of said unit shall be as follows: All full-time and regular part-time production, maintenance, shipping and receiving employees employed by Dickmont Plastics Corporation at 293 Selleck Street, Stamford, Connecticut, exclud- ing all office clerical employees, salesmen, guards, watchmen and supervisors as defined in the Act. Dickmont is a Stamford, Connecticut, corporation engaged in the manufacture of plastic products. On July 24, 1972, it entered into a contract of member- ship with the Plastic and Metal Products Manufac- turers Association, Inc. (hereinafter referred to as the Association), and signed a "Certificate of Authoriza- tion and Assumption" pursuant to which it notified and accepted the collective-bargaining agreement entered into between the Association and the Union dated July 1, 1970. On April 9, 1973, a decertification petition limited to Dickmont was filed with the National Labor Relations Board by Hector Jose Nunez, an employee of Dickmont, and was dismissed by the Regional Director on May 17, 1973.1 On April 16, 1973, a petition was filed by Local 810, International Brotherhood of Teamsters, Warehousemen, Chauf- feurs and Helpers of America, claiming to represent all the employees in a multiemployer unit embracing members of the Association. This petition was withdrawn on May 14, 1973. Collective-bargaining negotiations between the Association and the Union commenced on March 21, 1973, were suspended during the pendency of the Teamsters petition, and were renewed on May 14, 1973. On April 24, 1973, Dickmont, by letter, confirmed its prior notification to the Association of its withdrawal from the Association, effective upon the termination of the collective-bargaining agree- ment on June 30, 1973. The Association informed the Union by telephone of Dickmont's withdrawal from the Association. The Union, by letter to Dickmont dated May 30, 1973, confirmed this notification, and asked Dickmont to call the Union to arrange for negotiations on an individual basis. Thereafter, on June 19, 1973, Dickmont informed the Union by letter that in light of the decertification petition filed on April 9, 1973, it felt that recognition of the Union as the bargaining representative for the employees would be "inappropriate and, indeed, illegal," and suggested that the Union file a petition for election with the Board, adding that, absent such action, Dickmont itself would file such a petition on July 1, Dickmont's attempted withdrawal was untimely It should be noted that this determination was made pnor to the Union's May 30 letter to Dickmont seeking individual negotiations 208 NLRB NO. 63 DICKMONT PLASTICS CORPORATION 1973. On June 28, 1973, approximately I month after their offer to bargain on an individual basis, the Union notified Dickmont that it realized that it was: . .. in error in assuming, based on the advise [sic] of the Association, that you had timely withdrawn therefrom. In fact you have not timely withdrawn from the Association. For that reason we withdraw our request to negotiate with you on an individual basis; rather we will hold you bound to the terms of whatever renewal agree- ment we may negotiate with the Association. Dickmont herein petitions the Board that an election be held among its employees, since the Union has made the claim of being their collective- bargaining representative, and Dickmont has reason to doubt the validity of that claim in view of the decertification petition. The Union seeks that the petition be dismissed since it contends that Dick- mont's withdrawal from the Association was untime- ly and that it therefore is bound by the collective- bargaining agreement between the Association and the Union. Decisions of the Board are uniform that, once contract negotiations have commenced, withdrawal from an established multiemployer unit is untimely and therefore ineffective, unless it is by mutual consent of the parties, or justified by unusual circumstances.2 If it be assumed in this case that Dickmont's withdrawal approximately I month after negotiations began was untimely, under the facts of the instant case, we are persuaded that the Union consented to Dickmont's withdrawal.3 The Board has stated that "a prime indicator of a union's consent or acquiescence ... is a union's willingness to engage in individual bargaining with the employer seeking to abandon multiemployer bargaining."4 The Union, by its May 30 letter to 2 Hi-Way Billboards, Inc, 206 NLRB No I, I C Refrigeration Service, Inc, 200 NLRB No 107, Publicity Engravers, Incorporated, 161 NLRB 221, The Kroger Co, 148 NLRB 569, Ice Cream, Frozen Custard Industry Employees, Drivers, Venders and Allied Workers Union Local 717 (Ice Cream Council, Inc), 145 NLRB 865, C & M Construction Company, 147 NLRB 843, Sheridan Creations, Inc, 148 NLRB 1503, enfd 357 F 2d 245 (C A 2, 1966), Retail Associates, Inc, 120 NLRB 388. 3 Publicity Engravers, Incorporates supra at 227 See In 5, infra 383 Dickmont, clearly demonstrated its awareness of Dickmont's failure to renew its membership contract in the Association, and the Union's willingness to engage in individual bargaining: We have been informed by the Plastic and Metal Products Manufacturers Association, Inc., that as of this date they have not received Membership Agreement and Certificates of Authorization [sic] for the renewal of the present agreement. Please call our office to arrange an appointment for negotiations with your firm on an individual basis. Local 132, I.L.G.W.U. [signed ] Samuel Eisenberg Manager-Secretary The Union attempted to revoke its consent to Dickmont's withdrawal by their previously quoted letter of June 28. As in Publicity Engravers, this revision of their position has "all the earmarks of an afterthought," seized upon by the Union to extricate itself from its prior consent. The Union presented no evidence of any deception or lack of good faith contributing to their acquiescence in Dickmont's withdrawal, and the Board has no reason to view their consent as other than voluntarily given.5 Accordingly, we find that the Union did acquiesce in Dickmont's withdrawal from the Association. Further, in our opinion Dickmont has presented sufficient evidence to warrant our ordering an election be held to determine the representative status of said employees. [Direc`tion of Election and Excelsior footnote omitted from publication.] a I C Refrigeration Service, Inc, supra at fn 9 Accordingly, we need not reach Dickmont 's alternative position that, unlike the usual case involving multiemployer bargaining , there was no consensual arrangement that the employer-members of the association would be bound by the terms of the collective-bargaining agreement without further action on the part of individual employers See- Atlas Electrical Service Co, 176 NLRB 827