United Construction Contractors Association

UNITED CONSTRUCTION CONTRACTORS ASSN. United Construction Contractors Association and Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, Petitioner. Case 2-RC-16244 April 12, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held at New York, New York, before Hearing Officer Howard Shapiro. At the close of the hearing and pursuant to Section 102.67 of the Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Director for Region 2 transferred this case to the Board for decision. Thereafter, the Employer and the Petitioner filed briefs. Petitioner has requested oral argument.' 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 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. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Employer is an association which repre- sents member-employers engaged in providing elec- trical services for the purpose of collective bargaining with labor organizations. The Association and the Intervenor, Local 363, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, were parties to a collective-bargaining i Petitioner's request for oral argument is hereby denied In our opinion, the briefs adequately present the issues and positions of the parties 2 Pursuant to a request made by Petitioner, the Board issued a subpoena duces tecum directing Al Picoult, a member of the board of directors of the Association, to produce certain books, records, and other documents which would disclose the actual membership of the Association. None of the requested material appears in the record of this case , although the Hearing Officer has indicated that Picoult provided Petitioner with membership applications. 3 The Association and Intervenor contend that the petition should be 61 agreement which terminated on November 14, 1973. On August 17, 1973, Petitioner filed the petition in this case in which it sought a unit consisting of "[a]ll employers bound by the existing agreement between Local #363, IBT and United Construction Contrac- tors Association as per attached list." The list appended to the petition contained the names and addresses of 118 companies . At the hearing, the Association introduced a list prepared by its attorney who testified that the Association's list, rather than Petitioner's, was an accurate enumeration of the members. The Association's list indicated that, of the 118 names found on the Petitioner's list, only approximately 48 were members of the Association. The attorney for the Association further testified that the Association's list was compiled from a collection of membership applications in his possession.2 During the course of the hearing, the Association made several amendments to this list in an effort to correct what its attorney described as certain "oversights." 3 The record compiled at the hearing sheds little light on the nature of the Association and its bargaining history. However, it has been established that the Association, on behalf of its members, and the Intervenor were parties to a collective-bargaining agreement which ran from November 15, 1970, to November 14, 1973. And Petitioner, the Association, and the Intervenor appear to be in agreement that a multiemployer unit is appropriate. Therefore, we find that the following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All electricians, electrical maintenance mechan- ics, helpers, and apprentices employed by the employer-members of the United Construction Contractors Association, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. However, the record does not provide sufficient information for us to determine with any accuracy the identity of the members of the Association. Thus, before directing an election herein, we shall remand this case to the region for further proceedings to determine the composition of the Association. 5. The parties are in disagreement as to whether dismissed on the ground that Petitioner filed individual petitions in Region 29 as to approximately 30 members of the Association, and it refused to indicate its position as to which of the petitions was proper. The Association and Intervenor further joined in moving for dismissal on the ground that the petition was defective in that it describes the Association as being comprised of the names appearing on the "attached list," which it is not. However, these grounds, and others urged by the Association and Intervenor, do not justify dismissal of the petition, and the motions to dismiss are accordingly denied. 210 NLRB No. 16 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tab Electric, Lac., hereinafter referred to as Tab, has effectively withdrawn from the associationwide tmit. By letter dated September 24, 1973, within the period set by the Association contract for modification, Tab advised the Association that it was withdrawing therefrom as of that date and that it would negotiate individually with the Intervenor in future contract negotiations. Later, at the hearing on October 16, 1973, before the terminal date of the Association contract, Tab's attorney affirmed that Tab continued to be bound by the terms and conditions of the collective-bargaining agreement until its termination on November 14, 1973. Withdrawal by an employer from a multiemployer bargaining unit must be unequivocal and exercised at the appropriate time .4 Tab's written notice of withdrawal was both unequivocal and timely, as it notified the Association of Tab's unconditional desire to withdraw from multiemployer bargaining and was gives prior to the date set by the contract for modif cattion. u% Tab's withdrawal was effective. ORDER It is hereby ordered that the above-entitled matter be, and it hereby is, remanded to the Regional Director for Region 2 for further proceedings to determine the composition of the associationwide unit. In the event that the Regional Director determines that a further hearing is necessary to determine the composition of the associationwide unit, IT IS FURTHER ORDERED that the hearing be reopened, before a hearing officer to be designated by the Regional Director, for the purpose of taking additional testimony to resolve the issue set forth above. IT IS FURTHER ORDERED that the above-entitled matter be, and it hereby is, referred to the Regional Director for Region 2 for such action as he deems necessary and consistent with this Order. 4 ReroN.4 w I.v., i2O NLRB 388, 395.