Tampa Bay Area Glazing Contractors Association, Inc., et al.

360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tampa Bay Area Glazing Contractors Association, Inc., et al.' and Glaziers Local Union No. 1772, International Brotherhood of Painters and Allied Trades, AFL-CIO, Petitioner. Case 12-RC-5147 February 22, 1977 DECISION ON REVIEW AND DIRECTION OF ELECTIONS BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On September 27, 1976, the Regional Director for Region 12 issued a Decision and Direction of Elections in single employer units. Thereafter on October 9, 1976, the Petitioner filed a request for review of the Decision and Direction of Elections.On October 19, 1976, PPG Industries, Inc. (Tampa), and PPG Industries, Inc. (St. Petersburg), filed a state- ment in opposition to Petitioner's request for review. On October 22, 1976, the Board, by telegraphic order, granted review and stayed the elections pending decision on review. Thereafter, the parties filed briefs with the Board. 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 considered the entire record in this case2 with respect to the issues under review and makes the following findings: Except for the Tampa Bay Area Glazing Contrac- tors Association, Inc. (hereafter referred to as the Association), the Employers named in the petition are engaged in the construction phases of the glazing industry in the greater Tampa-St. Petersburg-Lake- land area of Florida. Since at least 1962 a varying group of glazing contractors, including some of the Employers here involved, has been represented in contract negotiations with Local 1772 by successive joint bargaining committees, each created on an ad hoc basis to negotiate a specific contract. The degree to which the group has varied from year to year is illustrated by the fact that, of the 13 Employers signatory to the current agreement, at most 6 have consistently authorized a committee to bargain for them in every negotiation since 1967. At the end of contract negotiations, when the bargaining parties had reached agreement, the Union i The other employers listed in the petition are. Volunteer Glazing Company, Inc; Silvernail Glass and Manufacturing Co ,; Sunstate Glass Company; PPG Industries , Inc. (St. Petersburg); PPG Industries, Inc (Tampa); McMullen Glass, Inc ; Harmon Glass of Florida , Inc ; Central Glass and Window , Central Glass Company, Inc., Cee Bee Glass Service, Inc ; Capitol Glass Specialities, Inc.; American Glass Industries, Inc Southern Window Erectors, Inc. 2 Petitioner moved to clarify its brief, stating that a reference to "8(d) notices" should be a reference to certain letters dated July 6, 1976, sent by the 228 NLRB No. 35 and each Employer would execute a separate agree- ment identical in its terms to the others. In addition, other glazing contractors, who had not authorized the committees to represent them, later adopted and executed their own copies of the contract with Local 1772. The Petitioner seeks a multiemployer unit of the 13 Employers who signed the 1974 collective-bargaining agreement. The Petitioner agreed, however, to partic- ipate in elections in single-employer units should the Board find such units appropriate. The Regional Director found, and the Employers agreed, that a multiemployer unit would be inappropriate because the collective-bargaining history between Local 1772 and the bargaining committees that represented the varying groups of glazing contractors did not show sufficient indication of a "clear consensual under- standing of all parties involved that a multi-employer unit was intended." The Regional Director further found that even if it could be held that the Employers had engaged in multiemployer bargaining in the past, letters from the Employers to the Association revoking bargaining authority constituted timely and unequivocal notice of intent to withdraw from a multiemployer bargain- ing unit.3 The Regional Director further noted the Petitioner's acknowledgment of these notices. Petitioner contends that the long bargaining history on a multiemployer basis supports a finding that the Employers intended to continue to engage in such bargaining and that the requested multiemployer unit is therefore appropriate here. Petitioner further contends that the notices of intent to withdraw from the Association were ineffective for the purposes of withdrawing from multiemployer bargaining. In this regard, Petitioner contends that a multiemployer bargaining arrangement exists apart from the Associ- ation and that the Association was, in fact, never authorized by the Employers to bargain. Petitioner further contends that because the Employers' with- drawal notices were addressed to the Association, which was never authorized by the Employers to bargain for them, the withdrawals were ineffective and the negotiating committee is still authorized to bargain for the Employers. Although we agree that there is a multiemployer bargaining history with respect to 6 or 8 of the named Employers, we nevertheless find that the multiem- Union's business representative to the Employers named in the petition. The Employers opposed this motion. Both of the above-described documents have been considered in our examination of the whole record. Inasmuch as the intent and meaning of the documents are clear from their respective contents, we deny Petitioner's motion. 3 Retail Associates, Inc., 120 NLRB 388, 391 (1958); The Evening News Association, Owner and Publisher of "The Detroit News," 154 NLRB 1494 (1965). TAMPA BAY AREA GLAZING CONTRACTORS 361 ployer unit sought is inappropriate because the Employers gave the Union clear and timely notice of intent to withdraw from multiemployer bargaining. The record shows that prior to the expiration of each collective-bargaining agreement, the Employers who wished to be represented jointly would elect a joint bargaining committee and delegate to the committee the authority to bargain in the upcoming negotiations. The delegations of authority were limited and expired, by the terms of the delegation agreement, within a stated period of time or upon the negotiation of a new collective-bargaining agreement. The delegation of bargaining authority was, there- fore, ad hoc with respect to each contract to be negotiated and, because self-limiting, required no revocation to terminate the authority delegated. The 1974 authorization agreement delegating bar- gaining authority to a joint bargaining committee was also self-limiting. Eleven Employers signed the au- thorizations; two, Volunteer Glazing and Southern Window Erectors, subsequently ratified or adopted the agreement negotiated by the committee. The 1974 agreement included a provision for wage reopener discussions in 1975. Although written au- thorizations delegating bargaining authority to the committee for these discussions were not submitted in evidence, the uncontradicted testimony of Ernest M. Garrison, chairman of the negotiating committee, reveals that the same committee that negotiated the original agreement participated in the wage reopener discussions. In November 1974, between the time of the negotiations of the 1974 contract and the commence- ment in mid-1975 of the wage reopener discussions, Tampa Bay Area Glazing Contractors Association, Inc., was formed by a group of glazing contractors, many of whom signed the 1974 contract. One of its purposes, as set forth in its bylaws, was to bargain collectively for those Employers who authorized it to do so. There is no indication that the Association was ever actually authorized by any Employer to bargain for it. However, the fact that most of the signatories to the 1974 agreement, including the bargaining committee members, were members of the Associa- tion, apparently led at least some of the Employers to consider the bargaining committee to be a part of the Association.4 Furthermore, the tentative agreement produced in the wage reopener discussions was between the Association and Local 1772 and was signed by Garrison for the "Tampa Bay Area Glazing Contractors Association, Inc., Bargaining Commit- tee." And, although the union membership did not ratify the tentative agreement, nothing in the record indicates that the union leadership disputed or questioned the apparent authority of the Association to negotiate an agreement for the signatory Employ- ers. On the other hand, all of Garrison's letters to the Union, before and after the signing of the tentative agreement, were signed by Garrison for the Employ- er's negotiating committee and made no reference to the Association. On June 28 and 29, 1976, approximately 6 months after the union membership rejected the tentative agreement discussed above, and more than 60 days prior to the expiration of the 1974 contract, the Employers who had authorized the bargaining com- mittee to bargain for them in 1974 sent individual letters to the Association revoking any authority the Association might have to bargain in their behalf with Local 1772. Copies of this notice were sent to the Union along with notification that each Company desired to discontinue the existing collective-bargain- ing agreement upon its termination date, August 31, 1976. On June 30, 1976, a few days before he received the above communications, Roy Mabry, the business representative of Petitioner, sent to each Employer letters pursuant to Section 8(d) of the Act, notifying the Companies that the Union wished to meet and negotiate changes in the agreement then in effect. Upon receipt of copies of the aforementioned letters from the Employers, Mabry sent each of them a letter acknowledging their desire to discontinue the collec- tive-bargaining agreement and the revocation of the bargaining authority given to the Association. Ma- bry's letter concluded, "It is Local 1772's purpose to engage in good-faith collective bargaining with your firm toward the end that we agree upon a collective- bargaining agreement which will succeed the one expiring on August 31, 1976." It is well settled that the Board will find a multiemployer unit appropriate only where employ- ers evidence clear intent to participate in such a bargaining arrangement .5 Here, previous agreements signed by the Employers delegating bargaining au- thority to the Employers' negotiating committee clearly limited the duration of the authority dele- gated. And, although the Employers had not explicit- ly authorized the Association to bargain for them, there was, as discussed above, some confusion regarding the apparent authority of the Association to do so. Consequently, when the Employers wished to make clear their withdrawal from a multiemployer bargaining arrangement, it was to the Association that they addressed their revocation of authority. The copies of this notice sent to the Petitioner gave 4 For example, the testimony of Joe K. Silvernail, president of Silvernad 5 See e.g., Greenhoot, Inc., 205 NLRB 250 (1973); The Kroger Co, 148 Glass & Manufacturing Co., indicates that he thought there was no NLRB 569 (1964); Francis L. Bennett and Haro/dJ Bennett, partners, d/b/a difference between the Association and the negotiating committee . Bennett Stone Company, 139 NLRB 1422 (1962). 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Petitioner unequivocal and timely notice of such withdrawal. It is clear from Mabry's letter of July 6 that he understood the Employers' intent to revoke the joint bargaining authority. Neither party disputes the principle that an employ- er may withdraw from multiemployer bargaining if the intent to do so is clearly communicated to the Union in a timely and unequivocal manner. Contrary to the contention of Petitioner, we find that such intention was conveyed to the Union by each of the Employers involved and that the Union understood the clear import of the notice of withdrawal. In view of the foregoing, we further find that the necessary consent to participate in multiemployer bargaining has not been established and therefore that a mul- tiemployer unit is not appropriate here. Accordingly, we find appropriate the following individual units: Unit No. 1-All employees of VOLUNTEER GLAZING COMPANY, INC., working out of its facility located at 13110 60th Street, North Clear- water, Florida, employed by the Employer in the construction glazing craft, including drivers of glazing installation trucks and glaziers utilized to unload glazing material at jobsites; but excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act. Unit No. 2-All employees of SILVERNAIL GLASS & MANUFACTURING CO., INC., working out of its facility located at 2201 1st Avenue South, St. Petersburg, Florida, employed by the Employer in the construction glazing craft, including drivers of glazing installation trucks and glaziers utilized to unload glazing material at jobsites; but excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act. Unit No. 3-All employees of SUNSTATE GLASS COMPANY working out of its facility located at 4415 Cayuga, Tampa, Florida, em- ployed by the Employer in the construction glazing craft, including drivers of glazing installa- tion trucks and glaziers utilized to unload glazing material at jobsites; but excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act. Unit No. 4-All employees of PPG INDUS- TRIES, INC., working out of its facility located at 222 First Avenue South, St. Petersburg, Florida, employed by the Employer in the construction glazing craft, including drivers of glazing installa- tion trucks and glaziers utilized to unload glazing material at jobsites; but excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act. Unit No. 5-All employees of PPG INDUS- TRIES, INC., working out of its facility located at 137 South Tampa Street, Tampa, Florida, em- ployed by the Employer in the construction glazing craft, including drivers of glazing installa- tion trucks and glaziers utilized to unload glazing material at jobsites; but excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act. Unit No. 6-All employees of McMULLEN GLASS, INC., working out of its facility located at 107 Hamiller, Tampa, Florida, employed by the Employer in the construction glazing craft, includ- ing drivers of glazing installation trucks and glaziers utilized to unload glazing material at jobsites; but excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act. Unit No. 7-All employees of HARMON GLASS OF FLORIDA, INC., working out of its facility located at 4780 Distribution Drive, Tampa, Flori- da, employed by the Employer in the construction glazing craft, including drivers of glazing installa- tion trucks and glaziers utilized to unload glazing material at jobsites; but excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act. Unit No. 8-All employees of CENTRAL GLASS AND WINDOW working out of its facility located at 6575 80th Avenue North, Pinellas Park, Florida, employed by the Employer in the construction glazing craft, including drivers of glazing installation trucks and glaziers utilized to unload glazing material atjobsites; but exclud- ing office clerical employees, salesmen, guards, and supervisors as defined in the Act. Unit No. 9-All employees of CENTRAL GLASS COMPANY, INC., working out of its facility located at 302 N. Ingram, Lakeland, Florida, employed by the Employer in the con- struction glazing craft, including drivers of glazing installation trucks and glaziers utilized to unload glazing material at jobsites; but excluding office clerical employees, salesmen, guards, and supervi- sors as defined in the Act. Unit No. 10-All employees of CEE BEE GLASS SERVICE, INC., working out of its facility located at 3661 63rd Avenue North, Pinellas Park, Florida, employed by the Employer in the con- TAMPA BAY AREA GLAZING CONTRACTORS struction glazing craft, including drivers of glaz- ing installation trucks and glaziers utilized to unload glazing material at jobsites; but excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act. Unit No. 11-All employees of CAPITOL GLASS SPECIALTIES, INC., working out of its facility located at 3430 Cypress Street, Tampa, Florida, employed by the Employer in the con- struction glazing craft, including drivers of glazing installation trucks and glaziers utilized to unload glazing material at jobsites, but excluding office clerical employees, salesmen, guards, and supervi- sors as defined in the Act. Unit No. 12-All employees of AMERICAN GLASS INDUSTRIES, INC., working out of its facility located at 3201 28th Street North, St. Petersburg, Florida, employed by the Employer in 6 As the Regional Director found, there was evidence to the effect that one or more of the Employers herein did not employ a requisite complement of employees. The Board has held it is not empowered to certify a bargaining representative or by other procedures require bargaining in a unit compnsing one employee and it therefore does not direct elections in such units. Sonoma-Mann Publishing Company, 172 NLRB 625 (1968); Teamsters Local 363 the construction glazing craft, including drivers of glazing installation trucks and glaziers utilized to unload glazing material at jobsites, but excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act. Unit No. 13-All employees of SOUTHERN WINDOW ERECTORS, INC., working out of its facility located at 1134 First Ave., North, St. Petersburg, Florida, employed by the Employer in the construction glazing craft, including drivers of glazing installation trucks and glaziers utilized to unload glazing material at jobsites, but excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act. [Direction of Elections and Excelsior footnote omitted from publication.] Union No. 115 (The Vila-Barr Company), 157 NLRB 588 (1966). Accordingly, if any Employer can establish that in fact its employee complement has been permanently decreased to one employee and it appears that such situation will continue, a Supplemental Order shall issue deleting such Employer from the election directed herein. Crispo Cake Cone Company, Inc, 201 NLRB 309 (1973).