Arden Electric

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arden Electric, et al. and Local 340, International Brotherhood of Electrical Workers affiliated with International Brotherhood of Electrical Workers, Petitioner. Cases 20-RC-15401 through 20-RC- 15417 August 12, 1982 ORDER On May 14, 1982, Sacramento Valley Chapter, National Electrical Contractors Association, and certain other Employers' filed with the Board a motion for reconsideration of its decision directing that the petitions filed in the instant case be rein- stated and that the cases be remanded to the Re- gional Director for a hearing. After careful consideration, the Board has deter- mined that the motion should be granted in part.2 Thus, the previous ruling is hereby amended to direct a hearing limited to the issue of the continu- ing existence or viability of the multiemployer unit which the Regional Director has administratively found to constitute a bar to the petitions. The Board desires that at this time the parties be afford- ed an opportunity to adduce evidence bearing solely on the aforementioned issue.3 This evidence shall include, but not necessarily be limited to: 1. The extent of the authority of Sacramento Valley Chapter, National Electrical Contrac- tors Association, as demonstrated by letters of assent, by-laws, or any other evidence, to bar- gain with unions other than Local 340, Inter- national Brotherhood of Electrical Workers, for electrical contracting work; 2. The degree to which specific named Em- ployer-members of the Association did or did not attempt to withdraw from the Sacramento Valley Chapter, National Electrical Contrac- tors Association and the number of Employers and employees involved; and 3. The manner (e.g., how, when, etc.) in which these Employers sought to or did with- draw. Contrary to our dissenting colleagues, we feel that the action taken in this case is entirely appro- priate and clearly warranted by the present state of the record. Facts crucial to a determination on the appropriateness of the individual petitions before us are not clear, and must be resolved before any au- thoritative assessment can be made. Unlike the dis- sent, we find it unwise to assume that Employer- members have consented to a multiemployer bar- I AD-1345 (May 5, 1982). · The Employer's request for en banc consideration is also granted. In all other respects the motion is hereby denied. a See, e.g., The President and Fellows of Harvrd College, 229 NLRB 586 (1977). 263 NLRB No. 37 gaining relationship with any union other than IBEW, and that the present petitions are thus barred. We find it even less wise to treat this ques- tion as immaterial. As the Board and one of our dissenting colleagues have recognized "[t]he Board does not find a multiemployer unit appropriate except where all parties clearly agree to such a unit or whore there has been a history of bargaining on a multiemployer basis and the employers and either the incumbent or a rival union desire to continue bargaining on such a basis. In the absence of either of these two factors, the Board will not find appro- priate a unit covering employees of more than one employer, regardless of the desirability of such a unit." The Evening News Association, 154 NLRB 1494, 1496 (1965) (emphasis supplied). Thus, we take the most appropriate measure now available to answer the question before us and direct this preliminary hearing. IT IS HEREBY ORDERED that this proceeding be remanded for the purpose of taking evidence on the sole issue set forth above, and that after the taking of such evidence, the above-entitled matter be transferred to and continued before the Board in Washington, D.C. IT IS HEREBY ORDERED that, upon service of the order transferring this matter, the parties may file briefs with the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, in accordance with Section 102.67(i) of the Nation- al Labor Relations Board Rules and Regulations, Series 8, as amended. MEMBERS JENKINS and HUNTER, dissenting: Thirty years ago, the Board recognized the im- propriety of allowing an incumbent union, after having bargained for many years on a multiem- ployer basis, to disrupt the multiemployer unit by petitioning for a unit of the employees of one of the employers in the existing unit. The Stouffer Corp., 101 NLRB 1331 (1952). Since then, the rule barring such a petition has evolved into one regu- lating the time and manner of attempts by unions and employers alike to withdraw from multiem- ployer units. The Evening News Association, 154 NLRB 1494, 1496 (1964), enfd. 372 F.2d 569 (6th Cir. 1967). But it has remained the Board's position that a union may not, by the device of disclaiming an interest in representing certain employees, ac- complish an untimely withdrawal from the mul- tiemployer unit. William Moses, Rose Moses and Eugene Moses, Individually and as Trustees for the Estate of Bella Moses, 247 NLRB 144 (1980). In Moses, the incumbent union attempted to withdraw partially from the multiemployer unit by disclaim- ing an interest in representing the employees of one 318 ARDEN ELECTRIC, ET AL. employer. In the instant case, the Petitioner has at- tempted to disrupt the existing multiemployer unit by purporting to disclaim an interest in represent- ing any employees in the unit, and then, almost im- mediately, filing petitions for single-employer units of employees of 17 of the employers in the unit. The Board cannot, consistent with the line of cases outlined above, permit the Petitioner to succeed in this blatant attempt to whipsaw the unit. As the Petitioner's attempted withdrawal was untimely for the purposes of fragmenting the unit, we would affirm the Regional Director's administrative dis- missal of the petitions. The majority would remand the case for a hear- ing on the issue of the authority of the employer association representing the unit employers to bar- gain with unions other than the Petitioner and on the attempts of employers to withdraw from the unit. We find such a remand to be unnecessary. The association's authority to bargain with another union is irrelevant to the issue before us-the ap- propriateness of the petitioned-for units. Although, in response to the Petitioner's "disclaimer," the as- sociation has purported to recognize another union, it has taken no action inconsistent with the contin- ued existence of the multiemployer unit. Whether the Petitioner or the new union is the lawfully rec- ognized representative of the employees in the mul- tiemployer unit is a question for another day.' Suf- ficient to say, there is a union willing to represent them on a multiemployer basis. See The Evening News Association, Incorporated, supra. Nor has a material issue of fact been raised as to the effective withdrawal of a sufficient number of 4 if, ultimately, the Petitioner should be found to have lost its repre- sentative status, that will be a situation largely of its own making. employers from the unit to fragment and thereby destroy the integrity of the unit. The association, which has the right to prevent untimely withdraw- als by its employer-members even if the union con- sents, has not consented to any such withdrawals. Teamsters Union Local No. 378, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Capitol Chevrolet Co.), 243 NLRB 1086, 1089, fn. 1 (1979). Moreover, no evidence has been proffered to us that a substantial number of employers in the mul- tiemployer unit, including any who are named in the instant petitions, took timely steps to withdraw. As to any employers who may have attempted to withdraw after the Petitioner's "disclaimer," the question of whether the "disclaimer" was such an unusual circumstance as would permit them to do so when, as here, withdrawal would otherwise have been untimely, is not before us. We do not burden representation cases with unnecessary unfair labor practice issues. Whether or not any employers would have been justified in withdraw- ing in response to the Petitioner's actions, simple justice forbids that if the Petitioner succeeded through impermissible means in fragmenting the unit it should profit by its wrongdoing. Therefore, we conclude that for purposes of acting on the in- stant petitions the multiemployer unit should be deemed to exist as it did before the Petitioner's misleading "disclaimer," and that it is thus a viable unit that precludes a finding that the separate units sought are appropriate. If, given a ruling by the Board that the multiemployer unit still exists as before, any employers still wish to withdraw, the propriety of their doing so may be determined in an appropriate proceeding. 319